MILKHI RAM Vs. SURMOO DEVI
HIGH COURT OF HIMACHAL PRADESH
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KAMLESH SHARMA, J. -
(1.) This Regular Second Appeal is directed against the decree and judgment dated 21 -8 -1991 passed by the District Judge Hamirpur, whereby the appeal of respondent -plaintiff was accepted and the decree and judgment dated 18 -1 -1986 of Sub -Judge 1st Class Hamirpur was set aside and her suit was decreed against the appellants -defendants:
(2.) The brief facts of the case are that respondent -plaintiff 6led civil suit against the appellants -defendants for possession of the suit land clausing herself to be the only legal heir of its owner Sh Sehad Ram who had died on 11 -5 -1984 The mutation of inheritance of Sh Sehad Ram was attested in favour of the appellants -defendants on the basis of a will propounded by them. The respondent -plaintiff had challenged this will as forged and fictitious. The appellants defendants had contested the suit and took a number of preliminary objections. On merits their case was that the will executed by Sh. Sehad Ram in tori favour is a valid will. Their defence weighed with the trial court and it dismissed the suit holding that the will was proved to be executed in accordance with law. According to the trial Court, the suspicious circumstances that the sole legal heir was disinherited and one of the propounder the will had taken part in its execution stood explained. But these finding were reversed by the District Judge in the appeal filed by the respondent plaintiff Hence the present Regular Second Appeal.
(3.) I have heard the learned Counsel for the parties and gone the record. Sh. Bhupendcr Gupta, appearing on behalf of the appellants defendants, submits that though it is a finding of fact that the will propounded by his clients is shrouded by suspicious circumstances which they have failed to explain, yet, if these findings are based on wrong notion and misconception of law, these can be Interfered with in the Regular Second Appeal. According to Mr. Gupta, the wrong notion and misconception of law with the District Judge was that when one of the legal heirs or the sole legal heir is not bequeathed his property by the testator, his will becomes unnatural and also invalid. He urges that if execution of the will is proved, as in the present case, the Court is not entitled to consider the terms of the will for deciding whether the testator was justified in disinheriting one of the legal heirs or the sole legal heir. For making these submissions, he has relied upon Ajit Chandra Majumdar v. Akhil Chandra Majumdar, AIR 1960 Cal 551 ; Sonam Topgval Bhutia v. Gompu Bhutia, AIR 1980 Sikkim 33 ; Alok Kumar Aich v. Asoke Kumar Aich and others, AIR 1982 Cal 599 ; Smt. Sushila Devi v. Pandit Krishna Kumar Missir and others, AIR 1971 SC 2236 and Smt. Indu Bala B)se and others v. Munindra Chandra Bose and another, AIR 1982 SC 133 and has tried to distinguish Kalyan Singh v Smt. Chhotl and others, AIR 1990 SC 396 and Ram Piari v. Bhagwant and others, 1990 Marriage LJ 283, relied upon by the District Judge.;
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