OM LATA KALYAN Vs. RENUKA AND OTHERS

JUDGEMENT

(1.) The present revision petition is directed against the order whereby the application moved by the petitioner-defendant under the provisions of Order 14 Rule 5 CPC for framing of the additional issue has been declined by the trial Court.

(2.) Before adverting to the submissions of the learned counsel representing the respective parties to the lis, it would be apt to give the preface of the matter. As per the pleadings, the plaintiff-Renuka, respondent No.1 herein, was married with Nabheet Kalyan (since deceased) and out of said wedlock, Ananya, a minor daughter was born in the month of June 2007. Unfortunately, her husband-Nabheet Kalyan died in a bizarre incident on 22.4.2008. As per the pleadings in the suit, her husband owned moveable and immovable property and on account of death had left behind the plaintiff and Ananya, impleaded as defendant No.2, as legal heirs. The petitioner-defendant No.1 on the basis of some Will dated 26.03.2008 allegedly executed by Nabheet Kalyan, husband of the plaintiff, moved an application before the Tehsildar for sanctioning of the mutation vis-à-vis his estate stating therein that Nabheet Kalyan had bequeathed his entire movable and immovable property except one half share in the land measuring 87 kanals 19 marlas in Village Kairwali to her and the half share measuring 87 kanals 19 marlas in favour of Ananya, his minor daughter. It was further averred that the petitioner-defendant No.1 was appointed as an executor and the custody of the child i.e. defendant No.2 was also entrusted to her. As per the contents of the Will, in case Ananya dies before the marriage or issueless after the marriage, her share of the property shall also be bequeathed in favour of defendant No.1. The Will aforementioned was challenged, in the aforementioned suit, being an act of forgery and fabrication. In other words, her husband never executed such Will and therefore, his entire property to be devolved by way of natural succession.

(3.) The aforementioned suit was contested by defendant No.1 and 3- Sudhanshu Kalyan by taking all the objections of locus standi and estoppel. It was stated that Ananya was removed from the custody of petitioner-defendant No.1 forcibly by the respondent No.1-plaintiff in the month of September 2008. Vide preliminary objection, it was categorically averred that the suit titled as "Ananya Vs. Om Lata Kalyan" was filed and the same is pending adjudication and her custody had been shown to be given to one Tejbir Singh, therefore, prayer was made for dismissal of the suit as per the provisions of Section 10 of the Code of Civil Procedure. It was also stated that the suit of the plaintiff was liable to be dismissed as the aforementioned Will had already been admitted to be true and correct by the respondent No.1-plaintiff as per her statement dated 19.09.2008 suffered before the Court of Ld. Civil Judge (Senior Division) and two affidavits of even date i.e. 27.05.2008 and the basis of the aforementioned statement, property of Nabheet Kalyan had already been transferred in the name of the petitioner and Ananya. The aforementioned statement was suffered on the basis of compromise arrived at between the parties. The affidavits were duly signed by Renuka and were identified by an Advocate on the same date. However, the intention of the respondent No.1- plaintiff turned mala fide resulting into filing of the application for restoration of the suit, which was dismissed as withdrawn on 19.09.2008. The said application was dismissed vide order dated 08.02.2011.