Decided on June 13,1997



- (1.)This is a Defendants' appeal filed against the judgment and decree passed by Additional District Judge (I), Kangra at Dharamshala in Civil Appeal No 254 of 1985 dated 4-3-1989. By means of impugned decree, the suit of the Plaintiffs has been decreed for possession of (he suit land measuring 3250 kanals 16 marlas, but at the same time the claim of the Plaintiffs for recovery of Rs. 1500/- has been disallowed. Parties in this judgment are being referred to as 'Plaintiffs' and 'Defendants'.
(2.)Facts which are not in dispute in this case are that Smt. Mahan Devi widow of Sohnu was admittedly the owner of the property in question. Her uterine brother was one Buta whose daughter is Chain Devi, Defendant No. 1 and Hoshiar Singh, Defendant No. 2 is the husband of Defendant No. 1 and son-in-law of the said Buta. Further facts which emerge from the record are that Rai Singh and Surjit Singh, Plaintiffs filed a suit for possession against the Defendants as well as for recovery of Rs. 1500/-. According to the Plaintiffs, they became owners of the property in suit by means of an unregistered will (Ext. P1) dated 24-3-1982 which was claimed by them to have been executed by Smt. Mahan Devi being the absolute owner thereof, while being of sound disposing mind in the presence of the witnesses PWs 3 and 4. This will had been scribed by Des Raj (PW-2). It was further pleaded that the mutation of inheritance vide mutation No. 354 in favour of Defendants is wrong After the attestation of this mutation, Defendants were stated to have removed some utencils valued at Rs. 1500/-. Since the Defendants failed to admit the right of the Plaintiffs despite having been asked many a times, hence the necessity of filing the suit.
(3.)This suit was resisted and contested by the Defendants on the plea that the Will set up by the Plaintiffs is fictitious and the deceased Mahan Devi had executed a registered Will (Ext D-2) on 5-11-1971 as both of them were serving her At the same time, Plaintiffs claimed that they were rendering service to Smt Mahan Devi. This claim of the Plaintiffs was repudiated by the Defendants. It was further pleaded that the Will in favour of the Defendants being a registered Will could only be cancelled by an unregistered document and further the deceased Testatrix Mahan Devi was not in a fit stale of mind and health to have executed the Will dated 24-3-1982 (Ext. P-l).
In the aforesaid background, trial Court framed the following issues:

1. Whether the suit is not maintainable OPD.

2. Whether Suit Mahan Devi had executed a valid Will dated 24 3-1982 in favour of the Plaintiffs, if so, its effect OPP.

3. Whether Smt, Mahan Devi executed a valid Will dated 5-11-1971 in favour of the Defendants OPD.

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