LAL CHAND Vs. RICHHPAL SINGH AND OTHERS

JUDGEMENT

(1.) This is defendants' second appeal against whom suit for possession of the agricultural land measuring 29 Bighas 1 Biswa was dismissed by the trial Court but was decreed in appeal.

(2.) One Nanhar son of Shiv Lal was the owner of the suit land. He died on 14.7.1974. During his life time, he made a registered will dated 22.8.1969 Ex. D. 1 in favour of the sons of Udmi, who was the brother of deceased (testator). The deceassed had also another brother Jessa who has also died leaving behind two sons and two daughters. The said two sons Sher Singh and Rechhpal are plaintiffs in the present suit. The plaintiffs filed the suit challenging the said will Ex. D. 1 executed by Nanhar in favour of his brother 's son Udmi, inter alia, on the ground that the suit land was ancestral, that the parties were governed by custom according to which Nanhar was incapable of executing the will. It was also alleged that the will was not6 a conscious and voluntary transaction as he was not in sound disposing mind. Moreover he did not know the implication of this act on account of his old age and poor Intellect. The suit was contested by the defendants on the ground that the will Ex. D. 1 was a valid document. The allegations made in the plaint were denied.It was pleaded that the suit land was the self acquired property of the deceased. The trail Court found that the parties were governed by custom, and the suit land was self acquired property of Nanhar. As regards the validity of the will the trial Court found that Nanhar executed a valid will in favour of the defendants 1,2 and 3 with sound disposing mind. In view of his finding, the plaintiffs suit was dismissed. In appeal the learned Senior Sub Judge with enhanced appellate powers maintained the findings of the trial Court on all other issues except on the issue of the validity of the will. According to the lower appellate Court the execution of the will was not duly proved as the attesting witnesses produced by the defendents had no where stated that the testator put his thumb-impression on the will in their presence or that the contents of the documents were admitted to be correct by the testator to them. As a result of this finding the plaintiffs' suit was decreed. Dissatisfied with the same, the defendants have filed the second appeal in this court.

(3.) The learned counsel for the appellants contended that the finding of the trial Court as to the validity of the will Ex D 1 has been reversed in appeal arbitrarily on surmises and conjectures. According to the learned counsel, after reading of the evidence of the attesting witnesses, the scribe and the endorsement on the will made by the Sub Registrar, it is quite evident that the execution of the will was duly proved and the view taken by the lower appellate Court was wrong and illegal. It was also argued that in case the will is not held to be validly executed, then the plaintiffs are not to succeed equally as heirs under clause (2) of the schedule of the Hindu Succession Act as both are equally related to the deceased.