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2012 Supreme(All) 999
[2012(7) ADJ 609]
ALLAHABAD HIGH COURT
BEFORE : RAJES KUMAR, J.
VIJAY KUMAR GUPTA .....Appellant
Versus
MOOL CHAND GUPTA AND OTHERS .....Respondents
(Second Appeal Nos. 901 and 902 of 2011, decided on 13th April, 2012)
Counsel :
Nitin Sharma for the Appellant; C.B. Gupta for the Respondents.
Headnote:Code of Civil Procedure, 1908—Section 100—Second appeal—Challenging concurrent findings—By which it was found that appellants, although were sons of plaintiff, but they by their misbehaviour, abusive language and cruel treatment compelled plaintiff-father and their mother to disentitle them from property—Suit filed for their eviction by father was decreed by trial Court, although he died during pendency of suit, leaving behind his widow and four other sons, in whose favour he executed two wills, one of them was registered but other was not registered—In these wills too, he disentitled those two sons from property—Wills was duly proved by wife and other sons of deceased plaintiff—High Court in second appeal found no substantial question of law—Findings of fact recorded by Courts below were found to be correct—As such, High Court dismissed appeal, commenting on behaviour of sons with their father—Each of the two defendants sons were directed to pay Rs. ten thousand per month for unauthorised occupation of premises and damages if they fail to vacate premises within a month. [Paras 11 to 14]
Result; Appeals Dismissed.
Hon’ble Rajes Kumar, J.—These are two Second Appeals arising from the order of the Additional District Judge, Court No. 3, Meerut, dated 9.9.2011, passed in Civil Appeal No. 170 of 2008, Vijay Kumar Gupta v. Mool Chand Gupta and others and Civil Appeal No. 161 of 2008, Sunil Kumar Gupta v. Mool Chand and others.
2. The brief facts, giving rise to these appeals, are that Mool Chand Gupta filed the Suit No. 814 of 1998, Mool Chand Gupta and others v. Vijay Kumar Gupta and Sunil Kumar Gupta, appellants herein, who were defendant Nos. 1 and 2, for mandatory injunction seeking the direction from the Court to the defendant-appellants to vacate the house and handover the physical possession of the portion ‘ABCDEFGHI’ and ‘JKLMNOP’ respectively shown in the plaint map of the House No. 11 (New Number 12) situated in New Arya Nagar, Jail Road, Meerut. The plaintiff, Mool Chand was the father of the defendants, Vijay Kumar Gupta and Sunil Kumar Gupta. The suit was filed with the allegations that since last two and half years, defendant No. 1 and since last ten months, defendant No. 2, and their families started abusing, torturing, misbehaving and committing cruelty with him and his wife due to which the plaintiff and his wife suffered mental agony, which affected their health and due to the inhuman behaviour of the defendants, the plaintiff and his wife decided not to keep the defendants any more in the said house. The legal notices have been issued to the defendants and, thereafter, the suit has been filed in the year 1998. Sri Mool Chand died on 12th January, 1999, leaving behind the will dated 6.10.1998 and 24.12.1998. By virtue of the aforesaid wills, Smt. Dharamwati, wife of Sri Mool Chand became the owner of the property in dispute and has been substituted as the plaintiff No. 1/1.
3. It is not in dispute that the House No. 11 (New Number 12) situated in New Arya Nagar, Jail Road, Meerut was exclusively owned by Sri Mool Chand. Sri Mool Chand had six sons, namely, Vijay Kumar Gupta, Sunil Kumar Gupta, Ajay Kumar Gupta, Rakesh Kumar Gupta, Mukesh Kumar Gupta and Praveen Kumar Gupta and three daughters, namely, Smt. Asha, Smt. Manju and Smt. Rekha. Sri Mool Chand executed a registered will dated 6.10.1998 in favour of his wife Smt. Dharamwati in respect of moveable and immoveable properties including House No. 11 (New Number 12) situated in New Arya Nagar, Jail Road, Meerut and in favour of his four sons, namely, Ajay Kumar Gupta, Rakesh Kumar Gupta, Mukesh Kumar Gupta and Praveen Kumar Gupta stating therein that after his death Smt. Dharamwati will be the owner of the said property and after her death the property shall devolve upon his four sons, namely, Ajay Kumar Gupta, Rakesh Kumar Gupta, Mukesh Kumar Gupta and Praveen Kumar Gupta and Vijay Kumar Gupta and Sunil Kumar Gupta have been excluded and not given any share in the property in dispute. The aforesaid will was witnessed by Sri Sanjeev and Smt. Dharamwati. A second will was also executed by Sri Mool Chand on 24.12.1998, which was unregistered. It was also in favour of his wife Smt. Dharamwati and in favour of his four sons, namely, Ajay Kumar Gupta, Rakesh Kumar Gupta, Mukesh Kumar Gupta and Praveen Kumar Gupta. The said will was witnessed by Sri Lavlesh Agrawal and Smt. Manju, daughter of Sri Mool Chand. In the said will also, it was stated that after his death, his wife, Smt. Dharamwati will be the absolute owner of the House No. 11 (New Number 12) situated in New Arya Nagar, Jail Road, Meerut and after her death the said properly will be given to his four sons, named above. In this will also, no share has been given to Vijay Kumar Gupta and Sunil Kumar Gupta.
4. Both Vijay Kumar Gupta and Sunil Kumar Gupta, the appellants, were residing in the same house. The cause of action of the suit arose when they started abusing, torturing and misbehaving with Sri Mool Chand and his wife which led filing of the suit for eviction by Sri Mool Chand.
5. Both the appellants fil
