- (1.) The plaintiff-appellant has filed this appeal against the judgment and decree of the Additional District Judge, Gurgaon, dated 27th December, 1968, whereby the judgment and decree of the trial Court dismissing her suit has been maintained.
(2.) Shrimati Kakawali widow of Behari Ram, was the owner of the property in dispute. She is alleged to have died somewhere in the year 1963. The plaintiff-appellant claims herself to be the only daughter and as such the sole heir of the property left by her. Shrimati Kakawali is alleged to have executed a will in favour of defendant Kallu Ram on 27th December, 1959, which was got registered on 2nd March, 1960s. The plaintiff alleges that this Kallu Ram used to act as Karkun of the deceased and he exercised undue influence and got effected a will taking benefit of the old age and mental and physical weakness of the deceased. It is further alleged that Shrimati Kakawali never made a will and the alleged will was obtained by fraud. Thus, she has filed the suit for possession. The defendant denied all these allegations of the plaintiff. The will was said to be genuine and made by the deceased in full senses without any undue influence or fraud. The defendant is the brother's son of the deceased. On these allegations, the trial Court framed the following issues :- 1. Whether the plaintiff is the daughter of Shrimati Kakawali ? 2. Whether Shrimati Kakawali executed a will duly in favour of the defendant ? 3.If issue No. 2 is proved, whether will is otherwise invalid ? It was held by the trial Court that the plaintiff is the daughter of Shrimati Kakawali but on issue No. 2, the will was held to be duly executed in favour of the defendant, and, consequently, the suit was dismissed. On appeal, the finding of the trial Court on issue No. 2 regarding the validity of the will has been maintained. It has been observed by the lower appellate Court, that "In the present case three are no circumstances to hold that the deceased was not of a sound disposing mind." It has been further observed, that "There is ample evidence on the record, of respectable persons in whose presence the will was executed." With this finding, the appeal was dismissed. Feeling aggrieved against this concurrent finding of the two Courts, the plaintiff has come up in appeal to this Court.
(3.) The learned counsel for the appellant vehemently contended that the will is surrounded by suspicious circumstances, and, therefore, the Courts below have erred in holding that there will was a valid one. According to the learned counsel, the D.Ws. produced by the defendant even did not know shrimati Kakawali, deceased, and, there is no explanation given in the will for excluding her only daughter, the plaintiff. Rather, it has been stated therein, that "I have no child, male or female." From all these circumstances, it was contended that the will was a suspicious document. In support of his contention, he cited Rani Purnima Debi and another v. Kumar Khagendra Narayan Deb and another, 1962 AIR(SC) 567.;