Nawaboo v. Smt. Roshni & Ors.

CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. J.P.Sharma, Advocate, for the appellant. Gurdev Singh, J (oral) The appellant/plaintiff – Smt. Nawaboo having failed before the trial Court and the first Appellate Court, has preferred this second appeal. She filed suit for declaration to the effect that will dated 6.9.2002 alleged to have been executed by Jai Chand is wrong, illegal, null and void and not binding on her rights and that she is entitled to ½ share out of his estate by virtue of the first Will dated 7.7.2000 and by way of natural succession and also for perpetual injunction restraining respondents/defendants from getting the will dated 6.9.2002 enforced forcibly and illegally and from alienating the land in dispute and dispossessing her therefrom. She pleaded in her plaint that she herself and defendant No.1 are the daughters of Jai Chand, who had executed registered will dated 7.7.2000 regarding his estate and by virtue of that will they inherited his estate in equal shares. After his death on 5.12.2003, when she presented the said will before the revenue authorities for getting mutation of inheritance R.S.A. No. 1863 of 2010 (O&M) -2- sanctioned, it transpired that defendant No.1 got executed second will dated

6.9.2002 regarding the estate of Jai Chand, which is in favour of respondents No. 2 to 6/defendants No.2 to 6. Defendants No. 2 to 5 are the sons and daughters of defendant No.1, whereas defendant No.6 is her daughter. That will is wrong, illegal, null and void and is liable to be ignored and is not binding on her rights. The same is shrouded by suspicious circumstances, which were enumerated by her in the plaint itself. She also pleaded that the second will is the result of fraud and misrepresentation. The suit was contested by defendants No. 1to 5. In their written statement they admitted that the Will dated 7.7.2000 was executed by Jai Chand bequeathing his estate in favour of plaintiff No.1 and defendant No.1, in equal shares. They denied the other contentions made in the plaint and inter alia pleaded that the plaintiff had started ignoring their father- Jai Chand and in order to avoid hardship to him she was constrained to take him to her matrimonial home where she served him for all intents and purposes. On 6.9.2002, he on his own, executed the will in dispute, as he had desired to bequeath his properties in favour of defendants No. 2 to 6. He was in proper state of mind at that time and will is legal and binding on concerned persons, including the plaintiff. The land was not ancestral property in hands of Jai Chand. The same was purchased by him on his own. He was sonless proprieter and had every right to deal with his property in any manner. It was as a result of typographical mistake that his age was described as 62 years in the Will dated 6.9.2002. By virtue of that Will the plaintiff has no share in the property in dispute. R.S.A. No. 1863 of 2010 (O&M) -3- In replication to the written statement, the plaintiff denied all the contentions raised therein and reiterated her averments made in the plaint. On the pleadings of the parties following issues were framed by the learned trial Court:-

1. Whether the will dated 6.9.2002 is wrong, illegal and not binding on the rights of the plaintiff and the plaintiff is entitled to inherit ½ share in the estate of deceased Jai Chand by virtue of legal first will of deceased executed on 7.7.2000 and by virtue of natural inheritance?OPP

2. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?OPD

3. Whether the suit of the plaintiff is not maintainable?OPD

4. Whether the plaintiff has no locus standi and cause of action to file the suit?OPD

5. Relief. To succeed in the suit the plaintiff examined her special attorney Jai Pal PW1 and Balbir Singh PW2. On the other hand the defendant examined Gian Chand Kapoor DW1, Kuldeep DW2 and Inder Singh DW4. Manoj defendant entered the witness box as DW-3. After going through that evidence and hearing learned counsel for both the sides learned trial Court decided all the issues against the plaintiff and resultantly dismissed her suit vide judgment and decree dated

22.4.2009. The first appeal so preferred by the plaintiff against that judgment and decree was dismissed by Additional District Judge, Sonepat, vide judgment and decree dated 30.9.2009. R.S.A. No. 1863 of 2010 (O&M) -4- I have heard learned counsel for the plaintiff. It has been submitted by learned counsel for the plaintiff that the will dated 6.9.2002, which has been upheld by both the lower Courts was never executed by Jai Chand while he is in sound disposing mind and is shrouded by suspicious circumstances. No reason has been given therein for disinheriting the plaintiff and defendant No.1, who are admittedly his daughters. It is the case of the parties that the testator had already executed the will dated 7.7.2000 in favour of the plaintiff and defendant No.1. There is no recital in the second will for revoking the first will. Vide this will unequal distribution has been made. He also submitted that the lower Courts did not determine the nature of the property in hands of the deceased, which was ancestral and as such no such will could have been executed. According to him in view of the said submissions substantial questions of law arise in the present appeal. It can easily be inferred from the judgments of the lower Courts that no evidence was produced by the plaintiff for proving that on 6.9.2002, when the impugned will was executed, Jai Chand – deceased was not in soun disposing mind. Lower Courts did consider the nature of the properties in the hands of the deceased. It has been observed by the trial Court in para No. 26 of the judgment that the testator was sonless proprietor and the property coming to his hand became his self-acquired property. The circumstances, which have been pointed out by learned counsel for the plaintiff and enumerated above, cannot be said to be such circumstances so as to arouse a suspicion regarding the genuineness of the will. In view of the concurrent findings of fact recorded by the lower R.S.A. No. 1863 of 2010 (O&M) -5- Courts, no substantial question of law arises in the present appeal and the same is dismissed accordingly. December 9, 2010 tripti (Gurdev Singh) Judge