RAJNISH KANT Vs. KAMLA VATSA

JUDGEMENT

(1.) It is apparent from the record that the petitioner herein did file an application under Order 11 Rule 14 C.P.C. for production of the original will dated 25.11.1978 which had been executed by his father in favour of former's mother Mst. Amrati Devi alias Umri Devi. It is noticed in the impugned order itself that no reply thereto was filed by defendant no.4 and the only presentation made on his behalf by his learned counsel was that he (defendant no.4) is running poor health. The plea filed by the petitioner came to be negatived.

(2.) The plaintiff-respondent had filed a suit for a declaration that he is co-owner, to the extent of 1/7th share of the property in suit. The plea, raised in the alternative was, for a decree for joint possession of that property. Also applied for was a decree for the restraint of defendants therein from forcibly dispossessing the petitioner-plaintiff or alienating that land in any manner.

(3.) In the written statement, the petitioner herein had raised a plea that land aforementioned was owned by his father Sh. Bihari Lal who had executed a will dated 25.11.1978 in favour of his wife Mst. Amrati Devi alias Umri Devi who, in turn, executed a will in respect of that property in favour of petitioner herein. The plea for issuance of a direction to defendant no.4 stemmed from the fact that relevant will had been handed over by the testator (defendant no.4) who is the eldest son of the testator. It is apparent from the record that the petitioner herein did not even file an affidavit in support of the averments made in the course of the application. The learned Trial Court did not take effective steps to ensure that the defendant no.4 offered a plain affidavit supported response to the precise averment that the impugned will had been handed over to him by his father. It is only on the basis of affidavit supported stances that the Trial Court could take a decision in accordance with law.