JUDGMENT

1. This Second Appeal under section 100 of CPC has been filed against the Judgment and Decree dated 10.10.1994 passed by 4th Additional District Judge to the Court of District Judge, Sagar in Civil Appeal No. 22-A/1992, thereby reversing the Judgment and Decree dated 9.4.1992 passed by 2nd Civil Judge Class 2, Sagar in Civil Suit No. 87-A/1991.

2. The Appeal was admitted on the following Substantial Question of Law :

“Was the original holder Laxman not competent to execute the Will Ex. P.5, regarding the property alleged to be ancestral.”

3. I.A. No. 12009 of 2011 has been filed under section 100(5) of CPC, whereas I.A. No. 10367 of 2017 has been filed under Order 41 Rule 27 of CPC.

4. The Counsel for the Appellant didnot refer to these applications at all. Thus, it is clear that Counsel for the Appellants was not interested in pressing I.A. No. 12009 of 2011 and I.A. No. 10367 of 2017, accordingly, the same are dismissed as not pressed.

5. The facts of the present case in short are that Narmada Prasad filed a suit for declaration of title by pleading interalia that Laxman S/o Ram Prasad Patel was the owner of Kh. No 89 and 92. Laxman was the exclusive owner of Kh. No. 158/2 area 1.113, 158/3 area .101 total 1.214 and in Kh. No. 8/2 area .073, 8/5 area .081, 156/1 area .133, 156/5 area .997, 159/5 area .56 157/2 area .324, 147/6 area .340 total area 1.504, Laxman was owner and in possession of .534 hectares. Thus, Laxman had total area of 1.748 hectares. Laxman had no sons. The defendants No.1 (a) and (b) were his daughters. The Plaintiff is the son of younger daughter of Laxman. He was residing with Laxman from the very beginning. He served Laxman and helped him in agricultural activities, whereas the elder daughter of Laxman was residing in her matrimonial house and was not taking care of Laxman. Accordingly, Laxman executed a Will on 27.6.1978 and gave 1/3rd share in the properties mentioned in para 1 of the plaint to his wife Indrani, and bequeathed 2/3rd properties to the plaintiff. Laxman died in the year 1980. The plaintiff performed his last rites. Thereafter, Indrani also executed a sale deed in favour of plaintiff in respect of 1/3rd share which was given to her by Laxman by Will. Thus, it was claimed that the plaintiff became the owner and in possession of the entire lands mentioned in para 3 of the plaint. In the month of August 1984, when the plaintiff enquired from the Patwari as he was intending to purchase more lands, then he came to know that without the knowledge and notice to the plaintiff, the names of the Wd/o of Laxman, Kamla (Elder daughter) and Jamuna (Younger daughter/mother of plaintiff) have been mutated in the revenue records, whereas they donot have any right or title in the properties. It was further pleaded that Kamla has executed a gift deed in favour of defendant No.3 during the pendency of the suit. Thus, it was prayed that the registered gift deed is null and void to the interest of the plaintiff and for declaration that the plaintiff is the owner and in possession of the properties in dispute.

6. The defendants No. 1(a) and 3 filed their joint written statement and admitted that Laxman was the owner and in possession of the lands in dispute. He didnot have any son. Kamla and Jamuna were his two daughters. But it was denied that the plaintiff had resided with Laxman from very beginning. It was also denied that he had taken care of Laxman. It was claimed that the plaintiff had never helped Laxman in agricultural activities. It was denied that any Will was executed by Laxman thereby bequeathing 1/3rd Share to his wife Indrani and remaining 2/3rd to plaintiff. During the life time of Laxman, Indrani had only 1/4th share therefore, Laxman had no right or title to give 1/3rd share to his wife Indrani. The sale deed dated 30.6.1984 is a sham document. The Will is a forged and concocted document. If there was any Will, then the plaintiff would have certainly produced the same at the time of mut