IMPORTANT POINT
Will--If the breach of natural succession has to occur, the beneficiary of the Will has to make an averment to this effect.
Mutation--By virtue of mutation proceedings executed by the revenue authorities, the natural succession cannot be kept in abeyance.

Mr. Kanwaljit Singh Ahluwalia, J. (Oral) - Banta Singh died about 9/10 years before filing of the suit by plaintiff-respondents. He was survived by Dhan Kaur widow-defendant No.4 to the suit; three sons namely Teja Singh, Mohinder Singh and Ajit Singh-defendants No.1 to 3 respectively to the suit; and three daughters namely Banso and Mindo-defendants No.5 and 6 to the suit and Tejoplaintiff to the suit.

2. Present appeal has been filed by defendants to the suit. Plaintiff-respondent claimed that after the death of Banta Singh, all the legal heirs became owners in equal share, i.e. 1/7th share each. She further stated that her father had not executed any valid Will with a sound disposing mind. It was further stated that the defendant-appellants had forged the Will, which was wrong and the natural succession should take place. In the suit so filed, the defendant-appellants had not caused appearance and they were proceeded against ex-parte. The trial Court held that since the plaintiff had claimed that the Will was forged and fabricated, she should have proved this fact and unless it is proved, the mutation granted by the Tehsildar, Phillour, relying upon the Will dated 11th December, 1972 could not be set aside.

3. According to the grounds of appeal, Banta Singh had executed the Will in England.

4. The plaintiff-respondent challenged dismissal of the suit by filing an appeal. The appellate Court accepted the appeal and held as under:

“6. From the evidence on record, the fact that the plaintiff was a daughter of Banta Singh is proved. By way of natural succession the plaintiff had a right to 1/7th share. The defendants who got mutation sanctioned in their favour had preferred to remain away from the Court. It is always for the propounder of the Will to prove its genuineness and also to establish that the testator executed the same with a sound disposing mind. It is difficult to appreciate the approach of the learned Sub Judge that it was for the plaintiff to bring evidence and to establish that the Will, on the basis of which mutation was sanctioned, was forged document. The mutation proceedings are summary in its nature meant for fiscal purposes only, but any findings recorded by the Revenue Officer does not finally decide the question of succession. Mutation also does not create any title. The plaintiff was under no obligation to lead evidence and show that the Will referred to in the mutation proceedings was in fact forged document. The succession is always automatic and since the plaintiff was one of the natural heirs, she had succeeded to the same unless the Will referred to in the mutation was validly proved. The passage of time from the date of sanction of the mutation will not effect the rights of the plaintiff. A co-sharer unless ousted, is deemed to be in joint possession of the land.”

5. I have perused the evidence of the plaintiff-respondent Tejo, who appeared as PW-1 and Sohan Singh PW-2. Both of them stated that Banta Singh had executed no Will.

6. Mohan Lal Patwari was examined as CW-1. He stated that the mutation on the basis of Will was granted in favour of the three sons of Banta Singh in equal share, but he had not brought the original Will in the Court.

7. No written statement was filed asserting that Banta Singh had made a Will. If the breach of natural succession has to occur, the beneficiary on the basis of the Will has to make an averment to this effect. By virtue of mutation proceedings executed by the revenue authorities, the natural succession cannot be kept in abeyance. It was a specific case of the plaintiff and her witnesses that no Will was executed. This fact was not refuted.

8. Mr.H.S. Gill, Senior Advocate assisted by Ms. Neha Sharma, Advocate, by way of an application, has formulated following questions as substantial questions of law for consideration of this Court:

i) Whether the suit filed by the plaintiff/respondent Tejo was barred on the principle of estoppel?

ii) Whether the suit