SURJIT SINGH Vs. SUKHBIR KAUR AND ORS.

JUDGEMENT

(1.) THE present regular second appeal, filed by the defendant -appellant, is directed against the concurrent findings recorded by the Courts below, which have rejected the registered will dated 10.11.2004 (Exhibit D1), which was set up by him, being executed by his father -Husan Singh. Accordingly, the suit for declaration of the plaintiffs/respondents that they were co -owners in possession of the land measuring 35 kanals 8 marlas, details of which were mentioned in the headnote of the plaint and which was situated in the Village Gondpur Tehsil Garhshankar, District Hoshiarpur, was granted. The reasoning of the Trial Court was held to be justified by the Lower Appellate Court on 07.06.2001.

(2.) A perusal of the record would go on to show that the suit was filed by taking the plea that the plaintiff -respondents, the mother and the daughter and the son were residing together with the testator as a joint family and he had never executed the will in favour of the defendant and therefore, he had no right to get the land mutated in his favour. It was pleaded that Husan Singh had never executed the will and had got the mutation sanctioned and on having refused to admit their claim, the suit had been filed on 03.02.1997. In the written statement, specific plea was taken that there was no joint residence and the testator had been residing with the defendant who was serving him in all respect and in such circumstances, the registered will had been executed which had been scribed by a regular deed writer and witnessed by marginal witnesses. The said will had been executed voluntarily, without any pressure and had been acted upon since mutation had been sanctioned in favour of the defendant. In the replication, the plaintiffs further replied that the will was a result of fraudulent act of the defendant and stated that the said will could not be executed. The plaintiffs examined Joginder Singh as PW1 and the daughter appeared herself as PW2.

(3.) THE following additional issue was framed on 18 -8 -1999: -