SURESH CHAND MATHUR Vs. HARISH CHAND MATHUR

JUDGEMENT

(1.) This is a suit for declaration. The plaintiffs and defendants are brothers. Property No. B-4/196, Safdarjung Enclave, New Delhi was owned by late Smt. Shakuntala Devi Mathur, mother of the parties. She expired on 05th November, 1998, leaving a Will dated 17th September, 1981, which was registered on the same date. The property was bequeathed by the Testator in the following terms:-

(2.) It has been alleged in the plaint that late Smt. Shakuntala Devi Mathur changed her mind in November, 1997, by wring a letter, addressed to her children, on a non-judicial stamp paper, annexing therewith some pieces of paper written in her own handwriting and containing her real intention in the matter. In one of the annexures to the aforesaid letter, she recorded that her house B-4/196 will go to her five sons and her daughter shall have no rights therein. This document, according to the plaintiffs, constituted a deemed codicil to the Will dated 17th September, 1981. The plaintiffs have sought a declaration that the restriction, contained in the Will dated 17th September, 1981 on transfer of the shares of the plaintiffs in the aforesaid property is void and invalid under Section 138 of Indian Succession Act and that the letter dated 06th November, 1996 reflects the real and last intention/desire of the Testatrix and amounts to a deemed codicil. They have also sought declaration that the defendants have no specific share in the property in terms of the Will, read with the deemed codicil.

(3.) The suit has been contested by defendant No.1, who has taken a preliminary objection that the suit for declaration simplicitor is not maintainable as the plaintiff has not claimed any consequential relief. He has taken another preliminary objection that the suit is not properly valued for the purpose of Court Fee and jurisdiction as the market value of the suit property is Rs 82,54,232/- and 3/5th share in this property sould be valued at Rs 49,32,540/-, whereas the suit has been valued only at Rs 21 lacs. He has also taken another preliminary objection that since the alleged deemed codicil has not been attested by any witness, it does not comply with the mandatory requirement of law and, therefore, the plaint does not disclose any valid cause of action.