SHAKUNTLA DEVI Vs. KULDEEP SINGH

JUDGEMENT

(1.) This is Defendant's second appeal challenging the judgment and decrees of the courts below whereby suit of the Plaintiff- Respondents for declaration, was decreed.

(2.) As per the averments made in the suit, one Phool Singh was owner in possession of the suit land to the extent of 1/9th share as mentioned in para No. 1 of the plaint. On 11.08.1997, Phool Singh executed a registered Will in favour of Plaintiff-Respondents regarding the suit property. The Plaintiffs were owners in possession of 2/3rd share out of 1/9th share. Phool Singh was competent to alienate his share. The Defendant was entitled to 1/81st share, only. Mutation was sanctioned in favour of Plaintiffs on the basis of the Will. The mutation, on the basis of the Will, was set aside vide order dated 29.03.2000 and 10.01.2002 passed by Collector Rewari and Commissioner Gurgaon, respectively. Thus, the present suit for declaration that Plaintiffs were owners in possession of the suit property by virtue of the registered Will dated 11.08.1997 and the mutation No. 274 was binding on Defendant and the orders dated 29.03.2000 and 10.01.2002 setting aside the mutation were illegal, was filed. Consequential relief for possession was also sought.

(3.) Upon notice, Appellant filed written statement raising various preliminary objections. On merits, it was submitted that the Will was illegal and against the principles of law of inheritance. It was submitted that Phool Singh was not competent to Will away the property in the presence of natural heirs. Phool Singh was by caste and agriculturist by profession and was governed by customary law in the matter of succession of agricultural land. It was also stated that he was not physically and mentally fit to execute the Will and the same was not binding upon his heirs. The suit property was ancestral. No notional partition took place. The order of sanctioning mutation was illegal and the same was rightly set aside. Dismissal of the suit was prayed for.