J.V. Gupta, J. - (1.) THIS is Plaintiff's second appeal whose suit for joint possession has been dismissed by both the Court below.
(2.) SURJAN Singh and Mann Singh were two brothers. Mann Singh died issueless leaving behind his widow Achhro who died on July 16, 1971, whereas Surjan Singh left behind four sons. During her life time, Achhro made a registered will dated March 29, 1968, in favour of Gurdial Singh, son of Sumittar Singh, Defendant No. 1. Bakhshish Singh and Piara Singh, sons of Surjan Singh, filed a suit on May 16, 1968, challenging the said will. Admittedly, Achhro was alive at that time. However, the said suit was decreed by the trial Court on November 28, 1969, copy of the judgment, Exhibit P. 2. In appeal, the said judgment and decree of the trial court were set aside on February 1, 1971, copy of the judgment, Exhibit D. 2 on the sole ground that no such suit was maintainable during the life time of Achhro. During the pendency of the said suit, Achhro, made a gift dated April 30, 1969, Exhibit D 1 in favour of the said Gurdial Singh. The said gift deed was executed mainly on the ground that during her life time, Summittar Singh, father of Gurdial Singh, minor, donee, was looking after her needs and giving her shelter and food and, therefore, in lieu of the services rendered by him, she executed the gift deed in favour of his minor son Gurdial Singh. Bakhshish Singh and Piara Singh, sons of Surjan Singh Plaintiff, filed the present suit on December 3, 1973, challenging the said gift deed, on the ground that Achhro being blind, deaf, cripple and of unsound mind could not appear before the Sub -Registrar for the registration of the said gift deed and thus, it was a forged document. Thus, the Plaintiff claimed joint possession of one -fourth share in the estate left behind by Achhro. In the written statement filed on behalf of the Defendants, it was pleaded that Achhro had executed valid gift deed, Exhibit D.1, in, favour of Gurdial Singh. The gift was duly accepted by Summittar Singh, the father of the minor donee Gurdial Singh. The gift was followed by delivery of possession Thus, the main controversy between the parties during the trial was as to whether, Achhro executed valid gift deed dated April 30, 1969, in favour of Gurdial Singh, Defendant, or not. The trial Court found that the evidence of the DWs. Chhajju Ram, Chanan Singh and Summittar Singh cogently established that Achlaro executed the gift deed in dispute. In the face of their positive and credible testimony, it could not be accepted that Achhro was allegedly impersonated. So, it was concluded that the gift deed, Exhibit D.1, was validly executed by Achhro in favour of Gurdial Singh, Defendant. The gift deed was a genuine document. Gurdial Singh, Defendant, alone was the owner of the land, in dispute by virtue of gift deed. In view of that finding, the Plaintiffs' suit was dismissed. In appeal, the learned District Judge, affirmed the said findings of the trial Court with the observations, - The gift was executed by her in lieu of the services rendered to her. She was not being put at a disadvantage. She had almost lived her life and so she conferred the benefit on a particular person who was serving her during her life time. Thus, the decree of the trial Court dismissing the Plaintiffs' suit was maintained. Dissatisfied with the same, they have filed this second appeal in this Court. During the pendency of this appeal, the Plaintiffs also moved Civil Miscellaneous Application No 844 -C of 1986, for producing the additional evidence. By virtue of the said application, they wanted to place on the record, the certificate copy of the statement of Summittar Singh, Defendant, dated August 30, 1969, made by him in the earlier suit where the will dated March 29, 1968, was challenged by the Plaintiffs. According to the learned Counsel for the Plaintiffs, in the said statement, he had admitted that Achhro was in a bad state of health; she could hardly see and was hard of hearing and that she could not move. Notice of the said application was given to the opposite side. It was ordered to be heard with the main case. Reply to the same has been filed on behalf of Gurdial Singh, Defendant.
(3.) AT the time of the motion hearing, it was contended that the judgment, Exhibit P. 2, dated November 28, 1969, wherein the will alleged to have been executed by Achhro in March, 1968, was held to be invalid has not been taken into consideration by the Courts below.;