SOHAN SINGH Vs. PREET KAMAL SINGH

JUDGEMENT

(1.) AS per the averments made in the suit, one Mangal Singh son of Gurbachan Singh was owner in possession of suit land measuring 71 kanals 3 marlas situated at village Nahal, Tehsil Phillaur, District Jalandhar. Said Mangal Singh died on 26.6.2001 leaving behind the plaintiffs and defendants as his legal heirs. The plaintiffs and defendants No.1 and 2 as the sons along with defendants No.3 to 6 the daughters, defendants No.9 to 12 are the widow and son and daughters respectively of the predeceased son, defendant No.11 as son of predeceased son and defendant No.8 as daughter of pre -deceased son.

(2.) AS per the further averments, said Mangal Singh had executed a registered Will dated 28.1.1994 bequeathing his estate in favour of the plaintiffs to the extent of 2/3rd share in equal share and in favour of defendants No.11 and 12 to the extent of 1/6th share each. After the death of Mangal Singh, plaintiffs as well as defendants No.11 and 12 entered into possession being the coowners to the extent of their shares. Thus, according to the plaintiffs, in view of the registered Will in favour of the plaintiff and defendants No.11 and 12, the remaining defendants had no right, title or concern with the suit property. It was further averred in the suit that a week earlier to the date of filing of the suit, defendant No.1 along with other defendants attempted to take forcible possession and threatened to alienate the suit property, asserting that they have got the mutation bearing No.2407 sanctioned qua the estate of Mangal Singh in their favour as per natural succession. According to the plaintiff, alleged mutation was illegal, null and void as there was a registered Will executed by Mangal Singh in their favour. Thus, the necessity arose to file the instant suit for declaration along with consequential relief of injunction or in the alternative, suit for joint possession.

(3.) UPON notice, appellant (i.e. defendant No.1) appeared in the suit and filed written statement raising various preliminary objections. On merits, the factum of the suit property being the ownership of Mangal Singh was admitted to be correct. Further, it was denied that Mangal Singh executed a Will dated 28.1.1994 in favour of the plaintiffs and defendants No.11 and 12 as alleged. It was further stated that the Will was illegal, null and void and was the result of fraud and misrepresentation. It was also stated that Mangal Singh had no right to execute the Will as the suit property was ancestral in his hands. The mutation No.2407 qua the inheritance of the estate of Mangal Singh was rightly sanctioned and thus, defendant No.1 -Sohan Singh has full rights in the property and even otherwise plaintiffs were not in possession and thus, question of taking forcible possession from them does not arise. The material averments of the remaining paras have been controverted and the dismissal of the suit was prayed for. In replication, the averments raised in the written statement filed by defendant No.1 have been controverted and those of the plaint have been reiterated to be correct. From the pleadings of the parties, following issues were framed: -