JUDGMENT 1. Present second appeal under Sec. 100 of CPC has been filed against the judgment and decree dtd. 19/1/2010 passed by Additional District Judge, Gohad, District Bhind (M.P.) in Civil Appeal No. 12/2009 affirming the judgment and decree dtd. 30/1/2009 passed by the Civil Judge, Class-I, Gohad, District Bhind in Civil Suit No.40-A/2007 by which the suit of appellants was dismissed and counter claim of the respondent/defendant was allowed. 2. Factual matrix of the case, in brief, are that appellants/plaintiffs had filed a Civil Suit No.40-A/2007 for declaration of Will dtd. 29/12/2004 to be forged and void ab-initio and permanent injunction before the Court of Civil Judge, Class-I, Gwalior, stating therein that the disputed land bearing survey numbers as described in the plaint are situated at Village Karvas, Tahsil Gohad, District Bhind. It is further submitted that apart from the aforesaid survey numbers, some rooms and one hall has been constructed adjoining the land thereof some open space/land which was remained in title and possession of Smt. Durgadevi W/o Udaibhan Shigh, R/o Karvas, who was issueless and had been expired on 14/12/2005. It was further pleaded that plaintiffs/appellants are family member of deceased-Durgadevi and Udaibhan Singh. As deceased late Smt. Durgadevi had expired left behind the disputed land, as such being family members/successors/blood relatives, they are in possession of the disputed land and are entitled to be declared as owner of the disputed land. The appellants/plaintiffs further pleaded in the plaint that the ancestor of the plaintiffs and ancestor of Udaibhan Singh were same and whose name was Ranchhor Singh. As per Plaintiffs the family tree to show the relationship between ancestor of plaintiffs and Udaybhan Shigh is as below : 3. It is further pleaded that on the basis of above family they are legal heirs and blood relatives of late Smt. Durgadevi. It was further stated in the plaint that the aforesaid disputed land was received by Smt. Durgadevi from her husband. Hence, it is an ancestral property of the appellants/plaintiffs and in view thereof they are in possession of the disputed property since the life time of Smt. Durgadevi. It was further stated in the plaint that the aforesaid disputed land was received by Smt. Durgadevi from her husband. Hence, it is an ancestral property of the appellants/plaintiffs and in view thereof they are in possession of the disputed property since the life time of Smt. Durgadevi. After death of Smt. Durgadevi, they started proceedings for mutation before the Tahsil Court, thereupon, the defendants came in the village on 2/1/2006 and tried to disposes the plaintiffs/appellants from disputed land and stated that they have started proceedings of mutation of disputed land by their names on the basis of so called Will, whereas, late Smt. Durgadevi has never executed any Will in favour of any person. The defendants themselves have prepared forged so-called Will. In such circumstances, it was prayed that the plaintiffs no. 1 and 2 be declared as owner of 1/3rd, plaintiffs No. 3 to 7 be declared as owner of 1/3rd and plaintiff no.5 be declared as owner of 1/3rd of the disputed land and the so called Will be declared forged and void, ab-initio against the rights of the plaintiffs. 4. The defendants no. 1 and 2 have filed written Statement along with the counter claim in the matter and denied the allegations of the plaint and inter-alia contended that they are sons of late Smt. Durgadevi's sister who duly executed Will dtd. 19/2/2004 in their favour and registered the same in the Office of the Dy. Registrar, Registration, and claimed to be owner on the basis of the aforesaid Will and the defendants prayed for declaration of title and permanent injunction in their favour. 5. On the basis of the aforesaid pleadings, the learned Trial Court framed as many as seven issues in the matter and parties lead evidence to prove the said issues in their favour. The plaintiffs examined eight witnesses in their favour, whereas the defendants examined five witnesses to prove their case. The learned Trial Court after appreciation of the evidence made available on record, vide its judgment and decree dtd. 30/1/2009 dismissed the Suit filed by the appellants/plaintiffs and decreed the counter claim of the defendants in their favour. 6. The plaintiffs examined eight witnesses in their favour, whereas the defendants examined five witnesses to prove their case. The learned Trial Court after appreciation of the evidence made available on record, vide its judgment and decree dtd. 30/1/2009 dismissed the Suit filed by the appellants/plaintiffs and decreed the counter claim of the defendants in their favour. 6. Being aggrieved by the aforesaid judgment of the trial court, the appellants/plaintiffs preferred First Civil Appeal No. 12/09 before the Lower Appellate Court who also dismissed the First appeal preferred by the appellants and has affirmed the judgment and decree passed by the Trial Court, therefore, appellants/plaintiffs has occasion to file this second appeal under Sec. 100 of C.P.C. 7. Assailing the findings recorded by the learned courts below, learned counsel for appellants/defendants submits that the learned first appellate Court has committed grave error in disbelieving the the evidence lead by the appellants/plaintiffs with regard to family backgrounds of the parties and they have declined to believe on the evidence lead by the plaintiffs only on the basis that the plaintiffs have not examined any old aged persons of the village. The courts below have failed to consider the fact that the respondents/defendants have totally failed to discard the evidence lead by the appellants with regard to their family back grounds. It is not matter that who much witnesses have been examined. It was duty of the courts below to appreciate the evidence properly which has not been done. Hence, the findings recorded by both the courts below are no finding in the eye of law. 8. It is further argued that both the Courts below have further committed serious error in law in granting approval to the so-called Will and have failed to consider the fact that the property in question is an ancestral property, hence late Smt. Durgadevi was having no right to execute the Will in favour of the third person, whereas, it is undisputed fact that the property in question was an ancestral property received to the Smt Durgadevi from her husband. Hence, the findings recorded by both the courts below are perverse, illegal and bad in law. 9. Hence, the findings recorded by both the courts below are perverse, illegal and bad in law. 9. It is further argued that it is an undisputed fact that the property in question is an ancestral property and there is no iota of evidence on record to prove that the property in question was self acquired property of Smt. Durgadevi. Hence Smt Durgadevi had no right to execute the Will in favour of the defendants. As such the Will in question was void ab-initio. The findings recorded by the courts below are totally illegal and perverse as the same have been recorded without appreciating the material available on record properly. Hence the impugned judgment and decree are not liable to be quashed. 10. On the other hand, learned counsel for the respondents submits that the order impugned is in accordance with law and no interference is warranted in the same and prayed to dismiss the present second appeal. 11. Heard the parties and perused the record. 12. The present second appeal has been admitted by the Court on following substantial questions of law:- "i. Whether the Courts below have erred in law in devolving the interest of Udaybhan Singh through testamentary or intestate whereas the amendment in Sec. 6 of Hindu Succession Act, 1956 has come into force w.e.f. 9/9/5 while the so called Will is purported to have been executed on 19/2/2004 ? ii. Whether the Courts below have erred in law in holding the Will (Ex-D/1) to be legal and valid whereas it is an admitted fact that the property in question was ancestral property, inherited by Smt. Durgadevi from her husband Udaybhan Singh? iii. Whether the Courts below have erred in law in decreeing the counter claim of respondents/defendants on the basis of Will (ExD/1) whereas Smt. Durgadevi had no power to execute the Will as property in question was ancestral property?" 13. It is not in dispute that the property in dispute was in the ownership and possession of Smt. Durgadevi W/o Udaibhan Shigh, R/o Karvas, who was issueless and had expired on 14/12/2005. The appellants/defendants at para one of their written statements categorically admitted that Smt. Durgadevi was the sole owner of the disputed property. There is no evidence on record to prove that the property in question is an ancestral property. The appellants/defendants at para one of their written statements categorically admitted that Smt. Durgadevi was the sole owner of the disputed property. There is no evidence on record to prove that the property in question is an ancestral property. Hence, Smt Durgadevi had every right to execute the Will on 19/2/2004 in favour of the defendants. Thus, the learned courts below have not erred in dismissing the suit of appellants and decreeing the counter claim of respondents. Consequently, the substantial questions of law are answered as below; i) The Courts below have not erred in law in devolving the interest of Udaybhan Singh through testamentary or intestate whereas, the amendment in Sec. 6 of Hindu Succession Act, 1956 has come into force w.e.f. 9/9/5 while the Will is purported to have been executed on 19/2/2004. ii) The Courts below have not erred in law in holding the Will (Ex-D/1) to be legal and valid because it is not proved that the property in question was ancestral property. iii) The Courts below have not erred in law in decreeing the counter claim of respondents/defendants on the basis of Will (Ex-D/1), as Smt. Durgadevi was the sole owner of the disputed property and had the power to execute the Will of her property. 14. Consequently, the present appeal sans merits and is hereby dismissed.