Delhi High Court
Jatinder Singh Bhatia vs State & Ors. on 3 July, 2018
Equivalent citations: AIR 2018 DELHI 197, AIRONLINE 2018 DEL 3309
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 3rd July, 2018
+ TEST.CAS. 37/1995, CCP(O) Nos.289/2004, 97/2007 & 58/2010,
Crl. MA Nos.2636/2012 & 4278/2013 (both u/S 340 Cr.P.C.), IA
No.7399/2001 (u/O XL R-1 CPC), IA Nos.7233/2002, 8375/2007
& 8376/2007 (all u/S 151 CPC) IA No.7613/2009 (u/O XXXIX R-
2A), IA No.8607/2009 (u/S 151 CPC), IA No.12441/2009 (u/O
XVI R-1 CPC), IA No.3083/2011 (u/S 151 CPC), IA
No.3595/2011 (u/S 151 CPC), IA No.11725/2011 (u/S 5 of the
Limitation Act) & IA No.24394/2015 (u/O XXXIX R-2A CPC).
JATINDER SINGH BHATIA ..... Petitioner
Through: Mr. Sandeep P. Agarwal & Mr.
M.K. Singh, Advs.
Versus
STATE & ORS. ..... Respondents
Through: Mr. Rajat Aneja & Ms. Rashmi
Verma, Advs. for R-5.
AND
TEST.CAS. 42/1995, CCP Nos.171/1996 & 40/2004, IA
Nos.4898/2004 (u/Chapter II R-4 CPC), IA No.14158/2011 (u/O
XXIII R-1 CPC), IA No.14628/2011 (u/O XXIII R-10 CPC) & IA
No.19282/2011 (u/S 151 CPC).
MANJIT KAUR ..... Petitioner
Through: None.
Versus
STATE & ORS. ..... Respondents
Through: Mr. Rajat Aneja & Ms. Rashmi
Verma, Advs. for R-3.
Mr. Sandeep P. Agarwal & Mr.
M.K. Singh, Advs. for D-6.
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 1 of 33
AND
CCP (O) No.62/2010 in CS (OS) 1441/1990.
RAJENDERPAL SINGH BHATIA ..... Plaintiff/Relator
Through: Mr. Rajat Aneja & Ms. Rashmi
Verma, Advs.
Versus
JOGINDER SINGH .... Defendant/Respondent
Through: Mr. Sandeep P. Agarwal & Mr.
M.K. Singh, Advs. for D-5.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Test Cas. No.37/1995 seeks probate of the document dated 15 th May,
1994 claimed to be the validly executed last Will of Joginder Singh Bhatia
(Joginder) who died at Delhi on 1st December, 1994 leaving the petitioner
Jatinder Singh Bhatia (Jatinder) and the respondents no.1,2,3&5 Gurbachan
Singh Bhatia (Gurbachan), Surinder Singh Bhatia (Surinder), Satbinder
Singh Bhatia (Satbinder), Rajenderpal Singh Bhatia (Rajender) as his sons
and respondent no.4 Manjit Khanna (Manjit) as his daughter; the mother
and wife of Joginder pre-deceased him.
2. Test Cas. No.42/1995 has been filed by Manjit seeking probate of the
document dated 15th November, 1994 as the validly executed last Will of
Joginder.
3. CCP(O) No.62/2010 was filed by Rajender averring violation by
Gurbachan and Jatinder of the orders dated 10 th December, 2008, 6th
February, 2009 and 20th February, 2009 in CS(OS) No.1441/1990 filed by
Rajender against Joginder, Gurbachan, Surinder, Satbinder and Jatinder, for
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 2 of 33
dissolution of partnership, rendition of accounts and partition of immovable
properties.
4. CS(OS) No.1441/1990 was dismissed vide judgment dated 23 rd
November, 2012 and RFA(OS) No.29/2013 preferred thereagainst by
Rajender was dismissed on 17th May, 2013; during the hearing, it was
informed that SLP preferred thereagainst to the Supreme Court had also
been dismissed. Only the CCP(O) No.62/2010 survives and discussion
whereon will be taken up after the discussion on testamentary cases.
5. The counsels were heard by me on 12th April, 2013 and 9th May,
2013. However the hearing remained inconclusive and thereafter the Roster
changed. The counsels were again heard by me on 2 nd January, 2017, 3rd
January, 2017, 13th February, 2017 and 14th March, 2017, when judgment
was reserved. During the said hearings, finding the record to be
voluminous, certain aspects of the hearing were recorded and it is felt that
summarizing the same at this stage only of this judgment will help.
6. On 12th April, 2013, it was informed that Manjit who had filed Test.
Cas. No.42/1995 had since agreed before the Division Bench, in an appeal
arising out of these proceedings, not to press Test Cas. No.42/1995 but to
withdraw the same and an application filed by her in this respect was
pending considering. The counsel for Rajender, on that date stated that
compromise between Jatinder and other siblings except Rajender before the
Division Bench was to the detriment of Rajender and Rajender has filed an
application in Test Cas. No.42/1995 for substitution in place of Manjit as
petitioner and which application was also pending consideration. The
counsel for Jatinder rejoined by drawing attention to objections dated 17 th
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 3 of 33
January, 1996 filed by Rajender in Test Cas. No.42/1995 not admitting the
document dated 15th November, 1994 to be the validly executed last Will of
deceased Joginder and putting Manjit to strict proof thereof; it was argued,
that Rajender having filed objection to Test Cas. No.42/1995, could not be
substituted as petitioner in Test Cas. No.42/1995.
7. The counsel for Rajender, on 9th May, 2013 relied on Raj Rani
Bhasin Vs. State 158 (2009) DLT 713 and Sushila Devi Vs. Bishwanath
Ram MANU/BH/0348/1989 to contend that in a testamentary case also,
there can be transposition of the respondent as petitioner.
8. On 2nd January, 2017, it was recorded:-
(i) that the estate of the deceased Joginder comprises of eight
properties; the document dated 15th November, 1994, probate
whereof is sought in Test Cas. No.42/1995, comprises of ten
properties;
(ii) while under the document dated 15th May, 1994, probate
whereof is claimed in Test Cas. No.37/1995, all the eight
properties have been bequeathed to Jatinder, under the
document dated 15th November, 1994, probate whereof is
sought in Test.Cas. No.42/1995, the properties have been
bequeathed to all the five sons and sole daughter;
(iii) that save of Rajender, the other three sons namely
Gurbanchan, Satbinder, Surender and the sole daughter Manjit
of the deceased have settled with Jatinder and Rajender now
wants to support the document dated 15th November, 1994;
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 4 of 33
(iv) the counsel for Jatinder though had no objection to Rajender
supporting the document dated 15th November, 1994 but only
on the basis of pleadings and evidence as existing and without
Rajender instituting any other proceedings to prove the
document dated 15th November, 1994; the same is acceptable
to the counsel for Rajender;
(v) the counsel for Jatinder and the counsel for Rajender agree
that if the document dated 15th November, 1994 is proved to
be the validly executed last Will of the deceased, the need to
adjudicate Test Cas. No.37/1995 will not arise as the
document dated 15th May, 1994 even if proved to be validly
executed last Will of the deceased shall stand superseded by
the document dated 15th November, 1994;
(vi) that in the consolidated issues framed on 15th July, 1999 in the
Test. Cases, an issue had also been framed with respect to
soundness of mind of the deceased; while according to the
counsel for Jatinder, the same was framed also on the pleas of
Rajender, according to the counsel for Rajender, no plea of
soundness of mind of the deceased was taken; both counsels
drew attention to page 41 of Part-I File of Test Cas.
No.37/1995;
(vii) on reading of the said page in the objections filed by Rajender
in Test Cas. No.37/1995 it was found that Rajender therein
had pleaded that the deceased was "not having sound
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 5 of 33
disposing mind" on the date of execution of the document
dated 15th May, 1994;
(viii) it was enquired from the counsel for Rajender, whether it was
the plea of Rajender that though the deceased was of unsound
mind on 15th May, 1994 but had regained soundness of mind
at the time of execution of the document dated 15 th November,
1994 and the counsel for Rajender was asked to take a
categorical stand whether he was persisting in the plea taken in
the objections in Test Cas. No.37/1995, of the document dated
15th May, 1994 being not the validly executed last Will of the
deceased for the reason of the deceased being of unsound
mind on that date;
(ix) the counsel for Rajender, under instructions from Rajender,
gave up the plea of the deceased not having sound disposing
mind, clarifying that he will confine the argument to the
document dated 15th May, 1994 being a result of undue
influence and pressure of Jatinder on the deceased;
(x) the original of the document dated 15th November, 1994 with
exhibit mark was not found on record and the counsel for
Rajender stated that he will trace the same;
(xi) Rajender does not dispute the signatures on the document
dated 15th May, 1994 to be of the deceased Joginder and his
challenge thereto is solely on the ground of execution thereof
being not in accordance with Section 63 of the Indian
Succession Act, 1925 and on the ground of the same having
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 6 of 33
been executed under undue influence and pressure from
Jatinder;
(xii) the counsel for Rajender admits that the PW-1 (in Test.Cas.
42/1995) Dalbir Singh has not proved any document to show
that M.P. Ahluwalia, in the year 1994, was the Accountant of
the deceased;
(xiii) the counsel for Rajender had pointed out two inconsistencies
in the testimonies of the two purported attesting witnesses to
the document dated 15th May, 1994; while one said that "they
were in the house of the deceased for about one and a half
hours, the other said that they were there for about 15 - 20
minutes only; while one said that both the attesting witnesses
left the house of the deceased together the other said that they
left at different times"; no other inconsistency had been
shown; and,
(xiv) the counsel for Rajender stated that it was held in the
judgment in CS(OS) No.1441/1990 that all the other sons
except Jatinder had in the year 1979 separated from the
deceased and only Jatinder remained joint with the deceased.
9. The arguments of the counsel for Rajender, on 3rd January, 2017,
were:-
(i) That R.P. Singh, an attesting witness to the document dated
15th May, 1994, though claimed to know the deceased well but
did not know the siblings of the deceased or the number of
children of the deceased.
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 7 of 33
(ii) Similarly Yoginder Singh Bhatia, the other attesting witness to
the document dated 15th May, 1994 also did not know how
many sons and daughters the deceased had.
(iii) That both the aforesaid attesting witnesses knew Jatinder
Singh Bhatia through his wife‟s brother Manjeet Singh.
(iv) That the two attesting witnesses and Jatinder Singh Bhatia
knew each other.
(v) That the two attesting witnesses answered after pauses and
after considerable time, as noted in the recording of their
statements.
(vi) That Manjeet Singh, brother of wife of Jatinder, present in the
Court during the course of cross-examination of R.P. Singh,
went out of the Court and the same shows that he wanted to
inform the other witness viz. Yoginder Singh Bhatia of the
trend of cross-examination.
(vii) That Jatinder in his cross-examination though admitted family
settlement but the document dated 15th May, 1994 is in
negation thereof and the same is a suspicious circumstance.
(viii) That Jatinder in his cross-examination denied knowing R.P.
Singh and Yoginder Singh Bhatia and even denied that his
wife "Sweety (Satbinder Kaur)" did not know R.P. Singh and
Yoginder Singh Bhatia and which is contrary to the deposition
of R.P. Singh and Yoginder Singh Bhatia.
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 8 of 33
10. The order dated 3rd January, 2017 also records (i) Rajender, after
cross-examination of Yoginder Singh Bhatia, one of the witnesses of the
document dated 15th May, 1994, filed an application for taking on record
affidavit of the said Yoginder Singh Bhatia reneging from the evidence
earlier given and turning hostile; the said application was dismissed on 22 nd
August, 2008; (ii) Rajender also filed an application to file record of a
Government Hospital at Bhopal showing R.P. Singh, another witness to the
document dated 15th May, 1994, to be admitted therein as on 14th May,
1994; this application also was dismissed on 22nd August, 2008; (iii)
FAO(OS) No.435/2008 preferred by Rajender against the dismissal of the
said two applications was dismissed as withdrawn on 29th February, 2012;
and, (iv) though the counsel for Rajender contended that while withdrawing
the said appeal, liberty was reserved to take advantage of the affidavit of
Yoginder Singh Bhatia and hospital record at the time of final hearing but
no such liberty was found to have been granted by the Division Bench.
11. As aforesaid, on 15th July, 1999 the two Testamentary Cases were
consolidated with evidence to be recorded in Test Cas. No.37/1995 and the
following issues were framed in both the cases:-
"1. Whether the deceased had executed Will dated
15.5.1994?
2. Whether the deceased was in sound and
disposing mind at the time of execution of this
Will?
3. Whether the Will was executed by coercion,
undue influence or undue pressure? OPR
4. Whether the deceased had executed Will dated
19.11.1994?
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 9 of 33
5. Whether the deceased was in sound and
disposing state of mind on 19.11.1994?
6. If Will dated 19.11.1994 is proved to be genuine
what will be the effect on the earlier Will dated
15.5.1994?
7. Relief."
12. The counsel for Rajender was heard first, since I was of the opinion
that if the document dated 15th November, 1994 is proved, the need for
going into the aspect of proof of 15th May, 1994 will not arise. Besides
what is already recorded above in various orders, the counsel for Rajender
argued (i) that vide document dated 15th May, 1994, the entire estate has
been bequeathed to Jatinder; (ii) under the document dated 15th November,
1994, the estate has been distributed equally to all the five sons and sole
daughter; (iii) that not only Rajender, but the other sons of the deceased
namely Gurbachan, Satbinder, Surinder and the daughter of the deceased
namely Manjit also objected to Test Cas. No.37/1995 and subsequently on
settling with Jatinder, had withdrawn their objections to Test Cas.
No.37/1995; (iv) that Jatinder, in the said compromise with Gurbachan,
Surinder, Satbinder and Manjit, has given to each of them what was given
to them under the document dated 15th November, 1994 and which itself
proves that Jatinder also admits the document dated 15 th November, 1994
and only Rajender is being deprived of what was bequeathed by the
deceased to him under the document dated 15th November, 1994; (v) that
the document dated 15th November,1994 bears the signatures of one
Harjeet Singh and one M.P. Singh Ahluwalia as witnesses thereto; M.P.
Singh Ahluwalia died in the year 2001; evidence of Rajender commenced
in the year 2003 - 2004 and thus Rajender could not examine M.P. Singh
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 10 of 33
Ahluwalia; however on enquiry, it was stated that no person identifying the
signatures of M.P. Singh Ahluwalia also was examined; and, (vi) that
though Rajender examined Harjeet Singh, but he was declared hostile.
13. I may at this stage notice that the affidavit by way of examination-in-
chief of Harjeet Singh aforesaid and to which attention was drawn, is at
page 98 of Volume-II of Part-I File of Test Cas. No.42/1995; the said
witness in his affidavit stated that he had seen the original Will dated 15 th
November, 1994 at the time of filing his affidavit along with Probate
Petition (in compliance of Section 281 of the Indian Succession Act, 1925)
and that he was the attesting witness to the said Will and his signatures
appear on the said Will at point „A‟; that there was another attesting
witness at the time of execution of the Will whose name was M.P. Singh;
that both the attesting witnesses were present when Joginder signed the
Will and he signed in the presence of both the witnesses and both the
witnesses signed in his presence.
14. The statement of Harjeet Singh recorded before the Court is at page
109 of Volume-II, Part-I file of Test Cas. No.42/1995 and it is found that
he merely tendered his affidavit aforesaid as Ex.PW4/1 and did not identify
the signatures of the Testator or his own signatures or signatures of any
other person on the document dated 15th November, 1994. I had thus
enquired from the counsel for Rajender, whether the said document can be
said to have been proved by Harjeet Singh inasmuch as though Harjeet
Singh in his affidavit by way of examination-in-chief stated that the
document was signed by the deceased in the presence of himself and in the
presence of another witness and that he and the other witness M.P. Singh
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 11 of 33
Ahluwalia had also signed in the presence of the deceased, whether not the
witness was required to, at the time of tendering of the affidavit by way of
examination-in-chief into evidence, point out the signatures on the
document sought to be proved and which was not done. No marks „A‟ &
„B‟ as were deposed in the examination-in-chief were put on the document
when the witness appeared in the Court.
15. The counsel for Rajender could not offer any explanation.
16. Be that as it may, the said Harjeet Singh, in his cross-examination by
the counsel for Jatinder, was shown the original document dated 15th
November, 1994 and on which he identified his own signatures at point „A‟
but admitted as correct that the Testator Joginder had not signed the said
document in his presence; he further deposed that his affidavit by way of
examination-in-chief was got prepared by Manjit and he had signed the
same at her asking and did not know English language. In cross-
examination by the counsel for Gurbachan, Rajender, Satbinder and
Surinder, the said witness deposed that he had never seen the Testator
Joginder and never visited the house of the Testator Joginder and did not
know that Satbinder was the son of the Testator Joginder and did not know
any person by the name of M.P. Singh Ahluwalia. Though Manjit, being
petitioner in Test.Cas. No.42/1995 and at whose instance the said witness
was examined, could have in the circumstances sought permission from the
Court to cross-examine Harjeet Singh, but no such thing was done.
17. Thus, the document dated 15th November, 1994 has not been proved
by the purported attesting witness thereto, namely Harjeet Singh examined
as PW4. It has already been admitted by the counsel for Rajender that no
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 12 of 33
witness to identify the signatures of M.P. Singh Ahluwalia, the other
purported attesting witness to the document dated 15th November, 1994,
was examined.
18. The counsel for Rajender also, in his written synopsis in the form of
legal propositions and judgments in support thereof and in the form of
relevant extracts of depositions relied upon, has however in proof of the
document dated 15th November, 1994 relied only on the testimony as
R2W2 Manjit, recorded on 9th May, 2003 and 21st January, 2004, wherein
she deposed that the document dated 15 th November, 1994 was given by
the deceased Joginder to her and that she had shown the same to the other
siblings. However the said testimony cannot prove the document dated 15 th
November, 1994 as the validly executed last Will of the deceased inasmuch
as Manjit is admittedly not an attesting witness thereto and admitted that
the document was already signed and ready when given to her.
19. Section 63 titled "Execution of unprivileged Wills" of the Indian
Succession Act prescribes, that every Testator shall execute his Will
according to the rules prescribed thereunder. The said rules require that the
Testator shall sign or shall affix his mark to the Will and the signature or
mark of the Testator shall be so placed that it shall appear that it was
intended thereby to give effect to the writing as a Will. The rules further
prescribe the Will to be attested by two or more attesting witnesses, each of
whom has seen the Testator sign or affix his mark to the Will and each of
the witnesses shall sign the Will in the presence of the Testator. Section 68
titled "Proof of execution of document required by law to be attested" of
the Indian Evidence Act, 1872 prescribes that if a document is required by
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 13 of 33
law to be attested, it shall not be used as evidence until one attesting
witness at least has been called for the purposes of proving its execution, if
there be an attesting witness alive, and capable of giving evidence. Section
69 titled "Proof where no attesting witness found" prescribes that if no such
attesting witness can be found, it must be proved that the attestation of one
attesting witness at least is in his handwriting, and that the signature of the
person executing the document is in the handwriting of that person.
20. As aforesaid, there are two purported attesting witnesses to the
document dated 15th November, 1994. It is the argument of the counsel for
Rajender that one of the attesting witnesses namely M.P. Singh Ahluwalia
died in 2001, prior to the commencement of evidence of Rajender in 2003-
2004. It cannot however been lost sight of that the proceedings in the
testamentary cases are pending since 1995 and Order XVIII Rule 16 of
Code of Civil Procedure, 1908 (CPC) entitles a party to apply to the Court
on a urgent basis for examination of a witness. Neither Rajender nor Manjit
took any steps in that direction. Not only so, Rajender did not, invoking
Section 69, examine any witness familiar with the handwriting of the said
M.P. Singh Ahluwalia. The date of demise of M.P. Singh Ahluwalia
claimed to be in the year 2001 is also not disclosed to be proved. Though
Rajender attempted to examine the other attesting witness namely Harjeet
Singh but as aforesaid, the said witness did not prove the document and did
not identify the signatures on the document dated 15 th November, 1994 to
be of Joginder. Though the counsel for Rajender has stated that the said
witness Harjeet Singh turned hostile but as aforesaid no attempt was made
to cross-examine him. Rather, as aforesaid, Rajender, till then was
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 14 of 33
disputing the document dated 15th November, 1994 to be the Will of
deceased Joginder.
21. Thus the only inference is, that neither Rajender nor Manjit, did not
even make efforts which they could make in law, to prove the document
dated 15th November, 1994 as the validly executed last Will of deceased
Joginder.
22. The only conclusion is, that the document dated 15 th November,
1994 has not been proved as the Will of the deceased. The putting of
Ex.PW2 thereon, is of no avail. Since the document, of which probate has
been claimed in Test Cas. No.42/1995, has not been proved as a Will of the
deceased, Test Cas. No.42/1995 has to be dismissed.
23. It is perhaps for this reason only that the counsel for Rajender also
confined his submissions to the challenge to the document dated 15 th May,
1994 of which probate is sought in Test Cas. No.37/1995 and that too by
admitting the signatures thereon to be of the deceased and confining the
challenge thereto only to proof of execution thereof as a Will and if so
proved, to the same having been executed under undue influence.
24. That brings us to the challenge by Rajender alone to the document
dated 15th May, 1994. As aforesaid, Rajender during the hearing admitted
the signatures on the said document to be of Joginder and confined the
challenge only to execution of the document in accordance with Section 63
supra of the Indian Succession Act and to the plea of Joginder having
executed the document dated 15th May, 1994 not of his own volition but
under undue influence of Jatinder.
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 15 of 33
25. As far as the contention of Rajender, of undue influence is
concerned, before discussing the extracts of the evidence relied upon by
Rajender in this regard, I may state (i) that it was the admitted position
during the hearing that all the other sons of Joginder, namely Rajender,
Surinder, Satbinder and Gurbachan, had separated from Joginder and had
set up their separate businesses in or about the year 1979 and only Jatinder
had remained joint in business and residence with deceased Joginder; and,
(ii) that the document dated 15th May, 1994 was executed after about four
years from the time Rajender instituted CS(OS) No.1441/1990 aforesaid
against Joginder and his other siblings. Though the said suit has been
disposed of but since CCP(O) No.62/2010 arising therefrom is pending
consideration, the suit file is also before this Court and I have perused the
suit record to see whether any inkling of Joginder being under the undue
influence of Jatinder can be deciphered therefrom.
26. The suit aforesaid filed by Rajender, was for dissolution of the
partnership firm Royal Safe Company and for rendition of accounts and
partition of immovable properties of the firm. It was the plea of Rajender
that shares of Rajender, Joginder, Gurbachan, Surinder, Satbinder and
Jatinder in the firm were 20%, 15%, 20%, 20%, 15% & 10% respectively
and the firm had discontinued its business since September, 1979.
27. I have perused the plaint of April, 1990 in the suit aforesaid filed by
Rajender and though admittedly Joginder and Jatinder alone had continued
to be joint in residence and business and all other sons of Joginder had
separated as far back as in 1979, but it was not the plea of Rajender till
April, 1990 that Joginder was under undue influence of Jatinder. Therefore
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 16 of 33
it can safely be assumed that from October, 1979 till April, 1990, inspite of
Jatinder alone being joint in residence and business with Joginder, it was
not the plea of anyone that Joginder was under the influence or undue
influence of Jatinder. What remains to be seen is, whether post April, 1990,
till 15th May, 1994, Joginder came under undue influence of Jatinder.
28. Joginder, Gurbachan and Jatinder filed a joint written statement
dated 6th November, 1990, contesting the suit and inter alia pleading:-
(a) that it was Rajender who had sought dissolution vide letter
dated 15th July, 1979;
(b) that a Dissolution Deed dated 22nd September, 1979 was
executed and the parties had acted upon the same and thus the suit
for dissolution, accounts and partition was misconceived;
(c) that in the dissolution, two properties had fallen to the share of
Rajender and which were not mentioned in the plaint;
(d) that the properties of the firm, on dissolution, had been divided
into six portions on the lines as suggested by Rajender; and,
(e) that Rajender on his own had exchanged his initially allotted
properties with Jatinder; and,
(f) that though Joginder was the exclusive owner of Property
No.E-28, Rajouri Garden but Rajender, being the son, was allowed
user of the first floor thereof; however Rajender misbehaved with
Joginder and for which reason Joginder had terminated the licence of
user granted to Rajender and filed a suit for recovery of possession
of the said first floor from Rajender and which was pending and in
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 17 of 33
which suit Rajender had put up a false defence on forged receipts
showing himself as a tenant with respect to the first floor of the said
property under Joginder.
29. The aforesaid said facts are definitely relevant for the exclusion of
Rajender from the Will if any of Joginder.
30. Rajender, in his replication dated 5th December, 1991 to the aforesaid
written statement, is not found to have pleaded that Joginder had filed the
suit for recovery of possession of the first floor of Property No.E-28,
Rajouri Garden against him under undue influence of Jatinder.
31. Thus, till 5th December, 1991 also, it was not the case of Rajender
that the father Joginder was under the undue influence of Jatinder.
32. Surinder and Satbinder also in their separate written statements
pleaded that the suit was not maintainable because of Dissolution Deed
dated 22nd September, 1979 which had been acted upon. However, during
trial, Surinder and Satbinder took a stand contrary to their pleadings, by
stating that there was no final distribution of immovable properties
amongst the partners, however the said stand, being contrary to their
pleadings, was not accepted in the judgment dated 23rd November, 2012 of
dismissal of the suit.
33. A perusal of the suit record also shows Rajender to have, on demise
of Joginder, filed an application for substitution of all the five sons and
daughter in place of Joginder. The order dated 24 th August, 1995 in the suit
file shows that though Rajender, Gurbachan, Surinder and Satbinder, all
stated that since they were already parties to the suit, only Manjit had to be
substituted in place of Joginder, but Jatinder opposed the said substitution
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 18 of 33
stating that the deceased had left a Will in his exclusive favour and thus
Manjit could not be substituted in place of Joginder. Though Manjit, who
claimed to be in possession of the document dated 15th November, 1994
was also present and was also represented before the Court on 24 th August,
1995, but did not claim Joginder to have left any Will dated 15 th November,
1994.
34. Though the aforesaid suit remained pending as aforesaid till
dismissal on 23rd November, 2012 with issues having been framed therein
on 23rd February, 1994 but the counsel for Rajender has not argued that at
any point after 5th December, 1991 also and till the date of demise of
Joginder it was the plea of Rajender in the said suit that Joginder was under
undue influence of Jatinder.
35. The judgment dated 23rd November, 2012 of dismissal of suit
reasons, that no convincing explanation was given by Rajender as to why
he kept silent for eleven years after September, 1979 when the firm Royal
Safe Company stopped carrying on business and as to why he did not seek
dissolution of the firm and distribution of its immovable properties till 1990
- had there been no distribution of immovable properties of the firm,
Rajender could not have kept silent and allowed other partners of the firm
to exclude him from the use and enjoyment of valuable properties of the
firm for as many as eleven years; though Rajender, after 1979 did not use
the trade name Royal Safe Company but the some of the others were using
the same and it was inexplicable as to why Rajender did not take any action
and allowed others to take advantage of the reputation of the firm - this
also indicated that there was dissolution of the firm followed by
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 19 of 33
distribution of all its assets including goodwill and that is why Rajender did
not object to use of the trade name by his father Joginder and by some of
his brothers. The judgment further records that it was the argument of the
counsel for Rajender, that though Rajender had 20% share in the firm, he
did not get proportionate share in the immovable properties - however no
merit was found in the said argument as it was found that Rajender had got
some valuable properties in dissolution of 1979.
36. There is nothing in the judgment aforesaid showing it to have been
the plea of Rajender, till the time Joginder was alive, that Joginder was
under undue influence of Jatinder.
37. Similarly, a perusal of the judgment dated 17th May, 2013 of
dismissal of RFA(OS) No.29/2013 preferred by Rajender also does not
show it to have been the plea of Rajender in the suit at any time that
Joginder was under undue influence of Jatinder. In fact, as aforesaid, even
Gurbachan had filed a joint written statement along with Joginder and
Jatinder. The Division Bench also found the Dissolution Deed to be in the
nature of a Family Settlement.
38. The aforesaid facts are of immense importance for adjudication of
the plea of Rajender of execution of the document dated 15 th May, 1994 by
Joginder under undue influence of Jatinder.
39. The first testimony relied upon by the counsel for Rajender in this
regard is of Manjit, recorded on 9th May, 2003 and 21st January, 2004 to the
effect that Joginder told Manjit that he was forced to sign the Will dated
15th May, 1994 and that the said Will was got prepared by Jatinder and
Joginder was forced to sign the same.
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 20 of 33
40. As foresaid, Manjit has already withdrawn her objections to the
document dated 15th May, 1994 and with withdrawal whereof, her evidence
if any to the said effect also stands withdrawn and this Court cannot at this
stage act on the basis of the testimony which has been withdrawn by the
witness.
41. Reliance is also placed on the testimony of Manjit to the effect that
Joginder was totally dependent upon Jatinder for all meals and medical
treatement and Jatinder snubbed him on every occasion.
42. I may in this regard notice, that Joginder was contesting the suit filed
by Rajender till the date of his demise and it was not the plea of Rajender
in the said suit that Joginder, owing to his old age or any other reason was
not competent to take decisions for himself.
43. Rather, Joginder was in litigation with Rajender and had expressed
grievance at the conduct of Rajender. There is nothing to show Joginder,
till the date of his demise had any grievance against Jatinder.
44. The only other argument of the counsel for Rajender is, of the
execution of the document dated 15th May, 1994 admittedly executed by
Joginder, having not been in accordance with Section 63 of the Indian
Succession Act. The counsel, in this regard, firstly referred to the
inconsistencies between the testimonies of Ravinder Pal Singh and
Yoginder Singh Bhatia being the two attesting witnesses to the document
dated 15th May, 1994. It was argued, that while Ravinder Pal Singh stated
that some lady members of the house were present when the Will was
executed and which could only be „Sweety‟, wife of Jatinder, Yoginder
Singh Bhatia deposed that he did not meet „Sweety‟ on the date of
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 21 of 33
execution of the Will. While Ravinder Pal Singh deposed that he stayed at
the house of Testator for 15 - 20 minutes on the date of execution of the
Will and that when he reached Yoginder Singh Bhatia was already present,
Yoginder Singh Bhatia stated that he remained in the house of the Testator
for one and a half hours.
45. Per contra, the counsel for Jatinder argued that the cross-examination
of the aforesaid two attesting witnesses took place seven years after the
date of execution of the Will and the inconsistencies pointed out are not
such as to make the evidence of the said witnesses unbelievable.
46. The counsel for Jatinder, on the aspect of undue influence, also
referred to the cross-examination of Rajender wherein he admitted that he
was in constant litigation with Joginder and to Ex.R5/W1/PA, being the
publication dated 22nd June, 1990 in the Hindustan Times newspaper
whereby Joginder had disowned Rajender and debarred Rajender from all
his properties and has relied on Seth Beni Chand Vs. Kamla Kunwar AIR
1977 SC 63 (paras 9&10) and argued that in the said state of affairs
Joginder could not be expected to possibly reward Rajender with any
inheritance. Reliance is also placed on Mahesh Kumar Vs. Vinod Kumar
(2012) 4 SCC 387 to contend that there is nothing unusual in Joginder
having left his entire estate to Jatinder only, in the face of the earlier Family
Settlement and Jatinder only having remained joint with Joginder. Reliance
is also placed on Rakesh Kumar Gaur Vs. Vipin Gaur 157 (2009) DLT
769 (para 38) to contend that with respect to registered Wills, where the
Sub Registrar of documents, at the time of registration makes an
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 22 of 33
endorsement, it shows the Will to be of the own volition of the Testator and
of the Testator being in a sound disposing mind.
47. I have considered the rival contentions and on a reading of the
testimonies of the witnesses, do not find a case of Joginder being under the
undue influence of Jatinder or of the registered document dated 15 th May,
1994 purporting to be the Will of Joginder having not been proved to be
executed in accordance with Section 63 of the Indian Succession Act to
have been made out. The sole testimony qua the plea of undue influence is
of Manjit which as aforesaid has been withdrawn. The plea of undue
influence having not been taken in the earlier litigation pending between
Rajender and Joginder till the demise of Joginder, is found to be clearly an
afterthought and having not been established.
48. A reading of the entire testimonies of Ravinder Pal Singh and
Yoginder Singh Bhatia, being the attesting witnesses of the document dated
15th May, 1994, also shows a ring of truth in their statement and the two
inconsistencies pointed out by the counsel for Rajender to be in consonance
with the testimony of a truthful untrained witness. My experience of trial
tells me that persons not accustomed to the language and procedure of the
Court, in the Court also speak in the same manner as they are used to
speaking otherwise and which when seen with a microscope to find faults
therein by a Judge before whom the said witnesses have not deposed, may
show a number of inconsistencies. The testimony, only of a witness who is
trained for hours before deposition in the Court, can read perfect and in
harmony with those of other witnesses which he / she has been made to
read. Both the attesting witnesses have proved Joginder having signed in
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 23 of 33
their presence and they having signed in the presence of Joginder and in the
presence of each other and which satisfies the requirement of Section 63.
49. Thus, no merit is found in the two grounds to which the challenge
was confined by the counsel for Rajender and to the document dated 15 th
May, 1994.
50. However, the counsel for Rajender in his written submissions has
also made some other submissions and to be fair to him, some of them were
also argued orally. I will thus not bind down the counsel to his statement
recorded in the order dated 2nd January, 2017 and proceed to consider the
said submissions also.
51. The emphasis of the counsel for Rajender was on the Settlement
dated 29th August, 2011 between Jatinder and other siblings except
Rajender. Attention was drawn to the portions of cross-examination of
Jatinder to contend that in the said Settlement, the properties have been
distributed in accordance with the document dated 15th November, 1994.
Reliance is placed on (i) Sushila Devi Vs. Bishwanath Ram
MANU/BH/0348/1989 (FB) - to contend that parties cannot be allowed to
settle a probate matter by a compromise and Order XXIII Rule 3 of the
CPC does not apply to the probate proceedings; (ii) Uma Addhya Vs. Biren
Mondal AIR 2006 Cal 200 (DB) - to contend that compromise Agreement
cannot form part of probate; (iii) Vidya Wati Vs. State 19 (1981) DLT 196
- to contend that whether there are any objections filed or not, the Probate
Court, in a proceeding under Section 276 of the Indian Succession Act, has
to go into the question of due execution and validity of the Will; (iv) K.
Laxmanan Vs. Thekkayil Padmini AIR 2009 SC 951 - to contend that the
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 24 of 33
propounder has to prove the legality and validity of the execution and
genuineness of the Will by proving the absence of suspicious
circumstances surrounding the Will; and, (v) H. Venkatachala Iyengar Vs.
B.N. Thimmajamma AIR 1959 SC 443 - to contend that propounder
taking a prominent part in the execution of the Will and receiving
substantial benefit thereunder, itself is treated as a suspicious circumstance.
52. I had, during the hearing, invited the attention of the counsel for
Rajender to the judgments of this Court in Harinder Singh Kochar Vs.
State (2010) 173 DLT 365, B.S. Oberoi Vs. P.S. Oberoi 2013 SCC OnLine
Del 616 (DB) and Ambica Mengi Vs. State MANU/DE/4557/2015 holding
that in a Probate Case a decree for partition can be passed by converting it
into a suit; however for Probate also to be granted, the formality of proof of
Will has to be complied with.
53. I am even otherwise unable to understand the purport of the
contention of the counsel for Rajender in this respect. A Testamentary
Court is not required to go into the title of the deceased to the properties
bequeathed under the Will or into the question of interpretation of the Will.
Reference in this regard can be made to Chiranjilal Shrilal Goenka Vs.
Jasjit Singh (1993) 2 SCC 507, Delhi Development Authority Vs. Vijaya
C. Gurshaney (2003) 7 SCC 301, Krishna Kumar Birla Vs. Rajendra
Singh Lodha (2008) 4 SCC 300, Rakesh Kumar Juneja Vs. The State
2017 SCC OnLine Del 12484 and Sarla Gupta Vs. The State 2017 SCC
OnLine Del 12689. It was thus enquired from the counsel for Rajender,
that even if Jatinder has agreed to share what was bequeathed exclusively
to him under the Will dated 15th May, 1994 with anyone else, and even if
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 25 of 33
on the same lines as the bequest in the document dated 15 th November,
1994, what difference did it make to the proof of the document dated 15 th
May, 1994 which has been found to have been proved in accordance with
Section 63 of the Indian Succession Act to be the Will of Joginder. The
same cannot prove the document dated 15th November, 1994 as the Will of
Joginder as the said document has not been proved in accordance with
Section 63 to be the Will of Joginder.
54. The only answer of the counsel for Rajender that it was the
suspicious circumstance.
55. Once the document dated 15th November, 1994 has not been proved,
this Court cannot look into it at all and thus the counsel for Rajender is not
entitled to urge that the distribution agreed upon by Joginder with other
siblings is in terms thereof. Else, Jatinder as sole owner of the estate of his
father is free to deal with it in any manner whatsoever and merely because
Jatinder has decided to share the same with his siblings, cannot in my view
constitute a suspicious circumstance. Even otherwise, the settlement
arrived at between Jatinder and others is in the nature of Family Settlement
and which has been accorded the highest sanctity in law. Merely because
Jatinder, for the sake of buying peace with his other brothers and sister with
whom he earlier also did not have any dispute during the lifetime of the
father, has agreed to share the estate bequeathed exclusively to him, does
not in my view constitute a suspicious circumstance.
56. The counsel for Rajender in his written submissions has also pointed
out, that Joginder under the document dated 15th May, 1994 has acted
contrary to the earlier Family Settlement of 1979.
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 26 of 33
57. I have already hereinabove recorded that this Court, exercising
testamentary jurisdiction, is only concerned with the proof of the document
of which probate is sought as the validly executed last Will and not with
questions of title or interpretation of the document.
58. The other contentions of the counsel for Rajender in the written
synopsis are with respect to other suspicious circumstances. It is argued (i)
that Ravinder Pal Singh, one of the attesting witnesses to the document
dated 15th May, 1994, has deposed that he knew Sweety wife of Jatinder
and treated her as a sister; (ii) however, Ravinder Pal Singh stated that he
did not disclose about the Will to Sweety or to any other person; (iii) that
the other attesting witness Yoginder Singh Bhatia could not give any
satisfactory explanation of his relationship with Joginder; (iv) that both the
attesting witnesses were confidantes of Jatinder; (v) Jatinder, in his cross-
examination, admitted that the relations of Joginder with all his children
except Rajender were cordial from 1985 till his death; there is no
explanation as to why Joginder would exclude his other children from his
estate; (vi) Jatinder, in his cross-examination also admitted that the
description of four of the properties in the document dated 15th May, 1994
was not clear; (vii) the Will is also with respect to property no.C-114,
Naraina Industrial Area, Phase-I, New Delhi lease whereof had been
cancelled in 1992 and the said property could not have been mentioned in
the Will dated 15th May, 1994; (viii) Jatinder, in his testimony appeared to
distance himself from the two attesting witnesses; (ix) Joginder, owing to
the litigation with Rajender, was in touch with Advocates and family
members and there was no reason for Joginder to, if desirous of making a
Will, have it witnessed from Ravinder Pal Singh and Yoginder Singh
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 27 of 33
Bhatia who were unknown to him and not related to him; (x) Gurbachan
also deposed that Joginder‟s relations with Jatinder were not cordial; (xi)
Satbinder deposed that Joginder‟s health deteriorated because of lack of
proper medication and that Joginder was not having a sound disposing
mind; (xii) Rajender also in his testimony deposed that Jatinder had got
blank paper signed from Joginder; (xiii) R5W2 Harpreet Singh Bedi, a
neighbor of Joginder also deposed that Joginder was in a depressed state of
mind; and, (xiv) R5W3 Naval Pal Singh deposed that the Public Notice
dated 22nd June, 1990 disowning was got published by Jatinder in the name
of Joginder and that Joginder was regular in his business till 1992 only.
59. I have perused the testimonies in entirety of the witnesses aforesaid
and am again unable to accept the contention of the counsel for Rajender
that any circumstances which can be said suspicious have been proved.
60. As far as the aspect of Joginder, inspite of being in touch with
Advocates and other family members, having not got the document dated
15th May, 1994, if intended to be a Will, attested from any of the said
persons is concerned, notice can be taken of the fact that litigating
Advocates are generally reluctant to sign either as draftsman or attesting
witness of documents prepared by them for obvious reason of being
subsequently required to appear as a witness and being deprived of being
briefed in the matter. As far as other family members are concerned, in
today‟s world where families have disintegrated and individualism has
come to the fore and travel has increased, it is indeed difficult to convince a
family member to become a witness to a Will and to thereby take a partisan
stand in the family. No family member generally wants to antagonize one
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 28 of 33
set of family. Moreover, sitting in the armchair of the Testator, as is
required to be done in such cases, I can also say that as a Testator I would
require my Will to be attested by witnesses whose allegiance to the
beneficiary of my Will would be unshakable. Such persons would generally
be found in the close confidantes of the beneficiary i.e. either the personal
friend of the beneficiary or the relatives from the side of the spouse of the
beneficiary and who have no relationship with the rest of the Testator‟s
family. There is thus nothing unusual in finding Wills to be attested by the
members of the family of the in-laws of the beneficiary thereunder. In the
present case also, Ravinder Pal Singh has deposed to be a partner of the
brother of wife of Jatinder and the suggestion in cross-examination of the
counsel for Rajender, to the other attesting witness Yoginder Singh Bhatia
also is, of a connection with Ravinder Pal Singh. Both Ravinder Pal Singh
and Yoginder Singh Bhatia are thus made out to be friends of brother of the
wife of Jatinder and merely because Joginder got his Will in favour of
Jatinder attested from such persons close to Jatinder, does not raise any
suspicion.
61. As far as the reliance by the counsel for Rajender, on testimonies of
Gurbachan and Satbinder is concerned, they like Manjit though had earlier
filed objections in Test Cas. No.37/1995 but withdrew the same and
thereby their testimonies also stand withdrawn and no reliance can be
placed thereon. I may also notice that Gurbachan, till the demise of
Joginder, was contesting the suit filed by Rajender along with Joginder and
Jatinder and did not at any time say that Joginder is under control of
Jatinder.
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 29 of 33
62. As far as the testimonies of Harpreet Singh Bedi and Naval Pal
Singh are concerned, they are found to be very general and with an intent to
support the plea of Rajender. It cannot be forgotten that they are
neighbours, not only of Joginder and Jatinder, but also of Rajender, for
years and are not found to have shown any occasion for assessing the
soundness of mental and physical health of Joginder. Rather, it has
emerged that they were not in touch with Joginder.
63. Similarly, the testimony of Rajender himself is self serving.
Rajender, as aforesaid, at least for four years prior to the institution of these
petitions, was litigating with Joginder and had no occasion to interact
socially with Joginder. Rather, from the written statement it appears that
Joginder nurtured a grievance with respect to the conduct of Rajender.
Though Rajender could have, from the Court appearances of Joginder,
gauged the infirmity in mental and physical well being of Joginder, but did
not at any time as aforesaid contend so during the pendency of CS(OS)
No.1441/1990. His deposition thus does not inspire confidence.
64. I thus hold the document dated 15th May, 1994 to have been proved
to be the validly executed last Will of Joginder Singh, S/o Shri Ladha
Singh last R/o E-28, Rajouri Garden, New Delhi.
65. Resultantly, Test. Cas.37/1995 is allowed and Test. Cas.42/1995 is
dismissed. All the pending applications in both, on which no separate
arguments were addressed, are also disposed of in terms of final order.
Probate is ordered to be granted to Jatinder of the document dated 15 th
May, 1994 as the validly executed last Will of Joginder Singh, S/o Shri
Ladha Singh last R/o E-28, Rajouri Garden, New Delhi, subject to Jatinder
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 30 of 33
depositing the requisite Stamp Duty and furnishing Administration Bond
for the value of the estate with one surety in the like amount.
66. I will next take up CCP(O) No.62/2010.
67. I may at the outset state that as per the dicta of Division Bench of
this Court in Dr. Bimal Chandra Sen Vs. Kamla Mathur ILR (1982) 11
Delhi 407 followed in Govind Sarda Vs. Sartaj Hotels Apartments and
Villas Pvt. Ltd. 130 (2006) DLT 460, Ishwar Industries Ltd. Vs. The
Crocus Chattels Pvt. Ltd. 128 (2006) DLT 10 and Vimal Kumar Vs.
Ramesh Negi MANU/DE/2041/2011 for violation of an order under Order
XXXIX Rules 1&2 of the CPC, provisions of Sections 11&12 of the
Contempt of Courts Act, 1971 which have been invoked in CCP(O)
No.62/2010, cannot be invoked and the remedy if any is under Order
XXXIX Rule 2A of the CPC. CCP(O) No.62/2010 is thus liable to be
rejected on this ground alone.
68. However, since same has been pending for long, I have considered
the same on merits as well. Though notice thereof is found to have been
issued but thereafter no proceedings are found to have taken place in the
same.
69. The grievance of Rajender, in CCP(O) No.62/2010, is that vide order
dated 10th December, 2008 in CS(OS) No.1441/1990, the defendants
therein namely Joginder, Gurbachan, Surinder, Satbinder and Jatinder were
restrained from selling, transferring or creating any third party interest or
parting with possession of property no.C-114, Naraina Industrial Area,
Phase-I, New Delhi and property no.13/39, Western Extension Area, Arya
Samaj Road, Delhi; the said order was extended from time to time and
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 31 of 33
finally on 20th May, 2009 the defendants were directed to maintain status
quo in respect of title and possession of property no.C-114, Naraina
Industrial Area, Phase-I, New Delhi; however Gurbachan and Jatinder
created third party interest in the said property and qua which IA
No.14120/2009 was filed in the suit; that Gurbachan and Jatinder, in reply
to said application, did not expressly deny the averments in the application
thereby admitting that third party rights had been created in property no.C-
114, Naraina Industrial Area, Phase-I, New Delhi after passing of the
interim order; that violation committed is also substantiated in the report
dated 13th July, 2009 of the Court Commissioner; that Gurbachan and
Jatinder claim that they are running the units complained of in partnership
with Samsung or with Omkar Enterprises; such a claim is untenable
because no documents with respect thereto have been filed.
70. Gurbachan, in his reply to the CCP(O), is found to have denied
creation of any third party interest and to have pleaded having placed on
record the requisite MoUs and to have further pleaded that under the
Dissolution Deed 22nd September, 1979, the property no.C-114, Naraina
Industrial Area, Phase-I, New Delhi belongs to Gurbachan and Jatinder
only.
71. Jatinder also, in his reply to CCP(O) has denied violation of any
order and relied on his affidavit dated 17th May, 2010 in reply to the
application filed by the Rajender in the suit in this regard. Jatinder is also
found to have placed on record Business Collaboration Agreements dated
13th December, 2008 and 1st March, 2009 with Omkar Enterprises and
Boscos respectively.
TEST.CAS. 37/1995, TEST.CAS. 42/1995 & CCP (O) No.62/2010 Page 32 of 33
72. Neither counsel addressed on the CCP(O).
73. Considering the fact that the suit filed by Rajender, in which CCP(O)
No.62/2010 was filed, has been dismissed and the said decree has attained
finality, now after eight years it is not found expedient to initiate
proceedings for violation of the interim order in a suit which itself has been
decided against Rajender. CCP(O) No.62/2010 is thus dismissed.
74. All the three proceedings are disposed of.
RAJIV SAHAI ENDLAW, J.
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