Validity of the executed will takes precedence over ancestral property claims in absence of sufficient proof.

JUDGMENT :

Alka Sarin, J.

The present regular second appeal has been preferred by the plaintiff-appellant against the judgements and decrees dated 19.02.2016 and 11.08.2021 passed by the Trial Court and the First Appellate Court dismissing his suit for declaration and permanent injunction.

2. One Prem Singh son of Shivdan Singh had five sons and two daughters. The plaintiff-appellant is one of the sons of Prem Singh. The defendant-respondent Nos.1 and 2 are two other sons of Prem Singh, while defendant-respondent Nos.3 and 4 are the daughters of Prem Singh. The defendant-respondent Nos.5 to 10 are the LRs of two other sons of Prem Singh both of whom have expired. The suit was filed by the plaintiff-appellant seeking a declaration that he was entitled for 1/7 share from the estate of deceased Prem Singh in the suit land and that he is joint owner in joint possession to the extent of 1/42 share i.e. 1/7 share from 1/6 share of Prem Singh in the suit land being the son of Prem Singh and declaration to the effect that the suit land is ancestral, coparcenary and joint family property of the parties and the plaintiff-appellant has a share in it by birth and hence the defendant-respondents have no right to alienate the whole suit land by way of transfer, sale, exchange and mortgage or in any other manner and also sought a declaration that the transfer deed dated 19.08.2004 allegedly executed by Prem Singh in favour of defendant-respondent Nos.1 and 2 regarding 80 Kanals of land is also illegal, null and void and has no effect on the rights of the plaintiff-appellant and the same does not confer any title upon defendant-respondent Nos.1 and 2. According to the plaintiff-appellant the suit land was purchased with funds from the joint family and from the income of ancestral and coparcenary properties. It was averred that Prem Singh died intestate without executing sale/transfer deed regarding the suit land and he was not competent to execute the Will and transfer deed. It was further averred that Prem Singh suffered a shock after the accident in which Surinder Singh (son) and Baldev Kaur (wife) died in 1997 and he was not in his senses after the two deaths and therefore Prem Singh was not competent to execute any document due to his mental condition. The transfer deed dated 19.08.2004 allegedly executed by Prem Singh regarding 80 Kanals of land in favour of defendant-respondent Nos.1 and 2, subsequent mutation and revenue entries were alleged to be illegal, null and void, having no effect on the rights of the plaintiff-appellant and did not confer any title upon defendant-respondent Nos.1 and 2. Hence, the suit.

3. The suit was contested by defendant-respondent Nos.1 and 2 who filed written statement raising preliminary objections about maintainability, concealment of facts, not coming to court with clean hands, estoppel, locus standi, cause of action, non-joinder of necessary parties, etc. On merits it was the stand taken that though the plaintiff-appellant had challenged the transfer deed dated 19.08.2004 but he had not paid court fee on the value of the same. A registered Will dated 08.09.1998 executed by Prem Singh in their favour was also set-up and it was stated that the parties to the suit are not members of a joint hindu family and that the suit land was neither ancestral nor coparcenary nor joint hindu family property rather the same was a self-acquired and separate property of Prem Singh. The remaining defendant-respondents were proceeded against ex-parte. Replication was filed wherein the contents of the written statement were denied and those of the plaint were reiterated.

4. From the pleadings of the parties following issues were framed :

1. Whether plaintiff is entitled