The importance of proving a Will in accordance with the Indian Evidence Act, 1872, and the validity of release deeds for transferring property within the family.

JUDGMENT :

ANIL KSHETARPAL, J.

1. The defendant is the appellant. She has filed an appeal against the judgment and decree passed by the learned Additional District Judge, Gurugram on 09.12.20219. Learned Additional District Judge has reversed the judgment and decree passed by the learned trial court on 15.07.2016. The trial court had dismissed the suit filed by the plaintiff-respondent for declaration that the Will dated 05.10.2011, allegedly executed by Late Sh. Chet Ram is illegal and fraudulent and the defendant-appellant be restrained from interfering in the peaceful possession of the plaintiff over the suit property as also restrained her from alienating the suit property.

2. Before this Bench proceeds to discuss the facts of the case, it would be appropriate to draw a genealogical tree to understand the inter se relationship between the parties:-

3. Seema Rani, daughter of Late Sh. Chet Ram filed the present suit against Mukesh Rani (appellant herein), who is daughter-in-law of Late Sh. Chet Ram. In other words, the plaintiff has filed a suit against her sister-in-law (the brother's wife).

4. The plaintiff came to the court asserting that Late Sh. Chet Ram had executed two registered release deeds transferring his entire property in favour of his children. The first registered release deed was executed by Late Sh. Chet Ram on 24.11.2010 with respect to 3/4th share of the land measuring 11 kanals 2 marlas situated in village Baj Ghera, Tehsil and District Gurugram. Thereafter, Late Sh. Chet Ram again executed another release deed in favour of Seema Rani with respect to the remaining 1/4th share on 24.12.2010. The plaintiff has submitted that the defendant in collusion with her husband has got a Will registered on 05.102.2011 from Late Sh. Chet Ram with regard to the suit property.

5. The plaintiff claims that such Will is illegal and fraudulent.

6. The defendant contested the suit and pleaded that she used to serve her father-in-law and Late Sh. Chet Ram executed the registered Will due to love and affection. The defendant further pleaded that the release deed in favour of the plaintiff dated 24.12.2010 is result of fraud.

7. Learned trial court framed the following issues:-

“(1) Whether the plaintiff is entitled to a decree for declaration to the effect that the Will no.567, dated 5.10.2011 is illegal, null and void, on the grounds as prayed for? OPP.

(2) Whether the plaintiff is entitled to a decree for permanent injunction thereby restraining the defendant from getting the land, detailed in para no.1 & 2 of the plaint, mutated? OPP

(3) Whether the suit is not maintainable in the present form? OPD.

(4) Whether the plaintiff has no locus standi and cause of action to file the present suit?

OPD.

(5) Whether the suit is bad for non-joinder and mis-joinder of the necessary parties? OPD

(6) Whether the plaintiff has concealed the true and material facts from the Court?

OPD.

(7) Whether the plaintiff is estopped from filing the present suit by her own act and conduct? OPD.

(8) Relief.”

8. The plaintiff successfully proved the execution of two release deeds by examining herself as well as Sh. Narender. On the other hand, defendant failed to prove the alleged registered Will dated 05.10.2011 as no attesting witness was examined.

9. However, learned trial court dismissed the suit on the ground that the plaintiff has failed to prove that the property in question is an ancestral property. Learned trial court found that as a matter of fact the property was received by Late Sh. Chet Ram from his father Sh. Shiv Ram through a document. The court held that since it has not been proved that the property was inherited from four previous generations, therefore, it is not an ancestral p