Delhi District Court
Ms. Shahni Bai (Wife) vs Mr. Satpal Singh (Since Expired Through ... on 22 November, 2018
IN THE COURT OF MR. S. S. MALHOTRA: PO:MACT1 (NORTH):
ROHINI: DELHI
CS No. 57823/16 (Old CS (OS) no.2245/1998)
Mr. Chander Prakash (since expired through LRs)
1. Ms. Shahni Bai (wife)
2. Mr. Satish Kumar (son)
3. Mr. Jinender Kumar @ Jitender (son)
R/o 1G, Vijay Nagar, Delhi.
4. Mr. Sunil Kumar (son)
5. Ms. Vinod Ahuja (daughter)
6. Ms. Savita Bahri (daughter)
7. Ms. Sushma Bhatia (daughter)
....Plaintiffs
VERSUS
1. Mr. Satpal Singh (since expired through LRs)
1. Ms. Paramjeet (wife)
2. Ms. Preeti (daughter)
3. Ms. Ganga W/o Mr. Pankaj
All R/o A257, 1st, 2nd and 3rd Floor, Darawal Nagar
G. T. K. Road, Delhi.
2. Mr. Suraj Prakash
S/o Late Mr. Ladha Ram
R/o 473, Indira Vihar,
Delhi110009.
3. Mr. Subhash Dang,
S/o Late Mr. Ladha Ram
R/o 946, Dr. Mukherjee Nagar (IIIrd Stop),
Delhi110009.
4. Ms. Bhagwanti (since expired through LRs)
(1) Ms. Pushpa
D/o Late Mr. Ladha Ram
CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 1 of 60
W/o Mr. Ganesh Das
125354/6, Near Aggarwal Dharamshala,
Novelty Cinema, Ambala Cantt.
Haryana.
(2) Ms. Promila Munjal
D/o Late Mr. Ladha Ram
W/o Mr. Kashmir Munjal
M/s Kashmir Dairy,
Khan Market, New Delhi.
(3) Ms. Sumitra Sethi (since expired through LRs)
(i) Mr. Devinder Singh Sethi @ Jajji
S/o Late Mr. Amar Singh Sethi
R/o 2145, First Floor,
Outram Lines, Kingsway Camp,
Delhi.
(ii) Mr. Ravinder Singh @ Sweety
S/o Late Mr. Amar Singh Sethi
R/o 2408, Ground Floor, Hudson Lines,
Kingsway Camp, Delhi.
(iii) Ms. Inderjeet Kaur @ Indu
W/o Late Mr. Surjit Singh
R/o 13, Priyadarshani Vihar,
Opp. Gurdwara Nanak Piao,
Near Rana Pratap Bagh, Delhi.
(iv) Ms. Inderjeet Kaur @ Babbi
W/o Mr. Deep Singh
R/o 19/4B, Ground Floor,
Tilak Nagar, Delhi.
(v) Mr. Komal Rani
W/o Late Mr. S. C. Dureja
R/o 3657, Gali Nath Ram Patwa,
Pahar Ganj, Near New Delhi Railway Station
New Delhi.
(4) Mr. Ram Lal Chugh
267, Lane no.18,
Near Pratap Nagar Police Station,
Delhi.
(5) Ms. Jyoti
CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 2 of 60
D/o Mr. Ram Lal Chugh
(6) Ms. Madhu
D/o Mr. Ram Lal Chugh
(7) Ms. Veenu
D/o Mr. Ram Lal Chugh
Respondents no.4 (5) to (7)
Through their father Mr. Ram Lal Chugh
267, Lane no.18,
Near Pratap Nagar Police Station,
Delhi.
5. Sanskaar Ashram
Department of Social Welfare,
Govt. of NCT of Delhi
Office at K5/3, Model Town,
Delhi.
(Suit against it was dismissed vide order dated 09.04.2009 of Hon'ble
High Court of Delhi)
....Defendants
SUIT FOR PARTITION AND PERMANENT INJUNCTION
AND
CS No. 1756/16 (old CS (OS) no.306/1999)
Mr. Chander Prakash (since expired through LRs)
1. Ms. Shahni Bai (wife)
2. Mr. Satish Kumar (son)
3. Mr. Jinender Kumar @ Jitender (son)
R/o 1G, Vijay Nagar, Delhi.
4. Mr. Sunil Kumar (son)
5. Ms. Vinod Ahuja (daughter)
6. Ms. Savita Bahri (daughter)
7. Ms. Sushma Bhatia (daughter)
....Plaintiffs
VERSUS
CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 3 of 60
1. Mr. Satpal Singh (since expired through LRs)
1. Ms. Paramjeet (wife)
2. Ms. Preeti (daughter)
3. Ms. Ganga W/o Mr. Pankaj
All R/o A257, 1st, 2nd and 3rd Floor, Darawal Nagar
G. T. K. Road, Delhi.
2. Mr. Suraj Prakash
S/o Late Mr. Ladha Ram
R/o 473, Indira Vihar,
Delhi110009.
3. Mr. Subhash Dang,
S/o Late Mr. Ladha Ram
R/o 946, Dr. Mukherjee Nagar,
Delhi110009.
4. Ms. Bhagwanti (since expired through LRs)
(1) Ms. Pushpa
D/o Late Mr. Ladha Ram
W/o Mr. Ganesh Das
125354/6, Near Aggarwal Dharamshala,
Novelty Cinema, Ambala Cantt.
Haryana.
(2) Ms. Promila Munjal
D/o Late Mr. Ladha Ram
W/o Mr. Kashmir Munjal
M/s Kashmir Dairy,
Khan Market, New Delhi.
(3) Ms. Sumitra Sethi (since expired through LRs)
(i) Mr. Devinder Singh Sethi @ Jajji
S/o Late Mr. Amar Singh Sethi
R/o 2145, First Floor,
Outram Lines, Kingsway Camp,
Delhi.
(ii) Mr. Ravinder Singh @ Sweety
S/o Late Mr. Amar Singh Sethi
CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 4 of 60
R/o 2408, Ground Floor, Hudson Lines,
Kingsway Camp, Delhi.
(iii) Ms. Inderjeet Kaur @ Indu
W/o Late Mr. Surjit Singh
R/o 13, Priyadarshani Vihar,
Opp. Gurdwara Nanak Piao,
Near Rana Pratap Bagh, Delhi.
(iv) Ms. Inderjeet Kaur @ Babbi
W/o Mr. Deep Singh
R/o 19/4B, Ground Floor,
Tilak Nagar, Delhi.
(v) Mr. Komal Rani
W/o Late Mr. S. C. Dureja
R/o 3657, Gali Nath Ram Patwa,
Pahar Ganj, Near New Delhi Railway Station
New Delhi.
(4) Mr. Ram Lal Chugh
267, Lane no.18,
Near Pratap Nagar Police Station,
Delhi.
(5) Ms. Jyoti
D/o Mr. Ram Lal Chugh
(6) Ms. Madhu
D/o Mr. Ram Lal Chugh
(7) Ms. Veenu
D/o Mr. Ram Lal Chugh
Respondents no.4 (5) to (7)
Through their father Mr. Ram Lal Chugh
267, Lane no.18,
Near Pratap Nagar Police Station,
Delhi.
5. Municipal Corporation of Delhi
Civil Lini Zone (House Tax Department)
Rajpur Road, Delhi110054.
....Defendants
CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 5 of 60
SUIT FOR DECLARATION AND CANCELLATION OF DOCUMENTS
DATE OF INSTITUTION : 22.10.1998 and 12.02.1999
JUDGMENT RESERVED ON : 13.11.2018
DATE OF JUDGMENT : 22.11.2018
JUDGMENT
1. By this common judgment, I shall dispose of above titled two suits - first being suit no.57823/16 (old CS (OS) no.2245/1998) for partition and permanent injunction filed by the plaintiff on 22.10.1998, and second suit filed by plaintiff against the defendants being suit no.1756/16 (old CS (OS) no.306/1999) for declaration and cancellation of documents dated 12.02.1999.
2. Coming to the facts of the suit no. 2245/1998, this is a suit for partition and permanent injunction and the plaintiff has inter alia mentioned that he, and defendants no.1 to 4, are coowners of property no. K5/3, Model Town, Delhi measuring 275 sq. yards consisting of ground floor as per the site plan attached (hereinafter referred to as the "suit property"). The plaintiff as well as the defendant no.1 to 4 are in constructive possession of the suit property whereas the defendant no.5 is a society, who is in occupation of the suit premises consisting of ground floor as tenants therein. It is further submitted that the defendants no.1, 2 and 3 in connivance and collusion of defendant no. 5 are intending to take over the exclusive possession of the suit premises with the sole object to oust and deprive the plaintiff from the joint possession of the suit property. The brief facts pertaining to the suit property have been described that late Mr. Ladha Ram S/o Late Mr. Ram Ditta Mal was migrant of Sahiwal District Sargodha, West Punjab and late CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 6 of 60 Mr. Ladha Ram had acquired the suit property from his own funds. He had four sons i.e. plaintiff as well as defendant no.1 to 3 and he also had four daughters namely Sumitra, Pushpa, Surinder Kumari (as stated in para no.5 of the plaint but her name is not mentioned when amended memo of parties was filed after the death of Ms. Bhagwanti) and Promila. Late Mr. Ladha Ram has made his last Will on 09.08.1966 thereby bequeathing his property and as per that Will, the defendant no.4 Ms. Bhagwanti was given the lifetime right to live in the suit property. After the demise of Ms. Bhagwanti (defendant no.4) the plaintiff and defendants no.1, 2, and 3 were to become joint owner of the immovable property (suit property). The suit property as bequeathed in favour of the plaintiff and defendants no.1, 2 and 3 had to come into effect only after the demise of Ms. Bhagwanti. The defendants no.1 and 3 were further entrusted with the obligation of conducting/solemnizing the marriage of Ms. Promila, daughter of Late Mr. Ladha Ram.
3. That original Will was executed in the presence of two independent witnesses i.e. Mr. Ram Singh S/o Mr. Karam Chand and Mr. Jiwanda Ram Bhatia Advocate. Mr. Ladha Ram expired on 20.06.1972 and thereafter, Ms. Bhawanti Devi continued to exercise ownership over the suit property in exclusion of all others and she was also collecting the rent from defendant no.5. The plaintiff came to know subsequently that defendants no.1 and 3 have got the suit property mutated in their names to the exclusion of the plaintiff and the defendant no.2, and as such he filed an application dated 04.08.1998 before the Delhi Municipal Corporation, Rajpur Road for cancellation of mutation of the suit property which mutation was in the name of defendants no.1 and 3 and then it came to his CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 7 of 60 knowledge that the defendants no. 1 and 3 in collusion and connivance with each other have offered to sell the suit property and even have offered defendant no.5 a substantial sum to vacate the suit property with the object of receiving exclusive vacant possession of the suit property so as the same be sold out. It is further stated that in the event defendants no.1 and 3 would get possession from defendant no.5, they would sell off the suit property and would deprive the plaintiff from his rightful claim. It is stated that all these acts have compelled the plaintiff to file the present suit for partition of suit property by metes and bounds. The suit is valued for the purpose of court fees as well as for the purpose of jurisdiction and the value of the suit for the partition to the extent of his one fourth right and court fees of Rs.20/ has been affixed and it is inter alia prayed to pass a decree declaring the plaintiff to be the rightful owner of one fourth undivided share of suit property; to pass a decree of partition of suit property by metes and bounds into four equal shares and/or in the alternative to auction the suit property and to pass a decree of permanent injunction restraining the defendants no.1, 2 and 3 from independently getting the suit property vacant or receiving exclusive possession from the defendant no.5, or in any manner whatsoever alienating the suit property.
4. The defendants no.1, 3 and 4 have filed their joint and detailed written statement inter alia taking preliminary objections that plaintiff is not in possession of the suit property and as such is liable to value the suit property for declaration (as stated) and relief for partition, at the market value of entire property and is bound to pay advalorem court fees. The suit therefore is not properly valued for the purpose of court fees and jurisdiction, suit does not disclose any cause of action against defendants, CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 8 of 60 plaint is written on insufficiently stamped paper, suit of the plaintiff is barred by law, the suit is barred by provision of the Specific Relief Act and the suit is bad for misjoinder of necessary parties as defendant no.5 is not a necessary party to the suit property. It is further stated that the plaintiff has not come to the court with clean hands and suppressed the material facts from the purview of the court. The plaintiff got exparte injunction from this Hon'ble Court and he even did not comply with the provision of Order 39 Rule 3 CPC as required by law and therefore, his suit is liable to be dismissed and plaintiff is guilty of perjury as well as for the abuse of process of law. It is further submitted that name of defendant no.3 is Mr. Subhash Chander and not Subhash Dang and similarly, name of defendant no.4 is Ms. Bhagwanti and not Ms. Bhagwati, the plaintiff is required to make necessary corrections.
5. It is further submitted that the plaintiff has filed the above suit on the basis of Will dated 09.08.1966 whereas late Mr. Ladha Ram had executed his another Will dated 02.07.1970 which Will was duly registered with Sub Registrar Delhi on 03.07.1970 at Sr. No. 592 in Additional Book No. 3, Volume 21 at page 131 by cancelling his earlier Will through the aforesaid last Will and the said Will dated 02.07.1970 had not been challenged by the plaintiff in this suit. Therefore, the suit is otherwise not maintainable. It is further submitted that plaintiff is well within the knowledge of executing the last Will by late Mr. Ladha Ram being Will dated 02.07.1970 by which he bequeathed all his assets, movable as well as immovable, in favour of his (Late Mr. Ladha Ram) wife Ms. Bhagwanti and his two sons namely Satpal Singh and Subhash Chander. It is further submitted that in the year 1976, the replying defendants even had filed an eviction petition bearing E CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 9 of 60 504/1976 which was assigned to the court of Mr. R. N. Jindal, the then ld. ARC and the said Will dated 02.07.1970 was relied upon and proved in those proceedings and the advocate of the plaintiff who had been handling his (plaintiff) cases, he was a counsel in the aforesaid eviction petition and therefore, the knowledge/information of the plaintiff with respect to the Will dated 02.07.1970 stands established. In another petition for eviction against the tenants even some miscellaneous applications were moved by the plaintiff for impleading him as a party which were dismissed by the Ld. Additional Rent Controller and an appeal was filed before the Ld. Rent Control Tribunal and the facts with respect to the knowledge of the plaintiff from the court proceedings has been attributed by the defendant in their written statement and it is ultimately stated that present suit is not maintainable being barred by time, having no cause of action, hit by suppression of material facts and therefore, it is prayed that the suit of the plaintiff be dismissed.
6. As far as merits are concerned, it is denied that plaintiff is coowner of the suit property, site plan filed by the plaintiff is stated to be incorrect and it is submitted that neither the plaintiff nor defendant no.2 has any right or title in the suit property in view of the last Will of late Mr. Ladha Ram. It is submitted that the plaintiff and defendant no.2 had told their father Mr. Ladha Ram when he executed the second Will dated 02.07.1970 that they both have no objection if the first Will of 1966 is cancelled and fresh Will is executed in favour of defendants no.1, 3 and 4. It is submitted that entire suit property is under the tenancy of Union of India and Delhi Administration and plaintiff has never been in possession of any portion of the suit property and as such neither defendant no.2 nor the plaintiff has CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 10 of 60 ever been in actual, physical or constructive possession of the suit property. The facts with respect to the connivance of the defendants no.1, 3 and 4 with defendant no.5 is denied in toto and facts of preliminary objections with respect to Will dated 02.07.1970 are reiterated. It is further submitted that the present suit is vexatious, malicious and abuse of the process of law. As far as the filing of an application for cancellation of mutation before MCD is concerned, it is stated that the plaintiff is not at all entitled to make any application, mutation was done as defendant no.4 had given 'no objection' to the mutation in favour of defendants no.1 and 3 who are ultimate owners of the suit property in terms of the Will dated 02.07.1970. It is denied that replying defendants have offered the suit property for sale to any person as alleged and it is prayed that the suit of the plaintiff be dismissed.
7. Defendant no.2 has filed his separate written statement inter alia denying that plaintiff is the coowner of the suit property and it is submitted that the plaintiff has absolutely no right, interest or title in the suit property. It is further submitted that site plan filed by the plaintiff is incorrect; the plaintiff has not filed/paid the appropriate court fees on the relief claimed; the suit property was self acquired property of late Mr. Ladha Ram i.e. his father, and he had executed the Will dated 02.07.1970 in sound disposing mind by cancelling the earlier Will through the aforesaid Will itself that too after informing the plaintiff in this regard that he is cancelling the Will dated 09.08.1966 and the plaintiff even had told his father with respect to his 'no objection' to the execution of Will dated 02.07.1970. It is further submitted that even otherwise since the suit property was self acquired property of Sh. Ladha Ram, he was not required to consult the plaintiff at CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 11 of 60 all but since their father was a straight forward and fair person, he had informed the plaintiff in this regard and therefore, plaintiff has no right, interest or title in the suit property after the execution of Will dated 02.07.1970 and has no cause of action to file the present suit. The facts with respect to filing of the eviction petition are reiterated by defendant no.2 also. It is stated that his mother had filed a suit for eviction against the tenants in which the plaintiff had helped his mother in contesting that suit and even the advocate who had engaged in the eviction petition by his mother were got engaged by the plaintiff himself and therefore, knowledge of the Will dated 02.07.1970 is self established. The Will dated 02.07.1970 was relied upon and proved in that eviction petition is well within the knowledge of the plaintiff and therefore, the suit as framed by the plaintiff is not maintainable. It is further submitted that the suit is barred by law. It has not been properly framed and in fact the plaintiff had been separated from the father even before the partition of the country and therefore, he cannot claim any interest, right or title in the suit property left behind by his father. The suit otherwise is not maintainable as the plaintiff has not challenged the last Will dated 02.07.1970 and mutation has been correctly done in the name of defendants no.1 and 3. The present suit is abuse of the process of law, plaintiff has no locus standi and authority to file the present suit as he has no cause of action and defendants no.1, 3, and 4 alone can deal with the property as per the last Will dated 02.07.1970 of late Mr. Ladha Ram. It is prayed that the suit of the plaintiff be dismissed.
8. The plaintiff has thereafter filed replication to the written statement of defendant no.1, 3 and 4 as well as replication to written statement separately filed by defendant no.2. In replication to written statement of CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 12 of 60 defendants no.1, 3 and 4, the plaintiff has stated that the suit is properly valued for the purpose of court fees and jurisdiction as he has one fourth share on the basis of constructive and physical possession of the suit property. It is denied that suit as framed is not maintainable or is barred by provision of law or the Limitation Act, Court Fees Act and Suit valuation Act and Specific Relief Act as alleged. It is further submitted that defendant no.5 is the necessary party. The plaintiff has not suppressed any material facts, compliance of Order 39 Rule 3 CPC has duly made and therefore, suit as framed is maintainable. It is further submitted that the knowledge of the plaintiff that Mr. Ladha Ram had executed one Will dated 09.08.1966 is there to the plaintiff but the alleged Will dated 02.07.1970 is a forged Will and the same has been subsequently challenged before the court. It is denied that the plaintiff has any knowledge of having filed a suit for eviction by defendant no. 4 and it is submitted that even as per Will dated 09.08.1966, the defendant had only a life interest in the said Will and as such giving no objection with respect to the mutation by defendant no.4 in favour of defendants no.1 and 3 before the office of MCD does not have any legal value. It is further submitted that defendants no.1 and 3 proceeded to have property mutated in their names in the year 1983 on the basis of Will dated 09.08.1966 only and not on the basis of Will dated 02.07.1970 and since the defendants were relying on the Will dated 09.08.1966 even in the year 1983 and therefore, executing Will dated 02.07.1970 by Late Mr. Ladha Ram is self contradictory and since the said Will is fabricated, the same has been duly challenged. Contents as far as merits are concerned, are denied and contents of the plaint are reiterated.
9. In replication to written statement filed by defendant no.2, it is submitted CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 13 of 60 that the plaintiff is coowner of the suit property as per the site plan and it is reiterated that plaintiff alongwith defendants no.1, 2 and 3 had been in constructive and physical possession of the suit property. It is reiterated that the defendants no.1, 3 and 4 in connivance with defendant no.5 intend to take over the exclusive possession of the suit property and therefore, defendant no.5 is a necessary party in the suit proceedings. As far as merits are concerned, the facts of written statement are denied and contents of the plaint are reiterated.
10. After completion of pleadings following issues were framed in the matter separately on 02.02.2006:
(i) Whether this suit has been properly valued by the plaintiff for the purpose of court fee and whether proper court fee has been paid? OPP.
(ii) Whether the plaintiff is entitled for partition on the basis of a Will of Late Mr. Ladha Ram son of Late Shri Ram Ditta dated 09.08.1966?
(iii) Relief.
11. The pleadings in this matter was complete but the plaintiff in the meanwhile has filed another suit bearing CS (OS) no. 306/1999 and since in this case, common judgment is being passed in both the cases, facts of the another suit are required to be mentioned over here.
12. As far as suit no.1756/16 (old CS (OS) no.306/1999) is concerned, the plaintiff has initially filed the said suit against four defendants i.e. defendants no.1, 2, 3 and 4 but subsequently, he amended the plaint by impleading Municipal Corporation of Delhi as defendant no.5. Therefore, the facts of amended plaint are being mentioned hereinafter. It is inter alia mentioned that the present suit is for declaration and cancellation of documents purported to be a Will dated 02.07.1970 of Late Mr. Ladha Ram CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 14 of 60 which is sought to be declared as cancelled.
13. Coming to the facts of the second suit, it is inter alia mentioned that the defendants herein filed reply to the application filed by the plaintiff under Order 1 Rule 10 of CPC in eviction proceedings before the Ld. Additional Rent Controller, Delhi and for the first time it was revealed to the plaintiff that a Will dated 02.07.1970 had been executed by Late Mr. Ladha Ram with respect to the suit property whereas the previously executed Will dated 09.08.1966 by Late Mr. Ladha Ram has allegedly been revoked and it is stated that in terms of Will dated 09.08.1966 the suit property was bequeathed in favour of plaintiff as well as defendants no.1, 2 and 3 equally whereas in terms of the Will dated 02.07.1970 the suit property had been bequeathed to the defendants no.1, 3 and 4 only in exclusion to the plaintiff and the Will dated 02.07.1970 is sought to be cancelled in this suit.
14. It is further submitted that when the son of plaintiff inquired about the status pertaining to mutation of the suit property from MCD it was found that the property has been mutated in the name of defendants no.1 and 3 only. This fact necessitated the plaintiff for filing the present suit for cancellation of said Will and canellation and deletion of ownership of defendants no.1 and 3 in the record of MCD. It is further submitted that mutation of the property by MCD in the name of defendants no.1 and 3 is wrong and contrary to the terms and conditions of Will dated 09.08.1966 and it is reasonably believed by the plaintiff that the Will dated 02.07.1970 made by Mr. Ladha Ram is forged or made under coercion.
15. It is further submitted that the cause of action to file the said second suit had arisen on 04.08.1998 when the plaintiff came across the Will dated 09.08.1966 filed before the MCD and again arose on 08.01.1999 when the CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 15 of 60 plaintiff for the first time came to know about alleged Will dated 02.07.1970.
16. It is inter alia prayed that decree of declaration be passed in favour of the plaintiff and against the defendants thereby declaring the document dated 02.07.1970 purported to be a Will of Mr. Ladha Ram as cancelled and declared the same as forged or made under coercion. Plaintiff also prayed for a decree of mandatory injunction seeking direction to the defendant no.5 to delete and cancel the mutation in the name of defendants no.1 and 3 with respect to property bearing no.K5/3, Model TownII, Delhi on the basis of purported Will dated 02.07.1970.
17. Defendants no.1, 3 and 4 have filed their joint written statement, defendant no.2 and 5 have filed their separate written statements.
18. Defendant no.2 has taken several preliminary objections in his written statement. It is stated that from the manner and tanner of the plaint it appears that the plaint has been amended without notice to the defendants, and the suit of the plaintiff is barred by the provisions of Order 2 Rule 2 of CPC as prior to filing of the present suit, the plaintiff had earlier filed a suit bearing no.2245/1996 wherein the said relief despite having the knowledge of the same was not claimed and the said suit is time barred. It is stated that the plaintiff has not paid appropriate court fees on the relief claimed as he is not in a possession of the suit property and he has to pay advalorem court fees. It is further stated that plaintiff has not correctly valued the suit for the purpose of court fees and jurisdiction and the suit of the plaintiff is barred by the provisions of Suit Valuation Act, Court fees Act, Specific Relief Act, Limitation Act and under Order 2 Rule 2 read with Section 151 of CPC.
CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 16 of 6019. It is further submitted that the plaintiff has suppressed the true and material facts from the court and it is submitted that the mother of parties Ms. Bhagwanti alone is/had been the owner as well as landlady of the suit property during her lifetime. Late Mr. Ladha Ram had earlier executed a Will dated 09.08.1966 and subsequently cancelled the same and he executed a fresh Will dated 02.07.1970 and therefore the present suit is not maintainable. The said Will dated 02.07.1970 was executed by Late Mr. Ladha Ram in his sound and disposing mind and it was duly registered with SubRegistrar Delhi on 03.07.1970 itself. It is further submitted that on the basis of registered Will dated 02.07.1970 the eviction petition no.E 504/1976 was filed on 13.10.1976 in the court of Mr. R. N. Jindal, the then Ld. Additional Rent Controller against the tenant of the suit premises by the mother of the parties i.e. defendant no.4 and the said Will was duly proved in the said proceedings. Plaintiff and replying defendants were helping their mother in pursuing the said petition. It is further stated that even the counsel who was engaged in the above eviction petition was engaged by the present plaintiff himself and the said advocate was the counsel for plaintiff in other cases and therefore the plaintiff knew about the Will dated 02.07.1970 from the very beginning. It is further stated that subsequently also another eviction petition bearing no.E129/1998 was filed by the mother of the parties and to harass the mother of the parties plaintiff filed an application for impleadimg himself as a party knowing well that Will dated 09.08.1966 has already been cancelled by their father. It is stated that the suit of the plaintiff for declaration is not maintainable and is liable to be dismissed.
20. As far as merits are concerned, it is denied that the plaintiff came to know CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 17 of 60 about the Will only during the proceedings pending before the Court of Ld. Additonal Rent Controller and it is submitted that defendant no.4 had filed another eviction petition no.E103/97 in the year 1997 regarding eviction of the suit property and the said eviction petition was subsequently transferred and assigned the number E129/1998 as the tenant had failed to pay the arrears of rent. It is further stated that the plaintiff tried to obstruct the proceedings by filing application to implead him as a party despite having full knowledge that their mother was land lady of the suit property during her lifetime and also the fact that Will dated 09.08.1966 has already been cancelled and plaintiff has no right, title or interest in the suit property. The said application of the plaintiff was dismissed vide order dated 01.03.1999 and the appeal against the said order was also dismissed by the Ld. Rent Control Tribunal vide order dated 05.07.1999 which order has became final and have become binding on the parties and operated as resjudicata.
21. It is stated that the present suit of the plaintiff is barred and not maintainable as plaintiff being fully aware that a Will dated 02.07.1970 was executed by Mr. Ladha Ram. The facts of preliminary objections are not repeated and reiterated. It is submitted that the suit property was self acquired property of Mr. Ladha Ram and he had every right to cancel and execute a fresh Will which he executed on 02.07.1970. It is further stated that after the death of Mr. Ladha Ram, the suit property was rightly mutated in the name of defendants no.1, 3 and 4 in the year 19731974 and plaintiff never raised any objection as he was already aware of this fact. It is stated that defendant no.4 gave no objection to MCD to mutate the suit property in favour of defendants no.1 and 3 only and on the basis of documents filed by defendant no.4, suit property was mutated in the name of defendants no.1 CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 18 of 60 and 3 only in the year 19921993. It is stated that defendant no.5 was duly informed by defendants no.1, 3 and 4 that Mr. Ladha Ram executed his last Will dated 02.07.1970 and had cencelled his earlier Will also and the defendant no.5 after having fully satisfied about the last registered Will dated 02.07.1970 mutated the suit property in favour of defendants no.1 and 3, since defendant no.4 had given 'no objection' to that effect. Therefore there is neither any cause of action nor any right, title or interest arose in favour of the plaintiff to file the present suit and it is prayed that the suit of the plaintiff be dismissed.
22. Joint written statement was filed by defendants no.1, 3 and 4 taking many preliminary objections that the suit of the plaintiff is barred by limitation, appropriate court fees has not been paid by the plaintiff and the suit of the plaintiff is liable to be dismissed for not paying advalorem court fees as the plaintiff is not in possession of the suit property. It is stated that in the previously instituted suit the plaintiff has given the value of the suit property as Rs.80,00,000/ (eighty lacs) and therefore as per admission of the plaintiff himself, he has to pay the court fees on advalorem basis. It is stated that the suit of the plaintiff is liable to be dismissed under Order 7 Rule 11 of CPC as the suit of the plaintiff is hit by Order 2 Rule 2 read with Section 151 of CPC. It is further stated that the suit of the plaintiff is bad for misjoinder of parties and cause of action as MCD has nothing to do with the suit property with respect to mutation thereof. It is further stated that the plaintiff has not come to the court with clean hands and he has filed the present suit after about 29 years of the execution of Will which was well within his knowledge from the very beginning. The facts of eviction petition have been explained in this reply which has not been repeated for CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 19 of 60 the sake of brevity. It is stated that the proceedings before the court of Ms. Asha Memon, the then Ld. Additional Rent Controller, Delhi are also explained but are not repeated.
23. On merits it is submitted that Ms. Bhagwanti has filed the second eviction petition as she was land lady of the suit property and earlier eviction petition was filed on 13.10.1976 against same tenant of her alongwith defendants no.1 and 3 and the plaintiff had been appearing alongwith the replying defendants in eviction petition and never moved any application to implead him as a party. Subsequently in the eviction petition in which the application under Order 1 Rule 10 of CPC was filed by the plaintiff, was based on the Will dated 02.07.1970. It is stated that the plaintiff was helping his mother in pursuing the first eviction petition which was filed on the basis of registered Will dated 02.07.1970 before the court of the Ld. Additional Rent Controller, Delhi and now the plaintiff cannot claim that he came to know about the Will in the year 19981999 as alleged as the plaintiff knew right from the beginning that Late Mr. Ladha Ram had cancelled/revoked the Will dated 09.08.1966 and had executed a Will dated 02.07.1970. Some facts pertaining to the proceedings pending before the court of the then Mr. R. N. Jindal, Ld. Additional Rent Controller, Delhi are reiterated herein. It is further submitted that the present suit and suit for partition are not maintainable and as far as mutation is concerned, it is submitted that mutation was done in the name of defendants no.1 and 3 only on the basis of 'no objection' given by defendant no.4 and the plaintiff has no right, title or interest in the suit property. Therefore the present suit of the plaintiff is liable to be dismissed.
24. Defendant no.5 filed its separate written statement taking many preliminary CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 20 of 60 objections that the present suit of the plaintiff is not maintainable against it as mutation in respect of the suit property has been effected in favour of defendants no.1 and 3 in compliance of provisions Section 128 of Delhi Municipal Corporation Act, 1957 and the bylaws made thereunder and that too on production of necessary documents i.e. photocopy of registered Will dated 09.08.1966 executed by Mr. Ladha Ram, affidavit of physical possession, death certificate of Mr. Ladha Ram, photocopy of registered Will and no objection certificate by their mother Ms. Bhagwanti. It is stated that there had not been any objection raised by the plaintiff or any other person with respect to mutation of the suit property and after the death of Late Mr. Ladha Ram, no intimation orally or in writing was ever communicated by the plaintiff to the defendant no.5 with respect to the apprehension that an attempt may be made by some legal heirs to get the suit property mutated by misrepresentation. Hence mutation was allowed in favour of defendants no.1 and 3 in terms of letter dated 30.06.1993 prior to six years of the institution of the case. On merits, contents of preliminary objections are reiterated and it is prayed that the suit of the plaintiff against defendant no.5 be dismissed.
25. Plaintiff has filed separate replications to the written statement of defendant no.2, defendants no.1, 3, 4, and defendant no.5 thereby reaffirming the contents of the plaint.
26. After completion of pleadings following and separate issues in the matter were framed 02.02.2006:
(i) Whether this suit has been properly valued by the plaintiff for the purpose of court fee and whether proper court fee has been paid? OPP.
(ii) Whether the suit is within time? OPP.CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 21 of 60
(iii) Whether the Will of Late Mr. Ladha Ram son of Late Mr. Ram Ditta dated 02.07.1970 is forged and/or executed under coercion? OPP.
(iv) Whether after the death of Ms. Bhagwanti wife of Late Mr. Ladha Ram, the plaintiff is now entitled to seek the reliefs as prayed for? OPD.
(v) Relief.
27. Parties were given direction to file list of witnesses. Plaintiff examined Mr. Jinender Kumar as PW1, Mr. Balwan Singh as PW2, Mr. Anup Singh as PW3 and Mr. Beer Singh as PW4. Defendants examined Mr. Subhash Chander as DW1 and Mr. Deepak Jain as DW2. None of other defendants have led any evidence.
28. I have heard arguments advanced by ld. counsel for plaintiffs and ld.
counsel for defendants no.1 and 3. However, before coming to the facts for the purpose of disposal of the issues, it is worth submitting and it has already been discussed herein above that these are two suits. First suit was filed by the plaintiff on 22.10.1998 for partition and permanent injunction and after the filing of that suit and after completing certain pleadings another suit was filed by the plaintiff on 12.02.1999 for declaration and cancellation of documents dated 02.07.1970, the purported Will. It is a matter of record that in both the cases separate issues were framed by the Hon'ble Court on 02.02.2006 and after framing of issues, it was directed by the Hon'ble Court that the suit no.306/99 would be the main suit and common evidence would be led in both the cases. No doubt the issue no.1 is common in both the cases and it is also a matter of record that the Hon'ble High Court ordered that issue no.1 would be treated as preliminary issue and evidence would be led on the same. However during the proceedings the direction could not be taken care of and both the parties CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 22 of 60 some how led the evidence on all the issues. This Court while going through the file being received by way of transfer on 08.12.2017, asked both the parties of this anomaly and both of them have conceded that the findings on all the issues be given and since the issue with respect to court fees and cancellation of the Will/document is of mixed question of law and fact evidence on all the issues has been recorded (as it has come on record). Therefore this court is disposing off all the issues as framed by the Hon'ble High Court of Delhi. Now come to the issue no.1. My issuewise findings are as under: ISSUE No.1: Whether this suit has been properly valued by the plaintiff for the purpose of court fee and whether proper court fee has been paid? OPP.
29. This is a legal issue and has been framed in both the suits. The onus of this issue was upon the plaintiff and he has to prove that he has properly valued the suit for the purpose of court fee and also had paid the same. In the suit for partition the plaintiff has valued his suit for the purpose of jurisdiction and court fee for Rs.200/ for the relief of declaration and for the purpose of partition he has valued his suit to Rs.20,00,000/ being ¼ share and has paid court fees of Rs.20/ only. Similarly in suit for declaration and cancellation of documents, plaintiff has valued his suit for Rs.200/ for the purpose of court fee AND for the purpose of cancellation of documents he has valued at Rs.5,00,000/ and court fee of Rs.7,473/ has been submitted thereon. The defendant has taken plea in both the suits that plaintiff has not properly valued the suit for the purpose of court fee and has not paid proper court fee. The contention of the plaintiff is that the suit property belonged CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 23 of 60 to his father Late Mr. Ladha Ram and he has sought partition claiming therein in the suit for partition and permanent injunction, that he is in possession of one room on the terrace and since he is in joint physical and constructive possession of property he had not paid the advalorum court fee in a partition suit and had paid the court fee as per Section 7 (iv) (c) of the Court Fee Act.
30. The contention of ld. counsel for defendants, on the other hand is that since the petitioner is not in a possession of the suit property he has to pay advalorum court fee. In the crossexamination of PW1 it has specifically come that he had never been in actual possession of said terrace of the suit property. Counsel for plaintiff has otherwise argued that pecuniary jurisdiction of this court has been pleaded and plaintiff has fixed the same at Rs.80,00,000/ which according to the plaintiff was the market value of the suit property in the year 1988. On the other hand, defendants have not filed any document on record to the effect that value of the property was more than Rs.80,00,000/ at that time. None of the parties have filed the report from the surveyor with respect to market value of the suit property. It is further argued by counsel for plaintiff that the plaintiff has claimed himself to be in constructive possession of the suit property being joint owner and on the other hand, it is argued that defendants have not been able to show any document that the plaintiff is not in constructive possession of the suit property. The Court is of the opinion that in suit for partition every beneficiary whether he/she being a son or a daughter is claiming their right in the suit property only through their father/mother. In the present case also, the plaintiff is seeking partition with respect to the property left by his father claiming that he is one of legal heirs. Since the plaintiff is not in CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 24 of 60 possession of the suit property and if the suit is ultimately decreed in favour of the plaintiff then as a consequential relief, although not claimed, but keeping in view the provision of Order 7 Rule 7 of CPC, possession can be granted to the plaintiff which is ultimate relief sought by the plaintiff in a suit for partition and since he has not paid the advalorum court fees with respect to partition. The court is of the view that the value of the suit for the purpose of jurisdiction has been rightly filed as Rs.80,00,000/ but the plaintiff has not paid the proper court fees on the same as per his own claim and even to the extent of 1/4th share. This issue is accordingly answered by holding that as fasr as suit for partition is concerned, the plaintiff has not paid advalorum court fees with respect to the relief of possession. As far as second suit is concerned, it is clear that the same has been properly valued and appropriate court fees has been paid upon it.
31. The issue is decided in favour of the plaintiff and against the defendants.
ISSUE No.2: Whether the suit is within time? OPP.
32. The onus of this issue was again upon the plaintiff. This issue is a mixed question of law and facts. The plaintiff in his first suit i.e. suit for partition has claimed that cause of action has arisen on 04.08.1998 when it came to the knowledge of plaintiff about alleged Will dated 02.07.1970 and it is submitted that cause of action continue to arise thereafter and therefore he has filed the suit in the year 1998 itself. As far as second suit is concerned, defendants have filed reply in the eviction case to the application filed by plaintiff under Order 1 Rule 10 of CPC before the court of Ld. ARC, Delhi and as for the plaintiff it was firstly revealed to the plaintiff only on that day that Will dated 02.07.1970 is being relied upon by the defendants CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 25 of 60 whereby the suit property as stated to have been bequeathed to defendants no.1, 3 and 4 only and it was not in the knowledge of the plaintiff prior to that time. As per the previous Will Late Ladha Ram bequeathed the suit property to his wife i.e. defendant no.4 till her lifetime and thereafter to defendants no.1, 2 and 3 in terms of Will dated 09.08.1966 and fact with respect to Will dated 02.07.1970 came to his knowledge on 04.08.1998 and therefore the suit is within limitation.
33. On the other hand, defendants in their written statement have taken the plea that suit is time barred against them and against MCD and plaintiff has suppressed the material facts from this court. It is submitted that Late Sh. Ladha Ram had executed his last Will on 02.07.1970 and got it registered with SubRegistrar Office, Delhi, and the plaintiff was very well aware of this fact from the very beginning that his late father had executed a Will dated 02.07.1970 in sound disposing mind and has cancelled the Will dated 09.08.1966 and even on the basis of that Will one eviction petition was filed well within the knowledge of the plaintiff as the counsel for the mother of the parties was engaged by the plaintiff himself and that counsel was also appearing for the plaintiff in other cases. During the evidence, the judgment of the Court of Mr. R. N. Jindal, the then ld. ARC, Delhi has been placed on record. On the other hand, counsel for plaintiff has argued that plaintiff was not a party in first eviction petition and as far as second petition is concerned, he moved an application under Order 1 Rule 10 of CPC before that court which was even resisted by the present defendant and same was not allowed and since he was not a party to that petition the said judgment is not binding upon him. He has further argued that for calculating the limitation part, the facts mentioned in the plaint are material CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 26 of 60 and the defendant have not been able to prove any fact that plaintiff had been attending the proceedings alongwith his mother before the court of Ld. ARC, Delhi. Nothing has come on record that plaintiff alongwith other defendants had been contesting the suit against the said tenant but it has nowhere come in the evidence as it has been alleged in the pleadings that a particular advocate of Ms. Bhagwanti was the same advocate who was contesting the matter on behalf of plaintiff nor any document has been filed on record that the plaintiff was well aware of the proceedings and had been participating in eviction petition alongwith his mother. Therefore the defendants are not able to prove that plaintiff was aware of eviction petition in the year 1976. It has come on record that the plaintiff has filed the present suit immediately after having come to the knowledge with respect to mutation and as such the suit is within time. Therefore the fact that plaintiff was well aware of the fact with respect to Will dated 02.07.1970 is not proved and this Court is of the opinion that the suit of the plaintiff is within limitation.
34. The issue is decided in favour of the plaintiff and against the defendants.
ISSUE No.3: Whether the Will of Late Mr. Ladha Ram son of Late Mr. Ram Ditta dated 02.07.1970 is forged and/or executed under coercion? OPP.
35. The onus of this issue has been put upon the plaintiff and he has to prove that the Will as being propounded by the defendant no.1 and 3 is either forged or has been executed under the coercion. Basically the plaintiff stated this fact in his second suit which is for declaration and mandatory CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 27 of 60 injunction that the purported Will dated 02.07.1970 is either forged or is prepared under coercion etc. This suit he has filed after the filing of previous suit which was for partition, the written statement in that suit i.e. suit no.57823/16 (old no.2245/1998) is filed by the defendants no.1, 3 and 4 as well as defendant no.2 and they have propounded the Will dated 02.07.1970. The settled law is that a person who claimed that the Will as has been purported to be forged/fabricated and is surrounded by suspicion, then such person has to prove the same, and once he has not been able to prove the same, the person who propounds the Will has to prove the same has been executed properly under Section 63 of Indian Succession Act and then he has to prove that the compliance of Section 68 of Indian Evidence Act has been done.
36. Section 63 of Indian Succession Act reads as under:
"Execution of unprivileged wills Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1*[or an airman so employed or engaged,] or a mariner at sea, shall execute his will according to the following rules:
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
37. Section 68 of Indian Evidence Act reads as under:
CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 28 of 60"Proof of execution of document required by law to be attested - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence."
38. Now coming to the law points. In Banga Bihara Vs. Baraja Kishore Nanda (2007) 9 SCC 728 which was relied upon in Lakshmiammal Vs. Saroja, MANU/TN/3226/2014 decided by the Hon'ble Madras High Court on 17.10.2014, and in para 49 of the Banga Bihara case it was held that the burden to prove that the Will has been validly executed and is a genuine document is on the propounder of the Will. The propounder is also required to prove that the testator has signed the Will and that he had put his signatures out of his own free will having a sound deposition of mind and understood the nature and effect thereof.
39. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
40. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 29 of 60 the will.
41. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
42. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
43. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 30 of 60 absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
44. In nutshell it is settled principle of law that the initial burden to prove that the Will has been validly executed and attested is only on the propounder of the Will and it is a duty of the propounder of the Will to examine at least one attesting witness to prove execution and attestation of the Will as per provision of Indian Evidence Act and if the defence of forgery, coercion and undue influence has been raised by other party then the burden upon them to prove the above said fact.
45. Counsel for defendants has argued that Will has been validly executed in presence of two witnesses and both the witnesses have deposed before the Court of Ld. Additional Rent Controller with respect to execution of Will and mother of present plaintiff had filed a suit for eviction against the then tenant with respect to bonafide requirement of suit premises and it is argued that since the petition was filed on the ground of bonafide requirement the concept of ownership was to be proved in that eviction petition and defendant no.4 herein, the petitioner in Rent Petition Ms. Bhagwanti has placed the Will dated 02.07.1970 on the record of the Ld. Court of ARC and examined both the attesting witnesses and believing the version of petitioner as well as the witnesses the petitioner was held to be owner of the suit property and therefore the Will has been validly proved by the plaintiff in the Eviction Petition. It is further argued that by now since the witnesses are not available, the judgment of that court be read in this matter and it be held that the defendants no.1, 3 and 4 have been able to prove that the Will CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 31 of 60 was validly executed and duly attested.
46. It is further argued that since the initial onus has been duly proved then, now the burden shifts qua coercion and forgery upon the plaintiff which the plaintiff has not been able to prove, therefore the contention of defendants be accepted to that aspect.
47. It is further argued by counsel for defendant that even otherwise the Will was executed on 02.07.1970 and keeping in view the provision of Section 90 of Indian Evidence Act which inter alia raises a presumption with respect to due execution of the Will and in view of the various judgment particularly in the case of Sarat Chandra Mondal Vs. Panchanan Mondal, MANU/WB/0174/1953 decided by the Hon'ble High Court of Calcutta on 11.02.1953 in which it has held that if the Will has been executed thirty years prior to the date of tendering the same in evidence, the presumption can be drawn in favour of propounder of Will. It is further argued that since the plaintiff has not been able to prove any suspicious circumstances, either by way of pleadings or by way of evidence with respect to execution and attestation of the Will, this fact is now covered by the provision of Section 90 of Indian Evidence Act read with judgment passed by the Court of Mr. R. N. Jindal, the then ld. ARC, Delhi, the Will has been duly proved in accordance with law. It is further argued that in the entire evidence, although the same is not worth reading in views of judgment in Janki Vashdeo Bhojwani Vs. Indusind Bank Limited, Civil Appeal no.6790/2003 decided by Hon'ble Supreme Court on 06.12.2004, the plaintiff has never disputed the signatures of Late Sh. Ladha Ram and the witnesses thereof and therefore the suit of the plaintiff is liable to be CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 32 of 60 dismissed.
48. Counsel for the plaintiff, on the other hand, has rebutted all these arguments one by one inter alia stating that as far as the petition before the Ld. Additional Rent Controller is concerned, the plaintiff was not made a party by the petitioner in that petition (defendant no.4 herein) with respect to the witnesses examined in the petition and therefore the said judgment before the Court of Ld. ARC Sh. R. N. Jindal is not binding upon this Court with respect to findings given regarding due execution of the Will or with respect to the witness examined in that petition. It is further argued that the Court of Ld. ARC is a Court of limited jurisdiction and it has no jurisdiction to give its finding on the genuineness, execution and attestation of the Will rather it has only to see prima facie case of ownership as it is well settled law that for proving ownership in the eviction petition, the title as such is not to be proved against world at large but the title in comparison to the tenant, prima facie, has to be seen and based on the principle of better title, qua the tenant therein, the proceedings under the Rent Control Act are disposed off and therefore taking both the views simultaneously i.e. the plaintiff herein was not a party to the rent eviction petition and secondly the Court of Rent Controller has no jurisdiction to give findings on the Will, it is argued that the said contention of counsel for defendants is not tenable and be rejected.
49. It is further argued by counsel for plaintiff that the defendants herein have only made a bald assertion that both the attesting witnesses are not available in and in fact have not made any efforts to summon any of the witnesses who have attested the purported Will dated 02.07.1970 and keeping in view the provisions of Section 69 of Indian Evidence Act and CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 33 of 60 keeping in view the judgment of Babu Singh and others Vs. Ram Sahai @ Ram Singh, (2008) 14 SCC 754 decided by Hon'ble Supreme Court on 30.04.2008 in which it was held that in case of absence of attesting witness the due weightage be given to those facts once the propounder of the witness has been able to prove that he has taken sufficient steps/process under Order 16 rule 10 of CPC to show that despite issuance of summons, the witness failed to obey the summons then only the propounder of the Will can claim that the attesting witnesses are not available. It is further argued that the duty of the defendant/propounder of the Will to prove the Will does not stop him and even in such circumstances, when both the witnesses are not available despite taking recourse to the provision of Order 16 Rule 10 of CPC then the propounder of the Will has to take the shelter and benefit of Section 69 of Indian Evidence Act. Section 69 of Indian Evidence Act reads under:
"Proof where no attesting witness found - If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signatures of the person executing the document is in the handwriting of that person."
50. It is further argued by counsel for plaintiff that in view of judgment in the case of Jagdish Prasad Vs. State, FAO no.355/2008 decided by the Hon'ble High Court of Delhi on 03.03.2015 in which it was inter alia held that in case the Will cannot be proved under Section 68 of the Evidence Act, 1872 then only, the Will has to be proved under Section 69 of Indian Evidence Act and the defendants have not proved the Will. It is further argued by counsel for plaintiff that as far as Section 90 of Indian Evidence Act is concerned, the judgment relied upon by the counsel for defendant is CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 34 of 60 not applicable and even otherwise the said judgments are old and keeping in view the judgment passed by the Hon'ble Madras High Court in the case of Govindaraj Vs. Ramadoss, SA no.851/2008 and MP no.1/2008 and 01/2009 decided on 10.03.2011 in which it was held as under:
"14. At this juncture, I would like to point out that the latest and the recent decision of the Hon'ble Apex Court reported in (2009) 3 SCC 687, Bharpur Singh and others Vs. Shamsher Singh, Civil Appeal no.7250/2008 decided on 12.12.2008 should necessarily be adhered into as under certain excerpts from it would run thus:
19. The provisions of Section 90 of the Evidence Act, 1872 keeping in view the nature of proof required for providing a Will have no application. A Will must be proved in terms of the provisions of Section 63 (c) of the Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. In the event of the provisions thereof cannot be complied with, the other provisions contained therein, namely, Section 69 and 70 of the Evidence Act providing for exceptions in relating thereto would be attracted.
Compliance with statutory requirement for proving an ordinary document is not sufficient, as Section 68 of the Evidence Act postulates that execution must be proved by at least one of the attesting witnesses, if any attesting witness is alive and subject to the process of the court and capable of given evidence.
It is therefore crystal clear from the decision of the Hon'ble Apex Court that Section 90 of the Indian Evidence Act is not applicable relating to proving of the Will is concerned; even through the Will like Ex.B4 might be of 30 years old and produced form proper custody, yet strictly in accordance with Section 68 and 69 of the Indian Evidence Act, the Will should be proved."
51. It is further argued that since the provisions of Section 63 of the Indian Succession Act read with Section 68 or Sections 69 of the Evidence Act have not been complied with and since the Will has not been proved in view of Section 69 of the Evidence Act, the propounder has not been able to prove the Will and the Will dated 02.07.1970 be declared as null and void and the suit of the plaintiff for partition be decreed. It is further argued CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 35 of 60 that even as per the contention of defendants that they have got mutation in their names it has come in evidence that while getting mutation they have got the mutation on the basis of Will dated 09.08.1966 only and once the defendants themselves are relying upon the Will dated 09.08.1966 in the year 1983, when they themselves alleged that the Will dated 09.08.1966 this fact speaks volume of truth that the Will dated 02.07.1970 has been forged subsequently and it was not in existence even at the time of applying for mutation which itself is a suspicion circumstance. It is further argued that the first Will dated 09.08.1966 inter had alia given life interest to defendant no.4 Ms. Bhagwanti and only after the demise of Ms. Bhagwanti, the testator had given equal share to the plaintiff and defendants no.1 to 3 and since no malafide against the plaintiff qua the family members has been pleaded and proved, which might show that the plaintiff was having some dispute with the father or even with his brothers OR the plaintiff had not been adhering to the common family norms OR was not cooperating with the sisters and in absence of any such malafide or fact of adverse relationship amongst the family members, there cannot be any ground for cancellation of Will all of a sudden, that too without notice to the plaintiff. It is further argued by ld. counsel for plaintiff that father of all parties was not keeping well and on the date of execution of the alleged Will there is strong apprehension that Will has been forged.
52. As far as the judgment in the case of Janki Vashdeo Bhojwani Vs. Indusind Bank Limited is concerned, counsel for plaintiff has argued that the said judgment was entirely on different facts and is not applicable on the facts of the present case which is for partition. The plaintiff/PW1 who has deposed in this matter is the son of Mr. Chander Prakash, the plaintiff CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 36 of 60 and since Chander Prakash was not keeping good health, was not able to maintain good health and he was not able to depose before this court since 1985 and being one of the son of the plaintiff, he is well conversant with the facts of the family affairs and of the present case, his testimony be read. He further argued that PW1 has not seen his grandfather signing and as such his evidence basically is in support of suit for partition and in a suit for partition amongst the family members ever linear descendant can be the plaintiff or can be the defendants and even parties may apply for transposing them as plaintiff and/or defendants by showing some conflict of interest, if any and therefore in a suit for partition nonexamining of father i.e. plaintiff is not fatal therefore the judgment relied upon by the defendant is not applicable in the present case.
53. Counsel for defendants no.1 and 3 has argued by stating that the plaintiff is well aware of the Will from the year 1970 itself as the Will was executed in the presence of plaintiff and other family members were aware of the second Will and in any case when eviction petition was filed by the mother of the parties (defendant no.4 herein) counsel who had been appearing for mother was got engaged by the plaintiff himself and that very counsel had been appearing for plaintiff in this case as well. Therefore, the fact that the plaintiff is not aware of the Will dated 02.07.1970 is not well found.
54. Counsel for plaintiff, on the other hand, has argued that not even a single document has been filed by the plaintiff to support his contention and neither he had appointed any counsel for her mother in eviction petition nor the said counsel had ever appeared for him and it is further clarified that there is no merit in this argument as apart from filing an order passed by the Court of Ms. Asha Memon, the then Ld. Additional Rent Controller, Delhi CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 37 of 60 or yet previous order passed by the Court of Sh. R. N. Jindal, the then Ld. Additional Rent Controller, Delhi no other proceeding of that eviction petition have been placed on court record to support the above contention of the counsel for plaintiff.
55. I have heard respective arguments of both the parties.
56. Now coming to the serial wise contentions raised by the counsels for the parties alongwith evidence which has come on record. First of all the fact with respect to existence of Will dated 02.07.1970 is concerned has to be taken care of. The Will has been defined under Section 2 (h) of the Indian Succession Act but it has its literal meaning that testamentary disposing of property of person i.e. the person who executes the Will with respect to his left over properties at the time of when he breathed last. This is reason that it is only the last Will or testament, if proved, is to be considered for all purposes. Section 2 (h) of the Indian Succession Act reads as under:
"(h) "will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death."
57. As far as drafting of the Will is concerned, there is always a term in the Will that so far the testator is alive he will be the owner of the property sought to be disposed off by said testamentary disposition and it is only after his death, the left over property vests in the person(s) so named in the said Will. Now coming to the facts of the present case. As far as Will dated 02.07.1970 is concerned, the first aspect therefore is whether the Will dated 02.07.1970 exists. The simple answer to this query is 'yes'. The Will dated 02.07.1970 has been placed on record by the plaintiff himself, by summoning a witness from the office of Subregistrar, Kashmiri Gate and CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 38 of 60 PW3 has appeared in the witness box and has deposed and even has placed on record the Will Ex.PW3/1 and the same is relied upon by DW1 in his evidence. This establishes two facts i.e. one the Will dated 02.07.1970 was executed by Late Sh. Ladha Ram and secondly it was registered on 03.07.1970.
58. Now the next question is whether the Will is surrounded by suspicious circumstances or any extraneous fact. The plaintiff in his entire plaint has not mentioned that Will is surrounded by certain suspicious circumstances. The suspicious circumstances are of different magnitude and cannot be described in specific words and as there may be many and even one fact may be suspicious for one person which may not be suspicious for some other person. Therefore it is always subjective from the prospective of a different person. Few of suspicion circumstances may be that the person/testator who has signed the Will was not keeping good health, was not able to put his signatures, was not able to understand as on which document he has signed or is not aware of the fact that his signatures are obtained for what purpose or whether the signatures of said person was obtained under pressure or that signature of such testator are forged one etc. or whether the signatories is understanding that his signatures are on those very contents for which he is assuming the same. Now what the plaintiff has stated in his plaint i.e. that the Will is either forged or is made under coercion. The term purported to be the last Will is forged or made under coercion has to be looked into in the sense in which the plaintiff has used it and also as to whether plaintiff is able to bring the term within the ambit of suspicion circumstances. The word forgery has not been defined under Indian Succession Act however the word 'forgery' has been defined CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 39 of 60 in Section 463 of Indian Penal Code which reads as under:
"Forgery - Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
59. It inter alia means that a person whose signatures are appended on a document is not of a person whose signatures should have been there. To put it simply the signatures of 'A' on the document is not of 'A' but of some other person. The onus to prove the fact was upon the plaintiff and he has not been able to substantiate this at all, what to say on the test of preponderance of probabilities. Not even a single word in the affidavit of PW1, it has been reflected that the signatures of Late Sh. Ladha Ram on the Will dated 02.07.1970 is not of him but of someone else or who that someone is or might be. No averments at all.
60. Now coming to the second word 'coercion'. The definition of coercion means that a person has been pressurized/ coerced to put his signatures on a document. The word coercion has also not been defined in Indian Succession Act but defined in Section 15 of Indian Contract Act which reads as under:
"Coercion - Coercion is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement."
61. Therefore if the contention of plaintiff is accepted then this contention is self contradictory to the previous contention where he claims that CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 40 of 60 signatures are forged one i.e. whether the signatures on the Will is not of Sh. Ladha Ram or whether the signatures of Sh. Ladha Ram are there but have been obtained by putting pressure upon him or under coercion. In later eventuality the signatures are admitted but extraneous fact have been alleged which has to be proved by the plaintiff, as to under what circumstances the signatory have been compelled to put his signatures on the Will/document. This inter alia means that plaintiff himself admits that signatures on the Will is of Sh. Ladha Ram. Obtaining signatures under coercion mean that the person who is stated to have signed the Will have been coerced and he has been put under threat or pressure or by detaining him so as to his signatures be obtained by the beneficiary or by someone on behalf of alleged beneficiary. In simple words, the signatures on the document is of 'A' but has been obtained by coercing him or pressurizing him or by threatening him. Even this fact is also not proved by the PW1 while deposing and while filing the affidavit.
62. From all such aspect it is clear that it was the plaintiff who had to prove that Will dated 02.07.1970 does not bear signature of Late Sh. Ladha Ram or his signatures have been obtained by pressure. In the entire evidence of PW1 has not been able to prove that the Will is forged one or has been obtained under pressure. So two facts have by now been established, one that the Will dated 02.07.1970 is there which was got registered on 03.07.1970 and the same is Ex.PW3/1 and the plaintiff has not been able to prove that the same is forged and has been prepared by using coercion as mentioned by him in second suit i.e. CS (OS) no.306/99.
63. Now the next question is whether the Will is duly attested and proved on the touch stone of Section 68 of Indian Evidence Act so as to the same be CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 41 of 60 used as evidence. As far as first part is concerned i.e. whether the Will is duly executed, the defendants no.1 and 3 have been able to prove that the Will has been duly executed. Since execution of the Will has been established then testimony of both the handwriting experts examined by both the parties is of not much use. The Court is of the opinion that since the execution of the Will has been established, the examination of PW2 or DW2 is not much relevant as their examination is not worth, as the Court already held that the Will dated 02.07.1970 is signed by Late Mr. Ladha Ram. Not only this, the plaintiff himself has summoned PW3 who has exhibited the Will dated 02.07.1970 and its registration thereof on 03.07.1970. So far as execution of the said Will is concerned, it has been duly established.
64. Now as far as the Will has been duly attested is concerned, is the next and relevant part of all such discussions made herein above. It is well settled law that a Will has to be proved strictly under the provisions of Indian Succession Act and i.e. the execution of Will has to be proved under Section 63 of Indian Succession Act and for this purpose that it be read as evidence, it has to be tested on touch stone of Section 68 of the Indian Evidence Act. Three decisions of Hon'ble Supreme Court reported as AIR 1955 SC 343 Girija Datt Singh Vs. Gangotri Datt Singh, (2003) 2 SCC 91 Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, and (2007) 9 SCC 728 Banga Bihara Vs. Baraja Kishore Nanda are relevant.
65. From the decision of Girija Datt Singh Vs. Gangotri Datt Singh the quoted passage with respect to in what manner the propounder has to discharge the burden to prove the Will is as under: "(a) it was signed by the testator in the presence of the two attesting CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 42 of 60 witnesses;
(b) the witnesses should have seen the testator sign the Will, or have been told by him that he had signed it;
(c) The attesting witnesses, or one of them must depose to these facts, in the subsequent probate or other action concerning the Will. In the absence of attesting witnesses, of course, it is open to the propounder to prove the Will like any other document, provided that proof of the facts mentioned in Section 63 of Indian Succession Act and 68 of Indian Evidence Act are led."
66. From the decision of Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, the quoted passage with respect to in what manner the propounder has to discharge the burden to prove the Will is as under: "Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. According to the said section, a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if an attesting witness is alive, and subject to the process of the court and capable of giving evidence. It flows from this section that if there be an attesting witness alive capable of giving evidence and subject to the process of the court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it is clear that a person propounding the Will has got to prove that the Will was duly and validly attested. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 43 of 60 clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined but at least one attesting witness has to be called for proving due attestation of the Will as envisaged in Section 63 of the Indian Succession Act. Although Section 63 of the Indian Succession Act requires that a Will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until at least one attesting witness has been examined for the purpose of proving its due attestation provided if such witness is alive and capable of giving evidence and subject to the process of the court. In a way, Section 68 gives a concession to those who want to prove and establish a Will in a court of law by examining at least one attesting witness even though the Will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a Will. To put in other words, if one attesting witness can prove execution of the Will in terms of clause (c) of Section 63 viz. attestation by two attesting witnesses in the manner contemplated therein, the examination of the other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove that there was due execution of the Will in his presence. If the attesting witness examined, besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by the other witness also, it falls short of attestation of Will for the simple reason that the execution of the Will does not merely mean the signing of it by the CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 44 of 60 testator but it also means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the Will under Section 68 of the Evidence Act fails to prove the due execution of the will, then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."
67. From the decision of Banga Bihara Vs. Baraja Kishore Nanda (supra), the quoted passage with respect to in what manner the propounder has to discharge the burden to prove the Will is as under: "It is now well settled that requirement of the proof of execution of a Will is the same as in case of certain other documents, for example gift or mortgage. The law requires that the proof of execution of a Will has to be attested at least by two witnesses. At least one attesting witness has to be examined to prove execution and attestation of the Will. Further, it is to be proved that the executant had signed and/or given his thumb impression in presence of at least two attesting witnesses and the attesting witnesses had put their signatures in presence of the executant.
68. Perusal of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872 makes it clear that it relates to the law of evidence i.e. what evidence has to be led to prove the execution of a document required by law to be attested. It mandates that the proof can only be by examining at least one attesting witness. Otherwise this contemplates that if there be an attesting witness alive and these words are quite material as the legislature was of the opinion that this Section itself contemplates CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 45 of 60 that one witness can only be examined if that one witness is alive and this Section would have no application if there is no living attesting witness.
69. The next question therefore which is required to be discussed as to what would happen if none of the attesting witness is alive. The fact that whether any attesting witness is alive or not would be discussed subsequently.
70. The legislature was conscious on this aspect and this intention of legislature is found in Section 69 of the Indian Evidence Act, 1872, which reads as under: "69. Proof where no attesting witness found If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person."
71. This inter alia means that an attesting witness can only be examined if he is alive and in case none of the two attesting witnesses is alive, then strict proof of execution and attestation stands relaxed and in those circumstances, signature and handwriting, as contemplated in Section 69, must be proved. Admittedly, none of the attesting witness have been examined in this matter. The contention of ld. counsel for defendants is that this Will relied upon in earlier petition filed by Ms. Bhagwanti and both the witnesses were present therein who were examined and relying on their testimony, the petitioner Ms. Bhagwanti was held to be the owner of the property based on Will dated 02.07.1970. Therefore the order of the Court of Sh. R. N. Jindal, the then ld. ARC is admissible in evidence and Will stands proved. The contention of ld. counsel for plaintiff is that the court of Ld. ARC, is a court of limited jurisdiction and findings given by that Court are not binding upon the Civil Court and/or not at least against the plaintiff CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 46 of 60 who was not a party in those proceedings where the Will is allegedly being claimed to have been proved as he had no opportunity to crossexamine those witnesses so as to bring out the truth on record. This Court is of the opinion that contention of ld. counsel for plaintiff is well found as plaintiff was not a party in the said proceedings and defendant has not been able to prove that the plaintiff was aware of the said proceedings with respect to Will dated 02.07.1970 and thirdly, that the court of Ld. ARC being a Tribunal is a Court of limited jurisdiction and it could not have disposed off the fact with respect to proving of that Will in accordance with Indian Evidence Act and in those proceedings whether the plaintiff is landlord/owner of the property is generally seen in comparison with the title of or the defence of the tenant. Therefore keeping in view the judgments relied upon by counsels for the parties, this court is of the opinion that the Will dated 02.07.1970 has not been proved in accordance with the provision of Section 63 of Indian Succession Act. Now coming to the provisions of Section 69 of Indian Evidence Act. Ld. counsel for plaintiff has argued further that prior to taking the relevance of Section 69 of Indian Evidence Act the intredients of Section 69 of Indian Evidence Act have to be fulfilled. Section 69 of Indian Evidence Act starts with the word 'if no such witness can be found." It is argued by ld. counsel for plaintiff that prior to take the benefit of Section 69 of Indian Evidence Act the defendants have not prove that attesting witnesses cannot be found i.e. cannot be found despite taking due diligence in the present case nothing has been placed on record by the defendant as to whether the witnesses could not be found and at to why they cannot be found. It is further argued that defendants are trying to conceal the evidence of such attesting witnesses CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 47 of 60 for some extraneous reasons as they have never taken steps to summon those witnesses.
72. Counsel for plaintiff has otherwise argued that the defendants have never tried to ascertain as to whether attesting witnesses are alive or not and in support of the said contention he relied upon the judgment in the case of Babu Singh and others Vs. Ram Sahai @ Ram Singh, (2008) 14 SCC 754 decided by Hon'ble Supreme Court on 30.04.2008 in which it was held as under:
"17. It would apply, inter alia, in a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the will may be proved in the manner indicated in Section 69 i.e. by examining witnesses who were able to prove the handwriting of the testator or executants.
18. Whereas, however, a will ordinarily must be proved keeping in view the provisions of Section 63 of the Succession Act and Section 68 of the Act, in the event the ingredients thereof, as noticed hereinbefore, are brought on record, strict proof of execution and attestation stands relaxed. However, signature and handwriting, as contemplated in Section 69, must be proved."
73. I have perused the testimony of DW1. In his entire evidence he has nowhere stated that the defendants have ever tried to search out the attesting witnesses or they have come to know that the said witness are not traceable and if so, from whom. In crossexamination he deposed that the original Will dated 02.07.1970 was submitted by his brother Mr. Satpal Singh before the Hon'ble High Court of Delhi and Mr. Bahadur Singh Kapoor and Mr. Har Prakash but he does not know the addresses of those witnesses. He further deposed that his brother Mr. Satpal Singh knew the addresses of said witnesses and he never met any of the aforesaid two CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 48 of 60 witnesses and he knew through his brother Mr. Satpal Singh that the aforesaid two witnesses are not alive and his brother Mr. Satpal Singh has expired in the year 2013. When DW1 was asked that had he seen any record regarding death of aforesaid two witnesses, then he stated that he has not seen any such record with respect to death of aforesaid two witnesses. He further denied the suggestion that both the said witness are alive and he intentionally and deliberately did not bring them as witnesses. Accordingly, it is clear that the Will has not been proved even by taking recourse to Section 69 of Indian Evidence Act.
74. Therefore issue no.3 is disposed off by observing that although the plaintiff has not been able to prove that the Will has been forged or signatures of Late Ladha Ram had been obtained under pressure but it has been proved that the Will dated 02.07.1970 has not been proved in terms of Section 68 and 69 of Indian Evidence Act so that the document can be read in evidence. Now the next arguments is with respect to Section 90 of Indian Evidence Act which has already been discussed herein above in para 49 and it is held that in of the judgment of Hon'ble Supreme Court in the case of Bharpur Singh (supra) discussed in para nos.50 to 53 herein above, the contention of ld. counsel for plaintiff appears to be well found.
ISSUE No.2 in CS no.57823/16 (Old no.2245/1998) Whether the plaintiff is entitled for partition on the basis of a Will of Late Shri Ladha Ram son of Late Shri Ram Ditta dated 09.08.1966? OPP.
75. Prior to coming to the disposal of this issue, it is necessary to bring on CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 49 of 60 record that issues in this matter as well as in CS no.1756/16 (old no.306/1999) were framed on the same date i.e. 02.02.2006 by the Hon'ble High Court and simultaneously it was ordered that CS no.1756/16 (old no.306/1999) and CS no.57823/16 (Old no.2245/1998) would be heard together and evidence would be led in CS no.1756/16 (old no.306/1999) and therefore this issue was not framed in CS no.57823/16 (Old no.2245/1998) and therefore this has to be disposed simultaneously on the basis of evidence which has come on record.
76. The onus of this issue has been put upon the plaintiff and he has to prove that he is entitled to partition on the basis of Will of Late Ladha Ram dated 09.08.1966. The Will dated 09.08.1966 has been established by PW1 as PW1/3 and apart from these facts there is no evidence on record. Neither the plaintiff has deposed any fact and nor the defendant has deposed on this issue. The evidence which has come on record of PW1 who has established this Will alongwith its translation and the DW1 Mr. Subhash Chander has not said anything about the said Will in his evidence. As far as the existence of the Will dated 09.08.1966 is concerned, the extension of the same is not in dispute. As per the said Will itself, the plaintiff has filed a suit for partition. Suit for partition is basically maintainable with respect to property which is inherited or is liable to be inherited by the legal heirs after the death of the person who had self acquired property and who died intestate. The law is well settled that if there exists any Will with respect to self acquired property of the deceased, then the property has to devolve upon such named person in the Will and in absence of Will it has to be devolved upon the legal heirs under the personal law. In the present case Sh. Ladha Ram executed a Will and that Will as per the plaintiff himself is CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 50 of 60 in existence when Late Mr. Ladha Ram died. Since Late Mr. Ladha Ram has left a Will at the time of his death, execution of Will is not in dispute. Defendants are otherwise not disputing this aspect and therefore as far as Will dated 09.08.1966 is concerned it is there and as per that Will, the defendant no.4 Ms. Bhagwati was having a life interest in the suit property i.e. till the time she is alive. Admittedly Ms. Bhagwanti was alive when the plaintiff filed the present suit. Therefore, it cannot be said that Sh. Ladha Ram died intestate on the date of filing of the suit for partition by the plaintiff. Once the Sh. Ladha Ram has executed a Will and Ms. Bhagwati has a life interest in that property on the date of filing of the present suit, this court is of the opinion that the plaintiff's suit for partition on the basis of Will of Ladha Ram dated 09.08.1966 is premature. Therefore this issue is decided by holding that the plaintiff is not entitled for partition on the basis of Will dated 09.08.1966.
ISSUE No.4: Whether after the death of Ms. Bhagwanti wife of Late Mr. Ladha Ram, the plaintiff is now entitled to seek the reliefs as prayed for? OPD.
77. The onus of this issue has been put upon the defendants. However it appears that this is a legal issue and on the basis of evidence which has come on record either party could have proved their respective version/averments. One of the reason in support of this fact is that this issue is not based on the pleadings but on the basis of subsequental event which have not been pleaded by either of the parties. The Court is of the opinion that since by the time the suit reached the stage of framing up of issues, Ms. Bhagwanti had expired and the Hon'ble High Court took the judicial note of CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 51 of 60 the fact and to adjudicate the issue and perhaps to avoid multiplicity of the proceedings the Hon'ble Court had framed this issue and onus was put on the defendant. This Court is of the opinion that in absence of pleadings, either party may assist the Court in getting this issue adjudicated upon.
78. Ld. counsel for plaintiff has relied upon four judgments i.e. Joti Bhushan Gupta Vs. B. N. Sarkar, AIR 1945 All 311, decided by Hon'ble Allahabad High Court on 04.12.1944, Shri Radhakrishan Temple Trust Maithan, Agra Vs. M/s Hindco Rotatron Pvt. Ltd. & Ors. RFA no.40/2010 decided by Hon'ble High Court of Delhi on 20.12.2011, Smt. Chandrawati Devi & Ors. Vs. Rameshwar Kaviraj & Ors., AIR 1968 Pat 422 decided by Patna High Court on 28.02.1968 and R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V. P. Temple, Civil Appeal no.10585 of 1996, decided by Hon'ble Supreme Court of India on 08.10.2003. In the case of Joti Bhushan Gupta Vs. B. N. Sarkar, AIR 1945 All 311, it was inter alia held that:
"It is no doubt settled as a general rule of law that the Court cannot take into consideration any facts which come into existence subsequent to the institution of the suit, but it is equally well settled that in certain cases where the Court feels that in order to shorten litigation and to subserve the ends of justice between the parties it is necessary to consider such facts, it can certainly do so.
xxx In Thimmayya v. Siddappa ('25) 12 A.I.R. 1925 Mad. 63 the plaintiff had no right of suit at the date of institution but he acquired the right through inheritance opening in his favour alter the filing of the suit but before its disposal and it was held that the right of plaintiff could be recognized even without formal amendment. In Ram Ratan Sahu v. Bishun Chand ('07) 11 C. W. N. 732,10 the appellate Court took into consideration certain facts which had come into existence after the decision of the trial Court and allowed the plaintiff to amend his plaint and gave him a decree on that CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 52 of 60 basis.
xxx Procedure is but the machinery of the law after allthe channel and means whereby law is administered and justice reached. It strangely departs from its proper office when, in place of facilitating, it is permitted to obstruct, and even extinguish, legal rights, and is thus made to govern where it ought to subserve."
In the case of Shri Radhakrishan Temple Trust Maithan, Agra Vs. M/s Hindco Rotatron Pvt. Ltd. & Ors. RFA no.40/2010, it was inter alia held that:
"Ordinarily, a suit has to be decided on the basis of a cause of action which exists on the date when the suit is filed. However, this technical rule has been whittled down by a catena of judgments of the Supreme Court whereby the Supreme Court has said that Courts are always empowered to take notice of subsequent events under Order 7 Rule 7 CPC to shorten the litigation. In fact, the provision of Order 7 Rule 7 CPC has been extensively applied by the Supreme Court in litigations between the landlord and the tenant under different Rent Control Acts, more so in petitions pertaining to eviction on the ground of bonafide necessity. The Supreme Court has repeatedly held that the object of taking notice of subsequent events is to shorten the litigation and to do substantive justice. This principle of taking notice of subsequent events is a well settled principle and I therefore need not burden this judgment with the innumerable judgments of the Supreme Court on this aspect. Of course, it has to be kept in mind that where there are disputed questions of facts pertaining to subsequent events, such disputed questions of facts ordinarily will require trial, however, where the subsequent events bring out an admitted or categorical position they can be used to pass appropriate orders on the basis of such admitted subsequent events/facts. So far as the facts of the present case are concerned, the same show that it is apposite that this Court applies the principle of Order 7 Rule 7 CPC in view of the admitted facts, and more particularly keeping in mind the intention of legislature in amending Section 106 of the Act by Act 3 of 2003. Once we keep the legislative intention in focus that a tenant who has no right to stay in the tenanted premises, because there is no registered lease for a fixed period entitling the tenant to stay in the premises, once a CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 53 of 60 15 days notice period is given to the tenant to vacate the premises, the conclusion that the suit for possession must not be dismissed but decreed, falls in place. Therefore, even if the notice by which tenancy is terminated prior to the filing of the suit is held to be invalid, then, in my opinion, service of summons of the suit for eviction of the tenant showing the categorical intention of the landlord asking the tenant to vacate the tenanted premises can be taken as a notice under Section 106 of the Act read with Order 7 Rule 7 CPC. Of course, one consequence will be that if the tenancy was terminated prior to the filing of the suit validly, the liability towards the mesne profits would begin from such earlier date by which the tenancy was terminated, but where the Court takes termination of tenancy by means of service of summons in the suit or on the basis of any other subsequent act/event then the only consequence could be that though the suit for possession will have to be decreed because the tenant has 15 days notice to vacate the premises, however, mesne profits could be said to be payable from the date from which it is held that the tenancy stands terminated by means of requisite knowledge to the tenant to vacate the premises having received a notice period of 15 days."
In the case of Smt. Chandrawati Devi & Ors. Vs. Rameshwar Kaviraj & Ors., AIR 1968 Pat 422, it was inter alia held that:
"The points for consideration in this appeal are (1) whether the Court should take into consideration the events subsequent to the institution of the suit, namely, that the plaintiffs vacated the premises in question after the judgment of the trial court, and (2) If so, in the absence of any special damage to them, will the suit be maintainable, without the sanction of the Advocate General, as required by Section 91 of the Code of Civil Procedure?
It is well settled that, ordinarily, the decree in a suit should accord with the rights of the parties as they stand at the date of institution; but this principle is not of universal application and the Court may, in appropriate cases, depart from this rule and take notice of events which have happened since the institution of the suit and pass the decree according to the circumstances as they stand at the time the decree is passed. In Rai Charan v. Biswa Nath. AIR 1915 Cal 103, Sir Ashutosh Mookerjee, on a consideration of a large number of English decisions and the decisions of the Privy Council as well as the different High Courts in India, CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 54 of 60 summarised the law as follows: "A suit is to be tried in all its stages on the cause of action as it existed at the date of its commencement. An exception to this rule, namely, that a Court may take notice of events which have happened since the institution of the suit and affora a relief to the parties on the basis of the altered conditions, is applied in cases where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate or that it is necessary to base the decision of me Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties.
The same view was again expressed by the learned judge in Nuri Mian v. Ambica Singh, AIR 1917 Cal 716. The law laid down on the subject was affirmed by their Loruships of the Federal Court of India in Lachmeshwar Prasad v. Keshwar Lal, AIR 1941 FC 5. It was contended before their Lordships that an appellate court could only see whether or not the judgment of the High Court was in conformity with the law as it stood at the time that judgment was Riven and could not take into consideration the provisions of the Bihar Moneylenders Act, 1939, which, came into force after the judgment of the High Court was delivered. This argument was repelled by their Lordships Varadachariar, J. (as he then was), with whom Gwyer, C. J. agreed, observed:
"The Court of appeal is entitled to take into account even facts and events which came into existence after the decree appealed against."
In the case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V. P. Temple, Civil Appeal no.10585 of 1996, it was inter alia held that:
"Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (I) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 55 of 60 should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court."
79. It is contended by relying on the said judgments that in case Ms. Bhagwanti was alive on the date when the plaintiff filed a suit for partition and since she was having a life interest in the suit property, no person could have asked for partition till, Ms. Bhagwanti was alive with the grace of God, the plaintiff has contended that after the death of his mother Ms. Bhagwanti now the Will dated 09.08.1966 is in operation and life interest of Ms. Bhagwanti has lived its life so far Ms. Bhagwanti (defendant no.4) was alive and this Will be given effect thereto as Will dated 09.08.1966 CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 56 of 60 survives. It is further argued that the Will dated 09.08.1966 has been admitted by the defendant himself while relying upon the Will dated 02.07.1970 and secondly, the Will dated 09.08.1966 was relied by the defendant while getting mutation of the suit property which is clear from the testimony of PW4. Therefore since the Will dated 09.08.1966 is not in dispute, the suit of the plaintiff for partition now be decreed.
80. Counsel for defendants no.1 and 3, on the other hand, has argued that the whole contention of plaintiff throughout these proceedings is that the Will dated 02.07.1970 has not been proved in accordance with law and therefore if the plaintiff has to take some benefit from the Will dated 09.08.1966 then he also had to prove the Will dated 09.08.1966 in accordance with Section 68 of Indian Evidence Act and hence the Will dated 09.08.1966 has not been proved even by the plaintiff in his own matter and therefore the plaintiff is not entitled for any benefit in this suit on the basis of Will dated 09.08.1966 as he has not proved the Will.
81. Ld. counsel for defendants no.1 and 3 has argued that no doubt that the Will is not required to be probated in Delhi in view of the judgment in the case of Banwari Lal Charitable Trust Vs. Union of India, WP (C) no.15897/2006 decided by Hon'ble High Court of Delhi itself on 18.09.2009 in which it was held that "it is also well settled that in view of the Indian Succession Act, probate of a Will in Delhi is not mandatory and necessary." Accordingly, it is argued that once the plaintiff is relying upon the Will which is being disputed by the defendant, then probate is required. Counsel for plaintiff has further argued that probate is not required if the will as executed by the testator has been accepted and admitted as correct by all the stakeholders without going to the court and they all are claiming CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 57 of 60 their right on the basis of said Will but if certain rights are to be claimed on the basis of a Will which are not admitted by either of the stakeholders, then the only way to get such relief is adjudication from the court i.e. either to seek declaration with respect to the Will for cancellation of such document by one party or to get probated by the party who is propounding it. Since Will dated 09.08.1966 has not been probated nor has been proved by taking the assistance of Section 68 or 69 of the Indian Evidence Act, no benefit can be granted to the plaintiff in that regard.
82. Counsel for defendants no.1 and 3 has further argued that if the plaintiff is disputing the Will dated 02.07.1970 on the ground that it has not been proved in accordance with Section 68 of Indian Evidence Act then all those averments which the plaintiff is levelling against defendants no.1 and 3 have to be imputed against the plaintiff as well, with respect to Will dated 09.08.1966.
83. This contention of counsel for defendants no.1 and 3 to that extent is well found. Once the plaintiff is trying to take certain benefits from the Will dated 09.08.1966 which the defendants claims that the same has been cancelled, then the plaintiff had to prove that it was not at all cancelled and it is away from all suspicion and then it is a duty of the plaintiff to prove that Will i.e. the Will dated 09.08.1966 meeting all the parameters of provision of Section 63 of Indian Succession Act read with Section 68 of Indian Evidence Act and in any other case under the provisions of Section 69 of Indian Evidence Act as the case may be. Counsel for plaintiff has, however, rebutted these arguments by arguing that the case of plaintiff on the basis of Will dated 09.08.1966 is covered under Section 70 of the Indian Evidence Act. Section 70 of Indian Evidence Act reads as under:
CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 58 of 60"Admission of execution by party to attested document - The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested."
84. I have perused the same and this court is of the view that once the Hon'ble Supreme Court in Bharpur Singh case (supra) has held that a Will has to be proved strictly only in accordance with Section 68 of the Indian Evidence Act and even presumption under Section 90 of Indian Evidence Act is not to be considered then in those circumstances, this court is of the opinion that a mere admission with respect to execution of the Will as claimed by the plaintiff which is being disputed by the defendants by alleging that the same has been cancelled, Section 70 of the Indian Evidence Act would not come to the aid of the plaintiff and the plaintiff has to prove the Will only by taking recourse of Section 68 of Indian Evidence Act. Therefore, this court is of the opinion that after the death of Ms. Bhagwanti, the plaintiff is not entitled for relief of partition on the basis of Will dated 09.08.1966 as he has not been able to prove the said Will. Issue is answered accordingly.
ISSUE No.5 (Relief)
85. All the issues have been disposed off. The Court in nutshell has held that the plaintiff is not able to prove the Will dated 09.08.1966 in accordance with the provisions of Section 68 of Indian Evidence Act and as such cannot claim partition either prior to the death of Ms. Bhagwanti or even after her death on the basis of Will dated 09.08.1966.
86. Further, the defendants are also not able to prove the Will they had been propounding and therefore the mutation on the basis of Will dated CS No. 2245/1998 Chander Prakash vs. Satpal Singh and ors. Page 59 of 60 09.08.1966 / 02.07.1970 is cancelled in the name of defendants no.1 and 3 done by MCD. Therefore no right can accrue on the basis of such Wills. Accordingly, the mutation in favour of defendants no.1 and 3 stands cancelled.
87. As far as the suit of the plaintiff for partition is concerned, the same is hereby dismissed. As far as second suit is concerned, the suit is partly decreed thereby directing the MCD to cancel the mutation. Order accordingly. No order as to cost of either side. Decree sheets be prepared accordingly. SUKHVIR Digitally signed by SUKHVIR SINGH File be consigned to record room. SINGH MALHOTRA Date: 2018.11.22 MALHOTRA 17:10:05 +0000 ANNOUNCED IN THE OPEN (S. S. MALHOTRA) COURT ON 22.11.2018 ADDITIONAN DISTRICT JUDGE/ PO, MACT NORTH, ROHINI, DELHI.
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