J.V. Gupta, J. - (1.) THIS is plaintiff's second appeal whose suit for the grant of the declaration and the injunction was decreed by the trial court, but dismissed in appeal.
(2.) THE plaintiff filed the suit for the grant of a declaration to the effect the effect the she was the owner in possession of one -half share of the land measuring 77 Kanals and 12 Marlas, and also for the grant of the permanent injunction restraining the defendants from interfering with her possession on the allegations that Bhagwan Singh was the owner of the suit land The plaintiff was the wife of Ujagar Singh son of Natha Singh the pichlaq son of Bhagwan Singh. After the death of Natha Singh, his widow, i.e. the mother of the plaintiff's husband, had remarried Bhagwan Singh, deceased. Defendants Nos. 1 and 2 i.e. Ujagar Singh and Hazara Singh are the two sons of Bhagwan Singh, deceased. During his life time, Bhagwan Singh made the gift of one -half share of his land in favour of the plaintiff. Ujaggar Singh, defendant, challenged that gift in a suit in the year 1954. That suit was finally disposed of by the High Court on October 19, 1959, wherein it was held that the gift was not binding on the reversionary rights of the heirs of Bhagwan Singh with respect to the land mentioned in sub -clauses (A) and (B) of paragraph 3 of the plaint. Subsequently, Bhagwan Singh made a will of the remaining one -half of his land in favour of the plaintiff on May 13, 1963, Exhibit P 1. Bhagwan Singh died on March 8, 1964. The revenue authorities, however, ignored, the will and sanctioned mutation of the estate of Bhagwan Singh, deceased, in favour of defendants Nos. 1 and 2 in equal shares. It was also alleged that the will in her favour was made by Bhagwan Singh, deceased, on account of the services rendered by her to him and as such the same was valid. The suit was contested on behalf of Ujaggar Singh, defendant No. 1. It was denied that the plaintiff was in any way related to Bhagwan Singh, deceased. The factum of the execution of the will by Bhagwan Singh, deceased, in favour of the plaintiff was also denied. Any such document in favour of the plaintiff was alleged to be a forged one. A plea was also raised that the suit land was ancestral and, thus, the same could not be the subject -matter of the will under custom by which the parties were governed. The trial Court held that the due execution of the will was proved and that the suit was maintainable as framed inasmuch as there was no worthwhile evidence to show that either party was in actual possession of the suit land. It was also found that a part of the suit land was proved to be ancestral and that regarding that part, the will was invalid. As a result, the will was held to be invalid to the extent of 594/844 6th share of the suit land Consequently, the suit was dismissed to that extent and was decreed to the extent of three fourth share of the remaining part of the suit land inasmuch as Hazara Singh, defendant No 2, was also a beneficiary under the will to the extent of one fourth share Aggrieved against the same, both the parties filed separate appeals before the District Judge. During the pendency of the appeals, it was enacted that no disposition of property could be challenged under the custom on the plea that it was ancestral. Therefore the only question that survived for determination before the lower appellate Court was whether there was due execution of the will, Exhibit P1 or not. The learned District Judge came to the conclusion that the will, Exhibit P. 1, being an unregistered document, was surrounded by suspicious circumstances and, therefore the plaintiff had failed to prove that a valid will was executed in her favour. As a result, the plaintiff's suit was dismissed, and the defendant's appeal was allowed Dissatisfied with the same, she has come up in the second appeal to this Court. The learned counsel for the appellant contended that all the alleged suspicious circumstances surrounding the execution of the will, Exhibit P 1, were non existent and in any case the same had been fully explained on the record. The trial Court came to the right conclusion in this behalf, but the lower appellate Court reversed that finding arbitrarily and against the evidence on the record.
(3.) AFTER hearing the learned counsel for the parties, I am of the considered opinion that there is considerable force in this contention .;