IMPORTANT POINT
The civil court has jurisdiction to entertain a suit for cancellation of a Will, even if the plaintiff is not recorded in the revenue records, if the Will was executed under fraudulent circumstances.

JUDGMENT :

Kshitij Shailendra, J.

THE APPEAL

1. The instant second appeal at the instance of defendants of Original Suit No.523 of 1989 (Ram Autar Vs. Siyawati and others) has been filed challenging the concurrent judgments and decrees drawn by the trial court and the first appellate court whereby, respectively, suit for cancellation of a registered Will dated 20.03.1985 has been decreed and civil appeal arising out of the decree has been dismissed.

PLAINT CASE

2. As per the plaint case, one Harswaroop had two sons, namely, Ram Autar (plaintiff) and Mangoo (defendant no.2). One Siyawati wife of defendant no.2, was arrayed as defendant no.1. Harswaroop, aged 90 years, used to remain sick in his last days of life. His wife had already died and the plaintiff and defendant no.2 used to take care of their father. When Harswaroop fell seriously ill in March, 1985, the plaintiff and defendant no.2 took him to Modinagar and Meerut for treatment. Initially, Harswaroop got some relief but he again fell ill and, on 20.03.1985, defendant no.2 along with his brother-in-law Nand Kishore took Harswaroop for examination by a doctor at Modinagar. At that time, since the wife of plaintiff was ill, he could not accompany his father. Defendant no.2, in collusion with defendant no.1, i.e. his wife, and his brother-in-law Nand Kishore, took Harswaroop to Ghaziabad for treatment and on 20.03.1985 itself, a Will was obtained from Harswaroop in the name of defendant no.1, i.e. the wife of defendant no.2 pretending that the same was being executed in favour of both plaintiff and defendant no.2. Harswaroop died on 04.01.1989, however, plaintiff could not get any information about the Will but when the defendants, at the strength of the said Will, expressed their absolute ownership in respect of Khasra No.1007, the plaintiff got information about the Will and found it as having been fraudulently executed. A plea with regard to family settlement dated 17.01.1989 was also taken and cause of action for filing the suit was alleged as denial by the defendants to get the Will cancelled, threats extended in April, 1989 as regards possession over the property and on not accepting family settlement.

DEFENCE IN WRITTEN STATEMENT

3. The defendants filed written statement pleading due execution of the Will. It was stated that the testator even till his death remained in all good senses and the Will was executed out of his free will. It was further stated that the plaintiff had never taken care of his father and even did not participate in his last rites. Bar of Section 331 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (for short ‘the Act of 1950’) was also pleaded with a further statement that name of the beneficiary, i.e. the defendant no.1, had already been mutated in the revenue records at the strength of Will.

TRIAL COURT'S JUDGMENT

4. The trial court decreed the suit on 04.11.1993. It found the execution of Will as a result of fraud and fabrication and also recorded that the original Will was neither filed before the Court nor proved in accordance with law. It, however, discarded family settlement relied upon by the plaintiff. As regards bar of Section 331, the trial court observed that since suit was filed seeking cancellation of Will and claiming injunction restraining dispossession and alienation, the civil court had jurisdiction to entertain and decide the suit.

FIRST APPELLATE COURT'S JUDGMENT

5. Aggrieved by the decision of the trial court, the defendants preferred Civil Appeal No.10 of 1993 (Mangoo Singh and others Vs. Ram Autar) that has been dismissed on 05.11.1996.

COUNSEL HEARD

6. I have heard Sri Triveni Shankar along with Sri Narendra Mohan & Sri Ramesh Chandra Tiwari, learned counsel for the defendant-appellants and Sri Kiran Kumar Arora, learned counsel for the plaintiff-respondent.

ADMISSION ORDER

7. The instant second appeal, though filed in the year 1996 when an order of status quo was also passed, it was admitted as late as on 05.10.2021 o