Exclusion of natural heirs is insufficient to invalidate a Will; the burden of proof lies on the appellant to demonstrate fraud or lack of testamentary capacity.

JUDGMENT :

Alka Sarin, J.

The present appeal is by the legal representatives of the plaintiff-appellant against the judgements and decrees dated 26.03.2015 and 25.09.2017 passed by the Trial Court and the First Appellate Court dismissing his suit.

2. Briefly, the facts are that the plaintiff-appellant filed a suit for declaration with consequential relief of permanent injunction As per the plaintiff-appellant, Battan Singh (father of the plaintiff-appellant and of defendant-respondent Nos.3 to 5) was the owner in possession of the suit land. Battan Singh had five sons - the plaintiff-appellant, defendant-respondent Nos.3 to 5 and Maha Singh. After the death of Battan Singh, his estate devolved upon his five sons equally to the extent of 1/5 share each. One son, Maha Singh, died unmarried and issueless and thus his estate devolved upon his four brothers to the extent of 1/4 share each. Thus, the plaintiff-appellant has 1/4 share in the suit land. However, the defendant-respondent Nos.1 and 2 claimed a Will in their favour allegedly executed by Maha Singh. As per the plaintiff-appellant the said Will was a result of fraud and forgery and conferred no title of defendant-respondent Nos.1 and 2. Defendant-respondent No.8 herein claimed that she has purchased the suit land from defendant-respondent No.1 but since defendant-respondent No.1 had no right in the suit land, so the property purchased by defendant-respondent No.8 herein did not confer a better title on her. Hence, the present suit. The suit was contested by defendant-respondent Nos.1 and 2 and the defendant-respondent No.8 herein. In their written statement defendant-respondent Nos.1 and 2 raised preliminary objections of maintainability, non-joinder of necessary parties, estoppel, hit by principle of subjudice and cause of action. On merits it was stated that after the death of Battan Singh his estate devolved upon his sons including Maha Singh who raised construction over his property and after the death of his wife and child he was looked after by the mother of defendant-respondent Nos.1 and 2 and in lieu of the services rendered, Maha Singh executed a registered Will dated 02.12.2009 in his sound disposing mind in favour of the defendant-respondent Nos.1 and 2 and after his death the mutation was also sanctioned in their favour. It was pleaded that even the last rites of Maha Singh were performed by the family of defendant-respondent Nos.1 and 2 and the other brothers of Maha Singh attended the said last rites. Defendant-respondent No.8 in her written statement took the stand that she was a Bonafide purchaser for consideration and that she had purchased the property from defendant-respondent No.1 vide registered sale deed dated 17.01.2012. Replication was filed reiterating the contents of the plaint and denying the averments made in the written statement.

3. The Trial Court framed the following issues:

1. Whether the plaintiff is entitled to the declaration as prayed for ? OPP

2. Whether the plaintiff is entitled to the permanent injunction as consequential relief as prayed for ? OPP

3. Whether the plaintiff is entitled to joint possession of the suit property as alternative relief, as prayed for ? OPP

4. Whether the present suit is not maintainable ? OPD

5. Whether the suit is bad for non-joinder of necessary parties ? OPD

6. Whether the plaintiff is barred by his act and conduct to file the present suit ? OPD

7. Whether the plaintiff is barred by his act and conduct to file the present suit ? OPD

8. Whether defendant no.10 is bonafide purchaser of the suit property for valuable consideration having purchased the same from Sukhpal Singh vid