Mr. Augustine George Masih, J. (Oral):- C.M. Nos 9137-C of 2015

Prayer in this application is for condoning the delay of 13 days in filing the appeal. For the reasons mentioned in the application, which is supported by an affidavit of the applicant/appellant, the application is allowed. Delay of 13 days in filing the appeal is condoned.

RSA No. 3726 of 2015

The appellant has approached this Court assailing the judgment dated 09.04.2015 passed by the Additional District Judge, Gurgaon allowing the appeal preferred by the respondents, against the judgment and decree dated 22.08.2013 passed by the Additional Civil Judge (Senior Division), Gurgaon which has been set aside and the suit of the appellant dismissed.

2. Appellant filed a suit for declaration with consequential relief of permanent injunction to the effect that the plaintiff is a joint owner in possession to the extent of 1/7th share in the suit land. He being the son of Smt. Gomti Devi was entitled to the said benefit and has also challenged the Will, which was shrouded with doubt because the same has been executed on 04.04.2001 just three days prior to the death of Smt. Gomti Devi i.e. 07.04.2001. The suit of the plaintiff-appellant was decreed by holding that the plaintiff was a joint owner to the extent of 1/7th share, as mentioned in para-1 of the plaint and the mutation, on the basis of the Will, was null, void, illegal and nonest in the eyes of law. The said order was also passed against the defendant-respondents for illegally and forcibly dispossessing the plaintiff-appellant over the suit property. In the appeal, the findings, as recorded with regard to the Will as also that the plaintiff-appellant being the owner of 1/7th share of the property, were assailed, which has been allowed.

3. Counsel for the appellant has contended that the Will Ex. DW 1/A executed by Smt. Gomti Devi in favour of the defendantrespondents bequeathing the suit property in their favour is shrouded with doubt not only on the ground that it is only three days prior to the death of Smt. Gomti Devi, mother of the plaintiff-appellant, but the same was got registered after a period of three years. His further contention is that the signatures, which have been appended on the Will, of the attesting witnesses are not on the right side margin of the Will but are on the left and right of the thumb impressions of Smt. Gomti Devi. He, thus, contends that the said Will has been executed in suspicion circumstances and the same does not deserve to be taken into consideration for ousting the right of the appellant. In support of this contention, he has placed reliance upon the judgment of this Court in Smt. Kesar Bai (Dead) through LRs vs. Ran Singh, 2003 (3) PLR 580. His further contention is that the respondents have failed to discharge their onus with regard to the fact as to whether the plaintiff has been validly adopted by Smt. Bakhtawari in the year 1964 and if the said adoption is not in accordance with law, the plaintiff-appellant cannot be ousted of his right relying upon Section 12 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as ‘1956 Act’). He contends that the judgment, therefore, passed by the learned Additional District Judge, Gurgaon dated 09.04.2015 cannot sustain and deserves to be set aside and the suit and decree of the plaintiff-appellant be granted.

4. I have considered the submissions made by the counsel for the appellant and am of the considered view that even if these two grounds, which have been raised in the present appeal, are treated to be questions of law, which require to be considered by this Court, the same cannot be sustained in the light of the findings, which have been recorded by the Court below as I am in agreement with the same.

5. It is an admitted case on the part of the plaintiff-appellant that he had performed the last rites of Smt. Bakhtawari and has also inherited the property after her death and had been living with her pri