Ram Gopal @ Gopal vs Manik Chand

Shishir Kumar, J.—Heard learned Counsel for the Appellant.

This is Defendant''s second appeal arising out of suit filed by the Plaintiff Respondent for injunction restraining the Defendant from interfering in the house No. 2116 (old) new 17/96. It has been pleaded that Ninua Ram was the owner of the said house, having four sons. Ram Lal one of the son, died in 1987 and Sunder Lal another son, died in 1972. As aforementioned sons were unmarried, therefore, they have not left any heirs and legal representative. In life time Ninua Ram has executed a will deed in favour of his wife on 24.08.1975. Smt. Ganga Devi was mother of the Plaintiff, therefore, on the basis of will, she has been devolved all the rights in the said property. After the death of husband of Smt. Ganga Devi, mother of the Plaintiff was enjoying the fruits of the property. The Defendant, who is the real brother of the Plaintiff, Smt. Ganga Devi has purchased a plot of 100 square meter in Billochpura, Tajganj, Agra in the name of Defendant Financial assistance was also given provided by the mother and Plaintiff to construct the house in the year 1987. The number of said house was 17/113 in the name of Defendant.

Further allegation was made in the plaint that Smt. Ganga Devi in her life time has executed registered will deed on 21.08.1990 in favour of Plaintiff and the house in dispute was given in his favour and it was registered from the office of Registrar. After the death of Smt Ganga Devi, Plaintiff became the owner of the property on the basis of will dated 21.08.1990. During the last rights of the mother Defendant stay for some period in the house in dispute, on the ground that his house situated at Billochpura, Tajganj, Agra was under construction and subsequently, when Plaintiff requested to vacate the house, he refused. Then notice was given on 09.08.1996 but in spite of the fact, it has not been vacated then suit was filed.

Defendant filed written statement and denied the claim made in the plaint stating therein that the property in dispute belongs to one Allay and it is undivided ancestral property and therefore, any will executed by any person in favour of anybody will not accrue any exclusive right and legally the Defendant is having a share 1/2 in the house No. 17/96. The Plaintiff only want to grab the property exclusively has filed the present suit.

Trial Court after considering pleadings of parties have framed various issues and one of the issue was whether the Plaintiff is the owner in possession of the property on the basis of will dated 21.08.1990. Another main issue was whether this property is ancestral or not.

Trial Court clubbed issue No. 1 and 2 together and recorded a finding that house No. 17/96 was exclusive of Ninua Ram and a Will was executed in favour of the wife and Ninua Ram was always paying the tax. A finding has also been recorded that Ninua Ram was having four sons and two died issueless and Plaintiff and Defendant remained. D.W. 1 Ram Gopal has also stated that Ninua Ram was the owner of the house in question. A finding has been recorded that Defendant has not filed any document to show that this property belongs to ancestral of Ninua Ram. If it has not been proved that it is a ancestral property then Ninua Ram was having full right to execute will in favour of his wife Ganga Devi and she was having full right to execute will in favour of the Plaintiff.

Finding has also been record to this extent that for the convenience of the Plaintiff and Defendant, house No. 17/113 was purchased by Smt. Ganga Devi.

After recording such findings, the Trial Court decreed the suit vide its judgment and order dated 30.11.1999.

The appeal filed by the Defendant Appellant has been dismissed confirming the finding recorded by the trial court holding therein that the Defendant has failed to prove from the record that it is an ancestral property. Unless and until it is proved, the mother was having full right to execute the will deed in favour of the Plaintiff.

Learned Counsel for the Appellant has submitted before the Court that from the record it is clear that the name of Ninua Ram as well as other persons were recorded in the house in question. Therefore, he was not exclusive owner of the property in dispute being ancestral property, Ninua Ram was having no right to execute the will in favour of the Ganga Devi and, therefore, any will deed was executed, in favour of Plaintiff Respondent will be null and void.

Further, submission has been made that the trial Court has recorded a finding that Plaintiff has failed to prove from the record that it is an exclusive property. Unless and until it is proved, the Will executed in favour of Ganga Devi and subsequently in favour of Plaintiff is the void document.

I have considered the submission made on behalf of the Appellant and perused the record.

The Defendant came with a case that it is an ancestral property of Nanua Ram, but he has not filed any documentary evidence to show that it was an ancestral property, mere recording the name is not sufficient to establish that it was an ancestral property. The Plaintiff witness as well as other documents established the fact that it is not ancestral property and this property belongs to Ninua Ram and he was the owner of the property, therefore, he was having full right to execute a will deed in favour of his wife. The Defendant at no point of time challenged the validity of the will deed. The lower Court as well as appellate Court has recorded a finding that thumb impression upon the will executed by the Ninua Ram in favour of Smt. Ganga Devi and the thumb impression of Ganga Devi has been compared. A finding has also been recorded that house No. 17/113 has also been purchased after providing financial assistance to the Appellant by Smt. Ganga Devi.

In view of the aforesaid facts and circumstances, I am of the opinion that findings recorded by the Courts below are finding of fact based on evidence on record, as such needs no interference.

As no substantial question of law is involved in this appeal, therefore, the present appeal is hereby dismissed.

No order as to costs.