(1.) THIS appeal has been filed by Bishan Singh son of Bir Singh, defendant (appellant) against the judgment and decree dated 27.7.1996 passed by the learned Additional District Judge, Jagadhri whereby the appeal of Bishan Singh, defendant-appellant against the judgment and decree dated 22.11.1994 passed by the learned Sub Judge Ist Class, Jagadhri has been dismissed. Bishan Singh, defendant-appellant died during the pendency of the appeal and his LRs. Smt. Inder Kaur (widow), Prithi Singh (son), Jagir Kaur, Balbir Kaur, Dalbir Kaur and Surinder Kaur (daughters) were impleaded as parties vide order dated 16.3.1998.
(2.) SARAN Singh and Prem Singh sons of Gurdit Singh son of Bir Singh filed a suit for declaration to the effect that they are exclusive owners in possession of land measuring 6 marlas as detailed in the head note of the plaint. The suit was filed by them against Bishan Singh, Sadhu Singh and Kishan Singh sons of Bir Singh and Smt. Kreshni widow of late Kartar Singh son of Bir Singh and Ram Singh son of Gurdit Singh son of Bir Singh. The case of the plaintiffs is that their real uncle Fakir Singh, brother of their father Gurdit Singh was owner in exclusive possession of the land in dispute which he had purchased vide registered sale-deed dated 1.5.1981 for a valuable consideration. Mutation No. 98 was sanctioned in his favour on 12.12.1981. It was his self-acquired property. Fakir Singh died issueless at Naraingarh on 11.7.1985. It was alleged by the plaintiffs Saran Singh and Prem Singh that they had served their uncle throughout his life. All necessary help in old age was given to him and he being pleased with the services rendered by them, executed a Will dated 3.6.1985 with respect to the land at Bilaspur. The said Will was scribed by Fakir Chand, Deed Writer and was executed in the presence of the attesting witnesses Ram Saran, Lambardar of Bilaspur and Ghanshyam Dass of Lalhari Kalan. On the basis of the Will the revenue officers entered the mutation exclusively in their favour after holding an inquiry and going through all the formalities. However, on the objection raised by the defendants the mutation was declared as a contested one and was referred to the Assistant Collector Ist Grade, Jagadhri. The latter vide his order dated 11.4.1986 sanctioned mutation in favour of the legal heirs of deceased Fakir Singh which led the plaintiffs to file the present suit. The defendants admitted the relationship between Fakir Singh and the plaintiffs but denied the execution of the Will in their favour. It was in fact stated that Fakir Singh had not been keeping well for the last many years and was not mentally fit and had lost his mental equilibrium and, therefore, was not in a fit condition to execute the Will. The plaintiffs in their replication reiterated the assertions as made in the plaint. The learned trial Court on the basis of pleadings of the parties framed the following issues :-
(3.) LEARNED counsel for the appellants contends that both the Courts below have wrongly ignored the evidence of N.K. Jain, Hand-writing and Finger Print Expert who stated that the thumb impression on the Will is not of Fakir Singh and that Fakir Singh has put his right thumb impression whereas the case of the plaintiffs is that the Will bears the left thumb impression of Fakir Singh. Besides, no valid reasons have been given to exclude the defendant No. 1 whose LRs are now the appellants from inheriting the property of Fakir Singh as he was a natural heir of Fakir Singh. Therefore, the Will is surrounded by suspicious circumstances. Besides, the Will is not a registered one even though it was executed in the Sub-Tehsil compound where Sub-Registrar was available for registering it. It is stated that the Will has not been attested by natural witnesses and that Ram Saran is Lambardar of village Bilaspur who is a stock witness and his testimony cannot be believed. Moreover he has also admitted that he was not on visiting terms with Fakir Singh and had not attended his last rites. It is also stated that Fakir Singh died at Naraingarh where his last rites were performed at the house of another brother. The Will in question is dated 3.6.1985 and Fakir Singh died on 11.7.1985 and difference between the execution of the Will and death is very short. It is also contended that the Will was executed at Bilaspur when Chhachrauli is nearer to the village of Fakir Singh. It was executed on Monday when the Sub-Registrar was available. It is stated that Ram Saran, attesting witness does not know the father's name of Fakir Singh. Besides, Fakir Chand, Deed Writer could not say as to which thumb impression of Fakir Singh was put on the Will. Ghanshyam Dass another attesting witness is stated to be a close friend of Prem Singh beneficiary of the Will.