Delhi High Court
Rajbir Singh & Ors. vs Vijay Singh on 4 December, 2014
Author: G.P. Mittal
Bench: G.P. Mittal
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on : 4th December, 2014
+ CS(OS) 2265/2012
RAJBIR SINGH & ORS. ..... Plaintiffs
Through Mr. Prem Kishore Tripathi, Advocate
& Mr. K.K. Sinha, Advocate
versus
VIJAY SINGH ..... Defendant
Through Ms. Gita Dhingra, Advocate
%
CORAM:
HON'BLE MR. JUSTICE G.P. MITTAL
G.P. Mittal, J. (Oral)
CS(OS) 2265/2012 & I.A.13627/2012(O.XXXIX Rules 1&2 CPC)
1. By virtue of this application under Order XXXIX Rules 1and 2 CPC, the Plaintiffs seek an ad interim injunction restraining Defendant Vijay Singh from selling, alienating or parting with possession of the suit property i.e. 1/3rd undivided share of deceased Bishan Singh in the joint holding i.e. agricultural land and residential houses upon gher and plots situated within the revenue estate of Village Goela Khurd and Kutabapur, New Delhi till the decision of the suit.
2. This suit for declaration and permanent injunction has been filed by the Plaintiffs who are the sons and grand-son of Kushi Ram, brother of CS (OS) No.2265/2012 Page 1 of 5 Late Shri Bishan Singh and Chander Bhan and son of Late Shri Prabhu Dayal. The sum and substance of the averments made in the suit is that Late Prabhu Dayal, grand-father of Plaintiffs no.1 and 3 and great grand-father of Plaintiff no.2 was the owner of certain residential as well as agricultural land in the revenue estate of Village Goela Khurd and Kutabapur, New Delhi (the details of the land have not been mentioned in the suit). It is averred that at the time of death, Shri Prabhu Dayal, father of Plaintiff no.1 and grandfather of Plaintiffs no.2 and 3 was having 1/3rd undivided share in the earlier stated ancestral properties. The Plaintiffs and the Defendant have been cultivating the agricultural land jointly as per their convenience. It is averred that the Defendant (Vijay Singh), claiming himself to be son of deceased Bishan Singh applied to the Tehsildar for mutation of 1/3rd of the properties owned by Bishan Singh in his favour. The Plaintiffs' grievance is that Vijay Singh is the son of Chander Bhan and therefore, he is not entitled to succeed to the share left by Late Shri Bishan Singh. It is urged that a Will dated 22.06.1989 propounded by the Defendant is not the genuine Will of deceased Bishan Singh and therefore, the Will ought to be declared null and void. Apart from this, the Plaintiffs also seek relief of permanent injunction restraining the Defendant from selling, alienating or parting CS (OS) No.2265/2012 Page 2 of 5 with possession of 1/3rd undivided share belonging to Late Shri Bishan Singh.
3. The Defendant filed the written statement and reply to the injunction application contesting the suit and the injunction application. The case set up by the Defendant is that he was adopted by Late Shri Bishan Singh when he was just 4-5 years old. The Will dated 22.06.1989 is the genuine Will executed by Late Shri Bishan Singh which was duly registered with the Sub-Registrar. It is urged that the Defendant was otherwise also the legal heir of deceased Bishan Singh and was entitled to succeed to the estate being the only son of deceased Bishan Singh.
4. During the course of the arguments, the learned counsel for the Defendant has pointed out to host of documents to show that the Defendant is the son of Late Shri Bishan Singh of course by adoption.
5. First of all, I may refer to the marksheet which was proved Ex.PW1/D-7 before the learned Civil Judge while this suit was pending before that court. The Defendant passed his Higher Secondary Examination from Government High School, Mundka, Delhi in the year 1976. Father's name of the Defendant is mentioned as Bishan Singh. Bishan Singh expired in the year 2009 and 33 years CS (OS) No.2265/2012 Page 3 of 5 before his death, there could not have been any controversy with regard to the adoption of the Defendant Vijay Singh. Defendant has also placed on record Voter Identity Card issued by Election Commission of India and medical prescription card issued by the then Delhi Electricity Supply Undertaking( on 28.09.1985) wherein Bishan Singh has been shown as one of the dependents being father of the Defendant. There is also a National Trade Certificate issued on 17.07.1982. There are photocopies of Motor Driving Licence, Ration Card and electoral roll issued by the Election Commission which also show that the Defendant is the son of Late Shri Bishan Singh. Not only this, the learned counsel for the Defendant has also referred to the cross-examination of PW-1 wherein he has admitted that the certified copy of the Will Ex.PW-1/D5 is genuine and correct. Plaintiff Rajbir Singh in his cross-examination further admitted that he did not have any document to show that after the age of five years, father of Defendant Vijay Singh was shown as Chander Bhan at any point of time.
6. The Will which is sought to be declared null and void is a registered Will. The Defendant being the natural heir, it is quite difficult to suspect that Late Shri Bishan Singh would not have executed the Will in his favour. All the more, even as per the natural succession, CS (OS) No.2265/2012 Page 4 of 5 Defendant being the son of Late Shri Bishan Singh was entitled to succeed to his estate.
7. The learned counsel for the Plaintiffs has referred to an Affidavit purported to have been filed on 10.08.2009 before the revenue authorities by the Defendant for carrying out mutation in his name. The learned counsel for the Plaintiffs urges that the Defendant is completely silent about the Will in question in this Affidavit. That, to my mind, is not very material in view of the fact that the Defendant might not have been aware of the Will just after 10-12 days of the death of his father. Otherwise also, on the basis of the documents placed on record, the Defendant appears to be the Class I heir of deceased Bishan Singh.
8. In view of this, the Plaintiffs have no prima facie case in their favour.
There is no question of considering the balance of convenience.
9. Application is devoid of any merit; the same is accordingly dismissed. CS(OS) 2265/2012 List for settlement of issues on 07.05.2015.
G.P. MITTAL, J.
DECEMBER 04, 2014 pst CS (OS) No.2265/2012 Page 5 of 5