SURINDER PAUL Vs. SATAYA DEVI

JUDGEMENT

(1.) THIS is defendant's appeal against the judgment and decree of the lower appellate Court affirming in appeal the judgment and decree of the trial Court whereby suit of plaintiffs was decreed as prayed for.

(2.) PLAINTIFFS filed a suit for declaration to the effect that they are owners in joint possession to the extent of 2/3rd share of the land as detailed in the head note of the plaint. One Daulat Ram alias Daulti s/o Shambhu was owner of the property in dispute. He did not marry and died in April, 1973. Plaintiff and defendant No. 3 are real sisters of deceased Daulat Ram alias Daulti and in the absence of any class-I heir succeeded to his estate. According to plaintiffs, defendant No. 1 and 2 got mutation of inheritance of estate of Daulat Ram in their favour on the basis of an alleged Will in collusion with defendant No. 3 Smt. Maya. Since the Will was never executed, the same was illegal, null and void and so does not affect their proprietary/possessory rights. Otherwise too, Will is surrounded by suspicious circumstances and so is liable to be set aside.

(3.) THE contest revolved around issue No. 2 whether Daulat Ram deceased executed a valid Will in favour of defendants No. 1 and 2 ? With a view to prove that Daulat Ram during his last days was wholly incapacitated and did not possess a disposing mind, plaintiffs examined a number of witnesses of the village. PW1 Dharamvir, Sarpanch of the village, deposed that Daulat Ram died on 17. 4. 1973 in village Chack Guru and that his last rites were performed by Audhya Nath, elder brother of the witness. When examined he stated that Daulat Ram's one arm was amputated. This witness further denied the suggestion that defendants were looking after or rendering their services to Daulat Ram. According to this witness, one or the other out of these three sisters were, in fact, looking after him and in their absence one Smt. Bhagwanti, aunt of Daulat Ram, had been cooking his meals. Besides him, Smt. Sataya Devi plaintiff appeared as PW2; Auydhya Nath as PW3; Walaiti Ram, secretary Co-operative Society, Chack Guru, as PW5 and Siri Ram as PW6. Last witness also deposed to the effect that Daulat Ram was a patient of T. B. and few days before his death his condition was quite serious and he did not remain in disposing mind. According to this witness, Daulat Ram died on 17. 4. 1973 and was cremated in the village on 18. 4. 1973.