HARNAM KAUR Vs. GURDIAL SINGH

JUDGEMENT

(1.) THE suit for declaration of joint possession with respect to 69 bighas 18 biswas of land being 1/2 share measuring 139 bighas 16 biswas of land in the Village Nut that belonged to the estate of the plaintiff's husband Jai Singh, who died on 30.3.1974. The suit was filed by the plaintiff on a plea that a half share had been transferred by her to the 2nd defendant -Bhan Singh, but her own half share which she retained was being attempted to be trespassed by the 1st defendant. The plaintiff had further averred that the 1st defendant propounded a Will dated 26.03.1974 said to have been executed by Jai Singh and the said Will was not true. Her contention was that she was the only legal heir to succeed to the estate. The Assistant Collector had originally granted mutation in her name in respect of the property, but this was set aside by the Collector referring to the Will propounded by the 1st defendant. This, according to the plaintiff, was unjustified and the suit was filed for the reliefs, referred to above. The 1st defendant, who was the sister's son of the

(2.) PLAINTIFF , claimed that his mother and the plaintiff were originally the residents of Dhalewan which was a village near Nut and Jai Singh and the plaintiff had actually moved to Dhalewan about 2 1/2 years before the death of Jai Singh. The defendant was looking after him and Jai Singh being happy about his services executed a Will on 26.03.1974 bequeathing equal share to the plaintiff and the 1st defendant. It was duly executed in a sound disposing state of mind and attested by witnesses. The original Will had been filed as D2. The defendant also produced registration copy of Will said to have been executed by Jai Singh on 20.03.1974 that was about 6 days prior to the second Will where he had allowed for a disposition of the property in favour of his wife in respect of 61 bighas 12 biswas in favour of his wife. The defendant's contention was that the subsequent Will prevailed as a last instrument and that the suit for a claim to joint possession with the 2nd defendant was not justified.

(3.) IN second appeal, the contention by the plaintiff on behalf of the plaintiff is that the Will was artificial and shrouded by suspicious circumstances. The learned senior counsel would submit that (i) the Will dated 26.03.1974 made no reference to the earlier Will made on 20.03.1974 which was most unusual; (ii) the earlier Will dated 20.03.1974 had been registered and the second Will was not even registered and no explanation was given by the propounder as to why it could not be registered; (iii) the executant himself had died 3 days after the alleged execution in favour of the defendant and there was no sure proof that he executed it in a sound disposing state of mind and that it was voluntarily done and (iv) there was no reason to restrict her own entitlement to the whole estate and let it be shared with the 1st defendant.