- (1.) This is defendants' Second Appeal against whom suit for possession was dismissed by the trial Court, but was decreed in appeal.
(2.) One Baggu alias Bakhtawar Singh, resident of village Bhulran, was the owner of the suit land. He was married to Smt. Daya Kaur, plaintiff, of village Kheri Mallewali in Tehsil Patiala. After his marriage, he started living with his in-laws and cultivated the land of his wife. His own land in village Bhulran was being cultivated by defendants Nos. 3 to 5 as tenants. After his death on 11th August, 1976, at village Kheri Mallewali defendants No. 1 and 2 namely Babu Singh and Gurdial Singh claimed the property of Baggu on the basis of will Ex D2 dated 10th June, 1976. They got a mutation entered on the basis of the said will which, was rejected by the Assistant Collector vide order Ex. P6. An appeal against that order was also dismissed vide order copy Ex- P5 on 10th February, 1977, the widow of the deceased Smt. Daya Kaur filed the present suit for declaration & possession of the suit land. The suit was contested by the defendants on the basis of will Ex. D2. dated 10th June, 1976. Thus, the only issue between the parties was whether Baggu had executed a valid will dated 10th June, 1976, in favour of defendants No. 1 and 2. The trial Court after discussing the entire evidence reached the conclusion that Baggu had executed a valid will dated 10th, June, 1976 in favour of defendants No. 1 & 2. As a result thereof, the suit was dismissed.
(3.) In appeal, the learned Additional District Judge reversed the said finding of the trial court and came to the conclusion that neither the execution of the will as such was proved, and, secondly, the will was shrouded with suspicious circumstances. The lower appellate court give a categoric finding that "in view of these circumstances, I am of the definite opinion that the will in question is a creation of a conspiracy between defendants No. 1 and 2, the scribe and the attesting witnesses and is a forged document.". It was further found by the learned lower appellate court that the will was absolutely unnatural. The real wife of the testator had been excluded without assigning any cogent reasons. Defendants No. 1 and 2 who are collaterals of 8th or 10 degree of the testator have been preferred obviously on the ground that the wife owns her own property and the legatees rendered services to her." According to the lower appellate court, the reference to rendering services was totally false and the possession of some property by the wife was no ground to exclude her from inheritance. The learned lower appellate court also considered that the will in question was not produced with the written statement and the photostat copy produced with the written statement did not tally with the original Will. A comparison between the two, i.e., the original will and its photostat copy, shows that the thumb impression of Mehar Singh has been subsequently affixed. Originally there was a dim thumb impression but a new thumb impression Ex. DW2/1 has been super-imposed. Similarly at page 1 of the Will there is a thumb impression of Baggu Singh but in the photostat copy this impression is not visible. Possibly, this thumb impression marked Ex. S. 1 on the will Ex. D2 has been affixed later. In this manner, the will seems to have been tampered with." Consequently, the suit was decreed.;