BHAGWAN DASS Vs. TULA RAM

JUDGEMENT

(1.) The present appeal has been filed by the unsuccessful plaintiff against the judgments and decrees of the Courts below wherein suit for declaration and injunction that he is owner in possession of the suit property detailed at Sr. Nos.1 to 7 by virtue of registered will of Roshan Lal dated 25.9.89 and the registered will of Smt. Manohari Devi dated 25.9.89 and the consequential challenge to the family settlement dated 22.12.1987 and 11.1.1988 have been repelled and along with his right for injunction against the defendants pertaining to the said property.

(2.) The suit was filed on the ground that plaintiff and defendants No.1 to 3, who are his real brothers whereas defendants No.4 to 7 who are his sisters and that Roshan Lal father of the plaintiff was owner in possession of the property at Sr. No.1 to 5 and Smt. Manohari Devi mother of the parties was owner in possession of shop No.B-XV-536, Kath Mandi, Hisar mentioned in the head note of the plaint at Sr. No.6. It was alleged that plaintiff had purchased two plots bearing Nos. 9 and 10 at Vinod Nagar, Hisar which were mentioned at Sr. No.7 in the head note of the plaint and these plots have been exclusively owned and possessed by him. The allegations in the plaint was that father of Roshan Lal had expired on 24.4.1994 and during his life time, he executed a registered will dated 25.9.1989 in his favour and similarly his mother had also executed a registered will in his favour on the same day and she expired on 20.3.1995. Accordingly, it was pleaded that he had become exclusive owner of the property which had been owned and possessed by his mother Smt. Manohari Devi and that no family settlement had taken place between them as all the property was self acquired by Smt. Manohari Devi and Roshan Lal and there was no joint or coparcenary property between the parties. It was contended that the signatures of his parents were obtained on the family settlement by misrepresentation of the facts and without telling them the detail and nature of the documents in collusion with the petition writer and their signatures were obtained on some written as well as some blank papers. Roshan Lal father of the plaintiff had filed a civil suit during his life time challenging these documents but he died on 24.4.1994 and the suit was dismissed and the parties were left with liberty to file a separate suit for adjudication of the matter between them. The plaintiff had filed an appeal against this order dated 30.8.2004 which was dismissed as withdrawn from the Court of Shri R.S.Virk, Addl. District Judge, Hisar vide order dated 5.1.1996 and thereafter plaintiff had filed a revision petition bearing No.4554 of 1994 which was dismissed by this Court vide order dated 2.3.1995 wherein parties were given liberty to file the suit claiming rights in the property. It was contended that the suit was accordingly filed thereafter.

(3.) The suit was contested by defendants No.1 to 3 on various grounds including the locus standi and on the fact that plaintiff was not in possession of the suit property and it was pleaded that the properties mentioned at Sr. 1 to 7 mentioned in the head note of the plaint were joint Hindu family coparcenary property which had been acquired from the joint income of the family and on the basis of that family settlement was arrived at between Roshan Lal, father of the plaintiff, defendants No.1 to 3 and Smt. Manohari Devi mother of the plaintiff and defendants. Accordingly, it was pleaded that by virtue of this family settlement Tula Ram, defendant No.1 was held to be owner of two shops bearing No.B-XV-575 and 575/1, Kath Mandi, Hisar and Lal Chand, defendant No.2 was held to be owner of one shop B-XV-536, Kath Mandi, Hisar and one residential plot measuring 25X62 situated in Vinod Nagar and Bhagwan Dass, plaintiff was held to be owner of 1/2 share of Shop No.B-XV-576(western side) and 1/23 share of residential house No.13/64 on its southern side and Raj Kumar, defendant No.3 was held to be owner of other 1/2 share of the residential house No.134/64 and 1/2 share of shop No.B/576 and Roshan Lal and Smt. Manohari Devi were held to be exclusive owner of shop No.B/XV/578 and one constructed plot measuring 10X62 in Vinod Nagar, Hisar in pursuance of the partition and family settlement. Each of the parties were given possession of their shares and accordingly the memorandum was written by the parties on 22.12.1987. It was also further pleaded that none of the parties would transfer their property through sale or mortgage or any other way during the life time of Roshan Lal and Smt. Manohari Devi and after their deaths the property bearing No.578/15 which came to their share shall be owned and possessed by Bhagwan Dass, plaintiff and Raj Kumar, defendant No.3. On this agreement, another additional agreement of family settlement arrived at between the parties on 11.1.1988. It was further pleaded that no will had been executed by Roshan Lal and will had been prepared by the plaintiff fraudulently and same was not binding upon them and Smt. Manohari Devi did not hold any property at all and whatever property had come to her share in the family settlement along with her husband was held by her as life interest and the question of execution of registered will in favour of the plaintiff or anybody else did not arise at all and if any will was executed by her then that had been got executed by the plaintiff fraudulently and dishonestly. It was further maintained that the family settlement dated 22.12.1987 and 11.1.1988 had been executed after the finalisation of the family settlement and the documents had not been prepared fraudulently.