The court upheld the validity of a consent decree, ruling that the deceased had the authority to alienate property as separate property, and the plaintiffs failed to prove fraud.

JUDGMENT

Alka Sarin, J.

The present regular second appeal has been preferred by the plaintiff-appellants aggrieved by the judgment and decree dated 28.08.1987 passed by the Trial Court and the judgment and decree dated 12.01.1989 passed by the First Appellate Court.

2. The brief facts relevant to the present lis are that the plaintiff-appellants filed a suit for declaration challenging the decree dated 22.07.1981 passed in favour of defendant-respondent No.1, namely, Kalawati. It was the case set up that the parties were related to each other and come from one common ancestor, namely, Arjun. It was averred that Shri. Kishan - father of Maya, Pyari (plaintiff-appellants) and Smt. Kalawati (defendant-respondent No.1) and husband of Nangi (plaintiff No.3 in the original suit) was owner in possession of 2/3rd share of agricultural land described in para No.2 of the plaint measuring 25K-11M and a pacca house situated in the Revenue Estate of Village Dadanpur. It was further the case set up that Shri. Kishan had no male issue and was not on good terms with his nephews Kundan etc. at that time and the defendant-respondent No.2, who is the husband of defendant-respondent No.1, gave shelter to him and thereafter he remained under their influence. Due to the said fact the defendant-respondents obtained a collusive decree in a civil suit in their favour regarding the suit land which was illegal and not binding upon the rights of the plaintiff-appellants. It was further averred that the defendant-respondent No.1 tried to deprive the plaintiff-appellants of their right in the suit land by getting a mutation sanctioned on the basis of the decree and it was at that point that the plaintiff-appellants came to know about the same. It was further the case that no family partition or settlement had taken place between defendant-respondent No.1 and deceased, namely, Shri. Kishan, and that he had handed over possession of the suit land and the house in question in favour of both the parties according to their respective shares. It was further the case that at the time of death of their father, the parties were in possession of the disputed property in equal shares and at the time of passing of the alleged decree the deceased was not in good health. It was further averred under these circumstances fraud had been committed upon the deceased. It was further the case set up that the deceased Shri. Kishan had never come to Court to file the written statement admitting the claim in the suit and further that he had no right or power to alienate the disputed property, which was ancestral, without any legal necessity and the consent of the family. Additionally, the plaintiff-appellants also set up a Will dated 18.10.1973 in their favour alleged to have been executed by Shri. Kishan.

3. On notice, the suit was contested by the defendant-respondents. They pleaded that the suit was not maintainable. It was admitted that Shri. Kishan died without leaving a male issue. It was further pleaded that Shri. Kishan resided with the defendant-respondents as a member of the family and they used to render services to him. It was denied that any fraud was effected by the defendant-respondents at the time of passing of the decree and that the deceased was not in a good health to engage a counsel. It was further the case that Shri. Kishan had appeared before the Court and made a statement. It was further denied that the deceased Shri. Kishan had ever handed over possession of the suit land in favour of the plaintiff-appellants.

4. In replication the contents of the plaint were reiterated and those of the written statement were denied.

5. On the basis of the pleadings of the parties the following issues were framed :

1. Whether the judgment and decree dated 22.07.1981 are illegal, void and not bidding on the rights of plaintiffs as alleged in para 6A to 6D of the plaint ? OPP 1A. Whether the deceased executed a valid will on 18.10.1983 in favour of plaintiff No.1 as alleged