ADARSH KUMAR GOEL, J. - (1.) THIS judgment will dispose of RSA No. 264 of 1981 (filed by defendant No. 1 to 6) and RSA No. 330 of 1981 filed by the plaintiffs, as both these appeals arise out of same proceedings.
(2.) THE appellate Court has decreed the suit of the respondents-plaintiffs to the extent of 1/4th share of the land inherited by Dalip Kaur as described in the plaint, modifying the decree of the trial Court decreeing the plaintiff's suit regarding the entire land of Dalip Kaur. The respondents-plaintiffs claim the suit land which was inherited by Dalip Kaur their mother from her husband Wazir Singh with whom she had married after the death of her previous husband Mohinder Singh, father of the respondent- plaintiffs. She had no issue from the second marriage and she inherited the property from her second husband after his death. The appellant-defendant collaterals of the second husband defended the suit, denying the relationship of the respondent-plaintiffs to Dalip Kaur and also submitted that Dalip Kaur had a limited estate which would revert to the collaterals. The appellants- defendants also relied upon a will dated 2.11.1975 said to have been executed in favour of appellants-defendants 1 to 9 to the extent of 1/4th of her share in the land. The defendants also submitted that Dalip Kaur transferred 3/4th of her share in favour of defendants 5 and 6 by way of decree dated 17.10.1975. The Courts below found that the respondent-plaintiffs were the sons and daughter of the deceased Dalip Kaur and the will dated 2.11.1975 set by appellants-defendants 1 to 4 was surrounded by suspicious circumstances. The trial Court rejected the plea that there was transfer of 3/4th share by decree dated 17.10.1975 but this finding has been set aside by the appellate Court.
(3.) MR . H.L. Sibal, Senior Advocate for the appellants in RSA No. 264 of 1981 did not challenge the finding relating to the relationship of the respondent- plaintiffs to the deceased Dalip Kaur but challenged the findings on the question of will. He has relied upon decision reported in Kamla Devi and others v. Kishori Lal Labhu Ram and others, 1962(64) P.L.R. 196 in support of his submission that intention of the testator had to be seen. He has relied upon decision reported in Sushila Devi v. Pandit Krishna Kumar and others, AIR 1971 SC 2236 to the effect that not bequeathing property to children does not make the will bad. He also relied upon decision reported in Bhawan Kaur v. Kartar Kaur and others, 1994(5) SCC 135 to the effect that validity of will was not a question of fact. He also relied upon decision reported in Kartar Kaur and another v. Madho and others, 1996(1) JT 511 (paras 19 and 20) for submitting that the test for judging the validity of the will was whether a prudent person in the position of the testator could have made such a will. He also submitted that the Supreme Court has itself appreciated the evidence for deciding the question whether the will was valid and the said question could be gone into in the appeal.;