BALWINDER SINGH Vs. ARJAN SINGH

JUDGEMENT

(1.) The land in dispute was owned by one Banta Singh who died on November 22, 1974. After his death, it was mutated in the name of the defendant-appellant on the basis of Will, Exhibit D-6. Consequently, the plaintiff filed the present suit for possession of the said land claiming himself to be the heir on the basis of a Will alleged to have been executed in his favour by Banta Singh and in the alternative as the nearest agnate under the Hindu Succession Act. The suit was contested by the defendant-appellant who claimed the property on the basis of the Will in his favour. The trial Court after recording evidence of the parties, upheld the Will set up by the defendant and dismissed the suit. However, on appeal, the Lower Appellate Court reversed that finding and decreed the suit of the plaintiff, he being the nearest agnate under the Hindu Succession Act vide judgment dated February 16, 1979. Aggrieved thereby the defendant has come up this second appeal.

(2.) This appeal stood concluded by the finding of fact recorded by the Lower Appellate Court on the execution of the Will set up by the appellant but was admitted by me on the basis of a Division Bench decision in Ram Sarup v. Ram Saran and another, 1926 AIR(Lah) 650(1 , wherein it was held that a person who is present at the time of mutation respecting an alienation cannot challenge the same later on. That decision is, however, of no assistance as it related to the challenge of an alienation under custom. The alienation under custom can be challenged on the basis that the same had been made without legal necessity. Obviously, if a person does not object to the validity of the alienation at the time of the mutation, he would be estopped later on from doing so. In the present case, however, the question involved is the execution and validity of the Will and any admission made in this respect would not estop that person from challenging it later on if he could successfully do so and show that the admission was not binding on him or had been made in ignorance of the true facts.

(3.) The learned counsel for the appellant then urged that the admission in the present case had been ignored by the learned Additional District Judge wholly on erroneous grounds. There is lot of substance in this contention of the learned counsel but after going through the facts and circumstances available on the record, I find that the admission has been made by the plaintiff in view of the compromise dated May 30, 1976 from which both the parties resiled later on. The admission made, in these circumstances would have hardly any evidentiary value particularly when the admission is on a fact which was not in the personal knowledge of the plaintiff. No ground, therefore, is made out on the basis of the said submission to interfere with the finding of fact recorded by the Lower Appellate Court.