Amit Rawal, J. - (1.) The appellants-plaintiffs are aggrieved of the concurrent findings of fact, whereby following claim in the suit has been declined by the Courts below:- "That the plaintiff prays that he should be awarded a decree for declaration against defendants to the effect that the plaintiff is exclusive owner of agricultural land and site No.181 and plot No.207, situated in Dhankot, left by Smt. Jamna Bai as mentioned in para no.1 of the plaint, situated in Mauza, Dhankot, Tehsil and Distt. Gurgaon and that the defendants have no right, title or interest in the lands and the Will dated 22.07.1977 is illegal, void, fictitious, bogus and is not binding upon the plaintiff and the same is product of forgery and that Smt. Jamna Bai did not execute a Will and the same could not be executed underlaw by her as she was only a limited owner and a decree for permanent injunction restraining the defendants Nos.1 and 2 from interfering in the possession of the plaintiff over the land measuring 36 kanals 4 marlas, and from realising the rent from defendants No.3 to 5 in respect of land measuring 133 kanals 11 marlas as mentioned in the pattanama executed by Smt. Jamna Bai in favour of the defendants No.3 to 5 which amount plaintiff alone is entitled to recover, the costs of the suit may also be awarded in favour of plaintiff and against the defendants. In case the defendants Nos.1 and 2 succeed in obtaining the possession of the suit property during the pendency of the suit then a decree may also be passed against them and in favour of the plaintiff."
(2.) Suit aforementioned was based upon the premise that Jamna Bai grandmother of the appellants-plaintiffs, as per the Will dated 05.01.1919 executed by Lekhu Ram was given limited estate in the land, in fact during her lifetime and thereafter properties were to revert to the children. The Will, aforementioned, had not been proved in accordance with law and was marked as Mark-A as it was in torn condition. The trial Court had admitted the Will in evidence by taking the aid of provision of Section 90 of the Indian Evidence Act.
(3.) Mr. Kanwaljit Singh, learned Senior Counsel assisted by Mr. Amandeep Singh Meho, learned counsel appearing on behalf of the appellants-plaintiffs, submits that in view of the provision of Sub-Section 2 of Section 14(2) of the Hindu Succession Act, 1956, Jamna Bai was not absolute owner and, therefore, the Will dated 22.07.1977 (Subsequent One) executed by her, bequeathing her entire estate in favour of defendant was not a valid one. Property was required to be reverted back to the children. No doubt, the Will aforementioned was registered and the defendants have proved the same through the examination of the attesting witnesses and as well as scribe but in view of embargo under Sub-Section 2, execution of the Will was insignificant. In support of his contention, he has relied upon the ratio decidendi culled out by Hon'ble Supreme Court in V. Tulsamma Vs. V. Sesha Reddy, 1977 3 SCC 99.;