Bharpur Singh & Ors vs Shamsher Singh

2. Ram Devi, the testatrix, widow of Jiwan Singh resident of Village Gharuan, Tehsil Kharar, District Ropar, Punjab, whose legal heirs and representatives are the appellants, executed a will on or about 30.3.1962 when she was aged about 75 years of age. She breathed her last on 19.6.1990.

Admittedly, the two surviving daughters of the testatrix, namely, Smt. Gurdial Kaur alias Dialo and Smt. Kakko were married and had been living at far away places. Respondent being the beneficiary under the said Will filed a suit in the year 1993 against the appellants, inter alia, praying for 3 setting aside an order of mutation passed in their favour on the premise that relying on or on the basis thereof, the appellants had threatened to alienate the suit land and dispossess him therefrom.

Plaintiff - Respondent in his plaint alleged that during the life time of the testatrix, he used to look after her and in fact she expired in the house of his daughter Iqbal Kaur.

3. Admittedly, she had four daughters, out of whom the defendants were alive but were disinherited by her in the said Will. However, when an order of mutation was passed in favour of appellants, the said suit was filed.

4. Appellants in their written statement denied and disputed the contentions raised by the plaintiff that Ram Devi used to be looked after by the plaintiff. According to them, no will had been executed by Ram Devi in view of services rendered by him as alleged or at all. According to them, as Jiwan Singh, the husband of Ram Devi was murdered about 60 years back, she lost her balance of mind and had not been possessing sound mental faculties. According to the defendants, she was being looked after by her daughters.

The learned Subordinate Judge, 1st Class, Kharar, Punjab, by his judgment and decree dated 24.8.1995 decided issue nos. 1 and 2 in favour of the appellants. The learned Judge granted a decree for declaration to the effect that the plaintiff-respondent was owner-in-possession of the land bearing Kh/Kh. No. 25/59 Kh. No. 1644(5-0), 1645 (3-0), 1646 (6-5), 1647 (6-5), 1648 (5-10) situated at village Gharuan as per Jamabandi of the year 1988-89 with the consequent relief of permanent injunction restraining the defendants - appellants from alienating that part of the land in suit. However, other reliefs prayed for in the suit were not granted.

6. Being aggrieved by and dissatisfied therewith, both the parties preferred appeals thereagainst.

iii. The fact that the appellants, although daughters, came to know about their mother's death six days after the same had taken place, evidently shows that they had not been looking after their mother during her old days.

19. We, therefore, keeping in view the peculiar facts and circumstances of this case, are of the opinion that the impugned judgment of the High Court as also the first appellate court should be set aside and the matter be 20 directed to be considered afresh in the light of the observations made hereinbefore by the first appellate court. It is ordered accordingly.

The appeal is allowed with the aforementioned observations and directions. However, in the facts and circumstances of the case, there shall be no order as to costs.

December 12, 2008