MEHNGA AND OTHERS Vs. MAJOR SINGH AND ANOTHER

JUDGEMENT

(1.) It is not necessary to narrate the facts of the case in detail, because the only controversy that was urged before me was, whether the will Ex. P-1 (copy Ex. D-7) propounded by Sheru defendant (who died during the pendency of the appeal in the lower appellate Court and whose son Major was brought on the record, as his legal representative) was validly executed by Malan and has been duly proved.

(2.) Briefly stated, the facts are that the suit land belonged to Bishan Singh who died near about 1944. He left behind his widow, Malan, who too, died on 10th February, 1972. The present appellants filed the suit in January, 1977 for a declaration that they, alongwith defendant No. 2. Durgi (now respondent No. 2), were the owners of the suit land and Sheru, defendant No. 1 had no right or interest therein. As a consequential relief, they prayed for a decree for permanent injunction, restraining defendant No. 1 from interfering with their possession and that of defendant No. 2 over the suit land or in the alternative, they prayed for possession of the suit land. According to the plaintiffs, they were the sons while Smt. Durgi was the daughter of Ralli sister of the aforesaid Bishan Singh and thus, they were the heirs to his estate after the death of Malan. In defence of the suit, Sheru averred that on 4th October, 1956, Malan had executed a will in his favour and mutation was rightly sanctioned in his favour. He also denied the plaintiffs' allegation that the will was a forged document or a result of misrepresentation and fraud.

(3.) The learned trial Court held that the execution of the will by Malan had not been proved in accordance with section 68 of the Evidence Act. Accordingly the suit was decreed. Feeling aggrieved, Sheru defendant filed an appeal which was heard by the learned Additional District Judge, Hoshiarpur. He held that the disputed thumb-impression of the testator on the will Ex. P-1 (copy Ex. D-7) was of Malan and that the will was properly attested. It was further held that it had been proved in accordance with the provisions of section 68 of the Evidence Act. Consequently, he accepted the appeal and dismissed the suit of the plaintiffs. The plaintiffs have now come up to this Court in second appeal.