JOGINDER SINGH Vs. RUR SINGH

JUDGEMENT

(1.) THE plaintiff, who was successful in his suit for declaration of the suit property, lost in appeal filed by the defendants. The plaintiff is the appellant before this Court.

(2.) THE dispute relates to the estate of Bur Singh. The plaintiff is his brother's grandson. The plaintiff's contention was that Bur Singh executed a registered Will in his favour on 23.02.1972. It came into effect on his death on 05.10.1972. The plaintiff would contend that Bur Singh had treated the plaintiff as his son, since he has no issue through his wife Niranjan Kaur. Niranjan Kaur herself was a witness to the Will executed by Bur Singh in his favour. He had filed yet another suit which was against Niranjan Kaur for declaration, but she died during the pendency of the suit. He had impleaded his own father Piara Singh as her legal representative (as husband's heir) and a decree for declaration had been granted in his favour on 21.04.1975. The suit against the defendants came to be filed on a contention that the defendants were strangers and were setting up a Will alleged to have been executed in favour of defendant no 1. It was also claimed that there had been a mortgage by Bur Singh in relation to the property in favour of the sons of the 1st defendant, viz., defendants 2 to 4 and both the mortgage and the Will set up by the defendants were contended to be not true. The defendants were attempting to take possession of the property and if the Court would find that the defendants had actually taken possession, the plaintiff was seeking for an alternative relief of recovery of possession.

(3.) THE trial Court had framed issues on the truth and genuineness of the two rival Wills propounded by the plaintiff and the 1st defendant respectively. It had also framed an issue whether the mortgage alleged to have been executed by Bur Singh in favour of defendants 2 to 4 was true. The trial Court upheld the Will executed by Bur Singh in favour of plaintiff, found the mortgage to be true and finding that the period of redemption of the mortgage was for a term of 15 years, granted a decree in favour of the plaintiff for declaration and that the plaintiff could not seek possession without redeeming the mortgage. The Will propounded by the defendant was found to be not genuine. In the appeal filed by the defendants, the Court reversed the decision as regards the Will dated 23.08.1972 and upheld the same as established. It noted an argument of the counsel appearing on behalf of the plaintiff that he was confining his arguments only with reference to the Will and, therefore, found that the plaintiff's suit for declaration cannot survive in view of the validity of the subsequent Will which the Court found to be the last Will and testament. It is this judgment of the appellate Court which is in appeal.