SOHAN SINGH Vs. SMT. BANTI KAUR

JUDGEMENT

(1.) A set of defendants are in appeal. For convenience, the facts are being taken from RSA No.1329 of 1994. For convenience, the parties are being referred to by their original position in the suit i.e. the appellants as defendants No.l & 3, respondents No.l to 6 as plaintiffs and respondents No.7 to 13 as defendants No.2, 4, 5, 6, 7, 8 & 9, respectively.

(2.) Plaintiff filed a suit for decree of possession claiming themselves to be co-owners in the suit land left by Dalipa son of Didar Singh. Plaintiff-Banti filed suit through her son Harbans Singh, claiming herself to be Parda Nashin lady.

(3.) Counsel for the appellants/defendants No.l and 3 has assailed the findings recorded by Courts below and submits that none of the circumstances relied upon by the Courts below to non-suit defendants, can be held to be suspicious circumstance. In the subsequent Will dtd. 19/9/1983, earlier Will dtd. 5/6/1959 stands cancelled. There was difference of 24 years between two Wills. Subsequent Will, even though proved, has been discarded merely for the reason that change in circumstances could not be proved by the propounder of Will. He further submits that exclusion of those who were beneficiaries in the earlier Will itself would not be a suspicious circumstance to discard subsequent Will. He further submits that in the suit, the Will was challenged on the ground of fraud. Apart from bald assertion regarding fraud, neither there was any plea raised detailing out the fraud nor was any evidence led to prove the same. In order to hammer-forth his contention he has relied upon Swamalatha and others vs. Kalavalhy and others, 2022AIR Supreme Court 1585; Rabindra Nath Mukherjee and another vs. Panchanan Banerjee (dead) by LRs and others, AIR 1995 Supreme Court 1684 and Pratibha and another vs. Nandi Devi and others, (2019) 2 RCR (Civil) 11. He thus submits that Courts below erred in discarding a validly executed Will on flimsy grounds.