SURINDER KUMAR Vs. GIAN CHAND

JUDGEMENT

(1.) This appeal by Special Leave is brought from the judgment and decree of the High Court of the Punjab, dated 16th August 1949 reversing the decree of the trial Court which had decreed the plaintiffs' suit on a mortgage.

(2.) The plaintiffs who are the appellants in this appeal claim to be the legatees under a registered will of their mother's father Lala Guranditta Mal executed on 6th September 1944. One of the items bequeathed to them was the rights in a mortgage executed by the defendants in favour of the testator on 24th October 1932, for Rs. 60000. On 25th October 1944 they brought a suit in the Court of the Senior Subordinate Judge, Gurdaspur for the recovery of Rs. 5392-2-0 on the basis of the mortgage.

(3.) The learned Subordinate Judge held that the will "had the presumption of its correct execution" because it was registered and also that not obtaining the probate of the will was no bar to the plaintiffs obtaining a decree and passed a preliminary mortgage decree. On the matter being taken in appeal to the High Court the decree of the trial Court was reversed and the suit of plaintiffs dismissed but the parties were left to bear their own costs. The High Court held: