DHIANU Vs. THUNIA

JUDGEMENT

(1.) THE defendant has come in appeal against judgment, decree dated 28.2.2005 passed by learned Additional District Judge (Fast Track Court), Una in Civil Appeal No. 74/97 RBT 90/04/1997 partly allowing the appeal by holding that Will Ext.PW -2/A in favour of Thunia and Will Ext. DW -3/A in favour of Dhianu are wrong and illegal. The estate of Sihnu testator shall devolve as per natural succession. The respondent/ plaintiff has filed the cross objections.

(2.) THE facts, in brief, are that respondent Thunia filed suit for declaration that he has succeeded to the entire estate of Sihnu and is owner in possession of the suit land more specifically detailed in the judgment of the trial Court, on the basis of Will dated 10.8.1990 Ext. PW -2/A, the entries in the name of appellant/defendant Dhianu vide mutation No. 699 dated 23.5.1991 are wrong, fictitious, illegal and not binding on the rights of the respondent/plaintiff.

(3.) I have heard Mr. B.N. Mehta, learned Counsel for the appellant and Mr. Sanjeev Sood, vice Mr. K.D. Sood, Advocate learned Counsel for the respondent and gone through the record. It has been submitted on behalf of the appellant that execution of Will dated 18.7.1990 Ext.DW -3/A has been proved on record. The learned lower appellate Court has not considered that the Will dated 18.7.1990 is registered and to a registered document presumption under Section 60 of the Indian Registration Act, 1908 is attached. He has also submitted that as far as Will dated 10.8.1990 Ext.PW -2/A is concerned, the two Courts below have concurrently held that Sihnu had not executed Will Ext.PW -2/A. This is a finding of fact and in second appeal the respondent by way of cross objections cannot assail such finding of fact. He has submitted that no suspicious circumstance has been proved on record so as to throw out the Will Ext.DW -3/A. It has been submitted that learned lower appellate Court has drawn wrong inference from the material on record and has erred in returning the finding that execution of Will dated 18.7.1990 Ext.DW -3/A has not been proved. The learned Counsel appearing on behalf of the respondent has submitted that the two Courts below have erred in returning the finding that Will dated 10.8.1990 has not been proved. He has submitted that respondent/plaintiff has proved execution of Will dated 10.8.1990 and, therefore, respondent/plaintiff is entitled to inherit the estate of Sihnu on the basis of Will Ext.PW -2/A. The learned Counsel for the respondent has submitted for acceptance of cross objections. SUBSTANTIAL QUESTIONS OF LAW No. (i) to (iv):