RAKESH KUMAR JAIN,J. - (1.) PLAINTIFF is the appellant before this Court.
(2.) BRIEFLY stated the facts of the case are that the plaintiff filed a suit for joint possession of 1/2 share of land measuring 62 kanals 11 marlas situated in village Dhilwan, Tehsil and District Kapurthala, on the ground that defendant No. 1, who is at present entered as an owner to the extent of 1/4th share has no legal right, title or interest in the suit land and prayed for the consequential relief that she may be restrained from alienating the suit land or any part thereof to any body during the pendency of the suit. Pleaded case of the plaintiff is that one Kartar Singh son of Jawand Singh was father of the plaintiff and defendant Nos. 1 and 2. He was the sole owner of the suit property. Kartar Singh died on 2.6.1977, but before his death, he executed a registered Will dated 14.2.1974 bequeathing his entire property both moveable and immovable, including the suit land in favour of his two sons, namely, Gurdial Singh, the plaintiff and Gurmail Singh, defendant No. 2 in equal shares i.e. half share each, thereby depriving his daughter defendant No. 1. Smt. Rachhpal Kaur, and his wife Smt. Karam Kaur. It was further pleaded that defendant No. 1 in collusion with revenue field staff got mutation of inheritance of said Kartar Singh entered and attested in her name, in the name of her mother Smt. Karam Kaur, the plaintiff and defendant No. 2 therefore, the said mutation is illegal and the plaintiff claims to be in joint possession of remaining half share in the suit property. It was also pleaded that Kartar Singh had other land in village Mand Dhilwan, which was correctly entered in the name of the plaintiff and defendant No. 2 according to the Will to the extent of half share each and the mutation of inheritance of said Kartar Singh entered vide No. 5520 was illegally and fraudulently got sanctioned on 25.8.1977 does not create any right, title or interest in the suit property in favour of defendant Nos. 1 and 2. It was also pleaded that defendant Nos. 3 to 5 are the mortgagees in possession on some area from defendant No. 2 and Smt. Karam Kaur deceased, but they have no other interest in the estate of deceased but since the suit is for joint possession, therefore, they have been impleased as proforma defendants. The suit was contested by defendant Nos. 1 and 2. Amended written statement was filed in which execution of the Will dated 14.2.1974 by said Kartar Singh in favour of the plaintiff and defendant No. 2, was denied. It was further maintained that if the plaintiff succeeded in proving the execution of the said Will, then the same is not binding upon the rights of answering defendants as it was a result of fraud and misrepresentation exercised upon deceased Kartar Singh, who allegedly had no sound disposing mind and the same was not executed with his free Will. It was further pleaded that if the Will is proved, even then said Kartar Singh himself had cancelled the alleged Will by a registered deed of revocation dated 18.3.1975 in sound disposing mind. It was further averred that Kartar Singh was rightly held to have died intestate by the revenue authorities. Therefore, Mutation No. 1683 dated 14.7.1987 of inheritance of deceased Kartar Singh has been wrongly sanctioned regarding land of village Mand Dhilwan, District Kapurthala and the same is illegal. The defendants also set up a counter claim in respect of the land measuring 26 kanals 18 marlas of village Mand Dhilwan claiming themselves to be owner in possession of 2/3rd share and in the alternative for joint possession of 2/3rd share.
(3.) THE plaintiff filed replication to the amended written statement in which it was denied that the Will is a result of fraud and misrepresentation etc. It was further denied that the said Will has been revoked. It was rather submitted that in case there is an alleged cancellation deed, the same is the result of fraud, misrepresentation and undue influence exerted by defendant Nos. 1 and 2 on Kartar Singh deceased.;