RSA-5444- IN THE HIG 112 Ramesh Cha Om Parkash CORAM: H Present: - NIDHI GUP 1. challenge to whereby vid learned Civi appeal by t judgment an for declaratio 2. before the le being refer ‘defendants the effect th and immova 09.01.2006 e -2018 (O&M) -1- HIGH COURT OF PUNJAB AND HA sh Chander Kaushik (now deceased) th Versus arkash and others M: HON'BLE MS. JUSTICE NIDH Mr. Rajesh Bansal, Advocate fo I GUPTA, J. The plaintiff is in second app nge to the concurrent findings returned vide judgment and decree dated d Civil Judge (Junior Division), Cha l by the learned Additional District ent and decree dated 05.03.2018, the claration and mandatory injunction has The parties shall hereinafter b the learned trial Court i.e. the appell referred to as ‘the plaintiff’, dants’. The plaintiff had filed the prese fect that parties to the suit are owners movable properties left by Bhim Sa 2006 executed by Bhim Sain in favour D HARYANA AT CHANDIGARH RSA-5444-2018 (O&M) Date of Decision: 22.01.2025 sed) through his LRs .…Appellant ....Respondents NIDHI GUPTA cate for the appellant. d appeal before this Court laying eturned by the learned Courts below dated 12.04.2014 passed by the Charkhi Dadri; duly affirmed in istrict Judge, Charkhi Dadri vide , the suit of the appellants/plaintiff has been dismissed. fter be referred to as per their status appellants/ LRs of the plaintiff are whereas the respondents as e present suit seeking declaration to wners in possession of all movable im Sain; AND Will No. 404 dated favour of defendant No. 1 is wrong, ying low the d in vide ntiff atus as able ated ong, RISHU KATARIA 2025.01.27 17:56 I attest to the accuracy and authenticity of this order/judgment. RSA-5444- incorrect, nu liable to be alternative r found in po plaintiff and properties; defendant N amounts if a account of th have receive given to him all the partie 3. Bansi Ram Charkhi Dad and perform Naraini Dev immoveable agricultural plaint and he situated at D with proform representativ immoveable legal heir of -2018 (O&M) -2- null and void and based on frau to be set aside. In the above-said suit tive relief that if the plaintiff and in possession of the properties by t ff and proforma defendants are entitle AND further suit for mandatory ant No. 1 is liable to be directed t ts if any received by him from any ba nt of the alleged said Will; AND in cas eceived any such amount then neces to him to return the shares of plaintif parties to the suit are equally entitled Brief facts as set out in the pla Ram son of Badri Parshad, R/o W hi Dadri was real brother of plaintiff erforma defendants no.2 to 5. He wa i Devi died on 07.01.2006. Bhim Sa veable properties in his name. He w ltural land measuring 22 Kanal 03 and he was also owner in possession d at Dadri. Shri Bhim Sain died issue proforma defendants and defendant entative and they all are entitled to su veable properties in equal shares and eir of Bhim Sain. That upon the deat aud and misrepresentation and id suit, the plaintiff has also sought and proforma defendants are not s by the said Bhim Sain, then the entitled to joint possession of those datory injunction to the effect that cted to disclose the details of the bank or any other institution on in case, defendant No. 1 is found to necessary direction may kindly be laintiff and proforma defendants as titled to receive the said amount. he plaint are that Bhim Sain son of /o Ward No.13, Badhwana Gate, laintiff, contesting defendant No.1, He was married but his wife Smt. im Sain was having moveable and . He was owner in possession of l 03 Marla fully described in the ssion of residential house and plots issueless on 28.02.2006. He, along ndant No.1 is his legal heir and to succeed to all his moveable and s and except them there is no other e death of said Bhim Sain, plaintiff and ught not the hose that the n on d to y be ts as n of ate, , and n of the lots long and and ther ntiff RISHU KATARIA 2025.01.27 17:56 I attest to the accuracy and authenticity of this order/judgment. RSA-5444- and other incorporated Ex.Indian M his signature during his n suffering fro to do any ac Delhi Cantt hospital, and disease was malignancy and in orde succeeding t with Deed W Deed No.27 with the off never adopte adoption dee No.1, his wi challenging Om Parkash disclosed ex behalf of sai a position 09.01.2006 b -2018 (O&M) -3- ther performa defendants, are e orated in their name in the revenue rec Military personnel. He was an edu gnatures. He never put his thumb i his normal days of life. In the las ing from Lung Cancer and he was not any act voluntarily. He was admitted in Cantt. on 11.01.2006 and he remai and he was discharged from that h e was described by the doctor as ancy Bronchogenic Carcinoma”. Def n order to deprive the plaintiff and ding to the properties of said Bhim Sa eed Writer and witnesses got execute No.277 dated 15.02.2006 in favour o he officials of Sub Registrar Charkh adopted Mohit. Consequently, upon k on deed plaintiff filed a civil suit No.2 his wife and his son Mohit in the cour nging that adoption deed and in reply arkash filed his written statement d sed execution and registration of Will of said Bhim Sain in his favour. At th ition to execute the Will and the 2006 be set aside on the following gro re entitled to get his property nue record. The said Bhim Sain was an educated person and used to put umb impression on any document the last days said Bhim Sain was as not in his senses and was not able itted in the Army Hospital (R & R), remained under treatment in that that hospital on 28.01.2006 and his tor as “A case of disseminated Defendant No.1 is clever person iff and performa defendants from him Sain fraudulently in connivance xecuted and registered an adoption vour of his son Mohit in collusion Charkhi Dadri. Though Bhim Sain pon knowing of this illegal alleged it No.254 of 2006 against defendant e court of ACJ (SD), Charkhi Dadri reply to that plaint, defendant No.1 ent dated 15.05.2007 wherein he f Will No.404 dated 09.01.2006 on r. At that time Bhim Sain was not in d the alleged Will No.404 dated grounds: - erty was put ent was able R), that his ated rson rom ance tion sion Sain ged dant adri o.1 he 6 on ot in ated RISHU KATARIA 2025.01.27 17:56 I attest to the accuracy and authenticity of this order/judgment. RSA-5444- 4. null and void proforma def Bhim Sain 5. As the remai ex parte. De way of raisi -2018 (O&M) -4- (a) That said Bhim Sain was in sound state of mind an from suspicious circumst (b) That defendant No.1 misrepresentation in gett dated 09.01.2006 in his f Writer, witnesses and o Registrar Charkhi Dadri. (c) That it is worthwhile to m Will is a genuine Will th to get the mutation on t regarding the said prop revenue record in his favo (d) That if alleged Will was Bhim Sain in favour of de Sain executed adoption d in favour of son of defend Thus, the alleged Will is liable d void and the same is not binding on defendants. The pedigree table is a Badri Parshad Banshi Ram Ved Parkash Ramesh Chand Smt. Kanta Devi Upon notice, defendant No. 1- remaining defendants failed to appear Defendant No. 1/respondent No. raising many objections, inter alia, in was not in his sense and was not ind and the alleged Will is not free cumstances. No.1 has played a fraud and in getting the alleged Will No.404 n his favour in collusion with Deed and officials of the office of Sub Dadri. le to mention here that if the alleged ill then why defendant No.1 failed n on the basis of this Will entered properties of Bhim Sain in the is favour. ll was voluntarily executed by said r of defendant No.1 then why Bhim tion deed No.277 dated 15.02.2006 defendant No.1. liable to be declared to be illegal, ing on the rights of the plaintiff and le is as under:- arshad Ram hand Om Parkash Anand Parkash Kamlesh Devi -Om Parkash put in appearance. appear, they were proceeded against t No. 1 herein resisted the suit by alia, regarding maintainability of and .404 eed ub ged iled ered the said him 006 gal, and . inst t by y of RISHU KATARIA 2025.01.27 17:56 I attest to the accuracy and authenticity of this order/judgment. RSA-5444- the suit, no under Order 6. No. 1 was fil 7. were framed 8. the parties, t plaintiff and against the d issues was o for the defe -2018 (O&M) -5- , no locus standi, the suit being fal Order II Rule 2 and Section 11 CPC et No replication to the written was filed by the plaintiff. On the basis of the pleadings o ramed by the learned trial Court vide o “1. Whether the plaintiff alon entitled to the relief o property as prayed for o plaint? OPP 2. Whether the plaintiff alo is entitled to the relief prayed for on the ground 3. Whether the plaintiff ha present suit? OPD 4. Whether the suit of the p its present form? OPD 5. Whether the suit of the p and has been filed just to 6. Whether the suit is barre Section 11 of CPC? OPD 7. Whether the suit is liable of non-joinder of necessa 8. Relief.” On the basis of oral and docum rties, the learned trial Court decided is ff and in favour of the defendants; t the defendants in view of the fact was on defendants, however, during e defendants neither pressed these is false and frivolous, and barred CPC etc. ritten statement filed by defendant ings of the parties, following issues vide order dated 29.09.2012: - alongwith proforma defendants is ief of declaration qua the suit for on the ground alleged in the along with proforma defendants elief of mandatory injunction as und alleged in the plaint? OPP ff has no locus standi to file the the plaintiff is not maintainable in the plaintiff is false and frivolous st to harass the defendants? OPD barred under Order 2 Rule 2 and OPD iable to be rejected on the ground essary parties? OPD documentary evidence adduced by ided issue Nos.1 and 2 against the dants; issues No. 3to 7 decided e fact that onus to prove the said during arguments learned counsel ese issues nor lead any evidence rred dant sues is uit he ts as he in us nd nd RISHU KATARIA 2025.01.27 17:56 I attest to the accuracy and authenticity of this order/judgment. RSA-5444- thereupon; a judgment an 9. 12.04.2014 of Civil Ap learned Add decree dated 10. submits that P-3), had die Will on bas shrouded in upon by the that it was that Bhim Sa at the time o from suspici lead entire ev 11. suited by bo Adoption De Sain had ado said Adoptio inasmuch a 28.02.2006; -2018 (O&M) -6- pon; and dismissed the suit of th ent and decree dated 12.04.2014. Against the above said jud 2014, the plaintiff had approached the il Appeal No.185 of 2014/2017, w d Additional District Judge, Charkhi dated 05.03.2018. Hence, the present Learned counsel for the app ts that Bhim Sain-Testator of Will No had died barely 02 months later, on i. on basis of which defendant No.1 ed in suspicious circumstances, and by the ld. Courts below in non-suiting was the clear case of the plaintiff befo him Sain was not in his senses and wa time of execution of Will Ex. P-3, the suspicious circumstances. The plainti ntire evidence in this regard before the The second ground on which by both the Courts below is that B ion Deed No. 277 dated 15.02.2006 ( ad adopted Mohit son of defendant N doption Deed was also registered und uch as, the Executor, namely, Bh 06; and from 11.01.2006 to 28 of the plaintiff with costs vide judgment and decree dated ed the Ist Appellate Court by way which was dismissed by the harkhi Dadri vide judgment and resent second appeal. e appellants-plaintiff, inter alia ill No. 404 dated 09.01.2006 (Ex. on i.e. 28.02.2006. As such, the No.1 is claiming inheritance, is s, and could not have been relied uiting the plaintiff. It is submitted ff before the learned Courts below was not in sound state of mind 3, therefore, the same is not free plaintiff was not even allowed to re the learned Courts below. hich the plaintiff has been non- that Bhim Sain had registered an 2006 (Ex. P-1), vide which Bhim dant No. 1. It is submitted that the d under suspicious circumstances, y, Bhim Sain, had expired on to 28.01.2006 was admitted in RISHU KATARIA 2025.01.27 17:56 I attest to the accuracy and authenticity of this order/judgment. RSA-5444- hospital. It decrees of b and without therefore, be 12. 13. the case file 14. matter perta Perusal of th hearing for 04.12.2023, which on 02 gone un-rep adjourned at 15. claim of def 09.01.2006 ( not in sound However, th contention. M executing th mental indis of the plaint were on inim -2018 (O&M) -7- al. It is accordingly, prayed that the s of both the Courts below are based ithout appreciating the correct facts o ore, be set aside. No other argument is raised on I have heard learned counsel fo se file in great detail. At the very outset, it is pertinen pertains to the 2018 and notice is ye l of the order-sheets shows that earl g for 08 times i.e. on 08.01.2019 2023, 20.02.2024, 05.03.2024, 18.07.2 on 02 dates i.e. 23.07.2019 and 23 represented; whereas on the remai ned at the request of learned counsel fo It has been argued on behalf of of defendant no.1 on the basis of the 2006 (Ex. P-3) is liable to be set aside sound mental condition at the time of er, the plaintiff led no evidence tion. Merely because Bhim Sain had ting the impugned Will cannot in itse l indisposition on part of the testator. plaintiff from the Will of Bhim Sain on inimical to each other. In this rega hat the impugned judgments and based on surmises and conjectures acts on record and the same may, ed on behalf of the appellant. nsel for the appellant and perused ertinent to mention herein that the e is yet to be issued in the same. arlier this case was listed for 1.2019, 23.07.2019, 21.01.2020, 18.07.2024 and 23.10.2024; out of nd 23.10.2024, the appellant had remaining 06 dates the case was nsel for the appellant. of the plaintiff-appellants that the alleged Will No. 404 dated t aside as Testator-Bhim Sain was time of execution of the said Will. dence whatsoever to prove his n had died within a few weeks of in itself be stated to indicate any tator. The reason for the exclusion Sain is due to the fact that they is regard, the relevant findings of RISHU KATARIA 2025.01.27 17:56 I attest to the accuracy and authenticity of this order/judgment. RSA-5444- the learned t 31 of the pa reads as und 16. wife were on very good had bequeath by him. Ad litigation bet also inflicted whereafter, against the p on record. M P-3) was exe -2018 (O&M) -8- rned trial Court as contained in para the paper-book) of the judgment an as under:- “18. So far as the exclusio defendants from inheriting t concerned otherwise also it i person who is on inmical te bequeath his property to that has other person in the same d The plaintiff who is now claimin very strained relations with th till the last day. Therefore, it wa to exclude them from inheriting Rather he was so inmical to the that he even adopted defend adoption deed No. 277 dated 1 ensure that no part of his prop and proforma defendants who g his lifetime. After adoption mutation No. 4316 was also g testator Bhim Sain in favour o Sain.” It has also come on record that ere jointly residing with Om Parkash y good terms with him. It was in this queathed his property to Om Parkash m. Admittedly, there was even con ion between the plaintiff and Testator flicted grievous injuries to Bhim Sai after, a case under Sections 325/32 t the plaintiff, in respect of which judg ord. Moreover, the impugned Will No as executed by Bhim Sain in the pre para-No. 18 (at page Nos. 30 and ent and decree dated 12.04.2014, usion of plaintiff and performa ng the property of testator is it is quite natural that when a al terms with a person, cannot hat person and more so when he me degree having good relations. iming the property of testator had th the testator during his lifetime it was very natural for the testator riting his property after his death. o the plaintiffs and other brothers fendant no. 1's son Mohit vide ted 15.02.2006 in order to doubly property would go to the plaintiffs ho got his nerves strained during on of Mohit by the testator a lso got sanctioned after death of ur of Mohit, adopted son of Bhim rd that Testator-Bhim Sain and his arkash-defendant No. 1 and were in this background that Bhim Sain arkash in lieu of service rendered n continuous civil and criminal stator-Bhim Sain. The plaintiff had im Sain with sharp edged weapon 25/326 IPC was also registered h judgment Ex. D-3 was produced ill No. 404 dated 09.01.2006 (Ex. he presence of attesting witnesses a is a ot he ns. ad tor th. rs de ly ffs ng a of im RISHU KATARIA 2025.01.27 17:56 I attest to the accuracy and authenticity of this order/judgment. RSA-5444- who had aff the contents DW2 Kulde aforesaid W Appellate Co the paper-bo follows:- -2018 (O&M) -9- ad affixed their signatures/thumb im ntents of the same. The said fact was Kuldeep Singh, Numberdar, who was aid Will. The relevant findings in th late Court as recorded in para Nos. 8 a book) of the impugned judgment “8. After having heard both has come to conclusion that determination in this case is executed Will or not. In this considered opinion that the W by two attesting witnesses name and Ajay Kumar, which was r Dadri. In order to prove th examined DW2 Kuldeep Singh This witness has deposed that by Bhim Sain. Bhim Sain p presence of the witnesses and t in presence of testator Bhim contrary has failed to prove committed by Om Parkash def not been able to prove a fact th in sound state of mind and was at the time of execution of Will. on 15.02.2006 after couple of d not itself a proof that Bhim Sa mind or he was suffering fro which disproves the content execution of Will, Bhim Sain t adoption deed Ex.P1, which w Registrar and same has not be on the ground that on the date o Bhim Sain was not in sound senses, therefore, in afor Ex.P3/Ex.D1 stands proved. If failed to prove that the Will is o reason. mb impressions after understating t was proven by the deposition of ho was an attesting witness to the in this regard of the learned Ist os. 8 and 9 (at pages 54 and 55 of gment dated 05.03.2018, reads as oth the sides at length, this Court that initial point which falls for is if Bhim Sain testator validly this regard, this Court is of the e Will Ex.P3/Ex.D1 was attested namely Kuldeep Singh Lumberdar as registered with Sub Registrar, e the Will, the defendant has ingh Lumberdar, Charkhi Dadri. that the Will was in fact executed in put his thumb impression in nd the witnesses attested the Will Bhim Sain. The plaintiff to the rove that there was any fraud defendant. The plaintiff has also ct that testator Bhim Sain was not was not in senses on 09.01.2006 Will. The fact that Bhim Sain died of days from execution of Will is m Sain was not in state of sound from any illness. Another fact, ntention of plaintiff that after ain testator has also executed an ch was also registered with Sub t been challenged by the plaintiff ate of execution of adoption deed, und state of mind or not was in aforesaid circumstances Will . If it is so, the plaintiff miserably l is outcome of fraud or any other urt or ly he ed ar ar, as ri. ed in ill he ud so ot 06 ed is nd ct, ter an ub tiff d, in ill ly er RISHU KATARIA 2025.01.27 17:56 I attest to the accuracy and authenticity of this order/judgment. RSA-5444- 17. of the plaint dated 15.02. Parkash was counsel for Adoption De with costs b dated 05.01. deed has bee passed by a is reproduce -2018 (O&M) -10- 9. Insofar as exclusion of succession by testator Bhim Sa of the considered opinion th mentioned in his Will that Ra inimical to him and both of the of civil as well criminal nat fortified by the defendant by p in a criminal case pertain 11.08.2005. The aforesaid judg levelled allegations against offence under Sections 324, 32 there was every reason availab his property to Ramesh.” As regards, second plank of ar plaintiff that he had also challenged 15.02.2006 (Ex. P-1), on the basis of h was made beneficiary, it is very ca el for the appellants that the plainti ion Deed by way of filing separate civ osts by the both the Courts below 05.01.2012 and 26.02.2023, respectiv as been upheld up to this Court by wa by a co-ordinate Bench of this Cour oduced as under:- “The appellant/plaintiff and decrees of the Courts belo by him for declaration that 15.02.2006 is null and void has Learned counsel for the that the adoption deed was circumstances inasmuch as the Kaushik had expired on 28.02. was registered on 15.02.2006. Sen Kaushik was admitted in 28.01.2006. The wife of the exe had expired on 07.01.2006 a n of the plaintiff Ramesh from Sain is concerned, this Court is n that Bhim Sain testator has t Ramesh and Ved Parkash were f them dragged him into litigation nature. The contention is duly by production of Ex.D3 judgment rtaining to FIR No.131 dated judgment suggests that Bhim Sain nst Ramesh for commission of , 326 and 506 of IPC. Therefore, ilable with the testator not to give of argument advanced on behalf nged the Adoption Deed No. 277 sis of which defendant No. 1-Om ery candidly admitted by learned plaintiff had challenged the said ate civil suit which was dismissed elow vide judgments and decree spectively; and the said adoption by way of order dated 06.02.2020, Court in RSA-4497-2017, which tiff has challenged the judgments below whereby the suit preferred that the adoption deed dated has been dismissed. r the appellant/plaintiff contends was registered under suspicious s the executor, namely, Bhim Sen .02.2006 while the adoption deed 006. He also contends that Bhim d in hospital from 11.01.2006 to executor, namely, Narayani Devi 6 and, therefore, the purported m is as re on ly nt ed in of re, ive ts ed ed ds us en ed im to vi ed RISHU KATARIA 2025.01.27 17:56 I attest to the accuracy and authenticity of this order/judgment. RSA-5444- -2018 (O&M) -11- ceremonies towards adoption c 14.01.2006. Heard. I do not find any mer learned counsel for the appella deed was executed under su therefore, it has to be treated as The adoption deed was r Registrar, Charkhi Dadri in Bo No. 161 at serial No. 277. M adoption deed had also been 30.06.2006 in favour of respo Sen Kaushik adopted respond who is the son of their third b Kaushik. DW1 Shri Bhagwan, who duly proved the execution of the Singh, Computer Operator, ha certified the adoption deed (E photos which had been taken Writer, had also proved the a DW3. DW4 Raje Ram, who wa of the executor, had also pro attesting witness, namely, K village, had also deposed as D deed. It is also borne out from Bhim Sen Kaushik, the executo was the brother of the appe criminal case against the app ironical that the appellant/plai Kaushik had initiated crim challenging the adoption deed e in favour of his nephew, who i The appellant/plaintiff appea towards Bhim Sen Kaushik duri the garb of the instant suit by c wants to usurp his property. The documents with rega the executor Bhim Sen Kaushik have been tendered by the appe P22, but those were not certifie had prepared the same. Furthermore, Narayani Kaushik, is stated to have expi come in evidence that she did Bhim Sen Kaushik and had bee find anything suspicious in being performed on 14.01.2006 death of his wife, Bhim Sen Ka ion could not have taken place on merit in the contentions of the ellant/plaintiff that the adoption r suspicious circumstances and, ed as null and void. as registered in the office of Sub- n Book No. 4, Jild No. 26 at page 7. Mutation No.4316 in terms of been entered and sanctioned on respondent/defendant No.1. Bhim ondent/defendant No. 1 - Mohit, ird brother, namely, Om Parkash , who was the Registry Clerk, had f the adoption deed. DW2 Jagdish r, had also deposed that he had d (Ex. DW1/A) by identifying the aken by him. Udai Singh, Deed he adoption deed by deposing as o was living in the neighbourhood proved the adoption deed. The , Kuldeep, Numberdar of the as DW5 and proved the adoption from the material on record that ecutor of the adoption deed, who appellant/plaintiff had lodged a appellant/ plaintiff. It is rather /plaintiff against whom Bhim Sen criminal proceedings is now eed executed by Bhim Sen Kaushik ho is the son of the third brother. ppears to have been inimical during his lifetime, but now under by challenging the adoption deed egard to the medical treatment of ushik at the Army Hospital, Delhi appellant/plaintiff as Ex. P4 to Ex. rtified by the medical officer, who ani Devi, the wife of Bhim Sen expired on 07.01.2006, but it has did not have good relations with been residing separately. I do not ceremonies towards adoption .2006. It is possible that after the n Kaushik wanted to have his heir on he on d, ge of on im it, sh ad sh ad ed as od he he on at ho a er en w ik er. al er ed of lhi x. ho en as ith ot on he eir RISHU KATARIA 2025.01.27 17:56 I attest to the accuracy and authenticity of this order/judgment. RSA-5444- 18. controvert th explanation 19. 20. 22.01.2025 rishu -2018 (O&M) -12- to inherit his property and, the deed. In the wake of aforenote is manifest that the appellant/p rebut the presumption of trut adoption deed in terms of Sect and Maintenance Act, 1956. Consequently, I do not fin which stands dismissed.” Learned counsel for the appell vert the above said evidence/finding ation for the same. In view of the above, present ap Pending application(s) if any als 2025 Whether speaking/reasoned Whether Reportable , therefore, executed the adoption noted facts and circumstances, it ant/plaintiff has not been able to truth attached to the registered Section 16 of the Hindu Adoption ot find any merit in this appeal, appellants is unable to dispute or findings or give any satisfactory sent appeal is dismissed. any also stand(s) disposed of. ( NIDHI GUPTA ) JUDGE Yes/No Yes/No on , it to ed on RISHU KATARIA 2025.01.27 17:56 I attest to the accuracy and authenticity of this order/judgment.