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High Court Of Delhi
DAYA DEVI - Appellant
Versus
ANGOORI DEVI - Respondent
Decided On : 02/08/2002
nature that cannot be taken away by inaction or incapacity of a person in taking step well in time — There is no law of limitation of 3 years or 12 years for a civil suit.
WILL - Will — Suspicious circumstances — Propounder had been described as adopted son by the testator — Propounder admitted that neither any religious ceremony was conducted nor any document executed — Burden to prove that there was no suspicious circumstance is heavy upon the beneficiary — It is the test of satisfaction of judicial conscious which is to be satisfied — Abandoning the plea of adoption after having based claim on the Will is not at a circumstance for looking at the Will with suspicion.
Held:
The mere fact that the defendant did not obtain probate of the Will does not ipso facto show that the Will suffers from the vice of invalidity or illegality. But in the instant case defendant no. 8 who has propounded the will got his name mutated in the record of the MCD on the strength of this Will and moreover these proceedings were contested by the plaintiff but to no avail.
The above facts and circumstances lead to the in escapable conclusion that Will was properly and validly executed firstly by way of getting it attested through two witnesses and that too in the presence of each other and secondly the testator was in sound and disposing mind and thirdly the Will was also got registered by her to provide indisputable validity to it.
( 1 ) THROUGH this suit the plaintiff has sought the partition of the property bearing No. 3851, Gali churiwalan, Prem Narain Road, Chawri Bazar, Delhi on account of her being one of the legal heirs of the deceased owner Smt. Parwati Devi who was mother of the plaintiff. Defendant No. 1 Rajo Devi was another daughter. Defendants 2 to 7 are the legal heirs of Smt. Rajo Devi. Defendant No. 8 Bal Kishan who is the son of defendant No. 1 was impleaded on the plea raised by defendant No. 1 in the written statement that Smt. Parwati Devi had adopted him when he was hardly five years old and had executed a Will bequeathing the suit property in his favour on 31/01/1976.
( 2 ) HOWEVER, there is no dispute that Parwati Devi was the absolute owner of the suit property as defendants themselves have pleaded that Shri Basdev, the husband of smt. Parwati Devi had executed a will dated 24/06/1949 in her favour. Parwati Devi executed the will in favour of defendant No. 1 on 31/01/1976 and got it registered on 4/02/1976. Though the plea set up by defendant No. 1 regarding the adoption of defendant No. 8 was initially vehemently opposed and resisted by the plaintiff firstly on the ground that no such adoption ever took place and secondly that there was no such law or custom to adopt the child by maternal grand parents and as such the adoption is bad in law yet the fact remains that the plea of adoption was given up by the counsel for defendant no. 8 on 7. 9. 1988 as defendant no. 8 relied upon the will dated 31/1/1976 and issue in this regard was also framed. This fact is reflected in the order dated 2. 12. 1997 also.
( 3 ) AS regards the execution of the will by Parwati devi the same has also been disputed inasmuch as that parwati Devi was not in sound and disposing mind during the month of January, 1996 and, therefore, could not have executed any such will. In other words, the will is a false and fabricated document as it is afflicted with highly suspicious circumstances.
( 4 ) THE partition has been sought by metes and bounds because the parties are not on good terms and cannot remain in joint possession. The plaintiff s request to defendants 1 to 7 to agree for the partition who are enjoying the large portion of the property has not been acceded to. Hence this suit.
( 5 ) HOWEVER, defendants 2 to 7 who are legal heirs of Rajo, the deceased daughter of Parwati Devi did not chose to contest the suit and allowed themselves to be proceeded ex parte. Thus the main challenge is from defendant No. 8.
( 6 ) IN the written statement the defendant No. 8 has averred that he had even applied for mutation of the suit property on the basis of the will executed by Parwati Devi and the plaintiff had filed a complaint on 1/12/1980 stating that the defendant No. 8 had nothing to do with the property and as such was not entitled to get the property mutated in his favour and it was on her complaint that the office of the Municipal Corporation of Delhi called upon defendant No. 8 to furnish did not exercise her right to file a suit questioning the veracity of the will. It is further averred that the plaintiff had come to know about the said Will and the factum of adoption on or before 6/12/1981 as defendant No. 1 disclosed the above fact in the written statement and still the plaintiff did not implead the defendant No. 8 for a period of three years from the date of such knowledge and that her said claim against defendant No. 8 has become time barred.
( 7 ) SINCE the plaintiff has never accepted defendant no. l as an adopted son of Parwati Devi and Basdev nor had he accepted any such will left by Parwati Devi it was ordered by the Court to implead defendant No. 8 as party to the suit as his presence was considered necessary in order to enable the Court to effectually and completely adjudicate upon and settle ail the questions involved in the suit. The plaintiff filed an application for amendment of the plaint in view of the disclosure made by defendan
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