Daya Chand @ Dayanand and Others vs Smt. Dayawati (Since Deceased) and Others

Sibghat Ullah Khan, J.—Heard Sri V.M. Zaidi, learned senior counsel assisted by Sri Sami Ullah Khan, learned counsel for the appellants and Sri K.M. Garg learned counsel for contesting respondents.

This is defendants'' second appeal arising out of O.S. No. 451 of 1997, which was dismissed on 07.08.2010 by Additional Civil Judge, Junior Division, Court No. 2, Nagina (District Bijnor). Against the said judgment and decree, Civil Appeal No. 89 of 2010 was filed which was allowed by A.D.J./ Special Judge, Bijnor on 25.08.2011, hence this second appeal.

The suit was filed by Smt. Dayawati and Smt. Chandra Devi respondent No. 2 who were real sisters. Smt. Dayawati died during pendency of suit and was survived by plaintiffs respondents No. 1/1 to 1/6. The original plaintiffs, real sisters had a brother by the name of Ratan Singh. The lower appellate court set aside the judgment and decree passed by the lower appellate court through which suit had been dismissed and decreed the suit and cancelled the Will alleged to have been executed by Ratan Singh on 23.01.1997 in favour of Daya Chand @ Daya Nand defendant appellant No. 1 and the sale deed dated 12.03.1997 executed by Daya Nand defendant appellant No. 1 in favour of other defendants respondents who are also appellants in this second appeal. Sri Ratan Singh died on 24.01.1997, i.e. on the next day of execution of alleged Will. Wife and daughter of Sri Ratan Singh had died during his life time.

The lower appellate court after discussing entire evidence on record recorded categorical finding that Ratan Singh did not execute any Will and the Will was highly suspicious and suspicious circumstances had not been explained. Regarding presence of Daya Nand defendant appellant No. 1 at the time of execution of the alleged Will different statements were given by different witnesses of defendants. Daya Nand was cousin of Ratan Singh. The case of the plaintiffs was that Ratan Singh was ill hence they had brought him to their village Islampur where he lived for about 1-1 1/2 month till his death. The case of the defendants appellants was that Ratan Singh was in the village Akbar Pur Dev Mal on 24.01.1997 he became ill in the afternoon hence they took him to Bijnor for treatment and therefrom his sisters took him to their village (Islampur). Lower appellate court held that defendant Daya Nand could not prove that on 24.01.1997 Ratan Singh was brought to Bijnor for his village Akbar Pur Dev Mal and no evidence was available with defendant No. 1 to the effect that he showed Ratan Singh to any doctor. It could also not be shown as to how sisters reached Bijnor on 24.01.1997 and from there took him to their village.

The lower appellate court has given very cogent reasons for holding that no Will was executed by Ratan Singh on 23.01.1997. It has also been mentioned that within two months of execution of Will and death of Ratan Singh, sale deed was executed by the alleged legatee Daya Chand in favour of defendants No. 2 & 3 who were wife and brother of Malkhan Singh one of the attesting witnesses in the alleged Will.

The reasons given by lower appellate court are cogent reasons and findings are findings of fact. Lower appellate court also discussed intrinsic evidence of the Will like position of photo etc. to hold that Will was prepared after the death of Ratan Singh. Accordingly, there is no merit in the second appeal, hence it is dismissed under Order XLI Rule 11, C.P.C.