The failure to prove a Will and assert rights over a property, coupled with the protection of a purchaser under Section 41 of the Transfer of Property Act, can lead to the dismissal of a suit for possession.

PRATHIBA M. SINGH, J.

1. The present appeal has been preferred challenging the final judgment and decree dated 20th September, 2006 by which the suit for possession filed by the Appellant/Plaintiff was dismissed with costs.

2. The Plaintiff – Shri Rameshwar Dayal filed the present suit for possession of property bearing No. A-2/23, Mianwali Nagar, Rohtak Road, New Delhi with recovery of mesne profits. Since the Plaintiff himself is of infirm mind and is unable to look after the property, the suit was filed by his paternal uncle Shri Tek Chand as the next friend and guardian of Shri Rameshwar Dayal.

3. The Plaintiff is the son of Late Shri Godha Ram from his first wife. However, upon the death of the first wife, Shri Godha Ram married Smt. Kailash Wati. The couple had no children. One Shri O.P. Taneja being the real brother of Smt. Kailwash Wati and Shri Nand Lal Ahalmadi, who are related to each other, are Defendant Nos. 2 & 3. Shri Ahalmadi is the father in law of Shri O.P. Taneja. Shri Godha Ram executed a registered Will dated 24th July, 1979 as per which the property was bequeathed to the son Sh. Rameshwar Dayal and the wife only had a right to stay in the property during her lifetime. According to the Plaintiff, Shri Taneja and Shri Ahalmadi, who were related to Smt. Kailash Wati, were in charge of her assets prior to her death. According to the Plaintiff, his step mother was under their influence. The Plaintiff’s claim is that the suit property is a self acquired property of his father Shri Godha Ram. It was his own property conveyed by the DDA. Shri Godha Ram passed away on 16th February, 1980. However, as per the Plaintiff, as per the registered Will of Shri Godha Ram, Smt. Kailash Wati had only the right of residence during her lifetime. According to the Plaintiff, Shri Godha Ram had various assets including the bank deposits, jewellery etc. Upon his death, his step mother continued to be on pension as Shri Godha Ram had retired as Deputy Superintendent of Police from Delhi Police. The Plaintiff relies on various terms of the Will and according to the Plaintiff, since he was of infirm mind, the Defendant Nos. 2 & 3, in collusion with his step mother, withdrew all the amounts from various bank accounts by duping his step mother. Various blank papers were also got signed by the said relatives of Smt. Kailash Wati and in this manner, the suit property was transferred in the name of Smt. Kailwash Wati in the records of DDA by suppressing the Will. According to the Plaintiff, he had inherited the property as per the registered Will and his step mother also did not have a right to transfer the property.

4. Smt. Kailash Wati passed away on 11th December, 1990. According to the plaint, one Shri Shyam Sunder Chopra – Defendant No. 1 along with other two Defendants, got these documents executed on Smt. Kailash Wati and came into the possession of the property. Despite the Plaintiff demanding possession vide legal notice dated 31st August 1992, the same was not given. Mr. Chopra is a nominee of the Defendant Nos. 2 & 3 and they played fraud and obtained the property from Smt. Kailash Wati. According to the Plaintiff, Defendant No. 1 cannot retain the possession of the property. Thus, the decree for possession along with the mesne profits has been sought in the following terms.

“28. Under the facts and the circumstances, as explained hereinbefore and in the interest of justice, it is therefore humbly prayed that a decree for possession in respect of the property bearing No. A-2/23, Miawali Nagar, Rohtak Road, Delhi, may be passed in favour of the plaintiff and against the defendants. It is further prayed that decree for mesne profits may also be passed in favour of the plaintiff and against the defendants, from the date of the filing of the suit till the defendants vacate and handover the vacant and peaceful possession of the property mentioned above. The decree may be passed against all the defendants both jointly as well a