Durga Parshad v. Ishwar Datt & Anr.

CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Brijender Kaushik, Advocate, for the appellant. ***** RAKESH KUMAR JAIN, J. The plaintiff is in second appeal against the judgment and decree of the Courts below by which suit filed by him for declaration and permanent injunction, has been dismissed. The case set up by the plaintiff is that one Balu Ram was father of the plaintiff and defendant No.1 and husband of defendant No.2. He had three daughters, namely, Lajwanti, Bhagwanti alias Rachna and Sunita. Balu Ram was allotted a house bearing MC Unit No.B-454, situated in Street Charjan, Birwan Pana, Bhiwani by the Government of India in lieu of his house held by him in Pakistan. It was alleged that the suit property was ancestral and as such, the plaintiff had 1/3 share and defendants had 2/3 shares in the suit property. It is further alleged that in the year 1993, the plaintiff got married. He had purchased a Nohra measuring 25 Sq. yards in the year 1990 and another Nohra measuring

116.66 Sq. Yards in the year 1995 from his own expenses in the name of his parents. It was further alleged that defendant No.1, by exercising undue influence, coercion and threat, got a Will executed from his father Balu Ram on 21.01.2000. Balu Ram expired on 16.10.2000. After performing his last rites, when the plaintiff went to the office of the Nagar Parishad, Bhiwani for transferring ownership of the property bearing MC RSA No.2844 of 2010 (O&M) - 2 - ***** Unit No.B-454 in the name of his mother, he came to know about the registered Will dated 21.01.2000 as defendant No.1 had filed an application for change of ownership of the property bearing MC Unit No.B-454 on the basis of said Will. It was, thus, alleged that the Will dated 21.01.2000 pertaining to the property bearing MC Unit No.B-454 is illegal as the property in dispute was ancestral in the hands of Balu Ram who had no right to bequeath it by way of Will. It was also alleged that at the time of execution of Will, Balu Ram was ill and had lost his mental balance. The said Will was never read over either to the testator or to the witnesses, therefore, it was alleged that the Will was an act of misrepresentation and fraud and would not create any right in respect of the property in dispute. In the written statement, it was alleged by the defendants that Balu Ram had no house in Pakistan and was not allotted any house bearing MC Unit No.B-454 by the Government of India. The said house was purchased by Balu Ram himself and is his self-acquired property, therefore, being exclusive owner in possession, he was entitled to dispose it of by way of Will or in any other manner. As a matter of fact, it was denied that the property in dispute was ancestral or a coparcenary property. It was further alleged that Balu Ram had coaxed the plaintiff to learn the work of motor car mechanic in which he had spent money and, thereafter, got him a shop on rent under the name and style of “Central Motor Garage”. The plaintiff, being a clever person, kept the entire income from the said Garage and purchased a plot in Kamla Nagar, Bhiwani during the life time of Balu Ram and had constructed a beautiful house thereon. Out of the income of the said Garage, the plaintiff had also purchased a shop, in which he is running a Garage, from Shanti widow of Nanak Singh on

06.04.1998 in the name of his wife for a sale consideration of ` 22,00,000. It was further denied that the plaintiff had spent money on the marriage of daughters of Balu Ram. It was also denied that the plaintiff had purchased 2 Nohras from his own expenses. It was further denied that Balu Ram was suffering from any ailment and was not mentally sound and there was any RSA No.2844 of 2010 (O&M) - 3 - ***** pressure upon Balu Ram at the time of execution of Will dated 21.01.2000. On the pleadings of the parties, the learned Trial Court formulated various issues on 22.07.2003. On the basis of the evidence available on record, the learned Trial Court dismissed the suit of the plaintiff vide his judgment and decree dated 21.03.2006. Similarly, the plaintiff remained unsuccessful before the learned First Appellate Court. Learned counsel for the appellant has argued that the Will is surrounded with suspicion as the propounder had taken an active part in the execution of the Will. The Courts below have held that the Will was scribed by Ghanshyam, Deed Writer at the instance of Balu Ram and it was signed by him after it was read over and understood. The Will was registered in the office of the Sub Registrar. It was witnessed by two attesting witnesses, namely Chandan Singh Numberdar (DW2) and Hari Chand (PW4) who had identified their signatures. Therefore, it was held that the Will has been duly proved in terms of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. In so far as the question of participation of the propounder is concerned, there is only one statement of PW4 which is of no consequence in the facts and circumstances of the case as the plaintiff has failed to prove any suspicious circumstance surrounding the execution of registered Will as he has miserably failed to prove that Balu Ram was not mentally alert or the Will in question was not read over to him before its execution and other requirements of law are not complied with. In this view of the matter, I do not find any reason to take a view contrary to the view taken by the learned Courts below in dismissing the suit of the plaintiff as no question of law much-less substantial is involved in this appeal. In view of the above discussion, the present appeal is found to be without any merit and as such, the same is hereby dismissed in limine, however, without any order as to costs. September 13, 2010. vinod* (RAKESH KUMAR JAIN) JUDGE