PRADEEP KUMAR Vs. SMT. SHANTI DEVI AND ORS.

JUDGEMENT

(1.) THIS is the Plaintiff's appeal against the concurrent findings of two courts below dismissing suit instituted for possession of 1/4 th share of land and shop comprised over land bearing khata No. 64, khatauni No. 121,122, khasra No. 1968, 1969, 1970, 2304 and 2313, 5 plots measuring 182.16 sq. Mtrs. situated in Tika Bhaean, Tehsil and District Kangra. The Plaintiff pleaded that Butalia Mal was co -owner in possession of the suit property which also consisted of a house and shop. He died in 1978. The Plaintiff and the three Defendants are her daughters who were to inherit the estate. It was pleaded that Defendant No. 1 respondent Santi Devi set up a 'Will' Ext.DW1/A purported to have been executed by the deceased Butalia Mal in the year 1976 which was registered after his death after a long interval in the year 1980. Pursuant to the registration etc. of this will, order of mutation was passed which was challenged before the Commissioner. The Plaintiff pleads that there is no will in existence and the will set up is fictitious and in the alternative if it is proved, it is the outcome of fraud and undue influence. It is also pleaded that no such will could have been executed by the deceased as he was not in a sound disposing state of mind and that the parties are governed by the custom of 'Khatries' of Hoshiarpur under which there can be no testamentary disposition. The case of the Plaintiff is that in 1978 when Butalia Mal died, she was living with the children in his house and they were forcibly turned out by Respondent -Defendant No. 1.

(2.) THE suit was resisted by the Defendants on a number of grounds. Nine issues were settled by the learned trial Court. On the crucial issues especially the issue relating to the execution of the will, the Court found against the Plaintiff on the question of custom as pleaded. The court negatived the contentions reused and dismissed the suit of the Plaintiff. The Plaintiff appealed. The learned District Judge affirmed the findings of the courts below. The Plaintiff has challenged the findings of both the courts below. This appeal was admitted by this Court on 10.11.2000 on two questions of law:

(3.) LEARNED Counsel appearing for the Petitioner urges that the recitals in the will Ext.DW1/A are contrary to the evidence which has been brought on record of the case. The testator was not in a sound disposing state of mind and therefore, even if the document be accepted as having been executed by the deceased, it would not govern testamentary succession to the estate of the deceased. He submits that on the day of the purported execution of the will, the testator was aged about 90 years and that by itself was a sufficient ground to presume that he was not in a sound disposing state of mind.