The court upheld the validity of the will dated 26-7-1995, dismissing the subsequent will as unproven and suspicious, while also ruling the counter claim as barred by limitation.

JUDGMENT :

Goutam Bhaduri, J.

1. Since both the appeals are arising out of same judgment and decree dated 31-10-2019 passed by the District Judge, Rajnandgaon, in civil suit No.35-A/2014 they are being heard and decided together by this common judgment.

2. FA No.64 of 2020 is preferred by the plaintiffs on the ground that the counter claim was barred by time whereas FA No.506 of 2019 is preferred by the defendant No.1 challenging the judgment and decree dated 31-10-2019 passed by the District Judge, Rajnandgaon, in civil suit No.35-A/2014.

3. (i) Plaintiffs namely; Inderchand Kothari, Shashikant Kothari and Santosh Kumar Kothari are the brothers and the defendant No.1 namely; Nirmalchand Kothari is the son of Umedchand Kothari, who is the brother of the plaintiffs. The father of the plaintiffs namely; Poonamchand Kothari died on 28-1-1991 and mother namely; Rajkanwar Bai Kothari died on 7-1-2011. The plaintiffs have other brothers & sisters and the sisters were married.

(ii) According to the plaintiffs, during the lifetime of their father, the oral partition took place on 4-11-1964 and in such partition late Rajkanwar Bai, the mother of the plaintiffs, got the house situated at Hamalpara, which is in nazul land recorded in Nazul Sheet No.47-B, plot 212 & 213 admeasuring 81 & 556 sq.mtr. in total 637 sq.mtr. and other agricultural lands. The property details of late Rajkanwar Bai were shown in schedule A & B of the plaint. After death of Rajkanwar Bai the plaintiff No.3 Santosh filed an application for mutation in respect of the suit land on 23-1-2011on the ground that as per will executed on 26-7- 1995, the property be transferred in his name. Defendant No.1 Nirmalchand filed a written objection on 20-7-2011 and produced the will dated 28-1-2003 stating that subsequently the property was bequeathed in his favour.

(iii) The plaintiffs stated that the father of the defendant No.1 namely; Umedchand, who is the brother of the plaintiffs, had not maintained the cordial relation with his mother late Rajkanwar Bai and she was not happy with his behaviour and during her ailment also they did not take care of her and used to insult her, therefore, expressing her displeasure she on her own wrote a letter on 2-2- 1993, which was got typed on 14-12-2008, and on 26-7-1995 before the witnesses she executed a will and the entire movable and immovable properties were bequeathed in favour of the plaintiffs namely; Inderchand, Shashikant and Santosh Kumar along with grandson Arpan and respective wives of plaintiffs No.2 & 3 namely; Pushpalata & Sunita. Therefore, the declaration was sought for that they are the beneficiary of the will executed by late Rajkanwar Bai. The said will was got registered on 26-7-1995 and the immovable properties were also gifted. She died on 7-1- 2011 and till her death the plaintiffs being the sons used to take care of the welfare of Rajkanwar Bai.

(iv) It was further pleaded by the plaintiffs that certain immovable properties were also sold by late Rajkanwar Bai, but the records were not corrected, therefore, before the Tahsildar, Rajnandgaon, all the three plaintiffs filed an application dated 25- 3-2011 that as per the will their names be mutated in respect of the agricultural land admeasuring 25.33 acres at village Lakholi in different shares. On such application of mutation, the defendant No.1 filed an objection dated 20-7-2011 and also produced the will dated 28-1-2003. The plaintiffs claimed that the subsequent will dated 28-1-2003 was fabricated and forged. The criminal cases were also filed between the parties, which are pending. The plaintiffs stated that the defendant No.1 would try to interfere with peaceful possession of the properties, which were bequeathed in their favour, as such, declaration and permanent injunction was sought for that on the basis of forged will dated 28-1-2003 the defendant No.1 would not get any right or title and, in fact, as per the will dated 26-7-1995 the plaintiffs would be entitle