The main legal point established in the judgment is the requirement to prove the due execution of a will and the shift of onus when the authenticity of the will is challenged.

Sandeep Sharma, J.

1. Instant Regular Second Appeal filed under Section 100 of the Code of Civil Procedure is directed against the impugned judgment and decree dated 28.05.2008 passed by learned District Judge, Kullu in Civil Appeal No.27/07, affirming therein judgment and decree dated 10.7.2007, passed by learned Civil Judge(Junior Division), Manali in Civil Suit No.32/05, whereby suit for declaration having been filed by the appellant-plaintiff came to be dismissed.

2. Briefly stated facts, as emerged from the record, are that the plaintiff filed a suit seeking declaration to the effect that she has become owner in possession of land comprised in Khata/Katauni No.631/1045 bearing Khasra No.5224, measuring 5-0-0 bigha, situated in Phati Burua Kothi and Tehsil Manali, District Kullu as per Jamabandi for the year 1988-89 (here-in-after referred to as the ‘suit land’) on the basis of last and final Will dated 1.3.2002 executed by deceased Khekhi Devi. Plaintiff also prayed by way of aforesaid suit that Mutation No.3158, dated 29.6.2002, which has wrongly been attested and sanctioned in the name of defendants, may also be declared wrong, illegal, null and void, inoperative against the plaintiff and defendants be restrained from causing any sort of interference in peaceful ownership and possession of the plaintiff in the suit land. Plaintiff claimed that Smt.Kheki Devi daughter of Uttam Ram, who was unmarried, was owner in possession of the suit land and was her real sister. Plaintiff also claimed herself to be sole legal heir of Smt.Kheki Devi. As per plaintiff, Smt.Kheki Devi was residing at village Goshal Phati Burua Kothi, Tehsil Manali, District Kullu, at her parental house because she was unmarried uptill her death. The plaintiff alongwith her family members used to render services to Smt.Kheki Devi, who, inturn having pleased with the services rendered by the plaintiff and her family members, executed last Will dated 1.3.2002 bequeathing thereby suit land in favour of plaintiff. Plaintiff-appellant claimed that Smt.Kheki Devi, after executing Will dated 1.3.2002 in her favour, deposited the same with Registrar, Kullu vide document No.1 dated 1.3.2002. Plaintiff further averred that Kheki Devi died on 10.6.2002 at village Goshal and her last rites were performed by her. Plaintiff further claimed that defendant No.1 has sold the entire suit land to defendant No.2 in order to deprive her from the right which accrued to her after execution of Will in her favour by Smt. Kheki Devi and as such sale deed is mere paper entry and is not binding upon her. Plaintiff further claimed that since no possession was ever delivered to defendant No.2, sale deed being a mere paper entry cannot be looked into. Plaintiff further claimed that in terms of Will dated 1.3.2002 executed by deceased Kheki Devi, she has inherited the entire estate of deceased and has become owner in possession of the suit land. Plaintiff further alleged that defendant in the month of June, 2004 along with one Chattar Singh of village Goshal came to the plaintiff and asked her to leave the entire suit land because they have become owners of the suit land. Subsequently, on inquiry, it emerged that the defendant, in connivance with revenue officials, has got mutation No.3158 dated 29.6.2002 attested in his favour on the basis of some forged and fictitious Will. Since, both the Patwari Halqua as well as the defendant refused to enter and admit the last and final Will of Kheki Devi, she was compelled to file the instant suit.

3. Both the defendants, by way of detailed separate written statements, raised various preliminary objections qua maintainability and competency of the suit, suit being bad for non-joinder of necessary parties, locus standi, plaintiff estopped by her acts and conduct to file the present suit and suit not being properly valued for the purpose of court fee and resisted the aforesaid claim of the plaintiff. Aforesaid defendants specifically stated