Surinder Gupta, J. - (1.) This is appeal against the concurrent judgments of the Courts below p\ly decreeing the suit filed by Gurudwara Shaheed Ganj Baba Khadag Singh and Nishan Singh, Patti Akal Mehna for declaration to the effect that plaintiff Gurudwara is owner in possession of the suit land except the land comprised in khasra No.37/15(8-0) 16(8-0) and 17(8-0) which had already been gifted by Gurdial Singh in favour of his wife vide gift deed dated 29.11.1971. The suit land was earlier owned by Gurdial Singh, predecessor-in-interest of appellants, who as per plaintiff, bequeathed the same to Gurudwara Sahib vide Will dated 03.09.1975. The decree passed by then Sub Judge 1st Class, Moga, reads as follows:- 16. As held in issue No.1 above, Gurdial Singh deceased executed a valid will dated 3.9.1975 (copy Ex.P-1) in favour of the plaintiff Gurudwara. The wishes of the testator have to be given due weight by the courts and the plaintiff Gurudwara is entitled to succeed to the estate of Gurdial Singh deceased on the basis of that will. However, it may here be stated that the suit filed by the plaintiff inter alia includes land comprised in khasra No.37/15(8-0), 16(8-0) and 17(8-0) which had already been gifted away by Gurdial Singh deceased in favour of his widow Mst. Narain Kaur vide Tamlik deed dated 29.11.1971 Ex.D1/A and the plaintiff Gurudwara cannot claim any right or title/interest in that land. The suit of the plaintiff Gurudwara regarding the remaining land must however succeed. As discussed above, under the will (copy Ex.P-1), Mst. Narain Kaur defendant No.1 Mukhtiar Singh defendant No.12, Rajinder Kaur defendant No.13 and Mst. Sham Kaur since deceased were entitled to an annuity of Rs.1000/- each in their life time. Mst. Sham Kaur has since died. However, Mst. Narain Kaur defendant No.1, Mukhtiar Singh defendant No.12 and Rajinder Kaur defendant No.13 are entitled to an annuity or Rs.1000/- each from the plaintiff Gurudwara for the whole of their lives and the same is to be a charge on the disputed land. Mutation of the estate of Gurdial Singh appeared to have been sanctioned in favour of the defendants, but the same does not in any way affect the right or title of the plaintiff Gurudwara in the disputed land. Kapur Singh PW-3 stated that the plaintiff Gurudwara is in possession of the disputed land through its tenants. Even otherwise, the plaintiff Gurudwara is entitled to possession of the disputed land on the basis of title. In these circumstances, the suit of the plaintiff Gurudwara must succeed regarding the disputed land except the disputed land comprised in khasra No.37/15(8-0), 16(8-0) and 17(8-0) already gifted in favour of Narain Kaur defendant No.1 vide Tamlik deed Ex.D1/A, I accordingly pass a decree for a declaration to the effect that the plaintiff Gurudwara is owner in possession of the disputed land except the land comprised in khasra No.37/15(8-0), 16(8-0) and 17(8-0) in village Mehna and is also entitled to possession of the same as an alternative relief. It is further ordered that in terms of the will (copy Ex.P-1) Narain Kaur defendant No.1, Mukhtiar Singh defendant No.12 and Rajinder Kaur defendant No.13 will be entitled to an annuity of Rs.1000/- each from the plaintiff Gurudwara for the whole of their lives and the amount of annuity payable to them would be a charge on the disputed land. Further that in terms of the will, the managing committee of the plaintiff Gurudwara would utilise the usufruct of the disputed land in connection with the affairs of the plaintiff Gurudwara but would not be competent to mortgage, sell or gift away the disputed land to some other person.
(2.) Defendant No.1, wife of Gurdial Singh appears to have felt satisfied with the decree and did not file any appeal but the other defendants who are the sons and daughters of pre-deceased daughters of Gurdial Singh filed appeal before the first Appellate Court which was dismissed by Additional District Judge, Faridkot.
(3.) Learned counsel for the appellants has laid major emphasis on non-production of original Will by the plaintiff and has argued that it was also not duly proved by leading secondary evidence. The Will was stated to have been lost but loss of Will was not duly proved. The expert examined by the appellant has proved that thumb impression affixed by Gurdial Singh in the register of deed writer against the entry of Will dated 03.09.1975 did not tally with his thumb impression on the gift deed and mortgage deed, which were also bearing thumb impression of Gurdial Singh. One of the marginal witness namely Surkha Singh PW3 has stated that the Will was not read over to him, as such, his testimony has been wrongly relied by the Courts below.;