- (1.) THE question of law, involved in this appeal, raised by counsel for the appellants is "whether the registered Will, which is otherwise proved to be duly executed, can be set aside on the ground that it is surrounded by suspicious circumstance, depriving the natural heir who admittedly had not served the testator during his life time"?
(2.) THE plaintiff has filed the present suit for declaration and explained the relationship between the parties in para No.1 of the plaint by way of a pedigree table, which is reproduced as under: - Bakshish Singh (dead) Bhagwan Singh Har Kaur (Widow) Bhago Deft. Arjan Singh Gurdial Singh Deftd. Gurbachan Singh Plaintiff Amar Kaur Deftd. Avtar Singh Deft. Baljinder Singh Deftd. Sarabjit Kaur Deft. Karam Kaur widow Deft. It is alleged that on 12.4.1974, Har Kaur widow of Arjan Singh died intestate and was succeeded by the plaintiff to the extent of 1/5 share, Amar Kaur (defendant) 1/5 share, Heirs of Bakshish Singh 1/5 share, Bhago (defendant) 1/5 share and Gurdial Singh (defendant) 1/5 share. However, defendants No.1 and 2 were alleging that Arjan Singh had executed a Will in their favour though the case of the plaintiff is that Arjun Singh has died intestate and had not executed any Will, rather could not have executed the Will because the property was the Joint Hindu Family property. It was further alleged that the defendants got the mutation of the property in dispute sanctioned in their favour on the basis of alleged Will and mortgaged the same land with the Primary Cooperative Land Mortgage Bank. It is also alleged that the said mortgage is not binding on the plaintiff. Defendants No.1, 5 and 6 filed their joint written statement and denied the claim of the plaintiff. It is not admitted that the property is Joint Hindu Family property rather it was pleaded that Avtar Singh and Gurdial Singh are owners to the extent of 1/2 share on the basis of Will executed by Arjan Singh in their favour and the daughters and widow of Arjan Singh had no share. The Will was executed by Arjan Singh in their favour because they were looking after him. Defendants No.6 and 9 filed their separate written statement in which they admitted the execution of the Will and submitted that Gurdial Singh had mortgaged the land on 4.8.1980 for Rs. 49,000/ - and on 5.9.1980 for Rs. 31,000/ - vide two registered mortgaged deeds. Defendant No.9 purchased 8 kanals of land from Gurdial Singh for Rs. 4,000/ - on 25.7.1980. Defendant No.8 has also taken the plea that the parties are bound by the mortgage.
(3.) ON the pleadings of the parties, following issues were framed: - "1. Whether the suit is not maintainable in the present form? OPD 2. Whether the suit is bad for nonjoinder for necessary parties? OPD 3. Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPD 4. Whether the plaintiff and defendants No.1 and 2 constitute joint Hindu family? OPP 5. Whether the land in dispute is the coparcenary property? OPP 6. Whether Arjan Singh executed a valid Will dated 19.2.1964 in favour of defendants No.1 and 2 in respect of the land in dispute? OPD 7. If issue No.6 is proved whether Arjan Singh was not competent to execute Will dated 19.2.1964 in favour of defendants No.1 and 2 in respect of the suit land? If so, its effect? OPP 8. Whether the suit is barred by time? OPD 9. Whether the plaintiff is entitled to declaration and injunction prayed for? OPP 10. Whether any valid notice was served upon defendant No.8 before the institution of the present suit? If not, its effect? OPP 10A. Whether Brij Mohan Sharma, Advocate, has valid authority to appear on behalf of defendants No.6 and 9 and to file written statement on their behalf? If not, so to what effect? OP Deftd. No.6 and 9. 10B. Whether defendant No.6 is bonafide mortgagee of the property in dispute for valuable consideration and without any notice? OP Deftd. No.6. 10C. Whether defendant No.9 is bona fide purchaser of the land in dispute for valuable consideration and without notice? OPD -9 10D. Whether the suit has been properly valued for the purposes of court fee and jurisdiction? OPP 10E. Whether defendant No.6 can file fresh written statement without the permission of the Court in the presence of written statement dated 7.10.1983 filed by him? If not so to what effect? OPD -6 11. Relief." After both the parties led their respective evidence, the trial Court held that Arjan Singh had executed a valid Will in favour of defendants No.1 and 2 and was competent to do so. Ultimately, the suit was dismissed. The first Appeal filed by the plaintiff was however, allowed on 19.11.1986. The Appellate Court had observed that the plaintiff had only addressed arguments on issue No.6, 7 and 8, which are related to execution of the Will dated 19.2.1964 by Arjan Singh in favour of defendants No.1 and 2 and also dealt with the competence of Arjan Singh to execute the Will. The Appellate Court dealt with Issues No.6 and 7 at the first instance because defendants No.1 and 2, in order to assail natural succession of the plaintiff, had set up a registered Will dated 19.2.1964 in their favour. The Appellate Court had found that there is no reference of Gurbachan Singh in the Will and no evidence was brought on record that Gurbachan Singh was presumed to have been died. It is further observed that even if Gurbachan Singh (plaintiff) had settled in a foreign country, Arjan Singh had not given a reason for disinheriting him. When the mother of the plaintiff died on 12.4.1974, she was succeeded by Gurbachan Singh to the extent of 1/5 share along with others and this part of the plaint is not rebutted. Meaning thereby, the relations of Gurbachan Singh were fully aware of his existence. It was ultimately held that the Will was not a natural document as the testator was under undue influence of the propounder of the Will.;