KAMLESH KUMARI Vs. RUMAL SINGH

JUDGEMENT

(1.) The instant appeal is directed, against, the concurrently recorded verdicts by both the learned Courts below, whereby, the plaintiff's suit for rendition, of, a decree for declaration, as well as for, rendition of a decree for possession qua the suit khasra number(s) , was, hence decreed.

(2.) Briefly stated the facts of the case are that the plaintiff had filed the suit for declaration and possession against the defendant on the averments that the land comprised in Khata No.19 min, Khatauni No.41 min., Khasra Nos. 135 and 136, kita 2, measuring 0-09-65 HM, Khata No.20 min, Khatauni No.42 min, khasra No.233, measuring 0-00-87 HM, Khata No.21 min, Khatauni Nos. 43, 44, 45, Khasra Nos. 276, 272, 273, 288, kita 4, measuring 0-63-76 HM, 1/8th share in Khata No.22, Khatauni Nos. 46, 47, Khasra Nos. 249, 215, kita 2, measuring 0-65-49 HM, 54/74 share, situated in Mohal and Mauza Galore, Tehsil Nurpur, District Kangra, H.P. (hereinafter referred to as the suit land) , as per jamabandi for the year 1993-94 was previously owned and possessed by deceased Ratnu, who had inherited the suit property vide mutation No.40. It is averred that deceased Ratnu was old and illiterate person and not conversant with the affairs of the world and she was unmarried and due to illness died on 1.1997, leaving behind the plaintiff, his nephew as only legal heir. The plaintiff is said to be deceased Ratnu's sister's son. It is averred that the plaintiff has brought up the deceased from the very beginning, as the parents of the plaintiff had expired when he was five years old and plaintiff used to look after Ratnu. It is further averred that the plaintiff being the only legal representative of deceased Ratnu is entitled to inherit his entire estate. It is submitted that the defendant has no concern with the suit land as she is not related to deceased Ratnu. It is alleged that at the time of death, the plaintiff was not at home and on coming to know about the death of deeased Ratnu, plaintiff immediately come to his home to perform the last rites. It is avered that at the time of death, Ratnu was ill for long time and lost all strength of body and mind and was unfit to give detail of property and was not of sound disposing state of mind and he never executed any Will. It is alleged that after some days from the death of deceased Ratnu, defendant proclaimed that she has got the Will from deceased Ratnu in her favour just one day before his death and she will inherit the entire estate of deceased Ratnu. It is alleged that, the defendant has forged Will which was got executed in connivance with the marginal witnesses and the same is null and void and in effective on the rights of the plaintiff and is surrounded by suspicious circumstances and there was no occasion for Ratnu to execute the Will in favour of the defendant, who never resided with him nor rendered services during his life time. Hence the suit.

(3.) The defendant contested the suit and filed written statement, wherein, he has taken preliminary objections inter alia maintainability, locus standi, cause of action, non joinder of necessary parties and concealment of material facts. On merits, the ownership and possession of Ratnu till death has been admitted. It is admitted that Ratnu was illiterate and bachelor and the rest facts have been denied. It is alleged that deceased Ratnu during his life time on 31.1.1997 executed a Will in favour of the defendant before the Sub Registrar, Nurpur in presence of Jai Chand, Namberdar and Man Singh, which was scribed by Shri Mangat Ram, Petition Writer. It is denied that the respondent was brought up by the defendant. It is further denied that the plaintiff looked after Ratnu and rendered services to him, during his life time. It is further alleged that the deceased was being looked after by the defendant, who happens to be his cousin and out of love and affection and services rendered, the deceased executed a valid Will in favour of the defendant. It is further denied that the plaintiff is the legal heir of Ratnu. It is alleged that the plaintiff was in the village, when Ratnu died and the plaintiff never rendered services to the deceased. It is further alleged that after the death of Ratnu, defendant perform all the rituals of deceased and went to Haridwar. It is further alleged that at the time of execution of the Will, deceased was in senses, without any fear and pressure. It is alleged that the suit land was earlier being cultivated by her husband and they rendered services towards deceased during his life time. It is denied that the will is a forged document, executed in connivance with the witnesses. It is further denied that the property of the deceased was predominantly agriculturist and governed by the Kangra customary law. It is denied that the power of alienation of ancestral property was restricted. It is alleged that the suit land was not joint Hindu ancestral property. It is alleged that the possession of the suit property was already with the defendant during the life time of deceased and mutation has now been attested on the basis of registered Will.