NIRMALA Vs. SEEMA

JUDGEMENT

(1.) Suit filed by the respondent Nos. 1 to 3 (plaintiffs) was decreed by the Trial Court, vide judgment and decree, dated 17.07.2014, and as the appeal preferred against the said decree failed, and was dismissed on 23.03.2018, appellant-defendant No. 1 is before this Court in Regular Second Appeal. Parties to the lis, hereinafter shall be referred to by their original positions in the suit. Plaintiffs prayed for a declaration that Will, bearing No. 217, dated 20.03.2002, as also the Mutation No. 1883 that was sanctioned on the basis thereof, were null and void and plaintiffs were owners to the extent of 1/5th share in the suit property.

(2.) In brief, the case set out by the plaintiffs was that Nand Kishor was the owner in possession to the extent of 1/20th share, i.e. 1 Kanal 16 Marlas, out of total land measuring 35 Kanals 10 Marlas. He happened to be the father of the husband of plaintiff No. 1, grand father of plaintiff Nos. 2 and 3, father of defendant Nos. 1 to 3 and husband of defendant No. 4. PRASHANT KAPOOR 2019.12.09 16:57 I attest to the accuracy and authenticity of this document The suit land was a joint hindu property in the hands of late Nand Kishor, and post his death, plaintiffs had 1/5th share in the suit property. Thus, given the nature of the suit property, late Nand Kishor had limited rights to deal therewith and, thus, he had no authority to execute the Will, dated 20.03.2002, in favour of defendant No. 1 to the exclusion of the plaintiffs and defendant Nos. 2 to 4. In fact, husband of plaintiff No. 1 and father of plaintiff Nos. 2 and 3, namely, Manoj Tyagi, died on 05.07.2001 in a road accident. Owing to the death of his son, late Nand Kishor was in a state of shock and defendant No. 1 taking undue advantage of his illness, took him with herself for treatment. However, he was not taken to any hospital, but to the office of Sub Registrar, Ganaur, on 20.03.2002, where defendant No.1 got cancelled the Will bearing No. 183, dated 12.12.2000, and also got executed a fresh Will, dated 20.03.2002, in her favour. For, despite repeated requests defendants declined to have the Will, dated 20.03.2002, cancelled, thus, the suit.

(3.) In the joint written statement filed by defendant Nos. 1 to 2 and 4, the suit property was claimed to be the self acquired property of late Nand Kishor, therefore, he had every right to deal with it in the manner he liked. The Will, dated 20.03.2002, was alleged to be validly executed by the deceased in favour of defendant No. 1. Thus, the suit was liable to be dismissed.