(1.) The present appeal is directed against the decree, dated 23.1.1998, of the first Appellate Court, whereby the judgment and decree of the trial Court dismissing the suit of the respondent -plaintiff has been set aside and the suit of the respondent -plaintiff decreed and it has been declared that the respondent -plaintiff is the owner of the suit property.
(2.) Facts relevant for the decision of the appeal may be summarized thus. Respondent -plaintiff filed a suit for declaration that she had inherited the estate of her husband Nokhu Ram on his -death, which took placed on 6.12.199.0, being his sole legal heirs, as he had no son or daughter or any other Class -1 heir and that the Will set -up the appellant -defendant whereby half of the suit property had allegedly been bequeathed to him by late Nokhu Ram was invalid. It was alleged that Nokhu had no Class -1 heir except the respondent -plaintiff and, therefore, on his death she had inherited his entire property. It was further alleged that Nokhu Ram had never executed any Will but the appellant -defendant set -up a Will dated 29.10.1990 and claimed that it had been executed by Nokhu Ram, bequeathing his property, in equal shares, to him and the respondent -plaintiff. Nokhu Ram, it was alleged, did hot possess sound disposing mind nor could he speak at the time when the Will was allegedly executed by him, because had been suffering from cancer of lungs for the last two years and, as such, the question of his having executed any Will could not arise.
(3.) Appellant -defendant contested the suit and alleged that Nokhu Ram voluntarily executed a Will and that before executing the said Will he had convened a gathering of some persons (named in the written statement) and in that gathering he declared in the presence of the respondent -plaintiff that he wanted to make a Will in respect of his property giving half of it to the respondent -plaintiff and the other half to the appellant -defendant, because the latter had been serving him and had also undertaken to pay his debts and that a few days thereafter he had gone to Sundernagar and got the Will scribed from a Petition Writer in the presence of two witnesses and then executed it and thereafter the witnesses attested it. He further stated that the Will was presented for registration to the Sub Registrar, who read out the contents thereof to Nokhu Ram in the presence of the identifier (of the testator) as also the attesting witnesses and Nokhu Ram, after admitting the contents of the Will to be correct, thumb impressed the same in the presence of the Sub Registrar also.