JUDGMENT

Arun Monga, J. (Oral)

For convenience, parties herein are described as per recitals before the trial Court.

2. Having suffered concurrent adverse findings by the two Courts below, the plaintiff is in second appeal before this Court assailing the trial Court judgment and decree dated 16.08.2016, as upheld by the learned First Appellate Court vide its judgment and decree dated 19.08.2021.

3. Briefly stated, facts as noticed by Courts below are that defendants are the real brothers of plaintiffs. Plot No.105 was purchased by the mother of the parties to the suit, namely, Bhagwano Devi vide registered sale deed No.5150, dated 14.03.1984 and thereafter, the house was constructed over the said plot. Mother of the parties expired on 6.12.2001 and after her death, the house in question was inherited by plaintiffs and defendants in equal shares. The plaintiffs and defendants are the only first class legal heir of deceased Smt.Bhagwano Devi and there is no other legal heir of deceased Smt. Bhagwano Devi. Father of the parties has already expired. In this way, the plaintiffs are owners in possession of 1/2 share in equal shares and the defendants are owner in possession of remaining 1/2 share.

3.1 It is further alleged that the house in question is joint property of the parties and the same has not been partitioned by any competent court till date. The plaintiffs and defendants are owners in possession of the house in question as per their respective shares. Neither the plaintiffs nor the defendants are in exclusive possession of the house. Since the house in question is joint property of the parties, therefore, a dispute regarding the joint property arose between the parties, as such, it has become necessary to get the house in question partitioned, as per respective shares of the parties. Plaintiffs requested the defendants to get the property partitioned and not to alienate, transfer or mortgage the suit property without getting it partitioned but they refused to accept the genuine request of plaintiffs.

3.2 The defendants filed their written-statement in which they disclosed that Smt. Bhagwano Devi during her lifetime executed a Will dated 20.10.2001, which was registered after her death vide Vasika No.453 dated 29.08.2011, whereby she bequeathed her property in favour of the defendants. Thereafter, amended plaint was filed by the plaintiff mentioning therein that Smt.Bhagwano Devi never executed any Will in favour of the defendants during her lifetime. The said Will is false, forged, bogus, null and void, based on fraud and mis-representation and surrounded by suspicious circumstances. As such, the same is not binding upon the rights of plaintiffs and is liable to be set aside because at the time of execution of alleged Will, Smt. Bhagwano Devi was not in her good state of mind as she was suffering from age related ailments, as such, she was not capable to understand her good and bad and was confined on bed. The alleged Will was executed by Smt. Bhagwano Devi on 6.10.2001and she died on 6.12.2001 i.e., after two months of the execution of the impugned Will. Defendants never disclosed about the said Will to plaintiffs on any occasion, rather, they remained mum for about ten years and got the said Will registered on 29.08.2011, which creates suspicion. Due to joint property i.e., house in dispute, a dispute arose between the parties to the suit, therefore, plaintiffs wish to get the house constructed on plot No.105 partitioned. Hence the civil suit.

4. Upon notice, the defendants appeared and contested this suit by filing the joint written statement. T