Delhi District Court
Jaspal Shergill vs R P S Shergill on 29 November, 2019
IN THE COURT OF MS. TWINKLE WADHWA: LD.
ADDITIONAL DISTRICT JUDGE03:PATIALA HOUSE
COURT:NEW DELHI DISTRICT
CS No. 58739/16
Jaspal Shergill
S/o Late Shri Basant Singh
E/o B3/8, Vasant Vihar, New Delhi. .....Plaintiff
VERSUS
1. R P S Shergill
S/o Late Shri Basant Singh
R/o S259, Greater KailashII,
New Delhi.
2. K M S Shergill
S/o Late Shri Basant Singh
R/o S259, Greater KailashII, New Delhi.
3. Rajdeep Kaur Boparai
W/o Gurdip Singh Boparai
R/o House No.72, Sector29,
Noida, UP.
....Defendants
Date of Institution : 05.05.2010
Date of Final Arguments : 19.11.2019
Date of Decision : 29.11.2019
Conclusion : Disposed off
JUDGMENT
The Case CS No. 58739/16 Page 1 of 17
1. The present is a suit for partition being filed by plaintiff against his siblings in respect of the suit property bearing no.B 3/8, Vasant Vihar, New Delhi in terms of the registered Will of their father dated 28.07.1999.
Case of Plaintiff
2. It is the case of plaintiff that plaintiff, defendant no.1 and defendant no.2 are sons and defendant no.3 is the daughter of late Shri Basant Singh and late Shri Surinder kaur. Late Basant Singh was the sole and absolute owner of three storeyed house constructed on this plot admeasuing 400 Sq. Yards. The house comprises of three storeyed building and the garage complex, the two mini flats are also constructed above the garage portion, one each on the first and second floor.
3. It is further the case of plaintiff that their late father Shri Basant Singh expired on 12.01.2006. However, he executed a registered Will dated 28.07.1999 with respect to the suit property. According to the said Will he bequeathed a life estate in this property in favour of his wife and mother of parties late Smt. Surinder Kaur. After the death of Shri Basant Singh on 12.01.2006, the suit property devolved upon his wife as a life estate. Pursuant to the death of their father, the plaintiff and all the three defendants furnished their affidavits dated 23.03.2006 CS No. 58739/16 Page 2 of 17 to DDA thereby accepting the contents of the aforesaid Will dated 28.07.1999, thereby giving no objection for mutation of the said property in favour of their mother Smt. Surinder Kaur. Consequently, DDA mutated the said property in favour of Smt. Surinder Kaur for her lifetime. However, Smt. Surinder Kaur died on 09.04.2008 and consequently the property devolved upon legal heirs in accordance with the terms of the Will.
4. According to the Will, the property is to be divided amongst legal heirs as follows
1. Ground Floor The entire ground floor came to the share of defendant no.1.
2. First Floor The entire first floor came to the share of defendant no.2.
3. Second Floor The entire second floor came to the share of plaintiff.
5. The Will further mentioned as the built up area of second floor is less as compared with ground and first floor, hence defendant nos. 1 and 2 were directed to make payment of Rs.2 lacs and Rs.1 lac to the plaintiff within one year from the date when Will came into effect. Pursuant to these payments, plaintiff was directed to construct additional accommodation above the second floor. Further the Will gave exclusive roof CS No. 58739/16 Page 3 of 17 rights to the plaintiff but defendant nos.1 and 2 were given right to install over head water tanks on the second floor or on the additional floor as and when constructed.
6. According to the Will the two mini flats constructed above the garage shall vest in defendant no. 3 as life estate. After the death of defendant no.3 the rights of mini flat on first floor shall vest in defendant no.2 and the rights of mini flat on second floor shall vest in plaintiff. Further the Will permitted defendant no.2 to use these two flats with the permission of defendant no.3 and pay a monthly amount of Rs.3,000/ to defendant no.2.
7. It is submitted that the Will dated 28.07.1999 was executed and signed of Late Basant Singh in the presence of two attesting witnesses. Further plaintiff, defendant no.1 and defendant no.2 are in possession of the respective floors which were allotted to them by the said Will. Further plaintiff is deporting Rs.3,000/ per month in favour of defendant no.3 in terms of Clause 3.4 of the Will. Further defendant no.2 is in possession of first floor and also mini flat above garage. Defendant no.1 is in possession of ground floor. Plaintiff is in possession of entire second floor along with terrace and is also in possession of mini flat on second floor above the garage.
CS No. 58739/16 Page 4 of 178. In the month of December 2009, plaintiff asked defendants to execute a partition deed in terms of the Will but they refused. Further plaintiff has not received an amount of Rs.2 lacs and Rs.1 lac respectively from defendant nos. 1 and 2 as per the Will. Further plaintiff came to know that defendant nos. 1 and 2 are illegally and unlawfully trying to sell the suit property to some third persons thereby trying to create third party interest in the property. Hence, the present suit is filed.
Case of Defendant nos. 1 and 2
9. A joint Written Statement is filed by Defendant No. 1 and
2. It is the case of answering defendants that Will dated 28.07.1999 is already acted upon and accordingly answering defendants are occupying the respective floors. Further out of the two mini flats wherein life estate was given to defendant no.3, one mini flat on second floor has been renovated and illegally occupied by plaintiff without permission of defendant no.3. It is further submitted that the property is old structure which cannot stand any further construction. It is further submitted that plaintiff is illegally occupying second floor mini flat and illegally depositing Rs.3,000/ in the Bank account of defendant no.3 without her consent. It is further submitted that defendant no.1 has already paid an amount of Rs.2 lacs to the plaintiff. Further plaintiff owes a sum of Rs.1,05,000/ to CS No. 58739/16 Page 5 of 17 defendant no.2 towards cost of renovation, house tax payments for two years, water charges and other miscellaneous expenditures which was adjusted towards Rs.1 lac which was to be paid to the plaintiff by defendant no.2 in accordance with the Will. However, plaintiff refuses to adjust the said amount. It is denied that defendants are trying to create third party rights in the property though it is submitted that they being owners, can create third party rights.
Case of Defendant no.3
10. It is submitted that plaintiff has concealed the true facts from this Court and has not come to the Court with clean hands. Further the late father of the parties earlier registered a Will dated 01.09.1993 with a Sub Registrar which fact is concealed by the present plaintiff. Further the present suit for partition is not maintainable in the absence of a prayer for declaration. Further the present suit being filed without obtaining probate is not maintainable. Further the Will dated 28.07.1999 is forged and fabricated. It is submitted that the Will was not voluntarily made. The true Will of their father is a Will of 1993. It is further submitted that as per the earlier Will dated 01.09.1993 the two flats above garage were bequeathed to the present defendant no.3. However, plaintiff has illegally renovated the second floor mini flat without prior permission of defendant no.3. Further the CS No. 58739/16 Page 6 of 17 suit property is an old structure which cannot withstand further construction. Further prior to making Will dated 01.09.1993, their late father executed an affidavit thereby showing his true intention. Further it was defendant no.3 who took care of her ailing parents in their old age. Further defendant no.1, defendant nos. 2 and 3 gave their consent on affidavit for the purpose of mutation under the impression that the earlier Will dated 01.09.1993 was to be enforced. The affidavit regarding mutation is a matter of record. Plaintiff is in possession of mini flat without permission of defendant no.3 and also carried out major modifications illegally. Plaintiff is depositing an amount of Rs.3,000/ per month in the account of defendant no.3 with malafide intentions. Further the mini flat on first floor is in possession of defendant no.2 with the permission of defendant no.3. Further the Will propagated by plaintiff is forged and suspicious document.
11. On completion of pleadings, following issues were framed on 29.04.2013
1. Whether the Will dated 28th July, 1999 is the last and final Will of the Testator, Mr. Basasnt Singh? OPP.
2. Whether the Will dated 28th July, 1999 is not genuine as suggested by the defendant no.3 in her written statement? OPD3.
CS No. 58739/16 Page 7 of 173. Whether the plaintiff is entitled to a preliminary decree of partition in respect of the suit property in terms of the Will dated 28th July, 1999? OPP.
4. Whether the plaintiff is entitled for final decree of partition in respect of his share in suit property in terms of the Will dated 28th July, 1999? OPP.
5. Whether the plaintiffs has been paid amounts of Rs.2,00,000/ and Rs.1,00,000/ by the defendant nos.1 and 2 respectively in terms of the Will dated 28th July, 1999? OPD1 & 2.
6. Whether the suit is not maintainable in the present form as no declaration has been prayed for? OPD3.
7. Whether the suit property cannot be partitioned by metes and bounds? OPD3.
8. Whether the suit is barred by limitation? OPD1 & 2.
9. Whether the plaintiff is entitled to use the mini flat @ Rs.3,000/ per month without consent of defendant no.3 in terms of the Will dated 28th July, 1999? OPP.
10. Whether in view of the Will dated 28th July, 1999 having already been acted upon by the plaintiff and defendant nos.1 and 2, present suit is not maintainable? OPD1 and 2.
11. Whether the second floor in the suit property has been renovated and illegally occupied by the plaintiff? OPD1 & CS No. 58739/16 Page 8 of 17
2.
12. Relief.
12. To prove its case, Plaintiff examined Shri Jaspal Singh Shergil as PW1,Shri O P Bhatia as PW2 and Shri Kamal Kumar Mann as PW3 and exhibited the following documents S.No. No. of Exhibits Details of the documents Ex. P1 Certified copy of perpetual sub lease dated 1 6.1.1969 Ex.P2 Certified copy of Conveyance deed dated 2 04.01.2007 3 Ex.P3 Certified copy of the Will dated 28.07.1999 Ex.P4 Certified copy of death certificate of Basasnt 4 Singh 5 Ex.P5 Death certificate of Smt. Surinder Kaur Ex.PW1A to D Attested copies of the affidavits of all the 6 defendants 7 Ex.PW1/E Certified copy of mutation dated 04.01.2007
13. On the contrary, defendants examined Brig. Rajpal Singh as D1W1, Shri Kanwar Maharaj as D2W1 and Shri Rajkuldeep Kaur Boparai as D3W1 and exhibited the following documents S.No. No. of Exhibits Details of the documents Ex. DW1/1 & Letter / declarations dated 31.08.2013 1 DW2/1 2 Ex. DW3/1 Will dated 01.09.1993 CS No. 58739/16 Page 9 of 17 Reasons for Decision
14. Heard both the sides and gone through the record.
15. To prove that the 1999 Will is duly registered, plaintiff summoned PW5 Pranab Chaudhary from Sub Registrar Office where the Will was registered. Hence, it is proved that the 1999 Will is registered Will. Further to prove the Will, Plaintiff has examined before the Court the two attesting witnesses, PW2 O P Bhatia and PW3 Kamal Kumar Maan. Both the witnesses identified their signatures on the Will. Both the witnesses identified the signatures of testator on the Will as well as signatures of each other. Both the witnesses submitted that they both went to the Sub Registrar office in a car for the purpose of registration of Will. Both the witnesses stated that they used to meet the testator often. Both the witnesses denied that testator was suffering from dementia or any other disease of like nature. There is no material in consistency in the testimony of any witness in order to show and raise doubts on the veracity of the statements made by them before the court. Hence, these two witnesses proved the Will dated 28.07.1999 before the court.
CS No. 58739/16 Page 10 of 1716. Further plaintiff himself submitted that he was not present at the time of execution of the Will. PW2 and PW3 also stated plaintiff was not present at the time of the Will. Further defendant No.1 and Defendant no. 2 also admitted the Will dated 28.07.1999. It is only defendant no.3 who denies this Will. It is the case of defendant no.3 that this is the forged Will. Further their father was suffering from dementia at the time of execution of Will. Defendant no.3 relied upon a Will dated 01.09.1993 which is also mentioned in her written statement. But the same was not placed on record at the time of filing of written statement in the year 2010. This Will was sought to be placed before the Court in the year 2017 at the time of evidence of defendant no.3. After the evidence of plaintiff and defendant nos. 1 and 2 was over, before the start of evidence of defendant no.3, the Will was sought to be placed on record. But request was declined by this Court. The said order was challenged before Hon'ble Delhi High Court and the said order has attained finality now.
17. Hence, the Will being propagated by defendant no.3 never came on record officially. Defendant no.3 stated before the Court that the Will of 28.07.1999 was a forged and fabricated document. A party who states a fact and wishes court to rely on CS No. 58739/16 Page 11 of 17 it, the burden of proving the fact is on the party who propagates it. The burden of proof was on defendant no.3 to show that her father was suffering from dementia. But defendant no.3 has not produced any independent witness to corroborate the said fact. Nor any medical documents of her father are filed to show his medical condition. Defendant no.3 has only given suggestions to the witnesses especially PW2 and PW3 (witnesses to the Will) that testator was suffering from dementia which was denied by these witnesses. Hence, defendant no.3 failed to prove that the Will was signed by testator at the time when he was of unsound mind.s Further PW5 has proved registration of the Will . PW2 and PW3 stated that they went to Sub Registrar office along with testator to register the Will. Hence defendant no.3 failed to prove that it is forged and fabricated.
18. As far as the argument of defendant nos.1 2 and 3 that plaintiff has illegally made construction / renovation on the mini flat at second floor is concerned, it is a bare averment not supported with any detailed facts or documents on record. It is not specifically stated what was the illegal construction / renovation which was carried out, when it was carried out. The details are completely absent in the pleadings of all the defendants. No document is filed by defendants in support of their case. Nor any independent witness examined. Hence, it CS No. 58739/16 Page 12 of 17 is not proved that on the second floor mini flat, any renovation is carried out by plaintiff.
19. As per the Will dated 28.07.1999, defendant no.3 is given lfe estate in the two mini flats. It is the case of defendant no.3 that plaintiff is illegally occupying one flat while plaintiff denies it. As per the Will dated 28.07.1999 which is propagated by plaintiff himself, defendant no.3 may give any of the mini flats to her brothers with her consent. When defendant no.3 is stating before the court that she had not given consent, plaintiff is liable to vacate the sames. Even if it is presumed that defendant no.3 had earlier consented as she is receiving Rs.3,000/ per month in her account, there is nothing on record to presume that she cannot withdraw her consent at any later stage. Hence, plaintiff is liable to vacate the mini flat on second floor within 30 days from the date of this order.
20. In the present case, the three brothers are already in possession of their respective shares. Nor any other issue is left which requires evidence. Hence, the present partition suit does not call for a separate preliminary decree.
21. The issue wise findings are as follows Issue No.1Whether the Will dated 28th July, 1999 is the last and final Will of the Testator, Mr. Basasnt Singh? OPP.
CS No. 58739/16 Page 13 of 1722. As discussed above, it is proved that Will dated 28.07.1999 is the last Will of testator Basant Singh. Hence, this issue is decided in favour of plaintiff Issue No.2Whether the Will dated 28th July, 1999 is not genuine as suggested by the defendant no.3 in her written statement? OPD3.
23. Defendant no.3 failed to prove this issue and this issue is decided in favour of plaintiff.
Issue No.3Whether the plaintiff is entitled to a preliminary decree of partition in respect of the suit property in terms of the Will dated 28th July, 1999? OPP.
24. In view of above discussion, plaintiff is entitled to preliminary decree of partition as per Will dated 28.07.1999 of his father. Parties are entitled to respective share as per Will. Further defendant no.3 shall have life interest in the two mini flats as per Will which she may permit use to his brothers on payment of money. This issue is also decided in favour of plaintiff .
Issue No.4Whether the plaintiff is entitled for final decree of partition in respect of his share in suit property in terms of the Will dated 28th July, 1999? OPP.
25. In view of above discussion, plaintiff is entitled to final decree of partition as per the Will of their father dated 28.07.1999. Further all the three brothers are already in CS No. 58739/16 Page 14 of 17 possession of their respective floors.
Issue No.5Whether the plaintiffs has been paid amounts of Rs.2,00,000/ and Rs.1,00,000/ by the defendant nos.1 and 2 respectively in terms of the Will dated 28th July, 1999? OPD1 & 2.
26. As far as issue no.5 is concerned, it is admitted by plaintiff in his crossexamination that he had received Rs.2 lacs and Rs.1 lac from defendant nos. 1 and 2 respectively. This issue is decided in favour of defendant nos. 1 and 2.
Issue No.6 Whether the suit is not maintainable in the present form as no declaration has been prayed for? OPD
3.
27. The onus to prove this issue was on defendant but she failed to prove this issue. Hence, this issue is decided in favour of plaintiff.
Issue No.7Whether the suit property cannot be partitioned by metes and bounds? OPD3.
28. The suit property can be partitioned by meets and bounds. Rather parties are already residing in their respective shares since years. This issue is accordingly decided. Issue No.8 Whether the suit is barred by limitation? OPD1 & 2.
29. Defendants failed to show how the suit is barred by CS No. 58739/16 Page 15 of 17 limitation. Nor any arguments were addressed on this issue. Hence, this issue is decided in favour of plaintiff.
Issue No.9Whether the plaintiff is entitled to use the mini flat @ Rs.3,000/ per month without consent of defendant no.3 in terms of the Will dated 28th July, 1999? OPP.
30. As discussed above, plaintiff cannot retain the mini flat without the consent of defendant no.3. Plaintiff is directed to hand over possession of mini flat to the plaintiff within one month. This issue is decided against plaintiff. Issue No.10 Whether in view of the Will dated 28th July, 1999 having already been acted upon by the plaintiff and defendant nos.1 and 2, present suit is not maintainable? OPD1 and 2.
31. The present suit is maintainable as partition is ordered on the basis of said Will dated 28.07.1999 of their father. Further plaintiff and defendant no.1 and 2 are in possession of the respective floors / portions according to the Will. Hence, present suit is maintainable and plaintiff is entitled to partition. Issue No.11Whether the second floor in the suit property has been renovated and illegally occupied by the plaintiff? OPD1 & 2.
32. The burden to prove this fact was on defendants but they failed to prove the same as discussed above. Hence, this issue CS No. 58739/16 Page 16 of 17 is decided against defendants.
Issue No. 12 Relief.
33. The present suit is decreed in terms of Will dated 28.07.1999.
34. Plaintiff is directed to get the copy of the present judgment registered as an instrument of partition which created rights in immovable property in Registrar's Office as per Law. Decree sheet shall be prepared subject to registration and payment of duty as per law.
File be consigned to record room. TWINKLE
WADHWA
Digitally signed
by TWINKLE
WADHWA
Announced in an open Court
Date:
2019.11.29
12:09:30
+0530
On 29th day of November, 2019.
(Twinkle Wadhwa)
ADJ03/PHC/NEW DELHI
29.11.2019
CS No. 58739/16 Page 17 of 17