Delhi District Court
Jagwanti And Anr vs Suman And Ors on 20 October, 2023
IN THE COURT OF ADDITIONAL DISTRICT JUDGE-02:
NORTH ROHINI COURTS COMPLEX: DELHI
CNR No. DLNT01-005069-2017
RCA DJ 41/17
JAGWANTI AND ANR Vs. SUMAN AND ORS
IN THE MATTER OF:-
1. SMT. JAGWANTI
W/O LATE SH. RAJINDER SINGH MANN
2. SOM PAL
S/O LATE SH. RAJINDER SINGH MANN
BOTH R/O - H. NO.347, VILLAGE
KHERA KHURD, DELHI.
........Appellants
VERSUS
1. SMT. SUMAN
W/O YASHPAL
D/O LATE SH. RAJINDER SINGH MANN
R/O VILLAGE SOLADHA, DISTT.
JHAJJAR (HARYANA)
ALSO AT: VILLAGE KHERA KHURD,
DELHI-110082.
2. MASTER MOHIT (MINOR)
S/O SH. DHIRENDER
R/O VILLAGE & PO KHERA KHURD,
DELHI-110082.
3. MASTER PARMEET (MINOR)
S/O SH. DHIRENDER
R/O VILLAGE KHERA KHURD,
DELHI-110082.
4. MASTER HARSHIT (MINOR)
S/O SH. DEVENDER
RCA DJ 41/17 JAGWANTI AND ANR. Vs. SUMAN AND ORS Page no. 1 of 21
R/O VILLAGE KHERA KHURD,
DELHI-110082
5. SUB-REGISTRAR
SUB DISTT. NO. VI(B)
(NARELA) ALIPUR, DELHI .....Respondents
Date of institution : 24.04.2017
Date of Conclusion of Argument : 20.10.2023
Date of Order/Judgment : 20.10.2023
REGULAR CIVIL APPEAL UNDER SECTION 96 R/W ORDER
41 Rule 1 OF CPC AGAINST THE JUDGMENT/DECREE DATED
25.01.2017 PASSED BY MS. VANDANA, LD. CIVIL JUDGE,
DISTT. NORTH, ROHINI, IN SUIT NO. 366/2011 (OLD) & NEW
SUIT NO.534329 - 2016.
JUDGMENT:
By way of the present appeal, the appellants/plaintiffs are challenging order dated 25.01.2017 passed by Ld. Civil Judge, North Rohini. Parties will be referred as per their status before the Ld. Trial Court.
1. Their is a delay of one week in filing appeal. It stated in application seeking condonation that appellant could not proceed for appeal in time being uneducated. Court is of opinion that matter must be decided on merits. Delay is minimal. Same stands condoned. Application for condonation of delay is accordingly allowed. PLAINTIFF CASE
2. The pleaded case of plaintiffs is that plaintiff no. 1 Jagwanti was married with late Rajinder Singh S/o Tek Chand in 1975. Sompal plaintiff no. 2 was born on 05.01.78.
RCA DJ 41/17 JAGWANTI AND ANR. Vs. SUMAN AND ORS Page no. 2 of 21 It is further stated that Rajinder Singh got married with another lady Birmati without taking divorce from his first wife.
Grand father of plaintiff no. 2 i.e. Tek Chand executed will dated 02.01.86 in favour of plaintiff no. 2.
Rajinder Singh was suffering from mental disturbance for last one year before his death. He died on 25.01.2011.
Plaintiffs came to know about will executed by Sh. Rajinder Singh dated 23.06.10 in favour of defendant no. 1 to 4 only on 24.02.2011. This will is under challenge by the plaintiffs.
It is further the case of the plaintiffs that suit land left by Tek Chand is ancestral and all legal heirs are entitled to their share. It is prayed that declaration be granted in favour of plaintiff declaring will dated 23.06.2010 as null and void. Secondly, relief of permanent injunction was sought restraining defendants from selling transferring or creating third party interest qua suit land. Thirdly, a prayer for mandatory injunction against defendants directing defendant no 5 not to register any sale deed or transfer documents in respect of suit land is also sought.
Suit property is agricultural land measuring 54 bigha 14 biswa in Khata no. 181/164 min agricultural to new Delhi comprised in Khasra no. 51/24(4-8), 25(4-8), 52/21(4-9), 22(4-8), 61/1/1(2-11), 62/6(5-1), 62/5(4-16), 15(5-9), 16/1(1-16), 103/7/3(1-19), 8(4-13), 9(4-16), 21/1(2-
12), 528(1-0), 64/4/2(2-8) situated in the revenue estate of village khera khurd, Delhi and land measuring 3 bigha in khata no. 118/3 in the RCA DJ 41/17 JAGWANTI AND ANR. Vs. SUMAN AND ORS Page no. 3 of 21 revenue estate of village Naya Bans, Delhi (herein after referred to as suit property).
CASE OF THE DEFENDANTS NO. 1 TO 43. Tersely put case of defendants 1 to 4 is that will dated 02.01.1986 in favour of plaintiff no.2 was cancelled by Sh. Tek Chand vide cancellation deed dated 05.11.1996.
4. It is further the case of the defendant that Rajender Singh executed a will dated 23.06.2010 in favour of defendants and thus plaintiffs have no right over the land in question. The fact that suit property was ancestral is denied.
REPLICATION
5. Replication was filed by the plaintiffs. All the facts of the plaint were reiterated and submissions in WS were denied. ISSUES
6. Vide order dated 05.11.2011, following issues were framed by the ld. Trial Court:
Vide order dated 05/11/11, the following issues were:
(i) Whether the plaintiffs are entitled for the decree of declaration that the will dated 23/06/2010 as null and void? OPP
(ii) Whether the relief of declaration prayed by the plaintiff is not maintainable as he has not sought any consequential relief with regard to the relief of declaration?OPD
(iii) Whether the plaintiffs are entitled for a decree of permanent injunction restraining the defendant from selling, transferring or creating third party interest with regard to the suit property in question?OPP
(iv) Whether the plaintiffs are entitled for the decree of mandatory injunction as prayed for? OPP RCA DJ 41/17 JAGWANTI AND ANR. Vs. SUMAN AND ORS Page no. 4 of 21
(v) Any other relief ?
After that plaintiffs led evidence and examined witnesses. PLAINTIFF EVIDENCE.
SR No. Name of witness Remarks Important
of Admission/denia
witness l in cross
examination.
1. Praveen Bhardwaj Witness from the office of SDM Narela to prove (Field Kanoongo) the record of case titled as Sompal Vs. Suman and Ors.
2. Sh. Prem Prakash To prove original deed (UDC/Reader to of will dated 23.06.2010 sub-registrar VI B Ex.PW2/A Narela)
3. Sh. D.K Chhabra Brought the file of (Record executive Admission of Sh.
Jaipur Golden Rajender Singh Maan
Hospital) who was admitted on
05.01.2011 and expired
on 25.01.2011.
4. Sh. Sompal He is the plaintiff no.2 Ld. counsel for
the defendants
have stated in
cross
examination the
date of birth of
the witnesses
admitted as
being
07.12.1986. It is
submitted that
Will in favour of
RCA DJ 41/17 JAGWANTI AND ANR. Vs. SUMAN AND ORS Page no. 5 of 21
plaintiff which
was cancelled is
dated 02.01.1986
5. Dr. Kewal Kishan Who treated sh. He stated that he
Jindal Rajender Singh Maan in has no
the hospital. knowledge of
previous medical
issues of
Rajender Singh
maan.
6. Sh. Swarn Kumar Patwari SDM Office,
Patwari Narela, brought the
record regrading Khasra
Khatoni no. 181/164 of
Sh. Rajinder Singh i.e.
Ex. PW 6/A and copy of
Khata no. 146/143 and
Kila no. 118/3 of Sh.
Rajinder Singh in
Nayabans and the same
is Ex. PW 6/B.
7. Krishna Devi Sister of Rajinder Singh On the death of
and deposed that no will RS Maan, she
of 23.06.2010 was had reached the
executed boundary of the
village.
DEFENDANTS EVIDENCE
SR No. Name of witness Remarks Important
of Admission/denia
witness l in cross
examination.
RCA DJ 41/17 JAGWANTI AND ANR. Vs. SUMAN AND ORS Page no. 6 of 21
1. Suman D/o Relied upon cancellation
Rajinder of will dated 05.11.1996
Ex.DW1/1.
2. Suresh Chand Brought will dated
Meena (LDC Sub 23.06.2010 already
Registrar VI B) Ex.DW1/3.
3. Dinesh Chand Brought the record of
Muthalia (Data cancellation of will
Entry Operator executed by Sh. Tek
Sub Registrar I chand on 05.11.1996
Kashmiri Gate (Ex.DW1/1).
4. Sh. Ashish Second attesting witness Ld counsel for
of will dated 23.06.2010. the plaintiff has stated that there is admission in the will that the property was ancestral. It is further argued by ld counsel for the plaintiff that witness has further stated that he does not remember whether Rajinder has appended his thumb impression or signed the will.
5. Sh. Kuldeep First attesting witness of Ld. counsel for will dated 23.06.2010. the plaintiff stated that witness does not know where the RCA DJ 41/17 JAGWANTI AND ANR. Vs. SUMAN AND ORS Page no. 7 of 21 will was typed.
SUMMARY OF FINDINGS BY LD. TRIAL COURT.
7. Issue no. 1 was :
(i)Whether the plaintiffs are entitled for the decree of declaration that the will dated 23/06/2010 as null and void?OPP On issue No.1, Ld. trial court returned a finding that plaintiffs miserably failed to show that Rajender Singh was not in a fit mental condition at the time of execution of will dated 23.06.2010.
The further finding has been returned that Sh. Rajineder Singh had absolute right to transfer subject to the restrictions in Delhi Land Reforms Act. Will dated 23.06.2010 was duly proved by DW2. Issue was decided against plaintiffs.
Issue no. 2 was :
(ii) Whether the relief of declaration prayed by the plaintiffs are not maintainable as he has not sought any consequential relief with regard to the relief of declaration ? OPD On issue no. 2, ld. trial court returned a finding that in view of law laid down in judgment of the Hon'ble Supreme Court of India in case titled as Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by Lrs. And Ors.
in Civil Appeal no. 6191/2001, declaration without consequential relief is not maintainable.
Issue no. 3 was :
RCA DJ 41/17 JAGWANTI AND ANR. Vs. SUMAN AND ORS Page no. 8 of 21
(iii) Whether the plaintiffs are entitled for a decree of permanent injunction restraining the defendant from selling, transferring or creating third party interest with regard to the suit property in question?OPP On issue no.3, Ld. trial court returned a finding that since will dated 23.06.2010, has not been proved to be forged. The issue is decided against the plaintiffs.
Issue no. 4 was :
(iv) Whether the plaintiffs are entitled for the decree of mandatory injunction as prayed for? OPP On issue no.4, ld. trial court returned a finding that plaintiffs could not establish their claim over suit property and thus the issue was decided against the plaintiffs.
ARGUMENTS OF COUNSEL FOR THE APPELLANTS / PLAINTNIFFS
8. PW5 Dr. Kewal Kishan Jindal only stated in his cross-examination that previous medical history of Rajender is not known to him. Ld. Counsel for the appellant states that evidence has been misread and it is observed by Trial Court that there is no previous history of medical problem.
9. Tek chand died in the year 2000. Thus, unamended provisions of Hindu Succession Act apply. Rule of Survivorship applied.
10. Tek chand died in the year 2000. Section 4 (2) of the Hindu Succession Act was not omitted at that point in time. As per section 4 (2) section 50 of the DLR Act applied. Same provides that devolution will RCA DJ 41/17 JAGWANTI AND ANR. Vs. SUMAN AND ORS Page no. 9 of 21 take place upon male members. It is stated that male members of Tek chand are RS Maan and Sh. Som Pal. Som Pal is appellant no. 2 now.
11. PW7 is sister of RS Maan namely Krishna Devi. She has stated that RS Maan did not execute any will.
ARGUMENTS OF LD. COUNSEL FOR THE DEFENDANTS / RESPONDENTS
12. Sh. Sompal would not inherit the property in lifetime of his father i.e., Sh. R.S Maan.
13. Since sh. RS Maan had executed will dated 23.06.2010, there is no question of inheritance by Sompal.
14. There is no misreading by the Trial Court of evidence of PW5.
PW7 is not a reliable witness as she had no knowledge about personal affairs of RS Maan. Reliance is placed upon the lining the evidence at page no.3 of PW7 wherein it is mentioned that I could not see the dead body of my brother though I was outside the boundary of the village and was about to reach.
15. In evidence of PW5, it is pointed out that the will of RS Maan is dated 23.06.2010 and the witness has deposed regarding facts wef. 05.01.2011 onwards.
16. It is argued that plaintiffs have not shown as to how much share Sh. R. S. Mann had in the suit property.
17. Alternatively, it is argued that the suit property after death of Tek Chand came into the hands of Sh. R.S. Maan as separate property over which Sh. R.S. Maan has full rights to make a will. RCA DJ 41/17 JAGWANTI AND ANR. Vs. SUMAN AND ORS Page no. 10 of 21
18. It is argued that Section 4(2) of the Hindu Succession Act before its omission provided that the special law will prevail i.e. the Delhi Land Reforms Act, 1954. After omission of section 4(2) of the Hindu Succession Act. Provisions of Hindu Succession Act apply notwithstanding provisions of Delhi Land Reforms Act, 1954.
No other point was argued by the counsel for the parties.
19. FOLLOWING POINTS OF DETERMINATION UNDER ORDER 41 RULE 31 CPC ARISE FOR CONSIDERATION BY THIS COURT.
(i) Whether the evidence of PW 5 Dr. Kewal Kishan Jindal has been misread by the Ld. Trial Court?
(ii) Whether as Tek Chand died in the year 2000 unamended provisions of Hindu Succession Act applied and by rule of survivorship, the plaintiff no. 2 is entitled to succeed?
(iii). Whether as Tek Chand died in the year 2000 Section 4 (2) Hindu Succession was not omitted at that point in time so as per section 50 of Delhi Land Reforms Act plaintiff no. 2 is entitled to succeed?
(iv). Whether the evidence of PW 7 Krishan Devi who is sister of Sh. R.S. Mann shows that the Will dated 23.06.2010 is suspicious?
(v). Whether the admissions of DW4 and DW5 in the cross examination show that the Will dated 23.06.2010 is suspicious?
20. BRIEF RECAPITULATION OF THE FACTS RCA DJ 41/17 JAGWANTI AND ANR. Vs. SUMAN AND ORS Page no. 11 of 21 This court has heard the rival submissions of the parties, perused the relevant record.
Tersely put in chronological order, the facts of the case put in tabular form are as under:
Will of Tek Chand in favour of 02.01.1986 Sompal plaintiff no. 2 Cancellation of will of Tek Chand 05.11.1996 in favour of Sompal plaintiff no. 2 Will under challenge by the 23.06.2010 plaintiffs in favour of defendant no.
1 to 4 Death of Tek Chand 04.11.2000 R.S. Mann Admitted in hospital 05.01.2011 Death of R.S. Mann 25.01.2011
The case of plaintiff are that the original owner of the property was Tek Chand. (It has come in evidence that he had one son and four daughters). Sole sons name is Rajender Singh Maan. He was married twice. First wife is Smt. Jagwanti/plaintiff no. 1. Second wife is Smt. Beermati (defendants no. 1 to 4 are successors in interest of Smt. Beermati. Sh. Sompal (plaintiff no.2) is son of first wife. Defendant no.1 Smt. Suman is daughter out of second wife. Defendants no. 2 to 4 are grand sons of RS Maan through Second wife. Suit property is agricultural land measuring 54 bigha 14 biswa in Khata no. 181/164 min agricultural to new Delhi comprised in Khasra no. 51/24(4-8), 25(4-8), 52/21(4-9), 22(4-8), 61/1/1(2-11), 62/6(5-1), 62/5(4-16), 15(5-9), 16/1(1-
RCA DJ 41/17 JAGWANTI AND ANR. Vs. SUMAN AND ORS Page no. 12 of 21
16), 103/7/3(1-19), 8(4-13), 9(4-16), 21/1(2-12), 528(1-0), 64/4/2(2-8) situated in the revenue estate of village khera khurd, Delhi and land measuring 3 bigha in khata no. 118/3 in the revenue estate of village Naya Bans, Delhi was owned by late Sh. Tek Chand father in law of plaintiff no. 1 and grand father of plaintiff no. 2 as well as grandfather of defendants no. 1 and great grandfather of defendants no. 2 to 4.
21. It is the case of the plaintiffs that will dated 02.01.1986 was executed by Tek Chand in favour of plaintiff no.2/Sompal.
22. It is further the case of the plaintiffs that Rajender Singh Maan was not in a fit state of mind. The defendants fraudulently got executed a will dated 23.06.2010 from him.
FINDINGS ON POINTS OF DETERMINATION
23. First point of determination is Whether the evidence of PW 5 Dr. Kewal Kishan Jindal has been misread by the Ld. Trial Court?
Ld counsel for the plaintiffs / appellants had argued that the witness PW 5 had only submitted in the cross examination that previous history of Rajinder is not known to him. Ld. Trial Court erred in returning of finding that R.S Mann has no previous medical history.
Ld counsel for the defendants has replied this arguments by stating that the date of will in favour of defendant no. 1 to 4 is 23.06.2010. The plaintiff were required to prove that on this date R.S. Mann was not in a medically fit condition. PW 5 has only stated about admission of R.S. RCA DJ 41/17 JAGWANTI AND ANR. Vs. SUMAN AND ORS Page no. 13 of 21 Mann on 05.01.2011 and of had expired on 25.01.2011. Nothing has been deposed by him regarding previous history of medical problem of Sh. R.S. Mann. Thus this witness was not even cross examined on behalf of defendants no. 1 to 4. Since there is no evidence that as on 23.06.2010 Sh. R.S. Mann was not in a mentally fit state. Thus, there is no infirmity in findings of the ld. Trial Court.
FINDINGS ON FIRST POINT OF DETERMINATION
24. This court is of the opinion that date of will in favour of defendant no. 1 to 4 is 23.06.2010. The plaintiffs were required to prove that on this date R.S. Mann was not in a medically fit condition. PW 5 has only stated about admission of R.S. Mann on 05.01.2011 and of his having died on 25.01.2011. Nothing has been deposed by him/the witness PW5 regarding previous history of medical problem of Sh. R.S. Mann. Thus this witness was not even cross examined on behalf of defendants no. 1 to 4. Since there is no evidence that as on 23.06.2010 Sh. R.S. Mann was not in a mentally fit state. Thus, there is no infirmity in findings of the ld. Trial Court. The evidence of PW 5 has been correctly appreciated. No evidence that Sh. R.S. Mann was not in a mentally fit state of mind as on 23.06.2010 has come on record. Thus this point of determination is decided against the plaintiffs appellant. __________________________________________________________ Second point of determination is Whether as Tek Chand died in the year 2000 unamended provisions of Hindu Succession Act applied and by rule of survivorship, the plaintiff no. 2 is entitled to succeed? RCA DJ 41/17 JAGWANTI AND ANR. Vs. SUMAN AND ORS Page no. 14 of 21 ld. counsel for the plaintiffs has argued that Tek chand died in the year 2000. Thus, unamended provisions of Hindu Succession Act apply. Rule of Survivorship applied.
Ld. counsel for the defendants has replied that Sh. Sompal, plaintiff no. 2 would not inherit in life time of his father Sh. R.S. Mann. It is further argued that Sh. Tek Chand had female legal heirs, thus, survivorship rule did not apply even under unamended provisions of section 6 of Hindu Succession Act.
FINDING ON SECOND POINT OF DETERMINATION
25. This court agrees with argument of defendants. Court is of the opinion that Sh. Sompal, plaintiff no.2 would not inherit in life time of his father Sh. R.S. Mann. Sh. Tek Chand had female legal heirs, thus, survivorship rule did not apply even under unamended provisions of section 6 of Hindu Succession Act. Unamended Section 6 of the Hindu Succession Act provided that if there was female heir of class one then property devolved by Succession. Plaintiff no. 2 will have no right during life time of his father, thus, the suit of plaintiff no. 2 cannot succeed.
__________________________________________________________ Third point of determination is Whether as Tek Chand died in the year 2000 and Section 4 (2) Hindu Succession was not omitted at that point in time, so as per section 50 of Delhi Land Reforms Act plaintiff no. 2 is entitled to succeed?
RCA DJ 41/17 JAGWANTI AND ANR. Vs. SUMAN AND ORS Page no. 15 of 21 Ld. counsel for the plaintiffs has argued that as Tek Chand died in the year 2000. Section 4 (2) Hindu Succession was not omitted at that point in time. So as per section 50 of Delhi Land Reforms Act plaintiff no. 2 is entitled to succeed.
Ld. counsel for defendants has replied that even if Section 50 of Delhi Land Reforms Act applies, Sh. Sompal, plaintiff no.2 would not in inherit in life time of his father Sh. R.S. Mann. It is conceded that mutation does not confer title but it is stated that only male legal heirs succeed as per section 50 (a) of Delhi Reforms Act and property thus would be self acquired property. Further, section 48 of the Delhi Reforms Act makes it possible for a bhumidar to bequeath his property which was done in this case by will dated 23.06.2010 by R.S. Mann in favour of defendants no 1 to 4. Ld. counsel for the defendants has further argued that date of omission of Section 4(2) Hindu Succession Act is 09.09.2005. The same will have no bearing on the facts of the present case in view of will dated 23.06.2010 in favor of defendant no. 1 to 4.
FINDING ON THE THIRD POINT OF DETERMINATION
26. This court agrees with arguments of defendants. Court is of the opinion that even if Section 50 of Delhi Land Reforms Act applies, Sh. Sompal plaintiff no. 2 would not inherit in life time of his father Sh. R.S. Mann. It is correct that mutation does not confer title. Only male legal heirs succeed as per section 50 (a) of Delhi Reforms Act and property thus which came in hands of Sh RS Mann same would be self acquired property. Further, as per section 48 of the Delhi Reforms Act RCA DJ 41/17 JAGWANTI AND ANR. Vs. SUMAN AND ORS Page no. 16 of 21 bhumidar can bequeath his property. This was done in this case by will dated 23.06.2010 by R.S. Mann in favour of defendants no 1 to 4. This court is of the opinion that date of omission of Section 4(2) Hindu Succession Act is 09.09.2005. The same will have no bearing on the facts of the present case in view of will dated 23.06.2010 in favor of defendant no. 1 to 4. Ld. counsel for the plaintiffs had relied upon the case titled as Nirmala Vs. Govt. NCT of Delhi and Ors. reported in ILR (2010)Supp.(1)Delhi413. There is no dispute with the proposition of law laid down in this case. It was held that provisions of Hindu Succession Act after amendment of 2005 will override section 50 of Delhi Land Reforms Act. The Ld. Trial Court has recorded similar findings in para 33 of the impugned judgment. Thus, there is no infirmity with the judgment of the Ld. Trial Court. Further, in this case there is a will dated 23.06.2010 in favour of defendant no. 1 to 4 and thus normal succession provision will not apply. Plaintiffs have not shown as to how much share Sh. R. S. Mann had in the suit property.
__________________________________________________________ Fourth point of determination is whether the evidence of PW 7 Krishan Devi who is sister of Sh. R.S. Mann shows that the Will dated 23.06.2010 is suspicious?
Ld. counsel for the plaintiffs has argued that Smt Krishna Devi has stated that her brother i.e. Sh. R.S. Mann never executed any will in favour of his daughter and grandsons. As per Ld. counsel for the plaintiff's contention this makes will dated 23.06.2010 highly suspicious.
RCA DJ 41/17 JAGWANTI AND ANR. Vs. SUMAN AND ORS Page no. 17 of 21 Ld counsel for the defendants has argued that the witness has admitted in her cross examination that she did not see the dead body of her brother and was outside the boundary of the village. As per contention of the ld counsel for the defendant, this shows that sister of R.S. Mann i.e. PW 7 Ms. Krishna Devi was having no personal knowledge of affairs of Sh. R.S. Mann. Regarding will it is stated that DW4 and DW5 have given credible evidence.
FINDING ON THE FOURTH POINT OF DETERMINATION
27. This court agrees with argument of defendants. Court is of the opinion that the witness-PW-7 has admitted in her cross examination that she did not see the dead body of her brother and was outside the boundary of the village. This shows that sister of R.S. Mann i.e. PW 7 Ms. Krishna Devi was having no personal knowledge of affairs of Sh. R.S. Mann. Regarding will the evidence of DW4 and DW5 has been found credible for reasons below.
__________________________________________________________ Fifth point of determination is Whether the admissions of DW4 and DW5 in the cross examination show that the Will dated 23.06.2010 is suspicious?
Ld. counsel for the plaintiffs has argued that DW4 has admitted that he does not remember as to whether Rajinder had appended his thumb impression or has signed the will.
Ld counsel for the defendants contents that will is dated 23.06.2010 and the evidence of the witness is of 14.09.2015 after RCA DJ 41/17 JAGWANTI AND ANR. Vs. SUMAN AND ORS Page no. 18 of 21 approximately 5 years. It is further argued that the witness has stated that he signed in front of the registrar. It is also stated that Kuldeep has signed in his presence. The witness has only stated that he does not remember whether Rajinder had signed or thumb marked. The witness has not admitted that Rajinder did not sign or thumb mark. It is further stated that DW4 has specifically stated in cross examination that he had signed in front of the registrar. In my presence Kuldeep has signed.
FINDINGS ON THE EVIDENCE OF DW4
28. The court is of the view that will is dated 23.06.2010 and the evidence of the witness is of 14.09.2015 after approximately 5 years. It is further observed that the witness has stated that he signed in front of the registrar. It is also stated that Kuldeep has signed in his presence. The witness has only stated that he does not remember whether Rajinder had signed or thumb marked. The witness has not admitted that Rajinder did not sign or thumb mark. It is further stated that DW4 has specifically stated in cross examination that he had signed in front of the registrar and that in his presence Kuldeep has signed. The evidence of the witness if seen in totality is credible and no major infirmity is found out. DW4 has specifically stated in his chief examination that RS Mann executed the will. This evidence has not been demolished.
___________ It is further argued by Ld. counsel for the plaintiffs that DW 5 has admitted that he did not know as to where the will was typed and he had not got prepared the same.
RCA DJ 41/17 JAGWANTI AND ANR. Vs. SUMAN AND ORS Page no. 19 of 21 Ld. counsel for the defendants has argued that there is no requirement under the law that the will should be typed in presence of the attesting witnesses. DW5 was asked questions regarding state of mind of R.S Mann no question regarding sequence of attestation were asked.
FINDINGS OF THIS COURT ON EVIDENCE OF DW5
29. This court agrees with submission of defendants. This court opines that there is no requirement under the law that the will should be typed in presence of the attesting witnesses. DW5 was asked questions regarding state of mind of R.S Mann no question regarding sequence of attestation were asked. DW5 has specifically stated in his chief examination that RS Mann executed the will. This evidence has not been demolished. There is no infirmity in the evidence of DW5. His evidence is credible. His evidence has been recorded on 04.10.2015 i.e. after 5 years of will dated 23.06.2010. Minor infirmities are bound to occur.
FINDINGS OF THIS COURT ON FIFTH POINT OF DETERMINATION
30. The will dated 23.06.2010 has been duly proved by the defendants no. 1 to 4. The evidence of DW 5 and DW4 has been found to be credible for reasons stated in paras above. No suspicious circumstances in regard to will dated 23.06.2010 has been proved. This point of determination is decided in favour of the defendant and against the plaintiffs.
RCA DJ 41/17 JAGWANTI AND ANR. Vs. SUMAN AND ORS Page no. 20 of 21 CONCLUSION
31. As a result, the present appeal fails because the appellants have utterly failed to prove any illegality, infirmity and perversity in the impugned judgment dated 25.01.2017. Findings on issue no. 2 by Learned Trial Court that in view of law laid down in judgment of the Hon'ble Supreme Court of India case titled as Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by Lrs. And Ors. and Civil Appeal no. 6191/2001, relief of declaration without seeking consequential relief is not maintainable is correct and is also upheld. The appeal is dismissed being devoid of merits. The judgment and decree of the Ld. Trial Court dated 25.01.2017 is upheld.
Pending applications, if any stand disposed off. File of the appeal be consigned to record room. A copy of this order alongwith the TCR be sent back to the Ld. Trial Court immediately Digitally signed VIKRAM by VIKRAM BALI by the Ahlmad. BALI Date: 2023.10.20 16:49:09 +0530 (Vikram Bali) Addl. District Judge-02, North Announced in the open Court. Rohini Court Complex, Rohini (Order contains 21 pages) Delhi/20.10.2023 RCA DJ 41/17 JAGWANTI AND ANR. Vs. SUMAN AND ORS Page no. 21 of 21