Valmiki J. Mehta, J. (Oral):--

1. This regular second appeal has been filed impugning the judgment of the first appellate court dated 14.7.2011 whereby the first appellate court allowed the appeal and set aside the judgment and decree dated 29.11.2005 passed by the trial court decreeing the suit for declaration and injunction (Suit No. 216/1976) filed by the appellant/plaintiff. Disputes pertain to rights in residential house bearing No. 198/29, Sri Ram Nagar, Shahdara, Delhi. When the suit was filed disputes were between the appellant/plaintiff and his father Ram Nath. Sh. Ram Nath expired during the pendency of the suit leaving behind a Will dated 10.8.1976, Ex. PW-1/1 in favour of his wife Smt. Leela Wati giving her a life estate in the suit property and after her death the property to devolve upon the other sons Sh. Manohar Lal, Sh. Sushil Kumar and Sh. Vijay Kumar, the respondents herein. The wife of Sh. Ram Nath Smt. Leela Wati, mother of the parties, expired on 7.11.1999 intestate.

2. Appellant/plaintiff in the suit had pleaded that the suit property was a Hindu Undivided Family (HUF) property but he failed to prove that the suit property was HUF property, however, since father Sh. Ram Nath died during the pendency of the suit leaving the suit property by means of a Will in favour of his wife Smt. Leelawati, mother of the parties, and by which Will a life estate was created in favour of Smt. Leela Wati, trial court held that the life estate in favour of Smt. Leela Wati was converted to a full ownership by virtue of Section 14 (1) of the Hindu Succession Act, 1956, and since Smt. Leela Wati died intestate appellant/plaintiff being the son and one of the legal heirs of Smt. Leela Wati became co-owner in the suit property. The relevant observations of the trial court in this regard are contained in the following paras of its judgment:

“This issue has become redundant. Hence no findings is required. There were three more issues framed on 26.11.85 on the application U/o 22 Rule 4 which are as follows:-

1. Whether deceased Ram Nath executed a will in favour of Lila Wati his wife? If so its effect?

2. Whether Smt. Leela Wati is the sole L.R. of the deceased Ram Nath?

3. Relief.

Both these issues were decided vide order dt. 29/3/90 by Ld. D.K. Malhotra, the then Sub-Judge, Delhi & revision was filed against that order in the Hon’ble High Court, being C.R. No. 737/90. The Hon’ble High Court vide order dt. 14/1/92 opined that the trial Copurt has to see whether the property forming pan of Joint Hindu Family property & as to whether Ram Nath had the capacity to will away the entire, property. Keeping in view the findings of Hon’ble High Court the aforesaid issues are to be decided a fresh.

It has already been decided at the first outset in issue No. 1 that it was not the joint Hindu Family property. To prove the will the LRs of Late Ram Nath examined PW1 Girja Shankar Mishra. PW1 deposed that the will was executed by Late Sh. Ram Nath Sharma in his presence & Ram Nath put his signatures after reading the contents in the presence of this witness & the other witness also signed in his presence. Sh. Ram Nath Sharma was of sound mind at that time. PW2 Manohar Lal also indentified the signatures of his father on will Exh. PW1/1 Prem Chand appeared as DW1 but he has not signed at single word about the will which shows that, the defendant is not disputing the genuineness of will. Since the property is self acquired of Late Sh. Ram Nath thus he has right to bequeath the same by way of will Exh. PW1/1 Smt. Leela Wati became the beneficiary of the property in question by way of will Exh. PW1/1 which was executed & registered in the year 1976. Hence Smt. Leela Wati was the sole legal heir of Late Sh. Ram Nath.

During the pendency of the suit Smt. Leela Wati expired & application U/o 22 rule 3 was moved alleging therein that Prem Chand was disinherited under the will executed by Late Sh. Ram Nath Sharma in favour of Smt. Leela Wati who expired on 7/11

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