Delhi District Court
Harish Chand Grover vs Dharam Vir Grover on 27 August, 2018
IN THE COURT OF MS. SHUNALI GUPTA, ADJ06, SOUTH DISTRICT,
SAKET COURT COMPLEX, NEW DELHI
CS No.: 148/18
CS DJ No. 207198/16
CNR No. DLST010003212011
In the matter of:
Harish Chand Grover
S/o Late Sh. Fateh Chand Grover
R/o House No.40, Village Madangir,
New Delh.
.......Plaintiff
VERSUS
1.Dharam Vir Grover S/o Late Sh. Fateh Chand Grover R/o Shop No.7, Opposite Green Valley Plaza, Sector4142, Gurukul, Faridabad, Haryana - 201010.
2. Om Prakash Grover (Grover Transport) A24562457, Ground Floor, Gate No.12, Behind Mother Dairy Booth, Green Field Colony, Faridabad, Haryana - 201010.
3. Prem Kumar Grover S/o Late Sh. Fateh Chand Grover House No.U50/14, DLF PhaseIII, Gurgaon, Near R.K. Convent School.
4. Shri Dayal Grover S/o Late Sh. Fateh Chand Grover R/o F1/101, J.J. Colony, First Floor, Madangir, New Delhi.
5. Krishan Lal Grover S/o Late Sh. Fateh Chand Grover R/o A1565, Green Field Colony, Gate No.5, Faridabad.
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6. Shakuntala Devi Ahuja D/o Late Sh. Fateh Chand Grover W/o Chander Mohan Ahuja R/o 144, Indra Vihar, Behind BBM Depot, New Delhi.
.......Defendants
Date of Institution : 23.07.2011
Date reserved for judgment : 13.08.2018
Date of pronouncement of judgment : 27.08.2018
Suit for Partition and Permanent Injunction. J U D G M E N T:
1. Vide this judgment, I shall dispose off the suit filed by plaintiff seeking partition in respect of immovable property i.e. house bearing no.40, Madangir Village, New Delhi and shop no.70, Bhagat Singh Market, Near Gole Market, New Delhi.
The brief facts of the case as culled out from the pleadings of the parties are summarized as under:
1.1 It is stated in the plaint that Late Sh. Fateh Chand Grover was the owner of following properties:
i. Property bearing House No.40, Village Madangir, measuring 250 sq. yards (near Chaupal).
ii. Shop No.F1/102, Madangir, New Delhi. iii. Shop No.F1/101, Madangir, New Delhi. iv. House No.36/1188, DDA Flats Madangir, New Delhi. v. Shop No.126, Madangir, New Delhi.
vi. Shop No.70, Bhagat Singh Market, Gole Market, New Delhi.
1.2 He expired on 03.01.1991 and after his death, as per his Testament CS DJ No.207198/16 Page No.2/ 12 Harish Chand Grover v. Dharam Vir Grover & Ors.
dated 24.05.1990, the said properties devolved upon the plaintiff and defendants being his legal heirs - sons and daughter, though the control of the said properties remained with their mother namely Smt. Jamna Devi till her death on 16.12.2012.
1.3 After the death of father and mother of the parties, the wishes of their father as expressed in the Testament dated 24.05.1990, were acted upon as if a family settlement and accordingly, the properties were given to the parties as follows:
i. Defendant no.2 - Shop No.F1/102, under room in property bearing no.40, Madangir, New Delhi.
ii. Defendant no.3 - Shop bearing no.126, Madangir and a portion of land in H. No.40, Madangir, New Delhi.
iii. Defendant no.4 - Shop bearing no. 1/101, Madangir and H. No. 36/1188 in Madangir, New Delhi.
iv. Defendant no.6 - a sum of Rs.10,000/ and no other right or interest in his property.
v. Plaintiff, Defendant no.1 & Defendant no.5 - were collectively given 1/3rd share each in the remaining portion of the house bearing no.40, Madangir Village, New Delhi and 1/3rd share each in Shop no.70, Bhagat Singh Market, Near Gole Market, New Delhi. 1.4 The properties which fell to the share of plaintiff, defendant no.1 and 5 are in the joint possession and since there has been cordial relationship amongst the three brothers, there was no dispute as to who shall look after the said properties. However, on 13.09.2010 defendant no.1 with an intention to grab the share of plaintiff in the said shop, lodged a false CS DJ No.207198/16 Page No.3/ 12 Harish Chand Grover v. Dharam Vir Grover & Ors.
complaint against the plaintiff, his wife and son for an offence U/Sec.308/325/34 IPC to build pressure upon him so that he may not claim his share in the shop and the house.
1.5 The market value of H. No.40, Village Mandangir, New Delhi is Rs.72,16,829/ and the value of Shop No.70, Bhagat Singh Market, Near Gole Market, New Delhi is Rs.1,00,95,540/ and upon which fixed Court fees has been paid. It is stated that the plaintiff is continuously demanding partition of the house and the shop but the defendants are avoiding the same on one pretext or the other. Hence, the present suit for partition seeking partition of the aforesaid properties.
2. Summons of the suit were issued to all the defendants, however, only defendant no.1 filed the written statement and rest all the defendants were proceeded exparte.
2.1 Written statement was filed by defendant no.1 interalia taking preliminary objections that the suit is not properly valued for the purpose of Court fees and jurisdiction, the court lacks pecuniary jurisdiction to try the present suit as the value of the properties are more than Rs.20,00,000/ and that the suit is bad for nonjoinder of parties as the plaintiff has failed to join the subsequent owner of the suit shop. 2.2 However, on merits, the averments made by the plaintiff have been substantially admitted except with regard to the share of plaintiff and defendants in Shop No.70, Bhagat Singh Market, Near Gole Market, CS DJ No.207198/16 Page No.4/ 12 Harish Chand Grover v. Dharam Vir Grover & Ors.
New Delhi. As regards the said shop, it has been stated that in the year 2000, the plaintiff and the defendant had relinquished their share in Shop No.70, Bhagat Singh Market, Near Gole Market, New Delhi, in favour of defendant no.1 vide Relinquishment Deed dated 14.12.2000 duly registered in the Office of SubRegistrarII, and the defendant no.1 had paid a sum of Rs.15,00,000/ to the plaintiff to compensate him for the said relinquishment. Thus, after the said relinquishment, the plaintiff and defendants have no right, title or interest in the said shop and he became the absolute owner of the said shop. The shop was later on got mutated in the name of defendant no.1 and was thereafter sold to one Smt. Shashi Bala Gupta. Hence, the defendant no.1 is no more in possession of the said shop. Further, with regard to H. No.40, Mandangir Village, New Delhi, it has been stated that the said house has already been partitioned and no cause of action for partition of the same arises now. Dismissal of the suit has been sought.
3. Replication was filed by the plaintiff reiterating the averments made in the plaint and denying the contrary averments made in the written statement. The plea of execution of Relinquishment Deed vizaviz the suit shop, has been categorically denied. It has been added that the present suit has been filed on 22.07.2001 and defendant no.1 had entered into Agreement to Sell with Smt. Shashi Bala Gupta for the sale of the said shop on 01.08.2001 - just after eight days from the date of CS DJ No.207198/16 Page No.5/ 12 Harish Chand Grover v. Dharam Vir Grover & Ors.
filing of the present suit and the same clearly shows the intention of the defendant no.1 to grab the share of the plaintiff in the suit property.
4. Upon completion of the pleading, on 05.12.2016 the following issues were settled in the suit:
1. Whether the plaintiff has relinquished his share in the suit property in favour of defendant no.1? OPD1
2. Whether the present suit has not been properly valued for the purpose of court fee and jurisdiction? OPD
3. Whether this court is not having pecuniary jurisdiction? OPD
4. Whether the suit is bad for nonjoinder and misjoinder of the parties? OPD
5. Whether the plaintiff is entitled for a decree of partition, as prayed for? OPP
6. Relief.
5. In support of his case, the plaintiff has examined himself as PW1 and no other witness has been examined. In lieu of his examinationinchief he has deposed by way of affidavit Ex.PW1/A, wherein he has reiterated the case set forth in the plaint and has relied upon the following documents:
i. MarkA - Copy of sale deed of property bearing H. No.40, village Madangir, New Delhi.
ii. MarkB - Copy of Will dated 24.05.1990 in Urdu language. iii. MarkC - Copy of Will dated 24.05.1990 in Hindi language. iv. Ex.PW1/4 - Site Plan of Shop no.70, Bhagat Singh Market, Near Gole Market, New Delhi.
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v. Ex.PW1/5 - Site Plan of H. No.40, village Madangir, New Delhi. However, no defence evidence was led despite opportunities being granted. Hence, right to lead evidence was closed and the matter was posted for final arguments.
6. Final arguments addressed by Ld. Counsel Sh. Rakesh Kumar for plaintiff were heard and record carefully perused.
7. Discussion on Issues:
ISSUE No.5 : Whether the plaintiff is entitled for a decree of partition, as prayed for? OPP Before taking up issues no.1 to 4 - onus whereof is upon the defendant, I deem it appropriate to take up issue no.5 as the question of entitlement of plaintiff to partition involves an important legal aspect as to the construction, execution and proof of Will - whereupon he has based his case.
Precisely speaking, the case of the plaintiff is that he is seeking partition of the properties on the basis of Will of his father namely Late Sh. Fateh Chand Grover executed on 24.05.1990. Thus, before adverting further it becomes imperative to assess -
(i) firstly, whether the said Will has been properly executed by the Testator and;
(ii) secondly, whether it has been proved as per law.
Now, the mode and manner of execution of Will is provided by Sec.63 of The Indian Succession Act, 1925 and the manner of proof thereof is provided U/Sec.68 of The Indian Evidence Act, 1872. The said Sections reads as under: CS DJ No.207198/16 Page No.7/ 12
Harish Chand Grover v. Dharam Vir Grover & Ors.
"Sec.63 of The Indian Succession Act, 1925
63. Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1[or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
(underlining mine) Sec.68 of The Indian Evidence Act, 1872
68. Proof of execution of document required by law to be attested.- If a document is required by law to be CS DJ No.207198/16 Page No.8/ 12 Harish Chand Grover v. Dharam Vir Grover & Ors.
attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
3
[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]" (underlining mine) A conjoint reading of the said Sections makes it crystal clear that a Will has to be mandatorily attested by at least two witnesses and one of them should step into the witness box to prove the same.
Reverting to the facts of the case. At the outset, I may note that the Will was executed by Late Sh. Fateh Chand Grover in Urdu and a translated version thereof in Hindi has also been filed on record. Also, the original Will has never seen the light of the day as it has not been produced on court record by either of the parties. Only photocopy of the Will (in Urdu) is existing in record filed by the plaintiff and is Mark C. Further on perusal of the Will I have also noticed that it has not been attested by any witness. As the law mandates that the said document should be attested by at least two witnesses and in the case herein the Will Mark C is not attested by even a single witness, the execution of the Will by itself is defective.
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Delving further, on the second aspect with regard to proof of the Will, Sec.68 of The Indian Evidence Act, reproduced herein above, clearly states that the documents which are required by law to be attested cannot be used in evidence unless one attesting witness, if alive, has been called for the purpose of proving the execution of the document. Further, the proviso to the said Section which relaxes the requirement of proof of the said documents in certain cases specifically excludes Will, meaning thereby that even if there is no dispute with regard to execution of the Will, then also, it is required to be proved as per law.
Thus, the same being the law regarding proof of Will, the defendant in the case herein though has not disputed the execution of the Will, still in the absence of the Will being proved as per law, the same cannot be considered. In other words, in absence of Will being proved as per law, the claim of the plaintiff for partition on the strength of the Will, has to necessarily fail.
Ld. Counsel for the plaintiff has also argued that the said document i.e. Will Mark C, if found, short of a Will can be construed as a family settlement. However, I do not find any strength in the said argument in as much as firstly, the said document was purported to be a Will as the heading of the said document calls it a 'Vasiatnama' i.e. a Will. Secondly, a family settlement has different parameters. It has to be a settlement interse the family members interested in settlement and duly signed by them. Now, the document Mark C does not contain the signatures of any of the family members/parties to the suit CS DJ No.207198/16 Page No.10/ 12 Harish Chand Grover v. Dharam Vir Grover & Ors.
herein. Rather, a reading of the same makes it apparent that it is a document executed solely by Late Sh. Fateh Chand Grover bequeathing the property owned by him. Hence, by no stretch of imagination, this document can be construed to be a family settlement between the parties.
Thus, in view of the aforesaid discussion, I hold that document Mark C fails to pass the test of a legally admissible Will as contemplated under Indian Evidence Act. At the most, this document appears to be a rough draft of a Will. Since the suit for partition has been filed on the basis of Will, which the plaintiff has failed to prove as per law, he is not entitled to a decree of partition.
Issue accordingly stands decided against the plaintiff. ISSUE No.1 : Whether the plaintiff has relinquished his share in the suit property in favour of defendant no.1? OPD1 and ISSUE No.2 : Whether the present suit has not been properly valued for the purpose of court fee and jurisdiction? OPD and ISSUE No.3 : Whether this court is not having pecuniary jurisdiction? OPD and ISSUE No.4 : Whether the suit is bad for nonjoinder and misjoinder of the parties? OPD In view of my finding on issue no.5 above, since the plaintiff has not been able to prove the very basis on which the suit has been filed and thus, his entitlement to a decree of partition has been declined, these issues - framed upon the objections of the defendant, in my opinion, do not require any further CS DJ No.207198/16 Page No.11/ 12 Harish Chand Grover v. Dharam Vir Grover & Ors.
discussion.
8. Relief:
In view of my aforesaid discussion, the suit of the plaintiff stands dismissed. No order as to cost. Decreesheet be prepared accordingly. File be consigned to Record Room after necessary compliance.
Announced in the Open Court (Shunali Gupta)
Dated: 27.08.2018 Addl. District Judge(06)
Digitally
South Distt. Saket Courts,
signed by New Delhi.
SHUNALI
SHUNALI GUPTA
GUPTA Date:
2018.08.27
16:41:27
+0530
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Harish Chand Grover v. Dharam Vir Grover & Ors.