A testator cannot bequeath property held in Trust, as ownership and authority are paramount for valid testamentary actions.

JUDGMENT :

NIDHI GUPTA, J.

CM-2015-C-2018

This is an application under Section 5 of Limitation Act for condonation of delay of 89 days in filing the appeal.

After going through the contents of the application, which is supported by affidavit of the appellant, the same is allowed subject to all just exceptions and delay of 89 days in filing the present appeal is condoned.

MAIN CASE

The defendant is in Second Appeal against the concurrent judgments and decrees of the learned Courts below whereby suit filed by the plaintiff/respondent No.1 for declaration with consequential relief of permanent injunction, has been decreed by both the Courts below.

2. Present appeal is of the year 2018 and notice in the main appeal is yet to be issued. The appeal has been filed with a delay of 89 days in which application, notice was issued on 18.12.2018. Thereafter, the matter has been adjourned repeatedly at request of learned counsel for the appellant. Accordingly, vide last order dated 02.12.2025, last opportunity was granted to the appellant to address arguments; and matter is being heard today.

3. To better understand the dispute between the parties, family pedigree table shall be useful, which is as under:-

4. It was pleaded in the plaint that defendant No.2 is the real brother of the plaintiff, and his interest is similar to that of the plaintiff. It was stated that agricultural land measuring 621 kanal 2 marla comprised in Khasra Nos.437 to 444 is the Private Family Dharmarath Property, which was owned by the ancestors of the present parties; which was allotted to Jai Nath, Parma Nand, Sant Dev, Sant Ram, which was held in Pakistan. The said land was left as Private Family Trust under the management of Sh. Charan Dass, Devi Dayal, Sant Ram as Managers. Ram Rikhi, widow of Jai Nath expired on 31.01.2008 and had allegedly executed Will dated 15.01.2002 in favour of the defendant No.1. It was the case of the plaintiff that the Will dated 15.01.2002 is a forged document. It was further pleaded that since the suit property is Family Trust property, therefore, the same cannot be stated to be owned by anyone and could not have been alienated in any form or manner. Thus, the Will dated 15.1.2002 does not convey any title. It was also pleaded that the witnesses to the Will are interested persons. Moreover, Ram Rikhi was not in good health when the alleged Will was executed. Accordingly, a declaration was sought that the Will dated 15.01.2002 is an illegal document and prayer for permanent injunction was made restraining the defendant No.1 from interfering in the joint possession of the plaintiff and other co-sharers. With these pleadings, suit was filed on 12.12.2008.

5. Upon appraisal of pleadings and oral & documentary evidence adduced by the parties, learned Civil Judge (Junior Division), Karnal had decreed the suit of the plaintiff with costs vide judgment and decree dated 21.05.2013. The Civil Appeal filed by the defendant No.1 was dismissed by the learned Additional District Judge, Karnal vide judgment and decree dated 30.05.2017. Hence, present Second Appeal by the defendant No.1.

6. It is inter alia submitted by learned counsel for the appellant that the learned Courts below were in error in non-suiting the appellant as they failed to appreciate that the appellant had duly proved the Will set up by him. It is submitted that the Will (Ex.D1) has been proved by the appellant by leading comprehensive evidence which has not been rebutted by the respondent. The Will Ex. D1 shows that there is clear intention of Testator to execute the Will and bequeath the property. The testator has further averred that all