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Appellant-plaintiff is aggrieved of judgment and decree dated 15.09.2016, passed by the learned Additional Civil Judge (Sr. Division), Jaitu, as well as judgment and decree dated 23.12.2016, passed by the learned District Judge, Faridkot, whereby suit for declaration filed by the plaintiff-appellant has been dismissed.

Brief facts necessary for the adjudication of the case are that appellant-plaintiff filed a suit seeking declaration to the effect that she is the owner in joint possession of 1/ 3rd of 38K-8M as detailed in the plaint and that she is entitled to get her share separated in due course of law from the defendants. It was further pleaded that originally Gian Kaur wife of Malkit Singh son of Arjan Singh was the owner of the suit property. Gian Kaur died on 09.11.2011 leaving behind the plaintiff and both the defendants (her brothers) as her legal heirs. Gian Kaur died intestate and after her death, plaintiff and the defendants became owners in joint possession of the suit land. Being daughter of Gian Kaur, plaintiff claimed to be the owner in joint 1 of 6 possession of 1/ 3rd share. She requested the defendants to admit her claim, but in futility. Hence the suit was filed.

Defendants resisted the suit. Joint written statement was filed. Various preliminary objections were taken in the written statement. Averments on merits were controverted. Defendants claimed to be owners in possession of the property in question on the basis of will dated 15.05.2011 executed by Gian Kaur. It was stated that the plaintiff was living with her husband at Chhattisgarh and was happily married. Sufficient money was spent on her marriage as per the status of the family. She was not entitled to any share in the ancestral property. Defendants and their family used to look after and serve Gian Kaur during her lifetime. It was out of love, affection and services rendered by the defendants that Gian Kaur executed will dated 15.05.2011 in her sound disposing mind. Will was claimed to be attested by Ajaib Singh and Jagsir Singh and scribe Balkaur Singh, Panch of Village Sarawan. Defendants, it is stated came to know about the will after Gian Kaur's death. As the will was an unregistered one, they applied for its registration. Will was registered on 02.08.2012 by order of the Joint Sub- Registrar, Jaitu. It was further stated that Gian Kaur had three sons namely Roop Singh, Basant Singh and Nachhattar Singh. Nachhattar Singh predeceased Gian Kaur. He died unmarried and issue-less. Mutation of inheritance of Nachhattar Singh was entered in favour of Gian Kaur. Dismissal of the suit was prayed for.

I have heard learned counsel for the appellant and have gone through the file with his assistance.

Relationship between the plaintiff and the defendants is not in dispute. They are admittedly siblings and children of Gian Kaur, who was the owner of the property in question. Plaintiff has claimed her share in the proeprty being the legal heir of Gian Kaur. It is pleaded that Gian Kaur died intestate. Per contra, defendants have propounded will dated 15.05.2011, Ex.D-1. Defendants, in order to prove the said will have examined DW-1- Ajaib Singh and DW-3-Jagsir Singh, the attesting witnesses of the will, besides DW-2-Balkaur Singh, scribe of the will. All the three witnesses have categorically deposed about the execution of the will, Ex.D-1 by deceased Gian Kaur in her sound disposing mind in favour of the defendants. Plaintiff has claimed the will to be a forged and fabricated document. PW-2-Sanjeev 4 of 6 Sharma, Handwriting Expert, was examined by the plaintiff. However, there is no question of reliance upon the testimony of PW-2 as he has categorically opined that thumb impression of Gian Kaur on the will Ex.D-1 is not fit for comparison and no opinion can be formed regarding the identity of the thumb impression. Merely because spacing of the last lines of the writing of the will may be narrow, cannot be a reason by itself, to discard the said will.

At this stage, it is pertinent to note that Inderjit Kaur, in her cross-examination has admitted the execution of the will by her mother Gian Kaur in favour of her brothers. She admitted that her brothers used to serve Gian Kaur. They had also admitted Gian Kaur in the hospital for her treatment when she was unwell. It is further stated by Gian Kaur that she filed objections at the time of registration of the will, though the said objections were dismissed. PW-1-Inderjit Kaur, further admitted in her cross-examination that both the marginal witnesses and the scribe who are the residents of village Sarawan (her parental village) are known to her and they have no dispute or ill-will with her. There is thus no reason for them to have deposed incorrectly. Furthermore, exclusion of one of the legal heirs in the will cannot be a suspicious circumstance to invalidate the will in question in the facts and circumstances of the case.