RAJNISH KATARIA Vs. MOHINDER SINGH

JUDGEMENT

(1.) AGGRIEVED with the order dated 21. 5. 2005 passed by the then learned district Judge, Delhi, the present appeal has been preferred by the appellants. By the impugned order the then learned District Judge has restrained the ADM (West) not to disburse the compensation amount in respect of the property bearing No. 42/2, West Patel Nagar, New Delhi till the disposal of the probate petition.

(2.) TO examine the contentions raised by the appellants in the appeal, it would be necessary to set out the brief facts of the present case as under: mr. Mohinder Singh who is respondent herein has filed the Probate petition before the learned District Judge so as to get the probate of unregistered Will dated 21. 7. 1977. In the said Probate Petition the respondent had also moved an application under Order 39 Rule 1 and 2 read with Section 151 CPC for grant of interim injunction. In the Probate Petition. the respondent has alleged that he was the beneficiary of the Will and when he visited the property in question he found that some construction activities were going on in the property on behalf of the legal heirs of late Sh. J. N. Kataria. Later on the respondent came to know that the said construction was being done by Delhi Metro Rail Corporation. Thereafter, he sent a letter to the DMRC claiming compensation of the said property in-question on the basis of the said Will alleged to have been executed by Shri J. N. Kataria. The said Probate Petition was contested by the present appellants on the ground that the alleged Will on which reliance was placed by'the respondent mohinder Singh is apparently forged and fabricated document. It was also contened in the probate Petition that Shri J. N. Kataia, owner of the property had ceased to be the owner of the same as per the decree of the high Court in Suit No. 162/76 dated 14. 4. 76. As per the said decree both the sons of Shri J. N. Kataria became joint owners of the property in question having 50% share each and Shri J. N. Kataria was only entitled to rental income, if any, from the property. It was also contended by the appellants in the Probate Petition that Shri J. N. Kataria was not entitled to execute any Will in respect of the property in question. It was also contended that shri J. N. Kataria was not in a position to execute and sign the Will as he was not able to put his signature because his right hand was paralyzed. In the said Probate Petition it was also contended that Shri J. N. Kataria remained in Sir Ganga Ram hospital from 30. 5. 77 till 11. 7. 77. It was also contended that Shri J. N. Kataria was never in possession of the property in question until its acquisition by the DMRC.

(3.) I have heard learned counsel for the parties and have. perused the record.