Delhi District Court
Subhash Kalia vs Satish Chander Kalia on 27 October, 2023
DLND010002192012
IN THE COURT OF ADDITIONAL DISTRICT JUDGE- 01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Presided over by :- MS. VIJETA SINGH RAWAT (DHJS)
CS No. 57109/16
Subhash Kalia
S/o Late Ved Prakash Kalia
R/o A-37, Ground Floor,
Inderpuri, New Delhi.
......... Plaintiff
Versus
1. Sh. Satish Chander Kalia
S/o Late Ved Parkash Kalia
R/o A-37, First Floor,
Inderpuri, New Delhi.
2. Smt Kusum Kalia
W/o Sh. Satish Chander Kalia
R/o A-37, First Floor,
Inderpuri, New Delhi.
3. Smt. Harsh Sharma
W/o Sh. Ashok Sharma
R/o Flat No. 1/157, Pocket D-15,
Sector - 7, Dwarkadeesh Apartments,
Rohini, Delhi - 110085.
4. Smt. Madhu Bhaskar
W/o Sh. Rakesh Bhaskar
CS No. 57109/2016
Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 1 of 34
R/o House No. 70, Pocket 28,
Sector 24, Rohini, Delhi - 110085
5. Smt. Sunita Kalia
W/o Late Ved Parkash Kalia
R/o A-37, First Floor,
Inderpuri, New Delhi.
........ Defendants
Suit presented On : 17.12.2012
Arguments Concluded On : 22.09.2023
Judgment Pronounced On : 27.10.2023
JUDGMENT
1. The present suit has been filed by the plaintiff seeking (a) a relief of declaration that Gift Deed dated 09.01.2009 (hereinafter, referred to as 'Gift Deed') executed by Late Sh.Ved Prakash Kalia in favour of defendants no.1 and 2, gifting first floor and second floor with roof rights in property no. A-37, First Floor, Inderpuri, New Delhi (hereinafter, referred to as 'suit property') to defendants no. 1 and 2 as null and void. (b) For production and cancellation / destruction of the Gift Deed with directions to concerned Sub-Registrar to delete all entires from records and to MCD for cancellation of mutation done on the basis of Gift Deed in favour of defendants no. 1 and 2. (c) Declare that on the basis of Will dated 14.06.2000 (hereinafter referred to as 'The Will') executed by Late Sh. Ved Prakash Kalia, the plaintiff is the owner of entire ground floor, with built up portion of second floor alongwith roof rights as shown in red colour in the site plan and CS No. 57109/2016 Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 2 of 34 that defendant no.1 is the owner of first floor and the vacant one adjoining to House No. A-38. (d) A decree for possession of entire builtup portion of second floor as shown in red colour in the site plan against defendants no.1 and 2. (e) A decree of damages / mesne profits in favour of the plaintiff and against defendant no. and 2 @ Rs.10,000/- p.m. alongwith pendente lite and future interest for occupying second floor (built up portion).
(f) Costs.
PLAINT
2. As per the amended plaint taken on record vide order dated 19.12.2012 disposing off IA no. 22930/2012, it is the case of the plaintiff that (i) Late Sh. Ved Prakash Kalia, father of defendant no.1, 3 and 4 and husband of defendant no. 5 who died on 03.02.2009 executed Will dated 14.06.2000 bequeathing as under:
"4. That House No. A-37, Inderpuri, New Delhi be divided among the two brothers as under :
(i) Complete Ground Floor shall go to my younger son Sh. Subhash Kalia. Satish shall however have the right to part scooter in the front courtyard at Ground Floor.
(ii) Complete first floor shall go to my elder son Sh. Satish Chander.
(iii) 2nd floor, at present portion adjoining to House No. A-36, Consisting of 2 rooms, kitchen, Bathroom Latrine etc. is built up. Area comprising of 3' wide passage as existing at Ground floor has been added to the 2nd room of this portion. Remaining part has been left vacant for future construction.
iv) Incidentally, for record it is mentioned herewith that Satish Chander has been occupying and living with his family at 1st floor of the house since the completion of 2nd CS No. 57109/2016 Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 3 of 34 phase of construction in 1996. Similarly Subhash Kalia with his family has been living at the ground floor along with me and my wife.
The above said built-up portion of 2nd floor adjoining House No. A-36, shall go to Subhash Kalia while the vacant one adjoining to House No. A-38, shall go to Satish Chander. This division of 2nd Floor shall hold good for subsequent floor also. Accordingly the Subhash and Satish shall be at liberty to make further construction on their respective portions only."
(ii) That the reason for bequeathing built up portion on second floor in favour of the plaintiff was that wife of the plaintiff had contributed Rs. 1,08,000/- for construction, therein. (iii) That the Will was within the knowledge of the whole family and the plaintiff, defendants no. 1 and 2 and defendant no.3 were in possession of their respective portions as per the Will. (iv) That pursuant to death of Late Sh. Ved Prakash Kalia, the plaintiff had been requesting defendant no.1 to apply for mutation of the suit property but defendant no.1 had been deferring it on one false pretext or the other. (v) That the plaintiff then, visited the office of MCD to inquire about the procedure for mutation and the plaintiff was informed by the concerned officer, on perusing the record, that the property had already been mutated. (vi) That hence, the plaintiff applied under Right to Information Act, on 26.06.2012 and 20.07.2012, to know about the status of the suit property and so, a reply dated 28.07.2012, revealed that the mutation of first and second floor with terrace and roof rights of the suit property had been done on 04.05.2009, in favour of defendants no. 1 and 2, on the basis of the registered Gift Deed CS No. 57109/2016 Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 4 of 34 aforementioned. The plaintiff also procured letter dated 12.10.2005 filed by defendants no. 1 and 2 for mutation alongwith their affidavits, indemnity bonds and copy of the Gift Deed. (vii) That the plaintiff was shocked to learn about Gift Deed dated 09.01.2009 as it is his contention that late Sh. Ved Prakash Kalia was suffering from old age related ailments and loss of memory. It is further stated on 13.02.2008, Late Sh. Ved Prakash Kalia was admitted in Metro Heart Institute and it was diagnosed that he was suffering from right cerebral dysfunction. That the doctors also informed that Sh. Ved Prakash Kalia, the father of the plaintiff would be unable to take his decision independently and would not perform his daily routine. It is therefore, canvassed that the Gift Deed was not executed in sound mind by the executant and under perfect health condition. It is specifically averred that the execution of the Gift Deed is not voluntary. (viii) That the circumstances under which the Gift Deed has been executed in favour of defendants no. 1 and 2 is also questioned stating that defendants no.1 and 2 did not share cordial relationship with the executant and had separated from the executant in 1992, itself. (ix) Also, it is doubted that the gift is genuine because it is the case of the plaintiff that the Will bequeathed the built up portion on second floor of the suit property to the plaintiff, on account of his wife's contribution to the construction on the second floor of the suit property and there are no reasons forthcoming why defendants no. 1 and 2 would be entitled to the same?
CS No. 57109/2016Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 5 of 34 WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO.5
2. Defendant no. 5 filed her written statement on 11.02.2013 wherein, she took preliminary objections as under :
(a) That the plaintiff did not come to the Court with clean hands and had concealed material facts
(b) That the suit is bad for mis-joinder and non-joinder of parties as defendant no. 3 and 4 were not necessary parties to the present suit and even though, the relief has been sought against MCD, but it was not made a party.
(c) That the Will had been revoked by the Testator during his life time and so, the declaration sought by the plaintiff could not be given and so the consequential reliefs of possession, mandatory injunction and damages were not maintainable.
(d) That the suit has not been properly valued for court fees and pecuniary jurisdiction.
(e) That the suit is barred by limitation.
3. On merits, it has been explained that Sh. Ved Prakash Kalia had executed the Will but under duress created by the plaintiff however, subsequently, as the behavior of the plaintiff and his wife changed towards the testator and defendant no.5, Sh.
Ved Prakash Kalia revoked the same and as defendants no. 1 and 2 took the responsibility of maintaining defendants no. 5 and the testator, being satisfied with their care, executed the Gift Deed in their favour. It is elucidated that due to harassment inflicted by CS No. 57109/2016 Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 6 of 34 the plaintiff and his wife upon Sh. Ved Prakash Kalia and defendant no.5, he suffered paralytic attack due to high blood pressure and was treated at Metro hospital where he was admitted on 13.02.2008 for 22-23 days. It is further stated that in March, 2008, defendant no. 5 was also admitted in Metro Hospital for gall bladder operation and during that time, defendants no.1 and 2 and their children took care of Late Sh. Ved Prakash Kalia and defendant no. 5. It is averred that there was no brain injury suffered by Late Sh. Ved Prakash Kalia and it is asserted that he had his memory, intact. It is further mentioned that defendant no. 7 even after his hospitalization was active and operated his bank accounts, signed cheques and even visited State Bank of India, Inderpuri to give his surviving certificate which is required annually, to avail pension from the Central Government. Defendant no. 5 has stated that as Sh. Ved Prakash Kalia recovered from the paralytic attack, he with the consent of defendant no. 5 called the advocate and told him that he wanted to change Will dated 14.06.2000 and give the entire fist floor, second floor and roof rights to defendant no. 1 and 2 for serving him and defendant no. 5 in their old age. Accordingly, as per the decision of Sh. Ved Prakash Kalia and defendant no. 5, on 09.01.2009, the Gift Deed was executed and duly registered. It is asserted by her that she was present at the Sub-Registrar's office where the Gift Deed had been signed by Late Sh. Ved Prakash Kalia and was registered. According to her, Late Sh. Ved Prakash Kalia was in a sound disposing mind and was aware of what he CS No. 57109/2016 Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 7 of 34 was doing. He had so, also responded to the queries of the Sub Registrar as to what he was doing and whether he was doing it voluntarily. It is also stated that Sh. Ved Prakash Kalia had revoked Will dated 14.02.2000 in her presence as he was fed up with the behavior of the plaintiff and his wife. All allegations of Late Sh. Ved Prakash Kalia being unable to do his work independently, loosing his memory and failing to take independent decisions have been rejected as false, frivolous, misconceived, and as an after thought. It is also stated that Rs. 1,08,000/- and other expenditure made by the plaintiff and his wife had been repaid by late Sh. Ved Prakash Kalia with interest in the shape of Kisan Vikas Patr / cash. On the aspect of limitation, it is elaborated that the knowledge of Gift Deed was available to the plaintiff during he lifetime of Sh. Ved Prakash Kalia as he had conveyed the same to the plaintiff, by himself.
WRITTEN STATEMENT ON BEHALF OF DEFENDANTS NO.1 AND 2
4. Written statement of the defendants no. 1 and 2 are on similar lines as that of defendant no. 5. However, they have denied the allegations of strained relationship with Sh. Ved Prakash Kalia and defendant no. 5 after having separated from them in 1992 and they also stated that any contribution given by wife of the plaintiff was towards renovation of the ground floor which has been duly repaid back.
CS No. 57109/2016Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 8 of 34 WRITTEN STATEMENT ON BEHALF OF DEFENDANTS NO.3 AND 4
5. Defendants no. 3 and 4 (sisters of plaintiff and defendant no. 1) have filed separate written statements but on similar lines, supporting the case of the plaintiff. They have admitted the execution of Will dated 14.06.2000. They have asserted that Late Sh. Ved Prakash Kalia was suffering from various ailments and was loosing his memory on account of old age and after, 13.02.2008, when he suffered an attack, he was unable to speak and walk properly and was incapable of taking independent decisions. It is further stated that he was wheelchair bound. Pertinently, they have also averred that after the death of Late Sh. Ved Prakash Kalia, the plaintiff and defendant no.1 were occupying their respective portions on ground and first floors of the suit property and second floor was under occupation of a tenant. Even though, they admit to have seen the Gift Deed, however, the genuineness of the same has been assailed stating that the executant was not in a fit mental stated on 09.01.2009 to have executed it.
REPLICATION TO THE WRITTEN STATEMENT OF DEFENDANTS NO.1 AND 2
6. Replication only to the written statement of defendants no. 1 and 2 has been filed. Replication is a reiteration of the allegations made in the plaint. Materially, it has been denied that CS No. 57109/2016 Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 9 of 34 Late Sh. Ved Prakash Kalia constructed the first and second floor of the suit property from his own funds, that the plaintiff and his wife harassed the parents, that defendants no. 1 and 2 shared cordial relationship with Late Sh. Ved Prakash Kalia and defendant no.5, that Rs.1,08,000/- contributed by wife of the plaintiff was not spent for alterations, extensions or renovation of the ground floor but that it had been contributed for construction on second floor and remained unpaid. It has also been denied that rent was being collected by defendant no.1 and 2 from the tenant on the second floor after the death of Late Sh. Ved Prakash Kalia. It is also stated that the rent was being collected by defendant no. 5 only.
ADMISSION AND DENIAL OF DOCUMENTS
7. The documents filed by the defendants were denied by the plaintiff.
ISSUES
8. Vide order dated 28.04.2014, the following issues were framed :
"1. Whether the suit is without cause of action? OPD
2. Whether the suit is bad for mis-joinder of defendant nos. 3 and 4? OPD
3. Whether the Will dated 14th June, 2000 was validly revoked by Late Shri Ved Prakash Kalia? If so, its CS No. 57109/2016 Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 10 of 34 effect? OPD
4. Whether the suit has not been valued properly for the purposes of court fee? If so, its effect? OPD
5. Whether the plaintiff is entitled to a decree of declaration as prayed for? OPP
6. Whether the Will dated 14th June, 2000 of Late Shri Ved Prakash Kalia is a legal and valid Will? OPD
7. Whether the plaintiff is entitled to a decree of possession as prayed for? OPP
8. Whether the plaintiff is entitled to a decree of mesne profits? If so, at what rate? OPP
9. Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for? OPP
10. Relief."
DEFENCE EVIDENCE
9. Vide order dated 03.12.2014, IA no. 17093/2014 was allowed and defendants were directed to lead evidence first.
10. In defence, the defendant no.5 examined herself as D5W1. She tendered her evidence by way of affidavit Ex. D5W1/A and relied upon the following documents:
Sr. No. Documents Exhibited as
1. Gift Deed dated 09.01.2009 Ex. D5W1/1 (OSR) (Objected to on the ground that the document was filed without seeking leave of the Court.) (objection lost relevance as the plaintiff also relied upon the document in his CS No. 57109/2016 Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 11 of 34 examination in chief)
2. Revocation Letter dated Ex. D5W1/2 also 21.01.2009 Ex. D5W1/6 (Objected to on the ground that the document was filed without seeking leave of the Court.) (However, subsequently the plaintiff also relied upon the document to disprove its authenticity through PW5)
3. Complaint filed by Ex. D5W1/3 defendant no.5 against the (Objected to on the plaintiff and his wife before ground that the document P.S. Inderpuri dated was filed without seeking 18.03.2013 leave of the Court.) Also Ex. D5W1/C
4. Original photographs main Mark A entrance
5. Photographs Ex. D5W1/P1 to Ex.
D5W1/P26 (Objected to by Ld counsel for defendant no.
5 on the ground that the negatives of the photographs have not been filed)
6. Site plan of ground floor Ex. D5W1/P27
7. Site plan of second floor Ex. D5W1/P28
11. Defendant no.1 examined himself as D1W1. He tendered evidence by way of affidavit Ex. D1W1/A and additional evidence Ex. D1W1/B. He relied upon the following documents:
CS No. 57109/2016Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 12 of 34 Sr. No. Documents Exhibited as
1. Copy of relevant pages of Ex. D1W1/1 diary of Late Sh. Ved Prakash
2. MRI brain of Late Sh. Ved Ex. D1W1/2 (colly) Prakash Kalia
3. Photographs showing the Ex. D1W1/3 (colly) locked Iron gate (objected to as negative of the photograph not produced)
4. Application form for Ex. D1W1/4 (colly) mutation of Delhi Jal Board (objected to as original not produced)
5. Copy of letter from Senior Ex. D1W1/5 (OSR) Citizens' Forum dated 24.10.2008
6. Copies of passbook Ex. D1W1/6 (colly) showing statement of (OSR) account of Late Sh. Ved (objected to as bank Prakash Kalia official not produced the same and no affidavit of 65B) (However, since original passbook was produced for comparison, objection is overrulled)
7. Copy of rent agreement Ex. D1W1/7 (colly) dated 29.10.2009
8. Letter dated 29.05.2009 Ex. D1W1/8 sent by MCD to Satish Chander Kalia
9. Copies of house tax receipts Ex. D1W1/9 (colly)
10. Copies of income tax Ex. D1W1/10 (colly) returns for the financial CS No. 57109/2016 Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 13 of 34 years 2010-2011 and 2011- 2012
11. Affidavit dated 24.01.2023 Ex. D1W1/11 (Objected to as the affidavit is in English and Sunita does not know English) (The mother of the parties has already testified before the Court as D5W1)
12. Photographs Ex. D1W1/13 (colly)
13. Photographs of the gallery Mark X
14. Photograph showing Late Mark Y Sh. Ved Prakash Kalia after the paralytic stroke
12. D2W1, Dr. Virender Sharma one of the attesting witness to the Gift Deed dated 09.01.2009 (Ex. D5W1/1) tendered his evidence by way of affidavit Ex. D2W1/A and deposed that he went to the office of Registrar IX, Kapershera on the request of Late Sh. Ved Prakash Kalia. He identified his signatures at point C on the last page of the Will, signatures and thumb impression of Late Sh. Ved Prakash Kalia at points A and B and signature of Sh. J.B. Malik, Advocate at point D. 12.1 The witnesses were duly cross-examined by Ld. Counsel for the plaintiff.
CS No. 57109/2016Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 14 of 34 PLAINTIFF EVIDENCE
13. In order to prove its case, the plaintiff examined himself as PW-1 and tendered his evidence by way of affidavit which is Ex. PW1/A and tendered the following documents:
Sr. No. Documents Exhibited as
1. Death certificate of Late Ved Ex. PW1/1
Prakash Kalia
2. Copy of letter dated 20.07.2012 sent Ex. PW1/2 by MCD to the plaintiff (objected to the mode of proof)
3. Copy of letter dated 12.10.2012 sent Ex. PW1/3 by NDMC to the plaintiff (objected to the mode of proof)
4. Copy of mutation letter dated Ex. PW1/4 21.05.2009 (objected to the mode of proof)
5. Affidavit and indemnity bond of Ex. PW1/5 (colly) Satish Chander Kalia (objected to the mode of proof)
6. Invoice of refrigerator in the name Ex. PW1/6 of Bhawna
7. Will of Late Ved Prakash Kalia Ex. D1W1/P1
8. Copy of discharge summary dated Ex. D1W1-1/P3 25.02.21008 and other medical (colly) documents of Late Ved Prakash Kalia
9. Gift deed dated 09.01.2009 Ex. D5W1/1
10. Cancellation of the revocation deed Ex. D5W1/2 dated 21.01.2009
11. Copy of passbook of Sh. Ved Ex. D1W1/P2 CS No. 57109/2016 Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 15 of 34 Prakash Kalia
12. House Tax receipts for the year Ex. PW1/D5 2010-2011
13. Office copy of complaint EX. PW1/XY (colly 8 pages)
14. Photographs Ex. PW1/D1 to Ex. PW1/D7
14. Sh. Ashok Sharma husband of defendant no.3 was examined as PW-2. He tendered his evidence by way of affidavit Ex. PW2/A. He deposed about the medical condition of Late Sh. Ved Prakash Kalia.
15. PW 3 Sh. Raj Pal Kalia cousin brother of Late Sh. Ved Prakash Kalia tendered his evidence by way of affidavit Ex. PW3/A. He deposed about the medical condition of Late Sh. Ved Prakash Kalia.
16. PW4 Sh. Arun Gola attesting witness to the Will (Ex. D1W1/P1) tendered his evidence by way of affidavit Ex. PW4/A to prove the same.
17. PW5 Dr. Ranjeet Kumar Singh Handwriting Expert tendered his report Ex. PW5/A and relied upon CD Ex. PW5/B.
18. All the witnesses were cross-examined by Ld. Counsel for defendants. Thereafter, the plaintiff evidence was closed.
CS No. 57109/2016Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 16 of 34 FINAL ARGUMENTS
19. Final arguments have been advanced by Sh. S.C. Singhal, Ld. Counsel on behalf of the plaintiff and Sh. Gaurav Seth, Ld. Counsel for defendants no. 1 and 2.
20. It has been argued on behalf of the plaintiff that execution of Will (Ex. D1W1/P1) is not a matter in issue as all the defendants admit to its execution. However, the purported revocation through Ex. D5W1/2 dated 21.01.2009 is a document which is shrouded in doubts. It has been canvassed that the document admittedly, was not in the handwriting of the testator and the placement of signatures of the testator and defendant no. 5 on the document raises suspicion that it is a fabricated piece of document. To raise doubts on the circumstances when purported revocation has been shown, it has been argued that from the evidence of defendant no.1, it can be gathered that the same lawyer who drafted the Gift Deed (Ex. D5W1/1) was also consulted for revocation of the Will vide Ex. D5W1/2 which is immediately prior to the death of Sh. Ved Prakash Kalia. Referring to the timeline of execution of documents, doubts have been raised on Revocation Letter (Ex. D5W1/2) and execution of Gift Deed (Ex. D5W1/1) and only a month before the death of Late Sh. Ved Prakash Kalia. Further, when a lawyer was called for preparing a Gift Deed, it has not been explained why revocation of Will did not happen then. Also, leading the Court CS No. 57109/2016 Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 17 of 34 through the statement of D1W5, it has been submitted that if she did not sign the document, how her signature featured there. Further, leading the Court through cross examination of D1W1, it has been urged that Late Sh. Ved Prakash Kalia maintained diary and neither the Gift Deed nor the diary entries mention about revocation of Will which is suspicious. It has been clarified that the reason why constructed portion of second floor was willed in favour of the plaintiff is because of the contribution by his wife towards its construction which was not repaid to her. Referring to Gift Deed (Ex. D5W1/1), it has been argued that the photograph taken at the Sub-Registrar's Office, shows the frail physical condition of Late Sh. Ved Prakash Kalia which is also corroborated by medical documents Ex. D1W1/P3. It has also been submitted that another doubtful circumstance around genuineness of Gift Deed (Ex. D5W1/1) is that even though, defendant no. 5 accompanied late Sh. Ved Prakash Kalia to the Sub-Registrar's office, she did not sign the document as a witness. Further, even the independence of witnesses to Gift Deed (Ex. D5W1/1) has been questioned stating that one witness is the physiotherapist of Late Sh. Ved Prakash Kalia (to whom favour was extended) and the second witness is the brother of defendant no.2. Also, leading the Court through the testimony of DW2, it has been argued that precarious medical condition of Late Sh. Ved Prakash Kalia at the time of execution of Gift Deed is evident.
CS No. 57109/2016Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 18 of 34
21. Per contra, much emphasis has been laid on testimony of defendant no.5 as D5W1 who being the mother of defendant no.1 and the plaintiff, supported defendant no. 1 even though, the plaintiff claimed that he had cordial relationship with her till 2012 (in his cross examination). It has been submitted that even the amended plaint filed is silent about any allegation of undue influence practised upon defendant no. 5 by defendants no. 1 and 2 and also there is no averment of her being of dominant character. It has been argued that no replication to her written statement came to be filed. Referring to replication to written statement of defendant no.1 and 2, it has been submitted that only explanation given is that defendant no. 5 was "misguided" being illiterate. However, there is no explanation as to why would defendant no. 5 concur in favor of Gift Deed (Ex. D5W1/1) when infact, the Will (Ex. D1W1/P1) gave her a life estate in the suit property. Drawing the attention of the Court through the examination of defendant no. 5 as D5W1, it has been urged that she has been a natural witness, candidly deposing about the medical condition of her husband. It has been argued that she did not come to depose before the Court with a pre-meditated mind and was fair. Further, it has been adumbrated that even during her cross examination, there has been no suggestions directed towards her being "misguided' or illiterate.
22. On alleged medical condition of Late Sh. Ved Prakash CS No. 57109/2016 Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 19 of 34 Kalia, it has been argued that discharge summary (Ex. D1W1/P3) mentions that when he was discharged his "condition had improved significantly" and he was discharged in a stable condition. Ld. Counsel has submitted that the medical conditions hyped by the plaintiff did not affect the cognitive abilities of Late Sh. Ved Prakash Kalia. As regards, his feeble physical condition and his being on the wheel chair at the time of execution of Gift Deed, it has been submitted that the same is not sufficient to question the mental capacity of Late Sh. Ved Prakash Kalia. Additionally, it has been submitted that from the medical documents relied upon by the plaintiff, no conclusive finding that Late Sh. Ved Prakash Kalia was mentally invalid can be arrived at. It has been argued that even though paragraph no.12 of the plaint pleads fraud as grounds for cancellation, the same has not been explained. It has been argued that the signature of Late Sh. Ved Prakash Kalia on the Gift Deed is not disputed. Further, it has been argued that the Will has not been proved by examining its witnesses and mere admission by the plaintiff of its execution is not sufficient. Reliance has been placed upon Govindbhai Chhotabhai Patel & Ors Vs. Patel Ramanbhai Mathurbhai 1 As regards revocation of Will, it has been argued that in view of proof of valid execution of Gift Deed, not much relevance can be attached to it.
1 Civil Appeal No. 7528 of 2019 (Arising Out of SLP(Civil) No. 43782 of 2019) decided on 23.09.2019 CS No. 57109/2016 Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 20 of 34 REASONING AND APPRECIATION OF MATERIAL ON RECORD
23. The Court has considered the submissions and material on record.
ISSUEWISE FINDINGS
6. Whether the Will dated 14th June, 2000 of Late Shri Ved Prakash Kalia is a legal and valid Will? OPD
24. The onus to prove this issue is upon the defendant. However, in the considered view of this Court, the onus should be on the plaintiff who has propounded the Will.
24.1 At this stage, when the Court has been called upon to decide upon the legality and validity of the Will.
24.2 In Kavita Kanwar v Pamela Mehta2 it has been held as under :
24.1. In the case of H. Venkatachala Iyengar (supra), a 3-
Judge Bench of this Court traversed through the vistas of the issues related with execution and proof of Will and enunciated a few fundamental guiding principles that have consistently been followed and applied in almost all the cases involving such issues. The synthesis and exposition by this Court in paragraphs 18 to 22 of the said decision could be usefully reproduced as under:-
"18. What is the true legal position in the matter of proof of wills? It is well known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject.
2 Civil Appeal No. 3688 OF 2017 decided on 19 May, 2020 CS No. 57109/2016 Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 21 of 34 The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. S. 67 and 68, Evidence Act are relevant for this purpose. Under S. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained?
Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would CS No. 57109/2016 Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 22 of 34 be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson, 50 Cal W N 895 : (AIR 1946 PC 156), "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect." (emphasis supplied) 24.3 The Will has been propounded by the plaintiff. As can be gathered from written statement of all the defendants, the execution of the Will (Ex. D1W1/P1) has not been disputed. Only that it is the stand of defendants no. 1 ,2 and 5 that the same was revoked vide revocation dated 21.01.2002 (Ex. D5W1/2). Witness to the Will (Ex.D1W1/P1), Sh. Arun Gola has been examined as PW4. He has identified the signature of Late Sh. Ved Prakash Kalia on the same and also of another witness Sh. J.B. Malik on the Will. There is also no iota of material that CS No. 57109/2016 Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 23 of 34 suggests that when Will (Ex. D1W1/P1) had been executed, the testator was suffering from mental incapacity to understand the consequences of his act. Thus, the legality and validity of Will (Ex. D1W1/P1 ) has remained unchallenged.
24.4 Accordingly, the issue is decided in favor of the plaintiff.
ISSUES NO. 1, 3 AND 5.
1. Whether the suit is without cause of action? OPD
3. Whether the Will dated 14th June, 2000 was validly revoked by Late Shri Ved Prakash Kalia? If so, its effect? OPD
5. Whether the plaintiff is entitled to a decree of declaration as prayed for? OPP
25. Onus to prove issues no. 1 and 3 is upon the defendants and issue no. 5 is upon the plaintiff.
25.1 The issues are inter linked and therefore, taken up for consideration together.
25.2 Reliance has been placed by defendants no. 1, 2 and 5 upon revocation letter dated 21.01.2009 (Ex. D5W1/2) to show that Late Sh. Ved Prakash Kalia had revoked his Will dated 14.06.2000 (Ex. D1W1/P1. However, during the course of arguments, Ld. Counsel for defendants no. 1 and 2, also submitted that the document loses its relevance once the execution of the Gift Deed has also been established. Per contra, CS No. 57109/2016 Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 24 of 34 the challenge to revocation deed (Ex. D5W1/2 is premised upon it being a fabricated document as it is not in the handwriting of Late Ved Prakash Kalia and also as the placement of the signatures of defendant no. 5 and Sh. Ved Prakash Kalia is impetuous. It is a matter of common knowledge that a Will takes effect on the death of the testator and prior thereto, at any time before his / her demise, the testator can revoke or change it. To bring about the revocation, the testator is merely required to take some action to indicate that they do not want the Will's condition to be legally binding, any further. The intention of the testator is required to be exhibited with clarity whether expressly or impliedly and the act of revocation has to be gathered to be consistent with his intention. It appears that to fortify their stand of revocation, defendants no. 1, and 5 adduced in evidence the codicil i.e. revocation letter (Ex. D5W1/2). The document was objected to as it was not filed alongwith the written statement. Plaintiff himself examined handwriting expert as PW5 upon the same documents to disprove the same and has thus relied upon it. Hence the objection stands overruled. Be that as it may, the contents of the document were sought to be proved by defendant no.5. However, during cross-examination she stated as under :
"I cannot read Ex. D5W1/2 as it is in English language. The document Ex. D5W1/2 was not written in my presence. The signatures at point A are of my husband and he had signed in my presence on 21st January. The document also bears my signatures at point B. This document was executed for revocation of WILL"CS No. 57109/2016
Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 25 of 34 25.3 Considering that neither parties could identify the handwriting of the contents of the document Ex. D5W1/2 and as D5W1 also did not admit that it was written in her presence, the contents remained unproved. Also, the circumstances under which the document was prepared become suspicious in view of cross-examination of defendant no.1 ( D1W1) dated 21.05.2018 that when legal advice for revocation had been obtained and Gift Deed was drafted, why contemporaneously, the draft of revocation letter (Ex. D5W1/2) would not have also been prepared.
25.4 However, there also is another act on the part of Late Sh. Ved Prakash Kalia which has been propounded by defendants no.1 , 2 and 5 and which if proved can be a codicil. It is the execution of Gift Deed dated 09.01.2009 (Ex. D5W1/1). The execution of Gift Deed per se is not under controversy. However, what is in issue is the circumstances under which it was got executed i.e. at a time when Late Sh. Ved Prakash Kalia was medically incapacitated to evaluate the consequences of his acts and thus, the document is stated to be involuntary. It thus now becomes relevant to examine the contrary evidence led by the parties to that effect. Before proceeding further, the Court seeks to remind that in Ashok Bauri Vs. State3 the Delhi High Court in has held that :
"12. The common course of natural events and human conduct is of soundness of mind and 3 2021, SCC Online Delhi 1248 CS No. 57109/2016 Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 26 of 34 unsoundness of mind in aberration. If a testator / testatrix has led a normal life, performed day to day functions in the normal course of human conduct, the presumption under Section 114 would be of soundness rather than unsoundness of mind."
25.5 The onus that the Gift Deed was executed in sound mental condition by Late Sh. Ved Prakash Kalia would be upon defendants no. 1 and 2. The material witness examined by the defendants is defendant no.5, in this regard. She affirmed in her examination in chief that Late Sh. Ved Prakash Kalia did not suffer from any ailment that adversely impacted his cognitive abilities. Thereafter, she has been extensively cross-examined on the health condition of her husband. During cross-examination she stated as under :
"My husband expired on 02.02.2009 and he was admitted in the hospital one year prior to his death. My husband was admitted in the hospital twice before his death. He suffered a paralytic attack on his left side when he was admitted for the first time in the hospital. It is correct that at the time he was unable to speak properly. It is correct that he was unable to get up and walk himself. It is correct that his daily routines were also done on his bed. It is wrong to suggest that he was to be fed food by other. (Vol.) After discharge from the hospital, he was able to eat food himself. Dr. Ashok Sharma was treating my husband before his death. On my enquiry, Dr. Ashok Sharma had assured me that my husband would get cured although it would take some time and my husband was also recovering from his illness. It is wrong to suggest that my husband was seriously sick and was unable to remember the things and was unable to speak properly. It is wrong to suggest that this fact was duly disclosed to the entire family by the treating doctor and he was always given sedatives and inasmumch as he was advised to be given sodium diet as he was having shortage of sodium."CS No. 57109/2016
Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 27 of 34 25.6 Hence, from her cross-examination not much could be elicited about the deteriorating cognitive facilities of Late Sh. Ved Prakash Kalia. Then defendant no.1 has also testified as D1W1 that after hospitalization from 22-23 days pursuant to the paralytic attack Sh. Ved Prakash Kalia had regained his full health and there was no memory loss suffered by him. It has been denied that Sh. Ved Prakash Kalia was administered medicines affecting his cognitive abilities and it is asserted that he continued to be in a sound and disposing state of mind. It is also affirmed that the Sub-Registrar at the time of registration of the Gift Deed personally interacted with Late Sh. Ved Prakash Kalia and the latter explained that he was aware of what he was doing and also that his act of gifting was rudimentary. Defendant no.1 has denied having practised undue influence or coercion upon his father to obtain a favourable Gift Deed. Further, to assert the sound mental health of Late Sh. Ved Prakash Kalia, reference has been made to attendance of Sh. Ved Prakash Kalia on his 83rd Birthday celebrations hosted by Senior Citizen's Forum, Inderpuri and marriage ceremonies of his grand children. Thereafter, by relying upon copies of passbook (Ex. D1W1/6) of Sh. Ved Prakash Kalia it has been sought to be demonstrated that he was actively operating his bank account even after paralytic attack and marked his presence at the concerned bank to receive his pension. Yet again, during cross-examination, the witness denied the suggestions that his father was not in a fit mental state at the time of execution of the Gift Deed. Though, there is some CS No. 57109/2016 Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 28 of 34 admission about physical incapacity and slurred speech but, both the parties have relied upon discharge summary dated 25.02.2008 issued by RLKC Hospital Metro heart Institute (Ex. D1W1/P3 (colly) and as per the same on the date of discharge, it is specifically recorded "There has been minimal improvement in his left sided weakness, but speech and other aspects have improved significantly and he is discharged in a stable condition".
25.7 On the contrary, the evidence on aforesaid issue led by the plaintiff are his own testimony, testimonies of Sh. Ashok Sharma (PW2) and Sh. Rajpal Kalia (PW3). So far as the testimony of Sh. Ashok Sharma (PW2) is concerned, even though, he stated in his affidavit Ex. PW2/A that on account of old age and week health, late Sh. Ved Prakash Kalia was losing his memory and after February, 2008, was unable to speak properly and was not having perfect cognitive abilities, it can be gathered from his cross examination that he had no knowledge about the transactions, about Late Sh. Ved Prakash Kalia having attending marriage ceremonies in the family and whether, as a pensioner, he continued to mark his presence at his bank to receive the pension. Considering that he is the son in law of Late Sh. Ved Prakash Kalia, it is difficult to appreciate as to how he would not be aware whether Sh. Ved Prakash Kalia attended the marriage ceremonies of his grand children. It is not the case that the witness was having constrained relationship with Late Sh. Ved CS No. 57109/2016 Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 29 of 34 Prakash Kalia's family. Therefore, this Court is of the view that the testimony of the witness is not reliable. Now, Sh. Raj Pal Kalia (PW3) also asserted that Late Sh. Ved Prakash Kalia was not of a sound disposing mind after his hospitalization in February, 2008, it also emanated during cross-examination that he had inimical disposition towards defendant no.1 as defendant no.1 had not deposed in favour of Sh. Raj Pal Kalia (PW3) in another litigation preferred by Sh. Raj Pal Kalia against M/s Venus Card Manufacturing. Thus, even his testimony cannot be relied upon. However, the plaintiff himself (as PW1) testified about the specific medical conditions of Late Sh. Ved Prakash Kalia and his diagnosis and affirmed that the doctors had advised that on account of medical conditions (metabolic emcephalopathy, hypoatremia, CBA with left hemiplegic and hypertension), Late Sh. Ved Prakash Kalia would lose ability to talk, take independent decisions and look after himself. During his cross examination, he admitted that he did not have medical acumen. It was also elicited from him that he had personal interactions with Dr. Ashok Sharma and Dr. Vivek who were treating his father, but, he was unable to produce any medical prescription from Dr. Vivek (Neurologist) for the period from March, 2008 till death of Late Sh. Ved Prakash Kalia to substantiate his claim. None of the doctors who would have been competent to testify on the lack of cognitive capabilities of Late Sh. Ved Prakash Kalia was examined by the plaintiff. Also, the testimony of the plaintiff qua the inability of Late Sh. Ved CS No. 57109/2016 Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 30 of 34 Prakash Kalia to manage his affairs was traversed by his inability to answer as to how Sh. Ved Prakash Kalia was managing his bank account and receiving his pension. He also wavered on having got Late Sh. Ved Prakash Kalia treated at Dr. RML Hospital till his death.
25.8 Ld. Counsel for the plaintiff has placed much reliance upon the testimony of Dr. Virender Sharma (D2W1) who was the physiotherapist of Late Sh. Ved Prakash Kalia and a witness to the Gift Deed as in his cross examination, the witness stated that besides paralysis, Late Sh. Ved Prakash Kalia also suffered from high blood pressure and lowering of sodium level in his body causing weakness and lethargy and also inability to speak clearly as signs of lack of mental capacity to execute the Gift Deed (Ex.D5W1/1). Also, reference has been made to his admission that some of the medical conditions suffered by Late Sh. Ved Prakash Kalia were "brain related diseases". However, the witness still stated that Sh. Ved Prakash Kalia was not incapable of taking independent decisions of his affairs on 09.01.2009 or that he was suffering from loss of memory.
25.9 In view of the above discussion, preponderance of probabilities tilts in favour of the defendant no.1, 2 and 5 with respect to inability of Late Sh. Ved Prakash Kalia to understand the consequence of his act when the Gift Deed was executed and registered in his presence.
CS No. 57109/2016Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 31 of 34 25.10 A circumstance has been canvassed for the reason why Late Sh. Ved Prakash Kalia had in his Will (Ex.D1W1/P1) decided to bequeath the constructed portion of second floor to the plaintiff as his wife had contributed Rs.1,08,000/- to the construction of that portion which had not been repaid. On the contrary, it is the stand of defendants no.1 , 2 and 5 that the contribution was towards repair and renovation of the ground floor and had been duly returned by Late Sh. Ved Prakash Kalia as he had got issued Kisan Vikas Patr in their favour and also by way of cash. But considering that defendant no. 5, (D5W1) qua whom no evidence has come of having been unduly influenced by defendants no. 1 and 2 and qua whom, even Sh. Ashok Sharma (PW2) and Sh. Rajpal Kalia (PW3) have deposed that he was of a sound mental health and capable of independent decisions, she too has testified what necessitated revocation of the Will (Ex.D5W1/2) and execution of Gift Deed (Ex.D5W1/1). Her testimony of being meted out with harassment and ignominy by the plaintiff and his family has remained unchallenged. There is no reason for discarding her evidence for any reason what so ever, moreso, as even the plaintiff has claimed cordial relationship with her till 2012. Hence, in the considered view of this Court the reason why Will (Ex.D1W1/P1) bequeathed construction portion of second floor alongwith roof rights to the plaintiff loses its relevance.
CS No. 57109/2016Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 32 of 34 25.11 Hence, issue no. 1 is decided in favour of the plaintiff. Issue no. 3 is decided in favour of defendants no. 1, 2 and 5 and issue no. 5 is decided against the plaintiff.
ISSUES NO. 2 AND 42. Whether the suit is bad for mis-joinder of defendant nos. 3 and 4? OPD
4. Whether the suit has not been valued properly for the purposes of court fee? If so, its effect? OPD
26. Onus to prove these issues were upon the defendants. Neither parties have pressed this issue and no arguments were led over these issues. Even though objections were raised in the written statement but they were not substantiated by the defendant. They are decided against the defendant.
ISSUES NO. 7, 8 AND 97. Whether the plaintiff is entitled to a decree of possession as prayed for? OPP
8. Whether the plaintiff is entitled to a decree of mesne profits? If so, at what rate? OPP
9. Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for? OPP
27. Onus to prove these issues were were upon the plaintiff. However, In view of the finding in issue no. 5, these reliefs being consequential in nature cannot be granted and are accordingly, decided against the plaintiff.
CS No. 57109/2016Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 33 of 34 RELIEF
28. In view of the findings and observations herein above, the suit of the plaintiff is dismissed. No order as to cost.
29. Decree Sheet be prepared, accordingly.
30. File be consigned to records.
Pronounced in open Court
on 27.10.2023 (Vijeta Singh Rawat)
Additional District Judge-01,
New Delhi District,
Patiala House Courts,
New Delhi
CS No. 57109/2016
Subhash Kalia Vs. Satish Chander Kalia and Ors. Pages 34 of 34