Delhi District Court
Sh. Uttam Chand Aggarwal vs Sh. Arun Kumar Aggarwal on 2 July, 2014
IN THE COURT OF SHRI RAJ KUMAR: ADDL. DISTRICT
JUDGE17: TIS HAZARI COURTS : DELHI
Suit No. 353/14 (Old Suit No. 560/08)
Unique Case ID No. 02401C1003572008
Sh. Uttam Chand Aggarwal,
S/o Late Sh. Bhajori Lal Aggarwal,
R/o 7/10, Darya Ganj,
4462, Gupta Lane(First floor),
New Delhi - 110 002 ........... Plaintiff.
VERSUS
1. Sh. Arun Kumar Aggarwal,
S/o Late Sh. Bhajori Lal Aggarwal,
R/o 7/10, Darya Ganj,
4462, Gupta Lane(First Floor),
New Delhi - 110 002
2. Sh. Rajan Kumar Aggarwal,
S/o Late Sh. Bhajori Lal Aggarwal,
R/o B 50, Alkapuri, Bhopal(MP)
3. Sh. Ravi Aggarwal,
S/o Late Sh. Bhajori Lal Aggarwal,
R/o 5A/12, 2nd floor, Darya Ganj,
Ansari Road, New Delhi - 02
4. Sh. Chaman Lal Jindal,
(Husband of Late Smt. Pushpa Jindal,
Suit No. 353/14 (Old Suit No. 560/08) Page No. 1/18
predeceased daughter of Smt. Savitri Devi Aggarwal)
K19, 2nd floor, Green Park Main,
New Delhi - 110 016
5. Sh. Hemant Jindal
S/o Sh. Chaman Lal Jindal,
56, Munrika Enclave,
Nelson Mandela Marg,
New Delhi - 110 067
6. Ms. Ruchika Jindal,
D/o Sh. Chaman Lal Jindal,
I 203, Spring Field Apartments,
Bellandur Gate, Banglor560 102
Karnataka ........ Defendants.
Date of institution of the suit : 23.07.2008
Date on which order was reserved : 31.05.2014
Date of decision : 02.07.2014
SUIT FOR PARTITION AND INJUNCTION
JUDGMENT
The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that Smt. Savitri Devi Aggarwal W/o Sh. Bhajori Lal Aggarwal was the mother of the parties to the present suit, who expired on 05.10.1997 leaving behind four Suit No. 353/14 (Old Suit No. 560/08) Page No. 2/18 sons namely Sh. Ravi Kumar Aggarwal, Sh. Rajan Kumar Aggarwal, Sh. Uttam Chand Aggarwal and Sh. Arun Kumar Aggarwal. It has been further stated that Sh. Bhajori Lal Aggarwal, the husband of Smt. Savitri Devi Aggarwal and Ms. Pushpa had predeceased her. It has been further stated that Smt. Savitri Devi Aggarwal was the owner of the property bearing no. 7/10, Darya Ganj, 4462, Gupta Lane, (first floor), New Delhi
- 110 002 and she was also the partner of the firm M/s Ganesh Cycle Store carrying on the business at Cycle Market, Esplanade Road, Delhi - 110 006. It has been further stated that by her last Will and Testament dated 03.10.1995, Smt. Savitri Devi Aggarwal bequeathed the capital in the partnership firm i.e M/s Ganesh Cycle Store to her two sons namely Sh. Ravi Kumar Aggarwal and Sh. Arun Kumar Aggarwal equally. It has been further stated that by the same Will, she bequeathed her property bearing no. 7/10, Darya Ganj, 4462, Gupta Lane, New Delhi - 110 002 in favour of the plaintiff and the defendant equally. It has been further stated that the said house consists of ground floor, first floor and one room at the second floor. It has been further stated that the defendant is in possession of the ground floor and only a room at the second floor, whereas the plaintiff is in possession of the first floor. It has been further stated that the open space on the second floor and terrace over the room on the second floor are commonly used by both the plaintiff and the defendant. It has been further stated that after the death of Smt. Savitri Suit No. 353/14 (Old Suit No. 560/08) Page No. 3/18 Devi Aggarwal, the plaintiff and the defendant have been acting as a joint owners of the said property, which has not been partitioned so far. It has been further stated that it was not feasible to hold the property jointly and as such, the plaintiff requested the defendant several times to partition the suit property by metes and bounds. It has been further stated that the defendant did not accede to the said request of the plaintiff and rather, the defendant stated that he could sell off the ground and the second floor of the said property without the consent and permission of the plaintiff. It has been further stated that the plaintiff served a legal notice dated 07.03.2008 upon the defendant calling upon him to propose a viable scheme of the partition, but the defendant, instead of, complying with the same, sent a false and frivolous reply dated 14.03.2008. The plaintiff has alleged that the defendant wants to grab the entire property except the first floor, which is in possession of the plaintiff. It has been further stated that the plaintiff has been using the open area on the first floor and the terrace over and above the second floor as common area. It has been further stated that in the month of June 2008, the plaintiff came to know that the defendant was negotiating with the property dealers to sell off the second floor of the suit property without any consent of the plaintiff and without giving any share to the plaintiff. It has been further stated that on 15.07.2008, the plaintiff noted that some third persons had come to see the second floor of the property in question. It has been further stated Suit No. 353/14 (Old Suit No. 560/08) Page No. 4/18 that the plaintiff has no other alternative remedy except to file the present suit.
2. On the basis of the abovesaid allegations as contained in the plaint, the plaintiff has prayed for a preliminary decree of partition in favour of the plaintiff and against the defendant thereby declaring that the plaintiff is entitled to 50 % share in property no. 7/10, Darya Ganj, 4462, Gupta Lane, (first floor), New Delhi - 110 002. The plaintiff has further prayed for the appointment of a Local Commissioner after passing of the preliminary decree of the partition for suggesting the ways and means to partition the suit property by metes and bounds and on acceptance of the report of the Local Commissioner, the parties may be put in possession of their respective shares in the suit property. The plaintiff has further prayed for a decree of Permanent Injunction in favour of the plaintiff and against the defendant thereby restraining the defendant from selling, assigning or otherwise parting with possession of the suit property no. 7/10, Darya Ganj, 4462, Gupta Lane, (first floor), New Delhi to any third party or from creating any third party interest in the said property. The plaintiff has also prayed for the costs of the suit.
3. Written statement has been filed on record by the defendant stating therein that the present suit is false and frivolous and the same has been filed by the plaintiff with a view to extort the money from the defendant. It has been further stated that the plaintiff has concealed the Suit No. 353/14 (Old Suit No. 560/08) Page No. 5/18 material facts from this Court. It has been further stated that the plaintiff is seeking execution of the Will dated 03.10.1995 executed by Smt. Savitri Devi Aggarwal through the present suit for Partition and Injunction. It has been further stated that the execution of the Will can only be sought through a Probate case and not by the present suit for Partition and Injunction. It has been further stated that the present suit is barred by the law of the limitation because the suit property has already been divided and partitioned on 05.10.1997 i.e. upon the expiry of Smt. Savitri Devi Aggarwal.
4. On merits, the defendant has admitted the relationship, the death of Smt. Savitri Devi Aggarwal and the Will dated 03.10.1995 executed by Smt. Savitri Devi Aggarwal as her last Will. The defendant has further admitted that the capital in the partnership firm M/s Ganesh Cycle Store was bequeathed by late Smt. Savitri Devi Aggarwal to her two sons namely Sh. Ravi Kumar Aggarwal and Sh. Arun Kumar Aggarwal in equal proportions. However, the defendant has denied that the house in question was bequeathed equally in between the plaintiff and the defendant. It has been further stated that by virtue of the said Will, the ground floor and the second floor was given to the defendant, whereas the first floor was given to the plaintiff. The defendant has relied upon para no.3 of the Will dated 03.10.1995. The defendant has admitted that the said house is consisting of the ground floor, first floor Suit No. 353/14 (Old Suit No. 560/08) Page No. 6/18 and a room at the second floor. The defendant has admitted that the plaintiff is in possession of the first floor, whereas the defendant is in possession of the ground floor and the second floor. However, the defendant has denied that any space of the terrace at the second floor of the said property is being used/ possessed by the plaintiff jointly. The defendant has denied that the plaintiff and the defendant have been acting as joint owners of the property. The defendant has denied that the property has not been partitioned so far. It has been further stated that the ground floor and the second floor of the said house is in exclusive possession of the defendant, whereas the first floor is in exclusive possession of the plaintiff in accordance with the Will dated 03.10.1995. It has been further stated that being the sole owner of the ground floor and the second floor of the said property, the defendant has all the right, title and interest to dispose off the property, which has fallen to the share of the defendant. The defendant has admitted the receipt of the legal notice dated 07.03.2008 and its reply dated 14.03.2008. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed with costs.
5. Replication has been filed on record by the plaintiff reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement filed by the defendant.
6. From the pleadings of the parties, the following issues were Suit No. 353/14 (Old Suit No. 560/08) Page No. 7/18 framed by my Ld. Predecessor vide orders dated 09.09.2009 :
1) Whether the suit of the plaintiff is barred by limitation? OPD.
2) Whether deceased Late Smt. Savitri Devi Aggarwal had executed a valid and legally sustainable Will dated 03.10.1995? If so, its effect?OPP.
3) Whether the plaintiff is entitled for partition of the suit property, as claimed in the plaint?OPP.
4) Whether the plaintiff is entitled for 50% share of the suit property No. 7/10, Darya Ganj, 4462, Gupta Lane, (first floor), New Delhi?OPP.
5) Relief.
EVIDENCE :
7. The plaintiff has examined himself as PW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record his evidence by way of affidavit as Ex. PW1/A, the certified copy of the sale deed in respect of 1/4th share of the property in favour of Smt. Savitri Devi as Ex.
PW1/1, the certified copy of the gift deed in favour of Smt. Savitri Devi in respect of the rest of the property as Ex. PW1/2, photocopy of the Will dated 03.10.1995 as Ex. PW1/3, site plan as Ex. PW1/4, copy of the legal Suit No. 353/14 (Old Suit No. 560/08) Page No. 8/18 notice dated 07.03.2008 as Ex. PW1/5, postal receipt and UPC receipt thereof as Ex. PW1/6 & Ex. PW1/7, original AD card as Ex. PW1/8, original reply dated 14.03.2008 as Ex. PW1/9 and the original envelope thereof as Ex. PW1/10.
8. In the crossexamination, PW1 states that he has one sister and three brothers.
9. In the further crossexamination done on 16.05.2012, PW1 states that they are four brothers and one sister. PW1 further states that his brothers are Sh. Rajan Aggarwal, Sh. Ravi Aggarwal. PW1 further states that Ms. Pushpa Jindal was his sister and she is no more. PW1 further states that he himself and his brother Sh. Arun are residing in the property. PW1 further states that he does not remember if he has filed the original Will on record. PW1 further states that Ex. PW1/3 is the same Will, which he placed on record. PW1 denies the suggestion that he has filed the false suit claiming half share in the property. PW1 denies the suggestion that as per the Will Ex. PW1/3, he is not entitled to half share of the property.
10. The defendant has examined himself as DW1 and in his evidence by way of affidavit Ex. DW1/A on record, he has reiterated and reaffirmed the stand as taken by the defendant in the written statement. This witness has filed on record his affidavit as Ex. DW1/A.
11. DW1 i.e. the defendant in his crossexamination states that Suit No. 353/14 (Old Suit No. 560/08) Page No. 9/18 no separate document was written on 05.10.1997 or thereafter about partition of the suit property. DW1 denies the suggestion that the suit property was never partitioned or has not been partitioned till date. DW1 admits it to be correct that the property has to be divided in accordance with the last Will Ex. PW1/3 of their mother Smt. Savitri Devi Aggarwal. DW1 denies the suggestion that the suit property was given to him and the plaintiff 5050. By way of volunteer, DW1 states that the first floor was given to the plaintiff, ground floor and 2nd floor was given to him in the Will. DW1 admits it to be correct that Sh. Ravi Kumar Aggarwal and Sh. Rajan Kumar Aggarwal are not having any share in the suit property as mentioned in the Will. DW1 admits it to be correct that despite that Sh. Ravi Kumar Aggarwal and Sh. Rajan Kumar Aggarwal executed relinquishment deed in his favour with respect to the suit property. DW1 further admits it to be correct that on the 2nd floor, there is one room, one kitchen and terrace in the suit property. DW1 denies the suggestion that the terrace on the 2nd floor is common. By way of volunteer, DW1 states that the entire 2nd floor is in his possession. DW1 denies the suggestion that he locked the 2nd floor only after filing of the written statement in this case. By way of volunteer, DW1 states that his lock was there even before that since the date of death of his mother. DW1 denies the suggestion that the plaintiff is entitled to 50% share in the suit property.
12. I have carefully gone through the entire material available on Suit No. 353/14 (Old Suit No. 560/08) Page No. 10/18 record and heard the rival submissions of Ld. counsels for both the parties. Both the parties have filed on record their written final arguments as well. I have also carefully gone through the written final arguments filed on record by the both the parties.
13. My issuewise findings on the abovesaid issues are as under:
Issues No. 1 :
14. The defendant has taken an objection in the written statement that the suit property was partitioned on 05.10.1997 as per the last Will and Testament dated 03.10.1995 of Smt. Savitri Devi Aggarwal, the mother of the parties to the present suit and as such, the present suit for partition and injunction is barred by the law of limitation. It has to be seen that the plaintiff has categorically asserted in the plaint that the suit property has not been partitioned at all and the suit property has been held jointly by both the parties. The defendant has admitted the receipt of the legal notice dated 07.03.2008 and the reply dated 14.03.2008 sent by the defendant to the above said legal notice of the plaintiff. As such, I am of the opinion that the defendant has failed to show as to how the present suit is barred by the law of limitation. Accordingly, this issue is decided against the defendant and in favour of the plaintiff. Issue no. 2 :
Suit No. 353/14 (Old Suit No. 560/08) Page No. 11/18
15. So far as the Will dated 03.10.1995 executed by Smt. Savitri Devi Aggarwal, the mother of the parties to the present suit is concerned, the same is not in dispute. The defendant in clearcut and unequivocal term has admitted that the said Will dated 03.10.1995 is the last Will and Testament executed by the mother of the parties to the present suit. As such, I am of the opinion that the plaintiff has been able to prove that Smt. Savitri Devi Aggarwal had executed a valid and legally sustainable Will dated 03.10.1995. Accordingly, this issue is decided in favour of the plaintiff.
Issues no. 3 & 4 :
16. The onus to prove the abovesaid issues has been placed upon the plaintiff. Both these issues are taken up together as the same are connected interse, overlap each other and relate to the prayer clause of the present suit.
17. The factual controversy involved in the present suit is within a narrow compass. It is not in dispute that the plaintiff and the defendant are the brothers. It is not in dispute that Smt. Savitri Devi Aggarwal, the mother of the parties to the present suit executed her last Will dated 03.10.1995. The crux of the controversy involved in the present suit is with respect to the Clause no. 3 of the said Will dated 03.10.1995. By virtue of the Clause no. 3 of the said Will, the house bearing no. 7/10, Suit No. 353/14 (Old Suit No. 560/08) Page No. 12/18 Darya Ganj, 4462, Gupta Lane, New Delhi was bequeathed by the testator. The controversy is with respect to the paragraph no. 3 of the said Will.
18. In the written final arguments, Ld. Counsel for the plaintiff has argued that by virtue of the said paragraph no. 3 of the said Will Ex. PW1/3 on record, the house has to be divided equally in between the plaintiff and the defendant. It has been further argued by the Ld. Counsel for the plaintiff that the defendant is trying to misinterpret the abovesaid para of the Will, which only shows the manner, in which the plaintiff and the defendant were residing in the property at the relevant time. It has been further argued that the open space at the second floor and the terrace and a room at the second floor have always commonly used by the plaintiff and the defendant. It has been further argued that after filing of the written statement, the defendant with malafide intention put a lock on the terrace to the second floor to prevent the plaintiff from using the open space at the second floor. It has been further argued that the property has never been partitioned as falsely sought to be portrayed by the defendant. It has been further argued that the defendant got executed the Relinquishment Deeds from other two brothers Sh. Ravi Kumar Aggarwal and Sh. Rajan Kumar Aggarwal in his favour in respect of the suit property, which shows that the defendant had been keeping an evil eye on the half undivided share of the plaintiff in the suit property. It has Suit No. 353/14 (Old Suit No. 560/08) Page No. 13/18 been further argued that the said relinquishment deeds have been exhibited as Ex. PW1/11 and Ex. PW1/12. It has been argued that the plaintiff has been able to prove his case.
19. Whereas, on the other hand, in the written final arguments filed on record by the defendant, the defendant has reiterated the abovesaid stand that the property in question was already partitioned on 05.10.1997 after the expiry of Smt. Savitri Devi Aggarwal in accordance with the Will dated 03.10.1995. Ld. Counsel for the defendant has relied upon an authority cited as FAO No. 577 of 2002 titled as Rohtas Singh V. State & Ors., wherein, the Hon'ble High Court of Delhi has held as under :
".........it is also necessary to state that the courts do not sit in the armchair of the testator to decide whether what he actually bequeathed by the Will ought to have been done i.e. whether certain heirs should not be wholly or partially disinherited. Courts do not go into the moral aspects of the matter as to whether the deceased testator was or was not justified for his reasons in favouring one or more legal heirs as compared to other legal heirs. If the court is otherwise satisfied that there is due execution and attestation of the Will by a person of sound disposing mind and there are found no suspicious/ unnatural circumstances, probate of Suit No. 353/14 (Old Suit No. 560/08) Page No. 14/18 the Will is to be granted, in as much as, a Will is proved like any other document. As already stated above, in the present case the Will is duly proved, both by the attesting witnesses and with a notable point that the Will is a registered Will...."
20. Para no. 3 of the Will dated 03.10.1995 Ex. PW1/3 on record is not disputed. The said paragraph no. 3 reads as under :
"I hereby bequeath that after my death, my sons Shri Ravi Kumar Aggarwal and Arun Kumar Aggarwal inherit equally my capital in the partnership firm M/s Ganesh Cycle Store. My house situated at 7/10, Darya Ganj, 4462, Gupta Lane, New Delhi110002 shall be inherited by my sons Sh. Argun Kumar Aggarwal & Uttam Chand Aggarwal who are living with me as under :
1. Ground Floor & Second Floor Shri Arun Kumar Aggarwal
2. First Floor Sh. Uttam Chand Aggarwal
21. The vital question to be considered by this Court is as to whether the interpretation as given by the plaintiff to the abovesaid para no. 3 of the said Will is the correct interpretation or the interpretation as has been given by the defendant to the said paragraph no. 3 is the correct and plausible interpretation.
22. The settled law is that if on a plain reading of a document or Suit No. 353/14 (Old Suit No. 560/08) Page No. 15/18 a statute, its natural and literal meaning can be given to it, the said document or the statute must be interpreted according to its natural meaning. Ld. Counsel for the plaintiff has argued that the said paragraph no. 3 of the said Will Ex. PW1/3 describes the meaning in which the parties to the present suit were residing in the said house and as such, it has been mentioned that the defendant was in possession of the ground floor or the second floor, whereas, the plaintiff was in possession of the first floor. It has been argued that however, the said house has to be partitioned equally. It has been further argued that the capital in the partnership firm M/s Ganesh Cycle Store has also been directed to be divided equally amongst Sh. Ravi Kumar Aggarwal and Sh. Arun Kumar Aggarwal.
23. I am of the opinion that if the said paragraph no. 3 of the said Will Ex. PW1/3 on record is given its plain and literal meaning, the submission of the Ld. Counsel for the plaintiff is fallacious. I have no hesitation to hold that Ld. Counsel for the plaintiff has wrongly argued that the said paragraph no. 3 of the said Will merely describes the state of residence and the state of possession of the parties to the present suit with respect to the house in question. It has to be seen that with respect to the capital in the partnership firm M/s Ganesh Cycle Store, it has been specifically directed that the capital has to be divided equally amongst Sh. Ravi Kumar Aggarwal and Sh. Arun Kumar Aggarwal, the two sons Suit No. 353/14 (Old Suit No. 560/08) Page No. 16/18 of the deceased Smt. Savitri Devi Aggarwal. So far as the house in question is concerned, it has been specifically stated that Sh. Arun Kumar Aggarwal i.e. the defendant herein shall have the ground floor and the second floor, whereas, Sh. Uttam Chand Aggarwal i.e. the plaintiff herein shall have the first floor. To my mind, to interpret the said paragraph no. 3 of the said Will in any other manner will lead to the fallacious interpretation. Had the intention of the testator been to divide the house equally, the same must have been mentioned in clearcut and unequivocal terms as has been done by the testator in the case of the capital of M/s Ganesh Cycle Store. The settled law is that the intention has to be gathered from the Will and the same has to be given effect to. I have no hesitation to hold that the intention of the testator is writ large on the face of the said Will Ex. PW1/3 so far as the house in question is concerned.
24. Ld. Counsel for the plaintiff has further argued that the defendant has not been able to prove that the partition of the said house has already been done on 05.10.1997. Be that as it may. It is not in dispute that the plaintiff is in exclusive possession of the first floor and the defendant is in possession of the ground floor and the second floor of the said house. I am of the opinion that the plaintiff has not been able to prove by way of cogent and reliable testimony that the terrace over the second floor is being used jointly by the plaintiff. I have no hesitation to hold that the plaintiff has failed to prove that the property is being jointly Suit No. 353/14 (Old Suit No. 560/08) Page No. 17/18 held by the parties to the present suit.
25. Ld. Counsel for the plaintiff has further argued that the Relinquishment Deeds Ex. PW1/11 and PW1/12 were got executed by the defendant because the defendant was having an evil eye over the property in question. I am of the opinion that the Relinquishment Deeds Ex. PW1/11 and Ex. PW1/12 are not the subject matter of the present suit.
26. In the light of the abovesaid discussions, I have no hesitation to hold that the plaintiff has utterly failed to prove both the abovesaid issues in his favour. Accordingly, both the abovesaid issues i.e. issues no. 3 and 4 are hereby decided against the plaintiff.
Relief :
27. In the light of my findings on the abovesaid issues no. 3 and 4, the suit of the plaintiff is hereby dismissed. No orders as to costs.
Decree sheet be prepared accordingly by the Reader.
File be consigned to Record Room after due compliance.
Announced in the open court (RAJ KUMAR)
on this 02nd day of July 2014. ADJ17 (Central)
Tis Hazari Courts, Delhi.
Suit No. 353/14 (Old Suit No. 560/08) Page No. 18/18