S.N.Andley, J. - (1.)Pehald Singh, Harnam Singh, Jaishi Ram sons of Swan Singh and Mr. Kidko, daughter of the paid Swan Singh, filed a suit for prossession of land against Surjan, Rattan Chand, jit Singh and Partap Singh. They claimed possession of the land which had belonged to Mt. Mal to alias Rahanso. They claimed possession of this land as the nephews of Mt. Malto. Defendents Nos. 2, 3 and 4 were grand nephews of Mt. Malto while defendant No. 1 Surjan was her nephew being the son of a brother of her husband. Mt. Malto had executed a will with respect to her property on October 3, 1961, and beneficiaries under this will were Rattan Chand, Jit Singh and Pratap Singh (Defendants Nos. 2 to 4). The will was got registered: before the Sub-Registrar, Hamirpur. On the same date, Mt Malto; executed a document wherein she acknowledged that she had executed the aforesaid will; that the defendants had been faithfully serving her and looking after her property ; that they had paid off her debts and; they had not charged anything for the services rendered by them. It; is further stated by her that the defendants were to perform her funeral' eremonies and that she was happy with them. She further recited that? she could not think of any other persons who would even give her a drink of water. The object of executing this document is staled to be: that all these things could not have been mentioned in the will executed by her. After slating this she goes on to say that she has, therefore,' executed this document ; that she will not execute any other document in respect of her property but if she does, then she will be liable to pay to the defendants all that they had spent on her during the last 25 years and which will be recoverable from her movable and immovable properties.
(2.)It is not disputed that if Mt. Malto had died intestate, the plaintiffs would have been entitled to half of her property and the other half would have been inherited by the defendants. The Subordinate Judge, Hamirpur, who tried this suit gave his judgment on October 20, 1964. The judgment was in respect of the following Issues :-
1. Whether Smt. Rahanso deceased executed a valid will dated October 3, 1961, in favour of defendant No. 2 to 4 in respect of the property in suit ? 2. Whether the alleged will was executed under fraud or undue influence ? 3. Whether the plea under Issue No. 2 is not open to the plaintiffs ? 4. Whether the father of defendant No. 1 Mohar Singh abandoned his right in the land in suit ? If so, the what effect ? 5. Relief.
Issue No. 3 was decided in favour of the plaintiffs and they were held entitled to challenge the will and plead undue influence and fraud in connection with its execution. The learned Subordinate Judge deal with Issues 1 and 2 together. On issue No. 1 he held that the will was duly proved. For deciding Issue No. 2. he took into consideration th aforesaid document which was executed contemporaneously with the will which is marked Exhibit D. 3. In view of the age of Mt. Malto which was about 80 years at the time of the execution of the will the fact that the defendants were supporting or maintaining her in the absence of any body else the need of the testatrix for help in her old age which was given by the defendants by reason of their relationship and her dependence upon the defendants, the trial Court came to the conclusion upon a reading of section 16 of the Indian Contract Act, that the defendants were in a position to dominate the will of the testatrix. He then came to the conclusion that the defendants had utilized their position to obtain an unfair advantage and for that he relied apon the said document Exhibit D. 3 on the basis of which he entertained a reasonable suspicion that the execution of the will was the result of undue influence. Issue No. 4 is not material to this appeal. In the result the trial Court decreed the suit to the extent of half share of the plaintiffs in the property belonging to the testatrix.
(3.)Defendants No. 2 and 3 appealed to the District Judge, Hoshiarpur. against the aforesaid decree. The appeal was accpeted by order dated September, 17, 1965. The learned District Judge also examined the oral and documentary evidence produced by the parties. He concluded that there was no evidence on the record to show that the testatrix was a victim of fraund or undue influence in the execution of the will that it was natural in the circumstances to expect that the testatrix would like to give away her property to the respondents who had been serving her and that mere persuasion by the contesting respondents would not amount to undue influence in so far as the execution of the will by the testatrix was concerned. The learned District Judge observed that Exhibit D. 3 acknowledged the rendering of services by the respondents and that the trial Court was not justified, merely on the recitals contained in Exhibit D. 3, to come to the conclusion that the will had been executed as a result of undue influence. In the opinion of the learned District Judge the evidence on the record pointed out to the fact that the testatrix had executed the will in lieu of the services rendered to her by the respondents.