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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
SUDESH BANSAL, J.
Dr. Param Navdeep Singh W/o Navdeep Singh D/o Late Surjeet Singh & Ors. – Appellant
Versus
Dr. Mukhtyar Singh Sidhu S/o Late Surjeet Singh & Ors. – Respondent
S.B. Civil Miscellaneous Appeal No. 1974, 1975/2021
Decided on : 04-02-2022
Transfer of Property Act, 1882 – Section 52 - India Succession Act, 1925 – Section 63 and 68 – Property – Wills - One and his wife are parents of appellant and respondent - Two made their independent and separate wills in respect of their personal properties - By way of their respective wills, their properties have been bequeathed to one son - Both wills are registered in office of Sub-Registrar Jaipur and their two daughters are common witnesses in both wills – Said one died and prior to that said one had passed - They have been survived by their four natural heirs, two sons and two daughters – Appellant and respondent are two daughters and respondent are two sons - After death of parents, one of daughter who is appellant-plaintiff has disputed both wills, denying her signatures on both wills as a witness and alleged both wills as forged, illegal and void testamentary documents -Appellant sought declaration that both registered wills allegedly made and executed by her parents be declared as null and void and consequentially properties in question left by the parents be partitioned among their natural surviving heirs as per Hindu Law of Succession, in equal share of one-fourth to each of their natural heirs – Held, trial Court vide impugned orders has dismissed both applications of appellant filed under Order 39 Rule 1 and 2 and declined to grant interim stay in favor of appellant during course of trial of civil suits - Thus, appellant has assailed both orders by way of these appeals under Section 104 read with Order 43 Rule 1(r) CPC - Learned counsel for appellant has argued that wills in question are disputed testamentary documents and in both the wills, respondent is sole beneficiary and respondent are supporting both the wills in favor of respondent No.1, burden lies upon respondents to prove execution of both the wills as per the mandatory requirement of Section 63 of Act of 1925 and Section 68 of Act of 1872 - In backdrop of aforementioned factual matrix and series of judgments cited on behalf of both parties, this Court is of prima facie opinion that both appeals require hearing at length - Hence, appeals are admitted for hearing - As far as interim stay during pendency of appeals is concerned, after considering, peculiar and entire facts and circumstances of this case and after hearing arguments of counsel for both parties, as also taking into consideration the prayer made by plaintiff in her plaint quoted declining of temporary injunction by trial Court on merits; considering nature of dispute and details of properties in question as mentioned in the plaint, this Court is of considered opinion that both cases are fit cases where, by virtue of application of principle of pendens, ad interim injunction order to restrain the respondents not to transfer and alienate properties in question, need not to be passed - With such observations, stay applications filed in both appeals stand disposed of.
JUDGMENT :
1. Both appeals have arisen against the order of dismissal of applications for temporary injunction filed under Order 39 Rule 1 and 2 and in both appeals, except properties in question, parties and issues in controversy are common, therefore, with consent of counsel for both parties, both appeals have been heard together.
2. The facts in both cases are that Shri Surjeet Singh and his wife Smt. Pal Kaur are parents of appellant and respondent Nos.1 to 3. Shri Surjeet Singh and Smt. Pal Kaur both made their independent and separate wills on 07.11.2012 in respect of their personal properties. By way of their respective wills, their properties have been bequeathed to one son- Dr. Mukhtyar Singh Sidhu (respondent No.1 herein). Both wills are registered in the office of Sub-Registrar No.5, Jaipur and their two daughters are common witnesses in both wills. Shri Surjeet Singh died on 06.12.2020 and prior to that Smt. Pal Kaur had passed on 26.05.2017. They have been survived by their four natural heirs, two sons and two daughters. Appellant- Dr. Smt. Param Navdeep Singh and respondent No.2- Smt. Charanjeet Kaur are two daughters and respondent Nos.1 and 3 namely Dr. Mukhtyar Singh Sidhu and Tek Singh are two sons. After death of parents, one of the daughter who is appellant-plaintiff has disputed both wills, denying her signatures on both the wills as a witness and alleged both the wills as forged, illegal and void testamentary documents.
3. The appellant has filed two separate civil suits along with two separate applications for temporary injunctions against respondents-defendants No.1 to 3 before the Trial Court on 06.01.2021. The appellant sought declaration that both registered wills dated 07.11.2012, allegedly made and executed by her parents be declared as null and void and consequentially properties in question left by the parents be partitioned among their natural surviving heirs as per Hindu Law of Succession, in equal share of one-fourth to each of their natural heirs. The appellant has categorically denied her signatures on both wills as a witness and has challenged wills on various factual and legal grounds. Her case is that until and unless both wills are not proved as per requirements of provisions enshrined under Section 63 of the India Succession Act, 1925 (hereinafter referred as "the Act of 1925") and under Section 68 of the Indian Evidence Act, 1872 (hereinafter referred as "the Act of 1872"), the wills do not come in operation and under law be treated as ineffective and invalid. The appellant has filed two separate civil suits for declaration, partition and permanent injunction in relation for properties left out by father and mother. In both the plaints, in addition to prayer of declaration to declare wills dated 07.11.2012 as null and void and claiming partition of her one-forth share and consequential permanent injunction, following prayer has also been made as under:-
4. Respondents Nos.1 to 3 have jointly opposed suits and applications for temporary injunction filed by appellant. They have alleged that their father and mother executed their respective independent and separate wills on 07.11.2012, in relation to their own acquired personal movable and immovable properties, and through both wills, properties have been bequeathed in favour of one son- Dr. Mukhtyar Singh Sidhu (respondent No.1) and, their both daughters have made their respective signatures as witnesses on both the wills. Both wills were got registered in the office of Sub-Registrar, and apart from wills, two separate power of attorneys were also executed and got registered by their parents on 07.11.
A propounder of a Will carries the absolute onus to prove its valid execution, complying with S.63 of the Indian Succession Act and S.68 of the Evidence Act. Material discrepancies in testimony and e....
Grant or refusal of interim relief/temporary injunction - Usually, prayer for grant of an interlocutory injunction is at a stage when the existence of legal right asserted by plaintiff and its allege....
A Plaintiff can seek a permanent injunction based on possession, even if deriving rights from a disputed Will, as long as the evidence supports their claim and initial possessory rights are establish....
The main legal point established in the judgment is that the execution of wills must be proved in the manner known to law, and failure to do so may result in the wills being disbelieved by the court.
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