IMPORTANT POINT
Propounder of Will has to dispel suspicious circumstances surrounding Will.

Mahavir S. Chauhan, J.—Mussadi Lal, the original owner of the suit property, had three daughters, namely, Maya Devi, Vidya and Muthari. Hira Nand and Prem Chand are sons of Vidhya. Hira Nand was adopted by Mussadi Lal as his son. One of the daughters of Mussadi Lal, namely, Maya Devi, brought the suit before Sub Judge, 1st Class, Mahendergarh (hereinafter referred to as ‘the trial Court’ ) for declaration to the effect that she and proforma defendant No.3 (Muthari) were owners of the suit land to the extent of 2/3rd share, and were entitled to separate possession of the land qua their respective shares. However, according to the plea of the plaintiff, the defendants did not admit her claim and this compelled her to approach the court for the claimed relief of declaration and possession.

2. Defendant No.3, Muthari filed a written statement of admission while defendants No.1 and 2 contested the suit by filing a written statement with preliminary objections, inter alia; to the effect that the plaintiff had no locus standi to maintain the suit; and that the suit, even otherwise, was not maintainable in the present form. It was also stated by them that first defendant namely, Hira Nand, was taken in adoption by Mussadi Lal and a joint deed of adoption and Will was executed on 14.4.1965. As such, the first defendant was the sole owner of the suit property left behind Mussadi Lal. (Though the document, Exhibit DW3/A, is dated 11.4.1965 but the date of this document has been mentioned as 14.4.1965 in the pleadings, issues and judgments of the courts below and, as such, to avoid confusion, the date of this document has been given as 14.4.1965). According to the contesting defendants, the suit property was coparcenary property and, as such, parties being governed by. Hindu Law, first defendant alone was entitled to 5/8th share therein. Relationship inter se the parties was denied by first and second defendants in the written statement.

3. A replication to the written statement filed on behalf of first and second defendants was filed by the plaintiff, whereby contents of the written statement were denied and those of plaint were reasserted.

4. From the pleadings of the parties, following issues were framed by the learned trial Court:

“1. Whether the deceased Mussadi Lal had taken defendant No.1 Hira Nand in adoption? If so to what effect? OPD

2. Whether the deceased Mussadi Lal had executed a valid Will in favour of defendant No.1 Hira Nand on 14.4.65? If so to what effect? OP. Parties

3. In case issue No.2 is not proved who are the heirs of deceased Mussadi Lal and to which share they are entitled in his estate? OP Parties.

4. Whether plaintiff has no locus standi to bring the suit? OPD.

5. Whether the suit in the present form is not maintainable? OPD.

6. Whether the suit is false and frivolous and defendants are entitled for compensatory costs? OPD.

7. Relief.”

5. After both the sides had adduced evidence in support of their respective pleas, learned trial Court afforded them an opportunity of hearing, perused the evidence available on record, returned findings on issue No.1 and 2 in favour of the contesting defendants on issue No.2 in favour of defendant No.1 and on issues No.5 and 6 against defendants No.1 and 2, decided issue No.3 as having become redundant in view of finding on issue No.2 and issue No.4 against defendants as not pressed, and vide judgment and decree dated 18.2.1985, dismissed the plaintiff’s suit with costs.

6. Judgment and decree dated 18.2.1985 of the trial Court, was challenged by the plaintiff by way of Civil Appeal No.335/2.9.1985 which, after contest, was partly accepted by the court of learned Additional District Judge, Narnaul, (hereinafter referred as ‘the 1st Appellate Court’) and the plaintiff, along with her sister Muthari, was awarded a decree (dated 15.9.1987) of joint possession to the extent of 1/4th share each in the suit land alongwith their brother Hira Nand and sister’s son P