Surendra Kumar and Another vs Smt. Har Pyari (Since Deceased) and Others

Hon''ble Sibghat Ullah Khan, J.—Heard learned counsel for the parties at the admission stage.

Two suits being O.S. No. 112 of 1988 (hereinafter referred to as ''first suit'') and O.S. No. 135 of 1989 (hereinafter referred to as ''second suit'') were consolidated and decided on 11.08.1998 by First Additional Civil Judge, Senior Division, Moradabad. Against the said judgment and decree, appellants filed two civil appeals being Civil Appeal No. 168 of 1998 arising out of first suit and Civil Appeal No. 167 of 1998 arising out of second suit. In one of the appeals cross-objections were also filed. A.D.J. Court No. 6, Moradabad dismissed both the appeals as well as cross-objections through judgment and decree dated 25.10.2010 (or 26.10.2010) hence these second appeals.

First suit was filed by the appellants of these second appeals i.e. Surendra Kumar and Hari Prakash sons of late Kanahaiya Lal. Second suit was filed by Har Pyari (aunt of present appellants) against the present appellants. Appellants in their suit (first suit) contended that Manohar Lal had three sons Raj Kumar, Musaddi Lal and Kanhaiya Lal (father of appellants), that Raj Kumar and his wife Har Pyari (defendant in the first suit and plaintiff in the second suit) through registered sale deed dated 14.09.1970 registered on 19.12.1970 jointly purchased the property in dispute from Mahendra Singh and others, that Raj Kumar died on 27.01.1986 however before his death a Will had been executed by him and his wife Har Pyari on 06.01.1986 regarding property in dispute in favour of the present appellants. Raj Kumar and Har Pyari had no issue. Musaddi Lal had 9 issues i.e. three sons and six daughters. The three sons were defendants No. 2 to 4 in the first suit. Copy of the Will has been filed along with written arguments filed by learned counsel for the appellants.

Smt. Har Pyari asserted that no Will had been executed by her and her husband Raj Kumar on 06.01.1986 as asserted by the present appellants. Smt. Har Pyari further asserted that she had executed a Will on 13.04.1986 in favour of Ashok Kumar son of Musaddi Lal i.e. defendants No. 3 in the first suit and respondent No. 3 in Second Appeal No. 127 of 2011/ respondent No. 1/1 in Second Appeal No. 126 of 2011. Smt. Har Pyari died on 17.12.1990.

After thorough examination of entire evidence on record both the courts held that no Will as alleged by the appellants had been executed on 06.01.1986 by Raj Kumar and Har Pyari. It was further held that suspicious circumstances surrounding the said Will had not been explained by the present appellants. The lower appellate court examined the experts'' reports also. After examination of the evidence adduced by the appellants the courts below held that appellants could not prove that the Will as alleged by them to have been executed on 06.01.1986, by Raj Kumar and Har Pyari was in fact executed by these persons.

Moreover by reading the Will it becomes quite clear that even if it was executed still on the basis of the said Will appellants could not acquire any right. In the Will it was stated that both the executants i.e. Raj Kumar and Har Pyari were owners of the property in dispute which they had purchased through sale deed dated 14.09.1970/ 19.12.1970. In Clause-1 of the Will it was stated that both the executants could change the Will by mutual consent. Clause-2 is more important. It states that after the death of one of the executants, the remaining executant would remain complete owner of the entire property till his/ her life time, however he/ she would not be entitled to make any change in the Will. According to the Clause-3 after the death of both the executants the property would be divided according to the scheme mentioned thereunder. In accordance with Clause-2 of the said Will after the death of Raj Kumar, Har Pyari became sole owner of the entire property. Even otherwise by virtue of Section 8 read with Clause-1 of the Schedule to the Hindu Succession Act, 1956, after the death of Raj Kumar his widow Smt. Har Pyari became the owner of his share in the property (The couple had no issue). The condition that the surviving person would not be entitled to make any change in the Will was legally of no value. Both were owners to the extent of half share and any person can change his/ her Will whenever he/ she wants. Such right cannot be curtailed. By virtue of Clause-2 of the Will the surviving person became complete owner of the property of the deceased. Accordingly, even if the Will was in fact executed, Har Pyari became complete owner of the entire property (she was already owner of the half of the property and under Clause-2 of the Will she also became owner of share of her husband). Accordingly, she was fully entitled to cancel the Will. The denial of Smt. Har Pyari of the execution of the Will dated 06.01.1986 amounts to cancellation of the said Will if it is held that in fact the said Will was executed.

The courts below further held that the allegation of the appellants that appellant No. 2, Hari Prakash got a shop which was part of the property in dispute constructed was wrong and the constructed shop was given on licence to Hari Prakash.

Daughters of Musaddi Lal or Kanhaiya Lal did not claim any right in the property.

During life time of Har Pyari appellants had absolutely no right in the property in dispute hence they could not file the suit against Har Pyari (if Will dated 06.01.1986 is held to be genuine).

Accordingly, there is absolutely no error in the impugned findings holding that no Will dated 06.01.1986 was executed by Raj Kuamr and Har Pyari. Even if the Will dated 06.01.1986 as alleged was executed, Smt. Har Pyari had full right to cancel the same and to execute another Will which she actually did.

The following authorities, photostat copies of which have been annexed along with the written arguments by learned counsel for the appellants do not support the case of the appellants.

(i) Satnam Singh Vs. Sadhu Singh, 2002 ACJ 79 (SC)

(ii) Sugarbai M. Siddiq Vs. Ramesh H. Hankare, 2002 ACJ 81 (SC)

(iii) Kesavan Anandakumar Vs. Nagali Amma, 1994 (2) CCC 107 (Kerala)

(iv) Om Parkash Agarwal and Others Vs. Giri Raj Kishori and Others,

Accordingly, there is no merit in these second appeals hence they are dismissed under Order XLI Rule 11, C.P.C.