BAKSHA SINGH Vs. GIRDHARI SINGH

JUDGEMENT

(1.) Under challenge in this second appeal under Section 100 CPC is the judgment dated 4.5.2017 passed by the Addl. District Judge, Dausa in Civil Regular Appeal No. 16/2012 affirming the judgment and decree dated 3.3.2012 passed by the Addl. Civil Judge (Sr. Division) Dausa whereby the plaintiffrespondent's (hereafter 'plaintiff's') suit for cancellation of Will dated 16.11.2000 and permanent injunction was decreed.

(2.) I have heard counsel for the defendantappellant (hereafter 'the defendant') and perused the impugned judgments.

(3.) By the two concurrent judgments dated 4.5.2017 and 2012, the courts below have come to a finding of fact that the Will dated 16.11.2000 purportedly executed by late Bhanwar Singh, father of the plaintiff Girdhari Singh as also of the defendant Baksh Singh, Ratan Singh, Chand Kanwar and the grand father of the defendants Mahaveer Singh, Prem Kanwar, Dilip Singh, Mahendra Singh, Sajjan Singh, Rajendra Singh, Virendra Singh and Surendra Singh was unsustainable as the requisite onus probandi was not discharged by the defendants and the suspicious circumstances obtaining from the plaintiff's evidence on record with regard to execution of the Will not adequately explained to the court's satisfaction. The courts below took note of the evidence on record including that of DW 4 Jagdish Prasad Gupta that the late Bhanwar Singh at the time of purported execution of the Will dated 16.11.2000 was about 100 years old, incapable in mind and intent and in fact confined to bed in a seriously ill condition. Further two days following the alleged execution of purported Will dated 16.11.2000, Bhanwar Singh had indeed expired on 18.11.2000. The courts below also took into consideration that there were major contradictions in the evidences of the defendants' witnesses and the contesting defendants had not been able to establish as to who was the scribe of the will, from whom stamps on which the purported Will was executed were purchased and by whom. Even the date of execution of the Will was unclear. The courts below also took note of the fact from the evidence on record that one of the beneficiary of the Will, the defendant Baksh Singh was present at the time of purported execution of the Will dated 16.11.2000 which was a matter of relevance in the context of the overall evidence on record. The courts also noted that its conclusions on the appreciation of evidence that the testator Bhanwar Singh was not capable and of free mind when he purportedly executed the Will dated 16.11.2000 were further buttressed by the fact that except for defendant Baksh Singh and his wife Manohar Kanwar (now deceased and represented by her LRs) , all other defendants in the plaintiff's suit had in the written statement admitted that the Will dated 16.11.2000 was fraudulently obtained and late Bhanwar Singh was on the date of its purported execution was incapable of executing it on his free intent/ consent.