JUDGMENT :-

S.B. Sinha, J.

1. Leave granted.

2. Ram Devi, the testatrix, widow of Jiwan Singh resident of Village Gharuan, Tehsil Kharar, District Ropar, Punjab, whose legal heirs and representatives are the appellants, executed a will on or about 30.3.1962 when she was aged about 75 years of age. She breathed her last on 19.6.1990. To show the relationship between the parties, we may at the outset notice the genealogical table.

Admittedly, the two surviving daughters of the testatrix, namely, Smt. Gurdial Kaur alias Dialo and Smt. Kakko were married and had been living at far away places. Respondent being the beneficiary under the said Will filed a suit in the year 1993 against the appellants, inter alia, praying for setting aside an order of mutation passed in their favour on the premise that relying on or on the basis thereof, the appellants had threatened to alienate the suit land and dispossess him therefrom. Plaintiff Respondent in his plaint alleged that during the life time of the testatrix, he used to look after her and in fact she expired in the house of his daughter Iqbal Kaur.

3. Admittedly, she had four daughters, out of whom the defendants were alive but were disinherited by her in the said Will. However, when an order of mutation was passed in favour of appellants, the said suit was filed.

4. Appellants in their written statement denied and disputed the contentions raised by the plaintiff that Ram Devi used to be looked after by the plaintiff. According to them, no will had been executed by Ram Devi in view of services rendered by him as alleged or at all. According to them, as Jiwan Singh, the husband of Ram Devi was murdered about 60 years back, she lost her balance of mind and had not been possessing sound mental faculties. According to the defendants, she was being looked after by her daughters.

5. The learned Subordinate Judge, 1st Class, Kharar, in view of the pleadings of the parties, framed the following issues:

"1. Whether the plaintiff is owner in possession of the suit land?

2. Whether Smt. Ram Devi executed a legal and valid will dated 30.3.1962 in favour of the plaintiff, if so, its effect?

3. Whether the plaintiff has been mortgagee in possession of land bearing Kh/Kh. No. 25/59 described in head note of the plaint?

4. If issue No. 3 is proved, whether equity of redemption has been extinguished?

5. Whether plaintiff is entitled to decree of permanent injunction prayed for?

36. Whether the plaintiff is estopped by his act and conduct to file the present suit?

7. Relief"

The learned trial judge held that ‘the plaintiff had failed to prove that Ram Devi executed a legal and valid will in his favour out of sound disposing mind.

Inter alia, opining that the plaintiff was an outsider, it was furthermore held:

"Although in the will it finds mention that the legatee Shamsher Singh is nephew of husband of testatrix and that Bijla Singh father of Shamsher Singh helped testatrix at the time of marriage of her daughters, but the plaintiff in his pleadings has nowhere pleaded so, nor did any evidence in that regard. Thus these contentions in the will are obviously contrary to factual position and it comes out that Shamsher Singh is not related to Ram Devi in any way. The plaintiff did not lead even an iota of evidence to establish that he had been looking after and serving the testatrix till her death. Except the solitary statement of plaintiff which is a self-serving, no other person from the village came forward to support the plaintiff on this point. PW4 Pritam Singh the only witness from village Ghruan examined by the plaintiff did not utter even a single word in that regard. The plaintiff did not produce any evidence to prove that he had joint ration card with Smt. Ram Devi and Ram Devi was having a vote at his address. The contention of the plaintiff that Ram Devi expired at Rajpura in the house of his daughter Iqbal Kaur, does not make any sense since he is silent as to what Ram Devi was doing at the hous