HANS RAJ Vs. SUNEET SINGH AND OTHERS

JUDGEMENT

(1.) This appeal stands directed against the impugned judgement of the learned Additional District Judge, Fast Track Court, Chamba, Himachal Pradesh, whereby it allowed the appeal preferred before it by the defendants/respondents herein and set aside the judgment and decree, rendered on 27.04.2004 by the trial Court.

(2.) The facts necessary for rendering a decision on the instant appeal are that Gian Chand predecessor in interest of the parties was owner in possession of the suit property i.e. land comprising Khata Khatauni No. 54/58, Khasra Nos. 725, 730, 732, 733, 734, 735, 736, 769, 770, 772 and 1357/1321- 1322 measuring 4-16 bighas and two houses situated in Khasra No. 1092, khata Khatauni No. 124 min/139 Abadi-Deh, situated at Mauza Sherpur, Pargana Sherpur, Tehsil Dalhousie, District Chamba, H.P. Late Gian Chand expired on 6.11.2000 leaving behind the plaintiff and defendants as his legal heirs. After the death of said Gian Chand, defendant No.1 reported the matter to the Patwari concerned and produced a Will allegedly executed by late Gian Chand and A.C 2nd Grade without summoning the plaintiff and proforma defendants attested the mutation of the estate of late Gian Chand on 7.6.2002 vide mutation No. 571. This mutation is against the law and rules. It has been averred that late Gian Chand was a chronic patient of Asthma for the last four years and was under the influence of defendant No.1. He was not in fit mental state to understand his good and bad and was not in proper senses to execute a Will. The plaintiff has started his business in Gujrat and in his absence late Gian Chand was under the complete control of defendant No.1. The alleged will is not a genuine will and is not binding upon the rights of the plaintiff and proforma defendants. Therefore, it has been prayed that this suit be decreed for declaration to the effect that the plaintiff is one of the legal heir of late Gian Chand and is owner in possession of 1/5th share of the suit property. The Will dated 2.5.2000 is a fake document and not executed by late Gian Chand out of his free will. It has also been prayed that this mutation No. 571 of 7.6.2002 be declared null and void. It has further been prayed that defendant No.1 be restrained permanently from alienating the suit property.

(3.) The defendant No.1 filed written statement and thereby resisted and contested the suit of the plaintiff by taking preliminary objection qua maintainability, limitation, estoppel and suppression of material facts. On merits, the defendant termed the averments made in the plaint as wrong and incorrect and pleaded that the disputed property belongs to him as per valid Will of 2.5.2000. It has been denied that late Gian Chand was a chronic patient of Asthama and was having feeble mind and under his influence. It has been denied that Gian Chand was not in proper state of mind to understand his good and bad. It has been submitted that the plaintiff was settled at Gujrat and never bothered the parents and stopped visiting the family at home. The father and mother of the plaintiff are being looked after by him, since long, therefore, out of his love and affection Gian Chand executed a valid and genuine will in his favour. Therefore, dismissal of the suit is sought.