Parveen Kumar v. Phoolwati And ORS

{1}

IN THE HIGH COURT OF PUNJAB & HARYANA

AT CHANDIGARH Date of decision:30.01.2019 Parveen Kumar ... Appellant(s) Vs.

Phoolwati and others ... Respondent(s)

CORAM:

HON'BLE MR. JUSTICE AMIT RAWAL Present:- Mr. Arundeep, Advocate for Mr. R.S.Pandher, Advocate for the appellant.

AMIT RAWAL J. (Oral) C.M.No.10410-C of 2015 For the reasons stated in the application which is duly supported by an affidavit, delay of 25 days in re-filing the appeal is condoned.

C.M. stands allowed.

Appellant-defendant no.1 has not been successful in defending the suit preferred by plaintiff-respondent no.1, who is none-else but mother being widow was constrained to approach the Court claiming declaration of ownership and injunction.

It was pleaded that plaintiff alongwith her husband Kumar Bhanu Shastri, were allotted residential plot bearing no.1692 measuring 10 marlas in Sector 13 Urban Estate Karnal in equal share for a consideration

{2} of Rs.10,175/-vide allotment deed dated 1.3.1974. In the year 1975, it was renumbered as 1857. Kumar Bhanu Shastri died on 26.2.1994. It was further alleged that portion under the exclusive possession of the plaintiff consisted drawing room, bed room, one store and kitchen shown in yellow colour, front and rear court yard and covered passage window bathroom and W.C on the ground floor whereas defendants no.1 and 2 were also residing in the respective portion.

Defendant no.1 instituted the suit for injunction against the plaintiff which was pending adjudication and had propounded the unregistered Will dated 12.02.1994 and intended to dispossess the plaintiff. The Will was false and bogus and sought the declaration in terms of the allotment letter. It was also alleged that her husband Kumar Bhanu Shastri had been insisting that he would transfer the whole property in favour of the plaintiff so that she should not suffer from any finance and other constraints. Defendant no.1 opposed the suit and stated that it was a benami transaction. In fact, the entire house was owned by Kumar Bhanu Shastri. Learned counsel appearing on behalf of the appellant-defendant no.1 submitted that the defendants have examined following witnesses:- DW1Parkash Chand, Clerk from the office of HUDA DW2Ram Bhagat DW3Subhash Khurand, Deed Writer DW4Parveen Kumar DW5 Ramesh Mittal, Advocate DW6 Neelam Sharma

{3} DW7 Ramesh Kumar Once the Will had already been proved on record through the testimony of the attesting witnesses and deed writer and as per the assertion of the plaintiff, construction was done by defendant no.2, the allotment could not have been said to be exclusive in the name of Kumar Bhanu Shastri and plaintiff as her name was reflected only due to love and affection. In such circumstances, Kumar Bhanu Shastri bequeathed the entire property in favour of appellant-defendant no.1. The testator gave a clear reasoning in the Will to disinherit the daughter Neelam as her share was taken care of at the time of marriage. There was compromise in the Panchayat Biradari on 07.01.2001. The Will, Ex.DW2/A conferred the ownership in favour of appellant-defendant no.1. I have heard the learned counsel for the appellant-defendant no.

1, appraised the judgments and decrees of the Courts below and of the view that there is no force and merit in the submissions of Mr.Arundeep, for, allotment proved on record established that it was joint letter in the name of Kumar Bhanu Shastri and plaintiff. On perusal of the Will placed on record Annexure A-3 and its vernacular, it is deciphered that Will has been prepared by making attempt to adjust the signatures on the blank papers. The tenor and mode of drafting of the Will on first and second page is clearly different which is evident from the spaces. It is not a case where the Will has been written by deceased, testator himself, but by deed writer. The appellant-defendant no.1 has not been able to prove the transaction to be benami.

{4} bequeathed the entire property in favour of appellant-defendant no.1 and his 1⁄2 share would definitely devolve upon all the legal heirs in accordance with law but not in the manner and mode as indicated above. The judgments and decrees of the Courts below, in my view, cannot be said to suffering from illegality and perversity. Resultantly, the regular second appeal is dismissed. (AMIT RAWAL) JUDGE January 30, 2019 savita Whether Speaking/Reasoned Yes/No Whether Reportable Yes/No