TARA SINGH Vs. RUPO

JUDGEMENT

(1.) On 11.11.1968 Thakur Singh executed a registered Will and bequeathed his property in favour of Tara Singh his son, Lachhman Singh grandson from his son Sucha Singh and Gurdev Singh grandson from his son Gulzar Singh in equal shares. He excluded his daughters who were married. On the death of Thakur Singh, the legatees filed a suit for declaration that they are owners in possession of the estate left by Thakur Singh on the basis of a registered Will. The trial Court came to the conclusion that the Will was duly proved and decreed the suit. On appeal by one of the daughters of Thakur Singh, the learned Additional District Judge came to the conclusion that the Will was duly proved and endorsed the findings of the trial Court in this behalf and held that the property belonged to Hindu undivided family of which Thakur Singh was Karta. Since there were three male descendants, it was held by virtue of section 30 of the Hindu Succession Act, 1956, (hereinafter called the Act) Thakur Singh had 1/4th share and could make a Will regarding his share only and, therefore, the validity of he Will was good only in regard to 1/4th share of the Hindu undivided family property. However, while moulding the relief the following observations were made :

(2.) On consideration of the entire matter I am of the view that the findings recorded by the two Courts below regarding the due execution of the Will deserves to be accepted and the learned counsel could not show as to how the findings could be interfered with in second appeal.

(3.) The only argument worth noticing raised was that the original Will was not produced and the trial Court erred in allowing the secondary evidence to be produced. I have gone through the order of the trial Court at page 29 of the record as also para 7 of the lower Appellate Court judgment and find that the two Courts below gave a firm finding that the Will was lost and allowed secondary evidence to be produced. The Will was registered and is in favour of all the three male lineal branches excluding two daughters, who were married long time back. The Will was executed on 11.11.1968; whereas Thakur Singh died somewhere in 1978. May be that in this long interval, the Will was lost. I am not inclined to interfere with the findings of fact recorded by the two Courts below that the Will was lost.