MAN SINGH Vs. DHARAM SINGH

JUDGEMENT

(1.) This second appeal has been preferred assailing the judgment and decree dated 25.2.1987 in Civil Appeal No. 127 of 1980 passed by District Judge Saharanpur whereby he reversed the judgment and decree dated 29.2.1980 rendered by the trial court attended with the order of decreeing suit for cancellation of the Will dated 14,10.1976 (Ex. A-16) in O.S. No. 153 of 1978.

(2.) The plaint allegations inter-alia are that one Munshi, resident of village Bailu Pargana Gangoh District Saharanpur who was the owner of the property in dispute, adopted the plaintiff and thereafter in order to scotch the possibility of future dispute, executed a Will on 1.10.1973 in his favour. The other defendants namely defendants 1 and 2 who are the sons of brother of Munshi, after gaining knowledge of execution of the Will, tried to abduct Munshi and ultimately succeeded in whisking him away on 29.9.1976 in respect of which an application was made to Superintendent of Police Saharanpur. The further allegations are that during the period, the aforesaid Munshi was kept in confinement, the defendants procured a Will executed on 14.10.1976 before Sub Registrar, Sadar Saharanpur despite knowing well that the property fell within the circle of Tahsil Nakur District Saharanpur; that the Will in question executed on 14.10.1976 was null and void the same having been obtained by fraud and by exerting undue influence; that during pendency of suit, the defendant No. 2 executed a registered sale deed in favour of defendant No. 3, namely, All Hasan on 24.5.1978. Besides seeking relief of cancellation of Will in question, a further relief of cancelling of sale deed executed on 24,5.1978 was also prayed for. On the other hand, the defendant filed written statement wherein the allegations of abduction and illegal confinement have been specifically denied and it was pleaded that Munshi had executed the Will dated 14.10.1976 out of his free-will and volition and the allegations of fraud, undue influence and of procuring execution of registered Will dated 14.10.1976 have been categorically repudiated. It has further been pleaded that the defendants were in actual physical possession over the property and that the plaintiff committed murder of Munshi upon gaining knowledge about the Will dated 14.10.1976 and was also tried though, ultimately, he was acquitted; that the Will in favour of defendants was rightly executed by Munshi and there was no illegality, fraud or undue influence as alleged by the plaintiff and in the finally he prayed for dismissal of the suit.

(3.) It would appear from the record that the trial court framed as many as eight issues. The quintessence of the finding recorded by the trial court is that the Will dated 14.10,1976 was a valid document; that the plaintiff has failed to prove from any materials on record that the Will dated 14.10.1976 was obtained by fraud or by exerting undue influence; that the execution and attestation of the Will was proved as required under the law and in the ultimate analysis, it dismissed the suit vide judgment and decree dated 29.2.1980.