A.K. Goel, J. - (1.) THE defendant -appellant has challenged the decree of the appellate Court in favour of the respondent -plaintiffs holding that Bhan Kaur respondent -plaintiff was entitled to inherit the estate of Sawan Singh and the appellant -defendant was not proved to be the son of Sawan Singh as claimed and was not entitled to inherit the estate of Sawan Singh.
(2.) THE respondent -plaintiff filed suit for declaration and injunction alleging that she was sister of Sawan Singh and defendant No. 1 falsely claimed himself to be son of Sawan Singh and also falsely claimed having a will executed by Sawan Singh in his favour. The original Plaintiff died and was substituted by the legal representatives. The defendant contested the suit. It was stated that the defendant was the son of Sawan Singh and on the basis of relationship as well as a registered will dated 19.3.1966, he was entitled to succeed to his estate. The trial court, after appreciating the evidence on record, held that the defendant -appellant was proved to be son of Sawan Singh and the registered Will executed in favour of defendant -appellant and also executed in favour of appellant's mother, who had since died, was a valid Will. In view of these findings, the suit was decreed. The appellate Court reversed the finding in the appeal. It was held that the Will could not be held to have been proved in absence of evidence to show that Section 63 of the Indian Succession Act was complied with. It was observed that the finding of the trial court, upholding the Will when the scribe and one of the attesting witnesses had died and the surviving witness had become hostile, was not sustainable, the appellate Court also reversed the finding of the trial court that Mohinder Singh was the son of Sawan Singh on the ground that the evidence of Kundan Singh (DW.2) and Inder Singh (DW.3) was not dependable as Amolak Singh son of Kundan Singh and Kundan Singh had entered into an agreement for purchasing the land of Mohinder Singh and Mohinder Singh had executed pronote in favour of Inder Singh DW. Referring to the documentary evidence of the defendant, it was observed that Ex. D3, a copy of death entry recording that Sardari was wife of Sawan Singh did not connect Sawan Singh of the present case as in the said entry Sawan Singh was recorded as son of Basakh Singh while in fact he was son of Basawa Singh; Ex. D5, which was an arbitration award recording Mohinder Singh defendant as son of Sawan Singh, was passed after the death of Sawan Singh and could have been at the instance of Sawan Singh to claim the property; Ex. D6 mutation entry regarding admission of the plaintiff that Mohinder Singh was son of Sawan Singh was not of much avail: Ex. D7 which was an order of the Assistant Collector First Grade was also of no avail as the finding of the Assistant Collector was not binding on the Court. It was further observed that Ex. PX which was an application for issuance of a ration card recording that Rajinder Singh and Badri were two sons of Sawan Singh proves version of the defendant to be doubtful.
(3.) LEARNED counsel for the appellant submitted that the finding of the lower appellate Court was perverse and contrary to law. Learned counsel for the respondent has supported the reasoning and finding recorded by the lower appellate Court.;