Delhi District Court
Shri Pradeep Goyal Others vs Smt. Sarla Goyal (Deceased) Anr on 5 February, 2026
IN THE COURT OF MS. AMBIKA SINGH,
DISTRICT JUDGE-01, SOUTH DISTRICT,
SAKET COURT, NEW DELHI
Civil Suit No.6875/2016
1. Sh. Pradeep Goyal (Since deceased)
Through his LRs
(i) Smt. Kalpana Goyal,
W/o Late Sh.Pradeep Goyal,
R/o B-53 (Ground Floor),
Soami Nagar,
New Delhi - 110017
(ii) Mrs.Deepika Sarkar,
D/o Late Sh.Pradeep Goyal,
R/o B-53 (Ground Floor),
Soami Nagar,
New Delhi - 110017
(iii) Mr.Anuj Goyal,
S/o Late Sh.Pradeep Goyal,
R/o B-53 (Ground Floor),
Soami Nagar,
New Delhi - 110017
2. Smt. Neera Aggarwal,
W/o Sh.B.P.Aggarwal,
Flat No.66, Brothers Apartments,
Patparganj, I.P.Extension,
Delhi - 110092
3. Dr.(Mrs.) Rekha Gupta,
W/o Dr.Dinesh Gupta,
C-4/77, Yamuna Vihar,
Delhi
..... Plaintiffs
VERSUS
CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED)
ANR. AND
CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 1 of 82
Digitally signed
Ambika by Ambika
singh
singh Date:
2026.02.05
16:49:57 +0530
1. Smt. Sarla Goyal (Deceased)
W/o Late Sh.D.P.Goyal,
R/o B-53, Soami Nagar,
New Delhi - 110017
2.(i) Smt. Uma Goyal,
W/o late Sh.Sanjay Goyal
R/o B-53, Soami Nagar,
New Delhi - 110017
2.(ii) Sh.Archit Goyal,
S/o late Sh.Sanjay Goyal
R/o B-53, Soami Nagar,
New Delhi - 110017
2.(iii) Sh.Sachit Goyal,
S/o late Sh.Sanjay Goyal
R/o B-53, Soami Nagar,
New Delhi - 110017
..... Defendants
Date of institution : 21.04.2007
Date for reserving judgment : 27.01.2026
Date of pronouncement of judgment : 05.02.2026
Suit for Partition
AND
Civil Suit No. 75/2019
2.(i) Smt. Uma Goyal,
W/o late Sh.Sanjay Goyal
R/o B-53, Soami Nagar,
New Delhi - 110017
2.(ii) Sh.Archit Goyal,
S/o late Sh.Sanjay Goyal
R/o B-53, Soami Nagar,
New Delhi - 110017
CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED)
ANR. AND
CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 2 of 82
2.(iii) Sh.Sachit Goyal,
S/o late Sh.Sanjay Goyal
R/o B-53, Soami Nagar,
New Delhi - 110017
.............. Plaintiffs
VERSUS
1. Sh. Pradeep Goyal (Since deceased)
Through his LRs
(i) Smt. Kalpana Goyal,
W/o Late Sh.Pradeep Goyal,
R/o B-53 (Ground Floor),
Soami Nagar,
New Delhi - 110017
(ii) Mrs.Deepika Sarkar,
D/o Late Sh.Pradeep Goyal,
R/o B-53 (Ground Floor),
Soami Nagar,
New Delhi - 110017
(iii) Mr.Anuj Goyal,
S/o Late Sh.Pradeep Goyal,
R/o B-53 (Ground Floor),
Soami Nagar,
New Delhi - 110017
2. Smt. Neera Aggarwal,
W/o Sh.B.P.Aggarwal,
Flat No.66, Brothers Apartments,
Patparganj, I.P.Extension,
Delhi - 110092
3. Dr.(Mrs.) Rekha Gupta,
W/o Dr.Dinesh Gupta,
C-4/77, Yamuna Vihar,
Delhi
CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED)
ANR. AND
CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 3 of 82
..... Defendants.
Date of institution : 30.01.2019
Date for reserving judgment : 27.01.2026
Date of pronouncement of judgment : 05.02.2026
Suit of partition
JUDGMENT
1. Vide this judgment, the present court shall decide the suit of partition and counter claim.
2. The present suit has been filed for seeking partition and division of the movable and immovable properties left by late Shri D.P. Goyal, also known as Shri Dharam Pal Goyal, who was the predecessor-in-interest of the plaintiffs as well as deceased defendant no.1. Defendant no.1 expired on 30.01.2010 during the pendency of the present proceedings and is, therefore, hereinafter referred to as the "deceased defendant no.1". Plaintiff no.1 is the son of late Shri D.P. Goyal, whereas plaintiff nos.2 and 3 are his daughters. Deceased defendant no.1 was the widow of late Shri D.P. Goyal. Defendant nos.2(i) to (iii) are the legal heirs of late Shri Sanjay Goyal, who was the pre-deceased son of late Shri D.P. Goyal and deceased defendant no.1. It is pertinent to mention here that during the pendency of the suit Sh. Pradeep Goyal died on 15.03.2018 and he was represented through his LRs i.e. Smt. Kalpana Goyal, Mrs. Deepika Sarkar and Sh. Anuj Goyal.
CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 4 of 82
3. Late Shri D.P. Goyal expired on 25.02.1994. During his lifetime, he executed his last Will dated 23.11.1993, which was duly registered. By virtue of the said Will, late Shri D.P. Goyal bequeathed all his movable and immovable properties in favour of his wife, Smt. Sarla Goyal, the deceased defendant no.1 herein. Consequently, upon the death of late Shri D.P. Goyal, deceased defendant no.1 became the absolute owner of all movable and immovable properties left by him. It is pleaded that the properties owned by late Shri D.P. Goyal were his self- acquired properties, including the immovable property bearing no. B-53, Soami Nagar, New Delhi-110017, which is mentioned in Schedule 'A' to the plaint, as well as movable properties in the nature of shares and debentures of various companies standing exclusively in his name, details whereof are mentioned in Schedule 'B' to the plaint.
4. It is the case of the plaintiffs that as deceased defendant no.1 was advancing in age, she desired that during her lifetime the properties left by her husband should be divided amongst her children and legal heirs so that no dispute or controversy may arise after her death and the family members may continue to live with love, affection, and peace. It is pleaded that deceased defendant no.1 expressed her intention to divide and partition both the movable and immovable properties of which she had become the absolute owner and that meetings were held between the parties wherein deceased defendant no.1 communicated her desire for such partition.
CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 5 of 82
5. According to the plaintiffs, sometime in the month of September 2006, the parties to the suit orally agreed to divide and partition the movable and immovable properties. Since there were five groups in the family, it was agreed that the properties would be divided into five equal shares, each group being entitled to 1/5th share. In the said oral family settlement, defendant nos.2(i) to
(iii), being the legal heirs of the pre-deceased son late Shri Sanjay Goyal, were collectively allotted 1/5th share in the movable and immovable properties of late Shri D.P. Goyal.
6. It is further pleaded that pursuant to the said oral settlement, the immovable property bearing no. B-53, Soami Nagar, New Delhi-110017 was divided into five equal shares of 1/5th each, to be held by plaintiff no.1, plaintiff no.2, plaintiff no.3, deceased defendant no.1, and defendant nos.2(i) to (iii) jointly. It was also agreed that deceased defendant no.1 would be entitled to utilize her 1/5th share in any manner during her lifetime. Deceased defendant no.1 further decided that the said immovable property should be sold and that the sale consideration received therefrom should be divided equally among the five groups. Defendant nos.2(i) to (iii) were to be entitled only to their 1/5th share of the sale consideration, whereas deceased defendant no.1 was entitled to utilize her share as per her own wishes during her lifetime.
7. With regard to the movable properties, namely shares and debentures of various companies standing in the exclusive name of late Shri D.P. Goyal, it is pleaded that the same were also divided into five equal shares, each party being entitled to 1/5th CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 6 of 82 share. The parties were to get their respective shares transferred in their favour, and the interest and dividends lying with the companies were also to be divided equally. It is further pleaded that deceased defendant no.1 also divided the shares and debentures held in her exclusive name in order to avoid any dispute after her death and that she treated all parties equally without any discrimination.
8. It is stated that defendant nos.2(i) to (iii) were present at the time of the oral family settlement and had agreed to the partition and division of the properties. In order to avoid any future controversy, a Memorandum of Family Settlement dated 18.02.2007 was executed in writing, recording the terms of the oral settlement. The said Memorandum of Family Settlement was signed by the plaintiffs and deceased defendant no.1, and the interests of defendant nos.2(i) to (iii) were also fully protected therein. As per the said Memorandum, the immovable property bearing no. B-53, Soami Nagar, New Delhi was required to be sold and the sale consideration divided amongst the parties in accordance with their respective shares, and the movable assets were also required to be divided accordingly.
9. It is the grievance of the plaintiffs that despite the execution of the Memorandum of Family Settlement dated 18.02.2007, defendant nos.2(i) to (iii) avoided cooperation in implementing the same. Despite repeated requests, defendant nos.2(i) to (iii) allegedly showed reluctance to comply with the settlement, leaving the plaintiffs with no alternative but to institute the CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 7 of 82 present suit for partition and division of the properties.
10. During the pendency of the suit, deceased defendant no.1 filed an affidavit dated 29.06.2009 confirming on record the partition and division effected by her and reiterating her stand regarding the distribution of the properties. Deceased defendant no.1 expired on 30.01.2010. Prior to her death, she declared and confirmed that out of her 1/5th share, 50% would devolve upon plaintiff no.1, 25% upon plaintiff no.2, and the remaining 25% upon plaintiff no.3, and that defendant nos.2(i) to (iii) would not be entitled to any share out of her said portion. She further declared that the plaintiffs alone would have the authority to sell the immovable property and that defendant nos.2(i) to (iii) would not interfere in the sale.
11. It is further pleaded that deceased defendant no.1 also owned movable assets in the nature of shares of various companies, details whereof are mentioned in Schedule 'C' to the plaint, which devolved upon the plaintiffs in the proportions declared by her during her lifetime. It is also alleged that certain shares purchased by late Shri D.P. Goyal stand in joint names or in the exclusive names of defendant nos.2(i) to (iii) or late Shri Sanjay Goyal, though purchased from the funds of late Shri D.P. Goyal, and that defendant nos.2(i) to (iii) are liable to disclose the details of such assets and render accounts.
12. The cause of action for filing the present suit is stated to have arisen on 18.02.2007 upon execution of the Memorandum of Family Settlement, again on 20.03.2007 when defendant nos.2(i) CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 8 of 82 to (iii) allegedly declined to implement the same, and further on 30.01.2010 upon the death of deceased defendant no.1. The cause of action is stated to be continuing.
13. The plaintiffs in their plaint have prayed for a preliminary decree for partition be passed declaring the respective shares of the parties in property bearing No. B-53, Soami Nagar, New Delhi-110017, as mentioned in Schedule "A" of the plaint. They have further prayed that a Local Commissioner be appointed for partition of the said property by metes and bounds, and if such partition is not possible, the property be sold and the sale proceeds be distributed among the parties according to their respective shares. The plaintiffs have also sought decrees for division of the shares and debentures of the companies mentioned in Schedules "B" and "C", standing in the exclusive names of Shri D.P. Goyal and deceased defendant No.1 Smt. Sarla Goyal, respectively, in accordance with the shares claimed in the plaint. They have further prayed for division of the shares and other movable assets standing in the name of late Shri Sanjay Goyal, either individually or jointly with others, to the extent of the share alleged to have been inherited by deceased defendant No.1, after disclosure of details by defendants No.2(i) to (iii). In the alternative, the plaintiffs have prayed that if partition of the suit properties is not possible, appropriate orders for division be passed in accordance with law. The plaintiffs have also sought rendition of accounts from defendants No.2(i) to (iii) regarding profits earned from the said shares and assets, and have prayed for costs of the proceedings.
CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 9 of 82
14. The defendants were duly served and upon service of summons they put their appearance before the court and had filed their written statement. In the written statement of defendant No. 2(i) to (iii), they have submitted that the present suit, as framed and instituted by the plaintiffs, is not maintainable in law and on facts and is liable to be dismissed at the threshold. It has been specifically contended that the plaintiffs have impermissibly clubbed distinct and separate causes of action in one suit. The suit was originally filed seeking partition of the estate left behind by Late Shri D.P. Goyal, in which Defendant No. 1, Late Smt. Sarla Goyal, widow of Late Shri D.P. Goyal, was also impleaded as a party. During the pendency of the suit, Defendant No. 1 expired and thereafter the plaintiffs amended the suit so as to include even the estate of Late Smt. Sarla Goyal as part of the subject matter of the present proceedings. Such inclusion of two independent estates, devolving under different legal regimes and on different causes of action, amounts to impermissible joinder and clubbing of causes of action, which is not permissible under law. On this ground alone, the suit is stated to be not maintainable and liable to be dismissed.
15. It has further submitted that the suit is barred by limitation, particularly in so far as it relates to the estate of Late Shri D.P. Goyal, who expired in the year 1994. The plaintiffs, according to the defendants, have failed to explain the enormous and unexplained delay in asserting their alleged rights, and therefore the suit is hopelessly time-barred. The defendants have also raised a serious objection with regard to valuation and payment CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 10 of 82 of court fees. It has been submitted that the plaintiffs have deliberately and grossly undervalued the suit by fixing its value at Rs.55,00,000/-, despite the fact that the subject matter includes a double storey immovable property bearing No. 8-53, Soami Nagar, New Delhi-110017, constructed on a plot admeasuring 500 square yards, along with numerous movable assets such as shares, debentures, fixed deposits and other financial instruments. The plaintiffs have failed to disclose the true market value of these assets. It is pointed out that the suit was initially filed before the District Court on the said valuation and later transferred to the Hon'ble High Court of Delhi. Even after the death of Defendant No. 1, Late Smt. Sarla Goyal, whose assets were also brought within the scope of the suit, the plaintiffs continued with the same valuation, which is wholly impracticable and misleading. It has been specifically asserted that even otherwise the immovable property alone, as per prevailing circle rates, has a value of more than Rs.22 crores, and the movable assets are valued at more than Rs.10 crores. Despite this, the plaintiffs have neither correctly valued the suit nor paid the requisite ad valorem court fees. The plaintiffs have also falsely claimed possession of the immovable property, whereas in fact Plaintiff No. 1 and Defendant No. 2(i) to (iii) are in possession, and Plaintiffs No. 2 and 3 are not in possession of any portion of the property. Consequently, the plaintiffs were legally bound to pay ad valorem court fees according to their alleged shares, failing which the plaint is liable to be rejected under Order VII Rule 11 CPC.
CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 11 of 82
16. Another preliminary objection raised by the defendants is that the plaintiffs have deliberately and intentionally concealed material facts and assets. It is submitted that while annexures have been filed, the plaintiffs have neither disclosed the market value of the shares and debentures nor disclosed the jewellery left behind by the deceased. The plaintiffs have merely mentioned account numbers relating to provident fund, life insurance policies, fixed deposits, infrastructure bonds, and savings bank accounts with Punjab National Bank and Canara Bank, without disclosing their values. Such deliberate concealment makes proper valuation impossible and renders the suit not maintainable.
17. The defendants denied the averments made in the plaint. It has been categorically denied that Late Shri D.P. Goyal executed any Will dated 23.11.1993. The said Will is alleged to be forged, fabricated and not executed by Late Shri D.P. Goyal while in a sound disposing state of mind. According to the defendants, the true and genuine Will executed by Late Shri D.P. Goyal was dated 05.02.1993, which was executed voluntarily, consciously and in a sound disposing mind, whereby he bequeathed his entire estate in favour of his two sons, namely Plaintiff No. 1 and late Shri Sanjay Goyal, husband of Defendant No. 2(i) and father of Defendant No. 2(ii) and (iii). It has been asserted that there was no occasion or reason for Late Shri D.P. Goyal to alter or revoke the said Will within a short span of nine months. On the contrary, it has been pleaded that at the relevant time Late Shri D.P. Goyal was seriously ill and was admitted in a nursing home owned by CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 12 of 82 Plaintiff No. 3 and her husband, where the alleged Will dated 23.11.1993 was fabricated. His signatures were obtained by misrepresentation and without disclosing the contents of the document, and therefore, the alleged Will is invalid and unenforceable.
18. The defendants have denied the correctness of the averments and submitted that the movable assets such as shares and debentures were acquired through the financial contribution of late Shri Sanjay Goyal, who filed multiple applications from his own earnings, as was customary at the relevant time, and the same were merely held in the name of Late Shri D.P. Goyal. It has again been reiterated that the alleged Will dated 23.11.1993 was neither executed voluntarily nor with sound disposing mind, as Late Shri D.P. Goyal was under treatment, under medication and under the control of the plaintiffs. The Will dated 05.02.1993 alone reflects the true intention of the testator and there was no justification for any subsequent change. It has been asserted that Defendant No. 1, Late Smt. Sarla Goyal, never became the absolute owner of the shares and debentures held in the name of Late Shri D.P. Goyal. The Schedule-B details have been termed incorrect and misleading. The plaintiffs have been accused of misappropriating dividends received on shares held in the name of Late Shri D.P. Goyal and of deliberately suppressing the alleged Will dated 23.11.1993 for nearly fourteen years without seeking probate or letters of administration. It has further been highlighted that late Shri Sanjay Goyal remained silent due to family relationships and that Defendant No. 2(i) had even CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 13 of 82 donated her kidney to her husband, who later expired in 2004, without any assistance from the plaintiffs.
19. It has been specifically submitted that Late Smt. Sarla Goyal never divided her estate during her lifetime and never executed any Will. The alleged family settlement or Memorandum of Family Settlement dated 18.02.2007 has been described as a manipulated, self-serving and unenforceable document, to which Defendant No. 2(i) to (iii) were not parties. It is further submitted a perusal of the said document does not support the claims made in the plaint regarding division of shares and immovable property. The alleged Will dated 23.11.1993 is stated to be surrounded by suspicious circumstances, having been executed in a nursing home owned by Plaintiff No. 3 and witnessed by interested witnesses under their control, when Late Shri D.P. Goyal was suffering from serious ailments and not in a sound disposing state of mind.
20. The defendants have also denied the assertions made in the plaint regarding possession and alleged necessity of sale of the immovable property. It has been stated that Plaintiff No. 1 is in possession of the ground floor, whereas Defendant No. 2(i) to
(iii) are in possession of the upper floors, and Plaintiffs No. 2 and 3 are not in possession of any part of the property. The false plea of joint possession has been taken only to avoid payment of proper court fees.
21. It has been asserted that the properties of Late Shri D.P. Goyal are to devolve strictly as per the Will dated 05.02.1993 and the CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 14 of 82 properties left by Late Smt. Sarla Goyal are to devolve as per the Hindu Succession Act. The alleged affidavit dated 29.06.2009 and the so-called family settlement have been termed legally inconsequential. The defendants have further alleged concealment of bank accounts, locker details, Demat account, jewellery and unauthorized withdrawal of funds by Plaintiff No. 1, giving rise to a counter-claim seeking proper rendition of accounts.
22. The defendants have denied the cause of action pleaded reiterated that the suit is hopelessly barred by limitation. The valuation and court fee pleaded have also been denied. In reply to the prayer clause, the defendants have prayed that the suit be dismissed with exemplary costs and that any other order deemed fit and proper in the facts and circumstances of the case be passed in favour of Defendant No. 2(i) to (iii) and against the plaintiffs.
23. In the replication, it has been explained that during the pendency of the suit, Defendant No. 1, Late Smt. Sarla Goyal, expired, and consequently, the plaint was amended only to bring on record the subsequent events and to avoid multiplicity of proceedings. Such amendment was necessitated by circumstances beyond the control of the plaintiffs and was carried out strictly in accordance with law.
24. The plaintiffs have also denied the objection that all assets have not been disclosed. It has been submitted that Plaintiff No. 1, being fully aware of the assets of Late Shri D.P. Goyal and Late CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 15 of 82 Smt. Sarla Goyal, has disclosed all such assets in the plaint. It has been further asserted that if Defendants No. 2(i) to (iii) are aware of any other assets, they are under a legal obligation to disclose the same. On the contrary, it has been pleaded that Defendants No. 2(i) to (iii) have themselves concealed the movable and immovable assets standing in the name of Late Shri Sanjay Goyal, their predecessor in interest. Since Late Smt. Sarla Goyal was alive at the time of death of Late Shri Sanjay Goyal, she inherited a share in his estate as his mother, and therefore such assets are also liable to partition. It has been further pleaded that Defendants No. 2(i) to (iii) are also required to disclose the movable and immovable assets standing in their own names which they have received through Late Shri Sanjay Goyal, as well as the details of shares and debentures in their names which were acquired from the funds invested by Late Shri D.P. Goyal.
25. The counter claim of the suit have been filed by the Defendants No. 2(i) to (iii), who are the counter claimants herein, they have submitted that, as is evident from the plaint itself, they are the legal heirs of Late Shri Sanjay Goyal, who expired on 20.11.2004. It has been specifically pleaded that Defendant No. 2(i) is the widow of Late Shri Sanjay Goyal, while Defendant No. 2(ii) and Defendant No. 2(iii) are his sons, and therefore they represent the entire branch of Late Shri Sanjay Goyal and are entitled to all such rights as devolve upon them in law from the estate of their predecessor. It has further been pleaded that Late Shri Sanjay Goyal was the son of Late Shri Dharam Pal Goyal and Late Smt. Sarla Goyal. Late Shri Dharam Pal Goyal expired CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 16 of 82 on 25.02.1994, whereas Late Smt. Sarla Goyal expired on 30.01.2010. Upon their demise, their estates devolved upon their legal heirs in accordance with law and testamentary dispositions, as the case may be. It has been asserted that Late Shri Dharam Pal Goyal and Late Smt. Sarla Goyal left behind the Plaintiffs No. 1 to 3 as well as the Defendants / Counter Claimants as their legal heirs, and therefore all the parties to the present suit are claiming rights through the same ancestors, making the adjudication of accounts and shares essential for complete and final resolution of the disputes between the parties.
26. The counter claimants have specifically pleaded that Late Shri Dharam Pal Goyal executed a Will dated 05.02.1993, by virtue of which he bequeathed his assets in favour of Plaintiff No. 1 and Late Shri Sanjay Goyal. In so far as the immovable property bearing No. B-53, Soami Nagar, New Delhi-110017 is concerned, it has been stated that Late Smt. Sarla Goyal was only given a limited right of residence on the front side of the ground floor of the said property and was not made the absolute owner thereof under the said Will.
27. It has been categorically asserted that the Will dated 05.02.1993 was the last and final Will of Late Shri Dharam Pal Goyal and that the plaintiffs have illegally and unlawfully propounded an alleged Will dated 23.11.1993, which is neither the last Will nor a validly executed testamentary document of Late Shri Dharam Pal Goyal. The counter claimants have reiterated that the said Will dated 23.11.1993 is not voluntary, valid, or legally enforceable CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 17 of 82 and that all facts relating thereto have already been pleaded in detail in the written statement, which may be read as part of the present counter claim to avoid unnecessary repetition.
28. It has further been submitted that Late Shri Dharam Pal Goyal and Late Smt. Sarla Goyal left behind numerous movable assets including shares, insurance amounts, and bank accounts. Although the plaintiffs have disclosed certain details relating to shares, public provident fund, life insurance policies, fixed deposits, infrastructure bonds, and several bank accounts, they have deliberately concealed complete particulars of all such assets, which are specifically within the exclusive knowledge of Plaintiff No. 1. It has been alleged that Plaintiff No. 1 is under a legal obligation to disclose full and true accounts of all assets that came into his possession, and that to the knowledge of the counter claimants, Plaintiff No. 1 has misappropriated funds and has even withdrawn a sum of Rs.5,37,000/- from a Punjab National Bank account belonging to the deceased.
29. It has also been specifically pleaded that the plaintiffs have failed to disclose the existence of Demat Account No. 10375684, Locker No. 50 maintained with Punjab National Bank, Chirag Delhi, and jewellery worth approximately Rs.60,00,000/- left behind by Late Smt. Sarla Goyal. In addition, it has been stated that several shares held by Late Shri Dharam Pal Goyal and Late Smt. Sarla Goyal, including 100 shares of United Spirits, have not been properly disclosed. According to the counter claimants, Plaintiff No. 1 is in possession and control of all the shares, CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 18 of 82 records, documents, fixed deposits, and even the keys of the bank locker, and has wrongfully withheld the same from the lawful heirs.
30. In the aforesaid facts and circumstances, it has been pleaded that Plaintiff No. 1 is legally bound to render a full and complete account of all assets of Late Shri Dharam Pal Goyal and Late Smt. Sarla Goyal which came into his possession in any manner whatsoever. Upon rendition of such accounts, Plaintiff No. 1 would be entitled only to a half share in the assets of Late Shri Dharam Pal Goyal, while the counter claimants, representing the branch of Late Shri Sanjay Goyal, would also be entitled to a half share in the assets of Late Shri Dharam Pal Goyal. In so far as the estate of Late Smt. Sarla Goyal is concerned, the counter claimants have asserted their entitlement to a one-fourth share therein. It has been further pleaded that the cause of action for filing the present counter claim arose in favour of the counter claimants and against the plaintiffs upon receipt of details pursuant to the amended plaint on 21.11.2013 and that the cause of action has continued and is subsisting till the filing of the present counter claim.
31. The counter claimants have also pleaded that this Hon'ble Court has the jurisdiction to entertain and adjudicate the present counter claim, as the counter claim pertains to the same parties, the same properties, and the same estates of Late Shri Dharam Pal Goyal and Late Smt. Sarla Goyal, which are already the subject matter of the pending suit before this Hon'ble Court. It has further been CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 19 of 82 submitted that the exact valuation of the counter claim cannot be ascertained without first directing rendition of accounts by Plaintiff No. 1. Accordingly, for the purposes of court fees and jurisdiction, the counter claim has been tentatively valued at Rs.5,000/-, on which the prescribed court fee has been paid, with an undertaking to pay the deficient court fee at the time of passing of the final decree, if so required.
32. In view of the above pleadings, the counter claimants have prayed that a decree for rendition of accounts be passed directing the plaintiffs to render full and complete accounts of all assets left behind by Late Shri Dharam Pal Goyal and Late Smt. Sarla Goyal which came into their possession. Upon rendition of accounts, it is further prayed that a decree be passed declaring the entitlement of the counter claimants to a half share in the assets of Late Shri Dharam Pal Goyal and a one-fourth share in the assets of Late Smt. Sarla Goyal. The counter claimants have further prayed that any other order which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case be passed in their favour and against the plaintiffs.
33. The defendants No. 2(i) to (iii) have filed a counter claim in the present suit, to which plaintiff No.1 has filed a written statement raising preliminary objections as well as reply on merits. Plaintiff No.1 has taken the preliminary objection that the counter claim filed by defendants No. 2(i) to (iii) is not maintainable in law and on facts. It is pleaded that the counter claim does not disclose any cause of action, is barred by limitation, suffers from concealment CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 20 of 82 and misrepresentation of material facts, has not been properly valued for the purposes of court fees and jurisdiction, and is frivolous, malafide, an afterthought, and has been filed only to harass the plaintiffs and delay the proceedings of the suit.
34. The plaintiff No.1 has stated that though averments made in the counter claim are not denied, the defendants No. 2(i) to (iii) have no locus standi to file the counter claim. It is admitted that late Shri Dharam Pal Goyal and late Smt. Sarla Goyal left behind plaintiffs No.1 to 3 and that defendants No. 2(i) to (iii) are the legal heirs of late Shri Sanjay Goyal. Plaintiff No.1 has specifically denied the existence and validity of the alleged Will dated 05.02.1993 of late Shri Dharam Pal Goyal. It is pleaded that the said Will stood revoked and that late Shri Dharam Pal Goyal executed his last Will dated 23.11.1993, which is duly registered. It is further pleaded that by virtue of the said registered Will dated 23.11.1993, late Smt. Sarla Goyal was given absolute ownership rights in respect of property bearing No. B-53, Soami Nagar, New Delhi, and not merely a right of residence as alleged by the counter claimants. The averments that late Shri Dharam Pal Goyal bequeathed his assets jointly to plaintiff No.1 and late Shri Sanjay Goyal are also denied. Plaintiff No.1 has further denied the allegations that the Will dated 23.11.1993 is illegal, forged, or not voluntarily executed. It is pleaded that the said Will was always accepted by late Shri Sanjay Goyal as well as by defendants No. 2(i) to (iii). The allegations of illegal propounding of the Will are denied. With regard to movable assets, plaintiff No.1 has pleaded that details CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 21 of 82 of shares and debentures have already been disclosed along with the plaint. It is denied that plaintiff No.1 has misappropriated any accounts. It is further pleaded that Demat Account No. 10375684 was in the name of late Smt. Sarla Goyal, wherein plaintiff No.1 was the nominee, and after her death, the equity shares were transferred in his name as per law. As regards the locker referred to in the counter claim, it is pleaded that the same was surrendered by late Smt. Sarla Goyal during her lifetime.
35. Plaintiff No.1 has further pleaded that the assets standing in the name of late Shri Sanjay Goyal are required to be disclosed by defendants No. 2(i) to (iii), as the same are properties of late Shri Dharam Pal Goyal. It is denied that plaintiff No.1 and the counter claimants are entitled to equal shares in the assets of late Shri Dharam Pal Goyal. According to plaintiff No.1, the entire estate of late Shri Dharam Pal Goyal was inherited by late Smt. Sarla Goyal, and thereafter the assets of late Shri Dharam Pal Goyal and late Smt. Sarla Goyal are liable to be partitioned as per the wishes of late Smt. Sarla Goyal as stated in the plaint. Plaintiff No.1 has also denied the averment regarding the cause of action for filing the counter claim and has pleaded that the counter claim is barred by law and not maintainable.
36. In reply to the written statment of counter claim, defendants No. 2(i) to (iii) have filed replication to the written statement of the plaintiffs to the counter claim, wherein all the preliminary objections raised by plaintiff No.1 have been denied. The defendants have pleaded that the counter claim is maintainable, CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 22 of 82 discloses a valid cause of action, is within limitation, has been properly valued, and has not been filed with any malafide intention. The defendants No. 2(i) to (iii) have denied that they lack locus standi to file the counter claim. They have reaffirmed the averments made in the counter claim and have denied the revocation of the Will dated 05.02.1993. It is pleaded that the Will dated 23.11.1993 is forged, manipulated, and not the duly executed last Will of late Shri Dharam Pal Goyal. It is alleged that late Shri Dharam Pal Goyal was seriously ill and admitted in Rupali Nursing Home, which belongs to plaintiff No.3 and her husband, and that the Will dated 23.11.1993 is the result of manipulation by plaintiff No.1 and plaintiff No.3. The defendants have further pleaded that there was no occasion for late Shri Dharam Pal Goyal to change his earlier Will dated 05.02.1993 and that no reasons have been mentioned in the subsequent Will for such change. According to the defendants, the structure and contents of both Wills show manipulation, and it was never the intention of late Shri Dharam Pal Goyal to confer any share upon his daughter in the immovable property. The defendants have also denied that the Will dated 23.11.1993 was ever accepted by late Shri Sanjay Goyal. With respect to shares, debentures, Demat account, and locker, the defendants have denied that complete disclosures were made by plaintiff No.1 and have pleaded that nomination does not confer ownership and that plaintiff No.1 is liable to render accounts and suffer a decree to the extent of their share.
37. The defendants have further denied that the entire estate of late CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 23 of 82 Shri Dharam Pal Goyal was inherited by late Smt. Sarla Goyal and have denied that partition is to be carried out as per the alleged wishes of late Smt. Sarla Goyal. The defendants have reiterated that the counter claim is maintainable, properly valued, and within limitation, and have prayed for decree of the counter claim on merits.
38. On completion of pleadings following issues were framed:
1. Whether the suit of the plaintiffs is not maintainable on account of clubbing of different causes of actions? OPD
2. Whether the suit is barred by limitation? OPD
3. Whether the suit has not been properly valued for the purposes of court fee and the proper court fee has not been affixed on the plaint? OPD
4. Whether the suit is not maintainable for partition of assets of late Sh. D.P.Goyal? OPD
5. Which of the Wills i.e. 5th February, 1993 or 23rd November, 1993 is the last executed valid Will of late Sh. D.P.Goyal? OPParties.
5A. Whether the suit properties mentioned in Schedule (A), (B) and (c) of the plaint are required to be partitioned/divided in terms of prayer clause (a),
(c) and (d)? OPP 5B. What are the respective shares of the parties in respect of movable properties mentioned in Schedule (B) and (C) of the plaint? OPParties 5C. Whether the plaintiffs are entitled for rendition of account of shares of the companies in the name of late Sanjay Goyal in tems of prayer clause (g)? If so, what is the amount due to the plaintiffs from defendants Nos. 2 (i) and (iii)? OPP
6. What is the share of the parties in respect of house CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 24 of 82 bearing no. B-53, Swami Nagar, New Delhi?OPP
7. Relief.
COUNTER CLAIM:-
A. Whether the counter claim does not disclose any cause of action? OPP B. Whether the counter claim is barred by limitation? OPP C. Whether the counter claim has been properly valued for the purpose of court fees and jurisdiction? OPP
1. Whether the defendants 2(i) to 2(iii) are entitled for rendition of accounts from the plaintiffs? OPCC
2. If so, what is the amount due to the defendant nos. 2 to 3 and from which of the plaintiffs? OPCC
3. Relief.
39. Thereafter, matter was fixed for PE.
40. In support of their case plaintiff no. 1 examined himself as PW1 Sh. Pradeep Goyal and tendered his evidence by way of affidavit as Ex.PW1/A and relied upon the documents i.e. exhibited as Ex.PW1/2 to PW1/7 (OSR) & Ex.PW1/8 & Ex.PW1/9 & Ex.PW1/1A in his affidavit. However, he expired on 15.03.2018 during the pendency of the suit.
41. Plaintiff no. 2 examined herself as PW2 Smt. Neera Aggarwal and tendered her evidence by way of affidavit as Ex.PW2/A and relied upon the following documents:
(i) The death certificate of plaintiff's father, late sh. D.P. Goyal is EX.PW-2/2. (OSR)
(ii) The death certificate of plaintiff's mother, late smt. Sarla Goyal is EX.PW-2/3. (OSR)
(iii) The will dated 23.11.1993 of plaintiff's late CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 25 of 82 father, Sh. D. P. Goyal is EX. PW-2/1A. (OSR).
(iv) A letter dated 23.11.1993 of plaintiff's father late sh. D. P. Goyal addressed to sub-Registrar is Ex.
PW-2/1B (filed initially along with the plaint though inadvertently not mentioned in the affidavit). (OSR)
(v) Mutation order of MCD relating to property bearing No. B-53), Soami Nagar, New Delhi is EX. PW-2/6. (OSR).
(vi) Payment of property tax receipt relating to property bearing No. B-53), Soami Nagar, New Delhi is EX.PW-2/7. (OSR).
(vii) Share certificate of society is EX. PW-2/8. (OSR).
(viii) Schedule 'B' to the plaint (details of shares in the name of late Sh. D.P. Goyal is Ex.PW-2/4.
(ix) Schedule 'B' to the plaint (details of debentures in the name of late Sh. D. P.Goyal is Ex.PW-2/5.
(x) Schedule 'C' to the plaint ( details of shares and other movable assets in the name of late Smt. Sarla Goyal is Ex.PW-2/9.
42. She also relied upon the document which was admitted during admission denial of documents held before Ld. Joint Registrar of Hon'ble High Court of Delhi on 09.04.2015. The same is as under:-
A certified copy of Will dated 23.11.1993 issued by the office of Sub-Registrar which is already exhibited as EX.P-1.
43. During her cross examination, PW2 Smt. Neera Aggarwal deposed that her father was highly educated, though she did not know his exact educational qualifications. She deposed that she had seen her father writing, signing, and reading, and that she could identify his signature. When shown a photocopy document marked as Mark 'A', consisting of three typed pages bearing a signature at point 'A' on each page, PW-2 stated that she could CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 26 of 82 not identify the signature as that of her father, voluntarily adding that the document was a photocopy and that she was unaware of its contents. Thereafter, when shown Ex. PW-2/1A (OSR) and asked to identify her father's signature at point 'A' on page nos. 102 (reverse side) and 103, she again stated that she could not identify the signatures as the document was a photocopy and clarified that she could recognise the signature only on the original document. PW-2 further stated that her father was about 65 years old at the time of his death in the year 1994. She deposed that he was admitted due to ill health at Rupali Nursing Home, Yamuna Vihar, Delhi, where his condition deteriorated and he was shifted to his residence, where he expired within 2-3 hours. She stated that she did not know the reason why her father wished to go home and could not recall the exact date, month, or year of his last admission. She also did not know for how many days he remained admitted. She stated that her father was suffering from cough and used to visit the said nursing home intermittently for treatment. She named the owners of Rupali Nursing Home as Dr. Rekha Gupta and her husband Dr. Dinesh Gupta and further stated that Dr. Rekha Gupta is the daughter of late Dharampal Goyal, plaintiff no. 3 in the present suit. PW-2 stated that she was not present at the time of execution of the alleged Will dated 23.11.1993 of late Dharampal Goyal and did not remember whether her father was admitted to Rupali Nursing Home on that date. She also stated that she did not remember how many times her father had been admitted to the nursing home prior to his death. She further stated that the original CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 27 of 82 alleged Will dated 23.11.1993, Ex. PW-1/1A, was in her possession and that she had produced the same in Court. According to her, the document was earlier with Pradeep Goyal, who handed it over to her when his health deteriorated prior to his death. She also stated that she is a law graduate and that Ex. PW-2/1A is an exact photocopy of the original Will produced by her. PW-2 stated that she did not know whether her father was admitted to Rupali Nursing Home about a fortnight prior to 23.11.1993, nor did she know about the medicines administered to him or whether he was under the treatment of Dr. Rekha Gupta or Dr. Dinesh Gupta. She volunteered that visiting doctors might have been called, but she was not aware as she used to visit her father occasionally. She stated that she visited the nursing home 2-3 times between November 1993 and her father's death. She denied the suggestion that during her visits she found her father unconscious or under the influence of drugs. She stated that she did not know whether her father executed the Will marked as Mark 'A' on 05.02.1993. She also stated that she did not remember where or when the alleged family settlement was executed. She further stated that she did not know whether her father had a bank account in Punjab National Bank or whether he or her mother had any lockers. She denied the suggestion that Smt. Sarla Goyal and late Dharampal Goyal had left behind other assets, including shares, bank accounts, valuables, or jewellery, apart from those mentioned in the suit. PW-2 denied the suggestion that Ex. PW-2/1A was forged or fabricated by the plaintiffs with the assistance of Dr. Rekha Gupta and Dr. Dinesh CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 28 of 82 Gupta. She stated that Ved Prakash Gupta was her maternal uncle, who died around 2008-2009, though she did not remember the exact date. She denied the suggestion that Ved Prakash Gupta never visited their house or disclosed the existence of the Will. She stated that he visited their house 3-4 days after her father's death and disclosed the Will at that time. She further stated that no family member was aware of the alleged Will prior to such disclosure. PW-2 stated that she did not know Dr. Rajiv Goel, one of the witnesses to the Will, though he might be a doctor at Rupali Nursing Home. She also stated that she did not know Devender Kumar s/o Ram Vilas, the second witness to the document. She denied the suggestion that her father was brought dead from the nursing home to the house and also denied the suggestion that she was deposing falsely.
44. In support of their case plaintiff examined PW3 Sh. Rajiv Goel and tendered his evidence by way of affidavit as Ex.PW3/A. He stated that he had seen the document already exhibited as Ex. PW-2/1A, i.e., the Will dated 23.11.1993, and that upon comparison with the original, the copy on record was the same. He deposed that the said Will bears his signatures as an attesting witness at points X-1 and X-2. He further stated that another attesting witness, namely Sh. Devender Kumar, had signed the Will in his presence and his signatures appear at point D. According to PW-3, the testator, late Sh. Dharam Pal Goel, signed the Will in his presence at point A. He further stated that he had medically examined the testator and found him physically and mentally fit at the relevant time. His medical certificate CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 29 of 82 appended to the Will bears his signatures at point X-2.
45. During his cross-examination, PW-3 stated that he is qualified as MBBS and DCH (Diploma in Child Health), having passed MBBS in the year 1977 and DCH in the year 1981. He stated that he had been working as a visiting consultant at Roopali Nursing Home since 1989. He further stated that late Sh. Dharam Pal Goel was known to him since 1990, being the father of Dr. Rekha Gupta, the owner of the said nursing home. He stated that Sh. Dharam Pal Goel was a sickly person and used to visit the nursing home regularly, though he clarified that he never treated him prior to 23.11.1993. PW-3 stated that he did not know under whose treatment Sh. Dharam Pal Goel was on 23.11.1993. He stated that the testator was admitted to Roopali Nursing Home on the said date but he did not know the disease from which he was suffering at that time. He also stated that he did not remember the bed number or ward number, did not examine the case sheet, and was not aware of the medicines being administered. He further stated that he did not know since when the testator had been admitted and did not remember the telephone number from which he was contacted or the number on which he was called. PW-3 stated that he did not charge any consultation fee for examining Sh. Dharam Pal Goel on 23.11.1993. He further stated that Sh. Devender Kumar was working as a receptionist at Roopali Nursing Home. He stated that Dr. Dinesh Gupta, husband of Dr. Rekha Gupta, was also working at the said nursing home as a Director. He deposed that when he reached Roopali Nursing Home, he found Sh. Dharam Pal Goel, Sh.
CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 30 of 82 Devender Kumar, and one person from the Sub-Registrar's office present. He stated that the time was approximately 2:00 p.m. and that the entire process was completed within about 10 minutes. He further stated that the writing, rubber stamps, signatures, and thumb impressions appearing on the reverse side of Ex. PW-2/1A were not affixed in his presence and that the same do not bear his signatures. PW-3 denied the suggestion that Sh. Dharam Pal Goel was administered any sedative at the relevant time. He also denied the suggestion that he neither examined the testator nor that the testator signed the Will in his presence. He stated that Sh. Dharam Pal Goel himself brought the typed Will Ex. PW-2/1A. He further stated that the certificate appearing between points Y to Z was already typed at the time he signed it. He denied the suggestion that Sh. Devender Kumar did not sign the Will in his presence. PW-3 stated that he had never seen Sh. Dharam Pal Goel writing or signing on any occasion except for the signature made by him in his presence on Ex. PW-2/1A at point A. He further stated that the encircled signature at point A and the thumb impressions appearing on the document were not affixed by the testator in his presence. He denied the suggestion that he did not sign Ex. PW-2/1A in the presence of the testator or that he did not examine him. He also denied the suggestion that the medical certificate between points Y to Z was signed by him on the dictation of Dr. Rekha Gupta or Dr. Dinesh Gupta. PW-3 further stated that he had appeared in Court on his own as he was called by Sh. B.P. Aggarwal, Advocate. He stated that he signed his affidavit Ex. PW-3/A at Karkardooma Courts on a Monday, CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 31 of 82 though he did not remember the exact date. He stated that the affidavit was typed at Karkardooma Courts by Sh. B.P. Aggarwal, Advocate, and that he had signed the same after going through its contents. He denied the suggestion that the affidavit was not signed or attested at Karkardooma Courts. He also denied the suggestion that he signed the affidavit without reading it or on the instructions of Dr. Rekha Gupta and Dr. Dinesh Gupta. He lastly denied the suggestion that he was deposing falsely at their instance.
46. PE has closed and thereafter matter was fixed for DE.
47. Defendants in their support examined defendant no. 2(i) as DW1 Ms. Uma Goel and tendered her evidence by way of affidavit and relied upon the documents as under:
(i) Will dated 05.02.1993, Mark A.
48. During her cross examination, DW1 Ms. Uma Goyal deposed that she is residing at B-53, Swami Nagar, New Delhi, and has not shifted from the said premises. She stated that she is a graduate and that her late husband, Sh. Sanjay Goyal, was an advocate. She further stated that she had filed her affidavit of evidence after understanding the contents thereof. She categorically denied that her late father-in-law, Sh. D.P. Goyal, had executed any Will dated 23.11.1993 and stated that no such Will exists. She stated that she had no knowledge of the alleged Will dated 23.11.1993, including Ex. PW-2/1A. She further denied that the allegations made in her affidavit regarding the said Will were false or baseless. According to her, she came to know about the alleged Will only after the filing of the present CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 32 of 82 case and neither she nor her late husband was aware of any such Will during his lifetime. In response to a specific question, DW-1 admitted that both her sons, Archit Goyal and Sachit Goyal, were born at Rupali Nursing Home and that Dr. Rekha Gupta had conducted the deliveries. She denied the suggestion that Dr. Dinesh Gupta had provided assistance or donated blood during the kidney transplant of her husband. She stated that she had no knowledge as to whether the alleged Will dated 23.11.1993 was the last valid Will of late Sh. D.P. Goyal. She further stated that her husband was not a regular practicing advocate and was occasionally engaged in income tax practice, was paying income tax, and was filing returns. DW-1 stated that she did not know the value of the shares and debentures left by her late husband, nor did she know the value of shares inherited by him after the death of late Sh. D.P. Goyal. She also stated that she was unaware of the value of shares inherited by her after the death of her husband and denied that any shares were inherited by her. She stated that certain shares of Reliance Industries were in the joint names of Sarla Goyal and Sanjay Goyal and volunteered that those shares were in possession of Kalpana Goyal. She stated that her husband died on 20.11.2004 and that he had a PAN card. When questioned regarding an FIR dated 11.11.2010 lodged at Police Station Malviya Nagar regarding loss of Reliance Industries shares, DW-1 stated that she did not remember the same. She was confronted with a copy of the FIR, which was marked as Mark DW-1/X-1, and also with an affidavit dated 16.12.2010 submitted to Reliance Industries Limited, marked as Mark DW-1/X-2. She CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 33 of 82 denied that the signatures marked 'A' and 'B' on Mark DW-1/X-2 were of her late husband. She also denied the suggestion that the FIR was lodged by her sons, Archit Goyal and Sachit Goyal. She was further confronted with a photocopy of an indemnity bond dated 16.12.2010, marked as Mark DW-1/X-3, and stated that she could not answer questions regarding transfer of shares in the absence of original documents. She denied having written any letter to Reliance Industries Limited or through Kaveri Computer Share Pvt. Ltd. under the signatures of her late husband. When shown a photocopy of a letter marked as Mark DW-1/X-4, she stated that she could not answer without seeing the original. DW-1 stated that she did not remember the PAN number of her late husband and expressed ignorance regarding PAN No. AWOPG3264E, including whether it belonged to him or whether it was issued after his death. She also stated that she did not know the D-MAT account number of her late husband or her own D-MAT account number. She expressed inability to recall whether D-MAT Account No. 120472000031742 with SBI Cap Securities Ltd. was in joint names. She admitted that she and her sons have individual D-MAT accounts but stated that she did not remember the account numbers. She stated that she receives dividend income in her own account but was unaware of the details of her sons' accounts and could not state the annual dividend income received by her. DW-1 stated that her husband was suffering from diabetes and kidney failure and that she had donated her kidney to him, after which he was fine. She stated that he later died due to pneumonia. She stated that her husband CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 34 of 82 himself bore his medical expenses. According to her, her husband's source of income was professional advocacy and investments in personal shares. She stated that her husband was not bedridden prior to his death, though he remained hospitalized for about 20-25 days. She denied the suggestion that his medical expenses were borne by late Ms. Sarla Goyal or that she received regular financial support from her. She stated that after her husband's death, she bore family expenses herself, claiming that she had shares in her own name and that both her sons are engineers. She clarified that at the time of her husband's death, her sons were studying, with Archit being in college. DW-1 stated that she was not employed and was not carrying on any business either at the time of or after the death of her husband. She reiterated that family expenses were met from her shareholdings, though she did not remember the exact figures. She stated that she was residing at B-53, Swami Nagar, New Delhi, both before and after her husband's death, with Ms. Sarla Goyal residing on the ground floor and herself on the first floor. She stated that the owner of the said property was late Sh. D.P. Goyal and that she continues to reside there. She denied that Ms. Sarla Goyal bore her household or children's educational expenses. She stated that she did not remember her monthly household expenditure after her husband's death and could not recall whether she had travelled abroad between 2001 and 2010. She admitted that she had travelled to the USA in the previous year to visit her son. DW-1 denied that late Sh. D.P. Goyal had entrusted any jewellery or a sum of Rs. 50 lakhs to her or her CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 35 of 82 husband for safekeeping. She stated that property bearing no. C-4/77A, Yamuna Vihar, Delhi, is Rupali Nursing Home and that it may be owned by Dr. Rekha Gupta and Dr. Dinesh Gupta. She denied the suggestion that she was deposing falsely.
49. Defendants in their support examined DW2 Sh. Naveen Gandas, summoned witness from the department of delhi archives. He stated that he had brought the summoned record, namely a Will dated 05.02.1993 bearing registration no. 5759, additional book no. 3, volume no. 1702, pages 139 to 141. Consequently, the photocopy of the said document was marked as Mark A-1. In his cross-examination, DW-2 stated that he has been working in the Department of Delhi Archives since the year 1997. He categorically stated that he had no personal knowledge of the document marked as Mark A-1 and that the said document was not executed in his presence. He further stated that the office maintains only an office copy of the document and that he had no knowledge as to whether the office copy was prepared after seeing the original Will. DW-2 stated that he had come to the Court along with Smt. Uma Goyal, defendant no. 2(i), and clarified that there was no discussion between them regarding the alleged Will. He denied the suggestion that Smt. Uma Goyal had shown him any signatures for verification in Court. He further stated that on 05.02.1993, the date of the alleged Will, he was at his house. He denied the suggestion that he was deposing at the instance of Smt. Uma Goyal. He also stated that he had brought a document to show that he is the husband of late Sh. S.P. Goyal. DW-2 lastly denied the suggestion that he was deposing falsely. CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 36 of 82
50. Defendants in support examined DW3 Smt. Sushila Goyal and she deposed that her husband, late Sh. S.P. Goyal, expired on 08.06.2019. She deposed that she had seen her husband reading, writing, and signing during his lifetime and that she is capable of identifying his handwriting and signatures. During her examination, DW-3 was shown the document marked as Mark A-1, being the record of the Will brought from the office of the Sub-Registrar. At this stage, the Court observed that the photocopy of the Will produced from the office of the Sub- Registrar bears original signatures of the testator as well as the attesting witnesses and that the Will is duly registered vide registration no. 5759 in Additional Book No. 3, Volume No. 1702, pages 139-141, registered on 05.02.1993. The said document was thereafter exhibited as Ex. DW-3/A, subject to objection by learned counsel for the plaintiffs. DW-3 stated that she had seen the said record produced from the office of the Sub- Registrar and identified the handwriting and signatures of her husband appearing at the encircled point 'A' on the last page as well as on the reverse side of the first page of Ex. DW-3/A. She further stated that she was acquainted with Sh. I.N. Babbar, Advocate, who was her next-door neighbour and is now deceased.
51. Defendants in their support examined DW4 Sh. Lokesh Yadav summoned witness from BSSM (Demat), Standard Chartered Bank and he deposed that he had brought the summoned records pertaining to Demat Client accounts bearing DPID IN300100 - Client ID 10375684 and DPID IN300360 - Client ID 20375684. CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 37 of 82 He stated that the DP ID was changed from IN300100 to IN300360 in the year 2010. He deposed that the said Demat account was in the name of Ms. Sarla Goyal and that the records pertain to the period from 02.05.2000 to 30.09.2003, from 01.10.2003 to 15.06.2010, and from 01.01.2010 to 10.09.2024. The said record was collectively exhibited as Ex. DW-4/A (colly), consisting of five pages. DW-4 further stated that the said Demat account was closed on 02.04.2012 and that the holdings therein were transferred to Client ID IN300360-20375706 in the name of Pradeep Goyal. He stated that the said account was also subsequently closed.
52. Defendants in their support examined DW5 Sh. Rajnish Raina summoned witness as postal assisstant and he deposed that he had brought the summoned record pertaining to PPF Account No. 302993 in the name of late Smt. Sarla Goyal, which was closed on 03.09.2010. He further stated that the detailed record of the said PPF account had been weeded out on 03.07.2017. The available record produced by him was collectively exhibited as Ex. DW-5/A (colly), consisting of eleven pages. DW-5 also produced an authority letter in support of his appearance, which was exhibited as Ex. DW-5/B.
53. Defendants in their support examined DW6 summoned witness from Punjab National Bank and he deposed that he had brought the summoned records pertaining to bank accounts held in the name of Smt. Sarla Goyal. He deposed that he had produced the statement of Account No. 1504000301118064 in the name of CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 38 of 82 Sarla Goyal for the period from 01.01.2009 to 23.10.2024. He stated that an amount of Rs. 5,17,941.79 from the said account was transferred on 07.08.2012 to the nominee, namely Pradeep Goyal. The said statement of account was collectively exhibited as Ex. DW-6/A (colly), consisting of four pages. DW-6 further stated that he had also produced the statement of Account No. 1504000101024411, also in the name of Smt. Sarla Goyal, for the period from 01.01.2009 to 23.10.2024. He stated that there was no nominee in respect of the said account and that an amount of Rs. 22,374.84 is still lying in the account as on date. The said statement was collectively exhibited as Ex. DW-6/B (colly), consisting of two pages.
54. DE was closed and thereafter matter was fixed for final arguments.
55. I have heard the arguments in detail and perused the record carefully. I have also perused the written submissions and the case laws as filed by the parties. My issue wise finding is as follows:
56. Issue no. 1 : Whether the suit of the plaintiffs is not maintainable on account of clubbing of different causes of actions? OPD The onus to prove this issue was upon the defendants. As per the plaintiffs, they have sought partition of (i) immovable property bearing No. B-53, Soami Nagar, and (ii) movable assets such as shares, debentures and bank accounts, which form part of the estate of Late D.P. Goyal and Late Sarla Goyal. The defendants have argued that after the death of Sarla Goyal, inclusion of her CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 39 of 82 estate amounts to clubbing of separate causes of action, and therefore, the suit is not maintainable. On perusal of record, it is clear that the suit was originally filed in respect of the estate of Late D.P. Goyal. During the pendency of the suit, Sarla Goyal expired. Her legal heirs were already parties to the case. Thereafter, the plaintiffs moved an application for amendment of the plaint, which was allowed, to include the estate of Late Sarla Goyal. As per law, amendment of pleadings to bring on record subsequent events is permitted under Order VI Rule 17 CPC. The defendants have submitted that the present suit is not maintainable as it combines claims for partition relating to two separate estates, namely, the estate of Late Dharampal Goyal and the estate of Late Sarla Goyal. Both estates devolve upon the same Class-I heirs, and the disputes relating thereto are interlinked and inseparable, and upon the death of Sarla Goyal, amendment of the pleadings to include her estate is legally permissible. The dispute still relates to partition among the same Class-I heirs. Hence, the cause of action remains the same and it cannot be said that the suit involves separate or multiple causes of action. Thus, the objection raised by the defendants has no merit. Where the parties to the suit are common, the legal heirs are the same, and the questions involved are interwoven, a composite suit for partition cannot be said to be bad for misjoinder. The amendment brought on record upon the death of Sarla Goyal is in accordance with law and does not alter the nature of the suit. Accordingly, the objection of clubbing of different cause of action is not tenable.
CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 40 of 82 In view thereof, issue No. 1 is decided in favour of the plaintiffs and the suit is maintainable and there is no impermissible clubbing of causes of action.
57. Issue no. 2 : Whether the suit is barred by limitation? OPD The onus to prove the issue was upon the defendants. As per the plaintiff, the cause of action for filing the present suit arose on 18.02.2007 when the Memorandum of Family Settlement was executed between the parties and the suit properties were agreed to be divided in terms thereof. The cause of action further arose when defendant nos. 2(i) to (iii) showed reluctance and failed to cooperate in implementation of the said settlement in March, 2007. The cause of action further arose when deceased defendant no.1, during her lifetime, reiterated and confirmed on record her decision regarding partition/division of the properties and again on her death on 30.01.2010. As per the defendant, the suit is time barred as Late Sh. Dharampal Goyal died on 1994 and Late Smt. Sarla Goyal died in the year 2010.
58. Let us first discuss the law of the limitation on suit for partition. A partition suit among co-heirs does not become time-barred so long as joint possession continues. The limitation does not run between co-owner only when ouster is pleaded or proved. As per the judgement of P.Lakshmi Reddy V. L. R. Lakshmi Reddy, AIR 1957 SC 314, even the ouster must be open, hostile and unequivocal. In the judgment titled as Vidya Devi vs. Prem Prakash, (1995) 4 SCC 496, it was held that it is settled law that the Legislature has not prescribed any specific period of limitation for filing a suit for partition. This is because the right CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 41 of 82 to seek partition is an incident attached to joint property, and there is a continuing and recurring cause of action. A co-sharer is entitled to seek partition whenever he chooses not to remain joint with the other co-sharers. Since the filing of a partition suit depends entirely on the will of a co-sharer, it was not possible for the Legislature to fix a definite starting point of limitation. Therefore, no specific period of limitation has been provided for suits for partition under the Limitation Act.
59. Further, in the judgment titled as Samir Sharma vs. Sterre Sharma, CS(OS) 677/2024 as decided in march, 2025 by Delhi High Court, 2025, it was held by Court that article 65 of the Limitation Act, which relates to adverse possession, becomes applicable only in cases where a co-sharer or joint owner, who is in possession of the property, openly and to the knowledge of other co-sharers sets up a hostile title against them. In such a situation, the period of limitation would be 12 years, to be counted from the date when the possession of one co-sharer becomes adverse to the other co-sharers.
60. The Hon'ble Delhi High Court in Tara Chand Gaur vs. Satish Chand Sharma, 2018 SCC OnLine Del 12923 observed that the issue of court fee is closely connected with the issue of limitation. Where the plaintiff claims to be out of possession, both aspects become questions of fact. It is for the defendants to prove, by leading evidence, that the plaintiff was not in physical possession of the suit property and that his ouster had been clearly established.
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61. Applying the aforesaid law on facts and circumstances of the case, first of all, the defendant has not brought on record any evidence to prove that the suit of the plaintiff is barred by limitation. It has been clearly submitted that cause of action arose when the defendant no. 1 late Smt. Sarla Goyal died on 30.01.2010. The present suit was filed in 2010, therefore, the suit is not barred by limitation. Further, defendants has admitted in their written statement that plaintiff no. 1 is in possession of the ground floor of the suit property, whereas defendants No. 2(i) to 2(iii) are in possession of the upper floors thereof.
62. Upon consideration of the pleadings and material on record, it is found that the defendants have failed to establish any act of hostile ouster against the plaintiff. The evidence on record indicates that joint possession of the suit property continues to subsist between the parties. Therefore, the suit of the plaintiff is well within the limitation. Accordingly, both the issues are decided in favour of the plaintiffs and against the defendants.
63. Issue no. 3 : Whether the suit has not been properly valued for the purposes of court fee and the proper court fee has not been affixed on the plaint? OPD The onus to prove this issue was upon the defendants. It is submitted by the plaintiff that the value of the suit for the purposes of pecuniary jurisdiction is fixed at Rs.55lakhs and for the purposes of court fees it is fixed at Rs.200/- on which requisite court fees has been paid. The value for the relief of rendition of account is fixed and requisite court fees have been CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 43 of 82 paid.
64. In the judgement, Tara Chand Gaur v. Satish Chand Sharma, 2018 SCC OnLine Del 12923, it has been held as under:
"In law, when a partition is sought by a co-owner, court-fee which is payable is a fixed court-fee in terms of Schedule II, Article 17(vi), of the Court-fees Act, 1870 inasmuch as every co-owner is either in actual physical possession of whole or part of the property or in law has to be taken in deemed possession or constructive possession of the co- owned property.
If a defendant is a co-owner who is in actual physical possession of the complete property, even then, the possession of one or more such co- owners who are defendants in possession, the possession is for and on behalf of all co-owners including the plaintiff(s), and whether there exists exclusive possession of the respondents/defendants and the same acts as an ouster of the plaintiff(s) is a question of fact, and only when this question of fact is proved by the respondents/defendants by leading evidence, it can be held that the appellant/plaintiff was not in possession, physical or constructive, of the suit property, so that court-fee is payable for the 1/3rd share as claimed by the appellant/plaintiff."
65. The defendant has not placed on record any material to show that the suit of the plaintiff is not valued properly. The defendants have alleged that the plaintiffs have undervalued the suit by assessing it at Rs.55 lakhs, whereas, according to them, the circle rate value of the suit property is approximately Rs. 22 crores.
66. In this regard, it is settled law under Article 17(vi) of the Court Fees Act that where a plaintiff is in joint possession of the suit property, a fixed court fee is payable and valuation on ad valorem basis is not required. The Hon'ble Supreme Court in Neelavathi and Others v. M. Natarajan and Others 1980 AIR 691; has categorically held that where joint possession is admitted or CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 44 of 82 established, the plaintiff is not required to value the relief on the basis of the market value of the property.
In our case, the defendant has admitted joint possession and there is absolutely no evidence of plaintiff or defendant being in exclusive possession and therefore, the suit has been properly valued. In view thereof, the issue is decided in favour of plaintiff and against the defendant.
67. Issue no. 4 : Whether the suit is not maintainable for partition of assets of late Sh. D.P.Goyal? OPD The onus to prove this issue was on the defendant. It is argued by the Ld. Counsel for the defendants that suit is not maintainable because estate should devolve under will dated 05.02.1993. During the pendency of the suit Sh. Dharampal Goyal expired intestate, when the suit of the partition was already pending between the parties. The rights of the parties of the suit are also to be decided.
68. It is a settled position of law that the existence of a Will affects only the quantum of shares of the parties and does not go to the root of the maintainability of a suit for partition. Accordingly, whether the estate devolves by way of a Will or by intestate succession, the remedy of partition continues to remain maintainable. In view thereof, the contention raised by the defendants is found to be irrelevant to the question of maintainability of the present suit. The suit of the partition of assets of Late Sh. Dharampal Goyal is maintainable and this issue is decided in favour of the plaintiff and against the defendant.
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69. Issue no. 5 : Which of the Wills i.e. 5th February, 1993 or 23rd November, 1993 is the last executed valid Will of late Sh. D.P.Goyal? OPParties.
The onus to prove this issue was on plaintiff. This is the most important issue between the parties and the whole controversy revolve around this issue. The plaintiff has relied upon the will dated 23.11.1993. It is argued by the plaintiff that it is a registered will and it has been supported by attesting witness evidence as given in the court and it is also not contradictory to the medical record. On the other hand, defendants have argued that will dated 05.02.1993 is the true will. They have produced wife of attesting witness to prove the Will. Both the wills have to be examined meticulously to arrive at a just decision.
70. First of all, I shall be dealing with the Will dated 05.02.1993 i.e. Ex. DW3/A. As per this Will, the immovable property no. B-53, Soami Nagar, New Delhi-11017 has been bequeathed to plaintiff no. 1, Shri Pradeep Goyal and Smt. Sarla Goyal and the mother i.e. Smt. Sarla Goyal was only given the lifetime right to reside over the suit property. DW3 Smt. Sushila Goyal w/o Late Sh. S.P. Goyal has deposed that she had seen her husband reading, writing and signing and she can identify his handwriting and signature and she had identified signature of her husband.
71. For proving of the Will, it is the requirement of the statute that one of the attesting witness must appear and prove the execution of the Will. Section 68 of Indian Evidence Act deals with proof of execution of a document required by the law to be attested and as per this provision, in the case of a Will, if there is an attesting CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 46 of 82 witness alive and subject to the process of the Court and capable of leading evidence, then, the Will can be proved only when, one of the attesting witnesses is called for proving its execution. Further, it is also a settled law that, in such cases, at least one attesting witness must not only be examined to prove attestation by him but he also must prove the attestation by the other attesting witness.
72. The Hon'ble Supreme Court in V. Kalyanamswamy (D) by LRs & Anr. Vs. L. Bakthavatsalam (D) by LRs & Ors. , date of decision 17.07.2020, has observed that Section 69 of the Evidence Act manifest a departure from the requirement embodied in Section 68 of the Evidence Act, the relevant observations are made in paragraph 70 as under:
"70. We are of the view that Section 69 of the Evidence Act manifests a departure from the requirement embodied in Section 68 of the Evidence Act. In the case of a Will, which is required to be executed in the mode provided in Section 63 of the Indian Succession Act, when there is an attesting witness available, the Will is to be proved by examining him. He must not only prove that the attestation was done by him but he must also prove the attestation by the other attesting witness. This is, no doubt, subject to the situation which is contemplated in Section 71 of the Evidence Act which allows other evidence to be adduced in proof of the Will among other documents where the attesting witness denies or does not recollect the execution of the Will or the other document. In other words, the fate of the transferee or a legatee under a document, which is required by law to be attested, is not placed at the mercy of the attesting witness and the law enables proof to be effected of the document despite denial of the execution of the document by the attesting witness."
73. The Hon'ble Court further observed that in a case covered under Section 69 of the Evidence Act, what is to be proved as far as the CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 47 of 82 attesting witness is concerned, is that the attestation of one of the attesting witness is in his written handwriting. Paragraph 71 is reproduced as under:
"71. Reverting back to Section 69 of the Evidence Act, we are of the view that the requirement therein would be if the signature of the person executing the document is proved to be in his handwriting, then attestation of one attesting witness is to be proved to be in his handwriting. In other words, in a case covered under Section 69 of the Evidence Act, the requirement pertinent to Section 68 of the Evidence Act that the attestation by both the witnesses is to be proved by examining at least one attesting witness, is dispensed with. It may be that the proof given by the attesting witness, within the meaning of Section 69 of the Evidence Act, may contain evidence relating to the attestation by the other attesting witness but that is not the same thing as stating it to be the legal requirement under the Section to be that attestation by both the witnesses is to be proved in a case covered by Section 69 of the Evidence Act. In short, in a case covered under Section 69 of the Evidence Act, what is to be proved as far as the attesting witness is concerned, is, that the attestation of one of the attesting witness is in his handwriting. The language of the Section is clear and unambiguous. Section 68 of the Evidence Act, as interpreted by this Court, contemplates attestation of both attesting witnesses to be proved. But that is not the requirement in Section 69 of the Evidence Act."
74. Merely, identifying the signature by the DW3 Smt. Sushila Goyal does not prove the execution of the Will. What is required by the statute is not mere attestation but amino attestandi i.e. having the knowledge that it is for proving the Will. Perusal of the Will dated 05.02.1993 shows that it has been attested by two witnesses. Under Section 63(c) of the Succession Act, 1925 a CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 48 of 82 Will has to be attested by two or more witnesses each of whom had seen the testator signed or affixed his mark to the Will and each of the attesting witnesses would be required to sign the Will in the presence of testator.
75. Section 68 of the Indian Evidence Act, 1872 refers to the mode of proving a Will. A Will is a document which is required under the Indian Succession Act to be attested and by reason of Section 68 of the Indian Evidence Act the said document cannot be used as an evidence unless 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. Section 69 contemplates situation where no attesting witness could be found. Generally, a witness is called to be an attesting witness for the purpose of proving a Will.
76. In Jagdish Chand Sharma v. Narain Singh Saini & Ors., Civil Appeal; AIR 2015 SC 2149. referring to Sections 68 and 71 of the Evidence Act, it was observed:
"These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a Will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a Will. The proof of a Will to be admissible in evidence with probative potential, being a document required by law to CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 49 of 82 be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence.
77. The claim of defendants is that the Will dated 05.02.1993 is the valid Will. This Will has been attested by two witnesses - Sh. S.P. Goyal & another Smt. Sushila Goyal Wife of Sh. S.P. Goyal has been brought as defence witness 3: Smt. Sushila Goyal and she has identified his signatures. The Will has also been proved by bringing the record from Registrar Office by DW2 Sh. Naveen Gandas and then it was exhibited during the testimony DW3 Smt. Sushila Goyal as DW3/A. She has further deposed that Sh. I.N. Babbar was known to her and he has also expired. Though, it is correct that DW3 has deposed that another attesting witness has expired, however, defendants have failed to bring on record any death certificate or any other material which would substantiate the factum of his death.
78. In this regard, I allude to the observations of Hon'ble Madras High Court in N. Durga Bai Vs. Mrs. C.S. Pandari Bai, date of decision 27.02.2017, in para 18 which is as under:
"18. When there is no attesting witness found, then Section 69 of the Indian Evidence Act comes into play, before resorting Section 69 of Evidence Act plaintiff should establish either factum of death of attesting witnesses or their non availability by convincing evidence. Then in the event of the attesting witnesses do not support the Will, propounder can resort to Section 71 of the Indian Evidence Act for proving the document by other mode. Only by these procedures, the Will can be admitted in evidence. Without establishing the execution and attestation of Will Ex.P1 same cannot be admitted in evidence. Therefore, CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 50 of 82 this Court is of the view that since the document in question Ex.P1 Will has not been proved in the manner known to law, and the same cannot be used as an evidence, hence the question of deciding its truth and genuineness does not arise at all. Accordingly, this Court is of the view that no discussion is required with regard to the validity and genuineness of the Will.
Accordingly, the issues are answered against the plaintiffs."
79. Clearly, there is no convincing evidence on record, except the oral statement of DW-3 Smt. Sushila Goyal, that the other attesting witness to the Will have expired. To prove the execution of the Will, though DW-3 has admitted that she was not even present at the time of execution of the Will. DW-2 Sh. Naveen Gandas has also deposed that he was not present at the time of execution of Will. Applying the law as laid by Hon'ble Supreme Court of India in Jagdish Chand Sharma's supra case where it has been held as under:
"Section 71 of the 1872 Act has to be necessarily accorded a strict interpretation. The two contingencies permitting the play of this provision, namely, denial or failure to recollect the execution by the attesting witness produced, thus a fortiori has to be extended a meaning to ensure that the limited liberty granted by Section 71 of the 1872 Act does not in any manner efface or emasculate the essence and efficacy of Section 63 of the Act and Section 68 of the 1872 Act. The distinction between failure on the part of an attesting witness to prove the execution and attestation of a Will and his or her denial of the said event or CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 51 of 82 failure to recollect the same, has to be essentially maintained. Any unwarranted indulgence, permitting extra liberal flexibility to these two stipulations, would render the predication of Section 63 of the Act and Section 68 of the 1872 Act, otiose. The propounder can be initiated to the benefit of Section 71 of the 1872 Act only if the attesting witness/witnesses, who is/are alive and is/are produced and in clear terms either denies/deny the execution of the document or cannot recollect the said incident. Not only, this witness/witnesses has/have to be credible and impartial, the evidence adduced ought to demonstrate unhesitant denial of the execution of the document or authenticate real forgetfulness of such fact. If the testimony evinces a casual account of the execution and attestation of the document disregardful of truth, and thereby fails to prove these two essentials as per law, the propounder cannot be permitted to adduce other evidence under cover of Section 71 of the 1872 Act. Such a sanction would not only be incompatible with the scheme of Section 63 of the Act read with Section 68 of the 1872 Act but also would be extinctive of the paramountcy and sacrosanctity thereof, a consequence, not legislatively intended. If the evidence of the witnesses produced by the propounder is inherently worthless and lacking in credibility, Section 71 of the 1872 Act cannot be invoked to bail him (the propounder) out of the situation to facilitate a roving pursuit. In absence of CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 52 of 82 any touch of truthfulness and genuineness in the overall approach, this provision, which is not a substitute of Section 63(c) of the Act and Section 68 of the 1872 Act, cannot be invoked to supplement such failed speculative endeavour."
80.The legislature has incorporated the specific provision for proving the execution of the Will only by the attesting witnesses given the consequences that flow from it, and if the attesting witnesses are alive, either of them can be summoned to prove the execution of the Will, but in case both the attesting witnesses are dead, attestation by at least one of the attesting witness can be proved to be in his or her handwriting, and which can be done by calling any of the family members of those witnesses who could be aware of their handwriting, but in the instant case, as I have discussed earlier that no proof has been filed on record to prove that another attesting witness has expired apart from oral testimony of DW3 Smt. Sushila Goyal. In view thereof, the present court holds that the Will dated 05/02/2003 has not been proved in accordance with law. It is very convenient for a party to say that another attesting witness has expired without placing on record any document like death certificate on record. No witness has been examined apart from DW3 Smt. Sushila Goyal regarding death of Sh. L. N. Babber and in such circumstances, the Court may reject the statement and can treat the Will having not been proved as per law.
81. In view thereof, the present court has no hesitation to hold that will dated 05.02.1993 has not been proved in accordance to the CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 53 of 82 law.
82. Coming now to the Will dated 23.11.1993, in this Will the immovable property has been bequeathed to Smt. Sarla Goyal. This Will has been challenged by the defendant. To prove the execution of the Will the plaintiff have examined one of the attesting witness i.e. PW3 Dr. Rajiv Goel. He deposed that he had seen the document already exhibited as Ex. PW-2/1A, i.e., the Will dated 23.11.1993, and that upon comparison with the original, the copy on record was the same. He deposed that the said Will bears his signatures as an attesting witness at points X-1 and X-2. He further deposed that another attesting witness, namely Sh. Devender Kumar, had signed the Will in his presence and his signatures appear at point D. According to PW-3, the testator, late Sh. Dharam Pal Goel, signed the Will in his presence at point A. He further deposed that he had medically examined the testator and found him physically and mentally fit at the relevant time. His medical certificate appended to the Will bears his signatures at point X-2.
83. In view thereof, the plaintiff has proved the execution of the witness Will, therefore, one of the requirements that Will was properly executed stands discharged.
84. Now, we will proceed, to the validity of the Will as defendant has raised certain objections regarding the suspicious circumstances in which it was executed. It has been argued by Ld. Counsel for the defendant that late Sh. Dharampal Goyal was not in the sound mind when he executed the Will dated 23.11.1993 as there was no reason for Dharampal Goyal to CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 54 of 82 execute the second Will which is just after 9 months of the execution of the Will dated 05.02.1993. The document Ex.PW2/1A an alleged Will of Sh. Dharampal Goyal is not validly executed Will or free from influence. It has been dealt in a mechanical manner on behest of the plaintiff particularly Dr. Mrs. Rekha Gupta and Dr. Dinesh.
85. The main contention by the Counsel for plaintiff which is vehemently argued by him is that it has been executed while Sh. Dharampal Goyal was admitted in the hospital i.e. Rupali Nursing Home and that nursing home was owned by Dr. Dinesh Gupta and Dr. Mrs. Rekha Gupta one of the plaintiffs of the present suit. It is further argued that alleged Will dated 23.11.1993 not free from suspicion as no reason has been given in that Will for execution of the same and revoking earlier registered Will. A comparison of both the Will shows that it is same word by word except para no. 1 as para no. 1 mentioned about the devolving of the immovable property no. B-53, Soami Nagar in favour of two sons Pradeep Goyal and Sanjay Goyal and later it has been bequeathed in the second Will Ex.PW2/1A and given life long living right to his wife Smt. Sarla Goyal. Dr. Rajiv Goel PW3 who is attesting witness was the employee of the nursing home as is the second witness Sh. Devender Kumar. PW3 has also admitted that the thumb impression and signature has not been affixed in his presence at the back of the Ex.PW2/1A and late Dharampal Goyal was not conscious and was under the complete control and influence of Dr. Rekha Gupta. Plaintiffs have never disclosed Ex.PW2/1A before filing CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 55 of 82 of the present suit.
86. Herein, the testimony of PW3 Dr. Rajiv Goel has to be examined really carefully and PW3 Dr. Rajiv Goel has deposed during his cross examination that he is qualified as MBBS and DCH (Diploma in Child Health), having passed MBBS in the year 1977 and DCH in the year 1981. He deposed that he had been working as a visiting consultant at Roopali Nursing Home since 1989. He further deposed that late Sh. Dharam Pal Goel was known to him since 1990, being the father of Dr. Rekha Gupta, the owner of the said nursing home. He deposed that Sh. Dharam Pal Goel was a sickly person and used to visit the nursing home regularly, though he clarified that he never treated him prior to 23.11.1993. PW-3 deposed that he did not know under whose treatment Sh. Dharam Pal Goel was on 23.11.1993. He deposed that the testator was admitted to Roopali Nursing Home on the said date but he did not know the disease from which he was suffering at that time. He also deposed that he did not remember the bed number or ward number, did not examine the case sheet, and was not aware of the medicines being administered. He further deposed that he did not know since when the testator had been admitted and he did not remember the telephone number from which he was contacted or the number on which he was called. PW-3 deposed that he did not charge any consultation fee for examining Sh. Dharam Pal Goel on 23.11.1993. He further deposed that Sh. Devender Kumar was working as a receptionist at Roopali Nursing Home. He deposed that Dr. Dinesh Gupta, husband of Dr. Rekha Gupta, was also working at the said CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 56 of 82 nursing home as a Director. He deposed that when he reached Roopali Nursing Home, he found Sh. Dharam Pal Goel, Sh. Devender Kumar, and one person from the Sub-Registrar's office present. He deposed that the time was approximately 2:00 p.m. and that the entire process was completed within about 10 minutes.
87. He further deposed that the writing, rubber stamps, signatures, and thumb impressions appearing on the reverse side of Ex. PW-2/1A were not affixed in his presence and that the same do not bear his signatures. PW-3 denied the suggestion that Sh. Dharam Pal Goel was administered any sedative at the relevant time. He also denied the suggestion that he neither examined the testator nor that the testator signed the Will in his presence. He deposed that Sh. Dharam Pal Goel himself brought the typed Will Ex. PW-2/1A. He further deposed that the certificate appearing between points Y to Z was already typed at the time he signed it. He denied the suggestion that Sh. Devender Kumar did not sign the Will in his presence. PW-3 deposed that he had never seen Sh. Dharam Pal Goel writing or signing on any occasion except for the signature made by him in his presence on Ex. PW-2/1A at point A. He further deposed that the encircled signature at point A and the thumb impressions appearing on the document were not affixed by the testator in his presence.
88. He denied the suggestion that he did not sign Ex. PW-2/1A in the presence of the testator or that he did not examine him. He also denied the suggestion that the medical certificate between points Y to Z was signed by him on the dictation of Dr. Rekha CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 57 of 82 Gupta or Dr. Dinesh Gupta. PW-3 further deposed that he had appeared in Court on his own as he was called by Sh. B.P. Aggarwal, Advocate. He deposed that he signed his affidavit Ex. PW-3/A at Karkardooma Courts on a Monday, though he did not remember the exact date. He deposed that the affidavit was typed at Karkardooma Courts by Sh. B.P. Aggarwal, Advocate, and that he had signed the same after going through its contents. He denied the suggestion that the affidavit was not signed or attested at Karkardooma Courts. He also denied the suggestion that he signed the affidavit without reading it or on the instructions of Dr. Rekha Gupta and Dr. Dinesh Gupta. He lastly denied the suggestion that he was deposing falsely at their instance.
89. It is relevant herein to discuss, the law regarding the suspicious circumstances surrounding the execution of Will. The Hon'ble Supreme Court of India in the judgment H. Venkatachala Iyengar vs. B.N. Thimmajamma & Others AIR 1959 SC 443 has held as under:
There may, however, be cases in which the execution of the Will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the Will may CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 58 of 82 appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the Will may otherwise indicate that the said dispositions may not be the result of the testator's free Will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last Will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free Will in executing the Will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
Apart from the suspicious circumstances to which we have just referred, in some cases the Wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the Wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the Will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 59 of 82 Will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with Wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last Will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on Wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the Will has to prove the due and valid execution of the Will and that if there are any suspicious circumstances surrounding the execution of the Will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson:(1946) 50 C.W.N. 895, "where a Will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 60 of 82 disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect." (emphasis supplied) Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 61 of 82 grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations.: AIR 1964 SC 529 The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will? In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will.
90. Applying the aforesaid principles of law on facts and circumstances of will, as I have discussed earlier, the plaintiff have proved execution of the Will by bringing on record by examining PW3 Dr. Rajiv Goyal who has attesting witness in the present case. It is argued further, Rajiv Goyal he was the doctor and he has given the certificate that Shri Dharampal Goyal was physically and mentally fit to execute the Will. It is also been argued one of the suspicion certificate copy of the certificate annexed to the previous Will. However, this argument is meritless as both the Wills are word to word same except the para no. 1.
CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 62 of 82
91. PW3 Sh. Rajiv Goel has deposed emphatically on oath that he has never treated Mr. Dharampal Goyal at any point of time, he was not even aware about the deceased he was suffering on 23.11.1993 when he examined him. He has deposed emphatically on oath during the cross examination that Ex.PW2/1A has been signed by Shri Devendra Kumar. He has denied the suggestion that neither he examined Mr. Dharampal Goyal nor he signed Ex.PW2/1A in his presence and the certificate at point Y to Z was signed by him on dictation of Dr. Rekha Rekha Gupta and Dr. Dinesh Gupta related to Mr. Dharampal Goyal.
92.However, if we carefully scrutinies the testimony of all the witnesses, it is crystal clear that the Will dated 23.11.1993 was free from any undue influence or coercion as claimed by defendants. Had there been any undue influence or coercion, the plaintiff Rekha Gupta would have got property in her name only. It is not the case that plaintiff that she has got the entire property transferred in her own name. Wife Smt. Sarla Goyal was made beneficiary. Moreover, when the Wills are executed by way of registration, extra care is taken by the Registrar regarding execution of the Will, hence there is nothing on record to suggest that the Registrar noted under act of undue influence or coercion. Further, there is nothing on record to suggest that PW3 (attesting witness) was deposing falsely. His testimony has remained clear and coherent and inspires the confidence of the Court. He has remained consistent during cross-examination. There is nothing on record to discredit his testimony. Absolutely no motive has been brought on record to show as to why would PW would CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 63 of 82 depose falsely in the Court.
93. The Ld. Counsel for defendant has vehemently argued that the Will in question is surrounded by suspicious circumstances on the grounds that the testator was unwell, that the Will was executed in a nursing home, and that the attesting witnesses were employees. However, these allegations remain wholly unsubstantiated. No medical record has been produced to establish the illness or incapacity of the testator, nor has any doctor been examined in support thereof. There is also no effective cross-examination of the plaintiff's witness to contradict the testimony regarding execution of the Will. Further, no handwriting expert has been examined and no documentary evidence has been led to prove undue influence, coercion, or fraud. It is well settled that bald and unproved allegations are insufficient to dislodge the validity of a duly registered Will. Mere suspicion, howsoever strong, cannot take the place of legal proof.
94.Accordingly, it can be safely concluded that the plaintiffs have duly discharged the statutory burden cast upon them under Sections 63 of the Indian Succession Act and 68 of the Indian Evidence Act. The defendants have failed to prove their alleged Will or to establish any suspicious circumstance surrounding the execution of the registered Will relied upon by the plaintiffs. The propounder of the Will dated 23.11.1993 are found to be reliable and trustworthy, and no infirmity is made out in the execution or attestation of the said Will.
95.Although the defendants have alleged that the Will dated CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 64 of 82 23.11.1993 is forged, their conduct does not support such a plea. It is evident from the record that the defendants neither lodged any complaint nor initiated any criminal proceedings in respect of the alleged forgery. They also did not take any steps to initiate probate proceedings or otherwise challenge the Will in accordance with law. On the contrary, the defendants accepted the benefits arising out of the family settlement arrived at in the year 2007, took possession of the upper floors of the suit property, and did not raise any objection to the distributions made by Smt. Sarla Goyal during her lifetime.
96.The Hon'ble Supreme Court in Narayan v. Gopal, AIR 1960 SC 100, has held that a person who stands by and permits a particular state of affairs to be acted upon loses the right to subsequently challenge the same. In the present case, the prolonged silence and inaction on the part of the defendants clearly amounts to tacit acceptance of the Will and the arrangements flowing therefrom, thereby disentitling them from raising belated objections at this stage.
97. Though, the defendants have sought to assail the Will by relying upon alleged suspicious circumstances as I have discussed earlier namely, the purported illness of the testator, execution of the Will in a nursing home, the fact that the attesting witnesses were employees, and the alleged influence exercised by the plaintiffs. On evaluation of the evidence, none of these circumstances are found to be established. Mere illness of a testator does not ipso facto imply lack of testamentary capacity, and in the present case, the defendants have produced no medical evidence whatsoever to CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 65 of 82 demonstrate incapacity. Execution of a Will in a hospital or death bed is not, by itself, a suspicious circumstance, as held in Shashi Kumar V. Subhodh Kumar Banerjee AIR 1964 SC 529.
98.Further, there is no legal prohibition against employees acting as attesting witnesses, and the defendants have failed to show how this fact vitiates the execution of the Will. As regards the allegation of influence, the same is required to be proved by cogent evidence, which the defendants have not even attempted to lead.
99.It is well settled that suspicion must be real, substantive, and supported by evidence, and not based on conjectures or surmises. The Hon'ble Supreme Court in Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369, has held that suspicious circumstances must be real and cogent, and not mere suspicion. The defendants have failed to meet this standard. Accordingly, no suspicious circumstance surrounding the execution of the Will is made out. Most importantly, the Will dated 23.11.1993 is found to prevail for several cogent reasons. The said Will is a registered document and its execution and attestation have been duly proved through the testimony of an attesting witness, in compliance with the mandatory requirements of Sections 63 of the Indian Succession Act and 68 of the Indian Evidence Act. No suspicious circumstances surrounding its execution have been established and the defendants have failed to produce any rival Will in admissible form. The conduct of the parties clearly demonstrates acceptance of the Will dated 23.11.1993 for a period extending over a decade. Lastly, the subsequent conduct of Smt. Sarla CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 66 of 82 Goyal during her lifetime is consistent with and lends support to the said Will. In view of the above, the Will dated 23.11.1993 is held to be valid and operative.
100. Moreover, as I have discussed in detail in preceding paragraphs the alleged Will dated 05.02.1993 cannot be accepted for want of proof. The original document has not been filed on record, no attesting witness has been examined, and no application has been moved seeking permission to lead secondary evidence. There is also no explanation forthcoming for the absence of the original document. Significantly, there is no reference to the said Will by Smt. Sarla Goyal during her lifetime, and the plaintiffs have consistently denied its existence. The defendants have failed to lead any credible evidence whatsoever in support of the alleged Will. It is a settled principle of law that a Will not proved in accordance with the mandatory requirements of Sections 63 of the Indian Succession Act and 68 of the Indian Evidence Act cannot be accepted. Accordingly, the alleged Will dated 05.02.1993 has been rejected.
101. In the suits for partition require a judicious balancing of both legal rights and equitable considerations. In the present case, the plaintiffs have not sought to exclude the defendants altogether and have acknowledged the defendants' collective share of 20% in the estate. In contrast, the defendants seek to exclude the plaintiffs entirely from the share of Smt. Sarla Goyal without producing any reliable evidence. While the plaintiffs have supported their case with documentary evidence, the CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 67 of 82 defendants have relied primarily on unsubstantiated allegations. In these circumstances, the version put forth by the plaintiffs is found to be more consistent with the principles of equity, fairness, and justice and in this circumstances, the will dated 23.11.1993 is held to be last valid will of Shri D.P. Goyal. Accordingly, issue no. 5 decided in favour of the plaintiff and against the defendant.
102. Issue no. 5A: Whether the suit properties mentioned in Schedule (A), (B) and (c) of the plaint are required to be partitioned/divided in terms of prayer clause (a), (c) and (d)? OPP Issue no. 5B: What are the respective shares of the parties in respect of movable properties mentioned in Schedule (B) and (C) of the plaint? OPParties Issue no. 6 : What is the share of the parties in respect of house bearing no. B-53, Swami Nagar, New Delhi?OPP Issue no. 5A, 5B and issue no. 6 are taken together as they require common discussion. The issues arises from plaintiff player clause whereby the plaintiff have sought declaration of their respective shares along with partition of immovable property and distribution of movable assets in the same proportion. In view of my decision of issue no. 5, the present court have held that the will dated 23.11.1993 is last and final will of the Sh. Dharampal Goyal. Under this will, Late Sh. Dharam Pal Goyal had bequeathed the entire estate to his wife Smt. Sarla Goyal and thus Smt. Sarla Goyal became the absolute CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 68 of 82 owner of the entire estate. In 2007, Smt. Sarla Goyal distributed her estate into equal 5 shares namely, one for herself and one share each for plaintiff no. 1, 2, 3 and branch of predeceased son i.e. Sh. Sanjay Goyal. In view of thereof, each plaintiff along with predeceased son i.e. Sh. Sanjay Goyal has got 1/5th share each. Late Smt. Sarla Goyal also got 1/5th share. Herein, the family settlement dated 18.02.2007 becomes important.
103. It is a settled principle of law that family settlements are viewed with favour by courts, as they are intended to bring about harmony in the family and to avoid future disputes. Such arrangements are governed more by considerations of equity, goodwill and mutual understanding than by strict technicalities of law.
104. In Kale & Ors. v. Deputy Director of Consolidation, (1976) 3 SCC 119, the Hon'ble Supreme Court held that family arrangements should be upheld if they are bona fide and intended to resolve family disputes. Similarly, in S. Shanmugam Pillai v. K. Shanmugam Pillai, AIR 1972 SC 2069, the Court observed that judicial approach should lean in favour of sustaining family settlements and preventing re-agitation of issues that have already been settled.
105. In the present case, the family settlement was executed by Smt. Sarla Goyal, who was the absolute owner of the property under the Will. The settlement distributed the estate into five defined shares and was acted upon by the parties for several years. Significantly, the defendants did not raise any objection at the relevant time. Such prolonged acquiescence on their part CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 69 of 82 materially weakens and undermines the present challenge to the settlement. As I have discussed earlier, the defendants accepted the benefits arising out of the family settlement arrived at in the year 2007, took possession of the upper floors of the suit property, and did not raise any objection to the distributions made by Smt. Sarla Goyal during her lifetime. A person who stands by and permits a particular state of affairs to be acted upon loses the right to subsequently challenge the same. In the present case, the prolonged silence and inaction on the part of the defendants clearly amounts to tacit acceptance of the Will and the arrangements flowing therefrom, thereby dis-entitling them from raising belated objections at this stage. Reliance is placed upon Narayan v. Gopal, AIR 1960 SC 100.
106. The expression of intent dated 29.06.2009 executed by Smt. Sarla Goyal, a mother dealing with her self-acquired and inherited properties, is legally permissible. The said declaration is consistent with the earlier family settlement, stands supported by three of the plaintiffs, and has not been disproved by the defendants. No contemporaneous letter, affidavit or legal action has been placed on record by the defendants to challenge the said declaration at the relevant time. It is well settled that an absolute owner is competent to dispose of her property either orally or by way of a written declaration. It is argued by Ld. Counsel for plaintiff that Smt. Sarla Goyal has decided in her lifetime that her own 1/5th share shall not go to the branch of Late Sh. Sanjay Goyal but it would devolve exclusively upon her three surviving children i.e. plaintiffs. Defendants have objected on the ground CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 70 of 82 that late Smt. Sarla Goyal could not unilaterally alter the family settlement, she has not executed any former Will, therefore, the branch of legal heirs of Late Sh. Sanjay Goyal could not be excluded from her share.
107. As per Section 14(1) of Hindu Succession Act, Smt. Sarla Goyal became an absolute owner after the demise of her husband as per the Will dated 23.11.1993. An absolute owner is free to dispose her property in any manner she chooses. It is well settled law that no registered instrument is mandatory for intra family distribution. PW1 Sh. Pradeep Goyal in his examination-in-chief by way of affidavit has deposed that his mother Smt. Sarla Goyal after execution of family settlement dated 18.02.2007 further clarified on 29.06.2009 that her 1/5th share shall devolve only upon her three children and shall not go to the legal heirs of late Sh. Sanjay Goyal. He has further deposed that late Smt. Sarla Goyal has expressed her intention in writing i.e. Ex.PW1/2 that the branch of late Sh. Sanjay Goyal shall not receive any share from her personal share. PW2 Smt. Neera Aggarwal has corroborated and deposed that after the family settlement her mother informed all of them that her own share shall be divided only amongst her three children. In her cross examination nothing has been shown which can contradict the same. No question and suggestion has been put that this declaration has never existed. PW1 Sh. Pradeep Goyal has also deposed that his mother had made a clear before her death that her 1/5th share would go only to the plaintiff. The defendants have not produced any rival declaration. Plaintiffs relied on a written CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 71 of 82 declaration/confirmation dated 29.06.2009. It is a written expression of intention which has been proved by the plaintiffs witnesses and most importantly it was never disputed during late Smt. Sarla Goyal lifetime. This subsequent conduct and declaration of an absolute owner made the family settlement dated 18.02.2007 stand proved on preponderance of probabilities. Moreover, there is nothing on record to suggest that defendant ever objected regarding the distribution of the properties as per family settlement during Smt. Sarla Goyal lifetime which is also evident from the fact that no case was filed seeking partition immediately after 2007 and they have accepted the possession of the properties. It is crystal clear that they have raised objection only after institution of the suit, this conduct categorically amounts to acquiescence.
108. In light of my findings in issue no. 3, 4 and 5, as I have held that second will dated 23.11.1993 was the last and final of late Sh. Dharampal Goyal by which he was bequeathed all his movable and immovable properties and the suit property i.e. house bearing no. B53, Soami Nagar, New Delhi-110017 in favour of his wife, Smt. Sarla Goyal, the deceased defendant no.1 who then died intestate making Smt. Sarla Goyal absolute owner of the properties.
109. In view of the above settled legal position and the conduct of the parties, the declaration made by Smt. Sarla Goyal is valid, lawful and enforceable, and does not call for any interference by this Court.
110. All the movable and immovable property is liable to be CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 72 of 82 partition among the legal heirs and all are entitled for their share that is listed as below:-
Share from Own Final Share Party Smt. Sarla Share Share (in %) Goyal Plaintiff No. 1 i.e. Late Sh. Pradeep Goyal by 1/5 1/10 3/10 30% LRs.
Plaintiff No. 2 i.e.
1/5 1/20 1/4 25%
Smt. Neera Aggarwal
Plaintiff No. 2 i.e. Dr.
1/5 1/20 1/4 25%
Rekha Gupta
Defendants no. 2(i to
iii)
(i) Smt.Uma Goyal,
(ii) Sh. Archit Goyal, 1/5 Nil 1/5 20%
and
(iii) Sh. Sachit Goyal -
collectively
111. All the issues are decided accordingly.
112. Issue no. 5C : Whether the plaintiffs are entitled for rendition of account of shares of the companies in the name of late Sanjay Goyal in terms of prayer clause (g)? If so, what is the amount due to the plaintiffs from defendants Nos 2 (i) and (iii)?
OPP The onus to prove this issue was on the plaintiff. DW1 Smt. Uma Goyal i.e. wife of Sh. Sanjay Goyal has deposed in the cross examination in which she has admitted that the share of reliance industries has in the name late Sh. Sanjay Goyal has transferred knowledge. She has denied the knowledge of valuation of shares CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 73 of 82 in the joint name of Sh. D.P. Goyal, Sh. Sanjay Goyal and Smt. Sarla Goyal, however, she admitted reliance shares in the joint name of Sh. Sanjay Goyal and Smt. Sarla Goyal. The witness was confronted with an FIR lodged on 11.11.2010 in Malviya Nagar, Police Station regarding the loss of shares in the reliance industries in the name of Sh. Sanjay Goyal, however, the witness has given the evasive reply continuously of having no knowledge of the same. Copy of FIR marked as Mark DW1/X1 shows that late Sh. Sanjay Goyal has made the same for loss of shares. She was also shown the indemnity bond dated 16.12.2010. She stated that a share of reliance transferred in the name of Sh. Sanjay Goyal after submitting indemnity bond dated 16.12.2010 duly signed by Sh. Sanjay Goyal to reliance industries. She has also given no knowledge of how shares of reliance industries have been transferred into the name of late Sh. Sanjay Goyal after submitting indemnity bond dated 16.12.2010. However, she has given evasive answers just because saying that she does not remember each question raised by the Ld. Counsel for plaintiff. She has given a reply favourable to her. She has admitted the Demat account No.120472000031742 with SBI CAP Security Ltd was in the joint name of her and her husband. She has given an evasive reply again. During her cross examination specific questions were asked are reproduce herein for ready reference:
"Q. In all the above three D-MAT accounts, you are getting the benefit of dividend and interest on shares and debentures. What do you have to say?
A. The witness stated that she can depose only regarding her own D-MAT account. She admitted that CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 74 of 82 she is receiving dividend income in her account. She further stated that she is unaware of the details of the other D-MAT accounts.
Q. How much dividend income per annum are you receiving from the said account?
A. The witness stated that she does not know the exact amount.
Q. Whether your husband, late Sh. Sanjay Goyal, was suffering from any serious ailment?
A. The witness stated that her husband was suffering from diabetes and had suffered kidney failure. She voluntarily stated that she had donated her kidney to him, after which he became fine.
Q. How did your husband die?
A. The witness stated that he died due to pneumonia. Q. Who was bearing the medical expenses of late Sh. Sanjay Goyal?
A. The witness stated that late Sh. Sanjay Goyal himself was bearing his medical expenses.
Q. What was the source of income of the late Sh. Sanjay Goyal?
A. The witness stated that he was a professional advocate and also had personal investments in shares in his own name.
Q. Whether prior to his death, late Sh. Sanjay Goyal was bedridden for a long period?
A. The witness denied the suggestion. She voluntarily stated that he was able to walk and attend to his work on his own; however, he remained hospitalized for about 20-25 days."
113. Though she denied regarding the amount she is receiving as dividend per annum. However, the reply is evasive one. Therefore, it can be seen that there were certain shares which have been transferred in the joint name of Smt. Sarla Goyal CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 75 of 82 which was then transferred in the name of the late Sh. Sanjay Goyal and making the defendant liable for rendition of account for the same.
114. Accordingly, Issue No. 5C is decided in favour of the plaintiffs, holding that they are entitled to rendition of accounts, the exact quantification whereof shall be determined at the stage of the final decree.
Counter claim issues
115. Issue no. A: Whether the counter claim does not disclose any cause of action? OPP The counter claimants/defendants have alleged that there was a misappropriation on the part of the plaintiffs regarding bank deposits, jewellery, dividend income of debentures etc. and wrongful exclusion of movable assets forming part of the estate of Late Sh. Dharampal Goyal and Smt. Sarla Goyal. The cause of action arose in favour of the counter claimants and against the Plaintiffs in filing the counter claim on receiving the detail by virtue of amended plaint on 21.11.2013 and went on arising till the filing of the present claim. In view thereof, the averments made in the counter claim are sufficient to constitute a formal cause of action which disclose the triable grievance. Accordingly, Issue no. 1 is decided in favour of the counter claimants.
116. Issue no. B: Whether the counter claim is barred by limitation? OPP The counter claimants have alleged misappropriation and wrongful exclusion from the assets commencing from the date of death of Late Sh. Dharampal Goyal and in the lifetime and death CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 76 of 82 of Late Smt. Sarla Goyal. The counter claim was instituted in the year 2013 under the Limitation Act, 1963 and the claims for money received, conversion, or breach of trust are governed by Articles 70, 89, and 113, prescribing a limitation of three years from the date when the right to sue accrues.
117. There is nothing on record that counter claimants were not aware regarding the alleged misappropriation and exclusion from the assets at the time of death of late Sh. Dharampal Goyal and during the lifetime of Smt. Sarla Goyal. The alleged act of the plaintiffs pertains to the period long prior to 2010. The counter claimants/defendants have admitted that they remained in possession of the portion of the immovable property without any protest, legal notice or legal proceedings which were initiated contemporaneously. Further, the allegation regarding the misappropriation to the events from 1994 to 2007 are ex-facie barred. Even the allegation relating to the year 2010 would require institution by 2013 only along with the discovery regarding the misappropriation etc. to be pleaded and proved which has clearly not been done in the present case, therefore, the counter claim relating to monetary recovery and compensation of alleged misappropriation and past rendition of accounts is substantially barred by limitation. Accordingly, issue no. B of counter claim decided against the counter claimant/defendants and in favour of the plaintiff.
118. Issue no. C: Whether the counter claim has been properly valued for the purpose of court fees and jurisdiction? OPP The onus to prove this issues was on counter CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 77 of 82 claimants/defendant.The counter-claimants have valued the counter-claim at a sum of Rs.5,000. However, in the same pleadings, they have alleged that jewellery worth approximately Rs.60 lakhs being involved and bank withdrawals exceeding Rs.5 lakhs have been made, and that they are entitled to a share in immovable property and investments stated to be worth several crores of rupees. Such a valuation is wholly inconsistent with the nature, extent, and magnitude of the reliefs claimed by the counter-claimants.
119. As per Section 7(iv) of the Court Fees Act and the settled position of law, where a party seeks reliefs such as declaration of title, rendition of accounts, and recovery of money, the valuation of the claim must be fair, reasonable, and honest, particularly when specific monetary amounts and valuable properties are expressly pleaded. The Court is not bound by a purely arbitrary or nominal valuation when the pleadings themselves disclose substantial monetary claims.
120. In the present case, the present Court finds that the counter-claimants have adopted a merely nominal valuation, which has no reasonable nexus with the amounts and properties claimed in the counter-claim. The counter-claim has not valued properly. Accordingly, Issue C is decided against the counter- claimants.
121. Issue no. 1. Whether the defendants 2(i) to 2(iii) are entitled for rendition of accounts from the plaintiffs? OPCC Issue no. 2 : If so, what is the amount due to the defendant Nos.2 CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 78 of 82 to 3 and which of the plaintiffs?
Both the issues are taken together as they require common discussion. The onus to prove both the issues was on defendants. First of all, there is nothing on record to prove that plaintiff were ever in possession of any immovable assets of Late Sh. Dharampal Goyal and therefore, there is absolutely no evidence or material has been placed on record to justify any claim for rendition of accounts against the plaintiffs No. 2 and 3.
122. The defendants have failed to place on record any cogent or documentary evidence to substantiate their allegations regarding the existence or misappropriation of movable assets, including jewellery, bank withdrawals, dividends, or the contents of any locker. Although the defendants have alleged that plaintiff no. 1 misappropriated an amount of Rs. 5,37,000/- and jewellery valued at Rs. 60 lakhs, no documentary proof or oral evidence is produced in support of these allegations.
123. In the absence of reliable evidence, no adverse inference can be drawn against the plaintiffs. However, considering the nature of the dispute and the admitted joint status of the parties, the plaintiffs are entitled to rendition of accounts in respect of the movable assets.
124. Though it is correct that DW4 Sh. Lokesh Yadav, DW5 Sh. Rajnish Raina and DW6 Sh. Sawan Singh has deposed that certain money pertaining to the bank account of Late Smt. Sarla Goyal has been transferred to Late Sh. Pradeep Goyal. Although in a partition suit each co-sharer stands in the position of both plaintiff and defendant, such mutuality does not warrant a CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 79 of 82 direction for rendition of accounts at the stage of preliminary decree, which is confined to declaration of shares and questions of adjustment or accounting must await final decree proceedings.
125. In the present case, both parties are co-heirs and it is admitted that both sides remained in possession of different portions of the property. No evidence has been led by the counter-claimants to show that the plaintiffs were appointed as managers, trustees, or exclusive custodians of the estate or its assets. The counter-claimants have also failed to specify which bank accounts were allegedly operated exclusively by the plaintiffs, the period during which such exclusive control is claimed, or to place on record any documentary proof of exclusive withdrawals or any admission by the plaintiffs acknowledging sole management.
126. The Court further notes that the counter-claimants themselves had access to the property and relevant information and still they did not seek rendition of accounts during the lifetime of Late Smt. Sarla Goyal, nor did they issue any legal demand for accounts prior to the year 2013.
127. In view of the above facts and circumstances, the counter- claimants have failed to discharge the onus placed upon them to justify a decree for rendition of accounts at this stage. However, since the parties are co-sharers and joint heirs, limited accounting, if required, may be considered at the stage of final decree for the purpose of ensuring equitable distribution.
128. Relief PRELIMINARY DECREE CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 80 of 82
129. In view of the findings recorded on the issues, the suit of the plaintiffs i.e. CS DJ 6875/2016, Shri Pradeep Goyal Others Vs. Smt. Sarla Goyal (Deceased) Anr. is partly decreed in the following terms:
1. Declaration of Shares It is hereby declared that the parties are entitled to the following respective shares in the suit properties:
Plaintiff No.1's (Pradeep Goyal) branch as represented by LRs i.e. Smt. Kalpana Goyal, Mrs. Deepika Sarkar and Sh. Anuj Goyal shall be entitled to 3/10th share; Plaintiff No.2 shall be entitled to 1/4th share; Plaintiff No.3 shall be entitled to 1/4th share; Defendants No.2(i) to 2(iii) jointly shall be entitled to 1/5th share.
2. Partition of Immovable Property A preliminary decree for partition is hereby passed in respect of the suit immovable property in accordance with the shares declared hereinabove.
The mode of partition, whether by metes and bounds or otherwise, shall be considered at the stage of final decree proceedings.
3. Movable Properties The movable properties forming part of the estate of Late Sh. Dharam Pal Goyal and Late Smt. Sarla Goyal i.e. as per prayer clause (c), (d) and (e) shall also be liable to partition in accordance with the aforesaid shares and the actual division and adjustment of movable assets shall be undertaken at the stage of CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 81 of 82 final decree proceedings.
4. Rendition of Accounts The plaintiffs are also entitled for rendition of accounts. Liberty is given to the parties to raise all permissible pleas regarding adjustment of accounts, if any, at the stage of final decree proceedings.
5. Counter-Claim i.e. CS DJ 75/2019, Sarla Goyal (Counter Claim) Vs. Pradeep Goyal The counter-claim filed by defendants No.2(i) to 2(iii) is hereby dismissed.
6. Costs In the facts and circumstances of the case, parties shall bear their own costs.
130. Counter Claim i.e. CS DJ 75/2019, Sarla Goyal (Counter Claim) Vs. Pradeep Goyal is dismissed and file be consigned to Record Room after due compliance.
131. Suit no.6875/2016 is partly decreed. Preliminary decree sheet be prepared accordingly.
Put up for further proceedings/appointment of local commissioner on 17.04.2026.
Digitally
signed by
Ambika Ambika singh
Announced in open court singh
Date:
2026.02.05
16:50:09
on 05.02.2026 +0530
(Ambika Singh)
District Judge-01, South
Saket District Courts,
New Delhi
CS No.6875/2016 SHRI PRADEEP GOYAL OTHERS Vs. SMT. SARLA GOYAL (DECEASED) ANR. AND CS DJ No.75/2019 SARLA GOYAL (COUNTER CLAIM) Vs. PRADEEP GOYAL Page 82 of 82