JUDGMENT
B. Rai, J.
1. This Regular Second Appeal has been filed by Gurpal Singh plaintiff against the judgment and decree, dated October 11, 1979 of the Court of learned Additional District Judge, Patiala (I), dismissing the, appeal of the plaintiffs and affirming the judgment and decree, dated September 18, 1976 of the Court of Subordinate Judge First Class, Patiala.
2. Briefly, the facts are that one Sarmukh Singh had three sons and a daughter, namely, Phuman Singh, Kehar Singh, Kishan Singh and Daya Kaur. Gurpal Singh and Gurdial Singh plaintiffs are sons of Daya Kaur. Harchand Singh son of Kehar Singh had six sons, namely, Darshan Singh, Nachhattar Singh, Sukhdev Singh, Ranjit Singh, Randhir Singh, Choota Singh, defendants 1 to 5 and Jang Singh (since dead). Nazar Singh defendant No. 6 is son and Bhupinder kaur defendant No.7 is widow of Jang Singh. Property of Phuman Singh who died issueless without leaving behind any widow, is land measuring 67 Bighas 9 Biswas fully described in the headnote of the plaint is the bone of contention between the parties. Gurpal Singh and Gurdial Singh being the sons of Daya Kaur sister of Phuman Singh filed a suit” for possession on the basis of title being the only legal heirs of Phuman Singh. They pleaded that grandsons of Kehar Singh brother of Phuman Singh entered into possession on the basis of the suit land taking advantage to their absence from the village on the basis of Will allegedly executed by Phuman Singh on July 29, 1966 in their favour. According to the plaintiffs, that Will is a waste paper and forged document. Defendant No.7 Bhupinder Kaur was proceeded against ex parte vide order, dated January 10, 1975. Defendants 3 to 6 were minors and they filed written statements through the Court Guardian.
3. On the other hand, the case of the defendants as set up in the written statements is that the plaintiffs are not in any way related to Phuman Singh (deceased) who executed a valid Will, dated July 29, 1966 in favour of defendants 1 to 6. According to the defendants, the plaintiffs have no locus standi to file the suit, that the suit is bad for non-joinder and mis-joinder of parties. Darshan Singh defendant No. 1 and Nachhattar Singh defendant No. 2 further claimed that Phuman Singh (deceased) had taken loan amounting to Rs. 7,000/- from the Bank which is being paid by them and they are entitled to recover the same in case the suit of. the plaintiffs is decreed. Nachhattar Singh defendant No. 2 further claimed in his written statement that he had made improvements in the suit land to the extent of Rs. 10,000/-. He pleaded that in case the suit is decreed, he is entitled to the amount of Rs. 10,000/-. The defendants also claimed special costs amount to Rs. 500/-. Harchand Singh defendant No. 8 is the father of defendants 1 to 5.
4. On the pleadings of the parties; as many of nine Issues were framed by the trial Court. Under Issue No. 1, it was held that plaintiffs were sons of sister of Phuman Singh (deceased). Under Issue No. 2, it was held that Phuman Singh Had executed valid Will Exhibit D3 in favour of Jang Singh and others and accordingly, this Issue was decided in favour of the defendants. Under Issue No. 3, it was held that the plaintiffs being the legal heirs of Phuman Singh had the locus standi to file the suit. Under Issue No. 4, the suit was held to be not bad for non-joinder and mis-joinder of necessary parties. Even otherwise, the Issue was not pressed before the trial Court by the defendants. Hence, this Issue was decided against the defendants. Under Issue No. 5, it was found that there was no satisfactory evidence on the file as to who had repaid a part of the loan on behalf of Phuman Singh. This Issue was, therefore, decided against the defendants. Issue No. 6 was not pressed by the defendants. Accordingly, it was decided against them. Under Issue No. 7, the defendants were not found to be entitled to any special costs. Under Issue No. 8, it was found that the plaint was properly thumb-marked. Consequently, in view of the findings of Issue 2, the suit of the plaintiffs failed and the same was dismissed, leaving the parties to bear their own costs.
5. Appeal preferred by the plaintiffs also met the same fate. Hence, this Regular Second Appeal at the instance of Gurpal Sing, plaintiff, as mentioned in the opening paragraph of this judgment.
6. I have heard the learned counsel for the parties and have carefully gone through the record. Execution of registered Will, dated July 29, 1966, Exhibit D3 in favour of Jang Singh and others by Phuman Singh was not seriously-challenged. Even otherwise, its due execution was proved by the evidence of Gurbaksh Singh (DW 2), one of the attesting witnesses. The Will Exhibit D3 is a registered document. From, this, a presumption arises that testator of the Will was having sound disposing mind at the time of making the Will and it was executed by him especially when there is no evidence to show that at the time of execution of the Will, Phuman Singh was suffering from any mental ailment or other disability or was incapable of making disposition. Evidence available on the record goes to show that the appellant was not very much attached with Phuman Singh (deceased) during his life time and it is proved that Phuman Singh was living with the legatees during his life time, as stated by DWs and admitted by the PWs. Therefore ignoring the sons of his sister while bequeathing his property does not render the Will a suspicious document. No evidence was pointed out by the learned counsel for the appellant that the Will was suffering from any suspicious circumstance.
7. It was also argued by the learned counsel for the appellant that the Will Exhibit D3 was executed by Phuman Singh on July 29, 1966 in favour of Jang Singh, Darshan Singh, Nachhattar Singh, Sukhdev Singh, Ranjit Singh, Randhir Singh and Chhota Singh. Statement of Nachhattar Singh (DW.5) was recorded on February 9, 1976. According to him, Jang Singh died somewhere in 1971 and Phuman Singh died in the year 1973. That goes to show that Jang Singh one of the legatees under the Will had predeceased Phuman Singh. Therefore his share in the property of Phuman Singh would revert back to the heirs of Phuman Singh under the Hindu Succession Act and that would not go to the legatees under the Will. It was further argued that the appellant being the sister’s son was entitled to half share of the property, i.e., 1/12th share. According to the learned counsel, the findings of the Courts below that Jang Singh being represented by his minor sons and widow his share would thus devolve upon the Legal Representatives, is erroneous in the eye of law. Once it is proved that the Will was validly executed by Phuman Singh in favour of defendants 1 to 5 and Jang Singh grandson of Kehar Singh brother of Phuman Singh testator, Jang Singh having predeceased Phuman Singh, share of Jang Singh one of the legatees under the Will bequeathed by Phuman Singh would not revert back to the other heirs of Phuman Singh and it would devolve upon the heirs of Jang Singh (deceased). Reference in this behalf may usefully be made to Smt. Shanti and Ors. v. Smt. Bhagwani and Ors., AIR 1984 Punjab and Haryana, 313.
8. For the reasons recorded above, the appeal fails and is dismissed. No costs.
