RAJ VIR SINGH Vs. MALKA AND ANOTHER

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree passed by the lower appellate court, dated 30.5.2015 in Civil Appeal No.97 of 2014, arising out of Original Suit No.184 of 1999, whereby the plaintiff's suit for cancellation of will has been dismissed.

(2.) Facts giving rise to filing of the present appeal are that plaintiff instituted Original Suit No.184 of 1999 with the allegation that testator Mahipal Singh was the real elder brother of the plaintiff, who on account of his old age was not keeping in good physical health; that defendant no.1 Smt. Malka started living with deceased brother of the plaintiff after having come from elsewhere; that no will was actually executed in favour of defendant no.1 by Mahipal Singh; that Mahipal Singh brother of the plaintiff was murdered on 17.5.1990, whereafter the name of plaintiff was mutated over the land owned by his brother; but subsequently, upon an objection filed by the defendant no.1 in mutation proceedings, the order passed in favour of the plaintiff was stayed on 4.9.1990; that defendant no.1 is under influence and keeping of defendant no.2; that no will was executed in favour of the defendant no.1; that plaintiff is in possession of house and agricultural holding of Mahipal Singh after his death; that plaintiff subsequently came to know that a will has been procured by the defendant no.1 in collusion with defendant no.2, who, according to plaintiff, had taken his brother for medical advise to the city, but the will was instead got executed showing it to have been executed by the brother of plaintiff on 1.11.1988, which was also got registered; that in 1999, when the defendant refused to get the will cancelled, only then cause of action arose for filing of the suit.

(3.) Defendant no.1 contested the suit by stating that although she originally belonged to Bengal, but because of her poor condition, she agreed to marry deceased despite considerable age difference between them, and she continued to live as wife of the deceased till his murder. It was also stated that a daughter was also born out of such wedlock, named Minakshi, who is 14 years of age, which fact has been concealed. It was further stated that the plaintiff himself was annoyed by the fact that the land in question was not being given for the purposes of cultivation to the plaintiff, and the suit has been filed only in order to deprive the defendant of her right over the property of her deceased husband. Accusations made in suit regarding her association with defendant no.2 was emphatically denied.