Vijay Kumar Gupta vs Mool Chand Gupta And Others
2012 Latest Caselaw 243 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 30
 

 
Case :- SECOND APPEAL No. - 901 of 2011
 

 
Petitioner :- Vijay Kumar Gupta
 
Respondent :- Mool Chand Gupta And Others
 
Petitioner Counsel :- Nitin Sharma
 
Respondent Counsel :- C.B. Gupta
 
Connected with
 
Case :- SECOND APPEAL No. - 902 of 2011
 

 
Petitioner :- Sunil Kumar Gupta
 
Respondent :- Mool Chand Gupta And Others
 
Petitioner Counsel :- Nitin Sharma
 

 
                              _____________
 

 

 
Hon'ble Rajes Kumar,J.

These are two Second Appeals arising from the order of the Additional District Judge, Court No. 3, Meerut, dated 9.9.2011, passed in Civil Appeal No. 170 of 2008, Vijay Kumar Gupta vs. Mool Chand Gupta and others and Civil Appeal No. 161 of 2008, Sunil Kumar Gupta vs. Mool Chand and others.

The brief facts, giving rise to these appeals, are that Mool Chand Gupta filed the Suit No. 814 of 1998, Mool Chand Gupta and others vs. Vijay Kumar Gupta and Sunil Kumar Gupta, appellants herein, who were defendant nos. 1 and 2, for mandatory injunction seeking the direction from the court to the defendant-appellants to vacate the house and handover the physical possession of the portion 'ABCDEFGHI' and 'JKLMNOP' respectively shown in the plaint map of the House No. 11 (New Number 12) situated in New Arya Nagar, Jail Road, Meerut. The plaintiff, Mool Chand was the father of the defendants, Vijay Kumar Gupta and Sunil Kumar Gupta. The suit was filed with the allegations that since last two and half years, defendant no.1 and since last ten months, defendant no.2, and their families started abusing, torturing, misbehaving and committing cruelty with him and his wife due to which the plaintiff and his wife suffered mental agony, which affected their health and due to the inhuman behaviour of the defendants, the plaintiff and his wife decided not to keep the defendants any more in the said house. The legal notices have been issued to the defendants and, thereafter, the suit has been filed in the year 1998. Sri Mool Chand died on 12th January, 1999, leaving behind the will dated 6.10.1998 and 24.12.1998. By virtue of the aforesaid wills, Smt. Dharamwati, wife of Sri Mool Chand became the owner of the property in dispute and has been substituted as the plaintiff no. 1/1.

It is not in dispute that the House No. 11 (New Number 12) situated in New Arya Nagar, Jail Road, Meerut was exclusively owned by Sri Mool Chand. Sri Mool Chand had six sons, namely, Vijay Kumar Gupta, Sunil Kumar Gupta, Ajay Kumar Gupta, Rakesh Kumar Gupta, Mukesh Kumar Gupta and Praveen Kumar Gupta and three daughters, namely, Smt. Asha, Smt. Manju and Smt. Rekha. Sri Mool Chand executed a registered will dated 6.10.1998 in favour of his wife Smt. Dharamwati in respect of moveable and immoveable properties including House No. 11 (New Number 12) situated in New Arya Nagar, Jail Road, Meerut and in favour of his four sons, namely, Ajay Kumar Gupta, Rakesh Kumar Gupta, Mukesh Kumar Gupta and Praveen Kumar Gupta stating therein that after his death Smt. Dharamwati will be the owner of the said property and after her death the property shall devolve upon his four sons, namely, Ajay Kumar Gupta, Rakesh Kumar Gupta, Mukesh Kumar Gupta and Praveen Kumar Gupta and Vijay Kumar Gupta and Sunil Kumar Gupta have been excluded and not given any share in the property in dispute. The aforesaid will was witnessed by Sri Sanjeev and Smt. Dharamwati. A second will was also executed by Sri Mool Chand on 24.12.1998, which was unregistered. It was also in favour of his wife Smt. Dharamwati and in favour of his four sons, namely, Ajay Kumar Gupta, Rakesh Kumar Gupta, Mukesh Kumar Gupta and Praveen Kumar Gupta. The said will was witnessed by Sri Lavlesh Agrawal and Smt. Manju, daughter of Sri Mool Chand. In the said will also, it was stated that after his death, his wife, Smt. Dharamwati will be the absolute owner of the House No. 11 (New Number 12) situated in New Arya Nagar, Jail Road, Meerut and after her death the said properly will be given to his four sons, named above. In this will also, no share has been given to Vijay Kumar Gupta and Sunil Kumar Gupta.

Both Vijay Kumar Gupta and Sunil Kumar Gupta, the appellants, were residing in the same house. The cause of action of the suit arose when they started abusing, torturing and misbehaving with Sri Mool Chand and his wife which led filing of the suit for eviction by Sri Mool Chand.

Both the appellants filed the written statement and admitted that Sri Mool Chand was the owner of the House No. 11 (New Number 12) situated in New Arya Nagar, Jail Road, Meerut and have stated that the plaintiff no. 1/1, Smt. Dharamwati is not the sole owner of the dispute house. Sri Mool Chand died on 12th January, 1999. Sri Mool Chand did not execute will deeds dated 6.10.1998 and 24.12.1998 and on the basis of these forged wills, the plaintiff no.1/1, Smt. Dharamwati is not the owner of the disputed house. They further claimed that Sri Mool Chand executed another will dated 2nd January, 1999 in which he has given shares to all the sons including the present appellants, therefore, the appellants are also the co-owners of the house in dispute. They are neither the tenants nor the licensees and as such cannot be evicted from the house in dispute.

In the suit proceeding, Smt. Dharamwati filed the affidavit and has been cross-examined by the defendant-appellants. In the affidavit as well as in the cross-examination, she has submitted that will deeds were executed on 6.10.1998 and 24.12.1998 by Sri Mool Chand in her presence. The statements of Lavlesh Agrawal and Smt. Manju were also recorded, who were the attesting witnesses of the will dated 24.12.1998 and in their statements, they confirmed execution of the will dated 24.12.1998 and also confirmed signature of Sri Mool Chand on the will and their signature also. Pankaj Yadav and Sunil Kumar Gupta, who claimed to be witnesses of the will dated 2nd January, 1999 were also examined. The Trial court found that the statements of these two witnesses are contradictory and accordingly held that the forged will dated 2nd January, 1999 was got prepared by the defendant-appellants after the death of their father and on the basis of the will dated 24.12.1998, it has been held that Smt. Dharamwati is the exclusive owner of the property in dispute. The court below has directed the defendant-appellant to vacate the house in dispute and handover the possession to the plaintiff within one month, vide its order dated 18th October, 2008.

Against the said order of the Trial court, both Vijay Kumar Gupta and Sunil Kumar Gupta filed two appeals, referred hereinabove. Both the appeals have been dismissed by the order dated 9th September, 2011.

Heard Sri Nitin Sharma, learned counsel for the appellants and Sri C.B. Gupta, learned counsel for the respondents.

Learned counsel for the appellants submitted that the appellants are the sons of late Sri Mool Chand and Smt. Dharamwati, the plaintiff of the suit. He submitted that the appellants were able to prove the will dated 2nd January, 1999 and by virtue of the said will the appellants are entitled for their share in the property in dispute and, therefore, they are the co-owners of the property in dispute and neither they are tenants nor licensees and as such they cannot evicted. He submitted that the plaintiff failed to prove the will dated 24.12.1998.

I do not find any substance in the argument of learned counsel for the appellants.

It is an unfortunate case where a father was compelled to file a suit against his own sons for eviction from his own house on the allegations that both the sons with their family members were misbehaving, abusing and torturing their father and mother and are inhuman with them. The suit was filed by the father and even after his death was contested by the mother, which itself supports execution of the will debarring both the appellants from their shares in the properties. When the sons fail to discharge their pious obligations towards their parents and behave inhumanly, they are bound to meet such fate. They are not to be pardoned off and not entitled for any mercy. In the present case, not only Sri Mool Chand was annoyed from Vijay Kumar Gupta and Sunil Kumar Gupta, but their mother, Smt. Dharamwati was also so annoyed that even after the death of her husband Sri Mool Chand she continued to contest the suit and intended to evict both the sons.

No parents can be blamed for not taking proper care of their children. They always think and act for the welfare of their children from the date of their birth till their death. Every parents want to see their sons healthy, wealthy and prosperous and in return only expects respect and courtesy. Normally no parents would like to take service from their sons but sometime during the old age under compelling circumstances they expects services and care by their sons. It is pious obligation of the sons to discharge the same. This is the fact of the life that everyone has to become old and need help at the old age. The sons may also have to face the same situation in future. Atleast the sons have no right to abuse, torture or act inhumanly with their parents. Normally it is seen that the sons attitude change when they get married but their family members should not forget that they have to meet the same fate in future. Having regard to the prevailing situation, now-a-days the parents are becoming concious and careful in not parting their properties during their life time in favour of their sons or to any other family members of the sons. It is advisable not to do so in the prevailing scenario. Those who commits mistake has become beggar before their sons. Parents always wants to distribute equally and uniformally their property amongst all the sons. The parents normally give equal share in properties earned by them after their death, except sometime in a situation where the parents are of the view that any son is financially weak in comparison to others, needs more help, therefore, some extra share is being given to such son. Otherwise, only in a compelling circumstances parents think to debar any of the sons from the property and think to evict them from their house where they all are living together.

The present case is a case where the parents have to take such harsh steps. One can understand the mental situation of the parents when such decision has been taken by them. It may be out of context but I take opportunity to advice the sons not to create such situation. In future they will be father, will become old. Everyone is accountable for his deeds. No one can escape from it. This is the rule of Almighty, which is beyond challenge.

I have perused the order of the Trial court as well as the order of the Appellate court and the evidence adduced. The findings of both the courts below are findings of fact. No substantial question of law is involved in these two appeals, which requires consideration by this Court. In the result, both the appeals fail and are dismissed. The appellants are directed to vacate the premises forthwith, that is, within a period of one month from today failing which the appellants will be liable to pay a sum of Rs.10,000 (Rupees Ten Thousand only) per month towards damages for unauthorised occupation of the premises in dispute by each of the appellants.

Order Date :- 13.4.2012

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