N.C. Jain, J. - (1.) THIS second appeal has been filed by Jagir Singh Defendant against the judgments and decrees of the Courts below by which Will in his favour has been discared whereas the Will in favour of the Plaintiff -Respondents has been upheld.
(2.) THE necessary facts giving rise to the present appeal are that the Plaintiffs instituted the present suit on the averments that Smt. Harnam Kaur widow of Mansha Singh was their mother who died on 1 -4 -1975, leaving behind a registered Will dated 5 -7 -1974 bequeathing her entire properties in their favour. The Defendants were stated to be having no concern with the property but they took forcible possession of the same six months prior to the institution of the suit and, therefore, their possession was unlawful. The Defendant contested the suit by stating that Harnam Kaur did not die a natural death but she was murdered by the Plaintiffs along with another person who were challaned under Sec. 302 of the Indian Penal Code. It was denied that the Plaintiffs were heirs of Harnam Kaur and therefore, the question of their succeeding to her land did not arise. The Will was set up by the Appellants in their favour, which was alleged to have been executed on 23 -3 -1975, vide which she was alleged to have bequeathed of her properties in favour of Jagir Singh Defendant. It was further the case of the Defendants that according to the later Will, the previous Will was revoked. The Defendant Appellant described himself to be the legal heir of the deceased who on her death succeeded her and became full owner of all the properties left -by her as he was collateral and agnate of Harnam Kaur and her deceased husband. The properties in suit were described to have been inherited by Harnam Kaur from her husband. Defendant No. 2 Surjit Singh has been described to have been wrongly impleaded as he was not in possession of the property in dispute. It was denied that the Plaintiffs were the daughters of Harnam Kaur. On the basis of the rival pleas taken by the parties, the trial Court struck the following issues: 1. Whether Shrimati Harnam Kaur made a valid Will on 5 -7 -1974 in favour of the Plaintiffs? OPP. 2. Whether Harnam Kaur deceased executed a valid Will in favour of Jagir Singh etc. on 23 -3 -1975 as her last Will? If so, its effect? OPD. 3. Whether the suit is liable to be dismissed on the ground that some properties have not been included? OPD. 4. Whether Jagir Singh Defendant is the nearest heir of Shrimati Harnam Kaur deceased? If so its effect? OPD. 5. Whether Defendant No. 2 is unnecessary party? If so its effect? OPD. 6. Relief. Under issue No. 1, it was held by the trial Court that Smt. Harnam Kaur executed a valid Will on 5 -7 -1974 in favour of the Plaintiffs where as under issue No. 2, it was found that Harnam Kaur deceased did not ex cute any Will in favour of Jagir Singh Appellant on 23 -3 -1975. Under issue No. 4 Jagir Singh was held not to be the nearest heir of Harnam Kaur as compared to the Plaintiffs. Issues No. 3 and 5 were given up. As a result, the suit of the Plaintiffs was decreed. The judgment and decree of the trial Court have been affirmed by the first appellate Court. This is how Jagir Singh Defendant has come up in second appeal before this Court challenging the correctness of both the judgments of the Courts below.
(3.) MR . Ajay Kumar Mittal, Advocate, assisted by Mr. G.S. Sandhawalia, Advocate, has vehemently argued that the findings recorded by the Courts below under the relevant issues are erroneous and based upon non -considerations of the relevant evidence, surmises and conjectures. After hearing the learned Counsel for the parties, I am of the view that the evidence recorded by the Courts below, are based upon good evidence and the same can be sustained. The Will dated 5 -7 -1974 executed in favour of the Plaintiff -Respondents is supported by two independent witnesses who had attested the same. The Will was registered. The appellate Court was right in observing that the (sic) of the Will is proved from the statement of Gurdev Singh son of Jagir Singh the Defendant -Appellant, who deposed that Harnam Kaur herself had admitted before him that he had executed the Will earlier in favour of the Plaintiffs -Respondents. Gurdev Singh was holding the power of attorney on behalf of Smt. Jagir Kaur when he stepped into the witness -box as the said lady was ailing and could not come to the Court. Of course, he had given a different version that the Plaintiffs started maltreating Harnam Kaur after her executing the Will in their favour which led her to execute another Will in favour of Jagir Singh Appellant yet it can be safely inferred from her statement that Harnam Kaur had executed a Will in favour of the Plaintiff. In view thereof, the execution of the Will in favour of the Plaintiffs is proved even from the statement of Gurdev Singh son of Jagir Singh Appellant.;