MANJU MALHOTRA Vs. STATE OF HARYANA

JUDGEMENT

(1.) The plaintiff in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the suit of the plaintiff claiming right of inheritance of movable and immovable property left by her deceased husband Shri M.S. Malhotra, was dismissed, except to the extent of payment of retiral benefits other than the Government Provident Fund and Gratuity.

(2.) As per the case set up by the plaintiff-appellant she married Capt. M.S. Malhotra on 28.5.1986. The plaintiff was a widow and was having two children from her previous marriage. Before the said marriage, the deceased M.S. Malhotra, had adopted one Nitika, defendant No. 2, daughter of his sister vide registered adoption deed dated 9.7.1979 Exhibit DW4/A. Capt. Malhotra died on 15/16.6.1993. According to the plaintiff she and her daughter Rupali are the legal heirs of the deceased Capt. Malhotra, whereas defendant No. 2 Nitika is claiming inheritance of Capt. Malhotra on the basis of Will dated 4.4.1989. The learned trial Court found that the Will of late Capt. Malhotra is not proved to be executed but found that a simplicitor suit for declaration is not maintainable. Consequently, the suit was dismissed. Aggrieved against the said judgment, two appeals were filed, one by the plaintiff against the finding recorded by the learned trial Court, holding the suit as not maintainable and another by the defendants, challenging the finding on the question of Will.

(3.) The learned First Appellate Court has considered the entire evidence in respect of execution of Will particularly that of Pawan Kumar DW3, Document Writer as well as the attesting witness DW1 Vasudev Chhabra to hold that the Will is proved to be executed. The Court has taken into consideration the fact that a divorce petition was filed on 30.8.1991 which was decided on 5.10.1993 i.e. after the death of Capt. Malhotra. It was found that absence of signatures of attesting witnesses on each of the leaf of four pages of Will, is not sufficient to hold the Will as the one surrounded by the suspicious circumstances. The said finding is based upon proper appreciation of evidence. In fact, the same was not seriously challenged in second appeal as well.