KARAM CHAND SANDHU Vs. KAUSHALYA DEVI

JUDGEMENT

(1.) The appellant has challenged the judgments and decree of the Courts below whereby the suit preferred by the respondents-plaintiffs for declaration and in the alternative for joint possession has been decreed to the extent of 174th share of respondent No. 1-plaintiff in the suit property and the appeal thereagainst has been dismissed.

(2.) Learned counsel for the appellant submits that the suit land was owned by the appellant-defendant and mutation had been validly carried out. He had become the owner on account of Will dtd. 15/4/1977 duly executed by his father Piara Singh in his favour. He further submits that the Will had been duly proved as an attesting witness had been examined. He has cited the judgment of the Supreme Court in the case of P.S. Sairam and another versus P.S. Rama Rao Piisey and others, 2004 (1) Apex Court Judgments 356 (S.C.) in support of his submission that examination of one witness would be sufficient to prove the Will. He also submits that the mother of the appellant defendant and respondent No. 1-plaintiff namely Maya Devi is the most important witness. She has fully supported the execution of the Will and has also furnished reasons for not producing the Will while the mutation of the property owned by Late Piara singh in Himachal Pradesh was carried out in favour of the legal heirs. He also submits that the appellant had preferred an application under Order 41 Rule 27 CPC for leading additional evidence before the Appellate Court to examine the scribe but the same had been rejected by a cryptic order. He also submits that neither in the pleadings nor in the evidence it has come up that respondent No. 1-plaintiff was on good terms with their father and had looked after him especially when he was unwell.

(3.) Learned counsel for respondent No. 1-plaintiff, however, submits that the Will had been executed in suspicious circumstances, which had not been proved in accordance with the Evidence Act and, therefore, it had been rightly discarded by the Courts below. The mother of the appellant namely Maya Devi was present alongwith the appellant when the property of late Piara Singh was mutated in favour of the legal heirs in terms of the natural succession. They had not disclose the factum of the Will which was with regard to properties in the States of Himachal Pradesh and Punjab.