- (1.) The appellants-defendants are aggrieved of the judgment and decree passed by both the Courts below whereby the suit of the respondentplaintiff has been decreed by the trial Court in toto and the Will dated 19.01.1967 of Harnam Singh propounded by Shabeg Singh-defendant No.1 has not been believed but the lower Appellate Court, partly allowed the appeal of defendants, declaring the plaintiff-Swaran Kaur as co-owner to the extent of 1/3 share being natural successor of her father Bhagwan Singh while declaring the defendant Shabeg Singh as owner of the property of Harnam Singh by upholding the Will dated 19.01.1967 and dismissing the suit of plaintiff Swaran Kaur claiming her right to the estate of Harnam Singh. In these circumstances, the appellants-defendants are in second appeal whereas the plaintiff-Swaran Kaur filed the cross objection bearing No.8-C of 2011.
(2.) Mr. Baldev Raj Mahajan, learned Senior Advocate assisted by Akhilesh Vyas appearing for appellant No.1 and Mr. Naresh Chander, Advocate for Mr. R.S. Chauhan, Advocate for appellant No.2 submit that respondent No.1-plaintiff, Swaran Kaur, alleging herself to be daughter of Bhagwan Singh son of Jwala Singh, filed suit for declaration to the effect that land measuring 93 kanals 15 marlas i.e. half share of 187 kanals 11 marlas as prescribed in the plaint being owned and possessed by the plaintiff as natural heir of Bhagwan Singh and Harnam Singh, her real uncle i.e. brother of Bhagwan Singh and the mutation of inheritance of Bhagwan Singh in favour of Ram Singh and Harnam Singh and mutation of inheritance of Harnam Singh in favour of Shabeg, appellant-defendant No.1, being illegal and void. The suit of the plaintiff was decreed by the trial Court in toto but the lower Appellate Court partly allowed the appeal filed by the defendants as narrated above.
(3.) The counsel for the appellants-defendants submits that the respondent-plaintiff No.1 failed to prove that she is daughter of Bhagwan Singh, as Bhagwan Singh died issueless and therefore, his estate was inherited in favour of Ram Singh and Harnam Singh. Harnam Singh also died unmarried, thus, issueless. Ram Singh had three sons namely Darshan Singh, Nand Singh and Chand Singh, in essence, the share of Bhagwan Singh measuring 62 kanals 10 marals had been rightly mutated in favour of the defendants and the plaintiff could not have claimed the share of Bhagwan Singh i.e. measuring 62 kanals 10 marlas and half share i.e. 31 kanals 5 marlas out of the estate of Harnam Singh, in total 93 kanals 15 marlas. The suit was barred by limitation as Harnam Singh Singh died way back on 07.04.1977 and the mutation had been effected long time back whereas the suit had been filed on 27.03.1999 and therefore, barred by law of limitation. It is in these circumstances, Harnam Singh out of love and affection towards Shabeg Singh and he being in a sound and disposing mind, executed a registered Will dated 19.01.1967 in favour of Shabeg Singh and accordingly, Shabeg Singh, appellant No.1 became owner of half share in the suit property. He also inherited the share of Nand Singh in equal share, being his natural successor. The land in dispute is ancestral in the hands of the appellants-defendants. The trial Court decreed the suit by granting declaration in favour of the respondent-plaintiff, Swaran Kaur, with regard to share of Bhagwan Singh i.e. 62 kanals 10 marlas and also granted half share i.e. 31 kanals 5 marlas out of 62 kanals 10 marlas of Harnam Singh whereas the lower Appellate Court had believed the Will dated 19.01.1967, being 30 years old, by invoking the provisions of Section 90 of the Indian Evidence Act and thus, held that Swaran Kaur, respondentplaintiff, to be co-owner to the extent of 1/3 share whereas she is not entitled to ½ share, owing to the fact that a Will executed by Harnam Singh in favour of Shabeg Singh has been proved, thus, urges this Court for setting aside the judgments and decrees passed by the Courts below by formulating the substantial questions of law drawn in the memoradum of appeal. The following substantial questions of law arise for consideration in the second appeal:- "(i) Whether the suit filed by the plaintiff-respondent on 27.03.1999 claiming inheritance to estate of Bhagwan Singh, who died on 08.03.1951 before coming into force of Hindu Succession Act in preference to his brothers, who inherited the property vide mutation dated 31.5.1955 (Ex.PW5-A) is barred by time, having been filed after 48 years and also the three sons of Ram Singh when property has gone to third generation of Ram Singh and Harnam Singh (ii) Whether the plaintiff is estopped by act and conduct from filing the suit claiming inheritance of Bhagwan Singh after 48 years of his death when the property has been inherited by the third generation after death of Ram Singh and Harnam Singh, who inherited the property from his brother before coming into force of Hindu Succession Act (iii) Whether findings of the Courts below that Swaran Kaurplaintiff is daughter of Bhagwan Singh suffer from perversity being contrary to evidence and based on inadmissible evidence ;