Nikka Singh and others vs Nachhattar Singh and others

M.R. Sharma, J.—Santa Singh, an old man of 89 years, is stated to have executed Will Ex. D 1, dated 6th July 1975 in favour of the Respondents. The Appellants brought a suit on the ground that they were the lawful heirs of the deceased and the will in question was sham transaction According to the Appellants, their relationship with the deceased becomes obvious from the following pedigree table:

Two points came up for determination by the learned courts below. The first point was whether the Appellants were the lawful heirs of the deceased or not and the second point was whether the Will in dispute had been executed by Santa deceased or not. The learned trial Court gave a finding in favour of the Appellants on both the points and decreed their suit The judgment and the decree rendered by it was, however, reversed by the learned lower appellate Court.

The learned lower appellate Court discussed at some length the provisions of Section 50 of the Evidence Act and held that the evidence of the persons about neonda having been given by the deceased at the time of the marriage of his brother''s daughter''s daughter was not admissible in evidence. I am unable to concur with the view taken by the learned lower appellate Court Section 50 of the Evidence Act lays down that the evidence of conduct of a person about relationship is a relevant fact The deceased while offering neonda at the time of the marriage of his brother''s daughter''s daughter had exhibited conduct which fell squarely within the ambit of Section 50(sic) of the Evidence Act Besides this the deceased had executed a special power of attorney Ex P 1, dated 1st April 1959 In favour of Bhajan Singh alias Nathi Plaintiff Appellant No 2. This document was proved by Gajjan Singh P.W 8. The learned lower appellate Court excluded this document from consideration on the ground that this special power of attorney was subsequently cancelled by the deceased. A special power of attorney when cancelled debarred Bhajan Singh alias Nathi from acting on behalf of the deceased It did not wipe out the effect of the admisiion made by the deceased about his relationship with the special attorney. When the two bits of evidence are comulatively considered, it becomes obvious that Bhajan Singh alias Nathi was the sister''s son of the deceased and competent to challenge the Will in dispute Since this Appellant does not challenge the relationship of the other appelants with the deceased, he and they, if the Will is held to be not estabished, will be jointly entitled to inherit the property of the deceased on(sic) accordance with their ancestral shares

The question regarding the due execution of the Will need not detain me for long. In the Will there is no mention why the deceased was by passing the claims of his sister and her children.

Pritam Singh and Bachan Siagh, the two beneficiaries of the Vill, had also signed the same which fact shows that they took a prominent part at the time when the deceased executed this Will. In accordance with the principle of law enunciated by their Lordships of the Supreme Court in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, hold that the execution of the Will does not stand established. This appeal is, therefore, allowed and the suit filed by the Plaintiff-Appellants is decreed with costs throughout.