BHAGWAN KAUR Vs. CHETAN SINGH

JUDGEMENT

(1.) JUDGEMENT :- This is plaintiffs' second appeal whose suit for joint possession was decreed by the trial Court but was dismissed in appeal.

(2.) Amar Singh was the owner of the suit property. He died on May 8, 1986. During his lifetime, he married twice. First marriage was with Shrimati Harnam Kaur. He had three sons and two daughters from her. After the death of Harnam Kaur. Amar Singh married Shrimati Bhagwan Kaur, From her, he had a daughter Gurmit Kaur. On Feb., 5, 1966, Amar Singh made a will, Exhibit D-1, in favour of his three sons. who were born out of the marriage with Harnam Kaur. In the will, no immovable property as such was given to the widow Bhagwan Kaur or her daughter Gurmit Kaur, but, however, a provision was made for her maintenance. Bhagwan Kaur and her daughter Gurmit Kaur filed the present suit on Oct., 25, 1972 for joint possession to the extent of 2/7th share of the suit property left behind by Amar Singh. According to the plaintiffs, earlier the defendants have been giving the produce to them, but now they have refused to do so on the plea that defendants 1 to 3 are the exclusive owners of the suit land. According to the plaintiffs, the entries in the revenue record about the ownership of these defendants have been made on the basis of a will, which is a forged one. Defendants 6 to 10 were made parties to the suit being transferees of a part of the land after the death of Amar Singh. The suit was contested on behalf of the legatees. They admitted the ownership of Amar Singh over the suit land. They pleaded that they are the sole owners of the land on the basis of a valid will executed by Amar Singh during his lifetime in their favour. According to the defendants, on the basis of the said will, mutations in all the three villages were duly sanctioned in their favour. The main contest between the parties during the trial was as to whether Amar Singh executed a valid will in favour of defendants 1 to 3 or not. The trial Court came to the conclusion that from the evidence of the defendants it is not proved that Amar Singh executed a valid will in their favour. Rather, it is proved that there was no occasion to write the will in favour of the defendants and depriving the plaintiffs from their share. As a result of this finding, the plaintiffs' suit was decreed. In appeal, the learned Additional District Judge reversed the said finding of the trial Court and came to the conclusion that the will, Exhibit D-1, is a most natural document executed by Amar Singh. Provisions have been made for both the plaintiffs therein. Even the two daughters of Amar Singh, deceased, accepted the same. The mutations were sanctioned on the basis of the said will vide copies, Exhibits 16, D-17 and D-18 and, thus, from all the facts and circumstances of the case, it goes to show that the will was a genuine one. Consequently, the plaintiffs' suit was dismissed.

(3.) During the pendency of this appeal, vide order dt. Sept. 24, 1981, the plaintiffs were allowed a sum of Rs. 5,000/- per annum as maintenance during the pendency of this appeal. However, when the said amount was not being paid as directed, Civil Misc. No. 1622-C of 1981 was moved on behalf of the plaintiffs-appellants. Notice of this application was given to the opposite side. Thereupon a sum of Rs. 39,600/- was deposited by them vide challan dt. June 1, 1987. After the said payment was made, this appeal came up for hearing.