SALINDER KAUR Vs. KUNDAN SINGH

JUDGEMENT

(1.) The suit for declaration and for recovery of possession, which was dismissed, was set aside in Appellate Court securing to the plaintiffs decree for recovery of possession. In so doing, the Court was finding the Will propounded by the defendants as having been executed by Prem Kaur as brought about under vitiating circumstances and decreed the suit for recovery of possession finding the plaintiffs to be distant 7 th degree collaterals of the deceased Prem Kaur's husband and heirs at law. The defendants are the appellants before this Court.

(2.) The suit was in relation to the estate of Prem Kaur and the plaintiffs' claim was that they are legal heirs of Prem Kaur, her husband having pre deceased her and Prem Kaur died without any legal issues. The plaintiffs contended that the Will propounded by the defendant, who was a stranger to the family was not true. The defendant was admittedly a resident of the same village where Prem Kaur was living and who was attending on Prem Kaur till her death. It was also admitted that it was the defendant, who had performed the obsequies and the defendant's plea was that Prem Kaur had earlier executed a Will on 05.06.1972 and later revoked the same by executing another Will on 16.04.1975 bequeathing some properties in his favour and some properties in the name of a Gurdwara and duly registering the Will. The witnesses and scribe had been examined and while the trial Court upheld the Will and dismissed the plaintiffs' suit, the Appellate Court reversed it on a finding that the Will had been executed by a person, who has not been mentally sound. Of the two witnesses, one witness was stated to be unreliable as a person, who had denied his own evidence in an earlier proceeding where Prem Kaur herself was a party and yet another person was interested in the defendant to secure the bounty and therefore, his evidence could not be relied on. The defendant had also examined the registering officer but the Appellate Court held that the registering officer cannot speak about the mental condition of the deceased and no reliance could be placed to uphold a Will on the basis of his evidence.

(3.) The case has been brought for hearing on the substantial question urged by the counsel that the appreciation of evidence by the Appellate Court was perverse in its approach and legally untenable. The defendant would also contend that the plaintiffs themselves had not proved the locus standi to claim as heirs of Prem Kaur and the Court had assumed that the defendant had not challenged heirship when there was a specific denial in the written statement.