JUDGMENT
Harjit Singh Bedi, J.
1. The appellant-Shanti is the uterine sister of Thambu-respondent. Chandgi, the appellant’s father was owner in possession of some agricultural land in village Chhara. He died in the year 1971 and the mutation of inheritance No. 3297 was sanctioned in favour of the appellant on October 29, 1976. The land accordingly vested in the appellant and it is her case that she leased out the said land to the respondent. It is further her case that about 10/11 months prior to the filing of the present suit, the respondent had come to her and informed her that he was being harassed by the revenue authorities and that she should execute a formal lease deed in his favour. She agreed to do so and was brought to Court but instead of drawing up a lease deed a decree was fraudulently obtained in a Civil Suit No, 79 of 1977, which had been filed by the respondent. He accordingly became the owner of the land. The present suit has been filed by Shanti challenging the decree in the earlier suit on the ground that a fraud had been practised by Thambu and in fact she had no idea that the papers, which had been signed by her, pertained to the aforesaid suit.
2. On the pleadings of the parties, the following issues were raised in the trial Court :-
1. Whether the plaintiff is the owner of the land in dispute as alleged ? OPP.
2. Whether the decree dated 28.4.77 is null and void and not binding upon the plaintiff on the grounds mentioned in the plaint ? OPP.
3. Whether the suit is not maintainable in the present form ? OPD.
4. Whether the plaintiff is estopped by her own 32
1 and conduct ? OPD.
5. Whether the suit has not been valued properly for the purposes of court fee and jurisdiction ? OPD.
6. Whether Chandgi, deceased executed a valid Will in favour of the defendant, if so to what effect ? OPD.
7. Whether the written statement has not been verified properly, if so to what effect ? OPP.
8. Relief.
The following additional issues were framed on 1.9.1978 :-
7-A. Whether the defendant is in possession of the land in dispute as a tenant under the plaintiff as alleged, if so to what effect ? OPP.
7-B. In case, issue No. 7-A is not proved, whether the defendant is in possession of the property as owner, if so to what effect ? OPD.
3. The trial Court in its judgment dated June 2, 1979 held that Shanti was owner of the suit land and that the decree dated April 28.1°77 in the earlier suit was null and void and was thus not binding on her. On issue No. 6, which was the crucial issue, it found that the defendant had tailed to establish that Chandgi deceased had executed a Will in his favour. As a result, the suit was decreed in favour of Shanti. Thambu-respondcnt, thereafter filed an appeal. The judgment of the trial Court was reversed with the finding that the written statement and the statement made by Shanti and her counsel before the trial Court in the suit (No. 79 of 1977) in which she had admitted the claim of the re-spondent-Thambu. was in order and that no fraud had been practised on her. On issue No. 6, which pertained to the Will allegedly executed by Chandgi. it was found that the mere fact that he was about 75 years of age was no ground to doubt his capacity to make a Will. The judgment of the trial Court was accordingly reversed and the suit dismissed. This regular second appeal has been filed by Shanti-plaintiff.
4. Mr. Sudhir Mittai, the learned counsel appearing for the appellant, has raised two arguments in the course of the hearing; that the finding of the lower Appellate Court on issue No. 6, which pertained to the Will allegedly executed by Chandgi in favour of Thambu, was wrong as the execution of the Will was clouded in suspicion and in that eventuality, and that the earlier suit could not have been decreed as it could be presumed that Shanti would not make a statement contrary to the record.
5. Mr. S.S, Dalal, the learned counsel for the respondent, has however, supported the judgment of the lower Appellate Court by arguing that it could not be said that the trial Court in the earlier suit had wrongly recorded the statement made by Shanti, in which she had admitted the respondent’s claim.
6. I have gone through the judgments of the Courts below as also the record. To my mind, the crucial issue is issue No. 6. The trial Court has given various reasons for coming to the conclusion that the Will executed by Chandgi was in fact a suspicious document and it could not be relied upon. It stands admitted that Chandgi had died in the year 1971 or 1972 but the Will, which was said to be in possession of Thambu-respondent, was not produced for.thc sanction of mutation for about six years. It is also on record that when the mutation of inheritance in favour of Shanti was
sanctioned in the year 1976, Thambu-respondent had kept silent and had not challenged the proceedings either before the sanctioning authority or in appeal or revision thereafter, and even when he filed civil suit No. 79 on April 27,1977, the Will in original or a copy thereof was not produced alongwith the plaint. 1 also find no explanation as to why Shanti, the legal heir of the deceased, had been excluded from her inheritance by her father. It is also clear that the Will in question had been drafted by some body in the village and had it been drafted by a licensed deed or petition writer, it could have corroborated the fact of its valid execution. The lower Appellate Court has not adequately dealt with the matter and has disposed of the same by merely observing that the fact that the testator was 75 years of age or more, was no ground to hold that the Will had not been validly executed. To my mind, the other reasons, which find mention above, were more relevant and germane to the issue and have not even been referred to by the lower Appellate Court. The reasons given by the trial Court are significant and go to the root of the matter with regard to the validity of the Will. The finding of the lower Appellate Court on issue No. 6 is, therefore, reversed. Ipso facio, I am of the opinion that as respondent had been guilty of fabricating a Will, there may be some truth in the plea raised by the appellant that the earlier decree was also obtained by fraud and that the appellant had been misled into making the statement that she did before the trial Court, The finding on issue No. 2 is also reversed.
7. Resultantly, the appeal succeeds, the judgment and decree passed by the first Appellate Court are set aside and that of the trial Court are affirmed. Consequently, the suit of the present appellant is decreed.
8. Appeal allowed.