Kamal Jindal vs Sushil Kumar Aggarwal & Anr.
2018 Latest Caselaw 782 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RFA No.70/2018

%                                     Reserved on: 29th January, 2018
                                    Pronounced on: 2nd February, 2018

KAMAL JINDAL                                                 ..... Appellant
                           Through:       Mr. Shravan Dev, Advocate
                                          with appellant in person.
                           versus

SUSHIL KUMAR AGGARWAL & ANR.                              ..... Respondents

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J

C.M. No.2712/2018(exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

RFA No.70/2018 and C.M. Nos.2713/2018(stay) & 3529/2018 (under Order XLI Rule 27 CPC)

2. This Regular First Appeal is filed under Section 96 of the

Code of Civil Procedure, 1908 (CPC) impugning the judgment of the

trial court dated 12.12.2017 by which the trial court has dismissed the

suit filed by the appellant/plaintiff seeking declaration of

appellant/plaintiff's ownership to the first floor of the property bearing

no.1/4847 Gali No.11, Balbir Nagar Extension, Shahdara, Delhi-32 on

the basis of the Will dated 16.7.1997 of Smt. Tara Devi, the owner.

The appellant/plaintiff also seeks declaration that the Will dated

12.7.2002 executed by Smt. Tara Devi in favour of the respondent

no.1/defendant no.1/Sh. Sushil Kumar Aggarwal is null and void.

3.(i) The facts of the case are that the appellant/plaintiff

pleaded that he was the grandson of Smt. Tara Devi and who had

executed her registered Will dated 16.7.1997 bequeathing the suit

property in favour of the appellant/plaintiff. Smt. Tara Devi expired

on 21.9.2002. The appellant/plaintiff pleaded to be in possession of

the suit property till 21.5.2004 when he pleads that he was

dispossessed by the respondent no.1/defendant no.1.

(ii) There were two defendants in the suit with the defendant no.1

being Sh. Sushil Kumar Aggarwal and defendant no.2 being the wife

of the defendant no.1. They filed their joint written statement pleading

that the appellant/plaintiff is not the grandson of Smt. Tara Devi but is

the grandson of the sister of Smt. Tara Devi, namely Smt. Shanti Devi.

As per the written statement, the respondents/defendants pleaded that

the real father of the appellant/plaintiff Sh. Radhey Shyam was living

in the ground floor of the property in question and when Smt. Tara

Devi called him to prepare the Will in favour of her son the

respondent no.1/defendant no.1, then Sh. Radhey Shyam in fact got

the Will dated 16.7.1997 executed in favour of the appellant/plaintiff.

When Smt. Tara Devi came to know of this fact she revoked the Will

dated 16.7.1997 by destroying the same and she executed her Will

dated 12.7.2002 in favour of the respondent no.1/defendant no.1/son.

It is further pleaded in the written statement that Sh. Radhey Shyam,

the father of the appellant/plaintiff was in illegal possession of the

ground floor of the property in question, and therefore Smt. Tara Devi

entered into a written compromise agreement dated 3.6.2002 with Sh.

Radhey Shyam whereunder Sh. Radhey Shyam vacated the possession

of the ground floor of the property in question after receiving a sum of

Rs.1,10,000/- in full and final settlement from Smt. Tara Devi. Sh.

Radhey Shyam in terms of the compromise deed dated 3.6.2002 stated

that he had no claims in the properties of Smt. Tara Devi. The suit was

therefore prayed to be dismissed.

4. After pleadings were complete, the trial court framed the

following issues:-

"(i) Whether the plaintiff is entitled to relief of declaration, possession, mandatory injunction and permanent injunction in relation to first floor of property bearing No.1/4847, Gali No.11, Balbir Nagar Extn., Shahdara, Delhi-32? OPP

(ii) Whether Late Smt. Tara Devi executed any valid Will dt. 16.07.97 (registered on 17.07.97) in favour of plaintiff in respect of first floor of property bearing No.1/4847, Gali No.11, Balbir Nagar Extn., Shahdara, Delhi-32? OPP

(iii) Whether the plaintiff is entitled to mesne profits alongwith interest at the rate of 18% PA as prayed for? OPP

(iv) Whether the plaintiff is entitled to recovery of mesne profits between January 2007 to December 2009 at the rate of Rs.3,000/- per month alongwith interest at the rate of 18% PA from the date of filing of the suit till realization? OPP

(v) Whether Late Smt. Tara Devi executed any valid will dt. 12.07.02 in favour of defendant No.1? OPD-1

(vi) Relief."

5. On the aforesaid issues, parties led evidence and these

aspects are recorded in paras 6 and 7 of the impugned judgment and

which paras read as under:-

"6. The plaintiff filed his affidavit by way of evidence Ex. PW 1/A and examined himself as PW-1 in support of the case. The witness deposed nothing but as per averments made in the plaint. The witness has also deposed regarding the documents i.e. Ex. PW 1/ 1 site plan, Ex. PW 1/ 2 certified copy of will, Ex. PW 1/3 death certificate of Tara Devi, Ex. PW 1/ 4 photographs, Ex. PW 1/ 5 certified copies of statement dt. 27.09.04 and order dt. 27.09.2004, Ex. PW 1/6 election ID Card, Ex. PW 1/7 photographs and mark A photocopy of ration card.

Plaintiff examined other witness i.e. Bhagwat Saran as PW-2 by way of affidavit Ex. PW 2/A. Witness has relied upon the documents already exhibited as Ex. PW 1/ 2.

Petitioner also summoned and examined the witness i.e. Sh. Prakash chand Tiwari, LDC from Sub Registrar, IV Nand Nagari, Delhi as PW-3 deposed that today he has sent by Ld. Sub Registrar-IV to produce the records of the will dt. 16.07.97 of Smt Tara Devi W/o Sh. Rehatu Lal. Witness has brought the record of the above will and the said will as per record is registered at registration No. 33271, Book No. 3, Volume No.

1913 dt. 17.07.1997. The certified copy of the above will already Ex. PW 1/ 2.

Petitioner also summoned and examined the witness i.e. Sh. Rahul Jain, office Superintendent, Department of Law Justice and Legislative affairs as PW-4 appeared with the summoned record i.e. the record of Sh. Dasa Ram Advocate, Notary Public, GNCTD. Witness further stated that as per record, Sh. Dasa Ram, Advocate, BA, LLB was appointed by Govt. of NCT of Delhi( department of law) as notary public on 22.04.1985. Copy of the appointment of Sh. Dasa Ram as notary public Ex. PW 4/A which bears signature of Dasa Ram at pt. A. His appointment was renewed for three years with effect from 22.04.1988 to 17.05.1991. It was further renewed for three years from 22.04.1991 to 21.04.94. Thereafter the appointment was not renewed. His certificate was cancelled by notification No. F.3/06/Lit/02/437 dt. 17.04.2003 Ex. PW 4/ B. Petitioner also examined other witness i.e. Sh. V. K. Bhardwaj as PW-5 by way of affidavit Ex. PW 5/ A. PE was thereafter closed.

7. Defendant No. 1 filed his affidavit by way of evidence Ex. DW 1/ 1 and was cross examined till 20.08.2015 at length by the ld. Counsel for plaintiff. Thereafter the defendant No. 1 failed to appear and the reports on the court notice received that he has expired. The application U/o 22 Rule 4 CPC filed by plaintiff to bring on record the LRs of defendant No. 1 which was dismissed as withdrawn vide order dt. 23.08.2017. The defendant No. 2 was also proceeded ex parte vide order dt. 29.03.2017. Another witness Sh. Shiv Shankar Gupta was examined as DW-2 vide affidavit Ex. DW 2/ A who also deposed regarding the compromise deed dt. 03.06.2002 signed by father of plaintiff Radhey Shyam and Smt. Tara Devi already Ex. DW 1/A and will Ex. DW 1/B executed by Tara Devi in favour of defendant No. 1. Other attesting witness of the will Sh. Jasbir Singh was examined as DW-3 by way of affidavit Ex. DW 3/ A who also deposed regarding the execution of will dt. 12.07.02 Ex. DW 1/ B executed by Smt. Tara Devi in favour of defendant No. 1. DE was thereafter closed."

6. At the outset, a very important and curious fact needs to

be noticed. Respondent no.1/defendant no.1 expired during the

pendency of the suit and the appellant/plaintiff did file an application

under Order XXII Rule 4(3) CPC to bring on record the legal heirs of

the deceased respondent no.1/defendant no.1 however the

appellant/plaintiff withdrew that application. In my opinion therefore

the consequence is that the suit in any case had to be dismissed as

abated on account of the appellant/plaintiff not bringing on record the

legal heirs of the deceased respondent no.1/defendant no.1. Of course,

by the time the respondent no.1/defendant no.1 expired, he had led his

evidence and was partly cross-examined, and he had also led the

evidence of the two attesting witnesses of the Will dated 12.7.2002

namely Sh. Shiv Shankar Gupta and Sh. Jasbir Singh. These two

attesting witnesses were cross-examined in detail on behalf of the

appellant/plaintiff and thereafter the cross-examination of these

witnesses was closed. The orders of the trial court noting the filing of

the application by the appellant/plaintiff under Order XXII Rule 4(3)

CPC and thereafter withdrawing the same are orders dated 18.7.2017

and 23.8.2017 and these orders read as under:-

"Order dated 18.07.2017 Present: Sh. Sharvan Dev, Advocate for the plaintiff with plaintiff in person.

Sh. Anuj Jain, Advocate, for Central Bank of India/non-applicant. None for the defendants since morning, despite repeated calls.

Ld. Counsel for Central Bank of India/non-applicant has filed the inspection report dated 04.02.2016, wherein, it has been reported that Sushil Kumar Aggarwal, Proprietor of M/s Srikrishna Traders, who has mortgaged the suit property, had expired some time ago. His neighbours could not disclose the name and address of the family members of deceased Sushil Kumar Aggarwal.

Perusal of this inspection report clearly indicate that the said report is not based on any authentic verification/information. Copy of the death certificate is also not attached with the report. Only on the basis of this report, it cannot be said that Sushil Kumar Aggarwal, defendant No.1 in the present suit, had already expired.

Perusal of the record further shows that on the submissions of the Ld. Counsel for the non-applicant/Central Bank of India, the Ld. Counsel for the plaintiff has moved an application under Order 22 Rule 4 r/w Sec. 151 CPC, on 25.05.2016. But, the said application is also not accompanied with any death certificate. Ld. Counsel for the plaintiff is directed to file the death certificate of defendant No.1 on record, on or before the next date of hearing.

In the meantime, notice of the said application be also issued to the LRs of defendant No.1, on filing of PF, for the next date of hearing.

Submissions of the Ld. Counsels for the parties on the application under Order 1 Rule 10 r/w Sec. 151 CPC dated 14.03.2016, are also heard.

Adjourned for orders on the said application and for further proceedings on 05.08.2017.

                                                    BRIJESH KUMAR GARG
                                                    Addl. Distt Judge (NE)-01
                                                    18.07.2017

     Order dated 23.8.2017
     Present:        Plaintiff in person.
                     None for the non-applicant or the defendants.

It has been submitted by the plaintiff that he is not aware about the death of the defendant Sushil Kumar Aggarwal, proprietor of M/s. Srikrishna Traders. He has further reported that he moved the application under Order 22 Rule 4 r/w Sec. 151 CPC on 25.05.2017, only on the basis of the inspection record of Central Bank of India/non-applicant. The report of the Central Bank of India, dated 04.02.2016 is also inconclusive.

The plaintiff has further stated that the death certificate of defendant Sushil Kumar Aggarwal could not be traced by him, despite best efforts. He has prayed for withdrawal of his application under Order 22 Rule 4 r/w Sec. 151 CPC.

On his request, the said application is dismissed as withdrawn. Adjourned for orders on the application under Order 1 Rule 10 r/w Sec. 151 CPC dated 14.03.2016, on 05.09.2017.

BRIJESH KUMAR GARG Addl. Distt Judge (NE)-01 18.07.2017"

In my opinion therefore the suit had abated and had to be dismissed as

abated on account of not bringing on record the legal heirs of the

deceased respondent no.1/defendant no.1 by the appellant/plaintiff.

7. Now taking that the suit would not stand abated, let us

examine the facts as also the evidence on record as to whether the

appellant/plaintiff had proved the Will dated 16.7.1997 of late Smt.

Tara Devi and that whether the respondent no.1/defendant no.1 had

proved the subsequent Will dated 12.7.2002 of Smt. Tara Devi. As

discussed below, not only the appellant/plaintiff failed to prove the

Will dated 16.7.1997 of Smt. Tara Devi because the original of the

Will dated 16.7.1997 of Smt. Tara Devi never saw the light of the day,

but in any case assuming that the appellant/plaintiff had proved the

Will dated 16.7.1997, however since the respondent no.1/defendant

no.1 has proved the subsequent Will dated 12.7.2002 of Smt. Tara

Devi, therefore, it is the subsequent Will of Smt. Tara Devi dated

12.7.2002 which will hold the field and under which the respondent

no.1/defendant no.1 is the owner of the suit property as also the entire

property bearing no.1/4847, Gali No.11, Balbir Nagar Extn, Shahdara,

Delhi-32.

8. Section 70 of the Indian Succession Act, 1925 provides

that a Will is revoked by destroying the same. Destroying of the Will

is one of the ways of revocation of the Will. Section 70 of the Indian

Succession Act reads as under:-

"Section 70. Revocation of unprivileged Will or codicil. No unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same."

9.(i) Admittedly the original of the Will dated 16.7.1997 has

till date not seen the light of the day. The appellant/plaintiff pleaded

that this Will was stolen by the respondent no.1/defendant no.1,

however when in cross-examination the appellant/plaintiff was put a

question on 24.4.2012 that whether he had lodged any complaint for

theft of the original Will dated 16.7.1997 of which Will the certified

copy was proved as Ex.PW1/2, it was conceded by the

appellant/plaintiff that no such complaint with respect to an alleged

theft of the Will dated 16.7.1997 has been filed on record.

(ii) Counsel for the appellant/plaintiff argued that appellant/plaintiff

had served a legal notice Ex.DW1/X1 dated 2.4.2014 under Order XII

Rule 8 CPC for the respondent no.1/defendant no.1 to file the original

Will, and that since the original Will dated 16.7.1997 was not filed by

the respondent no.1/defendant no.1 pursuant to the notice

Ex.DW1/X1, consequently, it is argued that the appellant/plaintiff

should succeed on the basis of the certified copy of the Will dated

16.7.1997 proved by the appellant/plaintiff as Ex.PW1/2. However in

my opinion, this argument urged on behalf of the appellant/plaintiff is

misconceived because a notice under Order XII Rule 8 CPC goes on

the basis that the original of the document exists and possession of

which is with the party to whom notice is given under Order XII Rule

8 CPC. In the facts of the present case as per the case of the

respondent no.1/defendant no.1 the Will dated 16.7.1997 was revoked

by Smt. Tara Devi by tearing the same and thus in my opinion the

mere fact that a notice under Order XII Rule 8 CPC is given by the

appellant/plaintiff to the respondent no.1/defendant no.1 would not

mean that original of the Will dated 16.7.1997 continued to exist and

was not destroyed by Smt. Tara Devi. This argument of the

appellant/plaintiff is therefore rejected.

(iii) Counsel for the appellant/plaintiff sought to place reliance upon

para 12 of the plaint and the response in written statement of the

respondents/defendants to para 12 of the plaint, and it is argued

accordingly that the respondent no.1/defendant no.1 in para 12 of the

written statement admitted to the theft of the Will, however, in my

opinion I do not see any admission whatsoever in para 12 of the

written statement that the respondent no.1/defendant no.1 admitted

that he had stolen the Will. A reference to para 12 of the written

statement only shows that the respondent no.1/defendant no.1

admitted to the execution of the Will dated 16.7.1997 by Smt. Tara

Devi, and which is in continuation of the factum that such Will was

executed. It is also stated that the Will dated 16.7.1997 was thereafter

revoked. In the other portion of para 12 of the written statement the

respondent no.1/defendant no.1 has denied rest of the contents of para

12 of the plaint in response to para 12 of the plaint and which referred

to stealing of the Will allegedly by the respondent no.1/defendant

no.1.

10. Also in my opinion the story put forth by the

appellant/plaintiff of the respondent no.1/defendant no.1 stealing the

Will is in fact wholly false to the knowledge of the appellant/plaintiff

because the fact of the matter is that Smt. Tara Devi herself had

destroyed her Will dated 16.7.1997. This destroying of the Will dated

16.7.1997 is deposed to by both the attesting witnesses of the second

Will dated 12.7.2002 namely Sh. Jasbir Singh and Sh. Shiv Shankar

Gupta who have clearly deposed in their affidavits by way of evidence

that Smt. Tara Devi had destroyed the Will dated 16.7.1997 relied

upon by the appellant/plaintiff.

11.(i) The stand of the appellant/plaintiff that allegedly the Will

dated 16.7.1997 was stolen by the respondent no.1/defendant no.1 is a

completely false stand and which also becomes clear from the contents

of the compromise deed dated 3.6.2002 entered into between Sh.

Radhey Shyam (son of Sh. Shobha Ram and who is the father of the

appellant/plaintiff) and Smt. Tara Devi. This compromise deed has

been proved and exhibited by the respondent no.1/defendant no.1 as

Ex.DW1/A. This compromise deed reads as under:-

" COMPROMISE AGREEMENT/DEED This Compromise Deed is hereby executed on this 03rd June 2002 at Delhi between Sh. Radhey Shyam, S/o Late Sh. Shoba Ram, R/o 1/4847, Street No.11, Balbir Nagar Extn., Delhi hereinafter called the first party and Smt. Tara Devi, W/o Late Sh. Rahtu Lal, R/o 1/4847, Street No.11, Balbir Nagar Extn. Delhi hereinafter called the second party, the

terms first and second party shall mean and includes the respective legal heirs, representatives and assign etc. wheresoever the context so required.

WHEREAS the parties to the agreement developed some disputes amongst them because of some misunderstandings and the same led to arisen of certain litigations amongst them. The respectable of the society intervened and settled the disputes/litigation amongst the parties to this deed.

NOW this deed witnesseth as under:-

1. The first party has agreed to handover the peaceful and vacant possession of ground floor portion of property No.1/4847, Street No.11, Balbir Nagar Extn. Delhi to the second party henceforth.

2. That the first party shall not make or claim any right title or interest in the properties of the second parties in any manner whatsoever at any time.

3. That the first party shall have no right to interfere in the Estates and affairs of the second party and/or of the deceased husband of second party and shall not refer him to be son of deceased husband of the second party in future.

4. That the second party has paid a sum of Rs.1,10,000/- to the first party vide separately, towards handing over peaceful and vacant, the possession of ground floor of property No.1/4847, Street No.11, Balbir Nagar Extn., Delhi to the second party.

5. That in case the first party has already created/made any agreement with any other person or have created any third party interest in respect of aforesaid property of the second party and/or in respect of states pertaining to the deceased husband of the second party, the same shall be created as null and void. The first party in such event shall be liable to bear the consequences of the same.

6. That the parties to the deed shall initiate steps including their respective legal heirs to withdraw/compromise the dispute/litigation pending before the court of law/authorities etc at the earliest without any delay.

7. That the contents of this agreement/compromise shall be binding in terms of the letters and separates on the parties to the deed including their respective legal heirs, representative and assigns etc wheresoever the context so require.

IN WITNESS whereof this deed of compromise is executed between the parties of their free will and consent at Delhi on the Day, Month and year mentioned above in the presence of witnesses.

WITNESSES 1. FIRST PARTY

2. SECOND PARTY"

(emphasis added)

(ii) A reading of the aforesaid compromise deed makes it clear that

Sh. Radhey Shyam, father of the appellant/plaintiff, gave up

possession of the ground floor of the property in question and received

a sum of Rs.1,10,000/- and he agreed that he will make no claim to

any of the properties of Smt. Tara Devi. This compromise deed also

shows that appellant/plaintiff who claims to be the son of the Sh.

Radhey Shyam was not the grandson of the Smt. Tara Devi because

the compromise deed dated 3.6.2002 shows Smt. Tara Devi as the

wife of Sh. Rehtu Lal and not of Sh. Shobha Ram. Appellant/plaintiff

has also filed no documentary evidence on record as to Sh. Shobha

Ram being the husband of Smt. Tara Devi and in fact Smt. Tara Devi

was the wife of late Sh. Rehtu Lal. Smt. Tara Devi was the sister of

the real grandmother of the appellant/plaintiff namely Smt. Shanti

Devi and who was the wife of Sh. Shobha Ram. Therefore in view of

these facts there was no reason why Smt. Tara Devi would have

Willed her property to the appellant/plaintiff who was not her

grandson and instead of in favour of the respondent no.1/defendant

no.1 who was her son. Clearly, the appellant/plaintiff is acting

dishonestly after his father Sh. Radhey Shyam received a sum of

Rs.1,10,000/- under the compromise deed dated 3.6.2002 and agreed

that he would not claim any right to any property of Smt. Tara Devi.

12. On behalf of the appellant/plaintiff it is next argued that

the Will Ex.DW1/B is shown to be notarized but it has been proved by

the appellant/plaintiff by calling Sh. Rahul Jain PW-4 from the office

of the Department of Law and Justice that the notary Sh. Dasa Ram,

Advocate who attested the Will Ex.DW1/B as a notary public, was not

a notary public in the year 2002 as his licence had come to an end on

21.4.1994. However in my opinion this will only show that Sh. Dasa

Ram defrauded Smt. Tara Devi by representing himself to be a notary

public although he was not a licenced notary public on the date of

execution of the Will dated 12.7.2002 by Smt. Tara Devi. Since, in

law there is no legal need for notarization of the Will, at best it will be

shown that the Will dated 12.7.2002 is not notarized, however, the

Will is otherwise proved through the depositions of the two attesting

witnesses Sh. Shiv Shankar Gupta and Sh. Jasbir Singh who had

deposed as DW-2 and DW-3. The argument of the appellant/plaintiff

is therefore rejected that the Will dated 12.7.2002/Ex.DW1/B has to

be discarded as Sh. Dasa Ram, Advocate is shown not to be a notary

public as on 12.7.2002 when the Will was executed by Smt. Tara

Devi.

13. Learned counsel for the appellant/plaintiff then argued

that the trial court has erred in holding that no proof was filed that the

appellant/plaintiff did not live with Smt. Tara Devi and reference of

this Court is invited to Ex.PW1/6 being an election identity card as on

28.7.2002 showing the residence of the appellant/plaintiff as that of

the suit property, however, in my opinion even if the

appellant/plaintiff is successful in proving his residence through the

election identity card, yet that does not mean that the Will dated

12.7.2002/Ex.DW1/B on this count itself is liable to be rejected

although the same is otherwise proved through both the attesting

witnesses. This argument of the appellant/plaintiff is also therefore

rejected.

14. Learned counsel for the appellant/plaintiff finally argued

that the trial court has wrongly observed that appellant/plaintiff did not

file ay police complaint against the theft of the Will by the respondent

no.1/defendant no.1 and reference is invited to additional document

filed with this appeal being the complaint dated 30.1.2003, however,

admittedly this complaint was not filed and proved or exhibited before

the trial court, and therefore this Court cannot consider the same

inasmuch as only the admitted and proved documents before the trial

court can be considered by the first appellate court. In any case even

if I consider this complaint dated 30.1.2003 I do not find any specific

averment in this complaint dated 30.1.2003 to the Police

Commissioner wherein it is categorically stated by the

appellant/plaintiff that the respondent no.1/defendant no.1 had stolen

the Will dated 16.7.1997. This argument of the appellant/plaintiff is

also therefore rejected.

15. It is therefore held that appellant/plaintiff was not the

grandson of Smt. Tara Devi and that the appellant/plaintiff was in fact

the grandson of Smt. Shanti Devi wife of Sh. Shobha Ram and that

Smt. Tara Devi was the wife of Sh. Rehtu Lal and who was thus the

father of respondent no.1/defendant no.1 (son of Smt. Tara Devi). The

Will dated 12.7.2002 has been duly proved by the respondent

no.1/defendant no.1 as Ex.DW1/B. Both the attesting witnesses who

deposed as DW-2 and DW-3 namely Sh. Shiv Shankar Gupta and Sh.

Jasbir Singh have deposed in their affidavits by way of evidence the

due execution and attestation of the Will and they have remained

strong in their cross-examination and have disputed and denied the

case which was set up by the appellant/plaintiff of the Will dated

12.7.2002/Ex.DW1/B by Smt. Tara Devi not being the duly executed

Will of Smt. Tara Devi. Merely putting suggestions in cross-

examination of the Will dated 12.7.2002 not being duly executed and

attested, and which suggestions are denied by DW-2 and DW-3 who

are the attesting witnesses to the Will dated 12.7.2002, cannot mean

that the Will dated 12.7.2002 does not stand validly proved as

Ex.DW1/B. In terms of the Will dated 12.7.2002 Ex.DW1/B it has to

be held that it is the respondent no.1/defendant no.1 who is the owner

of the suit property as the same was bequeathed to the respondent

no.1/defendant no.1/son by the mother Smt. Tara Devi.

16. In view of the above, I do not find any merit in the

appeal, and the same is therefore dismissed.

FEBRUARY 02,2018                         VALMIKI J. MEHTA, J
Ne/ib