SWARAN KANTA Vs. YOGINDER SINGH

JUDGEMENT

(1.) THE plaintiff's suit for declaration qua the suit property for taking the character of ancestral and coparcenary property, hence, forbidding the deceased/testator Amar Singh, father of the parties at contest, executing a Will Ex. D -2, came to be decreed by the learned trial Court. The defendants were aggrieved by the judgment and decree of the learned trial Court, hence, preferred an appeal before the learned first Appellate court and the learned first Appellant Court, in, its impugned judgment and decree, dismissed the suit of the plaintiff, consequently, allowed the appeal preferred by the defendants before it. The plaintiff, is, now aggrieved by the impugned judgment and decree of the learned first Appellate Court, hence, has preferred the instant appeal before this Court.

(2.) BRIEF facts of the case are that the land comprised in Khata Kahatauni No. 305/389, Khasra Nos. 4102, 4189, 5320, 5321 measuring 140 sq. yards 3 sq. feet, land comprised in Khata Khatauni No. 312/396, khasra No. 4185 to the extent of half share measuring 10 sq. yards, 2 sq. feet situated in Mohalla Bangotu, Chamba town and land bearing Khata Khatauni No. 1/1, Khasra Nos. 261, 262, 264, 294, 781, 783, 814, 815, 842, 851, 875, 877, 923, 935, 985 and 986, measuring 16 bighas 16 biswas, situated in Mohal Thanei and the land comprised in Khata Khatauni No. 1/1, Khasra No. 590, measuring 3 biswas, situated in Mohal Kuthed was in the ownership of father of plaintiff. Proforma defendants No. 3 to 6 and defendants No. 1 and 2, from the time of his ancestors. It is alleged that Amar Singh inherited the suit property from his forefathers and thus he was not competent to bequeath the said property. The defendants No. 1 and 2 are deposed to have exercised the influence and in the absence of proforma defendants, got the will dated 24.5.1985 attested and registered before the Sub Registrar, Chamba in their favour and in favour of the plaintiff and that after the death of Amar Singh, in the month of April, 1991, the defendants on the basis of Will got mutation No. 3144, dated 4.2.1992 in respect of property situated at Chamba town (I), mutation No. 316, dated 29.6.1993 in respect of property situated at Thanei and mutation No. 246 dated 29.6.1993 in respect of property situated at Kuthed, Tehsil Churah, District Chamba, attested in the absence and without notice to the plaintiff and in the absence of proforma defendants by taking advantage of old age and feeble mind of Amar Singh, got the will executed in their favour instead of dividing the property in equal shares. The defendants Nos. 7 to 8 have been arrayed as proforma defendants as they are co -owners in the khata. The defendants are deposed to have been asked time and again that the suit property is joint Hindu coparcenary property, therefore, the same be divided equally but all in vain. Hence, the suit for declaration that Amar Singh son of Govind son of Labh Singh has been coming in possession of the suit property from the time of his ancestors and thus, he was not legally competent to execute any Will and thus the mutation Nos. 3144, 316 and 246 attested on the basis of Will be declared null and void and the plaintiff, defendants No. 1 & 2 and proforma defendants No. 3 to 6 be declared entitled to suit property in equal share.

(3.) THE plaintiff/appellant filed replication to the written statement of the defendants/respondents, wherein, he denied the contents of the written statement and re -affirmed and re -asserted the averments, made in the plaint.