The main legal point established in the judgment is the interpretation and application of Section 80 of the Indian Evidence Act in determining the validity of a Will and the surrounding suspicious circumstances.

Hemant Gupta, J.

1. The plaintiff is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court, whereby suit for possession claiming 1/3rd share in land measuring 99 kanals 1 marla, owned by Sawan Singh son of Sahab Ditta was dismissed in appeal.

2. Plaintiff Sadhu Singh had two brothers, namely, Maghi Singh and Sawan Singh. Maghi Singh died during the lifetime of Sawan Singh. On 15.5.1977 Sawan Singh died after the death of Maghi Singh. Sawan Singh was owner of l/3rd share, in the agricultural land in village Kheri Jarnkhelan Taraf as mentioned in para No. 1 of the plaint and l/9th share in the land mentioned in para 3(c) of the head note of the plaint. It is the case of the plaintiff that he being brother of the deceased Sawan Singh is a preferential heir to succeed the property of the deceased in preference to the deceased, who are the sons of the pre-deceased brother. The plaintiff challenged decree dated 30.4.1977, alleged to have been obtained by defendants No. 1 to 4 from the Court of Sub Judge, 1st Class, Bassi. It was alleged that the said decree was nullity and confers no title or interest in the property in dispute to the defendants. It is, inter-alia alleged that the suit dated 30.4,1977 was sham and fictitious one; was not signed and verified by the plaintiffs and that such suit was decided on the same day on the alleged admission of the defendant Sawan Singh.

3. The defendants not only relied upon the decree dated 30.4.1977 as legal and valid but also asserted that Sawan Singh has executed his last Will dated 26.10.1975 of his. entire immovable property in favour of defendant Nos. l to 4 and thus, it was alleged that the suit is liable to be dismissed. Issue No. 1 and 2 are the material issues. Issue No. 1 is to the effect whether the decree dated 30.4.1977 is a nullity and not binding on the plaintiff and Issue No. 2 is whether Sawan Singh has executed a valid Will in favour of defendant Nos. 1 to 4.

4. The learned trial Court decided both the issues against the defendants and thus, decreed the suit. Under issue No. 1, it was found by the learned trial Court that there was no dispute between the defendants and Sawan Singh, which could be settled by family arrangement and that the arrangement was mere transfer of property. It was also held that the identity of the person, who made statement in the court on 30.4.1977 is not proved and consequently held that the decree dated 30.4.1977 has been obtained by misrepresenting the facts and producing a fictitious person in place of real Sawan Singh. On issue No. 2, the Court found that the Will is surrounded by suspicious circumstances, inter-alia, for the reason that the Will was not produced at the time of sanction of the mutation of the estate of Sawan Singh and the mutation was sanctioned in favour of the plaintiff. The original Will or its photocopy was not produced by the defendant in the present case along with the written statement and that the photocopy of the Will on record, does not bear the initials of the Presiding Officer. The said fact was taken into consideration to show that the Will, was subsequently filed with the suit some time-during the proceedings of the case; in the previous suit which was decreed on 30.4.1977, the defendants have not alleged in the plaint the execution of any Will by Sawan Singh deceased, resident of Village Kheri Jarnkhelan Taraf and that the testator was ill for sometime before his death; the Will was executed at Village Gharaun, 15 miles from his village. One of the marginal witnesses, namely, DW4 Hardayal Singh is father-in-law of beneficiary Jagir Singh. DW2 Amar Singh (attesting witness) and another attesting witness DW6 Banarasi Dass are also residents of Village Gharuan.

5. The learned trial Court found that the register maintained by the Scribe is not complete and entries exist in haphazard manner and that first entry was made on 2.1.1972 and the last entry was made on