The due execution and registration of a Will, as well as the requirement of a declaration of title for granting injunction, were the central legal points established in the judgment.

Amit Rawal J.

The present Regular Second Appeal is directed against the judgment and decree of the Lower Appellate Court, whereby, suit of the appellant-plaintiff decreed by the trial Court, has been dismissed.

2. The plaintiff sought the mandatory injunction directing the defendants to vacant the premises i.e. residential and commercial, rendition of accounts regarding collection of the rent from various tenants and restraining the defendants from alienating the suit property. It was stated that he was son of late Shiv Parsad Sharma son of Durga Dass. Mangat Ram son of Durga Dass was his brother. He died issueless leaving behind his wife Krishna Wanti Sharma also known as Krishna Sharma. Krishna Sharma expired on 08.12.2003. Mangat Ram, husband of Krishna Sharma expired on 02.09.1979. During his life time, he had purchased a house bearing no.245, Adarsh Nagar, Jalandhar City from Improvement Trust and also one commercial property i.e. EL-270, Attari Bazar, Jalandhar which was rented out to various tenants. Since they did not have any issue, the plaintiff had been serving them and they shifted to Canada. Owing to their absence, defendants propounded the Will and got the property in their name. Even the certain tenants and licensees were also inducted.

3. Defendants no.1 and 2 opposed the suit and denied the plaintiff to be owner in possession of the suit property and stated that they have become the owners by virtue of registered Will dated 27.03.2002.

4. Since the parties were at variance, the trial Court framed the following issues:-

“1. Whether the plaintiff is entitled to the relief of mandatory injunction, as prayed for ?OPP

2. Whether the plaintiff is entitled to the relief of rendition of accounts from defendant no.1 with regard to the collection of rent from the tenants of the property no.EL-270, Attari Bazar, Jalandhar? OPP

3. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP

4. Whether the plaintiff has no locus standi to file the present suit?OPD

5. Whether the suit is not file by a competent person?OPD

6. Whether defendant no.2 has inherited the entire suit property on the basis of registered Will dated 27.03.2002 executed in his favour by late Krishna Sharma? OPD

7. Relief.”

5. The plaintiff, in support of the aforementioned pleadings, examined Sanjeev Kumar, Draftsman as PW1, Bhupinder Singh, General Power of Attorney of plaintiff as PW2, himself as PW3, Krishan Kumar as PW4 and tendered into evidence Ex.P1 and Ex.P2, much less General Power of Attorney, death certificates of Mangat Ram Sharma and Krishna Sharma as Ex.P4 and Ex.P5.

6. On the other hand, defendants examined the following witnesses and brought on record Ex.Dl to Ex.D7.:-

DW1 - Sham Sunder

DW2 - Sachin Avasthi

DW3 - Jagdish Chander, record keeper

DW4 - Krishan Lal, deed writer

DW5 - Chanan Singh Lambardar

DW6- Vijay Kumar Salwan (wrongly mentioned as DW5)

7. The trial Court on preponderance of the evidence, holding the Will to be suffering from suspicious circumstances decreed the suit by discarding the Will. However, the Lower Appellate Court, as noticed above, reversed the findings.

8. Mr. M.S.Sachdev, learned counsel appearing on behalf of the appellant-plaintiffs in support of the memorandum of appeal, has raised the following submissions:-

(i) Chanan Singh, lambardar and Vijay Kumar Salwan, were the two attesting witnesses. Only Vijay Kumar Salwan, has been examined. There was no compliance of the provisions of Section 63(c) of Indian Succession Act, 1925 (for short “1925 Act”) and Section 68 of Indian Evidence Act, 1872 (for short “1872 Act”).

(ii) It is not a case where only provisions of Section 68 of Indian Evidence Act, have to be complied with. The aforementioned statutory provisions of the Act, have to be complied with in conjunction. In support of the aforementioned submissions, relied upon para 8 of the judgment rendered by the Hon'ble Supreme Court in Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Katana