HUKAM SINGH AND OTHERS Vs. SMT. UDHAM KAUR

JUDGEMENT

(1.) THIS is a defendants' appeal against the judgment and decree dated 31st August, 1962, passed by the Additional District Judge, Jullundur, who reversing the decree of the trial Court decreed the suit of the plaintiff respondent for possession of the suit land. The land in dispute measuring 237 Kanals and 13 Marias, and situate in village Daroli Kalan, Tehsil Jullundur, as referred to in the plaint was originally held by Gopal Singh who had two sons Udham Singh and Dalip Singh. Udham Singh died on 29th March. 1902, leaving behind Mst Hukman as his widow She died on 28th June, 1958. Dalip Singh had died issueless on 14th April, 1913. Gopal Singh died leaving behind Mst. Gabo, his widow, and the daughter Udham Kaur, plaintiff. Mst. Gabo died somewhere in the year 1952 and on her death the estate of Gopal Singh was mutated in the name of Mst. Hukaman. Mst. Hukaman is alleged to have executed the will Exhibit D. 7 on 18th June, 1958, in favour of defendants appellants who are sons of Hira Singh brother of Gopal Singh. Udham Kaur plaintiff instituted the present suit for possession of the demised land on 19th March, 1960, pleading inter alia that she was the daughter of Gopal Singh by his first wife Mst. Gabo and entitled to inherit the property under custom governing the parties. 1 he will Exhibit D. 7 said to have been executed by Mst. Hukn.an was also challenged on the ground that it was a forged document and that in any case the deceased was not possessed of sound disposing mind at the time when she is purported to have executed the will. The defendants in whose favour the will is supposed to have been executed contested the suit. It was denied by them that the plaintiff was daughter of Gopal Singh deceased and her locus standi to file the suit was challenged. It was further pleaded that even if the plaintiff was the daughter of Gopal Singh, she was not an heir preferential to the defendants. It was claimed by the defendants that Mst. Hukman had become the absolute owner of the property in dispute on the coming into force of the Hindu Succession Act, 1956, and being possessed of sound disposing mind was competent to make a will. Preliminary objections as to court -fee and jurisdiction were also taken by the defendants. The parties went to trial on the following issues:

(2.) ISSUE No. (1) was decided by the trial Court in favour of the plaintiff and it was conceded by the parties that they were governed by custom when Mst. Gabo died on 13th October, 1952. Under issue No. (3), it was held that some part of the suit land was ancestral while other was non -ancestral. Issue No. (6) was treated as a preliminary issue and decided in favour of the plaintiff. The main contest of the parties centered round issue No. (5) which related to the validity of the impugned will. The trial Court on a consideration of the entire evidence came to the conclusion that Mst. Udham Kaur was possessed of sound disposing mind at the time of execution of the disputed will and she did in fact execute the said will in favour of the defendants appellants for services rendered by them.

(3.) THE plaintiff also produced P. W. 5 Shanti Sarup fingerprint expert, but she did not get the thumb impression of Mst. Hukman marked 'F' on the Bahi account kept with the Cooperative Society. Daroli Kalan, compared with the thumb impressions on the disputed will Exhibit D. 7. The plaintiff also sought to prove that the thumb impressions on the will did not tally with her admitted thumb impression maintained in the register of Puran Chand petition writer, but the expert was not examined by her on this point. The matter was taken up in appeal before the Additional District Judge, Jullundur, who allowed the appeal of the plaintiff and decreed the suit holding that Mst. Hukman did not execute any will in favour of the defendants. Findings on issue No. (5) alone were debated before him. He discarded the statement of Agya Ram on the short ground that he had not stated in his statement that he was an expert in the science of finger print. The evidence of Ram Partap D.W. 3 was not even referred to by him and he relied on certain discrepancies in the statements of the attesting witnesses and a few other circumstances which he considered to be suspicious. Hence the present appeal.