Avinash Bhatt vs Rekha And Others

This first appeal is filed by the appellant/plaintiff against judgment and decree dated 27.04.2001 whereby the suit filed by him for the relief of declaration has been dismissed.

Facts of the case, in short, are as under:

The plaintiff filed the suit that he be declared the owner of Flat No.305, Jaishri Apartment, House No.6/1, New Palasia, Indore (herein after called as 'suit property') and the sale deed dated 30.05.1989 executed in favour of defendant No.1 be declared void.

The defendant No.1 is a mother and defendant No.2 is a father of plaintiff. The defendant No.3 is a sister of defendant No.2. As per the pleadings in the plaint the 'suit property' was purchased from the income of Late Ratilal Ji Bhatt i.e. his Grand Father. According to the plaintiff, he gave his money received after retirement to the defendant No.2 for purchase of 'suit property' in his name but he purchased the 'suit property' in the name of defendant No.1 vide registered sale deed dated 30.05.1989. Late Ratilal Ji worked as an accountant in the Bharat Cooking Coal Ltd. from 01.01.1947 to 30.06.1976 and after retirement he received substantial amount. He had no knowledge that defendant No.1 is owner of the 'suit property'. Ratilal Ji being grandfather of plaintiff had executed a Will dated 26.10.1993 in his favour bequeathing the 'suit property' to him. During his lifetime Shri Ratilal Ji lived in the said 'suit property' and at the last time he was suffered paralysis and other ailment. Therefore, after the death of Late Ratilal Ji on 14.01.1994 as per the Will dated 26.10.1993 the plaintiff has become the exclusive owner of the 'suit property'. He came to know that the defendant Nos.1 to 3 are trying to dispose of the 'suit property' by way of sale and the proposed buyer and brokers are coming to the 'suit property', therefore, he is entitled for a decree of title of the said 'suit property' and the sale deed dated 30.05.1989 be declared void.

The defendant No.3 remained ex-parte. The defendant Nos.1 and 2 jointly filed the written statement by submitting that they have no knowledge about the Will dated 26.10.1993. According to them, the 'suit property' was purchased in the name of defendant No.1 as per the desire of Late Ratilal Ji. The defendant Nos.1 and 2 are occupier as an owner of the 'suit property', therefore, the suit be dismissed.

On the basis of pleading, the learned trial Court framed 6 issues for adjudication.

The plaintiff examined Mukund Trivedi as PW1 and himself as PW2 and got exhibited 43 documents as Exhibit P/1 to P/43. In rebuttal, the defendant No.2 examined himself as DW1 and defendant No.1 as DW2.

After evaluating the oral as well as documentary evidence on record, the learned trial Court has held that during his lifetime Late Ratilal had never objected that the defendant No.1 is a registered owner of the 'suit property' No.306. The plaintiff has failed to prove that the defendant No.2 got registered a sale deed in the name of defendant No.1 against the desire of Late Ratilal. The plaintiff has also failed to prove the Will in his favour. Accordingly vide judgment and decree dated 27.04.2001, learned Additional District Judge has dismissed the suit.

Being aggrieved by the dismissal of the suit the plaintiff/appellant has preferred the present first appeal before this Court.

Shri S.S.Garg, learned counsel for the appellant/plaintiff argued that the plaintiff has filed the suit seeking declaration of title of 'suit property' on the basis of Will dated 26.10.1993. According to the plaintiff late Ratilal Ji executed the Will dated 26.10.1993 in his favour bequeathing the 'suit property' subject to the condition that he will pay Rs.5,000/- per month to defendant No.3 for the period of 5 years. The Will is an unregistered Will and came to the knowledge of plaintiff through PW-1 after he became 18 years of age. The Will was in possession of DW1 who gave to the plaintiff on his 18th birthday. That Ratilal Ji had no intention to purchase the 'suit property' in the name of defendant no.1; the defendant no2 cheated his father by purchasing the 'suit property' in the name of his wife. The advance amount of sell was paid by the late Ratilal Ji. The plaintiff has successfully proved the Will in his favour, and as per condition he has paid the amount @ Rs. 5000/- pm to defendant no.3. Hence suit be decreed in his favour by setting aside the impugned judgment & decree.

Despite service no one is appearing on behalf of the respondents

The plaintiff filed the suit after 7 years of the date of the Will. He has not disclosed on which he became major i.e. 18 years of age and he has also not explained as to why he did not file the suit for declaration or applied for mutation on the basis of a Will within reasonable time .

According to the DW1 the Will was typed in his presence as per the information given by Late Ratilal. At that time, he was suffering from paralysis and unable to sign, therefore, he put his thumb impression in presence of two witness. In the Will Shri Ratilal has given each and every detail of his savings, advance date of amount paid to the builder very minutely. He has mention even amount , date and cheque numbers in detail in the Will. He has given his details of saving account number income-tax account number but he did not gave the date of sale deed of the 'suit property'. He stated that he has purchased the 'suit property' from his own income in Rs.2,12,000/- but surprisingly he did not give the date of sale deed and there is no explanation to it either by the plaintiff or by DW1. According to the plaintiff, he wanted to purchase the 'suit property' in his name but the defendant No.2 has purchased the 'suit property' in the name of defendant No.1 which was not in the knowledge of Late Ratilal. The defendant No.1 and 2 both have stated in the Court that they purchased the 'suit property' in the name of defendant No.1 as per the desire of the late Ratilal Ji and he had knowledge of it. It is important to note here that the sale deed was executed on 30.05.1989 and late Ratilal Ji died in the year 1994 i.e. after four years and during this four year he had no occasion to see the sale deed. He did not object about the sale deed. He did not challenged the sale deed that it has wrongly been purchased in the name of defendant No.1, therefore, the trial Court has rightly held that the Will dated 26.10.1993 is a suspicious document specially when for the period of 7 years the plaintiff remained silent and did not take any step on the basis of Will.

The plaintiff has examined himself and only P.W.-1 who is the son in law of Late Ratilal Ji. The plaintiff has failed to establish that the defendant No.2 purchased the 'suit property' in the name of defendant No.2 against the wish of Late Ratilal. The plaintiff sought the declaration that the sale deed dated 30.05.1989 be declared as void but he has not produced the certified copy or photo copy of the sale deed and he has also not filed any application for protection of that sale deed. However, the defendants did not dispute about execution of the sale deed but the plaintiff did not acquire any title by virtue of will date 26.10.1993. Hence, there is no ground for interference with the impugned judgement and decree. The trial Court has rightly dismissed the suit.

The appeal is devoid of merit, hence, same is hereby dismissed. No order as to cost .