Admission of Pleading--Written statement--Every allegation of fact in plaint, if not denied, shall be deemed as admitted fact.

Mr. Raj Mohan Singh, J.:- Defendant-Surinder Singh is in second appeal arising out of the concurrent judgments and decrees passed by the courts below.

2. Facts of the case are necessary to be quoted here. Plaintiff- Santokh Singh filed a suit for declaration to the effect that the plaintiff is joint owner of the suit land notwithstanding anything contained to contrary in the revenue record and the Will dated 19.07.2002 in favour of defendant No.1-Surinder Singh is illegal, void ab-initio, null and void, without legal value, having no binding force on the rights of plaintiff, and the mutation No.2361 of inheritance of Kartar Kaur deceased, widow of Pritam Singh is null and void. Further relief of permanent injunction was also sought restraining defendant No.1 from alienating the suit land or by creating incumbrance over it.

3. It has been pleaded by the plaintiff that the suit land was owned and possessed by Pritam Singh, who was father of plaintiff Santokh Singh and Harcharn Singh, Parkash Kuar, Harbhajan Kaur, Sukhchain Kaur and Simrajit Kaur. Pritam Singh was the ‘Karta’ of the joint Hindu family, and he executed a Will in favour of plaintiff and defendant No.2, Harcharan Singh (now deceased), and is being represented by his legal representatives, Pargat Singh, Pritam Kaur and their mother Kartar Kaur on 23.11.1962. In the aforesaid Will, Pritam Singh has specifically recited that after the death of Kartar Kaur, her share would devolve upon her two sons namely, plaintiff-Santokh Singh and Harcharan Singh. Mutation of inheritance of Pritam Singh was effected in the name of Kartar Kaur (widow), Santokh Singh (plaintiff) and Harcharan Singh (defendant No.2) at Sr. No.1039. After the death of Pritam Singh, the land in question was jointly cultivated by the plaintiff-Harcharan Singh and Smt. Kartar Kaur. Smt. Kartar Kaur executed a Will on 08.02.1996 in favour of her three grandsons namely, Surinder Singh son of Harcharan Singh, Inderjit Singh and Jatinder Singh sons of Santokh Singh, and the same was registered in the office of Sub Registrar. After about 06 years, Smt. Kartar Kaur got the aforesaid Will dated 08.02.1996 cancelled and executed second Will in favour of her grandson-Surinder Singh on 19.07.2002, and was registered in the office of Sub Registrar. This Will is claimed to be illegal, null and void by the plaintiff.

4. It has been claimed that the plaintiff is still joint owner in the share of his mother out of total land measuring 286 kanals 11 marlas and mutation No.2361 sanctioned on the basis of Will dated 19.07.2002 is null and void, and is having no binding effect on the rights of the plaintiff, and is liable to be set aside. It has been claimed that Kartar Kaur, deceased was not competent to execute the Will regarding her share as Pritam Singh in his Will dated 23.11.1962 has recited that the property would devolve upon his two sons only, after the demise of Smt.Kartar Kaur, and Smt.Kartar Kaur deceased remained owner of her share during her life time, and thus, was having limited interest in the property. Since the Will dated 19.07.2002 is in defiance of earlier Will dated 23.11.1962, and the executant was not competent to execute the same as mentioned above, therefore, Will dated 19.07.2002 is liable to set aside.

5. The suit was contested by the defendants. Notice of the suit was issued to the defendants. Defendants No.1, 7 and 8 appeared and filed their written statement. Defendant Nos.2, 3, 4, 5, 6, 9 and 10 did not turn up despite service and they were proceeded against ex parte by the learned trial court. Defendant No.1 filed the written statement taking all customary pleas and contested the suit thereby claiming that Smt. Kartar Kaur wd/ of Pritam Singh acquired right in the property in her own status, and became absolute owner of the same after demise of her husband-Pritam Singh. Being master of the land of her share, she dealt with the same in her own right and free will, and was competent to d