Ram Kishan Dass (Deceased) Thr. ... vs Banarsi Lal Suri And Ors.
2002 Latest Caselaw 1679 Del

JUDGMENT

R.C. Chopra, J.

1. By this application under Sections 151, 152 and 153 of the Code of Civil Procedure, defendants Nos. 3 and 4 pray that the preliminary decree dated 20.8.1981 passed by this Court be modified and their shares be redefined. The defendants/applicants plead that the preliminary decree was passed on the basis of a Will of Late Shri Mela Ram alleged to have been executed on 18.9.1978, but now it has come to their notice that deceased Shri Mela Ram had made an earlier registered Will dated 26.12.1974 according to which they are entitled to additional shares in the suit property.

2. The application is opposed on behalf of defendants Nos. 2 and 5, mainly on the ground that the preliminary decree dated 20.8.1981 was passed on the basis of the Will dated 18.9.1978 without any objection or demur on behalf of the applicants and as such, at this belated stage, the applicants are estopped from denying the genuineness or the existence of the said Will. It is contended that even if the registered Will dated 26.12.1974, which is being propounded by the applicants/defendants, is taken as executed, it stood superseded by the subsequent Will dated 18.9.1978 which was accepted and admitted by the applicants/defendants by relying upon the partnership deed dated 29.12.1978 in which the Will dated 18.9.1978 had been referred to. It is argued that the preliminary decree dated 20.8.1981 was passed with the consent of the parties and the applicants/defendants without even pleading in the application that the said Will was forged or fabricated cannot call upon the Court to fall back upon an earlier Will dated 26.12.1974 and say that the preliminary decree should be modified.

3. I have heard learned counsel for the parties and gone through the records.

4. The plaintiff had filed a suit for a decree for winding up the affairs and rendition of accounts of Firm M/s. Rachna Enterprises India (Regd.) against the defendants Nos. 1 to 5 including these applicants also, who belong to the same family. In the written statement filed by the defendants, including the applicants-defendants No. 3 & 4, a Partnership Deed dated 29.12.1978 was relied upon in which the Will dated 10.9.1978 had been referred to and the details of the shares bequeathed by deceased Shri Mela Ram mentioned. This Partnership Deed also was signed by the applicants defendants. The orders dated 20.8.1981, by which a preliminary decree was passed on the basis of the statements of the parties including the applicants-defendants No. 3 and 4, was primarily on the basis of defendants' shares as per the Will dated 18.9.1978. Therefore, applicants were never disputing the Will dated 18.9.1978.

5. In the application under consideration, the applicants defendants plead that a registered Will dated 26.12.1974, executed by late Shri Mela Ram, has now come to their notice according to which they are entitled to more shares in the suit property and as such, the preliminary decree is liable to be modified. After considering the submissions made by learned counsel for the parties, this Court is of the considered view that the application filed by the applicants-defendants is frivolous on the face of it and merely a dilatory tactic for the reason that a prior Will dated 27.12.1974, even if registered, stood superseded by the subsequent Will dated 18.9.1978 which was admitted and acted upon by the applicants. In the application, the applicants did not plead even that the Will dated 18.9.1978 was a forged or fabricated document but after the reply filed by defendants No. 2 & 5 they took a plea in the rejoinder that the Will dated 18.9.1978 appeared to be a manipulated document. This plea is an after-thought only. After admitting the Will dated 18.9.1978 in the Partnership Deed dated 29.12.1978, on the basis of which the preliminary decree was passed on 20.8.1981, and without raising any objection against the Will dated 18.9.1978 the applicants-defendants are estopped from saying that the said Will appears to be a forged and manipulated document. The fact that the applicants-defendants have filed proceedings for the grant of probate of the Will dated 26.12.1974 is also no ground for tinkering with the preliminary decree dated 20.8.1981. Defendants No. 3 and 4 and defendants No. 2 and 5 belong to same family. They all have been jointly pleading and relying upon the Will dated 18.9.1978 for the last over 20 years and as such, it is now too late in the day for defendants No. 3 & 4 to express doubts against the said Will and claim redefining of their shares in the preliminary decree dated 20.8.1981.

6. This Court, therefore, is of the considered view that the application filed by applicants is without any merit. There are no grounds for modifying preliminary decree dated 20.8.1981 as prayed.

7. The application, therefore, stands dismissed.