Rajendra Kumar vs Arora Khatri Samaj Through ...
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      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
            S.B. Civil First Appeal No. 406/2020

Rajendra Kumar S/o Late Shri Murlidhar, Aged About 50 Years,
R/o Nagar Palika Road, In Front Of Post Office Rani Station Tehsil
Rani District Desuri, Rajasthan.
                                                                   ----Appellant
                                   Versus
1.     Arora Khatri Samaj Through President And Members, 1.
       Chittarmal S/o Sualal Aged About 68 Years, R/o Rani
       Station Tehsil Desuri, District Pali (Raj.)
2.     Nand Kishore S/o Radha Kishan, Aged About 64 Years,
       R/o Rani Station Tehsil Desuri, District Pali (Raj.)
3.     Rameshchandra S/o Lal Chand, Aged About 63 Years, R/o
       Rani Station Tehsil Desuri, District Pali (Raj.)
4.     Ashok Kumar S/o Jeevraj, Aged About 54 Years, R/o Rani
       Station Tehsil Desuri, District Pali (Raj.)
5.     Mahesh Kumar S/o Kailash Narayan, Aged About 53
       Years, R/o Rani Station Tehsil Desuri, District Pali (Raj.)
6.     Praveen Kumar S/o Parasram, Aged About 53 Years, R/o
       Rani Station Tehsil Desuri, District Pali (Raj.)
7.     Lrs Of Murlidhar, S/o Chunnilal
8.     Shyamsunder S/o Late Shri Murlidhar, 23/55 Choupasani
       Housing Board, Jodhpur.
9.     Omprakash S/o Late Shri Murlidhar, 9/137-38 Choupasani
       Housing Board, Jodhpur.
10.    Syamadevi W/o Satyanarayan Arora, D/o Late Shri
       Murlidhar 4/92 Kamla Nehru Nagar, Housing Board
       Jodhpur.
11.    Minaxi Devi W/o Motilal, D/o Late Shri Murlidhar, Co
       38/64 Gangppa Lay Out Shakti Nagar Durwani Nagar Post
       Banglore - 560016
                                                                ----Respondents


For Appellant(s)         :     Mr. Ripudaman Singh.
For Respondent(s)        :     Mr. Rakesh Arora.


           HON'BLE MR. JUSTICE ARUN BHANSALI

                             JUDGMENT

                                           (2 of 9)              [CFA-406/2020]

23/02/2021

This appeal under Section 96 CPC is directed against

judgment and decree dated 18.7.2020 passed by Additional

District Judge, Bali, District Pali, whereby, the suit for declaration

and possession filed by the respondent - plaintiff has been

decreed.

The suit was filed by the plaintiff - Arora Khatri Samaj &

others for declaration of ownership and possession. It was inter

alia claimed in the plaint that a plot alongwith a house situated at

Rani Station is owned by the plaintiffs. Initially, the suit property

belonged to Late Bansidhar S/o Mangilal Ji Arora, who had

purchased it vide registered sale deed dated 3.10.1974. As Late

Bansidhar Ji had no child and his wife had died during his lifetime,

vide registered Will dated 9.6.1994, the suit property was

bequeathed to the plaintiff - Arora Khatri Samaj ('the Samaj') and

possession was also handed over. It was indicated that on the suit

property since 1994, the Samaj has been performing several

religious cultural programs during the lifetime of Bansidhar Ji.

It was alleged that defendants No.1 and 2 were with

malafide intentions, seeking to usurp the property, the defendants

were brother and nephew of Bansidhar Ji, they got his signatures

on blank papers, which when came to the notice of Bansidhar Ji,

he again executed a Will dated 28.5.1997 reiterating the validity

of Will dated 9.6.1994 indicating the illegal activities of the

defendants and declaring that the defendants would not have any

right in the property and if any document has been executed, the

same would be void.

Bansidhar Ji died on 23.8.1997 and on his death, the title of

the property vested with the Samaj, it applied to the Municipal

(3 of 9) [CFA-406/2020]

Board, Rani Station for recording the property in their name,

wherein, the defendants raised objections.

It was further averred that despite the fact that the property

vests in the Samaj, the defendants were seeking to usurp the

property and were harassing the plaintiffs and on baseless

grounds, were seeking title over the property. Registered notice

dated 10.1.2007 was issued to the defendants as they threatened

that they would transfer the property, qua which, they had no

right. The suit before the Civil Judge seeking injunction is pending,

wherein, temporary injunction has been issued.

It was further alleged that in the year 2005, the defendants

took possession of the house in question and demolished the

temple constructed therein and based on some forged Will were

seeking to challenge the ownership of the plaintiffs and, therefore,

the suit was being filed. Based on the aforesaid averments, it was

prayed that declaration qua the title and possession of property be

given.

Written statement was filed by Rajendra Kumar - defendant

No.2 challenging the existence of the Arora Khatri Samaj. It was

claimed that though Will dated 9.6.1994 was executed by

Banshidhar Ji, by Will dated 17.2.1997, the property has been

bequeathed in favour of Murlidhar - father of defendant No.2,

however, as the plaintiffs came to know of the Will dated

17.2.1997, they got executed another Will dated 28.5.1997

cancelling the Will dated 17.2.1997 and reiterating the Will dated

9.6.1994.

It was claimed that on 15.8.1997, a communication was sent

by Bansidhar Ji to the Samaj cancelling the Wills dated 9.6.1994

and 17.2.1997, which aspect has been suppressed. In this regard,

(4 of 9) [CFA-406/2020]

the defendant No.2 had indicated through registered notice sent

by his counsel on 18.8.2003, whereafter on 18.8.1997 last Will

was executed by Banshidhar Ji in favour of Rajendra Kumar.

It was also claimed that Bansidhar Ji had adopted Rajendra

Kumar during his lifetime and had executed a document in this

regard. Based on the above averments, it was prayed that the suit

be dismissed.

The trial court framed three issues on 27.8.2018, which were

amended on 6.3.2020.

The amended issues read as under:-

"la'kksf/kr rudh;kr fnukad & 06-03-2020 1& vk;k oknhx.k] olh;rukek fnukad 09-06-1994 o 28-05-1997 ds vk/kkj ij okn i= ds in la[;k nks esa of.kZr ifjlj ds LoRo dh ?kks"k.kk ,oa vkf/kiR; izkIr djus ds vf/kdkjh gS \

----oknhx.kA 2& vk;k Jh ca'kh/kj ds }kjk fnukad 18-08-1997 dks izfroknh jktsUnzdqekj ds gd esa vafre olh;rukek fu"ikfnr djus ls iwoZ fu"ikfnr olh;rukek fnukad 09-06-1994 o fnukad 28- 05-1997 Lor% gh fu"izHkkoh gks x, \

----izfroknhx.kA 3& vuqrks"k\"

On behalf of the plaintiffs, four witnesses were examined and

three documents were exhibited. On behalf of the defendants, two

witnesses were examined and six documents were exhibited.

After hearing the parties, the trial court while deciding issue

No.1 and 2 together, came to the conclusion that the execution of

the Wills dated 9.6.1994 and 28.5.1997 was proved and that the

appellant - defendant failed to prove the execution of the Will

dated 18.8.1997 and consequently, decided issue No.1 in favour of

(5 of 9) [CFA-406/2020]

the plaintiff and issue No.2 against the defendants and decreed

the suit.

It is submitted by learned counsel for the appellant that the

trial court fell in error in decreeing the suit in question.

Submissions were made that the Wills dated 9.6.1994 and

28.5.1997 were cancelled by Bansidhar Ji on 15.8.1997 and

thereafter he had executed Will dated 18.8.1997 in appellant's

favour and as such, the plaintiffs are not entitled to any relief.

It was further submitted that it was the specific case of the

appellant that the Wills dated 9.6.1994 and 28.5.1997 stood

cancelled vide communication dated 15.8.1997 and the appellant

had exhibited documents Ex.A/1 and Ex.A/5 in this regard. Further

he got issued a notice from his counsel indicating the said

cancellation, which aspect was admitted by PW/1 - Chhitarmal

and as such, the plaintiffs were well aware of such cancellation

and, therefore, were not entitled to maintained the suit based on

cancelled Wills.

Further submissions were made that as Will dated 18.8.1997

(Ex.A/6) was executed by the deceased in favour of the appellant,

the appellant alone is entitled for succeeding to the property in

question and, therefore, on that count the suit filed by the plaintiff

was liable to be dismissed.

Learned counsel appearing for the respondents vehemently

opposed the submissions. It was submitted that Will dated

9.6.1994 (Ex.A/2) was executed in favour of the Samaj,

whereafter another Will dated 28.5.1997 (Ex.3) on account of the

conduct of the defendants was executed by the deceased. The

execution of both the documents are not in dispute as the

defendant has claimed that the documents were subsequently

(6 of 9) [CFA-406/2020]

cancelled. Based on the said Wills dated 9.6.1994 & 28.5.1997,

the suit property vests in the plaintiff Samaj, both the Wills have

been duly proved as envisaged under law and on the other hand

the defendant has failed to prove the Will dated 18.8.1997 as

none of the attesting witnesses have been produced and,

therefore, the appeal has no substance and the same deserves to

be dismissed.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record

as well as on the record of the trial court.

The facts of the case are in a very narrow compass, wherein,

the plaintiffs relied on the Wills dated 9.6.1994 and 28.5.1997

(Ex.2 and Ex.3 respectively) said to have been executed by

Bansidhar Ji. The Will dated 9.6.1994 bears signatures of Jassa

Ram S/o Asha Ram and P.K. Choudhary as attesting witnesses.

The Will dated 28.5.1997 bears signatures of Nagraj S/o Narayan

Ji and Bhurdas as attesting witnesses.

The contents of the Will dated 9.6.1994 (Ex.A/2) are

categorical, wherein, the suit property has been bequeathed to the

Samaj. The Will dated 28.5.1997 (Ex.A/3) makes reference to Will

dated 9.6.1994, reiterates the same and that the same was

registered, indicates the conduct of the defendants in getting

signatures on certain blank papers and their intention to usurp the

property and emphasizing that Will dated 9.6.1994 is his last Will

and that if any other document contrary to the 9.6.1994 exists,

the same stands cancelled and that the property would vests in

the Samaj on his death and that any document executed in favour

of Murlidhar or his heirs would be fraudulent and void.

(7 of 9) [CFA-406/2020]

On behalf of the plaintiffs, besides Chhitarmal PW/1 -

Adhyaksh of the Samaj, Ashok Kumar PW/2 - Secretary of the

Samaj, Nagraj PW/3 attesting witnesses of Will dated 28.5.1997

and Mukut Narayan PW/4 - Patron of the Samaj appeared in the

witness box.

The Will dated 9.6.1994, which was registered and execution

thereof had been admitted by the defendant in the written

statement and in fact a reference has been made in the Will relied

on by the defendant himself and as such the execution of the Will

dated 9.6.1994 is not even in dispute. The Will dated 28.5.1997

has been duly proved by producing the attesting witness Nagraj

PW/3, as such based on the two Wills dated 9.6.1994 and

28.5.1997, the property in question vests in the plaintiff Samaj on

death of Bansidhar Ji on 23.8.1997.

The plea in written statement is two fold (i) cancellation of

the Wills dated 9.6.1994 and 28.5.1997 by Banshidhar Ji on

15.8.1997 and (ii) execution of the Will dated 18.8.1997 (Ex.A/6)

in favour of the defendant No.2 - appellant.

So far as the plea of cancellation is concerned, the document

cancelling the Will dated 15.8.1997 has not been produced /

exhibited, what has been produced is a postal receipt dated

16.8.1997 (Ex.A/5) and an acknowledgment card dated 18.8.1997

(Ex.A/1), as to what was sent in the envelope, regarding which,

the postal receipt and acknowledgment (Ex.A/5 and Ex.A/1) were

produced, is not known. In absence of the crucial document,

which is said to have cancelled the Wills dated 9.6.1994 and

28.5.1997, the entire plea sought to be raised is in the realm of

guess work only and, therefore, in absence of any cogent material

(8 of 9) [CFA-406/2020]

in support of the plea of cancellation, the entire plea raised is

absolutely baseless.

So far as the reliance placed on the Will dated 28.5.1997 is

concerned, the said Will (Ex.A/6) indicates Guman Singh and

Daljeet Singh as its attesting witnesses, however, none of the

attesting witnesses were produced to prove the Will.

Provisions of Section 63(c) of the Indian Succession Act,

1925 ('the Act of 1925') provides that the Will shall be attested by

two or more witnesses and Section 68 of the Indian Evidence Act,

1872 ('the Act of 1872') provides that if a document is required to

be by law to be attested, it shall not be used as evidence until one

attesting witness at least has been called for the purpose of

proving its execution. In view of provisions of Section 63 of the

Act of 1925 and Section 68 of the Act of 1872, the Will in question

has not been proved in accordance with law and cannot be relied

on.

It is interesting to note that the defendant has produced on

record one document Ex.A/4 titled as 'Godnama' (Adoption Deed)

said to have been executed by deceased Bansidhar Ji, whereby, he

had taken the defendant No.2 on 11.2.1997 in adoption, however,

in the Will dated 18.8.1997 (Ex.A/6) relied on by the defendant,

there is no reference to the so called adoption and appellant has

been described as son of Murlidhar Arora, which further fortifies

the various allegations made in Will dated 28.5.1997 by deceased

Bansidhar Ji against Murlidhar and the appellant.

The attempts made by the appellant to rely on the fact that a

notice was issued by the counsel in the year 2003 indicating

cancellation of the Will on 15.8.1997, does not prove anything in

(9 of 9) [CFA-406/2020]

absence of any material, rather the crucial document dated

15.8.1997.

In view of the above discussion, it is apparent that while the

plaintiff - Samaj has proved the execution of the Will dated

9.6.1994, which even otherwise was not in dispute and Will dated

28.5.1997 by producing the attesting witness as per law and the

appellant having failed to either prove the cancellation of the Wills

dated 9.6.1994 and 28.5.1997 on 15.8.1997 or execution of the

Will dated 18.8.1997 in his favour. As such the trial court was

justified in decreeing the suit filed by the plaintiff Samaj and no

fault can be found in the said decree.

In view of the above discussion, there is no substance in the

appeal. The same is, therefore, dismissed.

(ARUN BHANSALI),J

Sumit/-

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