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PUNJAB & HARYANA HIGH COURT
Vinod K.Sharma, J.
Air Vice Marshal Mahinder Singh Rao(Retd.)
Versus
Narender Singh Rao & Others
Regular Second Appeal No. 3937 of 2005,
Cross Objection No. 9 of 2006,
Decided On : MAY 21, 2010
(B) Succession Act, 1925, S. 63--Will--Suspicious Circumstances--An isolated suspicious circumstance cannot be a ground to reject Will, when both learned Courts below by concurrent finding of fact have upheld Will. (Para 120 & 121)
(C) Succession Act, 1925, S. 63--Will--Suspicious Circumstances--Will was duly proved by attesting witness--Suspicious circumstance was duly explained, as to how Will was executed on instructions of testatrix--Suspicious circumstance, that why LTI was used instead of RTI, was also duly explained , for reason, that in Bihar even ladies use LTI and furthermore testatrix was suffering from paralytic attack on right side, therefore, putting of right thumb impression, could not be said to be a suspicious circumstance--Allegation, that Will was executed at instance of defendant/ respondent No. 1 was not proved, as admittedly he had not participated in drafting of Will--Merely because testatrix was living with him, could not be a ground to hold, that Will surrounded by suspicious circumstances--Finding recorded by learned Courts below holding Will to be validly executed, is a finding of fact, which cannot be reopened in regular second appeal. (Para 119)
(D) Succession Act, 1925, S.63--Will--Suspicious Circumstances--Minor contradictions, in statements of witnesses examined after lapse of so many years, could not be a ground to hold, that Will was surrounded by suspicious circumstances. (Para 19)
(E) Succession Act, 1925, S.63--Will--Suspicious Circumstances--Non-mentioning of other legal heirs, and reason for disinheritance could not be a ground to hold Will to be surrounded by suspicious circumstances, in facts and circumstances of case, when it was proved beyond doubt, and was even admitted by plaintiff, that it was defendant No. 1 and his wife, who were looking after her when she was in need of medical aid and even otherwise, they were one, who were looking after her in old age. (Para 19)
Vinod K.Sharma, J.
1. This is plaintiffs second appeal against the judgments and decrees dated 23.4.2005, passed by the learned Courts below vide which suit filed by the plaintiff/appellant for declaration to the effect, that the plaintiffs and the defendants are owners in possession in equal shares of the property bearing No. 504, Ward No. 16, Gurgaon, as fully detailed and described in para 1 of the plaint; and further that they are entitled to be recorded as such in the ownership column in the Municipal record of the Municipal Committee, Gurgaon, and further claiming a decree for possession by way of partition by metes and bounds of the share of the plaintiffs in respect of the suit property along with actual possession.
2. The plaintiffs filed the suit, referred to above, on the pleadings that Sh. Rao Gajraj Singh, Advocate, Member of Parliament (Lok Sabha) and father of the plaintiffs and defendants, was the owner in possession of the property in dispute.
3. Sh. Rao Gajraj Singh expired on 29.3.1981 intestate, leaving behind the parties to suit and Smt. Sumitra Devi, widow of late Sh. Rao Gajraj Singh and mother of the parties. Smt. Sumitra Devi also died on 6.6.1989, leaving behind the plaintiffs and the defendants as the only legal heirs.
4. It was the pleaded case of the plaintiffs, that house in dispute stands in the name of Sh. Rao Gajraj Singh, in the records of Municipal Committee, Gurgaon for which house tax upto date i.e. 1990-91 stood paid on 9.7.1990 to the tune of Rs. 3290/- (Rupees three thousand two hundred and ninety only) vide receipt No. 13, book No. 46, dated 19.7.1990. The electric connection was also in the name of late Sh. Rao Gajraj Singh and upto date bills for electricity consumption also stood paid.
5. It was also pleaded by the plaintiffs, that plaintiff No. 3, applied to the Administrator, Municipal Committee, Gurgaon on 8.4.1991, with the consent of other plaintiffs, for transfer of the house in the names of the surviving plaintiffs and defendants being the heirs of late Sh. Rao Gajraj Singh, but the Administrator, Municipal Committee, Gurgaon vide letter dated 15.6.1991 advised them to get Court order with regard to change of ownership. Thus, the suit.
6. It was also the case of the plaintiff/appellant, that relationship between the parties was strained and no longer amicable. So, they did not want to keep the property joint. The partition by metes and bounds was prayed.
7. The suit was contested by defendant No. 1, whereas defendant No. 2 was proceeded ex parte on 20.5.1992, and defendants No. 3 & 4 were proceeded ex parte on 5.2.1992.
8. In the written statement, a plea was taken that the boundaries of the suit property were not correctly stated. It was denied that late Sh. Rao Gajraj Singh, father of the parties, was absolute owner in possession of the suit property. The stand of defendant No. 1 was, that the suit property was owned and possessed by Sh. Rao Gajraj Singh, to the extent of half share and Smt. Sumitra Devi, mother of the parties, to the extent of remaining half share. This was said to be the position, even during the life time of Sh. Rao Gajraj Singh, as he had himself executed a writing in his own hand, which was attested by Rao Devender Singh, real sisters son, in token of its correctness.
9. The said writing was said to have been handed over to Smt. Sumitra Devi for assertion and protection of her rights in the said property and also to get necessary entries, in the Municipal record changed. The copy of, that writing was kept by Sh. Rao Gajraj Singh with him. The writing was said to be a memorandum of acknowledgment of settlement of the suit property made by him, prior to its recording. In the writing the ownership and possession of Smt. Sumitra Devi, to the extent of half share, was acknowledged. Sh. Rao Gajraj Singh assigned the remaining half share belonging to him in favour of Smt. Sumitra Devi and vice-versa.
10. Since Rao Gajraj Singh died during the life time
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