The central legal point established in the judgment is the valid and due execution of a Will, emphasizing the capacity of the testator and the statutory rights under the Indian Succession Act.

Sureshwar Thakur, Judge.

This appeal is directed against the impugned judgment and decree, rendered on 11.12.2002, by the learned District Judge, Hamirpur, H.P., in Civil Appeal No. 31 of 1991, whereby, the learned District Judge dismissed the appeal preferred, by the appellant/plaintiff.

2. The brief facts, of the case, are that Sant Ram, the plaintiff instituted a suit for declaration and permanent prohibitory injunction against the defendants, Jasodhan and others and in the alternative, he, prayed for a decree for possession of the suit land being accorded in his favour. The plaintiff avers that Ishar Dass was owner in possession of ¼ share of land comprised in khata No.5, Khatauni No.5 & 6, khasra kita 11, measuring 58 kanals, 1/16 share of land comprised in khata No.8, KhatauniNo.9, 10, 11, 12, khasra kita 9, measuring 70 kanals and 1/16 share of land comprised in Khata No.9, Khatauni No.12 to 21, Khasra kita 35, measuring 405 kanals 19 marlas, as per jamabandi for the year 1979-80, situated in Tika Ghirand, Tappa Kanerad, Tehsil and District Hamirpur (hereinafter referred to as the suit land). The pedigree table of the parties, is, extracted hereinafter:-

Jawahar

_____________________________________________________________

Shyam Mangal Gulaba Har Sukh

______________________________________________________________

Duni Chand Sita Gohga Penu Ishar Dass ______________________________________________________________

Brahmi Saroti Satya Sarwan Jagta Prema Roshan

_____________________________

Kauran Jasodhan Basanta

@Sant Ram

The plaintiff, is, brother’s son of the father of deceased Ishar Dass. Ishar Dass is stated to be dumb, yet he was having sufficient understanding. Plaintiff has been averred to be looking after the deceased Ishar Dass, who was issueless. In lieu of the services rendered by the plaintiff to Ishwar Dass, the latter is averred to be executed a Will, Ex.PW2/A on 13.4.1984 in favour of the plaintiff. Ishar Dass, is, averred to be died all of sudden and on his death the plaintiff inherited his property through Will Ex.PW2/A. The plaintiff produced the Will Ex.PW2/A before the revenue officer but he revenue officer attested the mutation of inheritance of Ishar Dass in favour of the defendants without holding any inquiry. The plaintiff has been averred to be in possession of the land qua the share of Ishar Dass. The defendant did not admit the claim of the plaintiff to have become owner of the share of Ishar Dass on the basis of Will Ex.PW2/A. Hence, the plaintiff was driven to institute the suit for declaration to the effect that he be declared owner in possession of the suit land and for injunction restraining the defendants from interfering in his possession over the suit land and, in, the alternative sought the decree for possession of the suit land.

3. Defendants Nos. 3, 4 and 6 contested the suit while the other defendants were proceeded against ex-parte. Defendants Nos. 3 and 4 have averred in their written statement that Ishar Dass was both dumb and deaf. It is denied that Ishar Dass was living with the plaintiff or he was being looked after by the plaintiff. It is denied that Ishar Dass had executed the Will Ex.PW2/A in favour of the plaintiff as he was not a man possessing sound disposing state of mind, as such, it is contended that Ex.PW2/A, is, a forged document. Furthermore, it is contended that the suit property was ancestral property. The parties are Rajputs by caste, therefore, they are governed by agricultural custom under which Ishar Dass had no right to dispose of the ancestral property by way of Will in favour of the plaintiff. The Revenue Officer is contended to have legally attested the mutation of inheritance of the property of Ishar Dass in favour of the parties.

4. Defendant No.6 in his written statement contended that she was rendering all services and provided amenities of life to Ishar Dass and plaintiff never looked after and maintained Ishar Dass. She,