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44. In the replication, the plaintiff has responded to paragraph 3A of the amended written statement by admitting that the late father had retired as Under-Secretary from the Government of India. The plaintiff has not specifically denied that the family pension was paid to the late mother after the demise of the father and, hence, there is no dispute that the family pension was being collected by the mother. The plaintiff has only denied the quantum of family pension for want of knowledge. The plaintiff has also not specifically denied that the mother also had cash in the shape of FDRs and bank deposits amounting to about Rs. 2.50 lacs and that she was having regular interest income which was about Rs. 1,500/- per month. Hence, the factum of the mother having amounts in FDRs and enjoying interest income is also not disputed. The plaintiff has also admitted that the property at Rajouri Garden was in the name of the late mother. Thus, the admitted position is that the mother was receiving family pension after demise of the father and was also having FDRs and bank deposits from which she was earning interest. The mother also had an immoveable property at Rajouri garden in her own name. Again, the plaintiff has been unable to show that all this was insufficient to cover the maintenance of the late mother.
45. The onus to prove that Smt. Harjit Kaur had any pre-
existing right to maintenance was ultimately upon the plaintiff and upon a perusal of the evidence I would hold that the plaintiff has miserably failed to discharge this onus. It has come on the record that the late mother had received bank deposits and savings under the will. The late mother was also receiving pension. The late mother was also entitled to receive the rental income. The late mother was also having immoveable property in her own name. The plaintiff has been unable to show that all this was insufficient for taking care of the maintenance needs of the late mother. The plaintiff has also been unable to show that the late mother had ever made any claim for maintenance against her husband or her husband's estate. Thus, merely because a right of residence was given to the late mother in the suit property that would not ipso facto mean that the right of residence was in lieu of any maintenance.
46. Furthermore, the late father has observed in the will that it was the responsibility of his son, i.e. the defendant no.1, to take care of his mother during her lifetime so that she has a peaceful life. It is not the case of the plaintiff that the defendant no.1 did not fulfil this responsibility as stated in the will or that the defendant no.1 did not take care of the maintenance needs of his mother. The plaintiff has also been unable to show that the late mother had ever claimed that her son i.e. the defendant no.1 was not looking after her.
48. The plaintiff has avoided to enter the witness box and to be tested in her cross-examination. As such, an adverse inference would be taken against the plaintiff. The defendant no.1 has clearly deposed that late Sardar Joginder Singh had prior to the execution of the will discussed the same with all his three children who were parties to the suit. He has also deposed that he had specifically informed his children about his intentions and desires. He has further deposed that during the lifetime of late Sardar Joginder Singh, no objection of any nature was raised by the plaintiff. It is further deposed that the plaintiff was aware about the will since 1983. He has further deposed that the deceased mother was receiving family pension which was sufficient for her maintenance. He has further deposed that the mother was also owner of the Rajouri Garden property which was also sufficient to take care of her maintenance needs. He has further deposed that the mother had FDRs and bank deposits for about Rs. 2.5 lacs which were earning interest and that all this was good enough to take care of the mother's maintenance. The testimony of the defendant no.1 as DW- 1 regarding the savings and bank deposits with the late mother is corroborated by the will which mentions the savings and bank deposits. The plaintiff has herself not entered the witness box to depose in contradiction to what has been deposed by the defendant no.1 and to face cross- examination. The deposition of the defendant no.1 is believable in the absence of any contradictory testimony by the plaintiff herself. PW-1 who is the husband of the plaintiff has admitted that his deposition was solely on the basis of what his wife had told him. Thus, his testimony was mere hearsay. It is also clear from the cross- examination of PW-1 that he had no knowledge about the moveable properties of Smt. Harjit Kuar. In his cross- examination, he has deposed that he did not know if Smt. Harjit Kaur received any pension. He did not know if Smt. Harjit Kaur was having any bank deposits to her credit. He has admitted that he made no inquiries about the moveable properties of Smt. Harjit Kaur since the suit was not filed by him. He further deposed that he never spoke to Smt. Harjit Kaur about the deposits or money owned by her and that Smt. Harjit Kaur also never spoke to him about it. He further deposed that he was not aware if Smt. Harjit Kaur was having any income from interest. Thus, PW-1 is clearly unaware of the financial position of late mother and of the moveable assets which were available with the mother for her sustenance and maintenance. In the result, the testimony of PW-1 to the effect that the life estate in the suit property was granted to the late mother in lieu of any right to maintenance cannot be accepted. On the whole, the plaintiff has failed to discharge the onus to prove that the mother had any pre-existing right to maintenance or that the right to residence was granted to her in lieu of any pre-existing right of maintenance.