J U D G M E N T

The plaintiff is the appellant in this Second Appeal.

2.The case of the plaintiff is that her mother Sundari Bai purchased the subject property with a larger extent of 4104 Sq., feet through registered sale deed dated 19.5.1978, marked as Ex.A1. Through a registered settlement deed dated 16.6.1980, marked as Ex.A2, the plaintiff’s mother settled an extent of 2052 Sq., feet out of the total extent of 4104 Sq., feet. After this settlement, the plaintiff’s mother constructed a house in the remaining extent of 2052 Sq., feet and she was in possession and enjoyment of the same.

3.The further case of the plaintiff is that her mother,out of her own free will and volition and while possessed of a sound disposing state of mind, executed a registered Will dated 20.5.2003, marked as Ex.A11 and bequeathed the remaining portion along with the house constructed therein, in favour of the plaintiff. It is further stated that by virtue of this Will, the plaintiff’s mother revoked the earlier Will dated 28.2.1991. Thereafter,the plaintiff’s mother died on 21.3.2004 and on her demise, the plaintiff became entitled to the property and this property has been described as the suit property.

4.The further case of the plaintiff is that her mother had executed a mortgage over the suit property in favour of the 4th defendant on 9.10.1991 and according to the plaintiff, this mortgage was also discharged on 30.10.1998. Once again, the mother of the plaintiff executed a mortgage on 16.4.1999 in favour of the 4th defendant and according to the plaintiff, the money that was borrowed was taken by the 1st and 2nd defendants and it was utilised for their own purpose. After the demise of the plaintiff’s mother, there was some misunderstanding with the 1st and 2nd defendants and the 2nd defendant inducted the 3rd defendant in possession of a portion of the suit property.

5.The plaintiff issued a legal notice dated 25.10.2005 and called upon defendants

1 to 3 to vacate the suit property and handover possession to the plaintiff. Inspite of receipt of the legal notice, it was neither complied with nor any reply notice was sent to the plaintiff. Hence, the plaintiff filed this suit seeking for the relief of delivery of possession against defendants 1 to 3.

6.The defendants 1 to 3 filed a written statement. The 1st defendant is the brother of the plaintiff and the 2nd defendant is the son of the 1st defendant. They took a stand that the Will dated 20.5.2003 is a fabricated document and this Will could not have been executed by the mother since she was suffering from cancer for nearly 3 years and she was undergoing regular treatment in the hospital and she was not in a position to take any clear decision on her own. That apart, she was under the care of the 1st and 2nd defendants. The further defence taken by them is that the mother had already executed a Will on 28.2.1991 and there was no requirement for her to execute yet another Will after 12 years,more particularly when the property was under mortgage and the borrowed money was utilised for her treatment. That apart, already half of the property was settled in favour of the plaintiff and that is the reason why the earlier Will was executed in favour of the 1st defendant. They also took a stand that there was no reason for denying a share in the property for all the other legal heirs and to exclusively give the property in favour of the plaintiff. It is stated that the suit itself was filed only to harass the defendants and hence the defendants sought for the dismissal of the suit.

7.The Trial Court on consideration of the facts and circumstances of the case and on appreciation of the oral and documentary evidence, through a judgment and decree dated 17.8.2009, decreed the suit as prayed for and directed defendants 1to 3 to vacate and deliver possession of the suit property to the plaintiff within four months.

8.Aggrieved by the same, the defendants 1 to 3 filed an appeal before the Principal Sub-Judge, Co