SATBIR Vs. AGGARSAIN

JUDGEMENT

(1.) THIS regular second appeal has been filed against the judgment dated 22.3.2013 passed by the Additional District Judge, Sirsa, whereby the appeal against the judgment dated 9.6.2012 passed by Civil Judge (Junior Division) Sirsa was dismissed. Vide the trial Court judgment suit of the plaintiff for declaration and permanent injunction was dismissed.

(2.) FACTS expressed in the plaint, in brief are that Raj Karan had four sons namely Satbir (plaintiff), Hari Singh @ Bir Singh, Suresh Kumar and Devi Lal. Raj Karan owned and possessed land measuring 53 kanals 0 marlas in Village Rajpur and land measuring 14 kanals 0 marlas in Village Chadiwal both situated in District Sirsa. In a family settlement -cum -partition which took place on 15.10.2001 between the plaintiff Satbir and the deceased, the land in the village Chadiwal fell into the share of the plaintiff and the land at Village Raipur fell into the joint share of the deceased, Hari Singh and Devi Lal. The plaintiff pursuant to the above said settlement relinquished his land measuring 251 kanals 12 marlas at Raipur in favour of his father and brothers while the latter persons relinquished their land measuring 249 kanals 2 marlas at Village Chadiwal in favour of the plaintiff both deeds being registered on 5.10.2001. On that very date, the deceased executed and got registered two Wills one in favour of the plaintiff with respect to the land at Village Chadiwal (registered at Sr. No. 63) and the second (registered at Sr. No. 64) in favour of Hari Singh and Devi Lal with respect to land at Village Raipur. Raj Karan died on 6.12.2007. After the death of Raj Karan, the beneficiaries Hari Singh, Devi Lal and Suresh got entered and sanctioned mutation no. 440 dated 25.2.2008 with respect to land measuring 53 kanals 0 marlas at Village Raipur received by way of Will No. 64 dated 5.10.2001. It is moreover provided that the deceased had never cancelled in his life time the Will No. 63 through the alleged cancellation deed No. 39 dated 5.7.2002 and had never executed the second Will No. 40 dated 5.7.2002 in favour of the defendant. It is claimed by the plaintiff that the alleged cancellation deed and the Will No. 40 dated 5.7.2002 in favour of the defendant are illegal, null, void and was obtained by playing fraud, misrepresentation, undue influence and coercion etc. On notice, the defendant filed a written statement and took a preliminary objection that the plaintiff had no cause of action and locus standi and on merits, the defendant admitted that the deceased was owner in possession of the land at Village Raipur and Chadiwal. The documents of mutual release deeds were not executed in accordance with the family settlement as there was doubt about the total land in both the villages. The defendant has admitted the execution of the Will by the deceased in favour of Hari Singh, Suresh and Devi Lal. Will No. 63 executed by the deceased in favour of the plaintiff was a result of fraud and coercion by the plaintiff played over the deceased. It was averred that one, Brij Lal and the plaintiff had suffered a decree for land measuring 12 killas in favour of his son Suresh without intimating other co -sharers and heirs of Brij Lal which was an outcome of coercion etc. on Brij Lal. The aforesaid land had to be distributed in equal shares and during this dispute the will in favour of the plaintiff came in light. The deceased voluntarily got cancelled the Will No. 63 vide cancellation deed No. 39 and in order to compensate Hari Singh father of the defendant, the deceased got executed and registered a Will on 5.7.2002 in favour of the defendant voluntarily. It was further mentioned by the defendant, the deceased was mentally and physically fit to execute a Will and he had taken due care of and served well the deceased in the last days. The trial Court on 26.8.2008 framed the following issues:

(3.) ISSUES no. 1 & 2 were decided against the plaintiff and in favour of the defendant. It was observed that Ram Swaroop PW -2, one of the attesting witness deposed to the execution of the Will in favour of the plaintiff, on which he had put his signatures along with the other witness Gopi Ram. He further admitted that said Will in favour of the plaintiff was subsequently got cancelled by the deceased. PW -3 Sri Ram Registration Clerk deposed to the correctness of the Will No. 63 dated 5.10.2001, On the other hand from the defendant side DW -1 Mahesh Pareek, Advocate deposed only to the documents drafted by him. DW -2 Aggarsain deposed in line with the contentions raised in the written statement and also that the said Will NO.40 dated 5.7.2002 is absolutely legal and voluntary. DW -3 vide his affidavit Ex. DW3/A deposed that the deceased had executed a cancellation deed No. 39 dated 5.7.2002 and a Will No. 40 dated 5.7.2002. Then deposed that the said deed were executed out of the free will of the deceased. In his cross -examination also, he deposed as to the cancellation of the Will in the name of the plaintiff by the deceased.