HEMANT GUPTA, J. - (1.) THE defendants-Vendees from Mohinder Kaur, are in second appeal, aggrieved against the judgment and decree passed by the Courts below, whereby suit for declaration to the effect that the plaintiff along with defendant No. 2 are owners in possession of land measuring 86 kanals 9 marlas; for setting aside undated will allegedly executed by Pritam Singh in favour of defendant No. 1 Mohinder Kaur and the decree dated 16.12.1966 (correct date 16.11.1966) based on fraudulent Will, was decreed.
(2.) ONE Pritam Singh was owner of land measuring 86 kanals 9 marlas of land situated in village Sargondi, Tehsil Phillaur. He died on 13.5.1965, leaving behind three daughters, namely, Naranjan Kaur, Chhindo, Mohinder Kaur and one son Gurbax Singh. After the death of Pritam Singh, one of his daughters, namely, Mohinder Kaur filed a civil suit alleging Will by Pritam Singh in her favour. On the basis of said Will, a decree declaring Mohinder Kaur as heir of Pritam Singh was passed on 16.11.1966. Thereafter, a rapat Roznamcha was entered by the Patwari on 10.6.1968 and consequently a mutation Exhibit D.10 was entered in the name of Mohinder Kaur on 6.7.1968. Gurbax Singh, son of Pritam Singh died on 16.12.1971, leaving behind his daughter Harjit Kaur and son Harjit Singh. On 13.10.1972, Smt. Naranjan Kaur and Chhindo, daughters of Pritam Singh along with minor son and daughter of Gurbax Singh, filed the present suit for declaration in respect of the ownership rights as well as challenging the decree dated 16.11.1966. In the said suit, a finding has been returned by the learned trial Court that the Will allegedly executed by Pritam Singh, nor the decree dated 16.11.1966 has been produced on record and, therefore, passed a decree sought for by the plaintiffs. The appeal met the same fate and consequently, the defendants are in second appeal. As per the appellants, the following substantial questions of law arise for consideration :- "1. Whether the appellant/defendants were bona fide purchasers keeping in view the fact that Mohinder Kaur had a decree in her favour and she was allowed to hold out that she was the owner of land in dispute ? 2. Whether the Courts below adopted a legally correct approach in rejecting document Ex.D9 (copy of entry of register of suits) so as to show that suit filed by Mohinder Kaur against Jhindo, Ninjo and Bakshi was decreed on 16.11.1966 ?"
(3.) BEFORE proceeding further, it would be relevant to reproduce para 4 of the plaint, wherein, the decree dated 16.11.1966 was sought to be challenged :- "That nearly 2-1/2 years back the husband of Defdt. No. 1 began to declare that defdt. No. 1 is the owner of the land in suit on the basis of the decree dated 16.11.66 in her favour on the basis of some will. If this is a fact then the will and the decree both are liable to be set aside on the following grounds :- a. That Shri Pritam Singh deceased did not execute any Will in favour of defdt. No. 1, had it been so, the defdt. No. 1 must have produced it before the revenue officer at the time of sanctioning of the mutation of the estate of Pritam Singh deceased but on the other hand defdt. No. 1 was present before the revenue officer and acquiesced in sanctioning of the mutation in favour of all the heirs of Pritam Singh deceased. b. That no decree dated 16.11.66 is available and the original will on the basis of which that decree is alleged to have been passed is not available. c. That the alleged will is unnatural. Gurbux Singh deceased son of Pritam Singh was loyal to his father and obedient and there is no reason why Gurbux Singh deceased the only son and the other daughters of Pritam Singh should have been deprived of inheritance. d. That Pritam Singh deceased and his son Gurbux Singh were agriculturist of Jullundur District who followed custom in matters of alienation of ancestral immovable property according to which no one could will away his property to the detriment of other heirs and without their consent. e. That Shri Gurbux Singh deceased had challenged that alleged will but he died during the pendency of the suit and the minor son Pltff. No. 3 of Gurbux Singh deceased has the right to file this suit. f. That the land in suit described in the heading of the plaint is ancestral qua the plaintiffs and Pritam Singh deceased. The alleged Will is the outcome of fraud, practiced by defdt. No. 1 and her husband. Pritam Singh deceased did not put his thumb impression nor his signatures on the will. The husband of defdt. No. 1 might have got some fictitious mark on the Will and without service of the plaintiff managed to get a decree from the court of Sub Judge Phillaur and the pltffs came to know of it nearly two years back when defdt. No. 1 tried to get possession of the land in suit from the plaintiffs in execution of that decree. The Hon'ble Court was kept in darkness about the facts of the case and misrepresented them." To prove that the decree is liable to be set aside on the grounds aforesaid, the plaintiffs have examined their attorney PW4-Karnail Singh, who has deposed that Pritam Singh died 47 years ago and his wife has also died. He deposed that Pritam Singh has three daughters and also a son, who has died. He has deposed that he was present at the time of sanctioning of mutation regarding inheritance of Pritam Singh and Bakshi husband of Mohinder Kaur, was also present. The mutation was sanctioned at the Canal Rest House, Boparai. He stated that at that time, Will was not produced by Mohinder Kaur or by her husband. He has deposed that Pritam Singh has never executed any Will and his relations with his all children were cordial. On the other hand, the defendants have produced number of witnesses to prove the sale effected by Mohinder Kaur in favour of Bishan and subsequently by Bishan in favour of the present appellants. The defendants have also produced certain other sale deeds effected by Mohinder Kaur in favour of other Vendees. The defendants also produced a certified copy of the Court Register Exhibit D.9 to prove that Mohinder Kaur had filed a suit against Bakshi, Nanjo and Chhindo regarding the suit land, which was decreed on 16.11.1966. The defendants also produced Exhibit D.10, a copy of the mutation sanctioned on 6.7.1968 on the basis of Rapat Roznamcha dated 10.6.1968. The issues which are material for the decision of the present appeal are Issues No. 3, 4 and 5, which read as under :- "3. Whether Pritam Singh executed a valid Will in favour of defendant No. 1 ? OPD. 4. Whether defendant No. 1 has obtained a decree dated 16.11.1966 ? OPD. 5. If Issue No. 4 is proved whether the said decree is liable to be set aside ? OPP." ;