R.S.A. No.980 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.980 of 2009 Decided on : 26-02-2010 Krishana Devi .... Appellant VERSUS Mahinder & others .... Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER. Present:- Mr. J.S. Cooner, Advocate, for the appellant. MAHESH GROVER, J (Oral). This Regular Second Appeal is directed against the judgments and decrees dated 23.12.2006 and 16.10.2008 passed respectively by the Additional Civil Judge (Senior Division), Kurukshetra (hereinafter referred to as `the Trial Court') and the Additional District Judge, Kurukshetra, (for short `the first appellate Court'), whereby the suit and appeal filed by the plaintiff/appellant have been dismissed. The appellant, who is the grand daughter of one Sadhu, questioned the Will, which he had executed on 6.1.1969. Sadhu was said to be died in 1978, but father of the appellant Karta Ram had pre-deceased Sadhu. The Will in question was in favour of other two sons of Sadhu, who were uncles of the appellant. The basic plea, which has been raised, is that the property in question in the hands of Sadhu was ancestral in nature R.S.A. No.980 of 2009 -2- and therefore, Karta Ram and the other two sons beneficiaries of the Will, had a right in the estate of Sadhu. It is thus, pleaded that Karta Ram and his successors have been excluded without any cogent reason from the Will. The said Will is shrouded by suspicious circumstances and the same ought to have been taken into consideration by the Courts below. On the other hand, the defendants supported the Will in their favour and stated that the mutation has been rightly sanctioned in their favour on the basis of Will and they are in exclusive possession of the same after the death of their father Sadhu. The parties, thereafter, went to trial on the following issues:- 1. Whether the plaintiff is owner in possession, of the land to the extent of 1 or 11 share out of the total suit land as fully mentioned in the plaint? OPP. 2. Whether the defendant No.1 and 2 dispossessed the plaintiff in April, 1998 forcibly and illegally?OPP. 3. Whether the alleged will dated 6.1.1969 and mutation No.551 is illegal, null and void and liable to be set- aside?OPP. 4. If all these issues are proved in affirmative whether the plaintiff is entitled to a decree for declaration as well as joint possession of the suit land as prayed?OPD. 5. Whether the suit of the plaintiff is not maintainable? R.S.A. No.980 of 2009 -3- OPD. 6. Whether the suit of the plaintiff is time barred?OPD. 7. Whether has no locus standi to file the present suit?OPD. 8. Whether the plaintiff has no cause of action to file the present suit? OPD. 9. Whether the plaintiff has suppressed true and material facts from the court, if so, its effect?OPD. 10.Relief. Both the Courts below found that the suit property was not ancestral in nature and upheld the Will in question and held that the plaintiff/appellant had no right in the suit property. The suit and the appeal were, accordingly, dismissed. I have heard learned counsel for the appellant and have perused the impugned judgments. The essential plea, which has to be determined is as to whether the property in the hands of Sadhu was ancestral in nature so as to confer any right on his subsequent successors i.e. sons and daughters. If such a plea is established, then the question of validity of the Will would have assumed different connotations. But unfortunately, the appellant has failed to establish the ancestral character of the property. In this view of the matter, when there is no such material to show that the property is ancestral, Sadhu was free to bequeath it in the manner he wished. The Will does not appear to be suspicious. Besides, there is ample evidence on record to show R.S.A. No.980 of 2009 -4- that the appellant herself was brought by the very uncles against whom she is agitating now. Even her marriage was performed by them. The Will has been challenged much belatedly. The appellant has raised a plea that she is owner in possession of the property, which in the given set of circumstances, has not been established. That apart, the Hon'ble Supreme Court in Rur Singh (deceased) through Lrs Versus Bachan Kaur 2009 (11) SCC 1 has observed that the question regarding validity of the Will is a question of fact, the same cannot be interfered, when the Will has been held to have been legal & valid by the Courts below. In the given set of circumstances, the appeal is without any merit and the same is dismissed. 26th February, 2010. (MAHESH GROVER) Monika JUDGE