IMPORTANT POINT
Locus to maintain an appeal.

Judgment :-

Dipak Misra, J.

Leave granted.

2. One Sarabjit Singh filed Civil Suit No. 29 of 1995 for possession of the suit land to the extent of his share treating the will alleged to have been executed in favour of the defendant Nos. 1 to 4 as null and void with the consequential prayer for restraining them from alienating the suit property in any manner. It was set forth in the plaint that the suit land in the hands of his father, Shiv Singh, was ancestral coparcenary and Joint Hindu Family property and he, along with his brothers, the defendant Nos. 5 and 6, constituted a Joint Hindu Family with the father and mother. It was alleged that the defendant Nos. 1 to 4, on the basis of a forged will, forcibly took possession of the land. It was set forth that by virtue of the will, the plaintiff and the defendant Nos. 5 and 6, the co-owners, have been deprived of the legal rights in the suit land. It was the case of the plaintiff that the will was not executed voluntarily by his father, Shiv Singh, and it was a forged one and, therefore, no right could flow in favour of the said defendants.

3. The defendant Nos. 1 to 4 entered contest and supported the execution of the will on the basis that it was voluntary and without any pressure or coercion. That apart, it was contended that the rights of defendant No. 5 had not been affected as a registered gift was executed on 31.3.1980 by late Shiv Singh. The claim of the plaintiff was strongly disputed on the ground that the will had already been worked out since the revenue records had been corrected. The defendant No. 6 resisted the stand of the plaintiff contending, inter alia, that the property was self-acquired and the execution of the will was absolutely voluntary. The defendant No. 5 filed an independent written statement admitting the claim of the plaintiff. It was set forth by him that the suit land was ancestral, a Joint Hindu Coparcenary property and his father Shiv Singh, being the Karta, had no right to bequeath the same in favour of defendant Nos. 1 to 4 to the exclusion of the other rightful owners. That apart, it was contended that the will was vitiated by fraud. A prayer was made to put him in possession of the suit land after carving out his share.

4. The learned trial Judge framed as many as four issues. The plaintiff examined himself as PW-1 and tendered number of documents in evidence which were marked as Exts. P-1 to P-17. The defendant Nos. 1 to 4 examined number of witnesses and got seven documents exhibited. The defendant No.5 supported the evidence led by the plaintiff. In rebuttal, the plaintiff examined the Record Keeper of Medical College Rohtak as PW-2 and Dr. A.K. Verma as PW-3 and brought on record four forms, Exts. P-18 to P-19A. The learned trial Judge, on appreciation of the evidence brought on record, came to hold that the suit land was a Joint Hindu Family property; that defendant Nos. 1 to 4 had failed to dispel the suspicious circumstances in the execution of the will in favour of defendant Nos. 1 to 4 and, hence, the will was null and void; that the mutation did not create any impediment on the rights of the plaintiff and other natural heirs of the testator; and that they are entitled to get joint possession of the suit land as per their shares in accordance with the law of natural succession.

5. On an appeal being preferred by the three beneficiaries of the will (as the original defendant No. 1 had died), the learned appellate Judge came to hold that the property held by Shiv Singh, the predecessor-in-interest of the parties to the suit, was not ancestral, but self-acquired and, hence, he was competent to alienate the same in any manner as he liked; that the will dated 6.7.1989, Exh. D-2, in favour of original defendant No. 1, his wife who had expired by the time the appeal was filed and the defendant Nos. 2 to 4, his grandsons, was validly executed and that the finding recorded by the learned trial Judge on that score was unsustainable. Be it noted, th