Himachal Pradesh High Court
Masadi Son Of Sh. Puran Chand vs Amrik Singh And Others on 9 May, 2022
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 09th day of May, 2022 DAY OF MAY, 2022.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
REGULAR SECOND APPEAL No.49 of 2016.
Between:-
1. MASADI SON OF SH. PURAN CHAND
2. SMT. MANBHARU, WIFE OF SH. MASADI.
BOTH RESIDENTS OF VILLAGE NAL, PARGANA
FATEHPUR, TEHSIL SHRI NAINA DEVI JI,
DISTRICT BILASPUR, H.P.
......APPELLANTS/PLAINTIFFS.
(BY SH. AJAY SHARMA, SENIOR ADVOCATE
WITH SH. ATHARV SHARMA, ADVOCATE)
AND
KRISHANI DEVI, W/O SH. RAM DASS,
RESIDENT OF VILLAGE CHELLI, PARGANA
FATEHPUR, TEHSIL SHRI NAINA DEVI JI,
DISTRICT BILASPUR, H.P.
.....RESPONDENT/DEFENDANT.
( BY SH. J.R. POSWAL, ADVOCATE)
Reserved on : 29.04.2022.
This appeal coming on for hearing this day, the
Court delivered the following:
JUDGMENT
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2
Aggrieved by the judgments and decrees passed by both the learned Courts below, the plaintiffs-appellants .
have filed the instant regular second appeal.
2. The parties hereinafter shall be referred to as the 'plaintiffs' and 'defendant'.
3. The defendant is the only daughter of Shri Masadi(plaintiff No.1) born from his first wife (late Smt. Devku).
4. The plaintiffs filed a suit for declaration to the effect that plaintiff is owner in possession of the land measuring 6-10 bighas out of the total land measuring 17-00 bighas comprised in Khewat No. 26, Khatauni No. 29, Khasra Nos. 9, 11, 18, 19,23, 25 and 64, situate in Village Nal, Pargana Fatehpur, Tehsil Shri Naina Devi Ji, District Bilaspur, H.P. (hereinafter to be referred as the suit land). The plaintiffs also prayed for a decree of permanent prohibitory injunction restraining the defendant from interfering into their peaceful ownership and possession.
5. The case of the plaintiffs is that plaintiff No.1 is an old man residing in a remote corner of the District with his old wife (plaintiff No.2). There was no one to look-after them and their estate. Smt. Devku first wife of plaintiff No.1 expired ::: Downloaded on - 24/12/2022 09:18:40 :::CIS 3 when defendant was a small child. It is averred that plaintiff No.1 looked after defendant and got her married by spending .
huge amount. Being a daughter, the defendant had a lot of influence upon the plaintiffs and she always assured to look-
after them. It is further averred that the defendant even cultivated the land owned by them on their behalf and used to handover the usufruct to them as she was their licensee.
Being under the total influence of the defendant, she took plaintiff No.1 to Tehsil to get a Will prepared in her name by assuring them that plaintiffs will remain exclusive owners in possession of the suit property and after their death, the property will devolve upon her. It is also averred that the defendant even assured the plaintiffs that in case they are not satisfied with the services rendered by her, they will be at liberty to revoke the Will. According to the plaintiffs, the defendant obtained thumb-impressions of plaintiff No.1 on a document by representing that the same is a Will and she even told to the plaintiffs that she will retain the Will and they can take the Will back from her as and when required and being daughter, the plaintiffs trusted the defendant.
::: Downloaded on - 24/12/2022 09:18:40 :::CIS 46. It is further averred that after a few years, the defendant told them that she is unable to cultivate the land .
on their behalf. Then, the plaintiffs requested one Shri Garja Ram, who was related to them to cultivate the land for them and on their behalf. This arrangement continued for 4-5 years and Shri Garja Ram used to help them. Thereafter, the defendant asked Shri Garja Ram not cultivate the suit land on the pretext that she is owner in possession of the suit land.
On this, the plaintiffs were taken aback and even remained bed ridden for months together, but the defendant did not turn up to help them. As per the plaintiffs, Shri Garja Ram took their care and is constantly looking after them and when they recovered from ailment, they inquired from defendant about the manipulation of the so-called gift deed. Instead of helping the plaintiffs, the defendant proclaimed that they should approach Shri Garja Ram to serve them.
7. It is also averred that gift deed dated 10.08.2000 is a result of misrepresentation and undue influence exercised by the defendant. As per the plaintiffs, they have revoked the licence of the defendant and she has nothing to do with the disputed property which is owned and possessed by plaintiff ::: Downloaded on - 24/12/2022 09:18:40 :::CIS 5 No.1. The defendant has failed to look after and serve them as was promised.
.
8. It is further averred that the cause of action accrued to the plaintiffs on 14.01.2007 when the defendant entered into the suit land and tried to cut and sell the trees standing thereon by saying that the suit land belongs to her.
The plaintiffs requested the defendant to admit their claim and desist from her unlawful activities, but in vain, hence the suit.
9. The defendant contested the suit by filing written statement and controverted the averments made in the plaint and has taken preliminary objections regarding maintainability of the suit, suppression of material facts, estoppel, non-joinder and valuation of the suit property.
10. On merits, it was admitted that plaintiff No.1 is an old man, however, it is averred that he is hale and hearty.
Plaintiff No.1 was married to Smt. Devku (mother of the defendant), who expired 30 years ago. It is further averred that after the demise of Smt.Devku, plaintiff No.1 tied nuptial knot with Smt. Hardei daughter of Sh. Durga Ram. The second wife of plaintiff No.1 left the land after about 10 years of the ::: Downloaded on - 24/12/2022 09:18:40 :::CIS 6 marriage and no child was born to her. It is also averred that thereafter plaintiff No.1 brought Smt. Manbharu (plaintiff No.2) .
and stated residing with her. No child took birth from the womb of plaintiff No.2. Plaintiff No.1 being father had full love and affection for the defendant. Defendant and her husband served plaintiff No.1 as is expected from a daughter in Hindu society and out of love and affection, plaintiff No.1 persuaded her and her husband to stay with him in the village and they started living in the house of plaintiff No.1 and served him whole heartedly.
11. According to the defendant, satisfied with the services rendered by her, plaintiff No.1 requested her to get a gift deed executed in her favour. She told her father that there is no necessity to execute the deed since there is no one to claim his property. Plaintiff No.1 did not agree to this proposal and remarked that he wanted to make her the owner of the disputed land during his life time so that she is not harassed by anyone including plaintiff No.2 after his death. Accordingly, plaintiff No.1 executed a gift deed dated 10.08.2000 qua the suit property in her name. As per defendant, after execution of the gift deed, she and her husband were left with no other ::: Downloaded on - 24/12/2022 09:18:40 :::CIS 7 option but to built a house consisting of 3 rooms after spending approximately Rs.two lacs over the suit land. Mutation No.166 .
on the basis of the gift deed was sanctioned in her favour on 27.04.2001 in the presence of plaintiff No.1. Neither any facts were misrepresented nor the gift deed in question is the result of undue influence because the deed in question was executed by plaintiff No.1 of his own accord and free volition.
12. It is also averred that when defendant started living in the village, some commotion took place amongst the relatives and they started poisoning the plaintiffs against her.
Plaintiff No.1 is an habitual drunkard. Sh. Garja Ram, who happens to be nephew of plaintiff No.1, taking full advantage of the drinking habit of plaintiff No.1, took him in his grip and now plaintiff No.1 is dancing on the tunes of Shri Garja Ram. In the year 2006, defendant fell ill. Her husband took her to Shimla for treatment. During her absence, Shri Garja Ram got prepared a false Will of about 2 bighas of the land from plaintiff No.1 and to throw out her from the disputed property, Shri Garja Ram managed to get the suit filed by the plaintiffs.
After the execution of the gift deed, she is owner in possession of the suit land and she will continue to serve her father. No ::: Downloaded on - 24/12/2022 09:18:40 :::CIS 8 threat was every advanced and a false story has been cooked up by the plaintiffs. The defendant prayed for .
dismissal of the suit.
13. The plaintiff filed replication reiterating the averments made in the plaint and controverted the objections put forth by the defendant. It was denied that a house was constructed by the defendant and her husband in and over the suit land.
14. Out of the pleadings of the parties, the learned trial Court on 28.04.2007 framed the following issues:-
"1. Whether the plaintiffs are entitled for relief of declaration as prayed for? OPP.
2. Whether the plaintiffs are entitled for relief of permanent prohibitory injunction as prayed for?
OPP.
3. Whether the present suit is not maintainable?
OPD.
4. Whether the plaintiffs have no cause of action? OPD.
5. Whether the plaintiffs have not approached to the Court with clean hands? OPD.
6. Whether the plaintiffs are stopped by their act, conduct and acquiescence from filing the present suit. OPD.::: Downloaded on - 24/12/2022 09:18:40 :::CIS 9
7. Whether the suit is bad for non-joinder of necessary parties? OPD.
.
8. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD.
9. Relief."
15. On 20.03.2013, the learned trial Court framed an additional issue to the following effect:-
"2A. Whether the gift deed dated 10.8.2000 is a result of undue influence and misrepresentation?
OPP."
16. After recording evidence led by both the parties and evaluating the same, the learned trial Court on 30.05.2015 dismissed the suit filed by the plaintiffs. The appeal filed by the plaintiffs against the judgment and decree passed by the learned trial Court before the learned first appellate Court also met with the same fate.
17. This Court vide order dated 12.05.2016 admitted the appeal on the following substantial question of law:-
"Whether on account of misappreciation of the pleadings and misreading of the oral as well as documentary evidence available on record the findings recorded by both Courts below are erroneous and as such the judgment and decree ::: Downloaded on - 24/12/2022 09:18:40 :::CIS 10 impugned in the main appeal being perverse is vitiated and not legally sustainable?"
.
18. I have heard the learned counsel for the parties and have also gone through the records of the case carefully.
19. It has been the case of the plaintiffs throughout that what he had executed was not a gift deed, but was a Will and, therefore, the gift deed in favour of the defendant was null and void and an outcome of fraud, undue influence and misrepresentation.
20. In order to prove his case, plaintiff No.1 stepped into the witness box as PW-1 and reaffirmed and reasserted the contents of the plaint in his examination-in-chief and also placed on record copy of jamabandi Ex.PA which shows an entry of 2 bighas of land of plaintiff No.1 in favour of Garja Ram, nephew of the plaintiff. According to the plaintiffs, Garja Ram was looking after them, therefore, he (plaintiff No.1) executed gift deed in his favour. The plaintiff stated that the gift deed in question in favour of the defendant is null and void and is an outcome of fraud, undue influence and misrepresentation on the part of the defendant. In these ::: Downloaded on - 24/12/2022 09:18:40 :::CIS 11 circumstances, the onus to prove the gift deed as held by the learned trial Court shifts upon the defendant.
.
21. The defendant examined herself as DW-3 and reaffirmed and reasserted the contents of the written statement in her examination-in-chief and placed on record copy of gift deed Ex. DW-1/A.
22. To prove the gift deed Ex. DW-1/A, she also examined one Naval Kishore, Sub Registrar as DW-1 and DW-2 Munshi Ram, Naib Tehsildar.
23. DW-1 Naval Kishore stated that the gift deed was correct as per their record, whereas, DW-2 Munshi Ram stated that one Chet Ram and another Chet Ram son of Shri Mahant Ram appeared as witnesses with plaintiff No.1 when gift deed was executed. He further stated that gift deed was read over and explained to plaintiff No.1 in his own language and after admitting the same to be true, plaintiff No.1 voluntarily executed the gift deed in favour of the defendant.
24. The learned Courts below after placing reliance on the statements of the defendant's witnesses and mutation No. 166 dated 27.04.2001 Ex. DW-3/A wherein presence of plaintiff ::: Downloaded on - 24/12/2022 09:18:40 :::CIS 12 No.1 and defendant was stated to be marked in "Jalsa Aam", dismissed the suit of the plaintiffs.
.
25. However, one material fact which both the learned Courts below have not touched upon much less dealt with is the non-examination of at least one of the attesting witnesses as per the requirement of Section 68 of the Indian Evidence Act (for short 'Act') which reads as under:-
"68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
3[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]"
26. The defendant has not examined the scribe as also the attesting witnesses of the alleged gift deed. Save and except witness Chet Ram son of Shri Rubel Ram, resident of ::: Downloaded on - 24/12/2022 09:18:40 :::CIS 13 Village Tunhu, Tehsil Sadar, District Bilaspur, the other attesting witness had died and as regards this witness, he admittedly .
was not examined by the defendant while leading her evidence. But, later on, an application came to be filed by the defendant under Order 16 Rule 1(3) read with Section 151 CPC for examining the aforesaid Chet Ram as a witness. In the application, it was pleaded that while preparing the list of witnesses, the name of Chet Ram had bonafidely been left out and since he was alive, therefore, she may be permitted to examine him. The application was duly allowed subject to payment of Rs.300/- vide order dated 20.03.2013. The witness Chet Ram was though present in the Court on 10.12.20213, however, since the original counsel representing the defendant was not present on account of death of his relative, he was discharged for the day and the case was listed for defendant's evidence on 16.01.2013, as is evident from the order dated 10.12.2013. On 16.01.2014, the learned trial Court proceeded to pass the following order:-
"The counsel for defendant given up PW Chet Ram being won over by the plaintiffs and closed evidence ::: Downloaded on - 24/12/2022 09:18:40 :::CIS 14 vide separate statement placed on record. Now case be listed for arguments on 28.2.2014."
.
27. A similar issue regarding non-compliance of mandatory requirement of Section 68 of the Act came up before the Hon'ble Punjab and Haryana High Court in Sohan Singh and another vs. Amrik Singh and others, AIR 2005 Punjab and Haryana, 176, wherein one of the attesting witnesses though alive was not examined to prove the due execution of the Will and was given up as won-over, it was held that this amounted to non-compliance of mandatory provisions of Section 68 of the Act and the Will in question could not be used as evidence. It is apt to reproduce the relevant observations as contained in para-4 and 5 of the judgment which read as under:-
"4. As referred to above, in my opinion, there is no merit in this appeal and the same is liable to be dismissed. While considering the question regarding validity of Will dated 30-8-1988, allegedly executed by Raju deceased in favour of defendants 1 to 3, it was found by the learned Addl. Distt. Judge that the execution of the said Will was not duly proved on the record. It was found that as per the Will Ex. D1, the same was attested by Jarnail Singh and Gurbachan ::: Downloaded on - 24/12/2022 09:18:40 :::CIS 15 Singh, Numberdar. It was found that Jarnail Singh, one of the attesting witnesses, was not produced in .
evidence and was given up as having been won over by the plaintiffs whereas the other attesting witness namely Gurbachan Singh, Numberdar had allegedly died before he could be examined even though he had sworn on affidavit on 28-10-1996, Ex. DW 5/A but the same could not be looked into and could not be made the basis for holding the due execution of the Will in question. In my opinion, this finding recorded by the learned Addl. Distt. Judge is perfectly in accordance with law and no fault could be found with the same. Jarnail Singh, One of the attesting witnesses, was not examined by the defendants to prove the due execution of the Will in question by Raju deceased, whereas Gurbachan Singh, Numberdar was also not examined as he had allegedly expired. In my opinion this finding recorded by the learned Addl. Distt. Judge is perfectly in accordance with law and no fault could be found with the same. Jarnail Singh, one of the attesting witnesses was not examined by the defendants to prove the due execution of the Will in question by Raju deceased whereas Gurbachan Singh, Numberdar was also not examined as he had allegedly expired. In my opinion, the learned Addl. Distt. Judge had rightly not placed reliance on the affidavit Ex. DW 5/A, allegedly executed by Gurbachan Singh, Numberdar since the plaintiffs did not have any opportunity to cross-examine Gurbachan Singh and as such on the basis of said ::: Downloaded on - 24/12/2022 09:18:40 :::CIS 16 affidavit it could not be said that the due execution of the Will in question was proved on the record. Under .
Section 63 of the Indian Succession Act, 1925, it has been provided that Will shall be attested by two or more witnesses each of whom has seen the Testator sign or affix his mark to the Will and each of the witnesses shall sign the Will in the presence of the Testator, but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary. Under Section 68 of the Indian Evidence Act, 1872, it has been provided that if a document is required by law to be attested it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence. In the present case, as referred to above, none of the attesting witnesses had been examined by the defendants to prove due execution of the Will in question. If one of the attesting witnesses had died during the pendency of the suit, the other attesting witness could be examined to prove the due execution of the Will. As referred to above, Jarnail Singh was still alive but was not examined and was, given up as won over. This is in spite of the fact that diet money in respect of Jarnail Singh was deposited in the Court but still he was not examined and was given up as won over. So far as Gurbachan Singh is concerned, even though diet money qua, him was deposited but before ::: Downloaded on - 24/12/2022 09:18:40 :::CIS 17 he could be examined as a witness he expired and as such his statement could not be recorded. The affidavit .
sworn by him, in my opinion, would, be of no consequence since admittedly, the plaintiffs did not have a chance to cross-examine Gurbachan Singh and thus the affidavit sworn by him would be neither here nor there and would not help the defendants to prove the due execution of the Will in question. By not examining one of the attesting witnesses, the defendants have failed to comply with the mandatory requirement of Section 68 of the Indian Evidence Act, 1872 and as such the Will in question could not be used as evidence.
5. The authority Surinder Singh v. Anup Singh, 2002 (1) Rec Civ R 207 : (2001 AIHC 4551), relied upon by the learned counsel for the defendants appellants, in my opinion, would be of no help to the defendants. In the reported case, both the attesting witnesses of the Will were examined. However, they refused to support the Will. On the other hand from the evidence of Doctor it was found that the Testator was mentally alert, sound and cautious and was thus in sound and disposing mind. It was also found that where both the witnesses had not supported the Will, in such a case the Court could not be a mute spectator and the Court can look into the whole circumstances of the case and come to the conclusion whether formalities of Section 63 of the Indian Succession Act had been complied with. In the reported case, it was found that the Testator had ::: Downloaded on - 24/12/2022 09:18:40 :::CIS 18 distributed his property in a very natural and intelligent manner and the Will was scribed in the hospital in the .
presence of the Doctor and two witnesses. In my opinion, the law laid down in the aforesaid authority would have no application to the facts of the present case, inasmuch as in the present case none of the:
attesting witnesses has been examined to prove the due execution of the said Will. Merely by giving up one witness as won over, in my opinion, would not be sufficient to prove the requirement of Section 68 of the Indian Evidence Act."
28. That apart, a similar issue came up before the Hon'ble Supreme Court in Babu Singh and others vs. Ram Sahai alias Ram Singh (2008) 14 SCC 754, regarding the proof of execution of Will as per Section 68 of the Act wherein it was held that mere statement of a Counsel for the plaintiff that only surviving attesting witness was won over by the opposite party was not sufficient to prove his absence as there must be some evidence brought on record in that behalf. It is apt to reproduce the relevant observations as contained in paras 19 and 20 of the judgment which reads as under:-
"19. Indisputably, one of the attesting witnesses was dead. Our attention, however, has been drawn to the fact that a purported summons were taken out against ::: Downloaded on - 24/12/2022 09:18:40 :::CIS 19 the said Harnek Singh. Admittedly, it was not served. There is nothing on record to show that any step was .
taken to compel his appearance as a witness. Ram Sahai in his deposition did not make any statement that the said Harnek Singh had been won over by the appellant. He did not say that despite service of summons, Harnek Singh did not appear as a witness. In his cross-examination, he alleged that he and Harnek Singh were inimically disposed of towards each other even prior to 1991 and in fact "since the time of his ancestors". It was furthermore alleged that they are not on speaking terms. A suggestion was given to him that in fact Harnek Singh had come to Court on that day to which he denied his knowledge. It is only in answer to a question in cross-examination, he stated that he did not intend to examine the said Harnek Singh.
20. Harnek Singh may be a person who had been won over by the appellant but there must be some evidence brought on records in that behalf. The learned Trial Judge, in our opinion, rightly rejected the bare statement made by the learned counsel for the plaintiff that the other attesting witness had gone out of the country. Respondent himself did not say so on oath. He did not examine any other witness."
29. Even in a Criminal Law, the mere statement on behalf of the prosecution that the witness has been won-over is not conclusive on the question that the witness has indeed ::: Downloaded on - 24/12/2022 09:18:40 :::CIS 20 been won-over . Such inference can be drawn only after the witness has appeared in the witness box and his statement .
recorded. Meaning thereby, when the prosecution alleges that a material witness has been won-over by the accused, it is still necessary that such witness must be produced and examined at the trial to reveal the truth. (See: Habeeb Mohammad vs. The State of Hyderabad, AIR 1954 SC 51, Stephen Seneviratne vs. The King AIR 1936 SC 289 and Ram Ranjan Roy vs. Emperor, AIR 1915 Calcutta 545).
30. Apart from the above, it would be noticed that both the Courts below have unnecessarily been swayed by some sort of entry made in mutation No. 166 dated 27.04.2001 Ex. DW-3/A to conclude that it recorded the presence of plaintiff No.1 and the defendant in 'Jalsa Aam" convened on the said date.
31. The learned Courts below have failed to take into consideration that the object of mutation is to get the entries recorded in the record of rights up-to-date. It is the record of rights that have presumption of correctness attached to it under the Land Revenue Act, whereas, the mutation ::: Downloaded on - 24/12/2022 09:18:40 :::CIS 21 proceedings by themselves do not determine the question of right and title. Therefore, it is only the correctness with regard .
to record of rights and not the attendance that is marked in these proceedings that carries a presumption of truth, that too, a rebuttable one, which has to be proved independently by leading clear, convincing and cogent evidence.
32. Given the background, that it was the specific case of the plaintiff that he had executed a Will and not a gift deed, then it was incumbent upon the defendant to examine the sole surviving witness, who alone could have stated about the fact as to whether plaintiff No.1 had executed a Will or a gift deed.
33. Another factor which creates suspicion is the fact that the stamps in the instant case were purchased on 03.08.2000 as is evident from the stamp papers, but the so-
called gift deed was executed a week later on 10.08.2000.
There is no explanation forthcoming from the side of the defendant as to why the so-called gift deed was not executed at the time of purchasing the stamp papers i.e. on 03.08.2000.
::: Downloaded on - 24/12/2022 09:18:40 :::CIS 2234. The learned counsel for the defendant would, however, contend that since the Registering Authority has .
stated about the attestation of the document, therefore, there was no requirement or otherwise necessity for the defendant to have examined the witness Shri Chet Ram.
However, I find no merit in this contention.
35. The word "attested" occurs in Section 3 of the Transfer of Property Act, (for short 'Act'), as part of the definition itself. To attest is to bear witness to a fact. The essential conditions of a valid attestation under Section 3 of the Act are : (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is, therefore, essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgement of his signature. If a person puts his signature on the document for some other purpose, for example, to certify that he is a scribe or an ::: Downloaded on - 24/12/2022 09:18:40 :::CIS 23 identifier or a Registering Officer, he is not an attesting witness.
36. The Registering Officer puts his signatures on the .
document in discharge of his statutory duties under Section 59 of the Registration Act and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signatures or then there is a positive evidence led that the Registering Officer had put his signatures on the document for the purpose of attesting and in addition to or for the purpose of attesting also. There is no such evidence led in the instant case. In absence of any evidence, the mere fact that the Registering Authority has been examined would only go to show that he had registered the document, but it cannot be relied upon for the purpose of treating the Registering Officer to be a witness in the instant case.
37. Moreover, it is established on record that the defendant was none other than the daughter of plaintiff No.1 and, therefore, was in a position to dominate the Will of the plaintiffs.
38. In view of the aforesaid discussion and for the reasons stated above, I find that the findings of both the ::: Downloaded on - 24/12/2022 09:18:40 :::CIS 24 learned Courts below are perverse and, therefore, are not legally sustainable.
.
39. The substantial question of law is answered accordingly.
40. In view of the aforesaid discussion and for the reasons stated above, I find merit in this appeal and the same is allowed. The suit filed by the plaintiffs is decreed throughout with costs and the judgments and decrees passed by both the learned Courts below are ordered to be set aside.
Pending application, if any, also stands disposed of.
(Tarlok Singh Chauhan) Judge 9th May, 2022.
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