GURDIAL SINGH Vs. PHAMBI

JUDGEMENT

(1.) The Regular Second Appeal in the States of Punjab and Haryana and Union Territory, Chandigarh is governed by Sec. 41 of the Punjab Courts Act, 1918 and not by Sec. 100 of the Code of Civil Procedure, 1908, as held by a five Judge Bench of the Supreme Court in Pankajakshi (Dead) through LRs v. Chandrika and Others (2016) 6 SCC 157.

(2.) This is the defendants' regular second appeal against the judgment and decree passed by the First Appellate Court which, in turn, has reversed the judgment passed by the Trial Court.

(3.) In order to comprehend the issues involved in the present case, the relevant facts, in brief, are required to be noticed. The dispute is with regard to validity and correctness of the Will allegedly executed by Sh.Radha who died in the year 1961. It is the case of the parties that late Sh. Radha married twice. In the beginning, he married with Smt. Santi and two daughters, namely Smt. Phambi and Smt.Prarbhi were born. Subsequently, he married Naraini, resulting in birth of defendant No.1 to 4. In other words, the plaintiffs are the children and grand children of Radha from Smt. Santi, whereas defendant No.1 to 4 are the children of Radha from Smt. Naraini. The children and the grand children of Smt. Santi filed a suit for the grant of decree of declaration that mutation No. 1085 of village Ratgal, sanctioned on the basis of an oral Will in favour of the defendants is null and void and inconsequential. They also prayed for possession of the property. It was stated that the land measuring 19 kanals and 13 marlas has already been acquired by the State Government.