LAWS(P&H)-2013-11-587

BAHAL SINGH Vs. KAKA SINGH AND OTHERS

Decided On November 14, 2013
BAHAL SINGH Appellant
V/S
Kaka Singh And Others Respondents

JUDGEMENT

(1.) The following substantial question of law arises for consideration in the appeal:-

(2.) The defendant is the appellant before this court. The plaintiff filed a suit for declaration of his 1/3rd share in the suit property which was later amended to claim 2/3rd share on the death of his brother. The plaintiff's contention was founded on a pleading that the property belonged to the father Dhani Singh and on his death death, it fell to his three sons of whom the plaintiff is one and another son was Kheta Singh who had been arrayed as the 1st defendant in the suit initially and yet another share as belonging to one Gurnam Singh. The plaintiff would claim that Gurnam Singh was unmarried and hence died issueless and Kheta Singh had also died subsequent to the suit. The issues of Kheta Singh had been subsequently impleaded as defendants No. 1 to 4. The 1st defendant who is the son of Kheta Singh entered the principal contest to plead that Gurnam Sigh did not die intestate but he died on 21.5.1982 having executed a will bequeathing the property in his favour on 20.2.1980 and his share in the property has devolved upon him. The defendants would contend that the plaintiff's 1/3rd share was not being denied, however, the plaintiff's locus-standi to institute the suit was denied in general terms.

(3.) The trial court put to issue the plaintiff's locus-standi and also raised an issue regarding the truth and genuineness of the will. A general plea of denial of locus-standi took the shape at the time of trial to mean that the plaintiff was not even the son of his father Dhani Singh and that he had no connection at all with the family. The plaintiff, therefore, gave evidence with reference to the genealogical table and some of the witnesses also spoke about the relationship of the plaintiff to his father. Before the trial court, the defendants examined witnesses Subha Singh as DW2 and scribe of the will as DW3. The plaintiff gave evidence in rebuttal for the will propounded by the defendants through PW4, who had been referred to as one of the witnesses. He gave evidence to the effect that he did not know that a will had been written and even Gurnam Singh did not know that the will had been written. Thumb impression had been taken from him on a representation that he was executing a mortgage.