BALDEV RAJ Vs. MAN MOHAN

JUDGEMENT

(1.) The appellants filed a suit claiming decree for partition, declaration and permanent injunction in respect of property mentioned in Annexure 'B' attached to the plaint. Alongwith the suit an application was filed by the appellants under Order 39 Rules 1 and 2 read with Section 151 Civil Procedure Code to restrain the respondents from alienating, transferring, selling or parting with possession of House No.2575, Main Road, Raghubarpura No.2, Gandhi Nagar, Delhi. After the pleadings were completed, learned Single Judge dismissed the application of the appellants by the impugned order dated 10th January,2001. This order is under challenge in this appeal.

(2.) The appeal, was posted for preliminary hearing on 19th January,2001 on which date submission of the learned Senior counsel for the appellants was recorded that the alleged will dated 21st March,1984 propounded by the Respondents had not been produced in original before the learned Single Judge and was not attested in accordance with law due to which the will ought not to have been considered by the learned Single Judge. It was also noticed that this ground has been taken in the Memorandum of Appeal and was stated to have been urged before the learned Single Judge but not dealt with by the learned Single Judge in the impugned order. Since the impugned order did not reflect the aforementioned ground having been urged before the learned Single Judge by the appellants, it was recorded in the said order that it will be open to the appellants to seek a review/clarification of the impugned order in view of the submission of counsel for the appellants to that effect. The appeal was kept pending. It was further directed that status-quo will be maintained by the parties in respect of the suit property.

(3.) Today when the appeal was taken up for preliminary hearing, learned Senior counsel for the appellants stated that no application for review of the interim order has been filed.The learned Senior counsel for the appellants, however, contended that the allegation of the appellants in respect of the alleged will dated 21st March,1984 being a forged and fabricated document is recorded in the impugned order. A copy of the alleged Will is on record before the learned Single Judge. The original was also produced by the counsel for the respondents for our perusal. The learned Senior counsel for the appellants submitted that the alleged will is witnessed by only one witness and Mr.Iqbal Bahadur Mathur, Adv., only drafted the will as is apparent from the endorsement.Learned senior counsel relied on the Judgement in Smt. Punni vs. Sumer Chand and Ors. AIR 1995 HP Page 74 to contend that the signature of a person appearing on the will only for certifying that he is scribe or identifier cannot be considered as a person signing in the capacity of an attesting witness. Reliance was also placed on the judgement of the Supreme Court in M.L.Abdul Jaffar vs. H. Venkata Sastri and sons AIR 1969 SC 1147 for the same preposition.