Judgment

Mrs. Alka Sarin, J.

The present appeal has been preferred by defendant Nos.1 and 5 against the concurrent findings recorded by both the Courts below while decreeing the suit of the plaintiff-respondent No.1.

2. The brief facts relevant to the present lis are that the plaintiff-respondent No.1, daughter of Shingara Singh, filed a suit for declaration to the effect that the land measuring 79 kanals and 14 marlas, fully described in the plaint, is owned and possessed by the plaintiff-respondent No.1 and defendant nos.3 to 5 and that defendant nos.1 and 2 have got no right or title. It was averred in the plaint that the plaintiff-respondent No.1 along with defendant nos.3 to 5 are the natural heirs of Shingara Singh and have inherited the estate of Shingara Singh in equal proportion upon his death. It was further pleaded that the suit property was ancestral and coparcenary in nature and she further challenged the Will dated 10.10.2011 in favour of defendant Nos.1 and 2 alleged to have been executed by Shingara Singh.

3. Upon notice, the defendant Nos.1 and 5 filed their written statement averring therein that the plaintiff-respondent No.1 never came in possession of the suit land and as such the suit was not maintainable. It was further averred that Shingara Singh had executed a valid Will dated 10.10.2011 in a sound disposing mind.

4. On the basis of pleadings of the parties, the following issues were framed :

1. Whether the plaintiffs are entitled to declaration as prayed for ? OPP

2. Whether the plaintiffs are entitled to permanent injunction as prayed for ? OPP

3. Whether the present suit is not maintainable in the present form ? OPP

4. Whether the plaintiff is estopped by her act and conduct from filing the present suit ? OPD

5. Whether the plaintiffs have suppressed the material facts from the court ? OPD

6. Whether the suit of the plaintiffs is not properly valued for the purpose of court fee and jurisdiction ? OPD

7. Whether court has got no jurisdiction to try and entertain the present suit ? OPD

8. Relief.

5. The Trial Court decreed the suit and held that the execution of the Will dated 10.10.2011 did not stand proved and that the Will was shrouded by suspicious circumstances. Aggrieved by the said judgment and decree dated 05.04.2017, an appeal was preferred by the defendant Nos.1 and 5 which was dismissed vide judgment and decree dated 29.11.2019. Hence, the present regular second appeal.

6. Learned counsel for the appellants would contend that the Will in the present case was a registered Will and though one of the attesting witnesses, who had appeared as PW2, had denied the execution of the Will but had admitted his signatures, in the said scenario recourse would have to be taken to Section 71 of the EVIDENCE ACT , 1872 and the Will could be proved by other evidence. Learned counsel for the appellants would further contend that the scribe of the Will had appeared in the present case as DW3 to prove the execution of the document. It is further contended that though the second attesting witness had stepped into the witness-box as DW4, however, he did not come forward for his cross-examination. Thereafter, son of the attesting witness had appeared in the witness-box, who had also been marked as DW4, and admitted the signatures of his father on the Will.

7. Heard.

8. In the present case the Will has been discarded by both the Courts below by recording cogent reasons. The Trial Court had noticed the following discrepancies in the Will :

“1. None of the attesting witness has come forward for deposition regarding the execution of the Will.

2. The attesting witn