The genuineness of a Will can be questioned if executed under suspicious circumstances, such as non-mention of relevant documents and lack of credible witnesses.

Prathiba M. Singh, J.

1. Late Sh. Piyare Lal Arora was the owner of two properties bearing no.A-173, Gujranwala town, Delhi (hereinafter ‘residential house’) and a shop at plot no.11, Meerdard Road, Gandhi Marg, New Delhi 110002 (hereinafter ‘shop’). He had two sons and two daughters. Sh. Ashok Arora-the Appellant/Plaintiff (hereinafter, ‘Plaintiff’) is the elder son and Sh. Pramod Arora - the Respondent/Defendant (hereinafter, ‘Defendant’) is the second son of late Sh. Piyare Lal Arora. The daughters – Smt. Meera Madan and Smt. Aruna Dhingra were both married and one of them is a widow.

2. The subject suit for permanent injunction was filed by Sh. Ashok Arora - the Plaintiff against his brother Mr. Pramod Arora seeking an injunction restraining the Defendant from interfering with the Plaintiff’s rights to carry out construction over the First Floor in the residential house and also seeking possession of the area of the shop above the Ground Floor. The relief’s prayed for are as under :

“(a) pass a decree of permanent injunction in favour of the plaintiff and against the defendant restraining the defendant, his men, agents, servants or any person acting through or under him from interfering in the plaintiff carrying out construction over the First Floor of property bearing No. A-173 Gujrawala Town, Delhi;

(b) a decree of possession be passed in favour of the plaintiff and against the defendant directing the defendant to hand over vacant and peaceful possession of the area above the Ground Floor of Shop No.11 Meerdard Road, Gandhi Market, New Delhi;

(c) pass a decree for cost of the suit in favour of the plaintiff and against the defendant; and

(d) pass such other and further orders as this Hon’ble Court may deem just and necessary in the facts and circumstances of the case in favour of the plaintiff and against the defendant.”

3. The case of the Plaintiff is that the father of the parties, as per his Will dated 4th December, 1992 had bequeathed the Ground Floor of the residential house and the shop, in favour of the Defendant. The First Floor and the right to raise construction thereupon was bequeathed in favour of the Plaintiff. The Plaintiff is in possession of the First Floor of the residential house and sought to raise construction above the First Floor which was not permitted by the Defendant. Further, the Plaintiff also stated that the Defendant had constructed above the Ground Floor of the shop which had fallen in the share of the Plaintiff hence the filing of the suit.

4. In the written statement, the Defendant pleaded that the Will was a sham and was executed under suspicious circumstances. It was claimed that the father was not in good health as he suffered a paralytic stroke in 1984. The Defendant also averred that he lived with his father all along and had in fact joined his father’s business at the shop. Upon the father suffering a stroke, he had continued the business of the father and the gift deed dated 29th September, 1984 had been executed by Late Sh. Piyare Lal Arora, by which the entire shop was gifted to the Defendant. The fact that this gift deed did not find a mention in the Will itself rendered the Will bogus and fraudulent. The Defendant further pleaded that the Plaintiff never lived with the father and was all along living in Mumbai. It was the Defendant who had taken care of the father. When the matter was listed for framing of issues on 3rd August 2009, this Court passed the following order:

“CS(OS) 2257/2007

The Court has heard the submissions on the question of issues. The plaintiff contends that although the Gift Deed made by the deceased Piyare Lal Arora on 29.09.1984 in respect of Shop No.11, Meerdard Road, Gandhi Marg, New Delhi 110002 is not disputed, yet in view of the intention of the said testator in the Will propounded by the plaintiff, the property rights to construct upon the said shop survived.

The defendant contends that once the Gift Deed was executed by the testator, his wishes to ha