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Judgment
Rakesh Kumar Jain, J.—The substantial question of law involved in this appeal is as to ""whether a person can derive any benefit out of a
Will executed in his favour if the testator alienates the property, bequeathed by way of the said Will, byway of a collusive decree which remained
unchallenged""?
The plaintiff is in second appeal. The brief facts of the case are that the plaintiff filed a suit for declaration in which it was alleged that his father
Mangal Singh was the owner of the land in dispute who executed a Will dated 09.12.1965 in favour of the defendants and died in the year 1978,
but during this period Mangal Singh suffered a decree of the land in dispute in favour of the plaintiff in the year 1970. The plaintiff, thus, alleged that
the Will executed by Mangal Singh is inoperative insofar as the suit land is concerned and claimed that it may be declared to be illegal and also that
he has become the owner of the suit land. In the written statement, the defendants had claimed that they have succeeded to the suit land owned by
Mangal Singh only on the basis of registered Will dated 09.12.1965, but they did not specifically denied the claim of the plaintiff with regard to his
ownership over the land in dispute on the basis of Civil Court decree. Plaintiff filed replication and on the basis of the pleadings of the parties, the
learned Trial Court framed five issues on 08.09.1982 which are reproduced as under:-
Whether the Will dated 09.12.1965 is illegal, null and void, if so to what effect? OPP
Whether the suit is not maintainable in the present form? OPD
Whether the plaintiff has no locus standi to file the present suit? OPD
Whether the suit is barred by time? OPD
Relief.
The plaintiff appeared as his own witness and produced copy of the Civil Court decree as Ex.PW1/A, whereas the defendants examined two
witnesses, namely, Satbir Singh DW1 and Dalip Singh DW2, and produced copy of the Will dated 09.12.1965 as Ex.D1.
Both the Courts below dismissed the suit of the plaintiff on the ground that the plaintiff has failed to challenge validity of the Will which was duly
executed. It was held that there were no suspicious circumstances surrounding the execution of Will and as such, the suit was dismissed.
Learned counsel for the appellant has submitted that it was argued before the learned First Appellate Court that even if the Will is proved to
have been executed by Mangal Singh, the same would have no effect in view of the decree Ex.PW1/A, but the learned First Appellate Court has
held that the decree Ex.PW1/A would not cancel the Will in toto. It was held that"" Exhibit PW1/A confirming the disposition of property by
Mangal Singh testator subsequent to the execution of Will only puts, beyond scope of Will the property divided through it (Exhibit PW1/A), but
succession to the property, not included in decree sheet Exhibit PW1/A, is yet to be governed by the Will under challenge"". The learned Trial
Court dismissed the suit of the plaintiff on the ground that ""it is pertinent to mention here that the Will in. question has been challenged by the
plaintiff only on the basis of decree obtained by him in an admission suit in 1970. Therefore, I hold that no suspicious circumstance is attending to
the execution of will"".
Learned counsel for the appellant has submitted that the Will would come into operation only after the death of the testator but if the testator
during his life time alienates the property, which is sought to be bequeathed by way of Will, the propounder of the Will would not get any benefit
after the death of the testator when the succession had opened to him by virtue of the- Will because by that time the testator had no property in his
name for the purpose of further bequeathing to the propounder of the Will. He further submits that the plaintiff is only concerned with the
immovable property which has been transferred to him by his father Mangal Singh by way of Civil Court decree Ex.PW1/A and if there is some
more property, which is allegedly given by way of Will Ex.D1, the same may be retained by the defendants as he had challenged the Will only on
the basis of the decree Ex.PW1/A by which he had already become the owner of that property of Mangal Singh which was a part of the property
which was bequeathed by him by way of Will Ex.D1.
In reply, learned counsel for the respondents has submitted that suit of the plaintiff was for declaration in which he challenged the validity of the
Will and has miserably failed to prove any suspicious circumstance, therefore, the Will cannot be set aside.
I have heard both learned counsel for the parties and perused the available record with their able assistance.
The substantial question of law, which has already been framed in the beginning of the judgment, is answered in favour of the plaintiff because
the WH1 Ex.D1 is of the year 1965 by which the testator had decided to bequeath the immovable property owned by him to the defendants, but
before he died in the year 1978, he suffered a decree Ex.PW1/A in favour of his son (plaintiff), therefore, that property goes out of the hands of
the testator and could not have been transferred by him by way of Will (Ex.D1) simply on the principle that no one can transfer ownership rights
which he do not have and the Will of the testator would only speak on the day of his death and earlier to it the propounder of the Will would not
be clothed with any ownership rights. Moreover, in the Will Ex.D1, the testator has specifically mentioned that ""I will remain owner in possession
as long as I am alive, but after my death, the propounders of the Will shall become owners in possession of the land in question"".
In view of the above discussion, the present appeal is hereby allowed and the decree for declaration is granted in favour of the plaintiff to the
effect that he has become owner of the land which he has acquired by way of Civil Court decree Ex.PW1/A which was suffered by his father
Mangal Singh in his favour and would not be affected by the Will dated 09.12.1965 (Ex.D1) which was executed by Mangal Singh in favour of the
defendants. In the peculiar facts and circumstances of the case, the parties shall bear their own costs.