Delhi District Court
Ms. Priyam Batra Ors vs Navketan Corporation Group Housing ... on 22 November, 2024
DLST010001652009
In the Court of Sh. Munish Bansal,
District Judge-03 (South District),
Saket Courts Complex, New Delhi.
CS No.: 7703/2016
In the matter of :-
Ms. Sonakshi Batra,
D/o Late Sh. Vipin Batra,
R/o Flat no. B-3/73, Azad Apartments,
Aurbindo Marg,
New Delhi- 110016. .......Plaintiff
Versus
1. Navketan Cooperative Group Housing Society Ltd.,
Through its Secretary,
Azad Apartments, Aurbindo Marg,
New Delhi - 110016.
2. Ram Milan Dubey,
Sai Mandir, Rana Pratap Road,
Karol Bagh, New Delhi- 110005.
Through Legal heirs/ representatives
a) Smt. Prana Devi,
W/o Late Sh. Ram Milan Dubey,
R/o Village & Post Office Ugharpur,
District Sultanpur, Digitally
signed by
U.P. - 228001. MUNISH
MUNISH
BANSAL
BANSAL Date:
2024.11.22
17:49:18
+0530
CS/7703/2016 & 97/2011 Page 1 of 58
b) Sh. Mata Prasad Dubey,
S/o Late Sh. Ram Milan Dubey,
R/o Village & Post Office Ugharpur,
District Sultanpur,
U.P. - 228001.
c) Smt. Manorama Pandey,
D/o Late Sh. Ram Milan Dubey,
R/o Village & Post Office Ugharpur,
District Sultanpur,
U.P. - 228001. ......Defendants
Date of institution : 13.10.2009
Arguments heard on : 08.11.2024
Date of decision : 22.11.2024
COUNTER-CLAIM
CS No. 97/2011
Sh. Mata Prasad Dubey,
S/o Late Sh. Ram Milan Dubey @ Guruji,
R/o Village & Post Office Ugharpur,
District Sultanpur,
U.P. - 228001.
Alternate Address:-
Sai Mandir,
Rana Pratap Market,
Deshbandhu Gupta Road,
Karol Bagh, New Delhi ... Counter Claimant
Versus
1. Smt. Priyam Batra,
W/o Late Sh. Vipin Batra,
R/o Flat no. B-3/73, Azad Apartments,
Aurbindo Marg, Digitally
signed by
New Delhi- 110016.
MUNISH
MUNISH BANSAL
BANSAL Date:
2024.11.22
17:49:35
+0530
CS/7703/2016 & 97/2011 Page 2 of 58
2. Ms. Sonakshi Batra,
D/o Late Sh. Vipin Batra,
R/o Flat no. B-3/73, Azad Apartments,
Aurbindo Marg,
New Delhi- 110016. ....... Defendants
Date of institution : 20.10.2011
Arguments heard on : 08.11.2024
Date of decision : 22.11.2024
SUIT FOR DECLARATION AND
PERMANENT INJUNCTION
JUDGMENT
FACTS of CS DJ no. 7703/2016
1. The present suit was initially filed by plaintiffs namely Smt. Priyam Batra and Ms. Sonakshi Batra. On summons, defendants appeared and filed their respective written statements. Subsequently, amendment of plaint was allowed vide order dated 01.01.2012 and amended plaint was filed by the original plaintiffs. To the said amended plaint, amended written statement was filed on behalf of defendant no.2. However, defendant no.1 chose not to file amended written statement.
1.1. During the course of trial, plaintiff no.1 expired and after the demise of plaintiff no.1, name of the said plaintiff was deleted from the array of parties vide order dated 10.11.2014 and thereafter, the suit is contested solely by plaintiff no.2 being sole legal heir of plaintiff no.1 Smt. Priyam Batra. Digitally signed by MUNISH BANSAL MUNISH Date:
BANSAL 2024.11.22 17:49:51 +0530 CS/7703/2016 & 97/2011 Page 3 of 58 1.2. Facts as averred in the amended plaint are that Late Mohinder Kumari Sood, D/o Late V.K. Sood was the allottee of Flat no. B-3/73, Azad Apartments, Aurbindo Marg, New Delhi-
110016, comprising of 2 bedrooms, drawing, dining and kitchen, lobby, study room, bathroom etc., as shown in site plan (hereinafter referred to as the suit property). Ms. Mohinder Kumari was unmarried having no issue and died on 20.08.2009. Late B.K. Sood, grand maternal father of Late Vipin Batra (father of plaintiff) had three daughters namely Ms. Mohinder Kumari Sood, Ms. Rama Sood and Smt. Rajinder Batra. Out of three daughters of Late B.K. Sood, Smt. Rajinder Batra got married with Capt. K.V. Batra who had only one son Sh. Vipin Batra. Two other daughters of Late B.K. Sood namely Ms. Mohinder Kumari Sood and Ms. Rama Sood did not get married and have no other legal heir/ relatives except Mr. Vipin Batra, being the only nephew and sole legal heir of three sisters under Hindu Succession Act, 1956. Late Mohinder Kumar Sood, out of natural love and affection treated Mr. Vipin Batra as her son and used to reside with Late Vipin Batra and his parents. Father of Late Sh. Vipin Batra was employed as Captain in Indian Navy, who got enrolled Late Mohinder Kumari Sood as a member of Defendant no.1 and being the member, she was allotted the suit property by defendant no.1 society. The cost of said flat was paid by grand- father of plaintiff, however, as per the records of defendant no.1 society, late Mohinder Kumari Sood was recorded as an allottee of suit property. Mohinder Kumari Sood nominated Sh. Vipin Batra as her nominee in the records of defendant no.1 society in respect of suit property and had addressed two letters dated Digitally signed MUNISH by MUNISH BANSAL BANSAL Date: 2024.11.22 17:50:08 +0530 CS/7703/2016 & 97/2011 Page 4 of 58 23.04.2001 and 04.01.2006 to the President of defendant no.1 society executing nomination of suit property in favour of Vipin Batra. In the letter dated 04.01.2006 to the defendant no.1 society, Mohinder Kumari Sood enclosed the nomination and also informed the defendant no.1 society about change of address of Vipin Batra from G-31, First Floor, Sector- 56, NOIDA, U.P. to Flat no. B-3/73, Azad Apts, Aurbindo Marg, New Delhi- 110016. Mohinder Kumari Sood had also executed a nomination in favour of Sh. Vipin Batra on non-judicial stamp paper duly witnessed by Shri Sunil C. Sharma and Sh. Ram Milan Dubey (defendant no.2) under the provisions of Section 26 of Delhi Coop. Society Act, dated 23.04.2001 and submitted the same to defendant no. 1 society. Plaintiff is residing in the suit property since June, 2004. Mohinder Kumari Sood also executed her last Will dated 05.06.2003 bequeathing the said flat in favour of Sh. Vipin Batra and said Will was witnessed by Ms. Gita Sharma and Sh. A.R. Sharma. Mohinder Kumari Sood was about 70 years old and was suffering from permanent hip bone fracture, hallucination, automierve nenlytic anemia, Right cervical lymph node cancer, Poor lung function and her memory also failed at the time of her death in August, 2009. Mohinder Kumari Sood had been suffering from mental illness and she used to hallucinate and for the said purpose, plaintiff had taken her to Vimhans Hospital in 2006 for her treatment. Mohinder Kumar Sood had also accidentally broken her hip bone and due to her injury, she was incapable of movement without assistance and she also used to consume heavy medication.
Digitally signed by MUNISHMUNISH BANSAL Date:
BANSAL 2024.11.22 17:50:21 +0530 CS/7703/2016 & 97/2011 Page 5 of 58 1.3. It is further stated that plaintiffs learnt that defendant no.2 was a Purohit/ Pandit and used to visit Mohinder Kumari Sood. Defendant no.2 took undue advantage of illness and weak sense of Mohinder Kumari Sood and in view of the fact that Mr. Vipin Batra was not keeping good health and was hospitalized in November/ December, 2008, took Mohinder Kumari Sood from her house and obtained her signatures on certain documents under undue influence, without explaining the contents of said documents to her. The defendant no.2 taking advantage of ill health of Mr. Vipin Batra, frequently visited the house of plaintiffs and started interfering with the affairs of family being Purohit/ Pandit in the family. Mr. Vipin Batra expired on 13.01.2009 and plaintiffs have been living alongwith Mohinder Kumari Sood taking care of her. On the death of Mohinder Kumari Sood on 20.08.2009, all her last rites and rituals were performed by the plaintiffs. Upon the death of Mohinder Kumari Sood, the plaintiffs became the absolute owner of suit property and all the movable properties left behind by Late Mohinder Kumari Sood being her only legal heirs. Thereafter, the plaintiffs applied for defendant no.1 society for mutation of suit property and furnished all the requisite documents required under Delhi Coop. Society Act and Rules. In response to said letter, the plaintiffs received reply dated 15.09.2009 from defendant no.1 society for providing further documents and also called upon to submit the application is prescribed form. After receipt of letter dated 15.09.2009, the plaintiffs visited office of defendant no.1 to provide prescribed form and for completion of formalities but they did not get any response.Digitally signed by MUNISH
MUNISH BANSAL Date:
BANSAL 2024.11.22 17:50:31 +0530 CS/7703/2016 & 97/2011 Page 6 of 58 1.4. It is further stated that the defendant no.2 had been actively moving in the defendant no.1's office alongwith some property dealers alleging that he has a Will of Late Mohinder Kumari Sood in his favour and has been intending to sell the suit property on the basis of said forged Will. The alleged Will dated 30.12.2008 by the legal heirs of defendant no.2 is a false and fabricated document as same does not mention her name and was procured under undue influence in order to grab the properties of Late Mohinder Kumari Sood. Late Mohinder Kumar Sood, who had been residing with plaintiffs and Mr. Vipin Batra, never disclosed about execution of any Will in favour of defendant no.2 during her lifetime. There were no reasons for Late Mohinder Kumari Sood to exclude the blood relations and legal heirs from her properties including the suit property and to execute Will in favour of third person.
1.5. It is further averred that Mr. Vipin Batra had been suffering from various ailments and was hospitalized in December, 2008 and January, 2009 and eventually died on 13.01.2009 and during the said period, plaintiffs used to be in hospital for most of the time. During the said period, the Purohit/ Pandit i.e. defendant no.2 Ram Milan Dubey found the opportunity to grab the property of Late Mohinder Kumari Sood and hatched a conspiracy with one Raman Sachdeva and Gaurav Rajpal, the local property dealers, and might have taken Late Mohinder Kumar Sood with dishonest intention and under undue influence to the office of Sub-Registrar for registration of alleged Will dated 30.12.2008. It is averred that Late Mohinder Kumari Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 17:50:45 +0530 CS/7703/2016 & 97/2011 Page 7 of 58 Sood suffered hip bone fracture 9 months before 30.12.2008 and was bed ridden and was incapable to move without medical and special assistance, went to Sub-Registrar's office to execute a Will in favour of defendant no.2, which clearly shows that her signatures were procured under suspicious circumstances. Even the certificate issued by the Sub-Registrar V is a procured document and it purports that some Will presented by some Sh./ Smt. Mahinder Kumari Sood. Therefore, the said Will cannot be acted upon.
1.6. On the above grounds, it is prayed that a decree of permanent injunction be passed thereby restraining defendant no.2, his agents, servants, employees etc. acting on his behalf to sell, transfer or deal with Flat no. B-3/73, Azad Apts., Aurobindo Marg, New Delhi- 110016. Plaintiff has also prayed for decree of permanent injunction thereby restraining the defendants from dispossessing the plaintiffs from the suit property. The plaintiffs have also prayed for decree of permanent injunction thereby restraining defendant no.1, its President, Secretary or any other officers from transferring, mutating or recording the name of defendant no.2 or his nominee, attorney etc, in records of defendant no.1 society. Plaintiffs have also prayed for decree of declaration thereby declaring Will dated 30.12.2008 as false, fabricated, null and void. Hence, this suit.
2. Summons of the suit were issued to the Defendants.
The same were duly served upon the defendants upon which the Defendants appeared and filed separate written statements.
Digitally signed by MUNISHMUNISH BANSAL BANSAL Date:
2024.11.22 17:50:55 +0530 CS/7703/2016 & 97/2011 Page 8 of 58 2.1. Defendant no.2, through his legal heirs, filed written statement stating therein that the plaintiffs have no locus standi to maintain the present suit being trespassers in the suit property;
that suit is bad for misjoinder of parties as plaintiffs are barred from representing to defendant no.1 society; that plaintiffs have not come with clean hands as Late Mohinder Kumari Sood had bequeathed the suit property to defendant no.2 Ram Milan Dubey (now deceased) vide Will which was duly registered before the Office of Sub-Registrar V on 30.12.2008; that suit is not maintainable against LRs of deceased defendant no.2 as the present suit involves a registered Will which is within the jurisdiction of Probate Court.
2.2. On merits, it is stated that no one looked after or took care of Late Mohinder Kumari Sood during her lifetime and specially after the death of Late Vipin Batra, the plaintiffs treated Late Mohinder Kumari Sood in a hostile manner and were only interested in usurping her properties. It is stated that Late Mohinder Kumari Sood was very close to defendant no.2 and used to consult him in almost every matter. It is further stated that plaintiffs are not legally entitled to make any representation to defendant no.1 as it cannot allot the suit property in name of plaintiffs, rather Sh. Mata Prasad, one of LRs of defendant no.2 has already applied to DDA for mutating the suit property in his name. It is denied that Late Mohinder Kumari Sood had executed any Will on 05.06.2003 in favour of Vipin Batra, who has died prior to Late Mohinder Kumari Sood, thus, the same, if any, is non-est and void. It is further stated that till the last day of her Digitally signed by MUNISH MUNISH BANSAL Date:
BANSAL 2024.11.22 17:51:05 +0530 CS/7703/2016 & 97/2011 Page 9 of 58 life, Mohinder Kumari Sood was mentally sound and that the Will dated 30.12.2008 was executed by her on her own free will and in sound mind. It is further stated that Mohinder Kumari Sood, even after the fracture of her hip bone, used to come and stay at Sai Mandir and was being looked after by defendant no.2. It is further stated that deceased defendant no. 2 was never a Purohit in his lifetime and had never been dealing with plaintiffs at any point of time, rather defendant no.2 was like brother to Late Mohinder Kumari Sood and he had provided mental and spiritual support to Mohinder Kumari Sood during her lifetime. In the last days of Late Mohinder Kumari Sood, she was physically and financially looked after by defendant no.2 as and when required. It is further stated that Late Mohinder Kumari Sood, before her death had written an undated letter to deceased defendant no.2 informing about the nefarious and illegal activities of plaintiffs and she apprehended that the plaintiffs wished to sell the suit property. It is further stated that LRs of defendant no.2 are in possession of signed copy of letter dated 06.06.2008 written by Mohinder Kumari Sood to the Executive Director of the Delhi Safe Deposit at 86, Janpath, New Delhi wherein Late Mohinder Kumari Sood requested that her locker not be opened by Vipin Batra and plaintiff no.1 during her lifetime. Since relations of Mohinder Kumari Sood were sour with Vipin Batra and plaintiffs, she bequeathed the suit property to deceased defendant no.2 during her lifetime.
2.3. It is further stated that defendant no.2 expired on 16.09.2009 and is survived by his wife, his son and one daughter Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 17:51:15 +0530 CS/7703/2016 & 97/2011 Page 10 of 58 and Smt. Prana @ Smt. Chamela Devi (wife of deceased defendant no.2) and Smt. Manorama Pandey (daughter of deceased defendant no.2) have relinquished their right, title and interest in favour of Sh. Mata Prasad Dubey (answering LR/ son of deceased defendant no.2) vide relinquishment deed dated 30.11.2009. It is further stated that Late Mohinder Kumari Sood did not want to bequeath her property to Vipin Batra or plaintiffs and for this reason, she executed Will dated 30.12.2008 and revoked her earlier Will as Vipin Batra and his family were not taking care of her and it is for this reason that even when she had fractured her hip, she moved out of her own house and was taken care of by defendant no.2. Late Mohinder Kumari Sood was also operating her bank accounts till her death.
2.4. It is further stated that after demise of defendant no.2, legal heirs of defendant no.2 sent a legal notice dated 26.10.2009 wherein they informed the plaintiffs about the Will dated 30.12.2008 and asked the plaintiffs to vacate the suit property. The plaintiffs had replied to said legal notice vide letter dated 13.05.2010. All other contents of plaint are denied by LRs of defendant no.2. On these grounds, it is prayed that present suit be dismissed.
3. Defendant no.1 has filed written statement to the original plaint and opted not to file any amended written statement to the amended plaint filed on behalf of the plaintiff. It is stated in the written statement that Defendant no.1 Society is required to transfer membership as per bye laws of the Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 CS/7703/2016 & 97/2011 17:51:26 +0530 Page 11 of 58 Cooperative Societies. Ms. Mohinder Kumari Sood was a member of Society and was allotted Flat no. B-3/73 and that she nominated one Shri Vipin Batra, her nephew vide letter dated 23.04.2001, who expired on 13.01.2009 even before the death of Ms. Mohinder Kumari Sood. It is stated that Vipin Batra was living in the aforesaid flat alongwith his family and after his death, his widow Smt. Priyam Batra and her daughter are residing the flat and are paying the service charges of the Society. It is further stated that Ms. Mohinder Kumari Sood expired on 20.08.2009 and Smt. Priyam Batra and her daughter applied to the Society for transfer of membership in their favour vide their application dated 04.09.2009. Upon the said application, it was pointed out that nominee of M.K. Sood had expired prior to M.K. Sood and no subsequent nomination has been received by the Society and in view of the same, it may be necessary for the Society to establish qualification about legal heir for transfer of share and interest of the deceased member through Public Notification as per provision of Section 91 (v) of Delhi Cooperative Societies Rules (DCS Rules), 2007 and legal heir/ representative of deceased member is required to submit the prescribed form as per DCS Act and Rules. It is further stated that letter dated 14.09.2009 written by one Ram Milan Dubey was also received in Society's office alongwith copy of death certificate of Ms. M.K. Sood, true copy of Will dated 30.12.2008 executed by Ms. Mahinder Kumari Sood, however, the Society has not taken any view/ decision in respect of letter of Shri Ram Milan Dubey till date. It is stated that the Society shall transfer the flat as per the directions of Hon'ble Court and that there is no Digitally signed MUNISH by MUNISH BANSAL BANSAL Date: 2024.11.22 17:51:35 +0530 CS/7703/2016 & 97/2011 Page 12 of 58 dispute between plaintiff and defendant no.1.
4. Replication to written statement of LRs of deceased defendant no.2 has been filed on behalf of plaintiffs thereby denying all the contents of the written statement and reiterating and reaffirming the pleadings made in the plaint.
FACTS of CS no. 97/2011(For sake of convenience, defendants in the counter-claim are referred to as the plaintiffs and LR of defendant no.2 namely Sh. Mata Prasad Dubey, who has filed the present counter-claim, is referred to as the counter-claimant)
5. Facts as averred in the counter-claim filed by Sh. Mata Prasad Dubey, one of LRs of deceased Ram Milan Dubey @ Guruji (defendant no.2 in main suit) are that the counter- claimant is absolute owner of suit property bearing Flat no. B-3/73, Azad Apartments, near IIT Gate, New Delhi- 100016. The suit property was originally owned by Late Mohinder Kumari Sood, who breathed her last on 20.08.2009. Late Mohinder Kumari Sood vide her last and final Will and testament dated 30.12.2008 had bequeathed the suit property in favour of Sh. Ram Milan Dubey, who expired on 16.09.2009 and is survived by his wife Smt. Chamela Devi, daughter Smt. Manorama Pandey and counter-claimant Mata Prasad Dubey. Smt. Chamela Devi and Smt. Manorama Pandey have relinquished their right, title and interest in the suit property in Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 17:51:44 +0530 CS/7703/2016 & 97/2011 Page 13 of 58 favour of counter-claimant vide relinquishment deed dated 30.11.2009.
5.1. It is further averred that Late Mohinder Kumari Sood had very high regard for deceased defendant no.2, who was like a brother to her and out of her fond affection and having no surviving blood relatives or first class heirs, wished to provide ownership of suit property to defendant no.2 for his personal use and occupation, accordingly, she executed a Registered Will dated 30.12.2008 in favour of Sh. Ram Milan Dubey and revoked her Will in favour of Sh. Vipin Batra, who had died prior to Late Mohinder Kumari Sood. Mohinder Kumari Sood in her lifetime, compassionately allowed plaintiffs (plaintiffs in main suit) to stay in suit property till her demise. After the demise of Mohinder Kumari Sood on 20.08.2009, who died a spinster and issueless at the age of 74, Sh. Ram Milan Dubey (deceased defendant no.2 in main suit) became the sole owner of the suit property and this fact was brought to the knowledge of plaintiffs on 20.08.2009, the date of demise of Late Mohinder Kimari Sood and deceased defendant no.2 conveyed the plaintiffs through his friends to hand over the vacant and peaceful possession to him within three weeks thereafter, however, the plaintiffs kept occupying the suit property as trespasser.
5.2. It is further stated that since Ram Milan Dubey (deceased defendant no.2) subsequently expired on 16.09.2009, the counter-claimant sent an eviction notice dated 26.10.2009 to plaintiffs (plaintiffs in main suit) to vacate the suit property Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 17:51:52 +0530 CS/7703/2016 & 97/2011 Page 14 of 58 within 15 days of receipt of notice and said notice also stated that after expiry of period 15 days of receipt of said notice, the plaintiffs would be liable to pay Rs.1,000/- per day to counter- claimant. Despite receipt of notice, the plaintiffs failed to vacate the suit property. On these grounds, the counter-claimant has prayed for decree of possession of suit property bearing Flat no. B-3/73, Azad Apartments, near IIT Gate, New Delhi- 100016 in favour of counter-claimant. Hence, this counter-claim.
6. Written statement to counter-claim was filed on behalf of plaintiffs wherein it is stated that Late Mohinder Kumari Sood was owner of the suit property and out of love and affection for Late Vipin Batra, being her only legal heir, had executed a Will dated 05.06.2003 bequeathing the suit property in favour of Late Vipin Batra; that Late Mohinder Kumari Sood was suffering from permanent hip bone fracture, hallucination etc. and her memory also failed at the time of her death and that she was not in good physical and mental health; that on the death of Late Mohinder Kumari Sood, the plaintiffs became absolute owner of the suit property and movable properties left behind by her being only legal heirs under Hindu Succession Act, 1956.
6.1. In reply on merits, all the contents of the counter- claim are denied being wrong. It is finally prayed that counter- claim be dismissed.
Digitally signed by MUNISH BANSALMUNISH Date:
BANSAL 2024.11.22 17:52:01 +0530 CS/7703/2016 & 97/2011 Page 15 of 58 ISSUES
7. Upon completion of pleadings in the main suit as well as in the counter-claim, issues were framed by order dated 04.05.2016.
Issues in main suit no. 7703/2016
1. Whether the plaintiff is entitled, being the only LR of late Mohinder Kumari Sood, to a decree of permanent injunction restraining LRs of defendant no.2 or anybody acting on their behalf from selling, transferring or dealing with Flat no. B-3/73, Azad Apartments, Aurobindo Marg, in any manner? OPP
2. Whether the plaintiff is entitled to decree of permanent injunction restraining the defendant no.1 and LRs of defendant no.2 from dispossessing the plaintiff from Flat no. B-3/73, Azad Apartments, Aurobindo Marg? OPP
3. Whether the plaintiff is entitled to a decree of permanent injunction restraining defendant no.1 from transferring flat no. B-3/73, Azad Apartments, Aurobindo Marg in the name of LRs of defendant no.2? OPP
4. Whether the Will dated 30.12.2008, by virtue of which the LR's of defendant no.2 claim that the suit property was bequeathed by late Smt. Mohinder Kumar Sood to defendant no.2, is genuine or not? OPD2
5. Whether the Will dated 30.12.2008 was executed by late Smt. Mohinder Kumari Sood in suspicious circumstances, Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 17:52:12 +0530 CS/7703/2016 & 97/2011 Page 16 of 58 without her free will, or was executed under undue influence? OPP
6. Relief if any.
Issues in Counter-claim, CS no. 97/2011
1. Whether the counter claimants (LRs of defendant no.2 in the main suit) are entitled to possession of flat no. B-3/73, Azad Apartments, Aurobindo Marg on the basis of registered Will dated 30.12.2008 vide which the suit property was bequeathed to defendant no.2 by late Smt. Mohinder Kumari Sood? OPD2
2. Relief if any.
Thereafter, matter fixed for PE.
8. Common evidence was led in both the main suit as well as in the counter-claim. To prove her case, the plaintiff has got examined 13 witnesses.
8.1. PW1 Sonkashi Batra tendered her evidence by way of affidavit Ex. PW1/A wherein she has deposed on similar averments as made in the plaint. She has placed reliance upon certain documents i.e.
1. Copy of Site plan Mark 'A' (Ex.PW1/1 de-exhibited), subsequently exhibited as Ex. P-1 (being admitted on behalf of defendant no.2).
Digitally signed by MUNISHMUNISH BANSAL BANSAL Date:
2024.11.22 17:52:20 +0530 CS/7703/2016 & 97/2011 Page 17 of 58
2. Letter dated 04.01.2006 Mark 'B' (Ex.PW1/2 de- exhibited)
3. Letter dated 23.04.2001 Mark 'C' (Ex.PW1/3 de- exhibited)
4. Nomination in favour of Late Vipin Batra Mark 'D' (Ex.PW1/4 de-exhibited)
5. Copy of electoral card Ex. PW1/5.
6. Copy of Will dated 05.06.2023 Ex. PW1/6 (de-exhibited).
7. Copy of application Form 20 is Mark 'E' (Ex. PW1/7 de- exhibited)
8. Copy of reply dated 15.09.2009 by Society Mark 'F' (Ex.PW1/8 de-exhibited)
9. Medical records of Late Mohinder Kumar Sood Ex. PW1/9 (colly)
10. Death certificate of Mohinder Kumari Sood Ex. P-2 (being admitted on behalf of defendant no.2).
She was cross-examined at length by Ld. Counsel for LRs of Defendant no. 2.
8.2. PW2 Sh. Sushil Rattan tendered his evidence by way of affidavit Ex. PW2/A wherein he deposed that he was friend of Late Vipin Batra and used to visit his family often. He deposed that Late Ram Milan Dubey was Purohit/ Pandit of plaintiff's family and Late Mohinder Kumari Sood was devotee of Sai Baba and used to visit Sai Mandir situated at Karol Bagh. He also deposed that rituals like roka ceremony of Mr. Vipin Batra and Ms. Priyam Batra, naming ceremony of Sonakshi Batra, last Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 17:52:28 +0530 CS/7703/2016 & 97/2011 Page 18 of 58 rituals/ pooja of Rama Sood (younger sister of Mohinder Kumari Sood) etc. were performed by Late Ram Milan Dubey being Purohit/ Pandit of the family. He deposed that Late Mohinder Kumari Sood was bed ridden before her death due to hip bone fracture and Late Ram Milan Dubey used to send his bhakts/ followers to her house with prasad and other religiously inclined things like small sized idols and threads to tie on her wrist and that Mohinder Kumari Sood always remained under severe influence and authority of Mr. Ram Milan Dubey as she was made to believe that he had some godly powers and no act should be done to displease him. He further deposed that during the illness of Late Vipin Batra, taking the advantage of situation, Late Ram Milan Dubey frequently visited the house of plaintiff and started interfering with the affairs of family. He further deposed that Will dated 30.12.2008 is a false and fabricated document and if executed by her, was done under serious undue influence and duress by Mr. Ram Milan Dubey as there is no reason for exclusion of Late Vipin Batra, his wife and daughter or any near relative by Late Mohinder Kumari Sood from her property. He was cross-examined at length by Ld. Counsel for LRs of defendant no.2.
8.3. PW3 Sh. Dharmendra Dhown, is friend of plaintiff's father Late Mr. Vipin Batra, who tendered his evidence by way of affidavit Ex. PW3/A wherein he deposed that he and Mr. Vipin Batra and his family were neighbours at Noida. He stated that when Mr. Vipin Batra met with an accident and his left leg was amputated and was bed ridden, he used to visit him regularly and Digitally signed by MUNISH MUNISH BANSAL Date:
BANSAL 2024.11.22 17:52:37 +0530 CS/7703/2016 & 97/2011 Page 19 of 58 during those visits, they became close and attached with Late Ms. M.K. Sood as well. He deposed that Ms. M.K. Sood was very spiritual person and had faith in Ram Milan Dubey that he could heal Mr. Vipin Batra and that she was under a very strong and substantive influence of Ram Milan Dubey. He further stated that during the greh pravesh ceremony of Vipin's house, he was being introduced to Ram Milan Dubey by Ms. M.K. Sood as pandit ji and that he is very powerful with his godly powers. He further deposed that Mr. Vipin Batra used to take care of Ms. M.K. Sood. He further stated that Ms. M.K. Sood was bed ridden before her death due to hip bone fracture and Late Ram Milan Dubey used to send his bhakts/ followers to her house with prasad and other religiously inclined things like small sized idols and threads to tie on her wrist. He further deposed that during the illness of Late Vipin Batra, taking the advantage of situation, Late Ram Milan Dubey frequently visited the house of plaintiff and started interfering with the affairs of family being purohit/ pandit in the family. He further deposed that after the death of Mr. Vipin Batra on 13.01.2009, plaintiff and her mother had been living alongwith Late M.K. Sood and had been taking care of her and even her last rites were performed by plaintiff and her mother. He was cross-examined by Ld. Counsel for LRs of Defendant no.2.
8.4. PW4 Sh. Sameer Khanna, is friend of plaintiff's father Late Mr. Vipin Batra, who tendered his evidence by way of affidavit Ex. PW4/A wherein he deposed that his mother Late Ms. Manorama Khanna was a teacher at Springdales School, Digitally signed MUNISH by MUNISH BANSAL BANSAL Date: 2024.11.22 17:52:45 +0530 CS/7703/2016 & 97/2011 Page 20 of 58 Pusa Road from where Late Sh. Vipin Batra completed his schooling and that the entire family alongwith Late M.K.Sood and her younger sister Rama Sood were well known to his mother when they were staying at Pusa Road, however, they lost touch after Vipin Batra passed out from the school. He further deposed that Late Ms. M.K. Sood and her younger sister Rama Sood were devotees of Sai Baba and they frequently used to visit Sai Mandir situated at Karol Bagh. He further deposed that they used to reside in the same Vasundhara Apartments and became very good friends and were on frequent visitation terms to each other's house and even after Vipin Batra and his family shifted from said Vasundhara Apartments, they never lost touch and kept visiting each other's family/ houses. He further deposed that he had met Sh. Ram Milan Dubey on numerous occasions, festivals and almost every pooja in the house of Late Sh. Vipin Batra and he was also a part of greh-pravesh ceremony at Vipin Batra's flat at Manavsthali Apartments and the said ceremony was performed by Ram Milan Dubey. He further deposed that Late Vipin Batra told him many a times that Ram Milan Dubey was a priest and Mohinder Kumari Sood used to follow him blindly and also shared about excessive interference and strong influence of Ram Milan Dubey in his family. He deposed that he was informed by Vipin that Ms. M.K. Sood was bed ridden and Ram Milan Dubey used to visit her daily and used to read hyms and mantras in loud voice exhibited that he had some powers to cure her. Ram Milan Dubey also used to take Ms. M.K. Sood for a walk around the temple on a wheel chair. He further deposed that whenever Ms. M.K. Sood used to meet his mother, she mentioned that she did Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 17:52:53 +0530 CS/7703/2016 & 97/2011 Page 21 of 58 not like old age and that whatever she has ever achieved and accumulated in her life would belong to Vipin Batra, who had done do much for her. He also stated that Ram Milan Dubey taking advantage of situation of ill-health of of Late Vipin Batra, frequently visited the house of plaintiff and started interfering in the affairs of family. He further deposed that last rites of M.K. Sood were performed by plaintiff and her mother. He stated that Will dated 30.12.2008 patently seems to be fabricated or that the said document was signed under undue influence and fear. He stated that there were no reasons for Ms. M.K. Sood to exclude the blood relation and legal heirs from her properties including the suit property and to execute Will in favour of any third person. He was cross-examined by Ld. Counsel for Defendant no.2.
8.5. PW5 Sh. Narinder Tawakley is friend of plaintiff's father Late Mr. Vipin Batra, who tendered his evidence by way of affidavit Ex. PW5/A wherein he deposed that he had studied with Vipin at Deshbandhu College from 1975-1978 and know their entire family since then. He deposed that he had visited Mohinder Kumari Sood and Rama Sood at their house in Pusa Road, Karol Bagh with Vipin and that she was working women and after retirement, she got inclined into pooja-paath. He further deposed that he met Ram Milan Dubey at Vipin's residence at C-582, Defence Colony, who was introduced as their family pandit and that he had seen Ram Milan Dubey asking Vipin to do charity in the name of God for better health for himself. He stated that he was told by a common friend namely Sushil Rattan, that Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 17:53:00 +0530 CS/7703/2016 & 97/2011 Page 22 of 58 Ram Milan Dubey used to visit Vipin's house on one pretext or other or would send someone from mandir in Karol Bagh with some pooja samagri or prasad or other stuff. He further deposed that Mohinder Kumari Sood and Rama Sood were devotees of Sai Baba and used to visit Sai Mandir in Karol Bagh and she also told him and other friends that they should be devoted to Ram Milan Dubey as she believed that he had godly powers and could give curse if she does not oblige him. He further deposed that when Vipin Batra was hospitalized in December, 2008 and was critical in his last times, plaintiff Priyam told him that Ram Milan Dubey had come to take Mohinder Kumari Sood to the mandir. He stated that Mohinder Kumari Sood was bed ridden due to permanent hip fracture and had started loosing her mental senses. He stated that plaintiff Sonakshi always took good care of Late Mohinder Kumari Sood. He further deposed that it is unbelievable and rather impossible that Later Mohinder Kumari Sood would ever think of excluding Vipin from her Will. This witness was cross-examined by Ld. Counsel for Defendant no.2.
8.6. PW6 Ms. Sarita Kashyap has tendered her evidence by way of affidavit Ex. PW6/A wherein she deposed that she started working as full-time maid in Mr. Batra's house in June, 2008 and continued working for approx. 3 years and that she was also given responsibility to take care of Ms. M.K. Sood and that she used to take care of her entire health by giving her food, medicine and everything. She further deposed that Ram Milan Dubey was the family priest of Mr. Vipin Batra's family and he used to come very often to Mr. Batra's house or sometimes used Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 17:53:06 +0530 CS/7703/2016 & 97/2011 Page 23 of 58 to send his devotees with prasad. She further deposed that Ms. M.K. Sood used to take lot of medicines alongwith sleeping pills throughout the day and that she was not mentally fit as her behaviour was not normal. She further stated that she is a witness to the fact that in December, 2008, Late Ms. M.K. Sood was taken to temple from hospital by 2-3 unknown person after taking permission from Late Mrs. Priyam Batra. She further deposed that Ms. M.K. Sood was very weak and was not able to recognize even her family members and all those who came to see her. She was cross-examined by Ld. Counsel for Defendant no.2.
8.7. PW7 Sh. Anil Arora has tendered his evidence by way of affidavit Ex. PW7/A wherein he deposed that he is brother-in-law of Priyam Batra, who got married to younger sister of Priyam Batra in 1988. He deposed that he was got introduced to Ram Milan Dubey, who was their family pandit and who used to perform all pooja and sai sangathan at their home. He further deposed that he met Ram Milan Dubey at Vipin Batra's house at C-582, Defence Colony and that Vipin told him that Ram Milan Dubey used to persuade everyone for making charity. He also came to know that Ram Milan Dubey suggested that Priyam Batra should change her name before her marriage.
He stated that Ram Milan Dubey seemed to be more of fraud and his motive was to extort money from people on the name of performing religious activities and he also used to force everyone in their family to follow his directions. He further deposed that Late M.K. Sood was under the influence of pandit and used to believe that he had supreme powers and that Late M.K. Sood and Digitally signed MUNISH by MUNISH BANSAL BANSAL Date: 2024.11.22 17:53:14 +0530 CS/7703/2016 & 97/2011 Page 24 of 58 her sisters were scared of pandit and used to follow him blindly without questioning anything. He further deposed that when entire family was present at Vipin Batra's death, the said pandit told Sonakshi that Ms. M.K. Sood was depressed and he could take her to mandir for few days. He further stated that Sonakshi (plaintiff herein) is the one who took care of Late M.K. Sood in her old age. He was cross-examined by Ld. Counsel for Defendant no.2.
8.8. PW8 Ms. Geeta Sharma has tendered her evidence by way of affidavit Ex. PW8/A whereby she deposed that she knew Mohinder Kumar Sood since 1988 as Ms. Mohinder Kumari Sood used to work as Secretary to her father-in-law namely Mr. G.C. Sharma and later to Mr. L.C. Sharma, in the firm G.C. Sharma & Sons in Connaught Place. She stated that her family and Ms. M.K. Sood's family were known to each other. She further stated that from the conversation of Ms. M.K. Sood, she came to know that Ms. M.K. Sood was very fond of Vipin Batra and used to consider him as her own son. She was also a witness in M.K. Sood's Will in 2003 whereby she had bequeathed everything to Vipin Batra. She further deposed that during 2005-2006, Ms. M.K. Sood got retired and she was not much in contact with her, however, sometimes in 2009, she came to know through one Mr. A.R. Sharma about sudden demise of Vipin Batra upon which she visited Azad Apartment alongwith Mr. L.C. Sharma to attend chautha. There she met M.K. Sood, who was suffering from various ailments and was bed ridden due to hip bone fracture and could hardly speak. She further stated Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 17:53:20 +0530 CS/7703/2016 & 97/2011 Page 25 of 58 that when she tried to talk to Ms. M.K. Sood, she did not recognize her and Mr. L.C. Sharma. She further deposed that she came to know that Ms. M.K. Sood also passed away in the same year and that she also came to know that a new Will has been produced by some pandit of the family claiming that Ms. M.K. Sood had left everything to him in exclusion of Vipin Batra and Sonakshi Batra from her house. She further deposed that it was unbelivable for her as she remembered that Vipin and Sonakshi were everything for M.K.Sood and that it was not possible for her to sign and register a Will 14 days before the death of death of Vipin Batra as she was not in her senses. This witness was cross-examined by Ld. Counsel for Defendant no.2.
8.9. PW9 Ms. Shilpa Manish has tendered her evidence by way of affidavit Ex. PW9/A whereby she deposed that she is the youngest sister of Late Priyam Batra and she knows about Ram Milan Dubey since 1987-1988 and was firstly introduced to her family as Batra's and Sood's family pandit at the time of roka/ engagement of Priyam Batra. She deposed that engagement ceremony of Priyam was done by Ram Milan Dubey and he also insisted Priyam to change her name, who was then called as Roma Kapoor and had insisted to the extent that if she refused to change her name, the marriage would not take place. She further deposed that Vipin's family including M.K. Sood and Rama Sood used to blindly follow the words of Ram Milan Dubey. She stated that Ram Milan Dubey used to frequently come to their house on one pretext or other of giving prasad, to ask about Vipin's health and to discuss other family matters. She also stated that M.K. Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 17:53:27 +0530 CS/7703/2016 & 97/2011 Page 26 of 58 Sood and Rama Sood used to believe that Ram Milan Dubey had healing powers and his touches and prayers can heal a person, however, Rama Sood, M.K. Sood and Vipin Batra never got any relief from their sufferings. She further deposed that till Vipin's death, entire expenses of M.K. Sood were taken care by Vipin and thereafter, by Priyam and Sonakshi who took care of M.K. Sood alongwith the maids/ nurses that were kept for her care. She stated that during the month of December, 2008 when Vipin Batra was hospitalized in critical condition, she was there at Vipin's house for over 2 weeks and during that period, on many occasions a person used to come from temple to take M.K. Sood on her wheelchair for a visit and for religious pooja purposes performed by Ram Milan Dubey. She further stated that during that time she tried to converse with M.K.Sood but she could hardly recognize her and could hardly speak, write and understand anything. She was cross-examined by Ld. Counsel for Defendant no.2.
8.10. PW10 Sh. Rahul Lalwani, has tendered his evidence by way of affidavit Ex. PW10/A wherein he stated that he is friend of Sonakshi/ plaintiff as they have studied together in KR Manglam World School and known her for years and knew her entire family. She stated that Late Mohinder Kumari Sood was not Sonakshi's real dadi (grandmother) but Sonakshi would love and treat her as her own real dadi. She further deposed that she had visited Sonakshi's house many times and she had seen pandit and her dadi in another room praying or chanting something. She also used to sit and talk with Sonakshi's dadi many times and Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 17:53:33 +0530 CS/7703/2016 & 97/2011 Page 27 of 58 once Late Mohinder Kumar Sood told her that she considered pandit as having godly powers and can curse her if she fails to oblige him and has also told that pandit can heal and take sufferings away from his devotees but firstly one has to do whatever pandit asks them to do or sacrifice something in return. She further stated that in during pre-board exams in December, 2008, Sonakshi missed most of the exams because she was busy taking care of her father and grandmother, who were both suffering from serious ailments and that Sonakshi did not care about her studies because her family was her first priority at that time. She stated that plaintiff/ Sonkashi used to take good care of Late Mohinder Kumari Sood and even after the death of Late Vipin Batra, Priyam Batra and Sonakshi had taken good care of her. She was cross-examined by Ld. Counsel for Defendant no.2.
8.11. PW11 Sh. Mayank Sharma tendered his evidence by way of affidavit Ex.PW11/A whereby he deposed that he and Sonakshi have studied together in K.R.Manglam World School and had known her and her entire family since the year 2005. He deposed that he has been to Sonakshi's house many times and knew her entire family and that he is aware of the fact that Ram Milan Dubey was the family pandit/ purohit since years and had a very strong persuasion over the entire family, specifically Late Mohinder Kumari Sood. He further deposed that after Late Mohinder Kumari Sood's health started deteriorating in 2006 after her skin infection - Herpes and she was on bed rest for 6 months, she got inclined to prayers and religious practices at that time. He also stated that Late Mohinder Kumari Sood told him Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 17:53:41 +0530 CS/7703/2016 & 97/2011 Page 28 of 58 that she considers Ram Milan Dubey as a person who has supernatural powers and could help people in ways no other person can do and can heal and take sufferings away from his devotees but this seemed a misconception as neither Late Vipin Batra nor Late M.K. Sood got relief from their illness. He further deposed that on one occasion while helping Sonakshi to clean the house, they found some papers which brought in light the fact that Late M.K. Sood had given a lot of money to Ram Milan Dubey on numerous occasions which was out of fear and being emotionally compelled to give away money. He further stated that in 2006, he alongwith Sonakshi/ plaintiff, took M.K.Sood to Vimhans hospital wherein doctors had prescribed her medicines for hallucination. He also witnessed that numerous nurses and maids were arranged and kept by Vipin Batra for late M.K. Sood's care and treatment at Batra's home. He further stated that after her permanent hip bone fracture in year 2008, M.K. Sood got completely bed ridden and with that injury, her hallucination problem also increased and later she stopped recognizing people. He further deposed that he had multiple talks and conversations about Sai Baba with Dubey Ji, who himself confirmed that he had special connection with Sai Baba and Dubey Ji also told him that if he ever face any difficulties in life, he and his family must visit temple in Karol Bagh and Dubey ji would exonerate their problems. He also stated that in December, 2008 when Late Vipin Batra was hospitalized, Ram Milan Dubey had visited Vipin Batra in hospital and had told Priyam Batra that he would take Mohinder Kumari Sood to the temple so that she feels better. He stated that Sonakshi has always taken good care of Mohinder Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 17:53:48 +0530 CS/7703/2016 & 97/2011 Page 29 of 58 Kumari Sood. He was cross-examined by Ld. Counsel for Defendant no.2.
8.12. PW 12 Sh. Ishwar Chand Gaur from Rana Nursing Care Services, Raju Park, New Delhi produced certified copy of receipt of nursing care services Ex. PW-12/1 (colly). He has also brought authority letter in his favour dated 06.06.2022 Ex.PW-12/2 and certificate dated 06.06.2022 issued by Rana Nursing Care Services Ex. PW-12/3. During cross-examination, he stated that he has not brought the original record pertaining to bills Ex. PW-12/1.
8.13. PW13 Sh. Sanjay Kumar, Medical Record Keeper from VIMHANS Hospital has appeared and identified OPD Card no. 101534 dated 26.06.2006 of patient Ms. M.K. Sood, consulted by Dr. Amiya Banerjee as Ex. PW-13/A and stated that he could identify the card and signatures of Dr. Amiya Banerjee at point X and phone number at point Y on said OPD card. He was cross-examined by Ld. Counsel for Defendant.
8.14. PW14 Sh. Pramod Joshi, Medical Record Clerk has produced documents pertaining to Central Registration no.
000189/2008 in the name of M.K. Sood which includes patient's entire treatment record of her stay in AIIMS hospital, which is Ex. PW14/1 (running into 72 pages). He further stated that all the OPD data including surgical, ENT, clinical gynecology, skin, all clinic registers, medical examination files and radio diagnosis department have been destroyed as per government rule wherein Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 17:53:55 +0530 CS/7703/2016 & 97/2011 Page 30 of 58 no medical document is to be stored more than 3 years. He has also produced certified copy of notice pertaining to the destroy report(s) of the medical documents upto year 2012 as Ex. PW14/2 (running into 3 pages).
Thereafter, PE was closed and matter was listed for DE.
9. DW1 Sh. S. Raman Sachdeva tendered his evidence by way of affidavit Ex. DW1/A whereby he stated that he was a witness to Will dated 30.12.2008, Ex. DW1/1 executed by Ms. Mahinder Kumari Sood in favour of Sh. Ram Milan Dubey. He further deposed that before signing the said Will, Ms. M.K. Sood told them that she had a very happy relation of brother and sister with Shri Ram Milan Dubey and also told that she had revoked her earlier unregistered Will executed on 05.06.2003 to Late Vipin Batra in regard of said Will property. He also deposed that Ms. M.K. Sood told them that Priyam Batra and her daughter Sonakshi Batra used to torture her very much and not taking care of her even during the life of Sh. Vipin Batra. He further deposed that although M.K. Sood was old but she was mentally and fully alert fit and had read the whole contents of the said Will on her own and understood the same and thereafter signed it. He also stated that M.K. Sood had showed her bank pass book issued by Indian Bank in which address was mentioned as C/o Sai Mandir, Rana Pratap Market, Karol Bagh, New Delhi, where Sh. Dubey ji resided. This witness was cross-examined at length by Ld. Counsel for Plaintiff.
Digitally signed by MUNISHMUNISH BANSAL BANSAL Date:
2024.11.22 17:54:01 +0530 CS/7703/2016 & 97/2011 Page 31 of 58 9.1. DW2 Mata Prasad Dubey, LR of defendant no. 2 tendered his evidence by way of affidavit Ex. DW2/A wherein he made similar averments as made in the written statement and placed reliance on certain documents viz:
1. Passbook of M.K. Sood issued by Indian Bank Ex. DW-2/1.
2. Death certificate of Rama Sood dated 19.12.2000 Ex. DW-2/2.
3. Request receipt dt. 20.01.2010 issued by DDA Ex.DW2/3.
4. Relinquishment Deed dt. 30.11.2009 Ex. DW2/4 (OSR).
5. Copy of death certificate of Ram Milan Dubey dt. 23.09.2009 Mark-C.
6. Copy of legal notice dated 26.10.2009 Ex. DW-2/6 (colly)
7. Death certificate/ soochna patra dt. 22.07.1998 of Sunita Mark-D
8. Copy of letter dated 06.06.2008 written by M.K. Sood Ex. DW-2/7
9. Letter written by M.K. Sood Mark-B. He was cross-examined by Ld. Counsel for Plaintiff.
9.2. DW3 Sh. R. Maheshwara Rao, Senior Manager from Indian Bank, West Patel Nagar, New Delhi has produced bank statement of account bearing no. XXXXXX114 (old account no.
SB/XX222) in the name of M.K. Sood for the period 01.12.2013 to 01.12.2018 Ex. DW3/1. Counsel for the plaintiff did not cross- examine this witness.
Digitally signed by MUNISHMUNISH BANSAL Date:
BANSAL 2024.11.22 17:54:07 +0530 CS/7703/2016 & 97/2011 Page 32 of 58 9.3. DW4 Sh. Kishor Kumar, Senior Executive, The Delhi Safe Deposit Company Ltd has produced application form and signature card dated 22.11.2002 which was allotted vide key no. 7180-ALLWIN and booking no. B-15761, taken in three names i.e. Mohinder Kumari Sood, Vipin Batra and Priyam Batra Ex. DW4/1 (OSR) (colly). He also produced letter dated 29.12.2008 issued by Mohinder Kumari Sood concerning locker no. 7209 Ex. DW4/2 (OSR). He also produced an undated letter by Priyam Batra which was received on 01.09.2009 alongwith death certificates of Vipin Batra and M.K. Sood Ex. DW4/3 (OSR). This witness was cross-examined by Ld. Counsel for the plaintiff.
9.4. DW5 Sh. Balram Sharma, Manager cum Prabhandak, Shamshan Bhoomi Dayanant Ghat, Arya Samaj, Nizamuddin, New Delhi has produced the register where death information record is maintained and showed receipt bearing no. 5603 dated 22.07.1998 regarding cremation at 08:38 p.m. of Ms. Sunita, aged 85 years which bear signatures of witness Ram Milan Dubey at point X, which is exhibited as Ex. DW5/1 (OSR) (colly). This witness was not cross-examined on behalf of the plaintiff.
9.5. DW6 Sh. Dheeraj Kumar, Record Keeper from the office of Sub-Registrar-V. Mehrauli, New Delhi, has produced Will dated 30.12.2008, which was registered on 31.12.2008 vide registration no. 7546 in additional book no. 3, vol. no. 685, on pages 41-43 and tallied the same with Will Ex. DW1/1.
Digitally signedMUNISH by MUNISH BANSAL BANSAL Date: 2024.11.22 17:54:15 +0530 CS/7703/2016 & 97/2011 Page 33 of 58 9.6. DW7 Sh. Nikhil Nagpal has tendered his evidence by way of affidavit Ex. DW7/A. He deposed that he knew Ram Milan Dubey and Ms. M.K. Sood and that they had good relations of brother and sister and Ms. M.K. Sood used to tie rakhi to Ram Milan Dubey and that Ram Milan Dubey used to take care of Ms. M.K. Sood in all possible ways, whenever she required. He further deposed that Ms. M. K. Sood told them that all her relatives reside with her at the impugned property without her willingness and that they used to harass her. He further deposed that Ms. M.K. Sood executed a Will in favour of Ram Milan Dubey and that at the time of execution of said Will, she was in her senses and of sound mind. He further deposed that when he accompanied Ram Milan Dubey to Late M.K. Sood's house on her demise, he witnessed the rude behaviour of Sonakshi Batra. This witness was cross-examined by Ld. Counsel for the Plaintiff.
Thereafter, DE was closed and matter was listed for final arguments.
10. I have heard arguments advanced at length by Ld. Counsels for the Plaintiff as well as Defendant no.2, gone through the written submissions and perused the record. My issue-wise findings are as under:-
Issue no. 4 of Suit bearing CS DJ no. 7703/2016 Whether the Will dated 30.12.2008, by virtue of which the LR's of defendant no.2 claim that the suit property was bequeathed by late Smt. Mohinder Kumar Sood to defendant no.2, is genuine or not? OPD2 Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 17:54:22 +0530 CS/7703/2016 & 97/2011 Page 34 of 58 Issue no. 5 of Suit bearing CS DJ no. 7703/2016 Whether the Will dated 30.12.2008 was executed by late Smt. Mohinder Kumari Sood in suspicious circumstances, without her free will, or was executed under undue influence? OPP Issue no.1 of Counter-claim bearing no. CS 97/2011 Whether the counter claimants (LRs of defendant no.2 in the main suit) are entitled to possession of flat no. B-3/73, Azad Apartments, Aurobindo Marg on the basis of registered Will dated 30.12.2008 vide which the suit property was bequeathed to defendant no.2 by late Smt, Mohinder Kumari Sood? OPD2
11. All these issues are taken up together being inter- connected and based on common evidence. Onus to prove issue no.4 of main suit and issue no.1 of counter-claim was upon defendant no.2 and onus to prove issue no.5 of main suit was upon the plaintiffs.
11.1. Defendant no. 2 has contested the suit on the ground that Late Ms. Mohinder Kumari Sood has bequeathed suit property in his father's favour. The law regarding the Wills and their probative force is to a large extent well settled. The said Will was purportedly attested by two witnesses out of which one has been examined as DW1 and who as per his evidence affidavit has deposed that the Will was signed and executed by Late Ms. Mohinder Kumari Sood in the presence of Sh. Gaurav Rajpal and that Ram Milan Dubey and DW1 was also present there and it was on the asking on Late Ms. Mohinder Kumari Sood that both the attesting witnesses put their signatures on the said Will. The said Will is a registered one and the registration has been proved by testimony of DW6 Sh. Dheeraj Kumar, Record Keeper from the office of Sub-Registrar-V. Mehrauli, New Delhi. Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 17:54:29 +0530 CS/7703/2016 & 97/2011 Page 35 of 58 11.2. Now the pertinent question is whether to prove a Will, all that is required is the testimony of two attesting witnesses only and whether the testimony of two attesting witnesses can supersede or override all the suspicious circumstances, if any, arising in the Will. This leads to another question whether there are any suspicious circumstances in the Will or not.
11.3. In support of their contentions, Counsel for the plaintiff has relied upon certain judgments viz. Surendra Pal vs. Sarawati Arora (Dr) (1974) 2 SCC 600, Jaswant Kaur vs. Amit Kaur (1977) 1 SCC 369, H. Venkatachala Iyengar vs. B.N. Thimmajamma, 1958 SCC Online SC 31, Rani Purnima Devi vs. Kumar Khangendra Narayan Dev, 1961 SCC Online SC 89 and Subhas Chandra Das Mushin vs. Ganga Prasad Das Mushib & ors (1967) 1 SCR 331.
11.4. Per contra, Counsel for defendant no.2 has relied upon Meena Pradhan & ors vs. Kamla Pradhan & anr (2023) 9 Supreme Court Cases 734, Gurdev Kaur & ors vs. Kaki & ors (2007) 1 Supreme Court Cases 546, Sukh Mangal vs. Laxmi Narain Chaturvedi (2007) 25 LCD 1342, Uma Devi Nambiar & ors vs. T.C. Sidhan, (2004) 22 LCD 934 and Raj Kumari & ors vs. Surinder Pal Sharma (2021) 14 Supreme Court Cases 500.
11.5. It is relevant to mention the judgment of Hon'ble Supreme court of India in Shiv Kumar & Ors. vs Sharanabasppa and Ors.' Civil Appeal No.6076/2009, where principles Digitally signed MUNISH by MUNISH BANSAL BANSAL Date: 2024.11.22 17:54:35 +0530 CS/7703/2016 & 97/2011 Page 36 of 58 governing the adjudicatory process concerning the proof of Will has been summarized, which are as follows:-
1. Ordinarily, a Will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon.
2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.
3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed.
This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will.
4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 17:54:42 +0530 CS/7703/2016 & 97/2011 Page 37 of 58 execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free Will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
6. A circumstance is "suspicious" when it is not normal or is 'not normally expected in a normal situation or is not expected of a normal person'. As put by this Court, the suspicious features must be 'real, germane and valid' and not merely the 'fantasy of the doubting mind'.
7. As to whether any particular feature or a set of features qualify as "suspicious" would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependents; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the prof of attestation.
8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the Will while being aware of its Digitally signed by MUNISH MUNISH BANSAL CS/7703/2016 & 97/2011 Date:
BANSAL 2024.11.22 17:54:50 Page 38 of 58 +0530 contents and after understanding the nature and effect of the dispositions in the Will?
9. In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essential of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will."
11.6. Hon'ble Supreme Court of India in 'Meena Pradhan vs Kamla Pradhan' Civil Appeal No.3351/2014 in Para 10 observed:
"10. Relying on H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426 (3Judge Bench), Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135 (3-- Judge Bench), Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91(2Judge Bench)Yumnam Ongbi Tampha Ibema Devi v.Yumnam Joykumar Singh, (2009) 4 SCC 780 (3Judge Bench) and Shivakumar v. Sharanabasappa, (2021) 11 SCC 277 (3-Judge Bench), we can deduce/infer the following principles required for proving the validity and execution of the Will:
i. The court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him;
ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.
iii. A Will is required to fulfill all the formalities required under Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the Will or it Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
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shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will;
(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;
(c) Each of the attesting witnesses must have 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 acknowledgment of such signatures;
(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;
iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;
v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator; vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with;
vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence;
(viii)Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last Will. In such cases, the initial onus on the propounder becomes heavier. Digitally signed by MUNISH MUNISH BANSAL Date:
BANSAL 2024.11.22 17:55:03 +0530 CS/7703/2016 & 97/2011 Page 40 of 58 ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will; x. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.
xi. Suspicious circumstances must be 'real, germane and valid' and not merely 'the fantasy of the doubting mind'. Whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc."
11.7. As per one of the governing principles, it is not necessary that both the attesting witnesses shall be brought to depose to prove the execution of the Will. In the present case, as Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 17:55:09 +0530 CS/7703/2016 & 97/2011 Page 41 of 58 regards factum of signatures of the testator of the Will i.e. M.K. Sood being put on the Will in the presence of attesting witnesses as well as the attesting witnesses signing the said Will in the presence of Late M.K. Sood, the same has come in evidence of DW1.
11.8. The next question that arises for the purpose of deciding the said issue is whether the Will under question was surrounded by suspicious circumstances or not. In the facts of the present case, the essence of the relation between Mohinder Kumari Sood and Ram Milan Dubey has to be seen, more specifically whether Ram Milan Dubey was in a dominant position viz-a-viz Late Ms. Mohinder Kumari Sood.
11.9. It is relevant to mention the contradictions emerging out from the testimony of DW1. In his cross-examination, DW1 has stated that Mohinder Kumari Sood was bed-ridden, however, subsequently in the same cross-examination, he states that she was not bed-ridden since 2008 till her death. In his evidence affidavit, DW1 has stated that M.K. Sood has revoked her earlier Will dated 05.06.2003 but in cross-examination, he states that he does not know that M.K. Sood executed any Will in favour of Vipin Batra. In evidence affidavit, DW1 has stated that Late Mohinder Kumari Sood signed the Will in the presence of another attesting witness Gaurav Rajpal and he and Ram Milan Dubey were also present there, however, during cross-
examination, DW1 has deposed to the contrary that he, M.K. Sood, Ram Milan Dubey and Gaurav Rajpal were not together at Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 17:55:16 +0530 CS/7703/2016 & 97/2011 Page 42 of 58 the time of the registration of the Will and that Ram Milan Dubey was not present there at the time of registration of the Will. However, the contradiction in the said statement is further fortified by the fact that the said Will Ex. DW2/1 itself contains endorsement that Will has been presented by Late Mohinder Kumari Sood and Ram Milan Dubey. Thus, it is clear that beneficiary under the Will has taken an active/leading part in making of the Will.
11.10. On the issue whether Ram Milan Dubey was a priest or not, though the said factum has been largely and continuously denied on behalf of the LRs of defendant no.2, DW1 in his cross-
examination dated 16.11.2017 has stated that Ram Milan Dubey was a well-known priest and used to send prasad and other things through DW1 to Late Ms. M.K. Sood and also that DW1 knew that M.K. Sood, as a devotee, used to visit Ram Milan Dubey's temple.
11.11. There are certain suspicious circumstances surrounding the Will, emerging out in the facts of the present case. There is no mention brother-sister relationship between the Ram Milan Dubey and M.K. Sood, as alleged by the contesting defendant, in the Will. Rather there is specific mention of the beneficiary as Guru ji in the Will. The same needs to be explained, especially in the context of the admitted position that Ram Milan Dubey was the founder of the Sai Mandir, Karol Bagh and that he used to send prasad to Ms. M.K. Sood regularly and even used to meet her regularly to give prasad and also in the Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 17:55:22 CS/7703/2016 & 97/2011 +0530 Page 43 of 58 context and light of the aforesaid testimony of DW1 qua Ram Milan Dubey being a priest. No explanation has been given by DW2 nor the same is emerging out of the material on record.
11.12. It has been submitted on behalf of defendant no. 2 that the Will was executed in favour of defendant no.2 since family members including plaintiffs use to harass Late Ms. Mohinder Kumari Sood. However, there is no mention of discord between M.K. Sood and her family in the Will. Had there been any discord as has been pleaded by the contesting defendants, it would have been found mention in the Will, moreso if there was brother-sister relationship of the beneficiary with the testatrix of the Will and also when property is proposed to be devolved bypassing the natural succession. The suspicion gets more concentrated when in the Will under question, there is a mention of revocation of previous Will without the mention of the date of the said previous Will.
11.13. Apparently, there is no proof of discord between Mohinder Kumari Sood and her family members, as alleged by the contesting defendants, brought on record. There is no complaint to any authority or Court regarding the same. If there was ill-treatment or torture at the hands of the plaintiffs, to such an extent that Mohinder Kumari Sood would have persuaded herself to change her testament, then there is no explanation forthcoming that why did not Ram Milan Dubey helped her in lodging the complaint, when it is claimed on behalf of defendant no. 2 that there existed brother-sister relationship between them.
Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 CS/7703/2016 & 97/2011 17:55:28 +0530 Page 44 of 58 11.14. The claim of brother-sister relationship is also diluted by the fact that medical documents shows that Mohinder Kumari Sood was taken care of and requisite medical treatment (Ex. PW1/9 (colly) and Ex. PW14/2 (colly) and Ex. PW13/A) was got provided by the plaintiffs being the family members and not by Ram Milan Dubey. Rather, the theory of discord or ill-
treatment or torture gets belied by this proven factum of medical care being given to Mohinder Kumari Sood by the plaintiffs. For the sake of arguments, presuming the version of ill-treatment / torture given to the Mohinder Kumari Sood to be true, it would be, to a great extent, improbable that proper medical treatment would then be given by the persons ill-treating or torturing her.
11.15. Apart from the bald statements, there is nothing on record to show existence of brother-sister relationship. DW7 in his cross-examination has admitted that apart from his sworn affidavit, he has no proof to show that Late M.K. Sood relied upon Late Ram Milan Dubey for any help or support and that there is no proof of the fact that Late Ram Milan Dubey and M.K. Sood treated each other as brother and sister nor there is any proof of Late M.K. Sood tying rakhi on the wrist of Late Ram Milan Dubey.
11.16. Defendant no. 2 claims that Mohinder Kumari Sood was medically fit and in sound disposition of mind. In that scenario, if there was any torture or ill-treatment meted out to Mohinder Kumari Sood, she would have surely complained to the concerned authority or any other necessary action would have Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 17:55:35 CS/7703/2016 & 97/2011 Page 45 of 58 +0530 been taken by her.
11.17. If Mohinder Kumari Sood was hale and hearty and medically fit, as claimed by the contesting defendants, then the hurry in which the Will in question was executed by Mohinder Kumari Sood, moreso when her nephew was seriously ill and hospitalized, clearly raises doubt and suspicion.
11.18. Letter dated 29.12.2008 Ex. DW4/2 (OSR), signed on a day prior to the execution of the Will, written to the office of the Delhi safe deposit with name "Mr. Dube" mentioned on it, also raises doubt and suspicion. Who submitted the said letter has not been explained properly. The name 'Mr. Dube' mentioned on the letter also not explained. A person producing and relying upon a document has to prove the same and has also prove /explain the contents regarding any distinction/ anomaly pointed out, as the same can be said or presumed to be in his/her knowledge. It is highly improbable that Mohender Kumari Sood would go to deposit the letter at or about the time when Vipin Batra was seriously ill and ultimately expired. The date of confirmation mentioned as 13.01.2009 (date of death of Vipin Batra) also raises further suspicion However, it is not the case of the contesting defendant that Mohinder Kumari Sood has left her home or stopped residing with the family/plaintiffs and started staying at Sai Mandir. Defendant no.2 has not explained about the presence of Mohinder Kumari Sood either at the mandir or at the Delhi safe deposit and also about the circumstances existing when, or under which, the letter was signed and subsequently Digitally signed by MUNISH MUNISH BANSAL Date:
BANSAL 2024.11.22 17:55:43 +0530 CS/7703/2016 & 97/2011 Page 46 of 58 submitted with the safe deposit. With these things not explained, production of the same simplicitor would give no positive indications of brother-sister relationship between Ram Milan Dubey and Mohinder Kumari Sood. Rather, the same creates doubt about the genuineness of the said document and its subsequent submission with the Delhi safe deposit. Relevant, as regards the said letter, is the mistake in the spelling of Mohinder Kumari Sood and subsequent handwritten correction of the same, also adds up to the doubt as regards the genuineness of the document as well as its submission.
11.19. The testimony of the witness from Delhi Safe Deposit/ DW-4 also becomes relevant when it discloses that the application /letter can be submitted on behalf of the account holder by some third party also. 'Mr. Dube' as finding mention in the said letter has not been explained by the contesting defendant and as already discussed above, the same is required to be explained since the said document has been produced by the contesting defendants and pleads and wishes for the court to rely on the same.
11.20. Even the passbook of Mohinder Kumari Sood relating to her account with Indian Bank, being in the possession of Ram Milan Dubey and subsequently brought on record by the contesting defendants and moreover the address of Mohinder Kumari Sood on the said passbook being mentioned that of Sai Mandir, clearly raises further doubt and suspicion. Digitally signed by MUNISH MUNISH BANSAL Date:
BANSAL 2024.11.22 17:55:48 +0530 CS/7703/2016 & 97/2011 Page 47 of 58 11.21. DW2 has also produced letter dated 06.06.2008 Ex.
DW2/8, addressed by Mahender Kumari Sood to the Executive Director, Delhi Safe Deposit, however, the same was never sent or submitted to the office of the Delhi Safe Deposit. The reason for not depositing the same with the Delhi Safe Deposit and Ram Milan Dubey keeping the said letter with himself and subsequently the said letter being produced by the LRs of Ram Milan Dubey stating that same was found in the belongings of Late Ram Milan Dubey, has not been explained. The contents of the said letter also add up to the suspicion while in the subject of the letter, it is mentioned "rental due from 26.8.08 to 25.8.2009", however, the details of the said letter contain prayer that Vipin Batra and Priyam Batra be not allowed to open the locker and that they be allowed to open the same after her death.
11.22. It is also worthy to be noticed that when the stand of the defendant is that Mahender Kumari Sood was in sound disposition of the mind and also hale and hearty and independent lady with financial freedom, then it becomes improbable that she will keep her documents with Ram Milan Dubey or at the Sai Mandir.
11.23. In the amended written statement on behalf of defendant no.2, it is stated that Late Mohinder Kumari Sood was not residing with the plaintiffs and Mr. Vipin Batra till Vipin Batra's death on 13.01.2009. It is also stated that plaintiffs were Digitally signed MUNISH by MUNISH BANSAL BANSAL Date: 2024.11.22 17:55:58 +0530 CS/7703/2016 & 97/2011 Page 48 of 58 not taking care of Late Mohinder Kumari Sood and used to harass her and it is for this reason that even when she had fractured her hip, she moved out of her own house and was taken care by defendant no.2. However, in the evidence affidavit of DW2, the said factum is totally missing, rather perusal of the evidence of DW2 and other witnesses examined on behalf of defendant no.2 shows that Mohinder Kumari Sood has not gone to reside at Sai Mandir.
11.24. It has been pleaded on behalf of the plaintiff that the spelling mistakes as regards the name of Mohinder Kumari Sood and Vipin Batra, are apparent in the Will in question, as in the said Will, Mohinder Kumari Sood (correct spelling as per the plaintiffs) has been wrongly spelled as Mahinder Kumari Sood and Vipin Batra (correct spelling as per the plaintiffs) has been wrongly spelled as Vipan Batra. It is now to be seen what was the correct spelling of the testatrix of the Will and whether there was spelling mistake in the said Will and if yes, whether said error has been explained or not and the effect of the spelling mistake if the said error in spelling is not properly explained. Ex.P-2 which is the death certificate of Late Ms. Mohinder Kumari Sood mentions the spelling as Mohinder Kumari Sood. The said death certificate has been admitted by DW2. Even the application and letter Ex. DW4/1 and Ex. DW4/2 respectively contains the spelling as Mohinder Kumari Sood (though corrected in handwritten). DW4 admits in his cross examination that one of account holders name as per record is Mohinder Kumari Sood. It Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 17:56:04 +0530 CS/7703/2016 & 97/2011 Page 49 of 58 is to be noted that the said witness was called by the LR of defendant no.2. It has been consistent stand of the contesting defendants throughout the case that the testatrix of the Will Mohinder Kumari Sood was in sound disposition of sound and was hale and hearty at the time of the execution of the Will. Going by the said stand of the contesting defendants, it is not in dispute that testatrix of the Will was an educated lady and during her years of work, she was employed with some office and the suit property which is sought to be disposed by Will, was purchased by her own funds and therefore, it becomes highly improbable that there would occur any spelling mistake in her own name or in the name of her lone nephew. A person may tend to forget events occurred during the course of life, or the memory may fade with time, however, if it is claimed that the said person is hale and hearty and in sound disposition of mind, then the possibility of mistake occurring in the spelling of his/her own name is negligible. It is also relevant to point out that DW7 in his evidence affidavit has mentioned that name of the testatrix as "Late Mahender Kumari Sood @ Mohinder Kumari Sood (Ms. M.K. Sood)". However, this deposition qua the said fact has not come in the evidence of DW2 who claims to be the beneficiary being the legal heir of the beneficiary under the Will in question. It is only after cross examination of DW2 that deposition in this regard has come forth. This in the opinion of the court, has been brought forth for the first time in the evidence affidavit just to cover up the lacuna in the form of suspicion and doubt emerging out from the spelling mistakes occurring in the Will in question.Digitally signed by MUNISH
MUNISH BANSAL BANSAL Date:
2024.11.22 17:56:10 +0530 CS/7703/2016 & 97/2011 Page 50 of 58 11.25. Another suspicious circumstance is the contradictions evident in the Will itself. On one hand, the property is bequeathed in favour of Ram Milan Dubey and it is also stated that his name be substituted in the concerned records on the basis of the Will. On the other hand, it is mentioned that, "in case of my death, Mr. Ram Milan Dubey shall continue to enjoy and live in the same flat till his death." It is not in dispute that in the said flat, at the time of execution of the Will as well as even at the time of death of Late Mohinder Kumari Sood, plaintiffs were residing in the said flat.
11.26. Quite a few other circumstances can be mentioned which raise a grave suspicion as regards the making of the Will but the circumstances enumerated above are, in the opinion of this Court, sufficient to discard the Will. The defendant in his evidence has offered no explanation of any of these circumstances. He has totally failed to discharge the heavy onus which lay on him of explaining the suspicious circumstances surrounding the execution of the Will.
11.27. The question regarding Mohinder Kumari Sood not in sound disposition of mind and she executing the Will without her free will or under undue influence has to be proved by the plaintiff. However, the said stage would arise only when all the aforesaid suspicious circumstances have been sufficiently explained on behalf of defendant no.2. It is clear from the aforesaid discussion, that the suspicious circumstances have not been cleared out, so as to persuade the Court to declare the Will Digitally signed MUNISH by MUNISH BANSAL BANSAL Date: 2024.11.22 17:56:16 +0530 CS/7703/2016 & 97/2011 Page 51 of 58 in question as genuine.
11.28. Though the contesting defendant has not been able to explain and clear the suspicion surrounding the Will, this Court need not go into the further question/ issue regarding the Will being executed by the testatrix without her free will, being executed under undue influence, as the said exercise would be a merely academic exercise. However, this Court feels it appropriate to deliberate on the said issue as pleadings, evidence and arguments, have been made by the respective parties on the said question/ issue.
11.29. Plaintiff has pressed upon the aspect that Late Mohinder Kumari Sood was not in a fit state of mind at the time of the execution of the Will in question. In this regard, plaintiff has relied upon the medical documents Ex.PW1/9 (colly), Ex.PW13/A and Ex. PW14/1 (running into 72 pages) as well as oral testimony of herself/PW1 and other private witnesses called by the plaintiff. Relevant is the testimony of PW2 in cross-
examination where he stated that, "whenever I used to visit Delhi on the prescription of medicines sent by Mohinder Kumari Sood to my father, I used to deliver medicines, food items and some money on the asking of my father.". Relevant also is the testimony of PW7 whereby in his evidence affidavit, he has stated that Mohinder Kumari Sood was advised hip-joint replacement surgery and in cross-examination, he admits that due to her anemic conditions (low hemoglobin), operation did not happen. The cross-examination of the different witnesses (other Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 17:56:21 +0530 CS/7703/2016 & 97/2011 Page 52 of 58 than the plaintiff) appearing from the side of the plaintiff, by the counsel for the defendant no.2 is primarily focused on the asking of questions regarding the said witnesses having medical documents qua the health of Late Mohinder Kumari Sood to prove the factum of Late Mohinder Kumari Sood not in sound disposition of mind. The answer to the said question, obviously was in the negative and in the opinion of the Court, the said question to the aforesaid witnesses was superfluous in the nature since it is obvious that medical documents of a person would be, in normal circumstances, in the possession of the person himself, if alive, or in the possession of his close family members or in the possession of a person with whom he resides. The testimony of the aforesaid witnesses as regards the general health, as has been stated by the said witnesses, as was apparent on the meeting with the Mohinder Kumari Sood, is relevant though it would be a question of judicial prudence as to what weight has to be lend to such evidence for proving the factum of ill health of Mohinder Kumari Sood. At least, it can be easily inferred that Late Mohinder Kumari Sood was suffering from many ailments for which she was taking treatment. It also emerges out that she has suffered hip injury for which she could not be operated upon due to her other medical ailments. Ex. PW13/A, which is the OPD card of Late Mohinder Kumari Sood from VIMHANS hospital, at least shows that some treatment regarding the mental health/ neurology was going on at VIMHANS hospital. Thus, in view of the aforesaid discussion, it is clear that Late Mohinder Kumari Sood was suffering from many ailments and was also weak and feeble. Digitally signed by MUNISH MUNISH BANSAL Date:
BANSAL 2024.11.22 17:56:27 +0530 CS/7703/2016 & 97/2011 Page 53 of 58 11.30. Plaintiff has averred undue influence on Mohinder Kumari Sood by Ram Milan Dubey stating that there existed devotee-priest relationship between them respectively. The testimony of the plaintiff/PW1 alongwith testimonies of PW2, PW3, PW4, PW5, PW6, PW7, PW9, PW10, PW11, is primarily focused on this aspect where, all the said witnesses have deposed on similar lines stating that Ram Milan Dubey was the family pandit/ purohit/ priest, who used to perform religious ceremonies/ rituals on every important occasion in the family such as roka/ engagement ceremony of Vipin Batra and Priyam Batra, greh pravesh ceremony etc. and that Late Mohinder Kumari Sood considered him having godly/ supernatural powers and can heal and take sufferings from his devotees. Perusal of the cross-
examination of the said witnesses shows that the same has been focused mainly on questioning the witnesses as regards whether Ram Milan Dubey exerted force, pressure or coercion upon the Mohinder Kumari Sood. However, holistic reading of the evidence affidavits of the said witnesses in the light of their cross-examination conducted, clearly shows factum of exercise of undue influence of Ram Milan Dubey over Late Mohinder Kumari Sood. The concept of undue influence is quite different from the words 'force', 'pressure' or 'coercion' or even threat. From this, it is evident that Late Mohinder Kumari Sood was under deep influence of Ram Milan Dubey. Though on the contrary, defendant has denied that Ram Milan Dubey was a priest but DW2, in his cross-examination states that, "I cannot admit or deny to the suggestion that my father was treated as a devout Sai bhakt having supernatural powers and same finds MUNISH Digitally signed by MUNISH BANSAL BANSAL 17:56:34 +0530 Date: 2024.11.22 CS/7703/2016 & 97/2011 Page 54 of 58 mention in a book written by Sh. R. Mohan Rai named Sathya Sai and his miraculous powers". DW2 on being confronted with photographs Ex. DW2/P2 to Ex.DW2/P7, identifies his father Ram Milan Dubey in the said photograph, however, at the same moment during cross-examination on suggestion of his own counsel, perused the photographs again and said that his father is not identifiable in the said photographs. Perusal of the photographs shows that same pertains to performance of certain ritual/ ceremonies by Ram Milan Dubey. Testimony of DW1 regarding Ram Milan Dubey being a priest, as discussed above, also proves and corroborates the factum of Ram Milan Dubey being a priest. It is also clear from the aforesaid discussion that plaintiff has been able to prove that Ram Milan Dubey was a priest or guruji or by whatever name called and the testatrix was taking religious and spiritual solace from Ram Milan Dubey. It has been held in plethora of judgments that when there is a relationship of spiritual advisor and devotee and the transaction on the face of it appears to be unconscionable, then undue influence can be presumed. As is evident from the above discussion that Ram Milan Dubey was in a dominant position viz a viz Mohinder Kumari Sood being a devotee, the testament of Late Mohinder Kumari Sood contained in the Will was done under undue influence and thus, Will dated 30.12.2008 was executed by Late Mohinder Kumari Sood under undue influence. Relevant in this regard is Section 16 of the Indian Contract Act r/w Section 111 of the Indian Evidence Act.
Digitally signed by MUNISHMUNISH BANSAL BANSAL Date:
2024.11.22 17:56:41 +0530 CS/7703/2016 & 97/2011 Page 55 of 58 11.31. In view of the aforesaid discussion, this Court is of the considered opinion that Will dated 30.12.2008, purportedly executed by Late Ms. Mohinder Kumari Sood is unreliable.
Hence, issues no. 4 and 5 of main suit no. 7703/16 and issue no.1 of counter-claim no. 97/11 are decided against defendant no.2.
Issue no.1 Whether the plaintiff is entitled, being the only LR of late Mohinder Kumari Sood, to a decree of permanent injunction restraining LRs of defendant no.2 or anybody acting on their behalf from selling, transferring or dealing with Flat no. B-3/73, Azad Apartments, Aurobindo Marg, in any manner? OPP Issue no. 2 Whether the plaintiff is entitled to decree of permanent injunction restraining the defendant no.1 and LRs of defendant no.2 from dispossessing the plaintiff from Flat no. B-3/73, Azad Apartments, Aurobindo Marg? OPP Issue no. 3 Whether the plaintiff is entitled to a decree of permanent injunction restraining defendant no.1 from transferring flat no. B-3/73, Azad Apartments, Aurobindo Marg in the name of LRs of defendant no.2? OPP
12. Issues no.1, 2 and 3 are taken up together being inter-linked and based on same evidence. The onus to prove these issues was upon the plaintiff.
12.1. Since the decision on the said issues was squarely dependent upon the decision on the aforesaid issues no. 4 and 5 in the main suit and issue no.1 in the counter-claim, and the aforesaid issues being decided in the favour of the plaintiff and Digitally signed by MUNISH MUNISH BANSAL CS/7703/2016 & 97/2011 BANSAL Date:
2024.11.22 Page 56 of 5817:56:48 +0530 against the defendants/ counter-claimant, no further deliberation and discussion on the issues to be decided, is required. It is to be noted that since the Will dated 30.12.2008 is declared to be unreliable, the property bearing Flat no. B-3/73, Azad Apartments, Aurobindo Marg, New Delhi shall devolve by intestate succession as per Hindu Succession Act, 1956. Plaintiff Sonakshi Sharma being the sole surviving legal heir of Late Ms. Mohinder Kumari Sood shall be entitled to the aforesaid property. Henceforth, the issues no.1, 2 and 3 are decided in favour of the plaintiff and against the defendants.
Relief
13. In view of the above discussion in main suit bearing CS DJ no. 7703/2016 and Counter-claim bearing CS no. 97/2011, the suit bearing CS DJ no.7703/16 of the Plaintiff Sonakshi Batra is decreed in her favour and counter-claim bearing CS no. 97/2011 is dismissed. The Plaintiff Sonakshi Batra is thus, held entitled to following reliefs:-
1. Will dated 30.12.2008, purportedly executed by Late Ms. Mohinder Kumari Sood, is declared unreliable.
2. The plaintiff is entitled to decree of permanent injunction restraining LRs of defendant no.2 or anybody acting on their behalf from selling, transferring or dealing with Flat no. B-3/73, Azad Apartments, Aurobindo Marg, New Delhi, in any manner. Digitally signed by MUNISH MUNISH BANSAL Date:
BANSAL 2024.11.22 17:56:55 +0530 CS/7703/2016 & 97/2011 Page 57 of 58
3. The plaintiff is entitled to decree of permanent injunction restraining the defendant no.1 and LRs of defendant no.2 from dispossessing the plaintiff from Flat no. B-3/73, Azad Apartments, Aurobindo Marg, New Delhi.
4. The plaintiff is entitled to a decree of permanent injunction restraining defendant no.1 from transferring flat no.
B-3/73, Azad Apartments, Aurobindo Marg, New Delhi, in the name of LRs of defendant no.2?
Costs of the suit is also awarded in favour of the Plaintiff. Decree-sheet be prepared accordingly. File be Digitally signed consigned to record room. by MUNISH MUNISH BANSAL BANSAL Date:
2024.11.22 Announced in the Open Court 17:57:06 +0530 on 22.11.2024 (Munish Bansal) District Judge-03 South District: Saket Courts New Delhi CS/7703/2016 & 97/2011 Page 58 of 58