In Re Anuj Jain v. Sangeeta Jain & Ors whereby the application filed under Order

consideration before the learned trial court to which learned counsel for the appellant responds that he wants an order on merits. As such the Court proceeds to hear and decide the matter.

7. Bereft of unnecessary details facts of the case as set forth in the appeal are that one Shri Mukesh Jain, the husband of respondent No.1 and father of respondents No.2 & 3 herein, had executed a first registered will on 04.09.2013. He executed a second will on

28.03.2016 by which he cancelled his first will dated 04.09.2013.

8. Subsequent thereto, another will dated 18/19.07.2019 was executed by Shri Mukesh Jain, a copy of which is Annexure-4 to the appeal, which was executed in favour of the appellant herein.

9. It is contended that the said will specifically indicates in detail all the properties as have been bequeathed to the appellant. The appellant claims himself to be the son of the maternal brother of Shri Mukesh Jain vis a vis respondents No.1 & 2 and 3 who are wife and real sons of Shri Mukesh Jain respectively.

10. It is also contended that Shri Mukesh Jain had got published notices in the newspapers dated 17.01.2014, 25.01.2024 and

26.01.2014 a copy of which is Annexure-4 to the appeal, whereby he had indicated that his sons namely the respondents No.2 & 3 are running their independent business separately from him and that Shri Mahesh Jain is not responsible for any financial dealings or any other civil, criminal or revenue proceedings. It was also indicated in the said notice that Shri Jatin Jain and Shri Nitin Jain and his wife either presently or in future would not be eligible to receive any property by means of a will.

11. Subsequent thereto, the respondents claimed to have got a will from Shri Mukesh Jain on 10.03.2021, a copy of which is part of Annexure-4 to the appeal. Said will indicates that all previous wills executed by Shri Mukesh Jain stand cancelled. Shri Mukesh Jain also cancelled the notices that had been issued in the newspapers on

17.01.2014 and 26.01.2014. It was also indicated in the will that as he is not in the best of health consequently he is executing the said will on the basis of thumb impression.

12. Learned counsel for the appellant contends that there would not have been any issue with regard to the said will dated 10.03.2021 but for the fact that although in the will which was executed by Shri Mukesh Jain in favour of the appellant dated 18/19.07.2019 he had indicated the complete details of the properties which were being bequeathed to the appellant vis a vis the will dated 10.03.2021, which only talks about the certain properties having been given to his wife and his sons yet on the basis of the alleged will dated 10.03.2021 the respondents herein started interfering the properties as had been bequeathed to the appellant by means of the will dated 18/19.07.2019 and thus he was compelled to file a suit before the learned trial court registered as Civil Suit No.96 of 2024 In Re In Anuj Jain vs Sangeeta Jain & Ors praying for declaration/ cancellation of the will deed dated

10.03.2021 and further for declaring the will dated 18.07.2019 in favour of the appellant as valid.

13. In the said suit, an application under Order 39 Rule 1 & 2 C.P.C. was filed praying for restraining the respondents from interfering in the property in possession of the appellant and also to restrain them from creating any 3rd party rights in the said properties.

14. The said application has been rejected by the learned Trial Court vide the impugned order dated 21.02.2025 and hence the instant appeal.

15. The argument of the learned counsel for the appellant while raising a challenge to the impugned order are:- (a) that once the property had clearly been spelt out by Shri Mukesh Jain, who had executed the will in favour of the appellant vide will dated 18/19.07.2019 vis a vis the will dated 10.03.2021 as has allegedly been executed by Shri Mukesh Jain in favour of his wife and two sons which only indicates about certain properties and as such the said will cannot and will not give a right to the respondents to interfere in the possession of the properties as bequeathed to him on the basis of will deed dated 18/19.07.2019 which fact has not been appreciated by the learned trial court while rejecting the application. (b) that the will dated 10.03.2021 as executed in favour of the wife and two sons of Shri Mukesh Jain cannot be said to have been executed by Shri Mukesh Jain while being in correct mental health which would be indicative from the fact that the properties belonging to Shri Mukesh Jain had not been spelt out vis a vis the earlier will dated 18/19.07.2019 and that he had only affixed his thumb impression on the said will. (c) that on the basis of the alleged will dated 10.03.2021, the respondents are interfering in the possession of the property in favour of the appellant which would be indicative from the fact that the mutation of a property that had been carried in the name of the appellant on the basis of will dated 18/19.07.2019, for the said order, a recall application was filed by the respondents, which had been rejected by the competent authority, which indicates the repeated interference being caused by the respondents in the property in possession of the appellant.

16. No other ground has been urged by the learned counsel for the appellant.

17. Shri Prashant Singh Gaur, learned counsel appearing for respondents No.1 to 3 supports the impugned order by contending that the suit is still pending before the learned Trial court and all the grounds as have been urged before this Court, are always open for the appellant to be canvassed before the learned trial court and there cannot be any occasion for this Court to now enter into the aforesaid controversy once the learned trial court is seized of the matter.

18. Having heard the arguments as raised by the learned counsel for the parties and having perused of the record, it emerges that one Shri Mukesh Jain, whose wife and sons are respondents no.1 & 2 and 3 herein respectively was in possession of large number of properties. Initially, he had executed a registered will dated 04.09.2013. Subsequent thereto, a second registered will was executed by Shri Mukesh Jain on 28.03.2016 whereby the first will dated 04.09.2013 was cancelled. Thereafter, a third will was executed by Shri Mukesh Jain on 18/19.07.2019 whereby the second will dated 28.03.2016 was cancelled. The said will is a detailed will, which indicates a large number of properties as belonging to Shri Mukesh Jain being willed in favour of the appellant herein.

19. Even prior to the second and third wills being executed by Shri Mukesh Jain, notices dated 17.01.2024, 25.01.2014 and 26.01.2024 were published in newspaper, a copy of which is Annexure-4 to the appeal, wherein Shri Mukesh Jain indicated that his sons namely the respondents No.2 & 3 are running their independent business separately from him and that Shri Mahesh Jain is not responsible for any financial dealings or any other civil, criminal or revenue proceedings. It was also indicated in the said notice that Shri Jatin Jain and Shri Nitin Jain and his wife either presently or in future would not be eligible to receive any property by means of a will.

20. On the basis of the will dated 18/19.07.2019, the appellant who alleges himself to be the son of the maternal brother of Shri Mukesh Jain claims to be enjoying the properties as had been bequeathed to him by the aforesaid will after the death of Shri Mukesh Jain and the mutation was also carried out with respect to the said properties in his favour.

21. The controversy arose when a fourth alleged registered will was executed by Shri Mukesh Jain on 10.03.2021, which was executed in favour of his wife and his two sons i.e. respondents No.1, 2 & 3 in the instant appeal. The said will does not indicate in detail the properties as belong to Shri Mukesh Jain but only indicates about certain properties in the said will which is common in both the wills i.e the will in favour of the appellant as well as the will dated 10.03.2021. However, the will dated 10.03.2021 contained two important things namely (a) all previous wills stand cancelled; and (b) the will is being executed under the thumb impression of Shri Mukesh Jain as he is not well.

22. On the allegation that the respondents herein are interfering in the possession of the properties as have been bequeathed by Shri Mukesh Jain in favour of the appellant on the basis of will dated 18/19.07.2019, the appellant/plaintiff filed Civil Suit No.96 of 2024 In Re Anuj Jain vs Sangeeta Jain & Ors praying for declaration/ cancellations of the will deed dated 10.03.2021 and further for declaring the will dated 18.07.2019 in favour of the appellant as valid.

23. Along with the said suit also an application under Order 39 Rule 1 & 2 C.P.C. was filed. Learned Trial court vide the order impugned dated 21.02.2025 has rejected the said application.

24. Being aggrieved, the instant appeal has been filed.

25. Grounds of appeal as raised by the learned counsel for the appellant are : (a) that once the property had clearly been spelt out by Shri Mukesh Jain, who had executed the will in favour of the appellant vide will dated 18/19.07.2019 vis a vis the will dated 10.03.2021 as has allegedly been executed by Shri Mukesh Jain in favour of his wife and two sons which only indicates about certain properties and as such the said will cannot and will not give a right to the respondents to interfere in the possession of the properties as bequeathed to him on the basis of will deed dated 18/19.07.2019 which fact has not been appreciated by the learned trial court while rejecting the application. (b) that the will dated 10.03.2021 as executed in favour of the wife and two sons of Shri Mukesh Jain cannot be said to have been executed by Shri Mukesh Jain while being in correct mental health which would be indicative from the fact that the properties belonging to Shri Mukesh Jain had not been spelt out vis a vis the earlier will dated 18/19.07.2019 and that he had only affixed his thumb impression on the said will. (c) that on the basis of the alleged will dated 10.03.2021, the respondents are interfering in the possession of the property in favour of the appellant which would be indicative from the fact that the mutation of a property that had been carried in the name of the appellant on the basis of will dated 18/19.07.2019, for the said order, a recall application was filed by the respondents, which had been rejected by the competent authority, which indicates the repeated interference being caused by the respondents in the property in possession of the appellant.

26. So far as ground (a) is concerned, a perusal of the will as executed in favour of the respondents herein would indicate that the executant namely Shri Mukesh Jain has clearly specified in the will that any previous will executed by him stands cancelled. Thus, even if certain properties may have been bequeathed to the appellant vide the will dated 18/19.07.2019, with the execution of the subsequent registered will dated 10.03.2021, the said will in favour of the appellant stood cancelled and there cannot be any right of the appellant to claim any benefit of the properties on the basis of the will dated 18/19.07.2019 which stood cancelled by the subsequent will. Thus, the said ground is rejected.

27. So far as ground (b) is concerned, a perusal of the will dated

13.03.2021 would indicate that the executant Shri Mukesh Jain has clearly specified the reason in the said will as to why he is affixing his thumb impression and as to why he is unable to sign which both things have been indicated on the basis of his ill health. No document has been filed in the instant appeal to indicate that Shri Mukesh Jain was not in his complete sense at the time of execution of the will dated

10.03.2021. Merely because various properties as had been indicated in the earlier will in favour of the appellant were not indicated in the subsequent registered will dated 10.03.2021 may also not detain the Court inasmuch as the executant has clearly specified in his will about the properties which he indicated in the said will as well as his will to be opened at the time of his death by the executant wherein his auditor would also be present and that the executnat will get the balance sheet of his firms and companies and thereafter prepare a complete list of his movable and immovable properties which was willed in a certain percentage of share to his wife and his two sons as indicated in the appeal. The executant also specified that whatever property is found in his name, his wife and his two sons would become the owners of the said property. Clearly the intention of the executant was to bequeath all his properties which was specifically indicated in the will dated

10.03.2021 to his wife and his two sons. Thus, the said ground is rejected.

28. So far as ground (c) is concerned, suffice it to state that once by means of a subsequent registered will dated 10.03.2021, it is the wife and sons of the executant i.e. the respondents herein who have been willed the said properties as such they would be within their right of having the said properties mutated in their names. Accordingly, the said ground is also rejected.

29. A perusal of the order impugned dated 21.02.2025 as passed by the learned Trial Court indicates that all the aforesaid facts and circumstances have been considered by the learned trial court while rejecting the application filed by the plaintiff-appellant. No infirmity is found in the impugned order.

30. Keeping in view the aforesaid discussion no case for interference in the order impugned is made out. The appeal stands dismissed. Order Date :- 29.5.2025 prateek PRATEEK ARORA High Court of Judicature at Allahabad, Lucknow Bench

consideration before the learned trial court to which learned counsel for the appellant responds that he wants an order on merits. As such the Court proceeds to hear and decide the matter.

7. Bereft of unnecessary details facts of the case as set forth in the appeal are that one Shri Mukesh Jain, the husband of respondent No.1 and father of respondents No.2 & 3 herein, had executed a first registered will on 04.09.2013. He executed a second will on

28.03.2016 by which he cancelled his first will dated 04.09.2013.

8. Subsequent thereto, another will dated 18/19.07.2019 was executed by Shri Mukesh Jain, a copy of which is Annexure-4 to the appeal, which was executed in favour of the appellant herein.

9. It is contended that the said will specifically indicates in detail all the properties as have been bequeathed to the appellant. The appellant claims himself to be the son of the maternal brother of Shri Mukesh Jain vis a vis respondents No.1 & 2 and 3 who are wife and real sons of Shri Mukesh Jain respectively.

10. It is also contended that Shri Mukesh Jain had got published notices in the newspapers dated 17.01.2014, 25.01.2024 and

26.01.2014 a copy of which is Annexure-4 to the appeal, whereby he had indicated that his sons namely the respondents No.2 & 3 are running their independent business separately from him and that Shri Mahesh Jain is not responsible for any financial dealings or any other civil, criminal or revenue proceedings. It was also indicated in the said notice that Shri Jatin Jain and Shri Nitin Jain and his wife either presently or in future would not be eligible to receive any property by means of a will.

11. Subsequent thereto, the respondents claimed to have got a will from Shri Mukesh Jain on 10.03.2021, a copy of which is part of Annexure-4 to the appeal. Said will indicates that all previous wills executed by Shri Mukesh Jain stand cancelled. Shri Mukesh Jain also cancelled the notices that had been issued in the newspapers on

17.01.2014 and 26.01.2014. It was also indicated in the will that as he is not in the best of health consequently he is executing the said will on the basis of thumb impression.

12. Learned counsel for the appellant contends that there would not have been any issue with regard to the said will dated 10.03.2021 but for the fact that although in the will which was executed by Shri Mukesh Jain in favour of the appellant dated 18/19.07.2019 he had indicated the complete details of the properties which were being bequeathed to the appellant vis a vis the will dated 10.03.2021, which only talks about the certain properties having been given to his wife and his sons yet on the basis of the alleged will dated 10.03.2021 the respondents herein started interfering the properties as had been bequeathed to the appellant by means of the will dated 18/19.07.2019 and thus he was compelled to file a suit before the learned trial court registered as Civil Suit No.96 of 2024 In Re In Anuj Jain vs Sangeeta Jain & Ors praying for declaration/ cancellation of the will deed dated

10.03.2021 and further for declaring the will dated 18.07.2019 in favour of the appellant as valid.

13. In the said suit, an application under Order 39 Rule 1 & 2 C.P.C. was filed praying for restraining the respondents from interfering in the property in possession of the appellant and also to restrain them from creating any 3rd party rights in the said properties.

14. The said application has been rejected by the learned Trial Court vide the impugned order dated 21.02.2025 and hence the instant appeal.

15. The argument of the learned counsel for the appellant while raising a challenge to the impugned order are:- (a) that once the property had clearly been spelt out by Shri Mukesh Jain, who had executed the will in favour of the appellant vide will dated 18/19.07.2019 vis a vis the will dated 10.03.2021 as has allegedly been executed by Shri Mukesh Jain in favour of his wife and two sons which only indicates about certain properties and as such the said will cannot and will not give a right to the respondents to interfere in the possession of the properties as bequeathed to him on the basis of will deed dated 18/19.07.2019 which fact has not been appreciated by the learned trial court while rejecting the application. (b) that the will dated 10.03.2021 as executed in favour of the wife and two sons of Shri Mukesh Jain cannot be said to have been executed by Shri Mukesh Jain while being in correct mental health which would be indicative from the fact that the properties belonging to Shri Mukesh Jain had not been spelt out vis a vis the earlier will dated 18/19.07.2019 and that he had only affixed his thumb impression on the said will. (c) that on the basis of the alleged will dated 10.03.2021, the respondents are interfering in the possession of the property in favour of the appellant which would be indicative from the fact that the mutation of a property that had been carried in the name of the appellant on the basis of will dated 18/19.07.2019, for the said order, a recall application was filed by the respondents, which had been rejected by the competent authority, which indicates the repeated interference being caused by the respondents in the property in possession of the appellant.

16. No other ground has been urged by the learned counsel for the appellant.

17. Shri Prashant Singh Gaur, learned counsel appearing for respondents No.1 to 3 supports the impugned order by contending that the suit is still pending before the learned Trial court and all the grounds as have been urged before this Court, are always open for the appellant to be canvassed before the learned trial court and there cannot be any occasion for this Court to now enter into the aforesaid controversy once the learned trial court is seized of the matter.

18. Having heard the arguments as raised by the learned counsel for the parties and having perused of the record, it emerges that one Shri Mukesh Jain, whose wife and sons are respondents no.1 & 2 and 3 herein respectively was in possession of large number of properties. Initially, he had executed a registered will dated 04.09.2013. Subsequent thereto, a second registered will was executed by Shri Mukesh Jain on 28.03.2016 whereby the first will dated 04.09.2013 was cancelled. Thereafter, a third will was executed by Shri Mukesh Jain on 18/19.07.2019 whereby the second will dated 28.03.2016 was cancelled. The said will is a detailed will, which indicates a large number of properties as belonging to Shri Mukesh Jain being willed in favour of the appellant herein.

19. Even prior to the second and third wills being executed by Shri Mukesh Jain, notices dated 17.01.2024, 25.01.2014 and 26.01.2024 were published in newspaper, a copy of which is Annexure-4 to the appeal, wherein Shri Mukesh Jain indicated that his sons namely the respondents No.2 & 3 are running their independent business separately from him and that Shri Mahesh Jain is not responsible for any financial dealings or any other civil, criminal or revenue proceedings. It was also indicated in the said notice that Shri Jatin Jain and Shri Nitin Jain and his wife either presently or in future would not be eligible to receive any property by means of a will.

20. On the basis of the will dated 18/19.07.2019, the appellant who alleges himself to be the son of the maternal brother of Shri Mukesh Jain claims to be enjoying the properties as had been bequeathed to him by the aforesaid will after the death of Shri Mukesh Jain and the mutation was also carried out with respect to the said properties in his favour.

21. The controversy arose when a fourth alleged registered will was executed by Shri Mukesh Jain on 10.03.2021, which was executed in favour of his wife and his two sons i.e. respondents No.1, 2 & 3 in the instant appeal. The said will does not indicate in detail the properties as belong to Shri Mukesh Jain but only indicates about certain properties in the said will which is common in both the wills i.e the will in favour of the appellant as well as the will dated 10.03.2021. However, the will dated 10.03.2021 contained two important things namely (a) all previous wills stand cancelled; and (b) the will is being executed under the thumb impression of Shri Mukesh Jain as he is not well.

22. On the allegation that the respondents herein are interfering in the possession of the properties as have been bequeathed by Shri Mukesh Jain in favour of the appellant on the basis of will dated 18/19.07.2019, the appellant/plaintiff filed Civil Suit No.96 of 2024 In Re Anuj Jain vs Sangeeta Jain & Ors praying for declaration/ cancellations of the will deed dated 10.03.2021 and further for declaring the will dated 18.07.2019 in favour of the appellant as valid.

23. Along with the said suit also an application under Order 39 Rule 1 & 2 C.P.C. was filed. Learned Trial court vide the order impugned dated 21.02.2025 has rejected the said application.

24. Being aggrieved, the instant appeal has been filed.

25. Grounds of appeal as raised by the learned counsel for the appellant are : (a) that once the property had clearly been spelt out by Shri Mukesh Jain, who had executed the will in favour of the appellant vide will dated 18/19.07.2019 vis a vis the will dated 10.03.2021 as has allegedly been executed by Shri Mukesh Jain in favour of his wife and two sons which only indicates about certain properties and as such the said will cannot and will not give a right to the respondents to interfere in the possession of the properties as bequeathed to him on the basis of will deed dated 18/19.07.2019 which fact has not been appreciated by the learned trial court while rejecting the application. (b) that the will dated 10.03.2021 as executed in favour of the wife and two sons of Shri Mukesh Jain cannot be said to have been executed by Shri Mukesh Jain while being in correct mental health which would be indicative from the fact that the properties belonging to Shri Mukesh Jain had not been spelt out vis a vis the earlier will dated 18/19.07.2019 and that he had only affixed his thumb impression on the said will. (c) that on the basis of the alleged will dated 10.03.2021, the respondents are interfering in the possession of the property in favour of the appellant which would be indicative from the fact that the mutation of a property that had been carried in the name of the appellant on the basis of will dated 18/19.07.2019, for the said order, a recall application was filed by the respondents, which had been rejected by the competent authority, which indicates the repeated interference being caused by the respondents in the property in possession of the appellant.

26. So far as ground (a) is concerned, a perusal of the will as executed in favour of the respondents herein would indicate that the executant namely Shri Mukesh Jain has clearly specified in the will that any previous will executed by him stands cancelled. Thus, even if certain properties may have been bequeathed to the appellant vide the will dated 18/19.07.2019, with the execution of the subsequent registered will dated 10.03.2021, the said will in favour of the appellant stood cancelled and there cannot be any right of the appellant to claim any benefit of the properties on the basis of the will dated 18/19.07.2019 which stood cancelled by the subsequent will. Thus, the said ground is rejected.

27. So far as ground (b) is concerned, a perusal of the will dated

13.03.2021 would indicate that the executant Shri Mukesh Jain has clearly specified the reason in the said will as to why he is affixing his thumb impression and as to why he is unable to sign which both things have been indicated on the basis of his ill health. No document has been filed in the instant appeal to indicate that Shri Mukesh Jain was not in his complete sense at the time of execution of the will dated

10.03.2021. Merely because various properties as had been indicated in the earlier will in favour of the appellant were not indicated in the subsequent registered will dated 10.03.2021 may also not detain the Court inasmuch as the executant has clearly specified in his will about the properties which he indicated in the said will as well as his will to be opened at the time of his death by the executant wherein his auditor would also be present and that the executnat will get the balance sheet of his firms and companies and thereafter prepare a complete list of his movable and immovable properties which was willed in a certain percentage of share to his wife and his two sons as indicated in the appeal. The executant also specified that whatever property is found in his name, his wife and his two sons would become the owners of the said property. Clearly the intention of the executant was to bequeath all his properties which was specifically indicated in the will dated

10.03.2021 to his wife and his two sons. Thus, the said ground is rejected.

28. So far as ground (c) is concerned, suffice it to state that once by means of a subsequent registered will dated 10.03.2021, it is the wife and sons of the executant i.e. the respondents herein who have been willed the said properties as such they would be within their right of having the said properties mutated in their names. Accordingly, the said ground is also rejected.

29. A perusal of the order impugned dated 21.02.2025 as passed by the learned Trial Court indicates that all the aforesaid facts and circumstances have been considered by the learned trial court while rejecting the application filed by the plaintiff-appellant. No infirmity is found in the impugned order.

30. Keeping in view the aforesaid discussion no case for interference in the order impugned is made out. The appeal stands dismissed. Order Date :- 29.5.2025 prateek PRATEEK ARORA High Court of Judicature at Allahabad, Lucknow Bench