Delhi District Court
Surinder Vij vs Kamlesh Sethi Ors on 20 September, 2024
Suit No. 16325/16 Page 1 of 57
IN THE COURT OF SH. DIVYANG THAKUR
DISTRICT JUDGE-03:
SOUTH WEST DISTRICT: DWARKA COURTS:NEW DELHI
Civil Suit No. 16325/2016
CNR No. DLSW01-001804-2016
In the matter of :
Smt. Surinder Vij (Sister)
D/o Late Sh. Amar Nath Sethi
W/o Shri Yashpal Vij
R/o 422, Bhera Enclave,
Paschim Vihar, Delhi
....Plaintiff
Versus
1. Smt. Kamlesh Sethi (Sister-in-law)
W/o Late Sh. Satish Kumar Sethi (predeceased brother)
R/o 211, DDA MIG Flats, Old Prasad Nagar, Delhi
Also at:
12, Maher Close, Beecraft, NSW 2119
Australia
2. Sh. Gaurav Sethi (Nephew)
S/o Late Sh. Satish Kumar Sethi (predeceased brother)
R/o 211, DDA MIG Flats,
Old Prasad Nagar, Delhi
Also at:
12, Maher Close, Beecraft, NSW 2119
Australia
3. Smt. Shagun Shankar (Niece)
Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors.
Suit No. 16325/16 Page 2 of 57
D/o Late Sh. Satish Kumar Sethi (predeceased brother)
R/o 211, DDA MIG Flats,
Old Prasad Nagar, Delhi
Also at:
11, Third Avenue, Epping, NSW 2121, Australia
4. Dr. Shairy Chhabra (Niece)
D/o Late Sh. Satish Kumar Sethi (predeceased brother)
R/o 211, DDA MIG Flats,
Old Prasad Nagar, Delhi
Also at:
1, Sunset Road North,
Albertson, NY 11507, USA
5. Sh. Manish Kapur (Nephew)
S/o Late Smt. Rita Kapur (predeceased sister)
R/o 15E, Mata Sundari Place,
Deen Dayal Upadhyay Marg, New Delhi-110001
6. Sh. Ashish Kapur (Nephew)
S/o Late Smt. Rita Kapoor (predeceased sister)
R/o 15E, Mata Sundari Place,
Deen Dayal Upadhyay Marg, New Delhi-110001
7. Smt. Aruna Kapoor (Sister)
D/o Late Sh. Amar Nath Sethi
W/o Shri Ashok Kapoor
R/o C-47, Malviya Nagar, New Delhi
8. Sh. Ashok Kapoor (brother-in-law)
R/o C-47, Malviya Nagar, New Delhi
9. Ms. Akshita Kapoor (Niece)
D/o Sh. Ashok Kapoor
R/o C-47, Malviya Nagar, New Delhi
.....Defendants
Date of institution of the suit : 08.03.2013
Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors.
Suit No. 16325/16 Page 3 of 57
Final Arguments Heard on : 15.05.2024
Date of Judgment : 20.09.2024
SUIT FOR PARTITION
JUDGMENT :
Brief background of the present case
1. Initially, the present suit was filed before the Hon'ble High Court of Delhi bearing CS(OS) 454/2013 wherein the plaint was registered and summons for settlement of issues and notice of application under Order XXXIX R 1 and 2 of CPC were issued to the Defendants. The matter was at the stage of the service of the Defendants and thereafter, the suit was transferred to the Court of Ld. District Judge, South-West, Dwarka Courts, New Delhi vide order dated 02.12.2015.
2. Present suit has been filed seeking (a) a preliminary decree of partition of the suit properties as described in Schedule 1 in share mentioned in para no. 10 amongst the parties herein; (b) a final decree of partition by metes and bounds of the suit properties amongst the parties; (c) in the alternative, partition of the suit properties by sale Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 4 of 57 and the proceeds be divided among the heirs as per allocation of their respective shares in preliminary decree; (d) declaration that the Will executed by late Amar Nath Sethi in favour of late Sh. S.K. Sethi as illegal and invalid; (e) declaration that the Gift Deed dated 26.08.2010 executed by late Manorama Sethi in favour of the Defendant no. 7 as illegal and invalid; (f) seeking directions to Defendant no. 8 to deposit the withdrawn / transferred amounts and the amounts lying in the FDRs of late Manorama Sethi in a separate account of UCO Bank for the purpose of distribution of the same among the beneficiaries in their respective proportional entitlement; (g) seeking directions to the concerned branches of Punjab National Bank to deposit the amounts lying in the unclaimed Saving Bank Accounts and Fixed Deposits of late Manorama Sethi in a separate account of UCO Bank for distribution of the same among the beneficiaries in their respective proportional entitlement and (h) costs of the suit. The Plaint
3. The brief facts of the case as mentioned in the plaint are reproduced here as under:
(i) It is averred that the Plaintiff Smt. Surinder Vij is the sister of Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 5 of 57
late Ms. Manorama Sethi (died on 12.01.2013) and that the Plaintiff is the daughter and class one legal heir of late Sh. Amar Nath Sethi (the father of the deceased Ms. Manorama Sethi) in accordance with the Hindu Succession Act, 1956. It is further submitted that the Defendants are also the class one legal heirs of late Sh. Amar Nath Sethi. It is submitted that late Ms. Manorama Sethi was a retired employee of the Punjab National Bank and was single and lived with her parents and inter alia drew financial and other sustenance from them during their lifetime. It is also submitted that she was very briefly married on 28.02.1970 but the marriage broke down within a month and was never consummated and her husband deserted her severing all relations with her and that her husband had been untraceable for the last 42 years.
(ii) It is submitted that late Ms. Manorama Sethi had retained the possession of the residential house of the parents of the Plaintiff after their death and also purchased a property in her name with the financial help from her parents. It is further submitted that at the time of her death, late Ms. Manorama Sethi was in possession of the following immovable properties:
Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 6 of 57
(a) Residential house bearing no. KP-322, Pitampura, New Delhi;
(b) Residential flat no. H-293, DDA Flats, Naraina, New Delhi;
(c) Residential flat 232, Jai Maa Apartments, Sector 5, Dwarka, New Delhi and
(d) All other immovable property of the deceased.
(iii) Plaintiff further averred that apart from the above, late Ms. Manorama Sethi also had the following immovable properties / bank accounts / FDRs / assets in her name:
S.B. Account Nos. Amount (In Rs.) Branch Nominee 3071000200171415 8,30,454.00/- West Patel Nagar Ashok Kapoor 0627000301041853 3,03,337.00/- Naraina Ashok Kapoor 0627000200043439 36,911.09/- Naraina Ashok Kapoor 01190002000428616 42,904.11/- Bank Street No Nominee 0648000200144108 53,338.70/- Bengali Market No Nominee 3091000200318032 51,619.41/- Janpath No Nominee 1522000200167420 32,334.70/- Rajinder Place No Nominee 3075000201424635 82,678.25/- Rajinder Nagar No Nominee 3063000200120355 56,537.00/- Inder Puri No Nominee FDR Account Nos. Amount (In Rs.) Branch Nominee 062700QS00000018 70,000.00/- Naraina Ashok Kapoor 32900SQ00000131 99,473.00/- Naraina Ashok Kapoor 307100PQ00001137 12,43,691.00/- West Patel Nagar Ashok Kapoor 307100PR00021107 2,36,129.00/- West Patel Nagar Ashok Kapoor 060400PR00024123 78,882.00/- West Patel Nagar Ashok Kapoor Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors.
Suit No. 16325/16 Page 7 of 57
444700PQ00000785 5,00,000.00/- Dwarka Ashok Kapoor
444700PQ00000359 5,00,000.00/- Dwarka Ashok Kapoor
FDR Account Nos. Amount (In Rs.) Branch Name
307500PQ0001621 18,954/- Rajinder Nagar Manorama Sethi
3071005300643552 10,000/- West Patel Nagar Manorama Sethi and
Raj Kaushalaya
84600SQ00000135 19,962/- N-46, Connaught Manorama Sethi and
Place Raj Kaushalaya
84600SQ00000126 49,897/- N-46, Connaught Manorama Sethi and
Place Raj Kaushalaya
152200SQ0000037 40,206/- Rajinder Place Manorama Sethi and
Raj Kaushalaya
306300PQ00000416 59,731/- Inder Puri Manorama Sethi and
Raj Kaushalaya
306300PQ00000407 9,971/- Inder Puri Manorama Sethi and
Raj Kaushalaya
307100PQ00000761 25,000/- West Patel Nagar Manorama Sethi
104500297 40,000/- West Patel Nagar Manorama Sethi
062700DQ00001751 75,000/- West Patel Nagar Manorama Sethi
392900SQ00000141 99,464/- West Patel Nagar Manorama Sethi
307100PQ00001252 19,922/- West Patel Nagar Manorama Sethi
307500PQ00001621 18,954/- West Patel Nagar Manorama Sethi
(iv) It is further submitted that the health of late Ms. Manorama
Sethi deteriorated drastically and she passed away on 12.01.2013. It is further averred that late Ms. Manorama Sethi was survived by two sisters and children of one predeceased brother and of one predeceased sister and subsequently, Plaintiff and Defendants had jointly inherited Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 8 of 57 the suit property from late Ms. Manorama Sethi after her death. The Plaintiff has further averred that the parties in the suit are joint and co- owners of the entire property in the suit.
(v) It is submitted that late Sh. Amar Nath Sethi, the father of late Ms. Manorama Sethi was blessed with five children i.e. one son namely late Sh. Satish Kumar Sethi and three daughters namely Smt. Surinder Vij (Plaintiff herein), late Smt. Rita Kapoor and Smt. Aruna Kapoor. It is further submitted that the Plaintiff and Defendant no. 7 are sisters of late Ms. Manorama Sethi and daughters of late Sh. Amar Nath Sethi and are both entitled to 1/4th share each in the suit property and that the rights and interests of late Sh. Satish Kumar Sethi are represented by the Defendant no. 1 Smt. Kamlesh Sethi who is his widow and Defendants no. 2 to 4, his son and daughters respectively, are collectively entitled to 1/4th share in the suit property. It is further submitted that the rights and interests of late Smt. Rita Kapoor are represented by Defendants no. 5-6, her sons, who are collectively entitled to 1/4th share in the suit property and that the Defendants no.
8 and 9 are the brother-in-law and niece of late Ms. Manorama Sethi being the husband and daughter respectively of Defendant no. 7. It is Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 9 of 57 further submitted that Ms. Manorama Sethi had died intestate without drawing any Will.
(vi) It is alleged that the bank account held by late Ms. Manorama Sethi at Punjab National Bank in Dwarka Branch had already been illegally misappropriated as informed to the Plaintiff by the bank. It is further alleged that the Will of late Sh. Amar Nath Sethi (the father of the Plaintiff) in respect of the residential flat bearing no. H-293, DDA Flats, Naraina, New Delhi in favour of his son late Sh. S.K. Sethi is a forged and fabricated document and not sustainable in the eyes of law. It is also alleged that subsequent transfer of the said residential flat at Narain by the son of late Sh. S.K. Sethi pursuant to the forged Will is also another concocted story created by Defendants no. 7 to 9 to accord mutual benefit. It is further alleged that Gift Deed dated 26.08.2010 of the property bearing no. KP-322, Pitampura, New Delhi by late Ms. Manorama Sethi to the Defendant no. 7 is patently false. It is submitted that the said property was rented out by late Ms. Manorama Sethi and is still under tenancy.
Pursuant to the aforesaid facts and circumstances, Plaintiff has filed the present suit for partition.
Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 10 of 57 Proceedings of the Case
4. Summons for settlement of issues were issued to the Defendants vide order of the Hon'ble High Court of Delhi dated 08.03.2013 along with notice of the application under Order XXXIX R 1 and 2 of CPC. Thereafter, appearance was not entered by Defendants no. 5 and 6 and they were proceeded ex-parte vide order dated 22.03.2013 and Defendants who were served were directed to maintain status quo in respect of the suit properties. In the meanwhile, an application under Section 151 of CPC was filed by the Defendant no. 7 and thereafter, applications under Section 151 of CPC, under Order XII R 6 of CPC, under Order VI R 17 of CPC and under Order XXXIX R 2A of CPC were filed on behalf of the Plaintiff. Thereafter, vide order dated 17.12.2013 passed by the Hon'ble High Court of Delhi, application of the Defendant no. 7 under Section 151 of CPC was disposed off and Defendant no. 7 was permitted to institute the proceedings for eviction of the tenant in the premises at KP-322, Pitampura, New Delhi and it was further directed that no new tenant would be inducted without prior permission of the Court. Written statements were already filed by Defendants no. 7, 8 and 9 and replies were also filed to the aforesaid Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 11 of 57 applications of the Plaintiff. Replication was not filed to the WS of Defendants no. 7 to 9. Affidavit of admission-denial of documents was filed on behalf of the Defendants no. 7 to 9 wherein all the documents of the Plaintiff were denied. Thereafter, application under Order XXXIX R 1 and 2 of CPC was disposed off in terms of order dated 22.03.2013 passed by the Hon'ble High Court of Delhi.
5. Thereafter, application of the Plaintiff under Order VI R 17 of CPC for amendment of plaint was allowed subject to cost vide order dated 21.04.2014 and fresh summons for settlement of issues of the amended plaint were issued to the Defendants no. 1 to 4. None had appeared for Defendants no. 5 and 6 on the next date of hearing and therefore, their right to file written statement was closed and pleadings and admission-denial of documents were concluded qua Defendants no. 7 and 8. Thereafter, application of the Plaintiff under Order XXXIX R 2A of CPC was disposed off vide order dated 25.11.2014 and the present suit was transferred to the Court of Ld. Principal District and Sessions Judge, South-West, Dwarka Courts, New Delhi vide order dated 02.12.2015 on the ground of jurisdiction.
6. Thereafter, fresh summons for settlement of issues were issued Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 12 of 57 to Defendants no. 1 to 4 by ordinary process which were unserved and subsequently, the aforesaid Defendants were served by way of substituted service, however, they did not appear before the Court and were proceeded ex-parte vide order dated 06.10.2017. Thereafter, Plaintiff filed the affidavit of admission-denial of documents along with list of proposed issues.
7. In the Written Statement of Defendants no. 7 to 9, it is alleged that the Plaintiff has not approached the Court with clean hands and has concealed material facts from the Court. It is further alleged that the suit filed by the Plaintiff is not maintainable as no cause of action arises against the Defendants no. 7 to 9. It is submitted that the suit is not maintainable as the Plaintiff failed to disclose the details of the movable / immovable properties in the name of late Ms. Manorama Sethi and also failed to produce any document in support of her claim. Relevant portion of para no. 5 of the 'Preliminary Objections' is extracted herein:
"5. It is respectfully submitted that Defendant no. 7 Smt. Aruna Kapoor being one of the sisters of late Manorama Sethi was very close to her and during the period of her illness (suffering from cancer) the Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 13 of 57 entire care was taken by the answering Defendants. During the period of illness Late Manorama Sethi stayed with answering Defendants and the entire expenditure of her stay, transportation, food, clothing and nursing etc was borne by Defendant No. 8. It is further respectfully submitted that the certificate issued by Rajiv Gandhi Cancer Institute and Research Centre dated 05.04.2013 clearly indicates that treatment of Late Manorama Sethi for the case of Multiple Myeloma (type of cancer) was carried out from the period 07.11.2009 to 12.01.2013 at the said institute and during the said treatment the care was taken by the answering Defendants No. 7 & 8 and the same is also evident from the hospital record ............"
8. The details of the Saving Bank accounts of late Ms. Manorama Sethi where Defendant no. 8 was appointed as the nominee is given below:
S.B. Account Nos. Amount (In Rs.) Branch Nominee 3071000200171415 8,30,454.00/- West Patel Nagar Ashok Kapoor 0627000301041853 3,03,337.00/- Naraina Ashok Kapoor 0627000200043439 36,911.09/- Naraina Ashok Kapoor
9. The details of the Fixed Deposit accounts of late Ms. Manorama Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 14 of 57 Sethi where Defendant no. 8 was appointed as the nominee is given below:
FDR Account Nos. Amount (In Rs.) Branch Nominee 062700QS00000018 70,000.00/- Naraina Ashok Kapoor 32900SQ00000131 99,473.00/- Naraina Ashok Kapoor 307100PQ00001137 12,43,691.00/- West Patel Nagar Ashok Kapoor 307100PR00021107 2,36,129.00/- West Patel Nagar Ashok Kapoor 060400PR00024123 78,882.00/- West Patel Nagar Ashok Kapoor 444700PQ00000785 5,00,000.00/- Dwarka Ashok Kapoor 444700PQ00000359 5,00,000.00/- Dwarka Ashok Kapoor
10. Defendants no. 7 to 9 also submitted in their joint WS that Plaintiff as well as Defendants are not entitled for partition of the immovable properties owned by late Ms. Manorama Sethi in terms of Section 15(1)(d) of the Hindu Succession Act, 1956 as none of the properties mentioned in the suit were inherited / gifted / partitioned by late Ms. Manorama Sethi from her parents. It is also submitted that the Plaintiff and other Defendants are not entitled for succession of the suit property pertaining to the immovable property i.e. residential house bearing no. 322, KP Block, Pitampura, New Delhi as the said property was purchased and owned by late Ms. Manorama Sethi and subsequently, converted as a free hold property vide Conveyance Deed Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 15 of 57 dated 15.03.1999 and due to love and affection with her sister Defendant no. 7 Smt. Aruna Kapoor, the said property was gifted by late Ms. Manorama Sethi in favour of Defendant no. 7 vide Gift Deed dated 26.08.2010 duly registered. It is also submitted that late Ms. Manorama Sethi being a retired officer in Punjab National Bank was capable enough and did not need to draw any financial or other sustenance from her parents. It is also submitted that all the movable property as well as immovable property mentioned by the Plaintiff are self acquired properties by late Ms. Manorama Sethi except the residential DDA flat no. 293, Naraina, New Delhi. It is further submitted that Defendant no. 7 has also deposited the house tax of Rs. 20,068/- vide receipt dated 21.02.2013 with MCD and the water connection in the name of Defendant no. 7. Defendants no. 7 to 9 further submit that the other movable and immovable unclaimed properties should devolve as per the statutory provisions of Hindu Succession Act, 1956 among the parties. It is submitted that the immovable property bearing H. No. KP-322, Pitampura, New Delhi was gifted by late Ms. Manorama Sethi during her lifetime vide registered gift deed to Defendant no. 7 and the same cannot be Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 16 of 57 partitioned among the parties under the Hindu Succession Act, 1956 as the said property is neither unclaimed nor any nominee has been appointed by late Ms. Manorama Sethi of the said property. It is further submitted that Defendant no. 8 is in custody of the amounts (saving bank accounts and FDRs) in which he was appointed as nominee by late Ms. Manorama Sethi and nothing has been misappropriated from the said bank accounts as alleged by the Plaintiff. It is further submitted that all the family members named in the present suit for partition are the beneficiaries of the aforesaid amount in proportion of their entitlement.
11. Thereafter, on 18.07.2018, on the basis of pleadings of the parties, the following issues were framed :
(a) Whether Plaintiff, Defendant no. 7 and LRs of late Sh. Satish Kumar Sethi and late Smt. Reeta Kapoor being class II heirs (siblings) of deceased Smt. Manorama Sethi are entitled to one-fourth share each in the movable and immovable property of late Smt. Manorama Sethi as mentioned in schedule 1 filed along with amended plaint? (OPP)
(b) Whether Plaintiff is entitled to decree declaring impugned Will Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 17 of 57
executed by late Amarnath Sethi in favour of late Sh. S.K. Sethi as illegal and invalid? (OPP)
(c) Whether Plaintiff is entitled to decree declaring gift deed dated 26.08.2010 executed by late Smt. Manorama Sethi in favour of Defendant no. 7 as illegal and invalid? (OPP)
(d) Whether Plaintiff's suit has not been properly valued and requisite court fee has not been filed? (OPD)
(e) Whether Defendant no. 7 is the exclusive owner of property no. H. No. 322, Block No. KP, Pitampura, New Delhi on the basis of gift deed dated 26.08.2010 executed by late Smt. Manorama Sethi? (OPD)
(f) Relief.
No other issue arose or pressed for by the parties. Thereafter, matter was proceeded for PE.
Evidence led by the parties
12. On 20.04.2019, Plaintiff / PW-1 Smt. Surinder Vij had tendered her affidavit of evidence as Ex. PW1/A and relied upon the documents i.e. copy of death certificate as Mark X, PAN Card as Mark X1, FDRs as Mark X2 and X3, letters written to bank as Mark X4 (colly) and copy of electricity bill as Mark X5.
Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 18 of 57
13. During her cross-examination by Ld. Counsel for Defendants no. 7 to 9, she deposed that her parents had five children i.e. four daughters and one son and she is the eldest child and that her father had bought only one property in Naraina and that her parents used to reside with her sister Smt. Manorama Sethi at Naraina before their death. She further deposed that late Ms. Manorama Sethi had purchased two properties viz. Plot no. KP-322, Pitampura, New Delhi and another property / flat in Jai Maa Apartments, Dwarka, New Delhi. She further deposed that late Ms. Manorama Sethi had died due to cancer and that she was not suffering from any other disease and that late Ms. Manorama Sethi used to stay at her own flat in Dwarka and also stayed with her and her sister i.e. Defendant no. 7. However, she voluntarily deposed that late Ms. Manorama Sethi used to go to the hospital either with Defendant no. 8 or on her own or sometimes with her. Thereafter, Plaintiff was questioned as to the source of information of all bank accounts and Fixed Deposits to which she replied that the details of bank accounts and Fixed Deposits were obtained from Defendants no. 7 to 9 who had withdrawn the money from the accounts and also obtained information from the banks. The Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 19 of 57 witness could not tell as to whether late Ms. Manorama Sethi had gifted property no. KP-322, Pitampura, New Delhi to Defendant no. 7 Smt. Aruna Kapoor. She also deposed that DDA flat no. H-293, Naraina belonged to her father late Sh. A.N. Sethi which was bequeathed in favour of her brother late Sh. Satish Kumar Sethi.
14. During her further cross-examination by Ld. Counsel for Defendants no. 7 to 9, Plaintiff deposed that she was not clear about misappropriation of the amount in the account of late Ms. Manorama Sethi at Punjab National Bank, Dwarka Branch by Defendants no. 8 and 9. Relevant portion of the cross-examination of Plaintiff is extracted herein:
"It is wrong to suggest that you being the eldest never tried to amicably settle the dispute. It is wrong to suggest that you were aware that late Manorama Sethi had gifted Pitampura property bearing no. KP-322 to defendant no. 7 out of her love because defendants no. 7 and 8 cared for late Manorama Sethi. It is wrong to suggest that defendant No. 7 and 8 cared and looked after late Manorama Sethi in the last years of her life. It is wrong to suggest that you had access to jewelery and locker of late Manorama Sethi........"
Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 20 of 57
15. She further deposed that the property at Pitampura that was bequeathed to late Sh. S.K. Sethi was later sold by her nephew Defendant no. 2 Gaurav Sethi. She deposed that she got a property bearing no. 233, Behara Enclave, Paschim Vihar, New Delhi from her father through gift deed. Thereafter, she was discharged on 20.07.2019.
16. On the even date i.e. on 20.07.2019, PW-2 Col. Madhu Kant Nanda had tendered his evidence by way of affidavit exhibited as Ex. PW2/A and during his cross-examination by Ld. Counsel for Defendants no. 7 to 9, he deposed that late Ms. Manorama Sethi was staying with her parents in their Naraina flat and later shifted to her flat in Dwarka after the death of her parents. He further deposed that late Ms. Manorama Sethi was financially supported by her father even though she was working herself. He further deposed that he tried to convince Defendants no. 5, 6, 7, 8 and Plaintiff so that the property of late Ms. Manorama Sethi could be divided equally between her brothers and sisters. He denied the suggestion that gift deed was properly registered or that he had knowledge of the same. He also denied the suggestion that Will of late Sh. A.N. Sethi was true. The Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 21 of 57 witness further denied the suggestion that Defendants no. 7 to 9 had never misappropriated any property (movable or immovable) of late Ms. Manorama Sethi. He further denied the suggestion that all his averments in affidavit of evidence are based on hearsay as he was not having any personal knowledge of the same. Thereafter, PW-2 was discharged.
17. On 31.08.2019, PW-3 Ms. Kavita Sachdeva had tendered her evidence by way of affidavit exhibited as Ex. PW3/A and during her cross-examination, she deposed that her mother is a party in the present suit and she has two sisters and that she was around six years of age at the time of marriage of late Ms. Manorama Sethi. She further deposed that they had amicably tried to settle the matter twice between the parties. She further deposed that the bank authorities had orally informed them that the money had already been withdrawn but they did not give anything in writing. She further stated that the bank authorities had further informed that Defendants no. 8 and 9 had visited the bank along with ID proof and withdrew the amount. She further deposed that they came to know later about the Will of late Sh. A.N. Sethi and that she had no idea about the gift deed dated Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 22 of 57 26.08.2010. She further deposed that late Ms. Manorama Sethi had discussed with her with regard to some financial disputes with Defendants no. 5 and 6. Relevant portion of the cross-examination of PW-3 is extracted herein:
"By the terms financial assistance which Late A.N. Sethi was providing to Late Manorama Sethi, I state that Late Manorama Sethi was giving little amount for day to day expenses to her father. Late Manorama Sethi was saving all her income. At the time of transfer of Narayana Property, no NOC was taken from my mother or defendant no. 5 and 6. Defendant no. 7 to 9 were witness to the said transfer. About the account that I have mentioned having jointly with Late Manorama Sethi, I state that my mother had such account with Late Manorama Sethi and not me. Late Manorama Sethi was suffering from only bone cancer."
18. The witness had denied the suggestion that she had access to jewelery of late Ms. Manorama Sethi and that she did not know about the registered gift deed in favour of Defendant no. 7. Thereafter, the witness was discharged on the even date.
19. On 02.11.2019, PW-4 Sh. Vikas Kumar, Data Entry Operator, Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 23 of 57 Sub-Registrar Office, VI A, Pitampura, Rohini Sector 16, Delhi was examined and the certified copy of the summoned record of registered gift deed brought by him was exhibited as Ex. PW4/A. He was cross examined and discharged. Thereafter, on the even date, PW-5 Sh. Anuj Bharti, Manager, Punjab National Bank, Bank Street, Karol Bagh, New Delhi was examined and the record brought by him was marked as Mark PW5/A and as per the record i.e. statement of account, a sum of Rs. 85,571.11/- was lying in the said account. The said witness was also cross examined and discharged. Thereafter, PW-6 Sh. Dhananjay Kumar Yadav, Single Window Operator, Punjab National Bank, West Patel Nagar, New Delhi was examined and brought the summoned record as follows:
(a) Statement of saving bank account of Ms. Manorama bearing no.
3071000200171415 for the period 02.09.2005 till 31.03.2007 as Ex. PW6/A;
(b) Stamped copy of FDR bearing no. 060400PR00024123 of Ms. Manorama having NIL balance which was closed on 11.10.2006 as Ex. PW6/B;
(c) Stamped copy of FDR bearing no. 307100PQ00000761 of Ms. Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 24 of 57 Manorama having NIL balance which was closed on 17.10.2006 as Ex. PW6/C;
(d) Stamped copy of FDR bearing no. 307100PR00021107 of Ms. Manorama having NIL balance which was closed on 17.10.2006 as Ex. PW6/D;
(e) Stamped copy of FDR bearing no. 307100PQ00001137 of Ms. Manorama having NIL balance which was closed on 05.02.2013 as Ex. PW6/E;
(f) Stamped copy of FDR bearing no. 307100PQ00001252 of Ms. Manorama having balance of Rs. 19,922/- which is active as on date as Ex. PW6/F;
(g) Stamped copy of FDR bearing no. 3071005300643552 of Ms. Manorama having balance of Rs. 29,222/- which is active as on date as Ex. PW6/G;
(h) Stamped copy of FDR bearing no. 307500PQ00001621 of Ms. Manorama having balance of Rs. 18,954/- which is active as on date as Ex. PW6/H and
(i) Stamped copy of FDR bearing no. 062700DQ00001751 of Ms. Manorama having balance of Rs. 75,000/- which is active as on date Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 25 of 57 as Ex. PW6/I. It is stated that this account does not belong to the West Patel Nagar Branch but instead, it is of Naraina Branch of Punjab National Bank.
The witness further deposed that there is no record w.r.t account no. 104500297 and 392900SQ00000141. He was cross examined and discharged.
20. PW-7 Sh. Ritesh Kukreja, Manager, Punjab National Bank, Sector 10, Dwarka was examined on the even date and the record brought by him was exhibited as Ex. PW7/A. He was cross examined and discharged. On the even date, PW-8 Sh. Sanjeev Kumar, Branch Head, Punjab National Bank, Inderpuri Branch, New Delhi was examined and the record brought by him is as follows:
(a) Statement of saving bank account of Ms. Manorama bearing no.
3063000200120355 for the period 20.08.2005 to 30.09.2019 having balance of Rs. 1,33,164/- which is a dormant account as Ex. PW8/A;
(b) Stamped copy of the FDR bearing no. 306300PQ00000416 in the name of Ms. Manorama and Ms. Raj Kaushalaya which is active as on date and having balance of Rs. 59,731/- as Ex. PW8/B and
(c) Stamped copy of the FDR bearing no. 306300PQ00000407 in Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 26 of 57 the name of Ms. Manorama and Ms. Raj Kaushalaya which is active as on date and having balance of Rs. 9,971/- as Ex. PW8/C.
21. The witness was cross examined and discharged on the even date. Thereafter, on the same date, PW-9 Sh. Krishan Arora, Single Window Operator B, Punjab National Bank was examined and the summoned record brought by him was exhibited as Ex. PW9/A which was the statement of saving bank account of Ms. Manorama Sethi bearing no. 3075000201424635 for the period 15.05.2003 to 29.09.2019 along with account opening form. Thereafter, the witness has also brought the statement of saving bank account of Ms. Manorama bearing no. 0648000200144108 for the period 28.03.2011 to 29.09.2019 having balance of Rs. 1,37,957.70/- which was exhibited as Ex. PW9/B and another statement of account bearing no. 3091000200318032 for the period 27.12.2010 to 29.09.2019 having balance of Rs. 1,32,444.41/- which was exhibited as Ex. PW9/C. The witness was cross examined and discharged.
22. Thereafter, on 21.12.2019, PW-10 Sh. S.K. Vaid had brought the summoned record i.e. documents viz. (a) authorization letter dated 18.12.2019 which was exhibited as Ex. PW10/A; (b) copy of Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 27 of 57 possession letter dated 05.01.2003 which was marked as Mark PB and
(c) copy of agreement, undertaking, indemnity bond, all dated 05.01.2003 which were exhibited as Ex. PW10/B (colly) (8 pages). The witness was discharged and on the even date, PW-11 Sh. Amit Shokeen, Single Window Operator-B, Punjab National Bank was examined and he brought the summoned documents viz. (a) statement of account bearing no. 0627000200043439 of Manorama Sethi w.e.f. 05.03.2013 to 08.12.2019 having balance Rs. 1,76,102/- which was exhibited as Ex. PW11/A; (b) statement of account bearing no. 0627000301041853 (closed) w.e.f. 01.02.2012 to 05.03.2013 having NIL balance which was exhibited as Ex. PW11/B and (c) statement of account bearing no. 062700QS00000018 (closed) of Manorama Sethi w.e.f. 13.04.2011 to 05.03.2013 having NIL balance which was exhibited as Ex. PW11/C and (d) statement of account bearing no. 392900SQ00000131 (closed) w.e.f. 09.10.2006 to 19.02.2013 having NIL balance which was exhibited as Ex. PW11/D. The witness was discharged on the even date.
23. Thereafter, PE was closed vide separate statement of the Ld. Counsel for Plaintiff as no other witness was required to be examined Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 28 of 57 and matter was proceeded for Defendant Evidence.
24. On 29.02.2020, D7W1 Ms. Aruna Kapoor had tendered her evidence by way of affidavit exhibited as Ex. D7W1/A and relied upon the following documents:
(a) Original letter written by late Manorama Sethi to the Land Sales Officer, New Delhi dated 24.02.1976 as Ex. DW7/1;
(b) Original perpetual lease deed dated 09.02.1977 of property at Pitampura no. 322, Block No. KP, Pitampura, New Delhi as Ex.
DW7/2;
(c) Original letter dated 30.03.1979 of PNB sanctioning loan for construction of property at Pitampura no. 322, Block no. KP, Pitampura, New Delhi as Ex. DW7/3;
(d) Original valuation report of Pitampura property by N.N. Mehta dated 26.06.1985 as Ex. DW7/4;
(e) Photocopy of Will and Testament of late A.N. Sethi (referred as Ex. DW7/5 in affidavit of evidence is de-exhibited) read as Mark DX1;
(f) Photocopy of letter dated 27.01.1999 of PNB certifying the adjustment of loan of property at Pitampura no. 322, Block No. KP, Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 29 of 57 Pitampura, New Delhi read as Mark DX2;
(g) Original Conveyance Deed dated 15.03.1999 of property at Pitampura no. 322, Block No. KP, Pitampura, New Delhi as Ex. DW7/7;
(h) Original registered gift deed dated 26.08.2010 in favour of Ms. Aruna Kapoor as Ex. DW7/8;
(i) Medical certificates dated 30.04.2011 and 05.04.2013 of late Manorama Sethi issued by Rajiv Gandhi Cancer Institute and Research Center as Ex. DW7/9 (colly);
(j) Photocopy of FDRs (7 in number) of late Manorama Sethi in which Defendant no. 8 was nominee read as Mark DX3 (colly);
(k) Two original ID cards of late Manorama Sethi dated 10.01.1998 and 23.01.2009 of PNB as Ex. DW7/11 and
(l) House tax, water mutation charge deposited by the deponent as Ex. DW7/12.
25. On the even date, DW8 Sh. Ashok Kapoor was examined-in- chief and he tendered his evidence by way of affidavit exhibited as Ex. DW8/A and relied upon the documents tendered by D7W1 Mrs. Aruna Kapoor. Thereafter, the matter was referred to mediation at joint Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 30 of 57 request of the parties vide order dated 30.04.2022, however, the same could not be settled.
26. On the next date i.e. on 27.08.2022, D7W1 was cross examined by Ld. Counsels for Plaintiff and by Ld. Counsel for Defendants no. 5 and 6 and during her cross-examination, she deposed that they are three sisters and one brother as legal heirs of late Manorama Sethi and Smt. Surinder Vij is the eldest sister. She further deposed that late Ms. Manorama Sethi used to reside in Dwarka from 2007 to 2013 and voluntarily stated that she was staying with her in Malviya Nagar during her treatment. She further deposed that before the year 2007, late Ms. Manorama Sethi used to reside in Naraina at her parental house. It was further deposed by her that the house at Naraina was in the name of her father and later on, it was transferred in the name of her brother, approximately 10 years before her father's death. She admitted that all the expenses of electricity, maintenance, water bill of Naraina property was paid by late Ms. Manorama Sethi. The witness had denied the suggestion that the expenditures for the treatment of late Ms. Manorama Sethi was borne by the Plaintiff.
27. The witness further deposed that late Ms. Manorama Sethi had Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 31 of 57 gifted the property at Pitampura in her favour in the year 2010. The witness denied the suggestion that all the property documents, jewelery and share certificates of Manorama Sethi were in her custody at the time of the death of late Ms. Manorama Sethi.
28. Thereafter, the witness was cross examined by the Ld. Counsel for Defendants no. 5 and 6 wherein she deposed that the property at Naraina was transferred in the name of her brother by way of Will and that she did not know whether the property at Naraina was sold by her nephew Sh. Gaurav Sethi or not. She was further cross examined and discharged on 27.08.2022.
29. On 24.09.2022, DW-8 was cross examined and during his cross- examination, he admitted the Schedule 2 and Schedule 3 of the plaint and deposed that late Sh. A.N. Sethi had executed one Will in the favour of his son late Sh. Satish Sethi. The witness further deposed that he did not know that the property at Naraina was transferred in the name of late Sh. Satish Sethi. The witness admitted that the property at Naraina is an ancestral property and that all the legal heirs are entitled in the ancestral property. The witness further admitted that there was a tenant residing in the property at Pitampura. It was deposed by him Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 32 of 57 that in the year 2010, late Ms. Manorama Sethi had gifted the property at Pitampura to his wife. Relevant portion of the cross-examination of DW-8 is extracted herein:
".........It is wrong to suggest that me, my wife and Mohan Kapoor collusively planned to gift the Pitampura property and registered the gift deed without the knowledge of late Smt. Manorama Sethi. I informed the plaintiff Smt. Surinder Vij about the gift deed in the year 2010. It is wrong to suggest that plaintiff only came to know about the said gift deed in the year 2013. It is wrong to suggest that plaintiff had 1/4th share in the property which was subject of the gift deed........ "
The witness further deposed that he became the nominee in the FDRs / saving accounts in the year 2010 and that the treatment of late Ms. Manorama Sethi was free. The witness further deposed that "FDRs are for a sum of Rs. 39,00,000/- which are lying in my bank account since the death of late Smt. Manorama Sethi in the year 2013. I did not withdraw the said amount at any time from the bank. I had informed about the said FDRs to the plaintiff and defendants no. 5 and 6. Some jewelery was owned by late Smt. Manorama Sethi but I am not aware about the whereabouts of the same..........." The witness was cross Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 33 of 57 examined further and discharged on the even date.
30. On the same day, DW-9 Sh. Mohan Arora had tendered his evidence by way of affidavit exhibited as Ex. DW9/1 and during his cross-examination, he deposed that he had known Aruna Kapoor and Ashok Kapoor since the last 30 years and late Smt. Manorama Sethi for the last 22-23 years. The witness was cross examined further and discharged on the even date. Thereafter, no other witness was to be examined on behalf of Defendants no. 7 to 9 and therefore, DE was closed on their behalf vide separate statement of Ld. Counsel for Defendants no. 7 to 9 and matter was proceeded for final arguments.
31. Thereafter, an application was filed under Section 151 of CPC to re-open Plaintiff's evidence. The said application was allowed subject to cost vide order dated 22.12.2022. On 16.01.2023, PW-12 Sh. Pranshu Shukla, Manager, Punjab National Bank was examined and the account statements brought by him were exhibited as Ex. PW12/1 (colly). He was discharged on the even date and a separate statement of Defendant Sh. Ashok Kapoor was also recorded wherein an account statement was placed on judicial record by the Defendant Ashok Kapoor and the same was exhibited as Ex. DW8/B. Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 34 of 57
32. Thereafter, on 04.02.2023, PW-13 Sh. Harshit Singhal, Manager, Punjab National Bank, Connaught Circus, New Delhi was examined and discharged and the statement of FDR brought by him was exhibited as Ex. PW13/1 (2 pages). On the even date, at joint request of the parties, matter was referred to mediation for exploring the possibility of settlement, however, the same could not be settled.
33. Another application was moved on behalf of the Plaintiff for summoning of witnesses which was also allowed vide order dated 29.04.2023 and on 22.07.2023, PW-14, PW-15, PW-16 and PW-17 were examined and discharged. The record brought by each of the summoned witnesses was exhibited as Ex. PW14/1 (colly), Ex. PW15/1 (colly), Ex. PW16/1 (colly) and Ex. PW17/1 respectively and a separate document placed on record by the Ld. Counsel for PNB was exhibited as Ex. P-18. On the next date of hearing i.e. on 26.08.2023, PW-18 Sh. Rajeev Chauhan, Clerk, Punjab National Bank, Rajendra Place Branch, New Delhi was examined and discharged and the record brought by him was exhibited as Ex. PW18/1 and Ex. PW18/2 respectively.
34. No other witness was examined on behalf of the Plaintiff and Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 35 of 57 therefore, PE was closed vide separate statement of Ld. Counsel for Plaintiff on 26.08.2023.
35. Written synopsis was filed on behalf of the Plaintiff. An affidavit was filed by Defendant Ashok Kumar with regard to the exact amount which was withdrawn and deposited in his account qua the accounts in list numbered as list no. 2 in the written synopsis of the Plaintiff. The said affidavit 07.10.2023 clarified the exact sum of money transferred to the account of defendant no 8 in bank accounts/FDRs wherein he was the nominee. The relevant extract is herein :- "7. That total amount of money withdrawn from Manorama Sethi's account and deposited by defendant no 8 is Rs 4138757.73. ". Thereafter, on the basis of the affidavit filed by defendant no 8, Plaintiff filed a summation of the movable properties i.e. FDRs which are to be partitioned by way of preliminary decree and a separate statement of the Ld. Counsel for Defendants no. 7, 8 and 9 was recorded on 21.02.2024 with respect to the summation filed by the Plaintiff. The same is extracted herein for ready reference :- " I am the Counsels for Defendants no 7, 8 and 9 in the present matter. The lists no 2 & 3 as provided by the plaintiff today i.e. 21.02.2024 qua Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 36 of 57 defendant no 8 is admitted and the same is provided by defendant no 8 in his affidavit filed in this Hon'ble Court on 05.10.2023. The Court may pass the preliminary decree of partition of movable assets in accordance with the lists filed by the Ld. Counsel for Plaintiff before the Court today." Summation of the movable properties of the deceased intestate as filed by the Plaintiff on 21.02.2024 is extracted herein as under (for future reference, the said following list shall be referred to in this judgment as the List of Movables dated 21.02.2024):
List 1 Sl. Bank A/c No. Type of A/c PNB Branch A/c Amount till PW No. Statement date (in Rs.) A. Karol Bagh
1. 01190002000428616 Savings Staff Karol Bagh 18.12.2005- 85,571.11/- PW 5/A 30.09.2019 (1,08,377.11/-
on 28.02.2023)
2. 011900PQ00000149 FDR Karol Bagh 12.10.2021 49,614/- P18 (Active)
3. 107609449 FDR Karol Bagh 07.03.2002- 91,032/-
11.10.2013
4. 107610656 FDR Karol Bagh 24.01.2002- 34,547/-
11.10.2011
5. 107609444 FDR Karol Bagh 06.11.2001- 84,609/-
11.10.2013
6. 1806-3, 425487 FDR Karol Bagh 06.11.2001- 79,692/-
18.04.2011
7. 107610701 FDR Karol Bagh 03.05.2002- 94,609/-
11.10.2013 Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 37 of 57
8. 107610756 FDR Karol Bagh 31.07.2002- 25,361/-
11.10.2011
9. 425488/107609444 FDR Karol Bagh 06.11.2000 49,614/-
B. West Patel Nagar
10. 3071000200171415 SB West Patel 02.09.2005- 46,274/- on PW 6/A
Nagar 04.04.2007 01.11.2019
operative A/c (8,44,164/-)
Bal
16.03.2005-
01.11.2019
05.02.2013 8,44,164/-
amt.
Withdrawn by
AK
11. 060400PR00024123 FDR West Patel Closed- 0 (Rs. PW 6/B
Nagar 11.10.2006 78,882/-)
Open date
22.04.2006
12. 307100PQ00000761 FDR West Patel Closed- 0 (Rs. PW 6/C
Nagar 17.10.2006 25,000/-)
Open date
07.02.2006
13. 307100PR00021107 FDR West Patel Closed- 0 (Rs. PW 6/D
Nagar 17.10.2006 2,36,129/-)
Open date
10.10.2006
14. 307100PQ00001252 FDR West Patel Open date 19,922/- PW 6/F
Nagar 17.10.2006
15. 3071005300643552 FDR West Patel Open date 29,222/- PW 6/G
Nagar 22.07.2004
16. 307500PQ00001621 FDR West Patel Open date 18,954/- PW 6/H
Nagar 16.10.2006
17. 307100PQ00000220 FDR West Patel 22.07.2023 24,928/- PW 14
Nagar
18. 3071005400431015 FDR West Patel 22.07.2023 19,922/- PW 14
Nagar
19. 307100PQ00001261 FDR West Patel 22.07.2023 24,831/- PW 14
Nagar
20. 060400PR00028970 FDR West Patel 22.07.2023 94,567/- PW 14
Nagar
Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 38 of 57
21. 104500297 West Patel 40,000/-
Nagar
22. 062700DQ00001867 FDR West Patel 19.10.2011- 75,000/-
Nagar 29.10.2014
C. Naraina
23. 062700DQ00001751 FDR Naraina Open date 75,000/- PW 6/I
07.10.2011 PW-17
24. 0627000200043439 FDR Naraina 05.03.2013- 1,76,102/- PW 11/A
08.12.2019
(Open date
17.01.1992)
25. 0627000301041853 FDR Naraina Closed- 0 (Rs. PW 11/B
01.02.2012- 3,03,337/-)
05.03.2013
Open date
14.02.2005
26. 392900SQ00000140 FDR Naraina 22.07.2023 99,464/- No PW 17
Nominee
D. Inderpuri
27. 3063000200120355 SB Inderpuri 20.08.2005- 1,33,164/- (Rs. PW 8/A
30.09.2019 1,68,198/- PW 16
Open date (07.02.2023))
21.01.1996
28. 306300PQ00000416 FDR mother Inderpuri Open date 59,731/- PW 8/B
14.10.2006
29. 306300PQ00000407 FDR mother Inderpuri Open date 9,971/- PW 8/C
14.10.2006
E. Rajinder Nagar
30. 3075005302577424 FDR Rajinder Nagar 01.11.2003- 70,000/-
01.11.2011
31. 3075000201424635 SB Rajinder Nagar 15.05.2003- 2,53,498.25/- PW 9/A
28.10.2019 PW 12/C
(PW9
evidence-
29.09.2019)
(18.06.2005-
13.01.2023
PW12
evidence
13.01.2023)
Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 39 of 57
32. 3075003205674032 FDR Rajinder Nagar 03.01.2006- 14,148/-
03.01.2011 (Sherry Sethi)
33. 307500PM00000059 Rajinder Nagar 16.10.2006- 14,963/-
07.02.2012
34. 3075005102504077 Rajinder Nagar 07.02.2004 6,500/-
(027625) F. Connaught Circus
35. 0648000200144108 SB Connaught 28.03.2011- 1,37,957.70/- PW 9/B Circus 29.09.2019 (Rs.
(Bengali Open date 1,74,797.70 on
Market) 13.02.2001 28.02.2023)
36. 3091000200318032 SB Connaught 27.12.2010- 1,32,444.41/- PW 9/C
Circus 29.09.2019 (Rs.
Open date 1,66,237.41/-
09.12.1991 on
28.02.2023)
G. Rajendra Place
37. 1522000200167420 SB Rajendra Place (17.07.2006- 1,21,710.70/- PW 12/A
13.01.2023) 1,23,965/- PW 18/2
Nominee -
Gaurav Sethi
38. 152200SQ0000037 FDR Rajendra Place Closed on 0 Amt. PW 12/B
03.03.2022 Transferred to
PW12/A
39. 184600SQ00000126 FDR Rajendra Place Maturity - Rs. 49,897/- PW 13/A
14.10.2026 (interest amt.
Automatically
credit in SB-
a/c-
064800020014
4108)
H. Connaught Place
40. 184600SQ00000135 FDR Connaught 19,962/-
Place
I. Janpath
41. 309100PQ0000950 FDR N-86, Janpath 11.10.2006- 30,000/-
11.10.2011
42. 309100PQ0000941 FDR N-86, Janpath 11.10.2006- 40,000/-
11.10.2011 (Sherry Sethi)
Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 40 of 57
List-2 Manorama's Amount with Ashok Kapoor w/o interest in Connaught Circus Branch Sl. A/c No. SB Branch Amt.
No. Deposited on
1. 307100PR00027165 FDR ...... Closure 2,97,644/-
05.02.2013
2. 060400PR00028970 FDR ...... Closure- 98,012/-
05.02.2013
3. 307100PQ00001137 FDR West Patel Closed- 12,43,691/-
Nagar 05.02.2013
4. 444700PQ00000359 SB Dwarka Closed- 5,00,000/-
07.02.2013
5. 444700PQ00000785 FDR Dwarka Closed- 5,00,000/-
07.02.2013
Open date
11.04.2008
6. 062700QS00000018 SB Naraina Closed - 70,000/-
Branch 13.04.2011-
05.03.2013
Manorama's Amount with Ashok Kapoor w/o interest in Malviya Nagar Branch
7. 3071000200171415 SB West Patel 05.02.2013 8,44,164/-
Nagar
8. 392900SQ00000131 SB Naraina 19.02.2013 99,473/-
Branch List-3 Manorama's Claim Case Amount lying with Ashok Kapoor in Malviya Nagar Branch Sl. No. Date of Deposit Amt. Received (in Rs.)
1. Claim Case 05.03.2013 2,90,391/-
2. Claim Case 05.03.2013 1,95,376.09/-
GRAND TOTAL 73,01,729/-
Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 41 of 57
36. Thereafter, matter was proceeded for final arguments. However, Plaintiff has not addressed oral final arguments despite several opportunities and therefore, final arguments were heard on behalf of Defendants no. 7 to 9 and matter was reserved for judgment. Findings
37. Before coming to the issues, I may discuss briefly the facts that are admitted and beyond the pale of controversy. The family relationships, as pleaded by the plaintiff, are admitted facts and nothing more need be stated on that account. The fact that Ms. Manorama Sethi (hereinafter referred to as the " deceased intestate") died intestate, without executing a Will and that she was a Hindu female is also the established position on record. That she did not have a husband and children and that her mother and father are deceased is also an established fact qua which the defendants have not raised any controversy. That, therefore, the succession of the immovable and movable property of the deceased intestate shall be governed by the provisions of Section 15 of the Hindu Succession Act, 1956 read with Section 16 of the said Act, is admitted. The succession of the deceased intestate's property, therefore, shall be governed by Section 15 (1) (d) Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 42 of 57 read with Rule 1 & Rule 3 of Section 16. The succession shall fall upon the heirs of the father of the deceased intestate. By virtue of the deeming fiction in Rule 3 of Section 16 of the said act, it must be assumed that the property belonged to the father of the deceased intestate and thereafter the same rules would be applied as would have been applicable to the succession of the death of the father of the deceased intestate. It shall be further presumed that the father had died intestate immediately after the death of the deceased intestate. The Schedule as applicable under Section 8 of the Hindu Succession Act, 1956, will therefore be applied. Hence the sons and daughters of the father of the deceased intestate shall take one share each. Therefore, the plaintiff shall be entitled to 1/4th share, Defendant no 7 shall be entitled to 1/4th share, while defendants 1 to 4 shall take collectively 1/4th share i.e. 1/16th individually (being wife, son and daughters of the predeceased brother of deceased intestate), and defendants 5 & 6 shall take 1/4th share collectively i.e. 1/8 individually (being sons of the predeceased sister of the deceased intestate). Defendants 8 & 9 are not the legal successors under the Hindu Succession Act, 1956, and therefore would not be entitled to a share.
Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 43 of 57
38. The main controversy, therefore, stood in the present case, in identifying the movable and immovable properties of the deceased intestate in which the plaintiff and defendants 1 to 7 are entitled to a share as per the above distribution.
MOVABLE PROPERTIES
39. While setting aside the question of immovable properties for the moment, I would discuss the question of movable properties to be partitioned. The only movables to be partitioned were the various monies lying in the form of Fixed Deposits /sums of money in Saving Bank Accounts of the deceased intestate. It may be said herein that from the very inception, Defendant no 7-9 had admitted that as defendant no. 8 was the nominee in certain accounts, he had received certain sums and transferred the same into his bank account. The affidavit filed by the Plaintiff dated 07.10.2023, puts the said question beyond any doubt, and no more proof was required for the same inasmuch as the defendant no 8 admitted that he received the sum of Rs 41,38,757.73 from the accounts of the deceased intestate, being the nominee. It is undisputed that the aforesaid sum shall have to be distributed to the legal successors in accordance with the succession Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 44 of 57 distribution discussed in this judgment in para 37, as the defendant no 8 has no interest in the same beyond having had the right to receive the sums being the nominee. The Plaintiff filed a comprehensive list i.e. List of Movables dated 21.02.2024; and the Defendants no 7 to 9 admitted the said list. Apart from the sum of Rs 41,38,757, certain other accounts were identified during trial by calling the relevant bank witnesses, which were listed by the Plaintiff in List 1 of the List of Movables dated 21.02.2024. The same amount is in the form of various FDs/Saving Bank Accounts amounting to Rs 31,62,978. Undisputedly, the same has also to be partitioned, in the same manner as provided for in para 37 of this judgment. Therefore, what comes out is that the sum of Rs 73,01,729 lying in the form of FD/saving accounts and including the sum received by the defendant no 8 as nominee which would form the corpus of the movable property of the deceased intestate shall have to be partitioned in the shares as aforesaid. This position arises due to the admissions in the pleadings, the undisputed evidence of the bank witnesses and the arguments made before the Court, wherein the aforesaid position has been completely admitted by the contesting defendants 7 to 9, as defendants Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 45 of 57 1 to 6 admittedly did not participate or present any submissions during the course of the trial.
IMMOVABLE PROPERTIES
40. The plaintiff has prayed for the partition of three immovable properties; namely: Residential House KP-322, Pitampura, New Delhi (hereinafter referred to as "Pitampura Property"), Flat no H-293, DDA Flats, Naraina, New Delhi, (hereinafter referred to as " Naraina Property"), Flat 232, Jai Maa Apartments, Sector 5, Dwarka, (hereinafter referred to as "Dwarka Property"). The partibility of the said properties shall be discussed as following:
The Dwarka Property
41. It is the admitted position that the Dwarka property was the self- acquired property of the deceased intestate. Plaintiff has in fact tried to imply, in para 4 of the plaint, that the deceased intestate had purchased the said properties with the financial assistance of her parents and that she "was in possession of the following immovable properties, holding the same in trust for the family of her father." However, there is no substance or evidence to support such pleading, nor will proving the same change the fact that the Dwarka Property was in the name of Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 46 of 57 the deceased intestate. PW-10 who was the summoned witness has proved the documents i.e. Ex PW 10/B being the possession letter in favour of the deceased intestate, and the agreement entered into between the deceased intestate and Jai Maa Appt Khosla Comp Staff CGHS Ltd. The aforesaid documents, which have been proved to the satisfaction of the Court, show that the deceased intestate was allotted the said flat after draw of lots by the DDA. Therefore, the said flat is undisputedly, the property belonging to the deceased intestate, and it has not come on record thereafter, that the intestate during her lifetime alienated the property to any third person. Therefore, this would be the partible property to be partitioned into the shares as mentioned afore in para 37 of this judgment.
The Naraina Property
42. The controversy raised by the plaintiff may be understood by referring to the pleadings in the plaint :-
"4. That owing to her single status, as already stated, Late Ms. Manorama Sethi stayed throughout with her parents who provided all kinds of financial assistance to her including substantial financial support. Late Ms. Manorama Sethi retained the possession of the Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 47 of 57 residential house of the parents of the plaintiff after their death. She also purchased property in her name from out of the financial help of the parents. It is in the specific knowledge of the plaintiff that the properties, now standing in the name of Late Ms. Manorama Sethi as per the records, were acquired by her through the funds and financial assistance of the parents in a substantial manner. Needless to say that the income of Late Ms Manorama Sethi was not substantial. This fact is known to all the family members that the properties are not from her self-earned money. These properties, in law and substance, remained joint property of the family. At the time of her death, Late Ms. Manorama Sethi was in possession of the following immoveable properties, holding the same in trust for the family of her father .................................................................................... ............................
14A That the alleged will of Late Amar Nath Sethi, the father of the plaintiff, in respect of the residential flat bearing no H-293, DDA Flats, Naraina, New Delhi in favour of his son Late S.K Sethi is a forged document created clandestinely with an objective to dupe the legitimate owners......the alleged will was never known to any other Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 48 of 57 family members ....the alleged will is neither dated nor signed by two disinterested witnesses....at the time of alleged execution.....Late Amar Nath Sethi was also not of sound mind....."
43. The plaintiff examined herself as PW-1. During cross examination, she deposed that "my father had bought only one property in Naraina, Delhi. My father expired 25 years ago and my mother expired around 20 years ago....DDA Flat no H-293, Naraina belonged to my father late A.N Sethi which was bequeathed in favour of my brother late Satish Kumar Sethi......property bearing no H-293, DDA Flats, Naraina which was bequeathed to my brother late SK Sethi by my father late AK Sethi was later sold by my nephew defendant no 2 Gaurav Sethi. I got a property bearing no 233, Behara Enclave, Paschim Vihar, New Delhi from my father through gift deed. This was about 30 years back when my father was alive...."
44. The plaintiff seeks a declaration that the alleged Will Mark DX 1 produced by the defendants no 7 to 9 is void. However, before granting such declaration it has to be seen in the context of the case whether the plaintiff has made such pleadings and adduced such evidence to show that the said property belonged to the deceased Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 49 of 57 intestate. Clearly, her own cross examination shows that such was not the case. The property admittedly does not belong to the deceased intestate and therefore, cannot be partitioned among the defendants 1- 7 and the plaintiff. The said property belonged to the father of the plaintiff, defendant no 7, Late Satish Sethi and Late Rita Kapoor, as admitted by PW-1. PW-1 also admits that the property was sold off by Gaurav Sethi the son of Late SK Sethi. She does not disclose as to when such fact came into her knowledge, though it is deposed by her that her father had died some 25 years back, though she cannot tell the exact year. The facts clearly show that the plaintiff has shoehorned the said property into the present case, without any cause. She admits that she was gifted some other property by her father during her lifetime. It is possible that the family came into some arrangement for disposal of the Naraina property. In any case, the plaintiff though admitting that she knew that Gaurav Sethi has sold off the property, has never disclosed when she came to know of such fact. She admits that the deceased intestate was never the owner of the property. Therefore, no purpose would be served in declaring the alleged will Mark DX 1 to be void. The said Naraina property also, not being the property of the Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 50 of 57 deceased intestate, cannot be partitioned between the present parties. The Pitampura Property
45. The crux of the dispute qua the Pitampura Property is that while it is admitted between the plaintiff and the defendant 7-9 that the property was the self-acquired property of the deceased intestate, the case of the defendants 7 to 9 is that the property was gifted by the deceased intestate to defendant no 7 out of love and affection, by way of registered gift deed dated 26.08.2010, Ex DW7/8.
46. The plaintiff has alleged that the said gift deed is fraudulent and a conspiracy. In the plaint, specifically in para no 14C it is alleged that "it is submitted that in view of the aforesaid clear and unambiguous admission about the peculiar and acute health condition of Late Manorama Sethi, she was not mentally and bodily fit and healthy, and thus it proves beyond any doubt that alleged gift deed was fraudulently executed in as much as no such alleged gift deed dated 26.08.2010 could have ever been drawn and/or executed by a person, Late Manorama Sethi, who was ill, infirm, incapable and of unsound mind during that point in time....."
47. Firstly, the plaintiff presumes that a person suffering from Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 51 of 57 cancer will be of unsound mind. I may state that there is no such presumption available in fact or in law that a person suffering from cancer, ipso facto, loses the mental capacity to exercise her own free will and understand the natural consequences of her actions. The plaintiff has not proved any medical certificate showing that the examining doctor had found that the deceased intestate had lost her cognitive abilities and was unable to understand the acts being done by her. Rather the certificate produced by the defendants Ex DW 7/9 dated 30.04.2011, the original of which was duly proved, merely mentions that she was suffering from Multiple Myeloma i.e. cancer. The plaintiff made no effort to summon the concerned doctor who issued the certificate to prove that the deceased intestate had lost her mental faculties, at the relevant period.
48. During her cross examination, on being questioned, PW-1 admitted that the deceased intestate was not suffering from any other disease other than cancer. The facts on record would also show that the deceased intestate was close to her sister Defendant no. 7 and brother-in-law Defendant no 8, that she was being taken to the hospital by Defendant no 8 and that she was also staying at the flat of the Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 52 of 57 aforesaid defendants during her period of illness. The facts also show that the defendant no 8 was made the nominee in multiple bank accounts of the deceased intestate, and show that there were close relations between the deceased intestate and defendant no 7 and 8.
49. One also must draw upon the presumption of validity attached to registered documents. The gift deed in question has been presented and executed by the deceased intestate. The defendants also examined one of the attesting witnesses as DW-9, Mohan Arora. He deposed about the registration and execution of the gift deed. Nothing appeared in the cross examination of the said witness to lessen the credibility of his testimony. When the record shows that there is a registered gift deed, then the plaintiff to prove the unsoundness of mind of the donor, i.e. the deceased intestate, should have produced some credible evidence, as there was heavy onus on her to prove her claim that the intestate was of unsound mind or under undue influence while executing the gift deed. In absence of any such evidence, the Court must lean in favour of giving effect to the registered gift deed. Therefore, I find that the Pitampura Property is not the part of the estate of the intestate that can be partitioned, as the same had been Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 53 of 57 validly alienated by the intestate during her life-time.
50. As a result of the foregoing observations, the issues are decided thus :- Issues (b) & (c) are decided against the plaintiff and in favour of the defendant, issue (e) is decided in favour of the defendant no 7 and against the plaintiff.
Issue (a) is decided as following: the movable properties i.e. the monies lying the various bank accounts and the amount withdrawn by defendant no 8 and deposited into his own account are directed to be partitioned between the parties in terms of the share distribution discussed in para 37 of this judgment. The immovable property i.e. the Dwarka Property shall also be partitioned between the parties in the share distribution discussed in para 37 of this judgment. Issue (d) was never pressed by the defendants and therefore the same is decided in favor of the plaintiff and against the defendants. Relief
51. In view of the aforesaid discussion, the suit of the Plaintiff is decreed in the following terms:
(a) a decree is passed of partition of the movable properties i.e. the FDRs and bank accounts amounting to approximately Rs. 73,01,729/-
Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 54 of 57 along with the interest accrued till date of realization as listed in the List of Movables dated 21.02.2024. The Defendant no. 8 shall be bound by this decree and shall handover the monies under his control as noted in the present judgment and make available to all the Defendants and Plaintiff whose shares have been decreed herein within 15 days of the passing of this judgment, failing which, the parties will be at liberty to seek the amount by way of execution petition.
(b) a preliminary decree of partition of property bearing flat no. 232, Jai Maa Apartments, Sector 5, Dwarka, New Delhi.
It is declared hereby that the Plaintiff, Defendants no. 1 to 4 collectively, Defendants no. 5 and 6 collectively and Defendant no. 7 have 1/4th share each in the aforesaid properties which have been directed to be partitioned vide this judgment and order.
I have also considered the fact that considering the number of parties and the fact that the immovable property i.e. the Dwarka property is a flat and it is not possible to partition the said property by way of metes and bounds and that for all practical purposes, the parties would not be able to take possession of their respective shares Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 55 of 57 in the flat without the same being sold. There would be no purpose to drag out the present litigation for this purpose.
Accordingly, it is decreed that the suit premises flat no. 232, Jai Maa Apartments, Sector 5, Dwarka, New Delhi be sold through a public auction and proceeds so obtained from such auction sale, after deduction of the necessary expenses in the auction are directed to be distributed amongst the Plaintiff and Defendants to the extent of their shares, as decreed under the present judgment and order. The Plaintiff and Defendants are also permitted to participate, individually or jointly, in the auction. The implementation of the decree for sale by public auction of the suit premises and distribution of the proceeds amongst the parties shall now be subject matter of execution proceedings as may be initiated by either of the parties. The parties are, at liberty to invoke Section 3 of the Partition Act at the time of execution of the Final Decree. The parties are also at liberty to set off their shares in the immovable property as against their share in the monies that have been ordered to be partitioned above. In case in the execution proceedings the parties are agreeable to any other mutually acceptable solution other than sale by public auction, then the Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 56 of 57 executing court would be free to deal with the situation accordingly. The suit is decreed in the aforesaid terms.
The Final decree in this case is required to be engrossed upon non-judicial papers as an order of sale in a partition suit passed under Section 8 of the Partition Act is an instrument of Partition under Section 2(15) of the Stamp Act and requires to be stamped in accordance with Article 45 of the Schedule thereof. The parties are directed to place on record the non-judicial stamp papers of requisite amount, as per Article 45, in accordance with their shares. If one party or more than one party fails to deposit the non-judicial stamp papers of their respective shares, then the other party(s) is/are at liberty to file the non-judicial stamp paper of the value of the defaulting party and the amount so spent by such party(s) shall be recoverable as a cost and the auction amount of the defaulting party(s) shall be reduced accordingly against the said cost and shall be paid to the party who had borne the expenses of defaulting party.
In the meantime, parties are restrained from creating any third- party interest in the suit property till the said property is sold out in auction or S. 3 of Partition Act is invoked, whichever the case may be. Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors. Suit No. 16325/16 Page 57 of 57
Accordingly, the Final Decree is directed to be drawn only upon submission of the requisite Stamp papers.
(c) Costs of the suit are also awarded in favor of the Plaintiff.
52. Decree sheet be prepared accordingly to the extent of the partition of the movable properties as decreed by this judgment. Final decree of partition of immovable property to be drawn up subject to the conditions as stated above.
53. File be consigned to Record Room after due compliance as no further orders are required to be passed. Digitally signed by DIVYANG DIVYANG THAKUR THAKUR Date:
2024.09.20 14:50:41 +0530 Announced in the open court (Sh. Divyang Thakur) On 20.09.2024 DJ-03/South West Dwarka / New Delhi Smt. Surinder Vij Vs. Smt. Kamlesh Sethi and Ors.