GOWARDHAN DUTT Vs. SHRIMATI DWARKU

JUDGEMENT

(1.) THE only question which arises for determination in this second appeal directed against the Judgment and decree or learned Senior Sub Judge, Kangre, reversing on appeal the decree of the trial Court, is whether mother's half brother of Deva ram deceased is a preferential heir compared to Deva Ram's father's brother's daughter.

(2.) THE facts giving rise to the present appeal are that Deva Ram was the owner of the land in dispute situated in Phati Narmand, Tehsil Saraj, District Kangra. He died on 29-1-1955 and his land was mutated in favour of his father's brother's daughter Dwarku defendant, Gowardhan Datt, plaintiff-appellant, thereupon brought the present suit for a declaration that he was in possession of the land in dispute as its owner and for permanent injunction against Dwarku defendant restraining her from interfering with plaintiff's possession of the land. According to the plaintiff, he was maternal uncle of Deva Ram deceased and had been looking after him during his lifetime and the deceased had executed a Will dated 12-11955 in plaintiff's favour. The plaintiff as such claimed to be entitled to remain in possession of the land in dispute.

(3.) THE suit was resisted by the defendant who denied that the plaintiff was the real maternal uncle of Deva Ram deceased. According to the defendant, the father of the plaintiff and of Mst. Niru, mother of Deva Ram, was the same but the plaintiff and Mst. Niru were born from different mothers. As regards the Will relied upon by the plaintiff, it was stated to be a forged and fabricated document. Following issues were framed in the case :