Delhi District Court
Krishna vs Daya Chand on 25 October, 2024
IN THE COURT OF MS. ANURADHA JINDAL,
ADMINISTRATIVE CIVIL JUDGE-CUM-COMMERCIAL
CASES JUDGE-CUM-ADDITIONAL RENT CONTROLLER,
SOUTH WEST DISTRICT, DWARKA COURTS, NEW DELHI
DLSW030019182016
CNR No. : DLSW03-001918-2016
Smt. Krishna & Ors. v. Daya Chand & Ors.
CS SCJ No. : 427686/2016
1. Smt. Krishna
W/o Sh. Surinder Kumar,
R/o H. No. 3094, Sector-23,
Gurgaon, Haryana.
2. Smt. Susheela,
W/o Sh. Sri Parkash,
R/o H. No. 30, Village Surakh Pur,
P.O. Jharoda Kalan,
Delhi-110072. .......... Plaintiffs
Versus
1. Sh. Daya Chand,
2. Sh. Dharmvir Singh,
3. Sh. Jaiveer Singh,
4. Sh. Rajbir Singh,
5. Sh. Dalbir Singh,
All sons of Late Sh. Jage Ram
All residents of H. No. A-364,
CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 1 of 103
Village Bijwasan, Delhi-110061.
6. Smt. Darshana
W/o Sh. Jitender singh Dahiya
R/o H. No. 86, Gali No. 5,
Gautam Colony, Narela,
Delhi-110040.
7. Smt. Jagwati
W/o Late Sh. Jage Ram,
(Since died through LR's)
(i). Smt. Krishna
W/o Sh. Surinder Kumar
(already as plaintiff no. 1)
(ii) Smt. Susheela
W/o Sh. Sri Parkash
(already as Plaintiff no. 2)
(iii) Sh. Daya Chand
S/o Sh. Jage Ram
(already as defendant no. 1)
(iv) Sh. Dharmvir Singh
S/o Sh. Jage Ram,
(already as defendant no. 2)
(v) Sh. Jaiveer Singh
S/o Sh. Jage Ram,
(already as defendant no. 3)
(vi) Sh. Rajbir Singh
S/o Sh. Jage Ram
(already as defendant no. 4)
(vii) Sh. Dalbir
S/o Sh. Jage Ram
(already as defendant no. 5)
(viii) Smt. Darshana
W/o Sh. Jitender Singh Dahiya
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(already as defendant no. 6).
8. Sh Sudeep
9. Sh. Hardeep
Both sons of Sh. Dharamveer Singh
All residents of H. No. A-364,
Village Bijwasan, Delhi-110061 ......Defendants
Date of Institution of Suit : 15.12.2016
Date of pronouncement of judgement : 25.10.2024
Suit for Declaration and Permanent Injunction
JUDGEMENT
The Case
1. This case revolves around a family dispute concerning the inheritance of properties left behind by Late Shri Jage Ram. The central issue is the validity of a Will dated 20.08.2004, which the plaintiffs (daughters of the deceased) claim, was fraudulently executed to deprive them of their rightful share in the ancestral properties. The plaintiffs argue that they are legal heirs of Shri Jage Ram and are entitled to inherit the properties along with the other family members. According to the plaintiffs, the Will was fabricated in collusion with others, using undue influence and misrepresentation. They assert that the testator was not in sound mind when the Will was allegedly executed, and thus, the Will should be declared void.
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2. On the other hand, the defendants, including the sons and grandsons of the testator, argue that the Will is valid, genuine, and reflects the true intentions of Late Shri Jage Ram. They claim that the Will was executed voluntarily with the full knowledge of the testator and consent of all family members. The defendants assert that the properties in question were self-acquired by the testator, and as such, he had full authority to dispose of them through the Will, without following the normal rules of succession. They further argue that the plaintiffs were aware of the Will's existence and the subsequent mutation proceedings but failed to raise objections in a timely manner, rendering their challenge baseless and barred by limitation.
3. The plaintiffs seek to have the Will declared null and void and to assert their rightful claim to the ancestral properties, while the defendants aim to uphold the validity of the Will and secure their exclusive right to the properties under its terms. At the heart of this dispute lies a complex family dynamic, with each party striving to establish their legal entitlement to the inheritance.
The Proceedings: A Chronology
4. On 15.12.2016, the court perused the plaint and, after hearing the arguments, issued summons of the suit and notice of the application under Order 39 Rule 1 & 2 of the Code of Civil Procedure (CPC) to the defendants. On CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 4 of 103 17.04.2017, Vakalatnama was filed on behalf of defendants 1, 3, 4, and 6, and their Written Statements (WS), along with replies to the application under Order 39 Rule 1 & 2 CPC, were submitted. WS were also filed on behalf of defendants 7, 8, and 9, and copies were supplied to the plaintiff.
5. On 10.07.2017, Vakalatnama was filed for defendants 8 and 9, and the plaintiff submitted the replication to the WS of defendants 1, 3, 4, and 6, with copies being supplied. Defendant 2 informed the court that he did not wish to file a WS or contest the case, acknowledging that his sisters (plaintiffs) had a share in the ancestral property. Consequently, the defence of defendant 2 was struck off. After hearing the arguments, the court issued an injunction restraining the defendants and their agents from transferring or creating third-party interests in the suit property until the disposal of the suit.
6. On 13.03.2018, defendants 7 and 8 submitted their statements, confirming that they did not wish to file WS or contest the suit. Consequently, their defence was struck off. On 23.04.2018, counsel for defendants 5 and 9 informed the court that he had no further instructions from his clients and sought to withdraw his Vakalatnama. The court issued a notice to defendants 5 and 9 for their appearance and further proceedings.
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7. On 16.07.2018, a fresh Vakalatnama was filed on behalf of defendant 5. Defendant 9 submitted that the plaintiffs, who were his aunts, had a rightful share in the property and that he did not wish to contest the case. His defence was struck off. Defendant 5 failed to file a WS within the statutory period, and after several opportunities, his defence was also struck off. The court noted that the remaining contesting defendants were defendants 1, 3, 4, and 6. Given that the parties were family members, the court directed that all parties appear in person to explore settlement possibilities.
8. On 21.08.2018, all parties expressed their willingness to explore settlement possibilities. The case was referred to the mediation centre. On 28.09.2018, defendant 5 moved an application to set aside the order striking off his defence. On 03.12.2018, after hearing submissions on the application, the court allowed defendant 5's request to file his WS, considering that it was essential for the proper adjudication of the dispute. The plaintiffs were given the liberty to file a replication to the WS within 15 days.
9. On 22.01.2019, after completing the pleadings, the court framed the issues based on the contentions of the parties. On 14.03.2019, the plaintiffs filed the list of witnesses and affidavits. The first plaintiff witness (PW-1) was examined and cross-examined by the counsels for defendants 1, 3, 4, 5, and 6. Defendants 7, 8, and 9 were proceeded ex-parte CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 6 of 103 for non-appearance. On 01.05.2019, two more plaintiff witnesses (PW-2 and PW-3) were examined and cross- examined. On 03.07.2019, further plaintiff witnesses (PW- 4 and PW-5) were examined, though not cross-examined by the absent defendants. The plaintiffs' evidence was closed, and the matter was listed for defendants' evidence.
10.On 21.10.2019, Defendants' witnesses DW-1 to DW-3 were examined and cross-examined. Subsequent proceedings continued with the examination and cross- examination of witnesses, the filing of applications, and the issuance of attachment warrants for non-compliance by witnesses. Between 2019 and 2024, the matter passed through various stages, including defendants' evidence, submissions of applications, and settlement discussions. A total of thirteen witnesses on behalf of the defendants were examined, and the matter had reached the stage of final arguments.
11.This Court heard the arguments advanced by the Learned Counsel for both parties. The Court meticulously examined the entire case record, taking into account the evidence presented and the submissions made by the respective counsel. Additionally, the written submissions filed by the Learned Counsel for the plaintiff were carefully reviewed and considered in light of the arguments and evidence on record.
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12.The plaintiffs and defendants are legal heirs of Late Sh. Jage Ram, who passed away on 29.01.2010. Sh. Jage Ram was the father of the plaintiffs and Defendants Nos. 1 to 6, the grandfather of Defendants Nos. 8 and 9, and the husband of Defendant No. 7. Defendants Nos. 8 and 9 are the sons of Defendant No. 2, Sh. Dharmvir Singh, who is still alive and a party to this suit.
13.Sh. Jage Ram was a recorded co-bhumidhar, owning ½ shares in the land described in Khata Khatauni No. 382/352, comprising various land parcels located in the Revenue Estate of Village Dhansa, Delhi, totalling 33 Bighas. In addition to this, Sh. Jage Ram owned other land parcels, including Kh. Nos. 353, 355/3, 501 min, totaling 2 Bighas 11 Biswas, as well as a 135/420 share in Kh. No. 476/1, both located in the Extended Laldora Abadi of Village Bijwasan, Delhi. Furthermore, Sh. Jage Ram also held a 5/24 share in land comprising Khata Khatauni No. 592/133, located in Village Chhawla, Delhi.
14.During his lifetime, Sh. Jage Ram did not execute any Will, thereby leaving behind all his properties intestate. Consequently, upon his death, the plaintiffs and Defendants Nos. 1 to 7 became equal legal heirs entitled to an undivided share in the properties. However, Defendants Nos. 1, 3, 4, 5, and 8 & 9, acting dishonestly, have wrongfully obtained the mutation of the property in their CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 8 of 103 favour on the basis of a purported Will dated 20.08.2004, which is false, fabricated, and null and void. The plaintiffs have challenged the mutation order in three separate appeals, which are currently pending before the court of the Deputy Commissioner, South-West, Delhi.
15.The fraudulent intent of Defendants Nos. 1, 3, 4, 5, and 8 & 9 is evident from the fact that Defendant No. 1, in his mutation application before the Tehsildar, intentionally omitted the names of the plaintiffs and Defendant No. 6, despite their rightful claim as legal heirs. The application only mentioned Defendants Nos. 1, 3, 4, 5, and 8 & 9, while falsely excluding other heirs.
16.Additionally, neither the plaintiffs nor Defendant No. 6 were mentioned in the purported Will dated 20.08.2004, and there is no explanation given in the Will for excluding them. Late Sh. Jage Ram, who loved and cared deeply for all his children, would not have disinherited them without reason. This further casts serious doubts on the authenticity of the Will. Similarly, the Will fails to explain why Defendant Nos. 2 and 7 were excluded from the inheritance. These omissions suggest that the Will was not executed freely or in accordance with Sh. Jage Ram's intentions.
17.In January 2016, the plaintiffs learned that Defendants Nos.
1, 3, 4, 5, and 8 & 9 were attempting to sell the disputed land. This became evident when prospective buyers CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 9 of 103 approached the plaintiffs to inquire about the land. Upon confronting Defendants Nos. 1 to 5 and 8 & 9, the plaintiffs were informed that they had no claim to the land, as it had already been mutated in the names of Defendants Nos. 1, 3, 4, 5, and 8 & 9. The defendants threatened to sell the land to a real estate company and denied the plaintiffs any right, title, or share in the sale proceeds.
18.Concerned about the fraud, Plaintiff No. 1 filed an RTI application (No. 155) on 23.02.2016 to obtain information about the mutation proceedings. The PIO responded on 22.03.2016, but due to delays in receiving a response, the plaintiffs applied for a certified copy of the mutation file on 21.03.2016, which they received on 04.04.2016. Upon reviewing the documents, it became clear that the mutation was obtained through false statements and fraudulent affidavits, without disclosing the names of the plaintiffs or Defendant No. 6 as legal heirs. After understanding the extent of the fraud, the plaintiffs filed appeals against the mutation order. They also questioned Defendant No. 1 regarding the purported Will, but he evaded giving any clear answers.
19.It is well-known that Defendant No. 1 is a habitual litigant who had filed several cases even during the lifetime of Sh. Jage Ram. It is evident that Defendant No. 1 used undue influence and fraud to manipulate Sh. Jage Ram into signing the Will dated 20.08.2004, under the guise of CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 10 of 103 litigation-related documents. The Will was fabricated with the sole purpose of depriving the plaintiffs of their rightful share in the property.
20.Moreover, the purported Will dated 20.08.2004 does not reflect the comprehensive list of Sh. Jage Ram's properties, nor does it detail why certain heirs, including the plaintiffs and Defendant Nos. 2, 6, and 7, were excluded from the inheritance. It is standard practice that a person executing a Will seeks to resolve any disputes regarding the distribution of his property among his heirs. In this case, the Will failed to mention the full extent of Sh. Jage Ram's properties and heirs, thus rendering it highly suspicious.
21.Further, due to old age and declining mental faculties, Late Sh. Jage Ram was not in a competent state to execute a Will. The purported Will is clearly a result of coercion and fraud by Defendant No. 1. It is also telling that Sh. Jage Ram never mentioned this Will to the plaintiffs, even during his final days when the plaintiffs regularly visited him and took care of him.
22.In addition to these facts, the plaintiffs were surprised to discover that two Wills were allegedly executed by Late Sh. Jage Ram on the same day, 20.08.2004--one pertaining to the property in question (Registration No. 4159) and another registered under Registration No. 4158. There is no explanation for this unusual occurrence, further proving that the Will is fabricated.
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23.Before filing the appeals in April 2016, the plaintiffs had requested Defendants Nos. 1, 3, 4, 5, and 8 & 9 to cancel the alleged Will and recognise the plaintiffs' rightful share in the property. However, the defendants refused to do so and threatened to sell the property to a real estate company based on the mutation order.
24.The cause of action first arose in January 2016, when the plaintiffs learned of the mutation and potential sale of the property. The cause of action continued to arise in February 2016 when the plaintiffs confronted the defendants, and on 23.03.2016, when the RTI application was filed. Further, the cause of action arose on 04.04.2016, when the plaintiffs obtained a certified copy of the mutation file. The appeals filed in April-May 2016 and the defendants' continued attempts to sell the property have prolonged the cause of action, which still subsists.
25.As the property is situated in the South-West District of Delhi, and both the plaintiffs and defendants reside within the jurisdiction of this Court, the court has jurisdiction to adjudicate the present suit. For the purposes of court fees and jurisdiction, the value of the suit for the relief of cancellation and declaration of the Will is assessed at Rs. 200/-, upon which the appropriate court fee has been affixed. The value of the suit for permanent injunction is CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 12 of 103 assessed at Rs. 130/-, with the appropriate court fee duly paid.
26.In light of the above facts and circumstances, the plaintiffs respectfully pray that this Court be pleased to pass a decree declaring the Will dated 20.08.2004, registered as No. 4159 in Book No. 3, Volume No. 285, Pages 159 to 160, with the Sub-Registrar-IX, South-West District, Kapashera, Delhi, as illegal, forged, fabricated, null and void, and cancel the same, thereby declaring it not binding upon the plaintiffs. Further, the plaintiffs seek a permanent injunction restraining the defendants from selling, transferring, alienating, or creating any third-party interest in the suit properties, which include: Kh. Nos. 353 (0-8), 355/3 (1-2), and 501 min (1-1), totaling 2 Bighas 11 Biswas in the Extended Laldora Abadi of Village Bijwasan, Delhi; 5/24 shares in Khata Khatauni No. 592/133 in Kh. Nos. 409 and 410, situated in the Revenue Estate of Village Chhawla, Delhi; and ½ shares in Khata Khatauni No. 382/352, comprising Kh. Nos. 24//18 (4-14), 19 (4-16), 22 (4-16), 23/1 (3-4), 29 (0-2), 12 (4-16), 13 (4-16), 35//2 (5-16), totaling 33 Bighas in the Revenue Estate of Village Dhansa, Delhi. The plaintiffs also pray for any other relief, order, or direction that this Court deems just and proper under the circumstances of the case, in favour of the plaintiffs and against the defendants.
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27.The present suit is barred by limitation as the Will dated 20.08.2004 is being challenged. The plaintiffs were fully aware of the Will's execution and registration at the time it occurred. Therefore, the suit is liable to be dismissed for being time-barred. The plaintiffs have not properly valued the suit for the purposes of court fee and jurisdiction. As the plaintiffs are seeking a declaration regarding the Will dated 20.08.2004, they are required to pay ad valorem court fees based on the market value of the suit property involved in the said Will. Hence, the suit is not maintainable and merits dismissal.
28.The plaintiffs are not in possession of the suit property, and as such, a simple suit for declaration without seeking possession is not maintainable in law. Therefore, the present suit is liable to be dismissed on this ground alone. The suit has been filed without any cause of action, as the plaintiffs have failed to specify when the cause of action arose in relation to the Will dated 20.08.2004. As such, the suit is liable to be rejected under Order 7 Rule 11 of the Civil Procedure Code (CPC).
29.The testator, Late Shri Jage Ram, executed the Will due to concerns raised by Plaintiff No.2 and Defendant No.6, who informed the family that their husbands had malicious intentions regarding the testator's property after his demise. Consequently, the testator executed the Will with the CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 14 of 103 consent of all family members. The plaintiffs have not approached this Court with clean hands and have suppressed material facts. The suit has been filed with mala fide intent, and the plaintiffs are therefore not entitled to any equitable relief. This Court lacks jurisdiction to entertain and adjudicate upon the present suit.
30.The present suit has been filed in collusion with Defendants Nos. 2, 7, 8, and 9. This collusion further demonstrates the lack of bona fides on the part of the plaintiffs, rendering the suit unsustainable in law. The parties are related as mentioned. However, Late Shri Jage Ram executed a valid Will, which altered the normal line of succession. Consequently, the plaintiffs and Defendants Nos. 2, 6, and 7 are not legal heirs for the purposes of inheritance. The land mentioned was the self-acquired property of Late Shri Jage Ram. It is clarified that the property in question was transferred during the testator's lifetime. Late Shri Jage Ram lawfully transferred portions of his property before his death.
31.Late Shri Jage Ram bequeathed his properties to Defendants Nos. 1, 3, 4, 5, 8, and 9 through a valid Will, and the revenue authorities sanctioned the mutation accordingly. The plaintiffs and Defendants Nos. 2, 6, and 7 have no right, title, or interest in the properties bequeathed under the Will. The mutation was rightly sanctioned by the revenue authorities on the basis of the Will, and all CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 15 of 103 beneficiaries supported the same. The attesting witnesses also made statements in support of the Will.
32.The plaintiffs were fully aware of the Will and the mutation proceedings, but chose not to raise any objections during the mutation process. The Will has disturbed the normal line of succession, and the properties have devolved upon the beneficiaries named therein. The Will was executed with the consent of all family members to avoid disputes over the property, as concerns had been raised by Plaintiff No.2 and Defendant No.6 regarding their husbands' intentions.
33.Defendants Nos. 1, 3, and 4 never attempted to sell the land in question, and no agreement to sell was made. The plaintiffs were aware of the mutation proceedings, and their allegations about a potential sale are unfounded. The plaintiffs filed the RTI application merely to create a cause of action for filing this frivolous suit, as they were already aware of the Will and mutation proceedings. The plaintiffs have not provided any valid explanation for their delay in raising objections and have not specified the timeline of their actions. The plaintiffs have no legal claim to the property, as Late Shri Jage Ram bequeathed it to the defendants through a valid Will. The plaintiffs were aware of the Will's execution, and any claim of ignorance is not believable.
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34.Defendant No.1 did not dominate Late Shri Jage Ram in any way, nor was there any fraud in obtaining the Will. The Will was executed voluntarily with the consent of all family members. The Will dated 20.08.2004 is genuine and was voluntarily executed by Late Shri Jage Ram. There was no fraud or coercion in the execution of the Will, and the testator was in a sound state of mind at the time of its execution. The plaintiffs participated in family discussions regarding the Will and were aware of its contents. The Will was executed voluntarily, and all family members, including the plaintiffs, were involved in the process. The plaintiffs have no legal entitlement to the property, as the Will lawfully bequeaths it to the defendants. The Will is neither forged nor fabricated, and there is no basis for the plaintiffs' claims of fraud or misrepresentation.
35.The plaintiffs are barred from claiming any inheritance under the law of estoppel, as they consented to the execution of the Will. There was no conspiracy or collusion in the execution of the Will. The testator was in good health and fully capable of executing the Will voluntarily. The Will disturbed the normal line of succession, and the plaintiffs have no legal entitlement to the properties. The plaintiffs were aware of the execution of the Will and the mutation proceedings. Their suit has been filed with mala fide intent.
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36.No valid cause of action arose on the dates mentioned by the plaintiffs. Their claims are false and aimed at creating a cause of action to file this frivolous suit. While the property and parties are situated in Delhi, this Court lacks jurisdiction to entertain the present suit. The plaintiffs have not paid the requisite court fees, and the suit is not maintainable. The plaintiffs' prayer clause is devoid of merit and deserves dismissal.
37.It is, therefore, most respectfully prayed that this Court may be pleased to dismiss the suit of the plaintiffs with exemplary costs, in the interest of justice.
The Written Statement of Defendant No. 538.The present suit is barred by limitation, as the Will dated 20.08.2004, which is being challenged, was known to the plaintiffs from the time of its execution and registration. The plaintiffs had ample opportunity to challenge the Will earlier, and their delay in filing this suit makes it liable to be dismissed. Additionally, the plaintiffs have not properly valued the suit for the purposes of court fees and jurisdiction. Since they are seeking a declaration regarding the validity of the Will, they are required to pay ad valorem court fees on the property in question. As this has not been done, the suit is not maintainable and deserves dismissal. Furthermore, the plaintiffs are not in possession of the suit property. A suit for mere declaration without seeking possession is not maintainable under the law. Thus, the suit CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 18 of 103 is liable to be dismissed on this ground as well. Moreover, the suit has been filed without any valid cause of action. The plaintiffs have not clearly stated when they became aware of the Will or what triggered their right to file the suit. The absence of a specific cause of action makes this suit liable to dismissal under Order 7 Rule 11 of the Code of Civil Procedure (CPC).
39.The testator, Late Shri Jage Ram, executed the Will after learning from Plaintiff No. 2 and Defendant No. 6 that their husbands intended to claim his properties after his death. To prevent disputes, Shri Jage Ram decided to execute the Will, with the consent of all family members. This agreement to execute the Will was reached to ensure family harmony after Shri Jage Ram's passing. Therefore, the suit is barred by estoppel, laches, and acquiescence, and should be dismissed. The plaintiffs have not approached the Court with clean hands. They have suppressed material facts and filed this suit with mala fide intentions. As such, they are not entitled to any equitable reliefs, and the suit is liable to be dismissed. This Court does not have jurisdiction to entertain the present suit, and on that basis as well, the suit should be dismissed.
40.Late Shri Jage Ram executed the Will, which altered the normal line of succession. As a result, the plaintiffs, along with Defendants No. 2, 6, and 7, are not entitled to inherit the property under the regular rules of inheritance. The Will CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 19 of 103 has disturbed the normal line of succession, and only the named beneficiaries of the Will are entitled to the property. The properties mentioned in the suit were the self-acquired properties of Late Shri Jage Ram. Copies of the sale deeds related to these properties are attached to support this claim. Additionally, the agricultural land in Village Chhawla was transferred by Shri Jage Ram during his lifetime.
41.Late Shri Jage Ram executed the Will during his lifetime, in which he bequeathed his properties to Defendants No. 1, 3, 4, 5, 8, and 9. The revenue authorities, accordingly, sanctioned the mutation in favour of these defendants. The plaintiffs, along with Defendants No. 2, 6, and 7, were aware of this Will and the mutation proceedings but did not raise any objections at the time. Defendant No. 7, the plaintiffs' mother, is an attesting witness to the Will. As such, there is no illegality in the execution of the Will or the subsequent mutation.
42.The Will was executed with the consensus of all family members, including the plaintiffs, to prevent future disputes. The plaintiffs were well aware of the execution of the Will, and their mother, Defendant No. 7, also attested it. It is important to note that the defendants never intended to sell the land as alleged by the plaintiffs. The plaintiffs' claims about threats or intentions to sell the land are baseless. The defendants' actions have always been in CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 20 of 103 accordance with the Will and the consensus reached within the family. Moreover, the plaintiffs have not provided any details regarding the alleged buyer or any agreement to sell the property.
43.The Will was executed voluntarily by Shri Jage Ram, who was of sound mind and in good health at the time. The execution of the Will was done with the knowledge and consent of all family members, including the plaintiffs. The plaintiffs' claims of fraud or coercion are completely unfounded and unsupported by any evidence. Furthermore, the allegations that the Will was fabricated or executed under duress are baseless. The Will was executed by Shri Jage Ram in good health and of his own free will. All family members, including the plaintiffs, had full knowledge of the Will's contents and execution. There was no misrepresentation or fraud involved in the process.
44.In conclusion, the plaintiffs were aware of the Will and the mutation proceedings from the beginning. Their claims are without merit, and the present suit has been filed with mala fide intentions. The suit should be dismissed as the plaintiffs are not entitled to inherit any property under the terms of the Will, and they are now estopped from challenging the Will. It is therefore most respectfully prayed that this Court may be pleased to dismiss the suit of the plaintiffs with exemplary costs, in the interest of justice.
CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 21 of 103 Replication to the Written Statement of Defendants No. 1,3,4 and
6.
45.The plaintiffs respectfully submit this replication to the written statement filed by Defendants No. 1, 3, 4, and 6, while denying all the allegations and contentions raised by the defendants, except where specifically admitted. The plaintiffs affirm the facts stated in their plaint and provide the following responses to the assertions made by the defendants.
46.To begin, the plaintiffs categorically deny the claim that the suit is barred by limitation. The plaintiffs were unaware of the Will dated 20.08.2004 until much later, close to the time when this suit was filed. The assertion that the plaintiffs knew of the Will at the time of its execution and registration is entirely false. The cause of action arose only when the plaintiffs discovered the defendants' fraudulent conduct, which led to the filing of this suit well within the prescribed time limits. Therefore, the plea of limitation raised by the defendants is baseless and untenable.
47.The plaintiffs also refute the contention that the suit has not been properly valued for the purposes of court fee and jurisdiction. The plaintiffs are seeking a declaration regarding the validity of the Will, and as such, the suit has been appropriately valued. The defendants' claim that ad valorem court fees must be paid based on the market value of the suit property is legally incorrect. The plaintiffs are CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 22 of 103 not seeking possession but are challenging the authenticity of the Will, which does not require the payment of ad valorem court fees as alleged by the defendants.
48.Additionally, the defendants' statement that the plaintiffs are not in possession of the suit property is incorrect. The plaintiffs, as legal heirs and co-owners of the property, have a legitimate and legal claim to it. The suit for declaration is maintainable, and the lack of a prayer for possession does not invalidate the present suit. The primary relief sought by the plaintiffs is the cancellation of the Will, and this suit has been rightly instituted based on that ground.
49.The defendants' claim that the suit has been filed without cause of action is completely unfounded. The plaintiffs assert that the cause of action arose only when they became aware of the Will and its fraudulent execution by the defendants. The defendants' contention that the plaintiffs should have raised the issue earlier is false, as the plaintiffs were kept in the dark about the Will and its execution. The defendants' reliance on Order 7 Rule 11 CPC is misplaced in this context.
50.The defendants further allege that the Will was executed by Late Shri Jage Ram due to concerns raised by Plaintiff No. 2 and Defendant No. 6 regarding the intentions of their husbands. This story is a complete fabrication and has been invented by the defendants to justify the exclusion of the CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 23 of 103 plaintiffs and other legal heirs from their rightful inheritance. The Will, in fact, was fraudulently obtained, without the knowledge or consent of the plaintiffs, and was executed under undue influence. The plaintiffs were not involved in any discussions or decisions regarding the execution of the Will.
51.The plaintiffs strongly deny the accusation that they have approached this Court with mala fide intentions or that they have suppressed any material facts. The plaintiffs have been transparent in their actions and have approached this Court in good faith, seeking justice for being wrongfully deprived of their inheritance. The defendants' attempt to cast aspersions on the plaintiffs' intentions is a strategy to divert attention from their own fraudulent conduct. The plaintiffs are, therefore, fully entitled to the equitable reliefs sought in this suit.
52.The defendants' assertion that this Court lacks jurisdiction is also incorrect. The property in question is located within the territorial jurisdiction of this Court, and the parties involved also reside within this jurisdiction. Therefore, this Court has full authority to adjudicate upon the matter. The plaintiffs further reject the baseless claim that the present suit has been filed in collusion with Defendants Nos. 2, 7, 8, and 9. There is no such collusion, and this allegation has been made by the defendants to mislead this Court. The CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 24 of 103 plaintiffs have a genuine and valid cause of action and are lawfully pursuing their rights.
53.With regard to the merits of the case, the plaintiffs reiterate that they are the legal heirs of Late Shri Jage Ram, and the Will dated 20.08.2004 is fraudulent and void. The normal line of succession must apply, and the plaintiffs are entitled to their rightful share in the property. The land in question is ancestral, not self-acquired, as falsely claimed by the defendants. The plaintiffs strongly refute the defendants' assertion that portions of the property were lawfully transferred during the testator's lifetime. No such lawful transfers were made, and any such claims by the defendants are intended to mislead this Court.
54.The defendants' reliance on the mutation of the property in their favour based on the fraudulent Will is also incorrect. The plaintiffs were not aware of the execution of the Will or the subsequent mutation proceedings. The mutation in favour of the defendants was carried out based on a forged and fraudulent Will, and the plaintiffs are fully entitled to challenge the validity of the Will and the mutation. The attesting witnesses supporting the Will cannot be trusted, and their statements should be scrutinised, as they are part of the defendants' conspiracy to defraud the plaintiffs.
55.The plaintiffs further deny any attempt by Defendants Nos.
1, 3, and 4 to sell the property in question. The allegations CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 25 of 103 that the defendants intended to sell the land are unfounded and irrelevant to the plaintiffs' challenge of the Will's authenticity. The defendants' claim that the plaintiffs filed an RTI application to create a false cause of action is baseless. The plaintiffs filed the RTI to uncover the fraud committed by the defendants and obtain information that had been wrongfully concealed from them.
56.The plaintiffs acted promptly upon discovering the fraudulent Will and the mutation. Any delay in raising objections was caused by the defendants' concealment of material facts. The plaintiffs are therefore justified in challenging the Will and mutation now. The plaintiffs also reject the defendants' claims that they were involved in family discussions regarding the execution of the Will. The plaintiffs were deliberately excluded from the process, and the Will was executed without their knowledge or consent.
57.It is clear that the Will was obtained through undue influence and fraud, with the intention of depriving the plaintiffs of their rightful share in the property. The defendants' claims that the plaintiffs have no legal entitlement to the property are false and unjust. The plaintiffs maintain that the Will is neither valid nor legally enforceable. They are entitled to challenge its authenticity and to claim their rightful inheritance under the normal rules of succession.
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58.The plaintiffs also deny that they are estopped from claiming their inheritance due to any prior consent or acquiescence. They were unaware of the fraudulent activities surrounding the Will's execution, and their rights cannot be extinguished by the defendants' fraudulent conduct. The defendants' attempts to justify their actions by alleging prior consent are completely baseless. Finally, the plaintiffs reiterate that the testator was not in good health or sound mind at the time of executing the Will. The Will was obtained through coercion and undue influence exerted by the defendants. The plaintiffs are entitled to inherit their share of the property, and the defendants' fraudulent attempts to claim the entire property must be rejected by this Court.
59.In conclusion, the plaintiffs have a legitimate cause of action, and the suit has been rightly instituted in this Court, which has full jurisdiction to try the matter. The plaintiffs have paid the requisite court fees, and the suit is fully maintainable. The defendants' contentions are baseless and must be dismissed in their entirety. The plaintiffs, therefore, pray that this Court dismiss the written statement filed by Defendants Nos. 1, 3, 4, and 6, grant the plaintiffs the reliefs sought in the plaint, and pass any other orders as this Court may deem fit and proper in the circumstances.
CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 27 of 103 Determination of Issues:
60.On the basis of pleadings of the parties, following issues are hereby settled:-
1. Whether the impugned registered Will bearing registration no. 4159 book no. 3 Vol. no. 285 at page nos. 159 to 160 dt. 20.08.2004 had been executed by late Sh. Jageram S/o Sh Jai Lal? OPD-1 to 9.
2. Whether the suit of the plaintiff has been properly valued for the purposes of jurisdiction and court fees?
OPP.
3. Whether the suit of plaintiff is within the prescribed period of limitation? OPP.
4. Whether the impugned registered Will bearing registration no. 4159 book no. 3 Vol. no. 285 at page nos. 159 to 160 dt. 20.08.2004 is forged and fabricated and the same had not been executed by late Sh. Jagram in sound disposing state of mind? OPP.
5. Whether the suit of the plaintiff for declaration in the absence of relief of possession is liable to be dismissed? OPD-1 to 9.
6. Whether the plaintiff is entitled to decree of declaration as per prayer clause (A) of the plaint? OPP.
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7. Whether the plaintiff is entitled to decree of permanent injunction as per prayer clause (B) of the plaint? OPP.
8. Relief.
Plaintiff's Evidence PW-1/Plaintiff No.1/ Smt. Krishna
97.PW-1, Smt. Krishna, tendered her evidence by way of affidavit, which is exhibited as Ex.PW1/A and bears her signatures at points A & B. PW-1 has relied upon several documents, which are as follows:
o Khata Khatauni No. 382/352 comprising in Kh.No. 24//18(4-14), 19(4-16), 22(4-16), 23/1(3-4), 29(0-2), 12(4-16), 13(4-16), 35//2(5-16) total measuring 33 Bighas situated in the Revenue Estate of Village Dhansa, Delhi and the Khatauni is Mark B; o Kh.No. 353(0-8), 355/3(1-2), 501min(1-1) total measuring 2 Bighas 11 Biswas is Mark C;
o Kh.No.476/1(1-1) measuring 1 Bighas 1 Biswas situated in the Extended Laldora Abadi of Village Bijwasan, Delhi and Khatauni is Mark D; o Khata Khatauni No. 592/133 bearing Kh.No. 409 and 410 situated in the Revenue Estate of Village Chhawla, Delhi and Khatauni is Mark E;
o Copy of Will dated 20.08.2004 is Ex.PW-1/5;
CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 29 of 103 o Copies of Appeal is Mark A (colly).
Evidence Affidavit of PW-1
98.Smt. Krishna, the plaintiff No.1, daughter of the deceased Late Sh. Jage Ram, provided her testimony in the form of an affidavit. She detailed the facts surrounding the dispute over the properties of her late father, asserting that the Will dated 20.08.2004, purportedly executed by her father, is fabricated and should be declared null and void.
99.She explained that her father, Late Sh. Jage Ram, passed away on 29.01.2010, leaving behind herself, her co- plaintiff sister, and defendants Nos. 1 to 7 as legal heirs. He was a recorded co-bhumidhar of several properties located in Village Dhansa, Chhawla, and Bijwasan in Delhi. PW-1 emphasized that her father did not execute a Will during his lifetime, and thus, the plaintiffs and defendants Nos. 1 to 7 should have equal rights to the properties.
100. The affidavit alleges that defendants Nos. 1, 3, 4, 5, 8, and 9, motivated by greed, falsely claimed that a Will dated 20.08.2004 had been executed by the deceased. This Will allegedly excludes the plaintiffs and defendant No.6, while it benefits the other defendants. PW-1 argued that the Will is a result of fraud and undue influence, as her father was in a weakened state, both mentally and physically, at the time of its purported execution. She noted that her father had not provided any reasons for excluding certain CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 30 of 103 family members from inheritance, casting further suspicion on the Will.
101. PW-1 further contended that the defendants attempted to sell the disputed land in January 2016 without consulting the plaintiffs, prompting her to file an RTI application to gather information on the mutation of the property. Upon receiving the mutation file in April 2016, she discovered that defendants Nos. 1, 3, 4, 5, 8, and 9 had filed false affidavits to secure the mutation in their favour, omitting the names of some legal heirs, including the plaintiffs. She claims this action was fraudulent and played upon the revenue authorities.
102. Additionally, PW-1 highlighted that her father allegedly executed two Wills on the same day, which raises further doubts about the authenticity of the documents. She asserted that the Will dated 20.08.2004 did not reflect her father's intentions, as he had not mentioned several family members nor provided details of all his properties in the Will. She concluded that the Will was created only to deprive the plaintiffs of their rightful share in the estate.
103. After requesting the defendants to cancel the Will and give the plaintiffs their rightful share in the properties, PW-1 stated that the defendants refused and threatened to sell the land. With no alternative remedy, PW-1 and her co-
CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 31 of 103 plaintiff filed the present suit seeking the cancellation of the alleged Will and their rightful share in the property.
104. In summary, PW-1's affidavit asserts that the Will is forged and a product of fraudulent actions taken by the defendants to exclude the plaintiffs from their lawful inheritance of Late Sh. Jage Ram's properties.
Cross-Examination of PW-1
105. During cross-examination, PW-1 deposed that the present suit has been filed by PW-1 and her sister, seeking the cancellation of their father's Will. PW-1 was married in 1981, and at that time, all her brothers were living together. PW-1 is unaware of when her brothers separated from each other. Presently, PW-1's mother occasionally resides with her elder brother, Dharamvir Singh, and sometimes at her maternal home. In 2015, PW-1's mother stayed with her for 3-4 days. Currently, PW-1's mother resides with her.
106. It is correct that PW-1 opened a joint account in OBC, Sector-22, Gurgaon, in the names of her son, Muneet Kumar, and her mother. PW-1 also opened a joint account in the names of her son, Muneet Kumar, and her father at the same bank, though PW-1 does not recall the exact date, month, or year when these accounts were opened. PW-1 is unaware if her parents had accounts in UCO Bank, Bijwasan. PW-1 denies the suggestion that her son CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 32 of 103 withdrew any amount from the joint accounts of her parents and her son.
107. Regarding her father's land in Village Dhansa, PW-
1 initially believed that her father was the absolute owner. However, upon being confronted with paragraph 3 of her affidavit, where it is stated that her father was a co- bhumidhar to the extent of half a share, PW-1 acknowledges that her earlier understanding was incorrect. PW-1 cannot confirm whether the land in question was ancestral or self-acquired by her father. PW-1 personally obtained the khatonies (land records), which are marked as Mark B to Mark E. Contrary to the suggestion, PW-1 asserts that she was involved in obtaining these records.
108. PW-1 does not know who is currently cultivating the land in Village Dhansa or whether all five of her brothers are cultivating the land jointly. However, PW-1 believes that they may have leased the land on a sharecropping basis. PW-1 has never objected to her brothers cultivating the land or leasing it for cultivation. Regarding the land in Village Chhawala, PW-1 cannot say whether her father was the exclusive owner or merely a shareholder, nor does she know who is in possession or cultivating the land. PW-1 is unaware if her father sold this land during his lifetime in 2007.
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109. It is correct that PW-1's brothers constructed houses on the plots situated in Village Bijwasan, which were in her father's name. PW-1 does not know whether one of the plots was rented to UCO Bank or if another plot was also rented out by her brothers. PW-1 has never raised any objection to her brothers constructing houses on these plots, nor has she demanded rent from the rented properties.
110. As for her relationship with her brothers, PW-1 cannot say whether it is good or bad. PW-1 denies the suggestion that she maintains a good relationship with Dharamvir. PW-1 used to visit her mother at intervals of 4 to 6 months after her father's death. PW-1 never applied to any authority for the mutation of her father's land in her name. PW-1 does not know in whose name her father's land was mutated after his death or the year in which it was done. PW-1 is unaware if her mother made any statements before the authority regarding the mutation of the land in favour of her brothers.
111. PW-1 personally obtained the certified copy of the Will, Ex.PW1/5, from Kapashera. PW-1 first saw the Will after obtaining this copy. PW-1 does not recall the names of the witnesses to the Will. Upon being confronted with Ex.PW1/5, PW-1 acknowledges that the applicant for the certified copy was her husband, Surender Kumar, whom she accompanied. PW-1 also acknowledges that Vijay Singh is named as an attesting witness, as is her mother.
CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 34 of 103 Vijay Singh is the son of PW-1's sister-in-law (i.e., the son of PW-1's husband's sister). He currently resides in Sector- 23, Gurgaon, but not with PW-1.
112. PW-1 denies the suggestion that her mother executed a Will in favour of her and Plaintiff No. 2 concerning land in Village Chhawala and Village Bijwasan. PW-1 is unaware if her mother executed another Will in favour of her brothers concerning the same land before executing the Will in their favour. It is correct that after PW-1's mother executed one Will concerning a plot in Village Bijwasan in her name, she later executed another Will in favour of Plaintiff No. 2 in 2017.
113. PW-1 mentioned in paragraph 7 of her affidavit that Defendant No. 1 filed a mutation application with the Tehsildar since he handled all the property matters. However, PW-1 cannot specify the number of mutation applications filed by him, as she has neither seen nor read these applications. PW-1 became aware of one such application through her brother, Dalbir Singh, concerning land in Village Bakargarh. Upon being questioned about the basis for her statement in paragraph 7 of her affidavit that Defendant No. 1 wrongfully omitted the names of all legal heirs of Late Shri Jage Ram in the mutation application, PW-1 could not provide a satisfactory answer. It is correct that PW-1 is not fully aware of the contents of Will Ex.PW1/5. PW-1 first learned of its existence and CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 35 of 103 content when Dalbir informed her in 2016, after which she obtained a copy of the Will from the Sub-Registrar's office and noticed that her name was not mentioned.
114. PW-1 cannot provide details of any agreement to sell, as referenced in paragraph 9 of her affidavit, because the information came from Dalbir regarding the land in Bakargarh. PW-1 met a representative of the proposed purchaser at Dalbir's house, but she does not know the representative's name. PW-1 was informed by Dalbir about the mutation of her father's land, but she has no knowledge of whether the mutation occurred in Village Chhawala, Bijwasan, or Dhansa. The only land PW-1 is aware of is in Bakargarh, which was mutated in favour of Dalbir and Jaibir, as Dalbir informed her.
115. The threats mentioned in paragraph 9 of PW-1's affidavit were issued by Defendants No. 3 and 4 only, despite her affidavit implicating several other defendants. Regarding the Will, PW-1 is unaware of its execution and cannot say whether her father executed it out of his own free will. PW-1 only suspects it to be forged because her name was excluded. PW-1 cannot comment on the specific properties mentioned in Will Ex.PW1/5 or confirm whether all properties owned by her father were included. PW-1 denies the suggestion that her father was in good health in 2004, stating that he suffered from intermittent fever and CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 36 of 103 prostate issues. However, PW-1 has no medical documents to support this claim.
116. PW-1 does not regularly visit Defendant No. 6 (her sister). It is wrong to suggest that Defendant No. 6 was aware of the Will during PW-1's father's lifetime. It is incorrect to suggest that PW-1 failed to inform Defendant No. 6 of her intention to file this suit. Lastly, PW-1 admits that her grievance primarily stems from the fact that her name was excluded from Will Ex.PW1/5. However, PW-1 also believes that the defendants did not treat her mother properly.
PW-2/ Sh. Ram Kumar/ Halka Patwari for Village Dhansa and Bakargarh, under the jurisdiction of the Tehsildar, Najafgarh.
117. PW-2 was serving as the Halka Patwari for Village Dhansa and Bakargarh, under the jurisdiction of the Tehsildar, Najafgarh. In compliance with the summons, PW-2 had brought the certified copies of the Khatauni pertaining to Khata No. 180/203 of Village Bakargarh and Khata No. 382/352 of Village Dhansa, for the year 2012-
13. These documents were exhibited as ExPW2/A and ExPW2/B, respectively.
Cross-Examination of PW-2
118. During cross-examination by Learned Counsel for defendants Nos. 1,3,4 and 6, PW-2 was unable to state in CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 37 of 103 whose name the aforementioned land was recorded prior to the year 2012-13, as the previous records were not brought to court on that day. The khatauni records presented were specifically for the base year 2012-13.
119. Despite the opportunity provided, no questions were raised on behalf of the other defendants.
PW-3/ Sh. Anil Kumar/ LDC in the Office of the Sub-Registrar IX, Kapashera, New Delhi.
120. PW-3 stated that he was employed as an LDC in the Office of the Sub-Registrar IX, Kapashera, New Delhi. He brought the summoned record, which was the original document pertaining to the Will dated 20.08.2004, purportedly executed by Sh. Jage Ram and registered under Serial No. 4158 in Book III, Volume 285, at page numbers 157 to 158 on 20.08.2004, at the office of Sub-Registrar IX, New Delhi. A copy of the said Will was exhibited as Ex. PW3/A (OSR).
Cross Examination of PW-3
121. No questions were posed, and no cross-examination was conducted by the learned counsel for the defendants.
PW-4/ Sh. Krishan Beer/ Patwari/Kanoongo in Village Bijwasan.
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122. PW-4 stated that he was working as a Patwari/Kanoongo in Village Bijwasan. PW-4 brought the summoned records pertaining to the consolidation proceedings of Village Bijwasan, Tehsil Kapashera, which occurred in the year 1975. PW-4 presented certified copies of the relevant records for Khata No. 243 min and Khata No. 156, which were exhibited as Ex.PW-4/A and Ex.PW- 4/B, respectively.
Cross-Examination of PW-4
123. No questions were posed, and no cross-examination was conducted by the learned counsel for the defendants.
PW-5/ Sh. Rajesh Sharma/ Patwari in Village Chhawla.
124. PW-5 stated that he was employed as a Patwari in Village Chhawla. He had brought the summoned record, specifically the computerized Khatauni for the year 2014- 15 of Village Chhawla, pertaining to Khasra No. 409. The document was exhibited as Ex.PW-5/A (colly).
Cross-Examination of PW-5
125. No questions were posed, and no cross-examination was conducted by the learned counsel for the defendants.
PW-6/ Sh. Sandeep, Reader to the District Magistrate, South West.
126. PW-6 was employed as a Reader to the District Magistrate, South West. In compliance with the summons, PW-6 had produced the original record pertaining to three CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 39 of 103 appeals titled Krishna and Others vs. Daya Chand and Others, bearing appeal numbers 21/2016, 25/2016, and 20/2016, which were pending before the Court of the District Magistrate, South West.
127. PW-6 had personally compared the copies of these appeals, which were marked as Mark A (Colly) and contained from page numbers 36 to 181 of the case paper book. Upon comparison, PW-6 confirmed that the copies were true and accurate reproductions of the original appeals based on the records produced. The said records were then exhibited as Ex.PW-6/A (Colly).
Cross-Examination of PW-6 on behalf of Defendant no. 5
128. During cross-examination PW-6 deposed that the appeal bearing number 20/2016 was registered on 26.04.2016. The appeal bearing number 21/2016 was also registered on 26.04.2016, while the appeal bearing number 25/2016 was registered on 18.05.2016.
129. Despite the opportunity provided, no questions were raised on behalf of the other defendants.
Defendants' Evidence DW-1/ Sh. Daya Chand/Defendant No.1
130. DW-1 tendered evidence by way of affidavit, which was exhibited as Ex.DW1/A and bore his signatures at points A and B. CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 40 of 103 Evidence Affidavit of DW-1
131. DW-1, the defendant no. 1, tendered his affidavit as Ex. DW1/A, providing his testimony regarding the dispute over the Will executed by his father, late Shri Jage Ram. DW-1 affirmed that the Will in question was executed by his father, who bequeathed his self-acquired properties to DW-1 and several other defendants. DW-1 further confirmed that the mutation of these properties was sanctioned by the Tehsildar/Revenue Authorities in favour of the defendants, and both the plaintiffs and certain other defendants were fully aware of the execution of the Will and the mutation but did not raise any objections at that time.
132. DW-1 emphasized that the Will was executed with the consent of all family members, as some of them, including plaintiff no. 2 and defendant no. 6, had informed their father about potential malafide intentions of their husbands regarding the properties. Consequently, the Will was prepared to avoid any future disputes.
133. DW-1 also confirmed that his mother (defendant no.
7) acted as one of the attesting witnesses to the Will, and that his father, in turn, attested the Will executed by his mother on the same day. He affirmed that the attesting witnesses had provided their statements to the Revenue CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 41 of 103 Authorities during the mutation process, further supporting the Will's legitimacy.
134. DW-1 stressed that the properties mentioned in the Will were self-acquired by his father, and the plaintiffs had never been in possession of the properties. DW-1 denied allegations that he and the other defendants intended to sell the land or that any threats were made to the plaintiffs. DW-1 affirmed that his father was in sound mental and physical health at the time of executing the Will and that the Will was executed voluntarily, without any undue influence, coercion, or fraud.
135. DW-1 maintained that the Will was genuine, valid, and free from suspicious circumstances. He denied the plaintiffs' allegations of forgery or fabrication and asserted that the suit filed by the plaintiffs lacked merit, was baseless, and was filed with malafide intentions, possibly in collusion with other defendants. DW-1 concluded by reiterating that the Will was executed with the consent of all relevant parties, and there was no cause for the present suit.
Cross-Examination of DW-1
136. During cross-examination by Learned Counsel for plaintiffs, DW-1 deposed that Late Sh. Jageram passed away on 29.01.2010. DW-1 admitted that Sh. Jageram was CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 42 of 103 illiterate and unable to read or write. Similarly, DW-1's mother, Smt. Jagwati, was also illiterate.
137. Sh. Jageram owned 16 bighas and 10 biswas of land, which constituted ½ share of 33 bighas in Village Dhansa. He also owned 5/24th share in a residential plot numbered 409, measuring 18 biswas in Village Chhawla. Additionally, he had ½ share in agricultural land measuring 12 bighas and 1 biswa in Village Bakkargarh. Furthermore, 5/24th share of land, measuring 7 bighas and 8 biswas, in Village Chhawla had been sold by him during his lifetime in 2007. He also owned a plot measuring 337.5 sq. yards bearing no. 476 in Village Bijwasan, another plot measuring 8 biswas in Khasra no. 353/1 in Village Bijwasan, and a third plot measuring 1 bigha and 2 biswas in Khasra no. 355/3 in Village Bijwasan. Lastly, he owned plot no. 501, measuring 1 bigha and 1 biswa, also in Village Bijwasan.
138. All of the properties mentioned were self-acquired by Late Sh. Jageram. Sh. Jageram filed two cases for recovery of possession of plots 152 and 409 in Village Chhawla. These cases were pending before the SDM from 2000 to 2008, and the appeals were heard before the DC between 2008 and 2015. At present, both cases were pending in Dwarka Courts. It was denied that during Sh. Jageram's lifetime, DW-1 handled all his legal documents CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 43 of 103 (Vol. DW-1 only assisted Sh. Jageram, and Sh. Jageram accompanied him in these matters).
139. DW-1 belonged to a family of five brothers and three sisters. On 20.08.2004, three Wills were executed in total, two of which were executed by Late Sh. Jageram. DW-1 did not have the Wills drafted personally (Vol. Late Sh. Jageram personally arranged for their drafting). DW-1's father had them drafted by Mr. Parmod of Shivam Documents, located near the DC Office, Kapashera. At the time, DW-1 was accompanied by Jaiveer, Krishna, her nephew Vijay Kumar, Dayanand Saini, Sudeep, and DW- 1's mother. DW-1 admitted that Jaiveer, Krishna, Dayanand Saini, and Sudeep were not attesting witnesses to any of the Wills.
140. In 2004, DW-1's father was about 72 years old, and DW-1's mother was about 67 years old. DW-1 admitted that his mother attested to his father's Wills, and his father attested to DW-1's mother's Will. DW-1 further admitted that none of DW-1's sisters attested to any of the Wills. The claim that Krishna did not sign any of the Wills as an attesting witness due to her absence during the alleged execution was denied. Additionally, it was denied that DW- 1 orchestrated the impugned Will and deliberately excluded Krishna, Sushila, Darshna, and Dharamveer from it. DW-1 admitted that no share was given to DW-1's mother in the impugned Will.
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141. DW-1 was unaware of any other Will executed by his father in August 2004, in which all sons and daughters were included alongside the impugned Will. The suggestion that DW-1 had the impugned Will drafted to disinherit Dharamveer due to strained relations was denied. DW-1 admitted that he handled the sale and purchase of all of Sh. Jageram's properties (Vol. This was because the money used for the purchases came from DW-1 and his brothers--Jaiveer, Rajveer, and Dalveer--and the properties were purchased in his father's name for convenience).
142. DW-1 had been working as a property dealer since 1981, but he had not registered his business with any authority. Jaiveer worked for the Flood and Irrigation Department of the Delhi Government and had since retired. Rajveer worked at the airport and took voluntary retirement, while Dalveer worked in a private company.
143. Although DW-1 filed Income Tax Returns (ITRs) for about four or five years, he was not currently filing ITRs. DW-1 did not recall the exact financial years for which he filed them. DW-1 did not remember if he reflected the alleged property purchases made in his father's name in his ITRs.
144. Sh. Jageram owned ancestral land amounting to 7 acres, which he sold in 1981. The claim that the properties CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 45 of 103 mentioned in the impugned Will were purchased from the proceeds of the ancestral land was denied. Similarly, the assertion that DW-1 started his property dealing business with the proceeds from the sale of ancestral land in 1981-82 was denied. It was also denied that DW-1's mother revoked her Will after learning it had been fraudulently executed (Vol. Dharamveer influenced and misled her into canceling the Will). The suggestion that DW-1 manipulated his father and mother into executing the Wills was denied. The claim that Sh. Jageram would have executed a single Will covering all his properties had he done so of his own volition was unfounded.
145. DW-1 admitted that the impugned Will did not mention anything about DW-1's father's sons and daughters, nor did it reference any decision by the sons and daughters to waive their claims to his properties. DW-1 further admitted that during the land mutation process following Sh. Jageram's death, none of his sons or daughters were summoned to give statements. Furthermore, no witnesses were called by the Tehsildar to identify the beneficiaries of the Will during the mutation process (Vol. This was not required).
146. DW-1 did not recall whether Dharamraj S/o Kalwa made a statement during the mutation process. However, DW-1 admitted that both his statement and Dharamraj's statement were recorded by the Tehsildar in the same CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 46 of 103 mutation proceedings on the same day, i.e., 14.12.2011 (Vol. Dharamraj and DW-1 met at the Tehsil, and they were not together before that). DW-1 was familiar with Dharamraj S/o Sh. Kalwa, a resident of Village Chhawla. DW-1 admitted that the impugned Will and the other Wills executed by DW-1's father and mother were written in English, a language neither of them understood (Vol. The Wills were explained to them). DW-1 further admitted that Parmod, the document writer, did not sign the impugned Will.
147. DW-1 had reviewed the contents of the impugned Will. DW-1 admitted that the Will did not state that it was explained to his father in a vernacular language. The claim that DW-1 appeared before the Sub-Registrar during the registration of the impugned Will was denied. Furthermore, the assertion that DW-1 was a frequent visitor to the Sub- Registrar's office and used his influence there to get the Will registered against his father's wishes was denied. The claim that DW-1 and Jaiveer accompanied their father to the Sub-Registrar's office to have the impugned Will executed and registered against his will was denied. The suggestion that DW-1's father was unaware of the contents of the impugned Will at the time of its execution was denied, as was the claim that he was suffering from severe ailments in 2004 and unable to move. Lastly, it was denied that DW-1 was giving false testimony.
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148. DW-2 tendered her evidence by way of affidavit, which was exhibited as Ex. DW2/A bearing her signatures at points A & B. Evidence Affidavit of DW-2
149. In her affidavit, Smt. Darshana, the defendant No.6 in the present case and daughter of the late Shri Jage Ram, submitted her testimony in support of the Will executed by her late father. According to her, the Will was created with the full knowledge and consent of all family members, including her and the plaintiffs. She explained that both she and Plaintiff No.2 had informed their father, prior to the execution of the Will, that their husbands harboured malicious intentions regarding his property after his death. Consequently, the family agreed that Shri Jage Ram should execute the Will to safeguard the estate and avoid disputes.
150. DW-2 emphasized that the Will was executed with the full consent of all family members. The attesting witnesses, one of whom is a relative of Plaintiff No.1 and the other being DW-2's mother, were chosen with family agreement. Additionally, her mother executed a separate Will on the same day, in favour of the defendants, with Shri Jage Ram and another relative as the attesting witnesses.
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151. She further stated that the plaintiffs were well aware of the existence of the Will but did not raise any objections until the current suit was filed. DW-2 mentioned that she maintains a cordial relationship with the plaintiffs, who frequently visit her and attend family functions hosted by her, indicating ongoing family ties.
152. This affidavit supports the defendants' position that the Will in question was executed voluntarily by Shri Jage Ram with full awareness and consent from all family members, including the plaintiffs.
Cross-Examination of DW-2
153. During cross-examination by Learned Counsel for plaintiff, DW-2 stated that her affidavit Ex. DW2/A was prepared in Rohini and attested at Rohini Courts. She mentioned that she had come to Dwarka Courts for the first time based on information about the hearing date provided by her brother, Dayachand. It was denied that the affidavit was prepared by her brother, Dayachand, as she confirmed that she gave instructions to her counsel for its preparation. Upon request, she identified Sh. B.D. Sharma, Advocate, as the person who prepared the affidavit on her instructions.
154. On 20.08.2004, DW-2 was at her home. She testified that she had gone through the contents of the impugned Will 15-20 days after its registration. She further CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 49 of 103 clarified that she had also read the Will prior to its registration. DW-2 recalled that her father had informed her in June 2004 that he intended to execute the impugned Will, stating his desire to bequeath his properties to all five of his sons. She denied that her statement consenting to the Will had ever been recorded after its execution. DW-2 rejected the suggestion that her father was suffering from ailments in 2004. She admitted that the impugned Will made no mention of any willingness on their part not to receive a share in the properties of late Sh. Jageram. She also admitted that both her mother and father were illiterate and could not read or write in English.
155. DW-2 testified that her father had executed two Wills and her mother had executed one Will, though she was not aware of the locations of their properties. She stated that she did not know whether Dayachand had accompanied her father on the day of the execution or registration of the impugned Will. It was denied that her mother had canceled her Will executed in 2004 or that Dayachand had filed a case against her mother after the cancellation. DW-2 denied having no knowledge of the family affairs of Dayachand and Jageram. She refuted the suggestion that the impugned Will and other Wills of her father and mother were prepared by Dayachand. It was also denied that her mother had canceled her Will after discovering fraud by Dayachand.
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156. DW-2 testified that she visited Village Bijwasan every 2-3 months after her marriage. She claimed no knowledge of any sale of ancestral land by late Sh. Jageram. DW-2 confirmed that she got married in 1984 and that late Sh. Jageram had already sold his ancestral land in Village Bijwasan before her marriage. She denied the suggestion that Jageram purchased other properties in his name from the proceeds of the sale of ancestral land. She also denied having bad relations with her parents, Jagwati and Jageram, or that she was unaware of her mother's cancellation of the Will due to strained relations. Lastly, she denied that she was testifying falsely.
DW-3/ Sh. Rakesh Kumar/ Kanoongo in the office of the SDM, Najafgarh.
157. DW-3 stated that he was working as a Kanoongo in the office of the SDM, Najafgarh. He confirmed that he had brought the original record related to Missil No. M112/Tehsildar/Najafgarh titled as Sh. Jaiveer etc. and Sh. Jageram etc. A copy of the same was exhibited as ExDW3/A (colly.).
158. DW-3 further stated that the record pertaining to Missil Nos. M-114 and M-136 was not available with him because it was lying in the office of the Collector (South- West) in connection with some pending case. He also CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 51 of 103 mentioned that the record related to Missil No. M- 299/2010-11 had not been consigned to the record room. Cross-Examination of DW-3
159. Despite opportunity, DW-3 was not cross examined by the Learned Counsel for Plaintiffs.
DW-4/ Ms. Neeru Sorot, Assistant Manager, Delhi State Co- operative Bank, Bijwasan Branch, Delhi.
160. DW-4 stated that she had brought the summoned record of account bearing No. 859, which belonged to late Sh. Jage Ram. She confirmed that the account had been opened on 18.05.1989 and was not in operation as it had been closed on 10.01.2011. A copy of the account was exhibited as Ex. DW4/1, consisting of four pages (collectively).
Cross-Examination of DW-4
161. During cross-examination by Learned Counsel for plaintiffs, DW-4 admitted that she had no personal knowledge of the account in question. She also acknowledged that the documents she had filed were computer-generated and were not accompanied by the requisite certificate under Section 65B of the Indian Evidence Act.
CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 52 of 103 DW-5/ Sh. Anil Kumar, Reader/Record Keeper to Sub Registrar IX, Kapashera, South West District, Delhi.
162. DW-5 stated that he had brought the summoned record of the Will executed by Smt. Jagwati, W/o Late Sh. Jage Ram, R/o VPO Bijwasan, New Delhi. He confirmed that the Will was registered under registration No. 4160, book No. 3, Vol. 285, page Nos. 161 to 162, dated 20.08.2004. A true copy of the Will was exhibited as Ex. DWS/A (OSR).
Cross-Examination of DW-5
163. Despite opportunity, DW-3 was not cross examined by the Learned Counsel for Plaintiffs.
DW-6/ Sh. Gaurav Bihari/Clerk, Syndicate Bank, Bijwasan Branch, New Delhi.
164. DW-6 stated that he had brought the summoned record of account number 3177 in the name of late Sh. Jage Ram. He confirmed that the account was opened on 30.01.1976 but is no longer in operation. The account opening sheet and statement were marked as Ex. DW6/1, consisting of four pages (colly).
Cross-Examination of DW-6
165. During cross-examination by Learned Counsel for plaintiffs, DW-6 admitted that he had no personal knowledge of the account. He further acknowledged that the documents submitted were computer-generated and CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 53 of 103 were not accompanied by the requisite certificate under Section 65B of the Indian Evidence Act.
DW-7/ Sh. Ajay Bist/ The Then Sub Registrar IX, Kapashera, South West District, now Deputy Secretary, Health and Family Welfare Department, Govt of NCT of Delhi.
166. DW-7 testified that he was posted as Sub Registrar IX, Kapashera, in the year 2004. He confirmed that the document Ex. DW5/A was registered during his tenure and that it bears his signature at point A. The testator, Smt. Jagwati, had placed her thumb impression in his presence.
167. DW-7 further confirmed that the WILL Ex. PW3/A, executed by Sh. Jage Ram, was also registered during his tenure and bears his signature at point B. He stated that Sh. Jage Ram had placed his thumb impression in his presence as well.
Cross-Examination of DW-7
168. During cross-examination, DW-7 admitted that although he could not specifically recall whether he had verified the identities of Smt. Jagwati Devi and Sh. Jage Ram at the time of the registration, it was the standard practice to examine the identity documents of the parties before proceeding with the registration. Similarly, DW-7 stated that while he did not specifically remember whether he had explained the contents of the documents to Smt. CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 54 of 103 Jagwati Devi and Sh. Jage Ram, it was common practice to explain the contents of such documents to the parties before registration.
DW-8/ Sh. Rakesh Kumar/ Kanoongo, Tehsil Najafgarh, South West District, Delhi
169. DW-8 testified that he had brought the summoned record pertaining to the mutation files. He provided copies of the following records:
o Mutation file No. M/345/T/NG/95-96 and M/346/T/NG/95-96 related to Village Dhansa, Delhi. The copies were exhibited as Ex. DWB/1 (OSR) and Ex. DW8/2 (OSR), each running into 24 pages, making a total of 48 pages collectively.
o Mutation file No. M/349/T/NG/96-97 and M/350/T/NG/96-97 related to Village Bakargarh, Delhi. The copies were marked as Ex. DWB/3 (OSR), running into 24 pages, and Ex. DWB/4 (OSR), running into 25 pages collectively.
Cross-Examination of DW-8
170. During cross-examination, DW-8 admitted that he did not have any personal knowledge of the mutation proceedings related to these files.
DW-9/ Sh. Laxmi Narain/ Branch Manager, Oriental Bank of Commerce, Rotary Public School, Sector-22, Gurgaon.
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171. DW-9 testified that he had brought the summoned records of the following accounts from the Oriental Bank of Commerce:
o Account bearing no. 52252010010620 (old account no.
1333), which was held jointly by Jagwati W/o Sh. Jageram and Muneet Kumar S/o Sh. Surender Kumar, both residents of 3094, Sector 23, Gurgaon. o Account bearing no. 52252010010610 (old account no.
1332), which was held jointly by Sh. Jageram S/o late Sh.
Jai Lal and Muneet Kumar S/o Sh. Surender Kumar, both residents of 3094, Sector 23, Gurgaon.
Both accounts were closed on 06.09.2008. The copy of the account statement for account 52252010010620 was exhibited as Ex. DW9/A (colly), and the account statement for account 52252010010610 was exhibited as Ex. DW9/B (colly).
Cross-Examination of DW-9
172. During cross-examination, DW-9 confirmed that he had been working at the branch since July 2017 and admitted that he did not have any personal knowledge of the account holders.
DW-10/ Sh. Anil Kumar Yadav/ Reader to DC (SW), District South West, Kapashera
173. DW-10 testified that he had brought the summoned records of the following cases:
CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 56 of 103 o Record of Shumar No. 1049 M-114/TNG/2011-12 dated 20.12.2011 for Village Dhansa, exhibited as ExDW10/A (colly), consisting of 47 pages.
o Record of Shumar No. 6348 M-299/2011-12/VV dated 24.01.2011 for Village Bijwasan, exhibited as ExDW10/B (colly), consisting of 20 pages.
o Record of Shumar No. 2457 M-136/TNG/2011-12 dated 23.01.2012 for Village Chhawla, exhibited as ExDW10/C (colly), consisting of 44 pages.
Cross-Examination of DW-10
174. During cross-examination, DW-10 admitted that he did not have any personal knowledge of the records he brought.
DW-11/ Sh. Ravinder Kumar/ Patwari, SDM Office, Vasant Vihar, Palika Bhawan, R. K. Puram, New Delhi
175. DW-11 testified as a summoned witness. He brought the record of mutation file bearing no. 245/1997-1998, with the date of decision being 11.12.1997, pertaining to Village Bijwasan, in the case titled Jage Ram vs. Ajab Singh. A copy of the same was marked as Ex. DW-11/A (OSR) (colly), running into 14 pages.
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176. Despite opportunity, DW-11 was not cross examined by Learned Counsel for plaintiffs.
DW-12/ Sh. Rajesh Sharma/ Patwari, SDM Office, Kapashera, District South West, New Delhi
177. DW-12, a summoned witness, testified that he brought the record of Khatoni Paimaish of the year 1981- 1982 of Village Chhawla. According to the Khatoni Paimaish, the mutation had been sanctioned in favour of Jage Ram from Daya Chand and Dharamvir by an order dated 11.06.1986, recorded in O-4/Sumar No. 235, Missal No. 177/85-86. The copy of the mutation record was exhibited as Ex. DW-12/A (OSR) (colly), consisting of six pages.
Cross-Examination of DW-12
178. Despite opportunity, DW-11 was not cross examined by Learned Counsel for plaintiffs.
DW-13/ Mr. Vijay Singh/ identified Smt. Krishna Devi, the plaintiff, as his Mami (Aunt)
179. DW-13 testified that he was summoned as a witness.
He is currently serving as an Assistant Commissioner of Police in the Delhi Police. He knew late Jage Ram, his maternal grandfather, and identified Smt. Krishna Devi, the plaintiff, as his Mami (aunt). He mentioned that Smt. CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 58 of 103 Krishna used to live in Sector 23, Gurugram, although he was unsure of her current residence.
180. DW-13 stated that after Jage Ram's death, he visited the office of the SDM, Najafgarh, and gave a statement regarding the mutation file, already exhibited as Ex. PW- 6/A (colly), which bore his signature at Point A. Another statement, recorded on 14.12.2012, was also provided, and it was exhibited as Ex. DW-13/B, bearing his signature at Point B. He confirmed that the mutation was sanctioned based on the Will executed by Jage Ram. According to him, Jage Ram was of sound mind when he executed the Will dated 20.08.2004, exhibited as Ex. PW-1/5 (OSR), where DW-13's signature appeared at Point A.
181. DW-13 added that Jage Ram had placed his thumb impression on the Will in his presence, and Smt. Jagwati, also an attesting witness, placed her thumb impression in his presence at Point C. All attesting witnesses, including DW-13, signed or thumb-marked the Will in each other's presence. He further confirmed that he became an attesting witness at the instance of Smt. Krishna, who was fully aware of the execution of Will Ex. PW-1/5.
Cross-Examination of DW-13
182. During cross-examination by Learned Counsel for plaintiffs, DW-13 confirmed that he had been serving in the CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 59 of 103 Delhi Police since 1994 and that Smt. Krishna was his real Mami. He admitted that he had seen the Will Ex. PW-1/5 for the first time at the Sub Registrar's office in Kapashera, although he did not recall the exact date. He confirmed that on the day the Will was executed, three Wills were prepared--two by Jage Ram and one possibly by Smt. Jagwati. He did not remember all the specifics of the day but confirmed that all three Wills were executed voluntarily by the executors. DW-13 mentioned that Jage Ram, Jagwati, and his Mama, Daya Ram, were present at the Sub Registrar's office, but he could not recall the presence of others, including Krishna. He acknowledged that Jage Ram and Jagwati did not directly call him to the Sub Registrar's office; rather, he attended at Krishna's request. He was also uncertain if he had taken leave that day.
183. DW-13 further testified that he was unsure whether Jage Ram and Jagwati were conversant in English or how the Khasra numbers were entered in the Will. He did not remember if he had seen any title documents annexed with the Will. He confirmed that he witnessed his Nana and Nani placing their thumb impressions on all three Wills but did not recall whether they signed them. DW-13 denied any allegations of the Wills being prepared by Daya Ram or of being part of any scheme to defraud Jage Ram. He acknowledged participating as a witness in the mutation proceedings, which took place in the office of the Tehsildar, Najafgarh. He stated that the family members, CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 60 of 103 including Daya Ram, Dharamvir, and others, were present during the proceedings, but he could not recall the specifics, including who else provided statements. DW-13 concluded by confirming his frequent visits to his Nana and Nani and stating that Jage Ram was in good mental health whenever he met him. He denied the suggestion that he was unaware of the number of children Jage Ram had or that he was deposing falsely at the instance of Daya Ram. He maintained that he was present at the Sub Registrar's office at Krishna's request.
Final Arguments Submissions on behalf of Plaintiff
184. Learned Counsel for plaintiffs argued that in the present suit, the plaintiffs seek a declaration and permanent injunction concerning the Will dated 20.08.2004, allegedly executed by their father, Late Sh. Jage Ram, in favour of certain defendants. The plaintiffs claim that Jage Ram passed away intestate, and all legal heirs, including the plaintiffs, are entitled to an equal share of his property. They argue that the Will in question is fraudulent, forged, and fabricated by the defendants, particularly defendant no.1, who exploited Jage Ram's advanced age and weakened mental condition to obtain his thumb impression under the guise of legal documents.
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185. The plaintiffs highlight several suspicious circumstances surrounding the execution of the Will. It excludes key heirs without any justification, and Jage Ram, being illiterate and unaware of English, could not have understood or freely consented to its contents. Further, they allege that the defendants misled revenue authorities to obtain a mutation order based on the fraudulent Will, which the plaintiffs only became aware of in January 2016, after potential buyers approached them about the land. The plaintiffs promptly filed this suit within the limitation period.
186. The plaintiffs' case is further supported by witnesses, including defendant no.7, who attested to the Will but later denied knowing its nature and content at the time of signing. Other witnesses provided inconsistent testimonies, further questioning the legitimacy of the Will. The plaintiffs argue that the defendants, as propounders of the Will, have failed to dispel the suspicious circumstances surrounding its execution. Merely registering the Will does not suffice to prove its validity under the law.
187. In support of their argument, the Learned Counsel for the plaintiffs has relied upon the following case laws:
o Jagdish Chand Sharma v. Narain Singh Saini (Dead) through LRs (2015) AIR (SC) 2149 CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 62 of 103 o B. Venkatamuni v. C.J. Ayodhya Ram Singh (Civil Appeal No. 4550 of 2006, Supreme Court, D/d. 19.10.2006) o S.R. Srinivasa v. S. Padmavathamma (Civil Appeal No. 4623 of 2005, Supreme Court, D/d. 22.04.2010) o Adivekka v. Hanamavva Kom Venkatesh (Dead) By LRs (Civil Appeal Nos. 7400-7401 of 2000, Supreme Court, D/d. 9.5.2007) o Bharpur Singh v. Shamsher Singh (Civil Appeal No. 7250 of 2008, Supreme Court, D/d. 12.12.2008).
Submissions on behalf of Defendant
188. Learned Counsel for the defendant argued that the suit challenging the Will dated 20.08.2004 is time-barred as the plaintiffs were aware of the Will and its registration but delayed in filing the suit. The plaintiffs have undervalued the suit for the purposes of court fees and jurisdiction. As they are seeking a declaration involving valuable property, ad valorem court fees based on the property's market value should have been paid. The plaintiffs are not in possession of the property and have not sought possession in the suit. A declaratory suit without a prayer for possession is not maintainable, warranting dismissal of the suit on this ground. The plaintiffs have failed to establish a valid cause of action, as they have not specified when they became aware of the Will or how it harmed them.
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189. It was argued that the Will was executed voluntarily by late Shri Jage Ram with the consent of all family members, including the plaintiffs. The Will distributed his self-acquired properties, and the mutation was lawfully sanctioned based on the Will. The plaintiffs were aware of the Will and raised no objections at that time, indicating their dishonest intentions. The mutation was properly sanctioned based on a valid Will, and the plaintiffs had the opportunity to object but chose not to. Their allegations of fraud in the mutation process are baseless. Evidence confirms that Shri Jage Ram was in good mental health when the Will was executed. The plaintiffs' allegations of undue influence, fraud, and forgery are unfounded. The defendants deny any attempt to sell the property. The plaintiffs' allegations are unsubstantiated and appear to be fabricated to create a false cause of action.
190. It was further argued that the plaintiffs are estopped from challenging the Will, having acquiesced to the mutation and Will at the time. They cannot now challenge the Will after several years have passed. The suit has been filed with malafide intentions to harass the defendants and gain undue advantage. The plaintiffs were part of family discussions regarding the Will and cannot suddenly challenge it after a significant lapse of time. Thus, the suit is time-barred, improperly valued, lacks a cause of action, and is filed with malafide intent. The Will is valid, and the CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 64 of 103 mutation was lawfully sanctioned. Therefore, it is prayed that the suit be dismissed with exemplary costs.
Analysis and Findings
191. The issues are adjudicated as under:-
Issue 1:
Whether the impugned registered Will bearing registration no. 4159 book no. 3 Vol. no. 285 at page nos. 159 to 160 dt. 20.08.2004 had been executed by late Sh. Jageram S/o Sh Jai Lal? OPD-1 to 9.
192. The burden of proof regarding the due execution of the Will, as required by Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, is on the defendants. They are obligated to prove that the Will was executed by Late Sh. Jage Ram freely, with sound disposing mind, and in compliance with the formalities prescribed under law. The plaintiffs have alleged that the Will is forged and fabricated, which, if true, would render the Will invalid. Therefore, the pivotal task before this court is to assess the evidence concerning the Will's execution and determine whether the Will represents the genuine testamentary intention of the deceased.
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193. In order to establish the authenticity of the Will, the following key elements must be satisfied as per Section 63 of the Indian Succession Act, 1925:
o The Testator's Signature or Mark: The testator must sign or affix a mark on the Will, or such signature must be made by another person in the presence of and under the direction of the testator.
o Attestation by Two Witnesses: The Will must be attested by two or more witnesses, each of whom must have seen the testator sign the Will and must sign the Will in the presence of the testator.
o Free Consent: The Will must be executed by the testator of his or her own free will, without any coercion, undue influence, or fraud. The testator must be of sound mind at the time of executing the Will.
194. Further, under Section 68 of the Indian Evidence Act, 1872, the execution of the Will must be proved by calling at least one attesting witness to testify that the Will was duly executed by the testator. This provision ensures that the testamentary document is authentic and represents the genuine intention of the testator.
195. The defendants have consistently maintained that the Will dated 20.08.2004 was voluntarily executed by Late Sh. Jage Ram and reflects his free and independent decision. In support of their assertion, the defendants rely CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 66 of 103 on the testimony of DW-1 (Daya Chand), DW-13 (Vijay Singh), and DW-7 (the Sub-Registrar), along with the documentary evidence of the registered Will itself.
196. DW-1, Daya Chand/Defendant no. 1, deposed that the Will was executed in the presence of the testator's family members and attested by two witnesses, including his mother, Defendant No. 7. He explained that the Will was drafted with the knowledge and consent of the family, particularly due to concerns raised by Plaintiff No. 2 and Defendant No. 6 regarding the intentions of their husbands. DW-1 emphasized that the properties bequeathed under the Will were the self-acquired properties of Late Sh. Jage Ram, and that the Will was executed to prevent any disputes over the distribution of the estate.
197. He further testified that the Will was registered before the competent Sub-Registrar and that the testator, being of sound mind, executed the Will voluntarily. DW-1 also confirmed that no objections were raised by the plaintiffs at the time of the execution or registration of the Will, and the mutation of the properties was duly carried out by the revenue authorities based on this validly executed Will.
198. DW-13, an attesting witness and a relative of the plaintiffs, corroborated DW-1's testimony. He confirmed that he was present at the time of the execution of the Will and that Late Sh. Jage Ram, was in sound state of mind and CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 67 of 103 signed the Will voluntarily. He further attested that he and Defendant No. 7 witnessed the testator's signature, and all necessary formalities were completed as per law. DW-13's testimony is crucial, as he is related to the plaintiffs and his credibility lends significant weight to the defendants' case.
199. DW-7, the Sub-Registrar who officiated the registration of the Will, affirmed that the Will was presented before him and duly registered following the legal procedures. Although DW-7 could not recall the specific details, he confirmed that it was the standard practice to verify the identities of the executors and explain the contents of the document before registration. This further substantiates the authenticity of the Will and the due process followed during its execution and registration.
200. The plaintiffs challenge the validity of the Will on the grounds that it was procured by fraud, undue influence, and coercion. They allege that Defendant No. 1 exercised undue influence over Late Sh. Jage Ram and manipulated him into excluding certain legal heirs, including the plaintiffs, from the inheritance. The plaintiffs further argue that the testator was not of sound mind due to his advanced age and health conditions at the time of executing the Will.
201. However, the onus to establish such allegations of fraud or undue influence lies on the plaintiffs, and mere assertions without corroborative evidence are insufficient to CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 68 of 103 invalidate a duly executed Will. In the present case, the plaintiffs have not produced any medical or expert evidence to substantiate their claim that Late Sh. Jage Ram was incapable of executing the Will or that his judgment was impaired. Furthermore, the consistent testimony of the attesting witnesses and the registration of the Will negate the plaintiffs' claims of suspicious circumstances. The fact that the Will was duly registered and the execution was witnessed by two competent individuals, one of whom is a relative of the plaintiffs, further diminishes the credibility of the plaintiffs' allegations.
202. Several judgments of the Supreme Court have emphasized that the registration of a Will and the testimony of attesting witnesses are strong indicators of its validity. Mere exclusion of certain legal heirs does not by itself render a Will suspicious. The testator has the absolute right to bequeath his property as he sees fit, and such decisions must be respected unless there is evidence of malfeasance.
203. After careful examination of the evidence and legal principles, it is evident that the Will dated 20.08.2004 was executed by Late Sh. Jage Ram in accordance with the legal requirements under Section 63 of the Indian Succession Act, 1925, and duly proved by the defendants under Section 68 of the Indian Evidence Act, 1872. The defendants have successfully discharged their burden of proving the execution of the Will, and the plaintiffs have CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 69 of 103 failed to substantiate their claims of fraud, forgery, or undue influence. Therefore, this court finds that the Will was executed by Late Sh. Jage Ram voluntarily and in a sound disposing state of mind, and the issue is accordingly decided in favour of the defendants.
Issue 2:
Whether the suit of the plaintiff has been properly valued for the purposes of jurisdiction and court fees (OPP)?
204. The Onus to prove this issue was upon the plaintiffs.
205. In considering this issue, this court must examine whether the plaintiffs have correctly assessed the value of their suit for the purposes of determining both jurisdiction and the court fees payable. The plaintiffs seek two key reliefs:
o A declaration that the Will dated 20.08.2004 is illegal, void, and not binding upon the plaintiffs; and o A permanent injunction restraining the defendants from selling, alienating, or creating any third-party interest in the suit properties.
206. For these reliefs, the plaintiffs have valued the declaratory relief at Rs. 200/- and the relief for permanent injunction at Rs. 130/-, paying the appropriate court fees accordingly. The plaintiffs argue that their suit has been properly valued in accordance with the nature of the reliefs CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 70 of 103 sought, and they are not seeking any declaration of ownership or possession, but only a declaration about the validity of the Will and an injunction.
207. The defendants, however, have contested this valuation, arguing that since the plaintiffs are challenging the validity of a Will that pertains to immovable property, they are required to pay ad valorem court fees based on the market value of the property mentioned in the Will. They contend that the plaintiffs have undervalued the suit and underpaid the court fees, thereby making the suit liable to be dismissed on this ground. The defendants further argue that the suit is improperly valued in such a way that it affects the court's jurisdiction, as jurisdiction is determined based on the valuation of the suit.
208. To determine whether the suit has been correctly valued, this court must consider the relevant legal provisions. Under Section 7(iv)(c) of the Court Fees Act, 1870, in a suit where the plaintiff seeks a declaration and consequential relief, such as an injunction, the plaintiff is at liberty to value the relief. However, this valuation must be genuine and cannot be arbitrarily low. It is well settled that suits seeking only declaratory relief, such as declaring a Will null and void, without seeking possession or a monetary decree, may be valued nominally.
209. Under the Suits Valuation Act, 1887, the valuation for jurisdiction and court fees purposes should generally be aligned unless the suit pertains to immovable property or CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 71 of 103 the relief sought has a specific value as mandated by law. Here, the relief sought relates to a declaration on the validity of a Will, and no claim for possession of the property or monetary compensation has been made by the plaintiffs.
210. The plaintiffs have not sought possession of the suit properties, nor are they claiming title to the properties in question. Their case is based on the assertion that the Will dated 20.08.2004, which allegedly disinherits them, is forged, fabricated, and invalid. They seek a declaration to that effect and a consequential injunction to prevent the defendants from alienating the properties until the issue of the Will's validity is decided. This type of suit-- challenging the validity of a document without claiming possession--does not require the plaintiffs to pay court fees based on the market value of the property.
211. The plaintiffs' valuation of the suit at Rs. 200/- for declaratory relief and Rs. 130/- for the injunction reflects the nature of their claim. There is no substantive monetary claim or possession at stake, and the plaintiffs are merely asking the court to rule on the validity of the Will. Hence, the valuation appears consistent with the legal framework.
212. The defendants' argument that the plaintiffs should pay ad valorem court fees based on the market value of the suit properties is misplaced. The challenge here is to the CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 72 of 103 Will itself, and the plaintiffs are not asking the court to declare ownership or resolve any disputes about the possession of the property at this stage. Furthermore, the fact that the plaintiffs are not in possession of the property does not impact their right to seek declaratory relief on the validity of the Will.
213. Considering the nature of the relief sought, the plaintiffs' valuation of their suit for the purposes of jurisdiction and court fees appears to be in accordance with the law. The valuation is appropriate, given that the plaintiffs are not seeking any possession or monetary relief but are challenging the validity of the Will. Therefore, the suit has been properly valued, and the court fees paid are sufficient under the Court Fees Act, 1870.
214. The defendants' objections on this ground are, therefore, unfounded, and this issue is decided in favour of the plaintiffs. The suit has been properly valued for the purposes of jurisdiction and court fees. Accordingly, this issue is decided in favour of the plaintiffs.
Issue 3:
Whether the suit of plaintiff is within the prescribed period of limitation (OPP)?
215. The Onus to prove this issue was upon the plaintiffs.
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216. The issue of limitation in civil suits is governed by The Limitation Act, 1963. For a suit seeking cancellation of a Will and for declaration, the relevant provision is Article 58 of the Limitation Act, 1963 which prescribes a limitation period of three years from the date when the right to sue accrues. This provision establishes that the period for seeking declaratory relief begins from the point when the plaintiff first has knowledge of the facts that give rise to the cause of action.
217. In the present case, the plaintiffs are seeking a declaration that the Will dated 20.08.2004 is null and void. Therefore, the crucial question before the court is to determine when the plaintiffs first acquired knowledge of the existence of the Will and the corresponding cause of action. The burden lies on the plaintiffs to demonstrate that the suit has been filed within the stipulated three-year period.
218. The plaintiffs assert that they first became aware of the Will and the fraudulent mutation in January 2016 when prospective buyers approached them about the sale of the disputed land. They allege that it was only after these inquiries that they discovered that Defendants Nos. 1, 3, 4, 5, and 8 & 9 had secured the mutation of the property in their favour based on a false and fabricated Will.
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219. The plaintiffs further argue that after confronting the defendants about the mutation, they were told that the properties had already been transferred. This prompted Plaintiff No. 1 to file an RTI application on 23.02.2016, and it was only after receiving the certified copy of the mutation file on 04.04.2016 that they understood the full extent of the fraud. Subsequently, the plaintiffs filed appeals challenging the mutation order. Based on these events, the plaintiffs contend that the cause of action continued to subsist from January 2016, and the present suit, filed shortly thereafter, is within the period of limitation.
220. The defendants, on the other hand, argue that the suit is time-barred. They contend that the plaintiffs were fully aware of the execution and registration of the Will dated 20.08.2004 at the time of its occurrence, or shortly thereafter, and had ample opportunity to challenge it. Therefore, the suit, filed in 2016, comes well beyond the three-year limitation period prescribed under the Limitation Act.
221. The defendants also emphasize that the mutation was duly sanctioned by the revenue authorities based on the Will and that the plaintiffs never raised objections during the mutation proceedings. They assert that the plaintiffs were deliberately silent for over a decade and that the CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 75 of 103 present suit has been filed only after they were unable to claim any benefit from the property.
222. To resolve the issue of limitation, the court must assess the timeline of events and the credibility of the evidence presented by both parties.
o Date of the Will: The Will was executed and registered on 20.08.2004. The plaintiffs allege they had no knowledge of this document until January 2016, while the defendants claim that the plaintiffs were fully aware of the Will from the time of its registration.
o Plaintiffs' Knowledge of Mutation: The plaintiffs claim that they became aware of the mutation only when prospective buyers approached them in January 2016. This assertion is supported by the timeline of subsequent events, such as the filing of the RTI application on 23.02.2016 and the receipt of the certified mutation file on 04.04.2016.
o Delay in Filing Suit: While the defendants argue that the plaintiffs had knowledge of the Will much earlier, they have not provided any concrete evidence to show that the plaintiffs were aware of the Will or the mutation at the time it occurred. The defendants' claim that the plaintiffs were silent for over a decade lacks substantiation through any contemporaneous CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 76 of 103 records or communications that indicate the plaintiffs' awareness of the Will prior to 2016.
o Plaintiffs' Conduct Post-Discovery: After discovering the mutation, the plaintiffs acted promptly by filing appeals before the revenue authorities and initiating the present suit. Their actions suggest that they were diligent in pursuing their legal remedies once they became aware of the fraud.
223. In this case, the plaintiffs have shown that they acted promptly after discovering the fraud, which supports their contention that the suit is within the limitation period. Upon evaluating the evidence and applying the legal principles governing limitation, it is evident that the plaintiffs have been able to establish that they had no knowledge of the Will and the corresponding mutation until January 2016. The defendants have not provided sufficient evidence to prove that the plaintiffs were aware of the Will earlier. The timeline of events -- from the discovery of the mutation in January 2016, to the filing of the RTI application in February 2016, and the subsequent filing of the suit -- indicates that the plaintiffs acted within the three-year limitation period prescribed under Article 58 of the Limitation Act, 1963.
224. Therefore, this court finds that the suit of the plaintiffs is not barred by limitation and has been filed within the CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 77 of 103 prescribed period. This issue is accordingly decided in favour of the plaintiffs.
Issue 4:
Whether the impugned registered Will bearing registration no. 4159 book no. 3 Vol. no. 285 at page nos. 159 to 160 dt. 20.08.2004 is forged and fabricated and the same had not been executed by late Sh. Jagram in sound disposing state of mind? OPP.
225. The Onus to prove this issue was upon the plaintiffs.
226. The key legal principles governing the validity of a Will and its potential challenge on the grounds of forgery or unsoundness of mind are found under the Indian Succession Act, 1925 and the Indian Evidence Act, 1872. A Will is a testamentary document, and its execution is governed by Section 63 of the Indian Succession Act, 1925, which requires:
o The testator's signature or mark must appear on the Will.
o The testator must sign the Will voluntarily and in sound disposing mind.
o The Will must be attested by at least two witnesses, each of whom must have seen the testator sign the Will, and each witness must sign the Will in the testator's presence.
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227. In addition, under Section 68 of the Indian Evidence Act, 1872, the onus is initially on the party propounding the Will to prove its proper execution, particularly when the execution is contested. In cases where allegations of forgery or mental incapacity are raised, the burden of proving these claims rests on the party making such allegations.
228. The plaintiffs challenge the validity of the Will on the following primary grounds:
o Forged and Fabricated Will: The plaintiffs assert that the Will dated 20.08.2004, which was purportedly executed by Late Sh. Jage Ram, is forged and fabricated. They contend that the Will does not reflect the true intentions of the testator, as certain natural heirs, including the plaintiffs, were unjustly excluded from the Will. They argue that the Will was fraudulently created to benefit a select few of the defendants, particularly Defendants Nos. 1, 3, 4, 5, 8, and 9, who manipulated the situation to their advantage.
o Undue Influence and Coercion: The plaintiffs allege that Defendant No. 1, who had a dominant position in the family, exerted undue influence over Late Sh. Jage Ram during his final years. They argue that Defendant No. 1, who had a history of litigation even during the testator's lifetime, used this influence to compel their father to execute the impugned Will under coercion or CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 79 of 103 deception. The plaintiffs contend that the Will was not a voluntary act of the testator, but rather a result of manipulation and undue influence.
o Mental and Physical Incapacity of the Testator: The plaintiffs argue that at the time of executing the Will, Late Sh. Jage Ram was of advanced age and suffering from deteriorating health. They assert that he was not in a sound disposing state of mind and lacked the mental capacity required to comprehend the nature of his actions when allegedly executing the Will. The plaintiffs claim that due to these health issues, the testator was vulnerable and susceptible to external influence, particularly from Defendant No. 1.
o Suspicious Circumstances: The plaintiffs point to several suspicious circumstances surrounding the execution of the Will, including:
• The alleged execution of two Wills on the same day (Registration No. 4158 and Registration No. 4159), with no plausible explanation for this unusual occurrence.
• The exclusion of several legal heirs, including the plaintiffs and Defendant Nos. 6 and 7, from the Will, without any justification.
• The fact that Late Sh. Jage Ram, who was known to love and care for all his children, would not have disinherited certain family members without a CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 80 of 103 reason. The absence of such an explanation raises questions about the authenticity of the document.
o Fraudulent Mutation: The plaintiffs further allege that the defendants wrongfully obtained mutation of the property based on the impugned Will, omitting the names of the plaintiffs and Defendant No. 6. They argue that the defendants fraudulently concealed the existence of the Will until 2016, when the plaintiffs discovered it through an RTI application. The delay in disclosure, coupled with the suspicious manner in which the mutation was obtained, is cited as further evidence of fraud and fabrication.
229. The defendants, on the other hand, vigorously defend the validity of the Will and reject the plaintiffs' allegations. Their counterarguments are as follows:
o Valid and Genuine Will: The defendants assert that the Will was duly executed by Late Sh. Jage Ram in accordance with the legal requirements of Section 63 of the Indian Succession Act, 1925. They argue that the Will bears the testator's signature and was attested by two competent witnesses, including the testator's wife, Smt. Jagwati. The defendants contend that the plaintiffs have failed to produce any credible evidence to substantiate their claim of forgery or fabrication.
o Sound Disposing Mind: The defendants maintain that Late Sh. Jage Ram was in sound mental and physical CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 81 of 103 health at the time of executing the Will. They emphasize that the testator was fully aware of the nature of his actions and the extent of his property. The defendants argue that the plaintiffs' allegations regarding the testator's health are unfounded, as there is no medical evidence or expert testimony to support the claim that he lacked the mental capacity to execute the Will.
o Absence of Suspicious Circumstances: The defendants deny the existence of any suspicious circumstances surrounding the execution of the Will. They argue that the execution of two Wills on the same day was part of a family arrangement, and there is nothing inherently suspicious about this. The defendants also argue that the exclusion of certain heirs was a deliberate decision made by the testator after considering the concerns raised by Plaintiff No. 2 and Defendant No. 6 regarding the intentions of their husbands. The testator, therefore, decided to structure the distribution of his property in a manner that would avoid future disputes.
o No Undue Influence or Coercion: The defendants categorically deny the plaintiffs' allegations of undue influence and coercion. They argue that the testator acted voluntarily and with full autonomy in executing the Will. The defendants assert that there is no evidence to suggest that Defendant No. 1 or any other CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 82 of 103 defendant exerted any influence over the testator's decision-making process.
o Proper Mutation: The defendants maintain that the mutation of the property was carried out lawfully based on the Will. They argue that the plaintiffs were aware of the mutation process but chose not to object at the time. The defendants contend that the plaintiffs' decision to challenge the Will several years after the testator's death is driven by malafide intent and is an afterthought.
230. When determining the validity of the Will, this court has considered the following legal principles and the evidence provided by both parties.
o Proof of Due Execution:
Under Section 63 of the Indian Succession Act, the defendants, as the propounders of the Will, bear the initial burden of proving that the Will was executed in accordance with the statutory requirements. This includes establishing that the testator signed the Will in the presence of two attesting witnesses, who, in turn, signed the Will in the presence of the testator. The defendants have presented evidence that the Will was attested by two witnesses, one of whom was the testator's wife. They have also provided testimony from these witnesses to support the claim of due execution.
CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 83 of 103 The plaintiffs, on the other hand, have not provided any direct evidence to contradict the defendants' assertion that the Will was properly executed. The plaintiffs' claim of forgery lacks specific evidence, such as handwriting expert testimony, to support their allegations.
o Sound Disposing Mind:
To challenge the Will on the grounds of mental incapacity, the plaintiffs must provide sufficient evidence to show that the testator was not of sound mind at the time of executing the Will. Mere old age or minor health issues do not automatically disqualify a person from making a Will. The testator must be able to understand the nature of the document, the extent of his property, and the claims of those who would normally be expected to benefit.
In the absence of medical evidence or expert testimony supporting the plaintiffs' claim, the court may rely on the testimony of the attesting witnesses and other family members. In this case, the defendants have presented witnesses who testify that Late Sh. Jage Ram was in sound mental health at the time of executing the Will. The plaintiffs' claims of mental incapacity, therefore, appear speculative and unsupported by concrete evidence.
CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 84 of 103 o Suspicious Circumstances and Undue Influence:
If there are any suspicious circumstances surrounding the execution of a Will, the burden lies on the propounder to explain those circumstances. Suspicious circumstances could include the exclusion of natural heirs without explanation, the physical and mental condition of the testator, or the dominant position of one of the beneficiaries.
In this case, the plaintiffs argue that the exclusion of certain heirs and the alleged undue influence exerted by Defendant No. 1 constitute suspicious circumstances. However, the defendants have provided explanations for these exclusions, citing concerns about the intentions of certain family members. Additionally, there is no evidence to suggest that Defendant No. 1 or any other defendant dominated or coerced the testator. The defendants have explained that the exclusion of certain heirs from the Will was a result of the testator's deliberate decision, which was based on the concerns raised by Plaintiff No. 2 and Defendant No. 6 about their husbands' potential malafide intentions regarding the family property.
The Supreme Court has consistently held that mere exclusion of some heirs does not automatically render a Will suspicious, especially when the testator has a valid reason for doing so. A testator CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 85 of 103 has the full right to dispose of his property as he pleases, and as long as the decision is made voluntarily and without coercion, it should be respected.
In the present case, the defendants have shown that the Will was executed after careful consideration of the testator's concerns, and no direct evidence has been produced by the plaintiffs to substantiate their claim of undue influence. The plaintiffs' arguments about undue influence seem to rest on mere speculation, without any supporting documentation or witness testimony to corroborate the claim.
o Forgery Allegations:
Forgery, being a serious allegation, requires a high standard of proof. In cases of forgery, the party alleging it must provide compelling evidence, which may include expert testimony or forensic examination of the disputed document. The burden of proving forgery lies on the party making the accusation, and the standard of proof is beyond a reasonable doubt.
In the instant case, the plaintiffs have not submitted any expert report, such as from a handwriting expert, to prove that the signature or thumb impression of Late Sh. Jage Ram was forged. Additionally, the attesting witnesses, including the testator's wife, CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 86 of 103 have provided testimony confirming that the Will was executed in their presence and that the testator voluntarily placed his thumb impression on the document. Without any substantial evidence, the plaintiffs' allegations of forgery appear unsubstantiated.
o Fraud and Fabrication:
The plaintiffs have argued that the Will was fraudulently created to exclude them from their rightful inheritance. Fraud, under Section 17 of the Indian Contract Act, 1872, is defined as any act committed with the intent to deceive another party. However, as with forgery, allegations of fraud must be supported by clear and convincing evidence.
The defendants have presented multiple witnesses who have confirmed the execution of the Will, and they have argued that the plaintiffs were aware of the Will but chose not to challenge it until years after the testator's death. The plaintiffs have not provided any direct evidence to demonstrate that the Will was created through fraudulent means. Moreover, the mutation of the property based on the Will was carried out in accordance with the proper legal process, further weakening the plaintiffs' claim of fraud.
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231. In light of the evidence presented, the defendants have discharged their initial burden of proving the due execution of the Will in accordance with Section 63 of the Indian Succession Act, 1925. They have established that Late Sh. Jage Ram executed the Will voluntarily, in a sound disposing state of mind, and in the presence of attesting witnesses who have confirmed the validity of the document. The plaintiffs have not been able to substantiate their claims of forgery, fraud, undue influence, or mental incapacity with any concrete evidence, and their allegations appear to be speculative and unsubstantiated.
232. Accordingly, this court is of the view that the plaintiffs have failed to prove that the impugned Will dated 20.08.2004 is forged or fabricated, or that it was not executed by Late Sh. Jage Ram in a sound disposing state of mind. Therefore, this issue is decided in favour of the defendants.
Issue 5:
Whether the suit of the plaintiff for declaration in the absence of relief of possession is liable to be dismissed (OPD-1 to 9)?
233. The Onus to prove this issue was upon the defendants.
234. In addressing this issue, this court must determine whether the suit for a declaration regarding the validity of CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 88 of 103 the Will can be sustained even when the plaintiffs have not sought relief for possession of the properties in question.
The defendants argue that the suit is not maintainable due to the plaintiffs' failure to claim possession of the suit properties.
235. The defendants contend that the plaintiffs are not in possession of the suit properties and have merely sought a declaration that the Will dated 20.08.2004 is null and void. According to them, the plaintiffs' failure to include a prayer for possession, in conjunction with the declaratory relief, renders the suit defective. The defendants assert that when seeking a declaration of rights to immovable property, the plaintiff must seek all necessary reliefs in the same suit, including possession if they are out of possession. Therefore, they argue that the suit is incomplete and liable to be dismissed on this ground.
236. The core legal provision relevant to this issue is Section 34 of the Specific Relief Act, 1963, which governs declaratory suits. It stipulates that any person entitled to any legal character or right to property may institute a suit for a declaration of that right. However, the proviso to Section 34 states that no court shall make such a declaration where the plaintiff, being able to seek further relief than a mere declaration, omits to do so. In simpler terms, if the plaintiff can claim other reliefs--such as possession--but does not, the court should not grant a CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 89 of 103 declaration. Furthermore, Order II Rule 2 CPC emphasizes that the plaintiff must include all claims arising from the same cause of action in one suit. If possession is relevant to the cause of action, it should be claimed alongside the declaration.
237. In the context of Wills, courts have recognized that challenges to the validity of a Will can be brought without necessarily seeking possession of the properties involved. The focus in such cases is often on whether the Will is genuine or not, which is a separate issue from the possession of property.
238. In the present case, the plaintiffs are challenging the validity of the Will dated 20.08.2004, which allegedly disinherits them from certain properties. They have not sought possession of the suit properties, presumably because the question of possession is secondary to the main issue: whether the Will is valid and enforceable. The nature of the relief sought in this suit is declaratory. The plaintiffs are not asking for possession of the property at this stage; they are merely seeking a declaration that the Will is void and not binding upon them. This is significant because the outcome of this case will determine the rights of the parties under the Will, and the issue of possession may arise later, depending on the court's decision regarding the validity of the Will.
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239. In cases involving disputes over the validity of Wills, courts have frequently held that such suits can be maintainable without the inclusion of a possession claim, particularly when the primary relief sought is the declaration that the Will is void or forged. The plaintiffs are not asking the court to resolve issues of title or possession at this stage. They are simply seeking to resolve the question of whether the Will is legally binding.
240. Moreover, it is important to note that a declaration regarding the validity of the Will is a necessary first step before any issues of possession can be addressed. If the court declares the Will invalid, the issue of possession may naturally follow, but that will be dealt with in subsequent proceedings if necessary. In this context, the declaratory relief is not contingent upon a simultaneous claim for possession.
241. The suit for a declaration regarding the validity of the Will can be maintained without the plaintiffs needing to claim possession at this stage. The challenge to the Will's validity is a separate legal issue from the question of who is entitled to possess the suit properties. The plaintiffs are within their rights to seek a declaration without asking for possession, as their main cause of action is based on the alleged forgery and invalidity of the Will.
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242. Based on the facts of the case and relevant legal principles, this court finds that the suit is not liable to be dismissed merely because the plaintiffs have not sought possession. The absence of a prayer for possession does not bar the plaintiffs from pursuing their claim for declaratory relief. The issue of possession, if it arises, can be dealt with in separate proceedings once the court has ruled on the validity of the Will.
243. Thus, this issue is decided in favour of the plaintiffs.
Issue 6:
Whether the plaintiff is entitled to a decree of declaration as per prayer clause (A) of the plaint (OPP)?
244. This issue pertains to the plaintiff's claim for a declaration that the Will dated 20.08.2004, purportedly executed by Late Sh. Jage Ram, is illegal, forged, fabricated, null and void, and thus not binding on the plaintiffs. To determine whether the plaintiffs are entitled to this declaration, it is essential to analyze the facts, evidence, and legal principles surrounding the execution and validity of the Will.
245. The plaintiffs assert that the Will dated 20.08.2004 is a product of fraud, coercion, and undue influence, and therefore it should be declared null and void. They argue that Late Sh. Jage Ram did not execute any Will during his lifetime, or if he did, the purported Will was executed when CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 92 of 103 he was not in a sound disposing state of mind due to old age and declining mental health. The plaintiffs further allege that the defendants, particularly Defendant No. 1, used undue influence and fraud to have the Will fabricated in their favor, with the intent to deprive the plaintiffs of their rightful share in the properties.
246. The plaintiffs also contend that the Will was suspicious as it excluded certain legal heirs, including the plaintiffs, without any reasonable explanation. Furthermore, the plaintiffs raise concerns about the fact that two Wills were purportedly executed by Late Sh. Jage Ram on the same day, which adds to the suspicion surrounding the genuineness of the documents. On these grounds, the plaintiffs seek a declaration that the Will is invalid.
247. The defendants strongly refute the plaintiffs' allegations and assert that the Will dated 20.08.2004 is genuine, valid, and was executed by Late Sh. Jage Ram in a sound state of mind. They contend that the Will was voluntarily executed by the deceased without any coercion or undue influence. The defendants further argue that the plaintiffs were fully aware of the Will and the mutation proceedings but chose not to object at the relevant time, thereby demonstrating that the plaintiffs' claims are an afterthought and devoid of merit.
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248. The defendants also argue that the plaintiffs' challenge to the Will is barred by limitation, as the Will was executed in 2004, and the plaintiffs delayed challenging it until 2016. The defendants emphasize that the Will was attested by credible witnesses, including family members, and was duly registered, fulfilling all legal requirements. Therefore, they argue that the plaintiffs are not entitled to any declaratory relief, as the Will is valid and binding on all parties.
249. Under Section 34 of the Specific Relief Act, 1963, a party may seek a declaration regarding their legal character or any right to property. For a plaintiff to succeed in a suit for a declaration that a Will is invalid, they must establish that the Will was not executed in compliance with the legal formalities, was forged, or was executed under undue influence, fraud, or coercion. The burden of proof lies on the party challenging the Will.
250. Further, the law on Wills under the Indian Succession Act, 1925, provides that a valid Will must be executed by a testator in a sound disposing mind and must be attested by at least two witnesses. The testator should execute the Will voluntarily and without undue influence or fraud. If any of these conditions are not met, the Will can be challenged and declared void.
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251. The Will dated 20.08.2004, on its face, appears to be duly executed and registered as per the legal requirements under the Indian Succession Act. It bears the signatures of Late Sh. Jage Ram and the attesting witnesses, including his wife and a family member. The defendants have presented substantial evidence to support the genuineness of the Will, including testimony from witnesses such as DW-1 (Defendant No. 1) and DW-13 (Vijay Singh, a witness to the Will), who testified to the sound mental and physical condition of Late Sh. Jage Ram at the time of execution. The registration of the Will further strengthens its validity, as registration is a formal legal process that provides additional assurance of the document's authenticity.
252. The plaintiffs' primary contention is that the Will was obtained through fraud and undue influence by Defendant No. 1. However, the plaintiffs have not produced concrete evidence to substantiate these allegations. In fact, the cross- examination of the plaintiffs' witnesses, particularly PW-1 (Plaintiff No. 1, Smt. Krishna), reveals that the claims of fraud and undue influence are based on suspicion rather than any direct or circumstantial evidence. PW-1 admitted in her testimony that she had no personal knowledge of the circumstances surrounding the execution of the Will and was informed of the Will only after it had been executed. Without specific evidence demonstrating undue influence CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 95 of 103 or fraud, the court cannot invalidate a legally executed Will based solely on conjecture.
253. The plaintiffs have argued that Late Sh. Jage Ram was not in a sound disposing state of mind at the time of executing the Will. However, the defendants have countered this argument by providing testimony and evidence that Late Sh. Jage Ram was of sound mind and fully aware of the contents of the Will. DW-1, the primary defendant, testified that Late Sh. Jage Ram was in good health and sound mental capacity when he executed the Will. This was corroborated by DW-13, Vijay Singh, who was present at the time of execution and confirmed that Jage Ram was fully aware of what he was doing. Additionally, the registration of the Will and the presence of credible attesting witnesses, further support the conclusion that the testator was of sound disposing mind when he executed the Will.
254. The plaintiffs have failed to produce any medical records or other evidence to prove that Sh. Jage Ram was not mentally fit to execute the Will. In the absence of such evidence, this court gives weight to the defendants' testimony and the presumption of validity attached to a registered Will.
255. The plaintiffs have also raised concerns about the exclusion of certain legal heirs, including themselves, from CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 96 of 103 the Will. However, it is well-settled law that a testator has the freedom to distribute his property as he sees fit, and the mere exclusion of some heirs does not, by itself, invalidate the Will. The court will typically not interfere with the wishes of the testator unless there is clear evidence of fraud, undue influence, or coercion, none of which has been established by the plaintiffs.
256. After considering the evidence and arguments, it is clear that the plaintiffs have failed to discharge the burden of proof to establish that the Will dated 20.08.2004 is forged, fabricated, or obtained through fraud or undue influence. The defendants have successfully demonstrated that the Will was executed by Late Sh. Jage Ram in a sound disposing state of mind, voluntarily, and in compliance with the legal formalities required under the Indian Succession Act. The registration of the Will and the corroboration by credible witnesses further bolster the defendants' case. The plaintiffs' allegations of fraud and undue influence are unsubstantiated and appear to be based on mere suspicion rather than any concrete evidence.
257. Accordingly, this court finds that the plaintiffs are not entitled to a decree of declaration as per prayer clause (A) of the plaint. The Will dated 20.08.2004 is valid, binding, and legally enforceable. This issue is decided in favour of the defendants and against the plaintiffs.
CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 97 of 103 Issue 7:
Whether the plaintiff is entitled to a decree of permanent injunction as per prayer clause (B) of the plaint (OPP)?
258. This issue concerns whether the plaintiffs, as legal heirs of Late Sh. Jage Ram, are entitled to a permanent injunction to restrain the defendants from selling, transferring, alienating, or creating third-party interest in the suit properties. To determine this, the plaintiffs must satisfy certain legal requirements such as establishing a legal right to the property, demonstrating irreparable harm if the injunction is not granted, and showing that the balance of convenience lies in their favour.
259. The plaintiffs assert that as legal heirs of the deceased, they are entitled to an undivided share in the properties left behind by Late Sh. Jage Ram. They contend that the defendants wrongfully obtained the mutation of the properties based on a Will dated 20.08.2004, which they allege to be fraudulent, fabricated, and executed under undue influence. The plaintiffs argue that this Will is invalid, and they should have an equal share in the properties as legal heirs.
260. The plaintiffs emphasize that the defendants have taken steps to sell the disputed properties without their consent. They argue that such actions would deprive them of their rightful inheritance and cause irreparable harm, which CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 98 of 103 cannot be compensated by any amount of damages. Therefore, the plaintiffs seek a permanent injunction to prevent the defendants from selling or transferring the properties, thereby protecting their alleged interests.
261. The defendants, in contrast, submit that the Will dated 20.08.2004 is valid, genuine, and was executed by Late Sh. Jage Ram with full knowledge and sound disposing mind. According to the defendants, the plaintiffs were fully aware of the existence of the Will and the mutation proceedings but chose not to raise objections at the time of mutation. The defendants further argue that the plaintiffs are not in possession of the properties and are, therefore, not entitled to seek injunctive relief without claiming possession.
262. The defendants assert that they lawfully inherited the properties under the Will, and they have every right to manage, sell, or deal with the properties as legal beneficiaries. Moreover, they argue that the suit filed by the plaintiffs is mala fide, filed after an unreasonable delay, and based on false claims. The defendants further submit that the balance of convenience lies in their favour, as they are the rightful owners under the Will, and preventing them from dealing with the properties would unjustly harm their legal rights.
263. Under Section 38 of the Specific Relief Act, 1963, a permanent injunction can be granted to prevent the breach CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 99 of 103 of an obligation or to protect a legal right. To succeed in obtaining a permanent injunction, the plaintiffs must establish:
o Prima Facie Case: The plaintiffs must show that they have a legitimate legal right or interest in the disputed properties.
o Irreparable Injury: The plaintiffs must prove that they would suffer harm that cannot be adequately compensated by monetary damages if the injunction is not granted.
o Balance of Convenience: The plaintiffs must demonstrate that the harm they would suffer without an injunction is greater than the harm the defendants would face if the injunction is granted.
264. A prima facie case means there must be sufficient evidence to demonstrate a valid legal claim. In this case, the plaintiffs' argument hinges on their claim that the Will dated 20.08.2004 is invalid. However, as examined under Issue No. 1, the Will was found to be valid and executed with proper legal formalities. The plaintiffs have not been able to substantiate their allegations of fraud, undue influence, or lack of testamentary capacity on the part of Late Sh. Jage Ram. Thus, the plaintiffs fail to establish a prima facie legal right to the properties, as the Will has already been held to be valid. Consequently, without a CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 100 of 103 legitimate claim to the properties, the plaintiffs do not have a prima facie case for the relief sought.
265. Irreparable injury refers to harm that cannot be adequately remedied by damages or compensation. The plaintiffs argue that if the defendants are allowed to sell or transfer the properties, they will be deprived of their rightful inheritance. However, since the plaintiffs' claim to the properties has already been rejected based on the validity of the Will, they cannot demonstrate any legal injury. Furthermore, any potential financial loss could be compensated with damages if required, and thus, the claim of irreparable injury fails on this ground as well.
266. The balance of convenience requires the court to weigh the potential harm to both parties and determine which party stands to suffer greater harm. In this case, the defendants are the lawful beneficiaries under the Will and have the legal right to manage or dispose of the properties. Preventing the defendants from exercising their rights would unjustly hinder their ownership and legal interests. On the other hand, the plaintiffs, having failed to establish any legal entitlement to the properties, cannot claim that the balance of convenience lies in their favour. Therefore, the balance of convenience clearly favours the defendants, as they stand to suffer greater harm if their legal rights are restricted without just cause.
267. Upon evaluating the legal arguments and evidence presented, it is clear that the plaintiffs have not satisfied the CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 101 of 103 requirements for the grant of a permanent injunction. They have failed to establish a prima facie case, as the Will was found to be valid, and they have no legal right to the properties. There is no evidence of irreparable injury, as any potential harm to the plaintiffs is speculative and can be compensated with damages. Additionally, the balance of convenience favours the defendants, who are the rightful beneficiaries under the Will and have the legal right to deal with the properties as they see fit.
268. Therefore, the court finds that the plaintiffs are not entitled to a decree of permanent injunction as prayed for in prayer clause (B) of the plaint. The defendants' legal rights to manage and dispose of the properties remain unaffected by this suit, and the plaintiffs' claim for injunctive relief is dismissed.
269. This issue is accordingly decided in favour of the defendants.
Relief:
270. In view of the findings on the issues above, the suit filed by the plaintiffs is hereby dismissed. As a result, the plaintiffs are not entitled to the reliefs sought in their plaint. The plaintiffs' request for a declaration that the Will dated 20.08.2004 is null and void is denied. The plaintiffs' request for a permanent injunction restraining the CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 102 of 103 defendants from selling, alienating, or transferring the suit properties is also denied.
271. No order as to costs.
File be consigned to Record Room after due compliance.
ANURADHA
JINDAL
Pronounced in the (Anuradha Jindal)
Digitally signed by
open Court on 25.10.2024 ACJ-CCJ-ARC, ANURADHA JINDAL
Date: 2024.10.26
11:40:25 +0530
South West District,
Dwarka Courts, New Delhi
CS SCJ 427686/2016 Smt. Krishna & Anr. v. Daya Chand & Ors. Page No. 103 of 103