SMT. HARDEV KAUR Vs. SMT. JITTO AND OTHERS

JUDGEMENT

(1.) The appellant is the defendant No. 1, who lost before both the learned Courts below, has filed this Regular Second Appeal. The parties shall be referred to as the plaintiff and defendants.

(2.) The case of the plaintiff before the learned Courts below was that late Sh. Chhota Ram S/o Sh. Naraina was the owner in possession of the land comprised in Khata Khatauni No. 34/86, Khasra Nos. 183, 188, 191, 194 and 195, Kitas 5, measuring 00-42-21 Hectares, situated in Mauza Dharamkot (hereinafter referred to as the suit land). He (Chhota Ram) had three daughters. Prior to his death, Chhota Ram was ill and bed-ridden and died in the year 2003, leaving behind plaintiff, defendant No. 1, defendant No. 3, his widow Smt. Brahmi Devi and his third daughter Kanta had pre-deceased him and defendants No. 4 to 7 are her sons and daughters. It was averred that even though the plaintiff was married to Lal Singh and settled in Village Harpalpur in Punjab, but she used to visit her parental house and participate in family function and other events. As per law, on the death of Chhota Ram, she alongwith two sisters was entitled to inherit the estate of late Sh. Chhota Ram, but the defendant No. 1 claiming herself to be the sole owner of the estate on the basis of mutation No. 240 dated 29. 2003 which was attested on the basis of some alleged Will of her father. It was the specific case of the plaintiff that she was neither summoned nor afforded any opportunity of being heard at the time of mutation and her father had otherwise no reason to execute the Will by excluding her and other heirs from their legitimate right. On the strength of these allegations, the plaintiff sought a decree for declaration of her title alongwith other legal heirs of her deceased father in the suit land and also challenged the mutation and the Will being fraudulent and illegal and further claimed possession.

(3.) The defendants No. 1 and 2 resisted and contested the suit by raising preliminary objections regarding maintainability, cause of action, estoppel and limitation. On merits, the contesting defendants contended that since deceased Chhota Ram had no male issue, therefore, marriage of defendant No. 1 was solemnized with Amarjeet Singh with the understanding that he shall stay back in the house as 'Ghar Jamai' and look after and maintain his parents-in-law. It was further contended that after the marriage, Amarjeet Singh started residing in the family and was looking after and serving deceased Chhota Ram and defendant No. 2 Smt. Brahmi Devi and being satisfied with the services of Amarjeet Singh and out of love and affection, the deceased on 10. 5. 2000 while in a sound state of mind, executed a Will in favour of defendant No. 1 by scribing it through Sh. Rajinder Sharma, Advocate, Badrinagar in the presence of two attesting witnesses. It was also contended that the plaintiff had never looked after and maintained Sh. Chhota Ram after her marriage and had been residing in Punjab. It was further contended that the plaintiff had the knowledge of the attestation of mutation and despite this, she did not choose to appear before the authorities. These defendants further claimed that the original Will was examined by the A. C. 2nd Grade, Paonta Sahib, but the same was not returned. However, the defendant No. 1 had obtained a photocopy of the document and after receiving summons of the suit, defendant No. 1 searched for the original Will in the Patwar-khana as well as in the house, but the same could not be traced and only a photocopy of the same was found in the house and the same was being produced. Accordingly, the defendants No. 1 and 2 prayed for dismissal of the suit.