GURBAX SINGH Vs. SARWAN SINGH AND OTHERS

JUDGEMENT

(1.) This is the second appeal of one of the two plaintiffs who had filed a suit seeking a declaration to the effect that they are the owners of the suit land, i.e. land to the extent of the share of one Sham Singh, and that the mutation dated 27.07.1981, entered on the basis of the will of Sham Singh dated 25.03.1970, be declared to be null and void. They also sought a decree of permanent injunction against the seven defendants impleaded in the suit, restraining them from taking forcible possession of land measuring 49 bighas and 06 biswas, as was fully described in the head note of the plaint.

(2.) As per the plaintiffs, Sham Singh was the owner of a share of land measuring 144 bighas and 10 biswas and that he had died on 12.07.1979, unmarried and issueless. He had executed a registered will on 25.03.1970 in favour of the plaintiffs and defendants no. 1 to 3 (seen to be the brothers of the two plaintiffs as per the memo of the parties). However, it was contended that the defendants did not serve Sham Singh. He therefore executed another will on 09.07.1979, in favour of the plaintiffs, which was got registered after the death of Sham Singh on 12.07.1979 and was therefore his last testament. As regards defendant no. 7-Bir Singh, it was averred that he had gifted his share in the suit land to defendants no. 4 and 5, i.e. the sisters of the plaintiffs and defendants no. 1 to 3. It was further contended that the Assistant Collector Ist Grade, ignoring the will dated 09.07.1979, sanctioned a mutation in favour of the plaintiffs and defendants no. 1 to 3, which, according to the plaintiffs, was binding on their rights. Consequently, the suit was instituted on 17.08.1981.

(3.) Upon notice issued, defendants no. 2, 3, 6 and 7 filed a written statement raising preliminary objections on maintainability and the suit being barred by limitation. On merits, the will dated 25.03.1970 was admitted to have been executed by Sham Singh in favour of the plaintiffs and defendants no. 1 to 3. It was also admitted that Bir Singh, defendant no. 7 (seen to be the uncle of the plaintiffs and defendants no. 1 to 5, i.e. the brother of their father), had given his share in the suit land to defendants no. 4 and 5, i.e. Kartar Kaur and Mukhtiar Kaur. However, it was denied that the defendants did serve Sham Singh. They also denied the execution of the will dated 09.07.1979 in favour of the plaintiffs, contending that on that date Sham Singh was of sound health and in fact, was in his senses as he had been confined to bed for six months prior to his death. Thus, it was contended that the said Will dated 09.07.1979 was a forged document. Consequently, dismissal of the suit was prayed for.