The main legal point established is the requirement to prove the validity of a will and the succession of property as per the Hindu Succession Act.

JUDGMENT

This first appeal under Section 96 of the Code of Civil Procedure has been preferred by the appellants/defendants assailing the judgment and decree dated 29.8.2003 passed by learned XII Additional District Judge Gwalior (Fast Track Court) (Shri H.N. Awasthi) in Civil Suit No. 11-A of 2003 whereby, the suit filed by the plaintiffs for declaration of title and permanent injunction was decreed holding that the disputed house is of the ownership of the plaintiffs and they are in possession of the same. In this appeal, the appellants are referred as 'defendants' and respondents as 'plaintiffs'.

2. The admitted facts are as follows:

“The suit house bearing No. 40/940 is situated at Amkho Lashker Gwalior which was owned by the deceased Madho Singh who had one brother Chatur Singh. Chatur Singh had two sons Gopal Singh and Shivendra Singh. The plaintiffs no. 1 to 3 are sons of Shivendra Singh and plaintiff no. 4 is the son of Gopal Singh. The plaintiff no. 5 Shivendra Singh has expired during pendency of the suit. The map of the disputed house attached with the plaint is a part of the suit and in this case, the disputed house is referred to as 'disputed property”

3. Facts, in brief, of the plaint are that Late Madho Singh retired Commandment I.P.S. who died on 8.7.1997 was owner and title holder of the disputed property which was his self-acquired property. The plaintiffs got ownership of the disputed house on the basis of will dated 30.6.1997 Ex. P/1 which was duly executed by deceased Madho Singh in their favour during his life time. The plaintiffs have further pleaded in para 9 of the plaint that they are legal heirs of the deceased Madho Singh also. Hence, after the death of deceased Madho Singh, the plaintiffs have become owner and title holder of the disputed property. The plaintiffs No. 1 to 3 being real brothers and plaintiff no. 4 being their cousin, were having equal share in the disputed property. The plaintiff no. 5 has already expired. After the death of deceased Madho Singh, names of plaintiffs have been mutated in his place to the disputed property. The defendants are in relation of deceased Madho Singh's wife and trying to grab the house. They have no title or interest in the said property. When they tried to dispossess the plaintiffs on 24.9.1999, the plaintiffs had to file the suit as stated above.

4. The defendants submitted their joint written statement and denying the plaint allegations, alleged that the plaintiffs have illegally got the said house mutated in their names against which, an appeal has also been filed by them in the Municipal Corporation, Gwalior. It was further alleged that during his life time, deceased Madho Singh did not execute the will Ex. P/1 in favour of the plaintiffs. On the other hand, deceased Madho Singh had executed a will in favour of the defendants on 7.2.1992 Ex. D/2 which is valid. The will produced by the plaintiffs alleged to have been executed by deceased in their favour is a forged document, on the strength of which, plaintiffs cannot claim the ownership and title to the disputed property. The defendants have further pleaded that they are owner of the disputed house on the basis of will Ex. D/2. Hence, prayed for dismissal of the suit.

5. That, learned trial Court after framing four issues and after recording evidence of both the parties and having discussed the recorded evidence in detail, has decreed the suit vide impugned judgment dated 29.8.2003. The trial Court has not found proved both the wills Ex. P/1 and Ex. D/2, yet the plaintiffs' suit has been decreed holding that the plaintiffs are to be successors of the deceased Madho Singh.

6. The following questions arise for consideration in this appeal:

(I). Whether or not the will dated 7.2.1992 Ex. D/2 was executed by the deceased Madho Singh in favour of the defendants?

(ii). Whether or not the will dated 30.6.1997 Ex. P/1 was executed by the deceased Madho Singh in favour of the plaintiffs?

(iii). Whether, the plaintiffs h