MOHAN SINGH Vs. ISHAR SINGH

JUDGEMENT

(1.) This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity 'the Code') challenging concurrent findings of facts recorded by both the Courts below. It has been concurrently found by both the Courts below that ownership of the suit land was divided between the parties by family partition Ex. DW 4/A executed on 25-6-1962 although trial Court had declined to accept the document for want of registration. It was further held that the Will propounded by defendant-appellant No. 5, Shri Dhanbir Singh was not genuine and the same was surrounded by suspicious circumstances. Both the Courts have found that it was not validly executed by the testator Smt. Rajo in favour of defendant-appellant Dhanbir Singh. The sale deed Ex. DW 10/A dated 7-3-1977 execute'd by the deceased mother of the plaintiff-respondent and defendant- appellant No. 5, Smt. Rajo through her purported attorney, defendant-appellant No. 5 in favour of defendant-appellant Nos. 1 to 4 was not a bona fide transfer for valuable consideration. Accordingly it has been held that no protection as contemplated by Section 41 of the Transfer of Property Act, 1882 (for brevity 'the 1882 Act') could be accorded to them. Feeling aggrieved, the defendant-appellants have approached this Court.

(2.) Data Ram who was the owner of the suit land died in January, 1962. He was survived by his widow Rajo and six sons namely Ishar Singh, Harcharan Singh, Gurdial Singh, Niranjan Singh and Kishan Singh who are plaintiff-respondents Nos. 1 to 5 and 6th son Dhanbir Singh who is defendant-appellant No. 5 in the instant appeal. All the six brothers along with their mother inherited the estate of Data Ram in equal share to the extent of 1/7th share each after his death. Smt. Rajo also died on 27-6-1978 when she was at a very advanced age. A dispute has arisen with regard to 1/7th share of the joint land held by Rajo after the death of Data Ram.

(3.) The plaintiff-respondent Nos. 1 to 5 filed a civil suit claiming joint possession of 5/6th share out of 1 /7th share held by Rajo in the total joint land. At the centre of the controversy is the registered Will dated 14- 12-1967 alleged to have been executed by Rajo in favour of defendant-appellant No. 5 on account of the services rendered and by virtue of love and affection for him. Another dispute is with regard to various sale deeds executed by Smt. Rajo personally or through her son Dhanbir Singh, defendant-appellant No. 5 who acted as her attorney. It is claimed that the sale deeds were not binding on them. The sale deed Ex. DW 10/A executed by defendant-respondent No. 5 in favour of his own sons i. e. defendant-respondent Nos. 1 to 4 is also subject matter of challenge on the ground that the same is fraudulent. It was alleged that the Will Ex. D.1 dated 15-12-1967 was result of fraud, misrepresentation, undue influence and coercion as Rajo (the testator) was 95 years old. She was alleged to be incapable of understanding anything good or bad. The stand of the defendant-respondent No. 5 Dhanbir Singh was that there was a family partition Ex. DW4/A which was reduced to writing on 25-6-1962 duly attested by plaintiff-respondent Nos. 1 to 5 besides defendant-respondent No. 6 as well as deceased Smt. Rajo. It was alleged that the deed dated 25-6-1962 was in possession of the plaintiff-respondent and the factum of partition was accepted by all of them in the mutation proceedings before the Assistant Collector, 1st Grade, Dasuya. The other legal objections raised were that no particulars of any fraud, misrepresentation, undue influence or coercion allegedly practised by the defendant-respondent No. 5 were disclosed by the plaintiff-respondent. The suit was alleged to be time-barred assertion that Rajo separated from the plaintiff-respondents in the year 1962. Another allegation was that plaintiff- respondents Nos. 1 to 5 were gainfully employed and were living separately since the time of their father. After the death of Data Ram, defendant-respondent No. 5 was left with Rajo his mother and is claimed to have served her. The registered Will Ex. D. 1 dated 14-12-1967 is claimed to have been executed in favour of defendant-appellant No. 5 on account of love and affection and due to the services rendered. The testator Rajo is alleged to have bequeathed her whole property in favour of defendant-appellant No. 5. The sale deeds executed by defendant-appellant No. 5 on the basis of power of attorney dated 6-2-1969 were also defended by denying the allegation that Rajo was mentally infirm or had lost her mental faculties. The sale of the land made by Rajo was necessitated as cash amount was required in connection with the marriage of her father's sister's son and daughter.