Delhi District Court
Shri Rajesh Khanna vs Smt. Asha Mehra on 10 April, 2012
IN THE COURT OF JITENDRA KUMAR MISHRA, ADDL.
DISTRICT JUDGE CENTRAL-09: TIS HAZARI COURTS, DELHI
CS N0. 537/01.
UID No.02401C0279612001.
1. Shri Rajesh Khanna
S/o. Late Shri Ramesh Parshad Khanna
2. Ms. Preeti Wahi, W/o Shri Rajiv Wahi
and D/o Late Shri Ramesh Parshad Khanna
Both residents of 710, Katra Neel, Nai Basti
Delhi-110 006.
........... Plaintiffs
Versus
Smt. Asha Mehra
W/o. Shri Bishan Narain Mehra
R/o. A-4/24, Krishna Nagar
Delhi-110 051.
......... Defendant
Date of institution of suit : 19.08.1997
Date of reserving for order : 27.03.2012
Date of judgment : 10.04.2012
JUDGMENT
1. Plaintiffs filed this suit for partition for the property bearing municipal no. A-4/24, Krishna Nagar, Delhi-110051.
2. Briefly stated the facts of the case are :
a) Smt. Maharani Devi, owner of the property died on 26/08/1988 at 710, Katra Neel, Nai Basti, Delhi-110006.
CS No. 537/2001 Page 1
b) Smt. Maharani Devi was the second wife of Sh. Ram Kishan
Dass Khanna. Sh. Ram Kishan Dass Khanna has one daughter
namely Smt. Bhagwanto Devi from his first wife. Sh. Ram Kishan Dass Khanna had another daughter Smt. Asha Mehra from his second wife.
Sh. Ram Kishan Dass Khanna had no son from any of his wives. So he and Smt. Maharani Devi adopted Sh. Ramesh Prashad Khanna as their son who was son of his daughter Smt. Bhagwanto Devi. Sh. Ramesh Kishan Dass Khanna died on 04/10/1971.
c) Smt. Maharani Devi executed her first Will on 12/05/1967 which was registered on 24/05/1967 in favour of the defendant. She executed another Will on 05/03/1972 in favour of her son Sh. Ramesh Parshad Khanna.
e) Smt. Maharani Devi died on 26/08/1988 and her son Sh. Ramesh Parshad Khanna died on 04/11/1987. It is further stated that by Will dated 05/03/1972, Smt. Maharani Devi, cancelled her earlier Will dated 12/05/1967 and bequeathed her property in favour of Sh. Ramesh Parshad Khanna who unfortunately predeceased the testator. She left behind parties to the suit as her legal heirs. All are entitled to inherit their legitimate shares in the property of Smt. Maharani Devi.
3. Written statement was filed on behalf of defendant wherein it is objected that plaintiffs are natural born son and daughter of late Sh. Ramesh Prashad Khanna, who is claimed to have been adopted by Sh. Ram Kishan Dass Khanna in the year 1949. As per Hindu Law relating to adoptions in force at that time, Sh. Ram Kishan Dass Khanna could not have adopted his own daughter's son (Sh. Ramesh Parshad Khanna) and in the absence of a valid adoption, the suit for partition based on a right claimed by virtue of the said adoption must fail. It is further claimed that the defendant is the absolute owner in CS No. 537/2001 Page 2 respect of the suit property by virtue of registered Will dated 12/03/1967 vide which the suit property was bequeathed in her favour by her mother late Smt. Maharani Devi. It is further stated that Will dated 05/03/1972 is forged, fabricated and/or has been surreptitiously prepared by the plaintiffs to deprive the defendant of her absolute right in respect of the suit property. It is further stated that the Will dated 05/03/1972 has been manipulated by the plaintiffs and the same is clouded with mystery and suspicion as the same has not even been registered despite having been allegedly prepared almost 16 years prior to the death of Smt. Maharani Devi. Relationship of the parties are admitted except the fact of adoption of Sh. Ramesh Parshad Khanna which is disputed.
4. Replication to the written statement has filed wherein it is stated that Sh. Ramesh Parshad Khanna was lawfully adopted by Sh. Ram Kishan Dass Khanna on 15/01/1949 and he has also stated so in hisWill dated 15/07/1952. It is further stated that this fact was also stated in order dated 28/05/1952 and decree passed by the competent court at that time. A joint letter dated 23/05/1952 was written by Sh. Nand Lal Mehra, the natural father of Sh. Ramesh Parshad Khanna as well as Sh. Ram Kishan Dass Khanna, adoptive father, to the Principal of L. N. Girdhari Lal K.U. Higher Secondary School, Delhi. Sh. Ram Kishan Dass Khanna solemnised the marriage of Sh. Ramesh Parshad Khanna as his son and it so appeared in all the records e.g. marriage and invitation cards. Rest of the contents of written statement are denied and averments made in the plaint are re-iterated and affirmed.
5. My ld predecessor by order dated 02/09/1999 framed following issues :
"i) Whether suit is valued properly for the purposes of Court Fees and Jurisdiction ? OPP.
CS No. 537/2001 Page 3
ii) Whether plaintiff is entitled for decree as prayed ? OPP.
iii) Relief."
6. The Hon'ble High Court passed an order in RFA No. 67/2003 on 16/05/2011 and directed to frame following two additional issues in this case which are issues no. 4 and 5 in chronological order :
iv) Whether the Will dated 05/03/72 was a valid Will ?
v) Whether Will dated 05/03/72 in fact gave a bequest to Sh. Ramesh Parshad Khanna ?
7. To prove his case, the plaintiff examined himself as PW1 who was cross examined by the counsel for the defendant. Plaintiff further examined Sh. Gambhir Narain Khanna, who also was cross-examined by the defendant. Sh. Nand Lal Khanna was examined as PW3 and Sh. Prem Narain Mehra was examined as PW4. Both these witnesses were cross-examined. Thereafter, ld counsel for the plaintiff closed PE. Defendant examined herself as DW1 and tendered her evidence by way of affidavit. She was cross-examined by ld counsel for plaintiff. Thereafter, ld counsel for the defendant closed DE.
8. Issues no. 2, 4 and 5 Issue No. 2 : Whether plaintiff is entitled for decree as prayed ?
OPP.
Issue No. 4 : Whether the Will dated 05/03/72 was a valid Will ? Issue No. 5 : Whether Will dated 05/03/72 in fact gave a bequest to Sh. Ramesh Parshad Khanna ?
Since all these issues are having effect upon the root and crux of the case, therefore, I am going to decide all these issues by common findings. As per issues framed, the onus to prove these issues must be upon the plaintiff.
CS No. 537/2001 Page 4
9. PW1 in his evidence stated that Smt. Maharani Devi was his grand mother and Sh. Ram Kishan Dass Khanna was his grand father. Sh. Ram Kishan Dass Khanna was having two daughters namely Smt. Bhagwanto Devi and Smt. Asha Mehra i.e. the defendant. Smt. Bhagwanto Devi was born from the first wife and Smt. Asha Mehra from the second wife of late Sh. Ram Kishan Dass Khanna. He has further deposed that Sh. Ram Kishan Dass Khanna and Smt. Maharani Devi had adopted Sh. Ramesh Parshad Khanna, the son of Smt. Bhagwanto Devi as their son and the adoption was as per Hindu Rites and Customs. He further proved certified copy of the Will executed by Sh. Ram Kishan Dass Khanna in the year 1952 as Ex. PW1/1 and translated copy thereof as Ex. PW1/2. He has stated that Will mentions about the adoption of Sh. Ramesh Parshad Khanna. He has further proved documents Ex. PW1/4 to Ex. PW1/11 to show the adoption which are certified copies and originals of these documents were on record before the Hon'ble High Court in another pending suit bearing no. 443/89. It is further stated that adoption of Sh. Ramesh Parshad Khanna was done in the year 1949. He has further stated that Smt. Maharani Devi executed a Will in the year 1967 and thereafter cancelled the said Will and executed another Will in the year 1972 which is Ex. PW1/12. This Will was in favour of the adopted son i.e. Sh. Ramesh Parshad Khanna. He has further stated that Sh. Ramesh Parshad Khanna died prior to the death of Smt. Maharani Devi and, therefore, the said Will became redundant and as such properties of Smt. Maharani Devi devolved in equal shares between her surviving legal heirs. During cross-examination, this witness stated that he came to know about the Will Ex. PW1/12 in the year 1994 while searching the papers lying in the house. The bitter relationship between the defendant and Smt. Maharani Devi came to his CS No. 537/2001 Page 5 knowledge through his parents, grant mother and at times he had also seen. He has admitted that relationship between Smt. Maharani Devi and defendant as stated in cross-examination, has not mentioned in the plaint. He has further admitted that Ex. PW1/12 is unregistered. He admitted that Smt. Maharani Devi had a locker in her name in Punjab National Bank in Krishna Nagar. He has further admitted that after the death of Smt. Bhagwanto Devi her property at Bhola Nath Nagar was mutated in the name of Sh. Ramesh Parshad Khanna and the property has fallen in their (plaintiffs) shares after the death of Sh. Ramesh Parshad Khanna. A suggestion was given that in order to escape the contempt filed by the defendant, the Will executed as Ex. PW1/12 was manufactured by him and the present suit was filed. The said suggestion was denied. It is further suggested that signature on Will Ex. PW1/12 of Smt. Maharani Devi is forged and fabricated and the said suggestion was denied. A further suggestion was given that Sh. Ramesh Parshad Khanna was never legally adopted and was not the adopted son of Sh. Ram Kishan Dass Khanna.
10. PW2 stated that Smt. Maharani Devi had executed a Will in his presence in March, 1972. She had told him that she wanted to cancel her earlier Will because her daughter and son-in-law were misbehaving with her and she wanted to make a fresh Will in favour of Sh. Ramesh Parshad Khanna, the adopted son. He identified her signatures at point A on Ex. PW1/12. He has further stated that the other persons who were present there at that time were Sh. Muni Lal Seth, Sh. P. N. Mehra and others. Sh. Muni Lal Seth had expired. He also identified signature of Sh. Muni Lal Seth on Ex. PW1/12. He has further stated that Sh. P. N. Mehra and Smt. Maharani Devi had signed together along with him and all the persons in the presence of each other. He CS No. 537/2001 Page 6 has further stated that Sh. Ramesh Parshad Khanna was adopted by Sh. Ram Kishan Dass Khanna and he married to his youngest sister Savita in the year 1965. He has further stated in their community (Khatri), it was a common practice to adopt the daughter's son. During cross-examination, this witness stated that the Will was got written by Sh. Muni Lal Seth from someone whom he did not know. The Will was written in the property no. 710, Katra Nil in the presence of Smt. Maharani Devi, himself, Sh. Muni Lal Seth, Sh. P. N. Mehra and others. He knew Sh. P. N. Mehra even much prior from the date of execution of the Will. He has further stated that in the year 1967, he was not aware about the existence of Will of Smt. Maharani Devi. His relationship and association with the family of Smt. Maharani Devi relates back to the year 1965. He knew Sh. Ram Kishan Dass Khanna since his childhood. A suggestion was given that the adoption of the daughter's son at the time when Sh. Ramesh Parshad Khanna was adopted not legal. This suggestion was denied by this witness. He has further stated that he knew Smt. Bahgwanto Devi and also know that she owned a plot in Bhola Nath Nagar. This property was mutated in the name of Sh. Ramesh Parshad Khanna after the death of Smt. Bhagwanto Devi. He did not know that the previous Will of Smt. Maharani Devi of 1967 was a registered Will. He did not know about the said Will. He had read the contents of Ex. PW1/12. Here this court referred Ex. PW1/12. In para 3 of Ex. PW1/12, there is a description of a registered Will dated 24/05/1967 and fact of cancellation by late Smt. Maharani Devi. But this witness in a single statement stated that he did not know that the previous Will of Smt. Maharani Devi of 1967 was a registered Will and he has further stated that he had read the contents of Ex. PW1/12. He has further stated that the Will was written in his presence along with Smt. Maharani Devi and other persons as CS No. 537/2001 Page 7 referred herein above.
11. He has further stated that he could not say why the Will Ex. PW1/12 was not got registered. A suggestion was also given that being related to Sh. Ramesh Parshad Khanna, he has colluded and connived with the alleged manufacturer of the said Will and the said suggestion was denied. He has further stated that he could not say in whose handwriting the date 05/03/1972 has been written in English on Ex. PW1/12.
12. PW2 has stated in his evidence that he did not know the previous Will of Smt. Maharani Devi of 1967 was a registered Will. He has further stated that he did not see the Will of 1967. This witness earlier stated that the Will was written in the property no. 710, Katra Neel in the presence of Smt. Maharani Devi, himself, Sh. Muni Lal Seth, Sh. P. N. Mehra and others. Ex. PW1/12 is carefully perused. In para 3 of Ex. PW1/12 entire description of registered Will which was registered on 24/05/1967 has been given including book number, page number, registration number, which was not possible in ordinary human course of conduct unless the registered Will or copy thereof was available at the time of writing of Will Ex. PW1/12. An old lady i.e. Smt. Maharani Devi cannot be presumed or imagined to remember all such details of her earlier Will executed in the year 1967. Moreover, it is not the case of any attesting witness that she had given all such details to the scriber of the Will. It is also not the case of the parties that Smt. Maharani Devi had gone some specific place to execute the Will. It is not the case of the parties that any typewriter was available to type the Will or the said Will was typed at the dictation of Smt. Maharani Devi. The place of writing of the Will is same i.e. the house of Smt. Maharani CS No. 537/2001 Page 8 Devi which is apparently clear from Ex. PW1/12 where the house number of Smt. Maharani Devi has been mentioned as has been observed herein above. In ordinary course an old aged lady cannot be presumed to have a typewriter especially of Hindi or Devnagiri script in her own house where anyone would come and typed in Hindi her Will. It is not the case even of a single witness that any typewriter was brought by scriber of the Will to the house of Smt. Maharani Devi i.e. the testator. It is already admitted by PW4 that the Will was not prepared in his presence, though, it is stated by PW2 that PW4 was present at the time of preparation of the Will. PW2 even does not remember who had read over the Will. PW4 further stated that he heard from neighbour about the earlier Will of Smt. Maharani Devi but the fact remains that earlier Will of Smt. Maharani Devi has found mentioned in Ex. PW1/12 itself. Therefore, the court has to draw inference that this witness is not stating truth about the fact that he was present when the Will was read over because he would have present then definitely as per para 3 of Ex. PW1/12, he would have aware about the existence of earlier Will executed in the year 1967. This witness is also not aware in whose favour the earlier Will was executed and the said Will was registered. PW4 has also stated that date 05/03/1972 written on Ex PW1/12 was not written in his presence. In Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and others AIR 1977 SC 74, it was held by Hon'ble Supreme Court :
"8. ....... In other words, the burden lies on the party which would fail in the suit if no evidence were led on the fact alleged by him. Accordingly, the defendant ought to have led satisfactory evidence to prove the due execution of the will by his grandfather Sardar Gobinder Singh."
13. PW4 is another attesting witness who also deposed on the similar lines as PW2 has stated and also identified his signatures at point 'H' on Ex.
CS No. 537/2001 Page 9 PW1/12. This witness in cross-examination has stated that he did not know who had prepared the Will Ex. PW1/12. It is further stated that the Will was not prepared in his presence. He has further stated that he was present when the said Will was read over but he did not remember who had read over the Will. He has further stated that he had heard from neighbours about the earlier Will of Smt. Maharani Devi. He has further stated that he did not remember whether any reference was made with respect to the earlier Will at the time of execution of Ex. PW1/12 by Smt. Maharani Devi. He has further stated that he did not know whether the earlier Will was registered. He has further stated that the hand written date on page 3 of the Will Ex PW1/12 as 05/03/1972 was not written in his presence nor could he tell who had written it. He has further stated that he was not told by Smt. Maharani Devi of any reason of any strained relations with her daughter Smt. Asha Mehra.
14. In view of discussion of evidence of PW1, PW2 and PW4, it comes out that there were material contradictions regarding Will dated 05/03/1972 i.e. Ex. PW1/12 as submitted by the witness before this court. PW4 has specifically stated as observed that he did not remember who had read over the Will. Similarly, no such statement has been made by PW2 that who had read over the said Will Ex. PW1/12. PW1 stated that he came to know about the Will Ex. PW1/12 in the year 1994 while searching the papers lying in the house.
In Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and others (supra) it was further held by Hon'ble Supreme Court :
"19. ...... It is not known why, if he knew that the property was bequeathed to the defendant, he did not, at least after the testator's death, inform the defendant of the existence of the will."
CS No. 537/2001 Page 10 Similarly in Bharpur Singh and others Vs. Shamsher Singh (2009) 3 Supreme Court Cases 687, the Hon'ble Supreme Court has held that if the Will did not see the light of the day for long then it will also cause suspicious circumstances surrounding the execution of the Will. The Will was executed in the year 1972 and it is the case of the plaintiff that in the year 1994 while searching the papers, he came to know about the Will Ex. PW1/12. Admittedly, Smt. Maharani Devi died in the year 1988, then what was the reason that neither the plaintiff got knowledge about the execution of the Will Ex. PW1/12 nor any of the attesting witness had informed about the execution of the Will to the plaintiffs.
In Jaswant Kaur Vs. Smt. Amrit Kaur and others (supra), it was held by Hon'ble Supreme Court in para 14 :
"14. ..... But it is ununderstandable that a document by which property worth lakhs of rupees was disposed of should have remained a closely guarded secret from the whole world of intimate friends and relatives, nay, from the sole legatee himself, for over 2½ years after the testator's death. The testator had left behind him a large property and along with it a large amount of litigation which makes it impossible to believe that upon his death in December 1954, no one bothered to go through his papers which would reflect the state and extent of his property. The explanation of the defendant that he hit upon the will by chance while going through some papers of his grant-father is therefore patently lame and unacceptable."
Moreover, in the present case, the Will in Hindi was a typed one. As already stated by PW2 that who got written the Will, he did not know. No witness has disclosed who scribe the Will. The Hon'ble Supreme Court in Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria and others (2008) 15 Supreme Court Cases 365 held in Para 16 :
CS No. 537/2001 Page 11 "16. The will was in Gujarati. It was a typed one. Who scribed the will is not known. Why typed the same is also not known....."
The Hon'ble Supreme Court in Smt. Indu Bala Bose and others Vs. Manindra Chandra Bose and another (1982) I Supreme Court Cases 20 has held in para 14 :
"14....... Nobody would normally invite a stranger or a foe to be a scribe or a witness of a document executed by or in his favour; normally a known and reliable person, a friend or a relation is called for the purpose......."
Moreover, nobody has disclosed the name of the scriber of the Will. It is also not the case of any of the party that Smt. Maharani Devi known the scriber of the Will or he was a reliable person.
It is admitted case of the parties that PW2 is maternal uncle (Mama) of PW1, then how it is possible that for more than 20 years and i.e. after the death of about nine years PW1 was not aware about existence of Ex. PW1/12. All the witnesses either PW1, PW2 or PW4 did not state in whose possession Ex. PW1/12 was remained up to the year 1994 or after execution of this Will, Smt. Maharani Devi had handed over the same to which person. It is admitted case of the parties that Smt. Maharani Devi had locker in her name with the Punjab National Bank in Krishna Nagar. But it is not the case that the said Will was lying either in the locker or in safe place. Again at the sake of repetition, during cross examination PW1 had stated that in the year 1994 when he was searching the papers lying in his house, he came to know about the Will Ex. PW1/12. It is not the case of either of the parties that Ex. PW1/12 was kept by Smt. Maharani Devi. It is highly improbable that an old aged lady got written a Will in presence of many people signed it and also got signature of attesting witnesses but did not tell about the place where the said Will was kept in the custody or has given the custody of the said Will. This conduct cannot CS No. 537/2001 Page 12 be possible of a lady who was well aware that she had earlier executed a Will in the year 1967 and after five years she was going to cancel the Will by writing another Will especially an unregistered Will. It means that the said testator Smt. Maharani Devi was well aware about the importance and consequences of the Will. It is highly improbable that when she could go to get registered a Will in the year 1967 then why she did not go to register the Will in the year 1972 when admittedly she survived thereafter for about 14 years. Moreover, the testimony given by PW2 and PW4 who are attesting witness is again do not inspire confidence. It is again highly improbable that the said lady would allow a person of whose identity neither attesting witness is able to disclose nor any persons able to disclose to write such an important document where only important persons were present. Thus, all such circumstances and facts which have been observed herein above create suspicion in the mind of the court regarding the validity of Ex. PW1/12.
15. There is another important aspect which cannot be overlooked in this case. It is the case of the plaintiff that Smt. Maharani Devi had cancelled her earlier Will executed in the year 1967 due to misbehaviour of the defendant but the fact remains that nothing about the misbehaviour of defendant has been mentioned in Ex. PW1/12. Even not a single incident or whisper has been stated in Ex. PW1/12. Another important factor which has been discussed earlier also that the date in the Will i.e. 05/03/72 has been written in ink wherein the entire Will was prepared by a typewriter at the same time then what was the necessity to right the date by ink has not been explained by any of the witness. This court cannot overlooked the fact that three attesting witnesses have signed the Will and all of them have written the date CS No. 537/2001 Page 13 along with their signatures but signature of the testator i.e. of Smt. Maharani Devi was without date. This suspicious circumstance has not been explained by any of the attesting witness.
16. In view of the observations made herein above, this court is of the considered opinion that Ex. PW1/12 i.e. Will of 1972 has not been proved as the execution thereof is covered with suspicious circumstances.
17. It is the admitted case of the parties that Smt. Maharani Devi had executed a Will dated 12/05/1967 which was registered on 24/05/1967 in favour of the defendant. In such circumstances, the case of the defendant regarding execution of Will dated 12/05/1967 is an admitted fact and has not challenged by any of the parties to the suit. Will dated 12/05/1967 has been tendered in evidence as Ex. DW1/1, though, the said Will has not been proved by the defendant as per the provisions of Section 68 of Indian Evidence Act. But when none of the parties has challenged the execution of the said Will then the existence of the said Will cannot be denied. Thus, the admission of the plaintiffs for execution of Will Ex. DW1/1 shall be a sufficient proof of its execution as against the defendants, though Ex. DW1/1 is a document required by law to be attested and to be proved in accordance with the provisions of Indian Evidence Act.
18. In view of the observations made herein above, issue no. 4 i.e. validity of Will dated 05/03/1972 is decided against the plaintiffs and in favour of the defendant inasmuch as Will dated 05/03/1972 is not a Will properly executed by late Smt. Maharani Devi. Consequently, issue no. 5 is also decided against the plaintiffs and in favour of the CS No. 537/2001 Page 14 defendant as there was no bequest in favour of Sh. Ramesh Parshad Khanna. Since, issues no. 4 and 5 are already decided in favour of the defendant and against the plaintiffs, therefore, Section 73, Section 105 and Section 109 of Indian Succession Act, 1925 are not going to help the plaintiffs in any manner.
19. Consequently, issue no. 2 is also decided against the plaintiffs as plaintiffs are not able to prove the cancellation of Will Ex. DW1/1, which was executed in the year 1967 by late Smt. Maharani Devi. This issue is also answered against the plaintiffs.
20. Issue No. 1.
Whether suit is valued properly for the purposes of Court Fees and Jurisdiction? OPP.
Onus to prove issue no. 1 was upon the plaintiff. In the year 1997 i.e. when the suit was filed, the plaintiff valued the suit property for the purpose of court fees and jurisdiction of about Rs 4 lacs. In reply to these averments of the plaint, the defendant has stated in the written statement that the market value of the suit property on the date of filing of the suit was much more than what has been computed by the plaintiffs. However, no specific value of the suit property on the date of filing of the suit has been given by the defendant either during her evidence or in her pleadings. Therefore, plaintiff has successfully proved this issue and accordingly this issue is answered in favour of the plaintiff.
21. Issue No. 3
Relief
CS No. 537/2001 Page 15
In view of the observations made herein above, the suit of the plaintiff is dismissed. There is no order of cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open (Jitendra Kumar Mishra) court on 10/04/2012. Additional District Judge-09 Central District, Tis Hazari Courts Delhi CS No. 537/2001 Page 16