IMPORTANT POINT
Deprivation of natural heirs cannot be said to be a suspicious circumstance surrounding a Will.

Raj Mohan Singh, J.—Vide this common judgment, RSA No. 1556 of 2015 titled as “Ved Parkash vs. Buta Singh & Ors.” and RSA No.3005 of 2015 titled as “Chhoto Kaur and anr. vs. Buta Singh & Ors.” are being decided. Since, both the aforesaid appeals have arisen from common judgments and decrees passed by the lower Appellate Court, therefore, common facts are being recorded. Plaintiffs Buta Singh and Sukhjit Singh filed suit for declaration that they are owners in possession of suit land to the extent of 1/8th share of total land measuring 277 Kanals 3 Marlas as shown in the plaint. Plaintiffs further alleged that Jasmel Kaur had executed a Will dated 15.12.2001 in favour of plaintiffs and they are entitled to the land in question and mutation thereof, is required to be entered and sanctioned in their favour in pursuance of the aforesaid Will. The entry of mutation No.4455 in the revenue record is result of fraud and is liable to be corrected as the plaintiffs alone are entitled to be declared as owners in possession of land to the extent of 1/8th share out of total land. Plaintiffs are in cultivating possession of the suit land without their being any interruption for the last 20 years and, therefore entries in the revenue record are liable to be declared as null and void. Taking undue advantage of the revenue entries, defendants are trying to alienate the suit land. With this background, suit in question came to be filed.

2. The suit has been contested by the defendants. Plea of plaintiffs being owners in possession has been denied. It has been stated that the defendants No.1 and 2 alongwith their brother Natha Singh are owners in possession in equal shares and mutation has been rightly sanctioned by discarding the alleged Will dated 15.12.2001. Defendants alleged that Jasmel Kaur never executed any alleged Will dated 15.12.2001 in favour of the plaintiffs and same is illegal and fraudulent.

3. Parties went to trial on the following issues:—

(i) Whether the plaintiffs are entitled to declaration as prayed for? OPP.

(ii) Whether the plaintiffs are entitled for permanent injunction as prayed for? OPP.

(iii) Whether the suit of the plaintiff is not maintainable in the present form? OPD.

(iv) Relief.

4. After appraisal of evidence, trial Court concluded that execution of Will dated 15.12.2001 has been proved. Both the parties knew the case of each other. The minor discrepancy visa- vis dictation of Will on 15.12.2001 or four days prior to the death of Jasmel Kaur has not been considered to be the discrepancy which may dis-credit the testimonies of the witnesses of PW1-Bharpur Singh and PW3-plaintiff Sukhjit Singh. Non-production of Ajaib Singh, the second attesting witness to the Will was held to be inconsequential as requirement of law has been complied with by examining Baldev Singh as PW2 besides the scribe Bharpur Singh as PW1. Since, the plaintiffs are the beneficiaries of the Will, Natha Singh is figured nowhere in the entire controversy in the suit. The exclusion of daughters namely Chhoto Kaur and Veero Kaur from the property cannot be held to be a suspicious ground to dis-believe the execution of Will as they were married about 20- 25 years ago and are residing in their respective in-laws house. The testator Jasmel Kaur was living with the plaintiffs at the time of her death. Dis-inheritance of the defendants No.1 and 2 in itself was not held sufficient to observe that the Will was shrouded with suspicious circumstances. Reliance was made to Jaswinder Singh and others vs. Kartar Singh and Ors., 2004 (3) CCC 80. Deprivation of natural heirs cannot be said to be a supicious circumstance because Will is always meant to dislodge something from line of natural succession. Plea of disinheritance alone cannot be taken to be a suspicious circumstance until and unless other attending circumstances warrant to hold. Will is infact shrouded by suspicious circumstances.

5. Trial Court decreed the suit declaring mutation No.44