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CASE NO.:

Appeal (civil) 5032 of 2002

PETITIONER:

Daulat Ram & Ors.

RESPONDENT:

Sodha & Ors.

DATE OF JUDGMENT: 16/11/2004

BENCH:

ASHOK BHAN & S.H. KAPADIA

JUDGMENT:

J U D G M E N T

BHAN, J.

This appeal, by grant of special leave, is directed against the

judgment and order dated 26.9.2001 of a Single Judge of the High

Court of Himachal Pradesh in Second Appeal No. 212 of 1995. The

High Court by the impugned judgment has confirmed the judgment

and decree passed by the first Appellate Court and decreed the suit

filed by the Respondent No. 1.

Facts giving rise to this appeal, in short, are:

One Prati, son of Kamna, executed a Will on 11.01.1977 in favour

of his nephews, appellants herein, bequeathing his entire property in

their favour. In the Will no provision was made by Prati either for his

wife Gulabo or for his daughter Sodha \026 Respondent No. 1 herein

from his another wife Radhi. This Will was duly executed, attested

and registered. Thereafter, on 08.05.1983 Prati executed another Will

wherein he revoked/cancelled his earlier Will dated 11.01.1977 and

bequeathed his property to his daughter, Respondent No. 1. This Will

was duly executed and attested but was not registered.

Prati died on 10.05.1983. After his death Respondent No. 1 filed

Suit No. 102 of 1983 on 14.07.1983 for injunction restraining the

appellants from interfering with her possession over the property of

her deceased father claiming herself to be the owner in possession of

the said property or in the alternative for possession thereof by virtue

of Will executed in her favour dated 08.05.1983.

Appellants contested the suit denying that the Respondent No. 1

was the daughter of Prati. That the alleged Will propounded by the

Respondent No. 1 was prepared in collusion with the scribe and the

attesting witnesses. According to them Prati had died issueless. They

propounded the Will dated 11.1.1977 executed by Prati wherein the

entire property was bequeathed by him in their favour and claimed

themselves to be the legal heirs and only successors to the estate of

deceased Prati.

Trial Court dismissed the suit filed by the Respondent No. 1. It

was held that she was not the daughter of Prati. That Prati did not

execute any Will in favour of Respondent No. 1. It was further

observed that the Will dated 11.01.1977 in favour of appellants was

valid and by virtue of the same appellants were entitled to the estate

left by Prati. Being aggrieved, Respondent No. 1 preferred civil

appeal. First Appellate Court after reappraising the entire evidence set

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aside the judgment and decree passed by the Trial Court. The suit filed

by the Respondent No. 1 was decreed by observing that Respondent

No. 1 was the daughter of deceased Prati and a valid Will had been

executed in her favour by Prati. It was held that she had become the

owner and therefore entitled to the possession of the same. It was

observed after close scrutiny of both the Wills that the Will dated

11.01.1977 was procured by the appellants under pressure from Prati

which was subsequently revoked by him by executing the second Will

dated 08.05.1983.

Appellants preferred a regular second appeal against the

judgment and decree passed by the first appellate Court which was

dismissed being without any merits. The judgment and decree passed

by the first Appellate Court was confirmed. It was observed that the

first appellate Court had rightly concluded that Respondent No. 1 was

the daughter of deceased Prati from his wife Radhi and the Will dated

08.05.1983 was validly executed by him while in sound disposing

mind in the presence of the attesting witnesses and the scribe.

Being aggrieved the appellants have preferred this appeal.

The only point raised before us is that the sec