DAYAL AND ANOTHER Vs. DEEWAN AND OTHERS

JUDGEMENT

(1.) This Regular Second Appeal is directed against the judgment and decree dated 30.8.1997 rendered by the learned Additional District Judge, Solan in Civil Appeal No.54-NS/13 of 1994.

(2.) Material facts necessary for the adjudication of this Regular Second Appeal are that deceased respondent plaintiff Smt. Gango (hereinafter referred to as 'plaintiff' for convenience sake) instituted a suit for declaration and possession against the appellants-defendants (hereinafter referred to as "defendant" for convenience sake) as well as against proforma respondent, namely, Basanti. She was proceeded ex parte vide order dated 1.4.1998. Case of the plaintiff, in a nutshell, is that Jawala son of Sh. Mangal, resident of Barotiwala, Pargana Doon, Tehsil Kasauli, District Solan died on 26.1.1988, who was widower at the time of his death and also issueless and the plaintiff and proforma respondent Basanti were his real sisters and were entitled to succeed to all the movable and immovable properties left behind by the deceased. Jawala left behind 6 bighas 18 biswas of land in village Barotiwala comprising Khewat No. 53, Khatauni No. 90, Khasra No. 87 measuring 1 bigha 11 biswas and khewat No. 22 min, Khatauni No. 45 min and Khasra Nos. 58/2, 60/1, 85/1 and 05/3 measuring 5-7 bighas. Jawala was old and sick man. His mental faculties were affected about six months before his death. Defendants, namely, Polo and Dayal taking advantage of his feeble mind, got the "will" executed in their favour on 16.1.1988 instead of power of attorney. Thereafter, they got the mutation No. 636 dated 15.2.1988 sanctioned in their favour in collusion with the revenue authorities. According to the plaintiff, the execution of the will was illegal, unlawful being the result of fraud, misrepresentation, undue influence and coercion. According to the plaintiff, the defendants had no right to succeed the property.

(3.) Suit was contested by the defendants. According to them, the "will" was executed by Jawala for the services rendered by them and the plaintiff was not entitled to the same at all and she had no concern with the same. According to them, mental faculties of Jawala were intact and the "will" was voluntarily executed by him. No replication was filed by the plaintiff. Issues were framed by the trial court on 26.5.1989. Trial court decreed the suit on 16.12.1993. Thereafter, defendants preferred an appeal before the learned Additional District Judge, Solan. He dismissed the same on 30.8.1997. Hence the present Regular Second Appeal. It was admitted on the following substantial questions of law: 1. When the plaintiff does not deny the execution of a document and merely challenges the will on the ground of having been obtained by fraud and misrepresentation, unless onus is discharged by the plaintiff in proving such facts, can the will be held to be not a valid document? 2. When the objections raised by the plaintiff/respondent before the authorities attesting the mutation on the basis of the will were rejected and the appeals also dismissed, whether the courts below on their own hypothetical grounds, can hold the will to be an invalid document without there being any evidence available on the record to the contrary? 3. Whether the certificate of the Sub-Registrar on the registered will carries the presumption of truth to the fact narrated therein? Can such certificate be ignored to hold that the deceased was not in a proper senses when the will was executed?