RASTOGI,J. - (1.) This is the defendant's appeal by special leave against the judgment of the High Court of Punjab and Haryana at Chandigarh dated 28th July, 2004 and arises in the following circumstances.
(2.) Original plaintiffs, Darshan Singh son of Bhana, and Amriti and Udhi alias Iqbal Kaur, daughters of Bhana filed a suit for possession of the subject land in dispute. It was claimed by the plaintiffs that Bhana, son of Moti was the original owner of the subject properties in dispute. The plaintiffs along with one Gurdev Kaur were the children of aforesaid Bhana from his first wife Bhago and after the death of his wife(Bhago), Bhana was remarried to Smt. Banti but because of strained relations of Bhana and Smt. Banti, they started living separately. There was even a litigation between them. Bhana and Smt. Banti had a daughter, namely, Ajit Kaur(appellant) from the aforesaid wedlock. To settle the dispute between them, Bhana parted the suit land to Smt. Banti by way of gift for her maintenance way back in the year 1950. In furtherance thereof, mutation was also entered in favour of Smt. Banti bearing no. 3813 sanctioned on 25 th February, 1950. The aforesaid gift came to be challenged by the original plaintiff Darshan Singh in a Civil Suit No. 103/1953 for declaration under the customary law. It was claimed by him that the aforesaid gift by late Bhana in favour of Smt. Banti qua the ancestral property would not affect the reversionary rights of Darshan Singh(original plaintiff). The aforesaid civil suit filed at the instance of Darshan Singh was decreed by the learned trial Court vide judgment dated 30 th June, 1954 and it was held that the aforesaid gift by late Bhana in favour of Smt. Banti would not affect the reversionary rights of Darshan Singh and would operate only during the life time of Bhana. The Civil Appeal No. 101/1954 preferred by Banti against the aforesaid judgment and decree was dismissed by learned District Judge vide judgment dated 29th November, 1954 and the Regular Second Appeal No. 193/1955 filed at her instance(Smt. Banti) came to be dismissed by the High Court on 3rd November, 1959. It was claimed that Smt. Banti was to continue to have the rights in the property only during the life time of Bhana and was not an absolute owner. Since Bhana died on 27th March, 1973 and prior to his death, he had executed a registered will dated 5th January, 1973 whereby he bequeathed his estate in favour of plaintiffs Darshan Singh and others by excluding Smt. Banti and Smt. Ajit Kaur, original (defendant no. 1) and (defendant no. 25) appellant herein and other daughter Gurdev Kaur. In reference to the aforesaid will dated 5 th January, 1973, Civil Suit No. 15/1975 was filed by the plaintiff for possession. The appellant contested the suit and it was claimed by her that Banti was the absolute owner of the suit property. She even denied the earlier litigation between the parties whereby reversionary rights of Darshan Singh came to be upheld. The will as claimed by the plaintiffs dated 5 th January, 1973 was also contested.
(3.) On the other hand, the appellant in separate litigation between the parties reached upto the Regular Second Appeal no. 933/1984 and the validity of the will dated 5th January, 1973 came to be upheld by the High Court vide judgment dated 28 th July, 2004 and the Special Leave Petition(Civil) no. 24724/2004 preferred at the instance of the appellant came to be dismissed as not pressed. According to the will dated 5th January, 1973, the original plaintiffs became entitled to claim the property of Bhana(deceased) including the land in dispute to the exclusion of the present appellant. It was stated in the will dated 5th January, 1973 that Smt. Banti was residing separately for almost 20 years and questioned her character having illegitimate relations with Maal Singh, son of Nihal Singh, r/o Bada Pind and despite that, the testator has taken care of her maintenance. The will dated 5th January, 1973 came to be executed in supersession of the earlier will dated 11 th April, 1956 and for the aforesaid reason, it was stated by the testator that the entire property after his death be devolved to his daughter Smt. Amriti, Udi alias Iqbal Kaur and son Darshan Singh in three equal shares.;