SURAJ PRAKASH Vs. USHA RANI

JUDGEMENT

(1.) This regular first appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) has been filed by the Defendants challenging the judgment and decree dated 16.11.2010 whereby the suit of the Respondents/Plaintiffs for declaration, possession and injunction was decreed by holding that the deceased Sh. Ved Prakash had married the Respondent No. 1/Plaintiff No. 1 in his life-time, and from which wedlock, the Plaintiffs No. 2 to 5/Respondents No. 2 to 5 were born. By the impugned judgment and decree it was also held that the Will dated 23.7.1994 propounded by the Appellants/sisters of the deceased Sh. Ved Prakash was liable to be discarded inasmuch as the same was an unnatural Will, as it disinherited the Respondents/Plaintiffs who were the widow and children of the deceased. A decree for possession has also been passed with respect to the shop belonging to the deceased being Shop No. 11140, Edgah Road, Motia Khan, Delhi and also with respect to 1/5th share of the deceased in the half share of the mother Smt. Indrawati in H. No. 6499, Motia Khan, Sadar Bazar, Delhi. Originally, the suit was filed by the Respondents/Plaintiffs also against the deceased's brother Sh. Suraj Prakash besides the sisters/Appellants, however, Sh. Suraj Prakash, who remained unmarried, died during the pendency of the suit and therefore, the suit was thereafter contested by the Appellants/sisters.

(2.) The facts of the case are that deceased Ved Prakash was a singer of the Nirankari Sect. He married the Respondent No. 1 on 22.6.1977 in accordance with Hindu rites and ceremonies at Sanatan Dharam Radhey Shyam Mandir, Mehrauli in the presence of various relatives and friends. The marriage was a love marriage and performed without information to the family of Ved Prakash, more so, because the sisters of the deceased Ved Prakash (now the Appellants herein) were not married---- the tradition in Hindu families being that daughters ordinarily get married before the sons. In fact, as already stated above, Sh. Suraj Prakash, the brother of the deceased, Ved Prakash was also not married and he remained a bachelor till he died during the pendency of the suit on 1.6.2003. Four children, all sons were born to the deceased Ved Prakash and the Respondent No. 1/Plaintiff No. 1/Smt. Usha Rani namely Sh. Subhash (on 27.6.1978), Sudhir (on 23.4.1980), Abhay @ Amit (on 23.7.1982) and Vivek (on 8.11.1987). The surname/caste of the deceased Ved Prakash and therefore also of the Plaintiffs/Respondents, was "Chugh". There was raised a slight controversy with regard to the dates of birth of the second and third sons namely, Sudhir and Abhay @ Amit and which aspect is dealt with later in the judgment. After marriage, the couple did not stay at the house of the parents of deceased Ved Praksh on account of opposition from the family and they therefore firstly stayed at 304-305, Jhuggi Jhopadi Colony, Camp No. 1, Nangloi, Delhi, and thereafter, they started residing at D-281, Ward No. 2, Garhwali Colony, Mehrauli, New Delhi and at which address the deceased Ved Prakash continued to reside till his death on 8.5.1995. The Appellants and the brother Sh. Suraj Prakash (who also owned one other shop) thereafter took forcible possession of the Shop No. 11140 belonging to the deceased Ved Prakash. From this shop Sh. Ved Prakash during his life-time was doing a small business of iron works such as manufacture of gates, grills, tanks and drums. The subject suit hence came to be filed by the Respondents/Plaintiffs seeking the relief of possession with respect to the immovable properties, declaration with respect to the marriage of the Respondent No. 1 with Sh. Ved Prakash as also the invalidity of the alleged Will of Sh. Ved Prakash dated 23.7.1994 and injunction against transferring of the immovable properties, and which suit has been decreed by the impugned judgment and decree.

(3.) The Appellants/Defendants appeared and contested the suit. The defence was basically two-fold. It was firstly alleged that deceased Ved Prakash, the brother of the Appellants/Defendants never married the Respondent No. 1/Plaintiff No. 1/Smt. Usha Rani. It was also denied that the Plaintiffs No. 2 to 5 were the children of Sh. Ved Prakash and Smt. Usha Rani. The Appellants secondly pleaded that the deceased left behind a Will in their favour dated 23.7.1994 and which Will was got registered by them after the death of Sh. Ved Prakash. As already stated by above, the brother of Sh. Ved Prakash, Sh. Suraj Prakash was originally Defendant No. 1 in the suit, but since he died as a bachelor, the subject suit was thereafter contested only by the Appellants.