Delhi High Court
Om Prakash Kohli vs Ravi Prakash Kohli And Ors. on 3 October, 2001
Equivalent citations: AIR 2003 (NOC) 53 (DEL), 2002 A I H C 3186
JUDGMENT V.S. Aggarwal, J.
1. Om Prakash Kohli has filed the present suit for partition of property i.e. house No. 10198/10199 Gali 16, Bedanpura, Karol Bagh, New Delhi.
2. It is not in dispute that Anant Ram Kohli was the common ancestor. Jamna Devi was his wife. The plaintiff Om Prakash Kohli, Ved Prakash, Ravi Prakash are the sons of Anant Ram Kohli while Shakuntla Devi (defendant No. 2) and Vidya Wati (defendant No. 3) are the daughters of Anant Ram Kohli.
3. It is asserted that Anant Ram Kohli was the owner of the property in dispute. It had been acquired by Anant Ram Kohli with the help of ancestral nucleus and was also financially helped by the plaintiff. Anant Ram Kohli died on 8.12.1961. After the death of Anant Ram Kohli the plaintiff became the owner of 1/5th of the house while defendants 1 to 3, namely Ravi Prakash, Shakuntla Devi, Vidya Wati became the owner of 1/5 share each. Defendants 4 to 5 who are the heirs of Ved Prakash Kohli, also became the owner of 1/5 share each. Anant Ram Kohli had given one room and a kolki to the plaintiff for keeping heavy items of the goods. In the records of the municipal corporation the property was mutated in the name of the heirs of Anant Ram Kohli after his death. Plaintiff asserted that he does not want to keep the property in dispute as joint and therefore requested the defendants for partitioning of the same. In the absence of any response the present suit has been filed.
4. In the written statement filed by defendants 1 and 4 to 7 the suit as such was contested. Preliminary objection had been taken that Anant Ram Kohli had lost his parents in the childhood when he was about 15 years and was residing at Lahore. He was brought up and adopted by Budha Mal Bhasin, maternal uncle of Anant Ram Kohli. He did not inherit any property from his parents. Anant Ram Kohli after matriculation had joined service in Poonch State which was a part of Jammu and Kashmir. After leaving the service of the Maharaja, Anant Ram Kohli joined the Estate Department in Govt. of India and retired on attaining the age of superannuation. he had purchased a plot in Block S, Naiwala from Ram Nath Khosla in 1937. he completed the construction in the year 1945-46. The plaintiff was married to Savitri Devi who gave birth to six children. The plaintiff was not taking step for bringing up the children. Anant Ram Kohli had tried to persuade the plaintiff to behave in a proper manner but it had no effect on the plaintiff. He turned his wife and children out of his house. On account of this indiscipline on the part of the plaintiff who has very quarrelsome Anant Ram Kohli disinherited his from his property.
5. It is also asserted that the plaintiff was in Govt. service in CPWD and was serving in various States in that capacity during his tenure of office. While posted at Delhi in the year 1941-42 he did not reside with his parents and the plaintiff had a quarter allotted for his own residence. After 1945 when plaintiff was disinherited by the Anant Ram Kohli he was living in Bombay. The plaintiff resigned from his service in 1944-45. In 1945 when he was disinherited the house was under construction he did not live with his parents even for a single day. Anant Ram Kohli died on 8th December, 1961. Jamna Devi, mother of the plaintiff did to permit the plaintiff even to perform the last rites of Anant Ram Kohli. Anant Ram Kohli had executed a will dated 4th August, 1951. He had decided that plaintiff, his wife and children will have no share in the property of Anant Ram Kohli. He bequeathed the property in favor of his wife, for her life time. She was given a life estate but was not entitled to sell the residential house. Shri Anant Ram Kohli bequeathed the property in favor of Ved Prakash Kohli and Ravi Prakash Kohli in equal shares. The deceased vide his will did not bequeath and property in favor of any of the daughters.
6. It has further been pleaded that Anant Ram Kohli had inducted Dr. R.C. Sakhuja as a tenant with respect to the house. In 1962 Ved Prakash Kohli, defendant No. 1 and Jamna Devi had filed an eviction petition against the said tenant. The will dated 4th August, 1951 was proved and was placed on the record of the Rent Controller. The order of eviction was passed by the Rent Controller, Delhi with respect to the portion of the house. On the basis of the will of Anant Ram Kohli and application for mutation of the house was made to Delhi Development Authority by Jamna Devi, mother of the plaintiff. Jamna Devi died on 13th February 1965. On basis of the will of Anant Ram Kohli, Ravi Prakash Kohli moved an application in DDA for mutation of their names. The said application was accepted. The plaintiff was aware of the mutation but has not challenged the same till date. The plaintiff has alleged to have fraudulently got the property mutated in the records of the municipal corporation. On coming to know of this fact Ved Prakash Kohli and defendant No. 1 had moved an application with the municipal authorities and the order whereby the name of the plaintiff was added had been withdrawn.
7. It has further been asserted that the plaintiff has never been in occupation of the said property for a single day. The suit has been filed in the year 1977 while cause of action if any had arisen on the death of Anant Ram Kohli and therefore the suit is barred by time. Anant Ram Kohli had further permitted his wife to sell certain other plots at Bagh Kare Khan, Delhi. Before they could be sold the said plots were acquired. Jamna Devi widow of the deceased Anant Ram Kohli had claimed compensation from Delhi Administration with respect to the said plots. The plaintiff even stated to have filed an affidavit admitting that Anant Ram Kohli had executed a Will of 4th August 1951. Thus it is claimed that plaintiff has come to the court with unclean hands.
8. On merits of the matter also therefore it has ben denied that the plaintiff has any right, title or interest in the property in question and therefore is not entitled to seek the partition.
9. Rejoinder was filed by the plaintiff. It is denied that the father of Anant Ram Kohli had not left any property. Shri Shankar Das who was the father of Anant Ram Kohli had married his daughter in a befitting way. Anant Ram Kohli had ben brought up by his mother. She possessed substantial assets. The property in question therefore was stated to have been purchased as a result of the ancestral property. Anant Ram Kohli had got his pension commuted and have sold the house at Sialkot. It has been purchased with the help of his father's property. Anant Ram Kohli was looking for financial assistance and plaintiff had even contributed in this regard. The plaintiff asserted that he was leading a happy married life for 15 years. When the plaintiff was posted at Bombay his wife had desired to adopt a film line alone with his brother Dev Anand and others. The plaintiff had no interest therein. By a mutual understanding between the plaintiff and his wife they started living separately and she started living with her brothers. Anant Ram Kohli himself has strongly recommended the plaintiff to the father of his second wife. The relations of the plaintiff with his father were cordial. The plaintiff had taken a government quarter in Delhi but it is asserted that he was sin possession of one room and a kolki. As regards the will set up by the defendants the same is described to be a forgery and consequently it is asserted that on the death of Anant Ram Kohli all the shares inherited in the said property.
10. From these pleadings of the parties on 11th January, 1978 following issues had been framed:
1. Is the suit barred by time?
2. Is the plaintiff estopped for challenging the will dated 4th August, 1951? What is otherwise the effect of the said will?
3. Is the plaintiff entitled to any shares in the property by way of partition? If so, on what basis and to what extent?
4. Is the plaintiff in actual possession of any portion of the house? If so, of which portion and since when?
5. Was the property in suit acquired on such basis that it can be held to be ancestral property?
6. Has the suit been properly valued for purpose of court fee and jurisdiction?
7. Relief.
11. On 16th February, 1979 following two additional issues were also framed:
8. Whether the Will dated 4.8.1951 was validly executed by Anant Ram and is his last will?
9. Whether Anant Ram executed a will on 2.2.1959 validly and if so what are its terms. OP
12. Issue No. 9: As per the plaintiff Anant Ram Kohli had executed a will dated 2nd February, 1959. Onus obviously was on the plaintiff to establish the execution of any such will. But no such will has been proved dated 2nd February 1959. A letter dated 2nd February, 1959 (photocopy mark X1) had been referred to. The original of the same has not seen the light of the day. On behalf of the plaintiff it was asserted that adverse inferences should be drawn against the defendants. But in the absence of there being proof that there was an original will dated 2nd February, 1959 such inferences cannot be drawn nor it can be held that defendants have willfully failed to produce the same. In law, adverse inferences can only be drawn if the party in possession of the document does not produce the same. As referred to above, in the present case the said fact is not at all established. Issue is decided against the plaintiff.
13. Issue No. 4: In the plaint it had been asserted that the plaintiff has been in possession of a portion of the house. In the long drawn statement of the plaintiff, in his own statement as PW-1 added that Anant Ram Kohli, his father had given his one room and the kolki in the suit house and he had been keeping heavy items of the household goods therein. He had deposed further that after the marriage of Ved Prakash Kohli defendant in 1949 the room in which heavy goods were stored were handed over to Ved Prakash Kohli and he had shifted his luggage to the store. According to the plaintiff his luggage was still stored in that premises i.e. the store. On 16th February, 1980 the plaintiff had made a statement in the court that he had never lived in the house 10198-99 Gali No., Bedan Pura, Karol bagh nor he is living there. But he added that he used to come and stay with his father. On the strength of this statement it had been urged that the plaintiff had been in possession of the part of the premises. Strong reliance was placed on the plaintiff on the fact that he had been receiving letters PW 1/13 to PW 1/20 at the suit premises. This has been relied upon to urge that the plaintiff was in possession of a part of the premises. But mere giving of the postal address will not tantamount to saying that the plaintiff was living therein. This is because of the reason that the plaintiff admitted that he had not lived with Anant Ram Kohli in the said property. Therefore, the said letters will not take the plea of the plaintiff any further.
14. The defendants on the contrary have denied this fact.
15. In this regard when the evidence is scrutinised the plaintiffs version cannot be believed. In his statement recorded on 1st April, 1981 plaintiff had stated as referred to above that he had kept heavy goods in the kolki comprising of beds, two almirahs, one wooden box, two steel boxes and one bench. The site plan on the record indicates that the kolki is approximately 5'x3'. it is therefore difficult to believe that all such goods could be kept in such a small kolki. Otherwise also in all these years it is not shown that plaintiff had ever used the said premises. The inferences were obvious that plaintiff cannot be taken to be in possession of any portions of the house. If the plaintiff's goods were in the kolki he would have taken some steps to see those goods or inspect the same. Inferences are obvious that it cannot be termed that plaintiff was in possession of the said kolki. Issue is decided in favor of the contesting defendants.
16. Issues 2, 3 and 8 : All these issues are inter connected and can conveniently be disposed together. This is for the reason that the contesting defendants have set up a will of 4th August, 1951 purported to have been executed by Anant Ram Kohli. By virtue of the said will the plaintiff had been excluded from his right to inherit the property. As a necessary corollary therefore if the said will had been executed by Anant Ram Kohli the result would be that plaintiff will not be entitled to claim any right in the property. Before proceedings further it would be in the fitness of things to refer to a legal plea floated on behalf of the plaintiff. It was urged that even if it be taken that Anant Ram Kohli had executed the will still he had given a life estate to his wife, namely mother of the plaintiff. By virtue of Section 14 of the Hindu Succession Act since the life estate of a widow had been put to an end the plaintiff would inherit being the son on the death of his mother. Reliance on behalf of the plaintiff was being placed on the decision of the Supreme Court in the case of Vaddeboyina Tulasamma and Ors. v. Vaddeboyina Sesha Reddi (dead) by LRs AIR 1977 SC 1944. It was held by the Supreme Court that Sub-section (1) to Section 14 is large in its amplitude and covers every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the commencement of the Act or was subsequently acquired, in that event she would become full owner of the property. In the cited case the Hindu female had acquired the property under a compromise in lieu of satisfaction of her right of maintenance. It was held that she would become the full owner of the said property. Similar view had been expressed a year later in the judgment of the Supreme Court in the case of Gullapalli Krishna Das v. Vishumolakala Venkayya and Ors. AIR 1978 SC 367 and again it was reiterated that wen Hindu widow is put in possession of certain joint family property in lieu of maintenance she would become full owner thereto. Reliance further has been placed on the decision of the Supreme Court in the case of Bai Vijia (dead) by LRs. v. Thakorbhai Chelabhai and Ors. . The Supreme Court held that limited ownership is sine qua non applicability of Section 14(1) and that Hindu female must have limited ownership in the property, the same is enlarged by virtue of Sub-section (2) of Section 14 of Hindu Succession Act.
17. It is abundantly clear from aforesaid that these precedents were basically confined to those conditions where the Hindu widow was possessed of a property for her maintenance and strict provisions of Sub-section (1) to Section 14 of the Hindu Succession Act, 1956 was applied. it is also true that Sub-section (2) to Section 14 has been couched in the widest possible terms. It must be liberally construed in favor of the females to promote socio-economic ends sought to be achieved. Still the plain language of the provisions of Section 14 of the Hindu Succession Act cannot be ignored. Section 14 of the Act reads:
"No petition for divorce to be presented within one year o marriage - (1) Notwithstanding anything contained in this act, it shall not be competent for any court to entertain any position for dissolution of a marriage by a decree of divorce. (unless at the date of the presentation of the petition one year has elapsed) since the date of the marriage:
Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented (before one year has elapsed) since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court to the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the (expiry of one year) from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after (expiration of the said one year) upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the (expiration of one year) from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the (said one year)."
18. In the present case the life estate had been created by virtue of a will purported to have been executed by Anant Ram Kohli. Since it is by virtue of a will he would only get the rights that had fallen to her by virtue of the contents of the will and not against the plain language thereto. Keeping in view the plain and unambiguous meaning of Sub-section (2) to Section 14 the said argument that it must be taken to have become full owner of the said property, the plea consequently in that view of the matter must fail.
19. Yet another argument advanced was that the will set up by the defendants had not been probated and therefore the same cannot be proved unless it is so probated. So far as this argument is concerned it has simply to be stated to be rejected. This is for the reason that it is not necessary that will must be got probated before it can be given effect to. In Delhi no such notification or order has been issued to make it mandatory. Therefore, there is no hesitation in rejecting this particular plea.
20. Perusal of the will reveals that the deceased Anant Ram Kohli as referred to above had disinherited the plaintiff, his wife and children from having any share in the said property. he gave the life estate to his wife. She was restrained from selling the said property and after her death the property was to fall to the shares of his two sons Ved Prakash and Ravi Prakash in equal shares. The relevant portion of the same reads:
"Whereas taking all the facts into consideration and also in conduct of my eldest son, Om Prakash, who has already been discarded by me, and have now finally decided that my eldest son, Om Prakash and his wife and children will have no share or right to succeed to any of my property moveable or unmoveable. .....To my wife, Shrimati Jamna Devi for her life, all my moveable property, the house and the vacant residential plots described above. She will enjoy a life estate and shall not be entitled to sell the residential house, 'Shankar Bhawan' but may sell the five plot nos. 22, 23, 24, 25 and 98 at Bagh Kare Khan, Delhi. After her death the residential house and the five plots of land (if any one not sold by her/will become the absolute property of my two sons Ved Prakash and Ravi Prakash in equal shares. If the said five plots of land are sold by Smt. Jamna Devi, the proceeds thereof shall be utilised by her according to her wishes."
21. It had bee urged on behalf of the plaintiff that the will cannot be believed because it is unnatural. The plaintiff was an obedient son and had been looking after his father and consequentially there was no occasion for Anant Ram Kohli to disinherit the plaintiff and his children. In the alternative it was further urged that even if for sake of argument it be taken that the plaintiff was not having good relations with his father Anant Ram Kohli still there was nor reason as to whey he would disinherit the children of the plaintiff. On behalf of the plaintiff reliance was placed on the Division Bench decision of this court in the case of Sumitra Devi and Ors. v. Harbans Kaur and Anr. LPA 82/74 decided on 5th October, 1981. It was held that if the will is surrounded by suspicious circumstances and if it is further shown that propounder had taken a prominent part in execution of the will and has received substantial benefit under it that itself is generally treated as a suspicious circumstance attending the execution of the will. If there are suspicious circumstances the propounder must remove the said suspicion. Registration by itself will not dispel the suspicion.
22. On similar lines is the subsequent decision of this court in Dinesh Kumar v. Khazan Singh and Ors. . In the said case the Testatrix had made the will on 22nd August, 1985. She had died subsequently. The question for consideration before the court was as to if the will was duly proved or not. This court held that when there are suspicious circumstances the suspicion must be removed. The court had taken note of those circumstances and thereupon held that the will cannot be taken to have been proved. Necessarily the findings has to be based on facts and circumstances of each case. There cannot e a straight jacket formula giving a perfect guide-line as to what would be a suspicious circumstance. If the conscious of the court is shocked or it is felt that the will had not been proved and the propounder of the will had acted in a manner which arises the suspicion the findings would be otherwise. As would be noticed in the present case the plaintiff had been living separately and was not on good terms with Anant Ram Kohli, his father and one therefore may not be surprised that the deceased had disinherited the son and given the property after the life time of his wife to his other two sons. As regards excluding the children of the plaintiff is concerned, the same by itself will not become a suspicious circumstance for the reason that it is for the person executing the will to bequeath the property acquired by him to a person who he deems to be appropriate. It is not a rule of law nor of prudence that a grand son in the event of dis-inheriting the son must get the said property.
23. In any event it was contended that the will cannot be termed to have been proved because it only saw the light of the day years after he death of Anant Ram Kohli and further that the land compensation during the compensation proceedings had been taken by all the heirs.
24. In order to appreciate this controversy reference can well be made to the statement of the plaintiff in this regard. The relevant portion of the statement of the plaintiff on 22nd April, 1981 in his own words read:
"My father died in the house in suit. I used to attend on him when he was ill, prior to his death. When he was in the Hospital I attended on him. One day when he was in great distress he told me that he had left a will in favor of my mother leaving all the movable and immovable properties in her name. He had also instructed me to look after her. My mother was the full owner of the property.
I have seen the original affidavit dated 11.2.1963 on the file of the Additional District Judge in Reference proceedings No. LAC 229 of 1964 entitled Jamna Devi v. Union of India. My brother V.P. Kohli had brought this affidavit to me. At that time no one else had signed this affidavit. It was at that time that he had shown me the original of letter marked X-1. In fact it was for obtaining my signature on this affidavit that he had showed me that letter. This affidavit was got signed from me at my residence. I had not gone before an Oath Commissioner to get this affidavit attested. I do not know the Oath Commissioner whose seal has been affixed on this affidavit. On that day my sister Shakuntla Devi Chadha was in Delhi but my other sister Vidya Wati Sahni was in Tundla near Agra.
25. He was subjected to cross-examination and added that in 1930-31 he has employed in Delhi as Engineer apprentice. he was living with his father. In 1931 he was married. In 1932-33 he was posted at Mathura and Agra and thereafter joined service near Dehradun in 1934. He went on to add that he had taken a govt. quarter at Baired Road, New Delhi. Till such time his house was built in the year 1947 he had given his father's address as his own address. He also admitted that he had given the address of 5/20 Western Extension Area, Karol Bagh to the Hindustan Commercial Bank and that he used to go to bombay in connection with a construction work of a tunnel. The witness had re-marred in 1954 though he had not divorced his fits wife.
26. The evidence clearly indicates that the plaintiff had not been living with his father Anant Ram Kohli and because of his strained relationship with his wife he had re-married. The explanation being offered that his first wanted to join film world does not appear to be very convincing because there is precious little on the record to indicate that in fact the first wife of the plaintiff had in Bombay joined the film world. Therefore, one is not surprised that the father of the plaintiff had disinherited him.
27. As regards the plea that the will had not seen the light of the day and plaintiff was never told about it, the contention is without any merit. Ex. D7 is the copy of the judgment of the learned Rent Controller, Delhi dated 13th September, 1967. The will executed by Anant Ram Kohli had been referred and proved in the earlier litigation. It is true that the plaintiff was not a party to that litigation but it cannot be termed that there was no reference ever made to this will.
28. In addition to that Ex. D9 is the affidavit that was filed by the plaintiff and others before the Add. District Judge, Delhi. It is dated 11th February, 1963. The said affidavit reads:-
"Affidavit of S/Shri Om Prakash, Ved Prakash and Ravi Prakash, aged 55, 40 and 38 years respectively, and Smt. Shankuntala Devi Chadha and Smt. Vidya Wati Sahni, aged 49 and 45 years respectively, all sons and daughters of the late Shri Anant Ram.
We, Om Prakash, Ved Prakash, Ravi Prakash, Shankuntala Devi and Vidya Wati, named above, do hereby solemnly affirm and depose as under:-
1. That our respected father, Shri Anant Ram, who died on 8th Dec., 1961, left a Will according to which his property known as Plots No. 22 to 25, measuring 400 sq. yards at Bag Kare Khan in village Sadhora Khurd Delhi, has been bequeathed to our respected mother, Smt. Jamna Devi.
2. That we are the only issues and heirs of the late Sh. Anant Ram.
3. That none of us has any right, interest, claim or title to the land mentioned in para No. 1 above in respect of which our mother, Smt. Jamna Devi alone is entitled to receive full compensation awarded or to be awarded b this Hon'ble Court and she alone is entitled to do all acts and things incidental and necessary pertaining to the said property and thus we have no objection whatsoever to any payment being made to our mother, Smt. Jamna Devi, in this regard or to any reference or petition made by her in this Hon'ble Court."
29. The document referred to above clearly establish that the plaintiff knew about a will purported to have been executed by the deceased Anant Ram Kohli. It has already been noticed above that no other will has been proved or placed on the record. In other words, plaintiff must be taken to be not only aware of the will set up by the contesting defendants. The only logical conclusion would be that the will was to the knowledge of the plaintiff. The plea of there being any misrepresentation in this regard is not substantiated because the material in this direction is almost negative. Mere assertion would not even amount to an averment because particulars are not forthcoming.
30. The said conclusion gets fortification from the statement of the plaintiff who candidly admitted that his father had told him that he had executed a will. The above findings clearly show that the sole will set up and proved is Ex. D1 to be referred to hereinafter.
31. Strong reliance has further been placed by the contesting defendants that affidavit dated 7.2.1962 Ex. D11 further shows that the plaintiff had known and admitted the execution of the said will. The defendants had examined Shri D.R. Seth, Advocate who was working as Oath Commissioner in the year 1962. He had stated that Ex. D11 does not bear his attestation but admitted that it bears his seal. During the course of trial thereafter number of such documents were produced so as to show that his seal had been found on different other affidavits. Keeping in view the unambiguous statement of Shri D.R. Seth it is difficult to believe that due execution of this affidavit is proved. But the above findings clearly show that plaintiff was aware of the said will.
32. This conclusion must be held to be established because the will purported to have been executed by the deceased has been proved in accordance with law. Shri Harish Chandra, DW3 is one of the attesting witness of the will. He deposed that he had attended the funeral of Anant Ram. He was intimately connected with him and that he is the attesting witness of the said will. At that time Anant Ram Kohli stated to be in good health and in senses. He stated further that his signatures are at mark "C". Anant Ram Kohli had signed it and he and other attesting witnesses had signed the said will. The long cross-examination of the witness does not demolish the testimony of Shri Harish Chandra. He is close to the family of the deceased as is apparent from what has been recorded above and it clearly show that the said will stood proved because there are no other suspicious circumstances to show otherwise. As an offshoot of these reasons it must be held that the contesting defendants have successfully proved the due execution of the receipt of the will of Anant Ram whereby the plaintiff had been disinherited from the suit property.
33. Issue No. 5: The plaintiff further had alleged that the property in question was purchased from the nucleus of the ancestral property at Sialkot and further that he himself and contributed funds to his father with respect to the said property. In this regard the evidence is lacking to establish that the property at Sialkot was ancestral. The bald statement of the plaintiff that he had contributed to his father for purchase of the said property or building of the same also is insignificant. It is self-serving statement. There is nothing on the record to indicate that plaintiff was so affluent that he was contributed to his father for purchase of the property. For lack of evidence the issue is decided against the plaintiff.
34. Issue No. 6: It has already been recorded above that plaintiff was not in possession of any portion of the property. Therefore he had to pay court fees ad valorem on the market price of the property to the extent his share. Issue is decided accordingly.
35. Issue No. 1: Learned counsel for the plaintiff urged that the suit property was mutated in favor of Jamna Devi after the death of Anant Ram. Mrs. Jamna Devi died on 13.2.1965. Defendant No. 1 and Shri Ved Prakash Kohli got the suit property secretly mutated in their favor. Plaintiff came to know of this fact when he filed the application in the municipal corporation in 1974 for mutation of the property in his favor. Thus, according to him the suit so filed would be within time.
36. It has already been recorded above that plaintiff knew about the execution of the will in his earlier affidavit Ex. D1. Therefore, once the plaintiff knew about the will of the deceased which became operation on the of Anant Ram Kohli on 8.11.1961, the period of limitation would start running immediately. The civil suit has been filed on 8th February, 1977 that is to say much after the period of limitation in terms of Article 110 of the Limitation Act had expired. Therefore the suit clearly is barred by time. Issue is decided against the plaintiff.
37. For these reasons the plaintiff indeed has no right. The civil suit must fail and accordingly is dismissed.