Sadha Singh vs Harnam Singh and Others

M.S. Liberhan, J.—Sadha Singh Plaintiff filed a suit for possession of the land in dispute contending that Labh Singh son of Jagat Singh was the last male holder of the suit land and the Plaintiff being his brother''s son was the natural heir. It was averred that the Defendants had forcibly taken possession of the suit land claiming ownership through a will executed by the deceased in their favour. The will was challenged as being fabricated. Labh Singh was stated to be an old and sick person who had lost the thinking power and was not in a sound disposing mind to execute the will. Thus, the will could not be acted upon.

The Defendants, in their written statement, denied the above said allegations and raises other contentions. The following issues were framed:

Whether the Plaintiff is brother''s son of Labh Singh deceased and it so, itseffect? O.P.D.

Whether Swaran Singh and Havel Singh Defendants are minors and if so, to what effect? O.P.D.

Whether Labh Singh deceased executed a valid will dated 10.7.1962 in favour of the Defendants and if so, to what effect? O.P.D.

Relief.

The trial Court found the Plaintiff to be the brother''s son of the deceased. It was also found that the will dated 10.7.1962 in favour of the Defendants was not genuine and it was surrounded by suspicious circumstances. It was further sound that the Plaintiff was not the only heir of Labh Singh deceased as the Plaintiff had other brothers and some of the Defendants were also related to the deceased. Accordingly, the suit for joint possession with other co-teirs of the deceased was decreed.

The Defendants preferred an appeal which as a sequel to the grant of the application of the Plaintiff seeking permission for amendment of the plaint was remanded to the trial Court by the lower appellate Court after setting aside its judgment and decree.

After remand the trial Court under issue No. 1 found the Plaintiff to be brother''s son of Labh Singh, deceased. Issue No. 2 became redundant as the suit had been -amended. As regards issue No. 3 Labh Singh deceased was found to have executed a valid will in. favour of the Defendants. Resultantly the suit was dismissed with costs.

On appeal by the Plaintiff the lower appellate Court after re-appraising the evidence affirmed the findings of the trial Court on issue No. 3 and dismissed the appeal. The Plaintiff has challenged these findings in this second appeal.

The only contention raised in this second appeal is that the deceased was not in a sound disposing mind as he was eighty years of age and was totally blind and deaf. As such the will had not been executed of his own free will.

The lower Courts took into consideration the admitted fact that Labh Singh was not married, had no child or wife and had been living with Jaswant Singh Defendant and died there. The said Jaswant Singh is none else but the son of the brother of Labh Singh. There is not an iota of evidence on the record to show that the deceased ever lived with the Plaintiff or he had rendered any service to him. There was no love lost between the Plaintiff and the deceased. In these circumstances Labh Singh had natural love and affection for the Defendants, as a consequence of which he executed the will in their favour. The Defendant beneficiaries are admittedly the collaterals of Labh Singh. His annoyance with the Plaintiff is not disputed. Shri Hazara Singh Cheema, Advocate with 45 years'' standing, is the attesting witness whose testimony on oath has been accepted by the Courts below. After appreciating the evidence, they came to the conclusion that the deceased was neither blind nor deaf at the time of the execution of the will. There is no evidence except the statement of the Plaintiff in his own favour to state so. No infirmity has been pointed out in the finding of the Courts below with respect to due execution of will by deceased by free uninfluenced mind nor any suspicious circumstances were pointed out. Labh Singh died many years after the execution of the will. I agree with the reasoning of the lower Courts and confirm the finding that the will had been duly executed by the deceased as his voluntary act.

In view of the facts and circumstances stated above, the finding of due execution of will and its validity is a finding of fact which cannot be disturbed in second appeal. No error either in law or even on facts has been pointed. Consequently, I find no force in this appeal and the same is dismissed with no order as to costs.