Delhi District Court
Bishamber Lal Kapoor vs Om Prakash Kapoor on 21 November, 2024
IN THE COURT OF SH. RAJESH MALIK, DISTRICT JUDGE
-06: CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
CS DJ 13001/16
IN THE MATTER OF:-
1. BISHAMBER LAL KAPOOR
S/o Late Shri Sunder Dass Kapur
r/o A-36, Krishna Park,
Devli Road, Khanpur,
New Delhi-110062
2. Shri Kuldeep Kumar Kapoor
S/o Shri Bishamber Lal Kapoor
r/o A-36, Krishna Park,
Devli Road, Khanpur,
New Delhi-110062
3. Sh. Pawan Kumar Kapoor
S/o Shri Bishamber Lal Kapoor
r/o A-36, Krishna Park,
Devli Road, Khanpur,
New Delhi-110062
4. Shri Pradeep Kumar Kapoor
S/o Shri Bishamber Lal Kapoor
r/o A-36, Krishna Park,
Devli Road, Khanpur,
New Delhi-110062
5. Shri Darshan lal Kapoor
S/o Late Shri Sunder Dass Kapur
R/o 277-A, Frontier Colony,
Adarsh Nagar,
Jaipur-302 004
Bishambar Lal Kapoor V. Om Prakash & Ors
Page No.1 of 40
6. Shri Rajeev Kapoor
S/o Shri Darshan Lal Kapoor
r/o 277-A, Frontier Colony,
Adarsh Nagar,
Jaipur-302 0047,
(deceased through LRs)
i. Smt. Shailja, W/o late Shri Rajeev Kapoor
ii. Arth Kapoor, S/o late Shri Rajeev Kapoor
(Minor through mother and natural guardian)
Both R/o 277-A, Frontier Colony,
Adarsh nagar, Jaipur-302 0047
7. Shri Sanjeev Kapoor
S/o Sh. Darshan Lal Kapoor
r/o 277-A, Frontier Colony,
Adarsh Nagar,
Jaipur- 302 004
..........PLAINTIFFS
VERSUS
1. SHRI OM PRAKASH KAPOOR
(SINCE DECEASED, THROUGH LRS)
(a) Smt. Prem
Wife of Late Om Prakash Kapoor
(b) Shri Rohit Kumar Kapoor
Son of late Om Prakash kapoor
Bishambar Lal Kapoor V. Om Prakash & Ors
Page No.2 of 40
(c) Smt. Pooja
daughter of late Om Prakash Kapoor
(d) Smt. Dimple
daughter of late Om Prakash kapoor,
all to be served at C-823, Arjun Nagar,
Kotla Mubarakpur,
New Delhi
2. Shri Rohit Kumar Kapoor
s/o Shri Om Prakash Kapoor
r/o C-823, Arjun Nagar,
Kotla Mubarakpur,
New Delhi
3. Shri Subhash Chander Kapoor
s/o Late Shri Sunder Dass Kapur
r/o C-823, Arjun Nagar,
Kotla Mubarakpur,
New Delhi
4. Shri Gagan Kumar kapoor
s/o Shri Subhash Chander Kapoor
r/o C-823, Arjun Nagar,
Kotla Mubarakpur,
New Delhi
5. Shri Sonu Kapoor
s/o Shri Subhash Chander Kapoor
r/o C-823, Arjun Nagar,
Kotla Mubarakpur,
New Delhi
6. Shri Davinder Kumar Kapoor
s/o Shri Subhash Chander Kapoor
Bishambar Lal Kapoor V. Om Prakash & Ors
Page No.3 of 40
r/o C-823, Arjun Nagar,
Kotla Mubarakpur,
New Delhi
7. Shri Sunny Kapoor
s/o Shri Subhash Chander Kapoor
r/o C-823, Arjun Nagar,
Kotla Mubarakpur,
New Delhi
8. Shri Vijay Kumar Kapoor
s/o Late Sh. Sunder Dass Kapur
r/o 461, Sanik Vihar,
Rani Bagh,
New Delhi-110034
9. Shri Ashish Kumar Kapoor
S/o Shri Vijay Kumar Kapoor
r/o 461, Sanik Vihar,
New Delhi
10. Sh. Manmohan Kapoor
s/o Late Shri Sunder Dass Kapoor
r/o A-6, Shanti Apartments,
Sector-13, Rohini,
Delhi-110084
11. Shri Lakshay Kumar Kapoor
s/o Shri Manmohan Kapoor,
r/o A-6, Shanti Apartments,
Sector-13, Rohini,
Delhi-110084 .....Defendants
Other Details
Bishambar Lal Kapoor V. Om Prakash & Ors
Page No.4 of 40
Date of Institution : 24.02.1998
Date of Reserving Judgment : 13.09.2024
Date of Judgment : 21.11.2024
Decision : Dismissed.
SUIT FOR PARTITION AND PERMANENT INJUNCTION
JUDGMENT:-
Partition of immovable property of Late Sunder Dass Kapoor.
1. The plaintiffs have filed the present suit for partition and permanent injunction. The plaintiffs claimed that the property bearing no. 1445/2, Wazir Nagar, Kotla, Mubarakpur, New Delhi (hereinafter mentioned as the suit property) is a joint family property of the Hindu undivided family (H.U.F) of Late Sh. Sunder Dass Kapoor. It is averred that the suit property was purchased out of joint family funds for the benefit of Undivided Hindu Family.
2. It is averred that on 06.05.1996 Sunder Dass Kapoor passed away. After his death, the suit property, being the H.U.F property, devolved upon all members of the Hindu undivided family by way of survivorship. However, the defendants refused to do the partition amicably and started raising unauthorized construction over the suit property.
Bishambar Lal Kapoor V. Om Prakash & Ors Page No.5 of 40
3. It is averred that the defendants have also tried to sell the suit property to a third party.
4. Alternatively, it is averred that late Sunder Dass Kapoor died intestate and therefore, by law of intestate succession, the plaintiffs no. 1 to 5 and the defendants are each entitled to get 1/6th share. Therefore, the plaintiffs have prayed for partition of the suit property with the relief of separate possession of the shares of the plaintiffs.
5. The defendants in their written statement denied the claims of the plaintiff. They stated that the suit property was purchased by the deceased Sunder Dass Kapoor from his personal and individual earning, and he allowed his son Om Prakash and Subhash Chand to do the work of Milk vendors from the suit property.
6. The defendants averred that the deceased Sunder Das Kapoor bequeathed the suit property to the defendants Om Prakash and Subhash Chand by the Will dated 27.04.1996.
7. The defendants averred that the plaintiff No. 1 had other properties in Delhi and was not an obedient son to his father (Sunder Dass Kapoor). The plaintiff No. 5 was also disobedient to Bishambar Lal Kapoor V. Om Prakash & Ors Page No.6 of 40 his parents and he was having his separate business in Jaipur.
8. The plaintiffs filed replication and stated that the construction of the suit property has not been raised by Om Prakash and Subhash Chand and the land has not been bequeathed by Sunder Dass Kapoor by any legal or valid Will.
9. It was reiterated that Sunder Das Kapoor died intestate and did not execute any Will. They stated that no Will has been filed before the court with the written statement.
10. After completion of pleadings, the following issues were framed:-
"1. Whether there is any HUF of deceased Sunder Dass as alleged by the plaintiff ? If so, what is the share of the plaintiff in the suit?
2. Whether Sunder Dass Kapoor left any legal or valid will dated 27th April, 1996? If so, to what effect? OPD.
3. Whether the suit is not maintainable because of minors have been made party without guardian?
4. Whether the suit has not been correctly valued for the purposes of appropriate court fees and jurisdiction?
5. What relief the plaintiff is entitled?
6. Whether the suit is bad for non-joinder of widow of late Sunder Dass Kapoor?
Bishambar Lal Kapoor V. Om Prakash & Ors Page No.7 of 40
7. Relief.
Plaintiff's Evidence
11. The plaintiff no. 1 examined himself as the PW-1. He filed his evidence affidavit. He reiterated the facts as mentioned in the plaint.
12. In his evidence affidavit, he relied upon the fact that the whole family was joint. He referred to the wedding of the daughters of plaintiff no. 1 hosted by late Sh. Sunder Dass Kapoor. He relied upon the following documents in his evidence affidavit.
a) The copy of the sale deed dated 02.03.1996 as Ex. P1/4.
b) Copy of judgment dated 22.05.1980 passed in the suit No. 27/73 is Ex. P1/5.
c) Copy of power of attorney, sale deed dated 20.03.78 and vakalatnama filed by the plaintiff in Suit no. 27/1973 as Mark X-1 and X-2.
13. He averred that the suit property was purchased from the joint family funds for the benefit of undivided family. Late Sh. Sunder Dass Kapoor being the Karta got the sale deed registered in his name for the benefit of coparceners in his family.
Bishambar Lal Kapoor V. Om Prakash & Ors Page No.8 of 40 Cross-examination of PW-1
14. During his cross-examination, PW-1 has admitted the sale deed by virtue of which he had sold part of the agricultural land falling in his share after the death of Sunder Dass Kapoor. He identified his signatures and photo on the sale deed. The sale deed is exhibited as Ex. PW-1/D1 (original seen and returned). In the same manner, the plaintiff No. 5 had sold his share in the Agriculture land vide sale documents Ex. PW-1/D2 (original seen and return).
15. He admitted that he and the Plaintiff No. 5 i.e. his brother had sold the part of the agricultural land vide sale deed Ex. PW-1/D1 and PW-1/D2. He stated that initially he had entered into an agreement to sell for the said part of agricultural land. Thereafter, the sale deed was executed.
16. He further admitted in his cross-examination that the mutation of the agricultural land at Village Chandi was carried out after the death of his father in the name of all the sons of deceased. The true copy of the said entry is Ex. PW-1/D3 (OSR).
17. He stated in his cross-examination that there was no H.U.F account at any point of time. He stated that he was the Govt.
Bishambar Lal Kapoor V. Om Prakash & Ors Page No.9 of 40 servant and remained posted outside Delhi from 1968 to 1978.
18. He stated that he did not convey to Patwari that the land in the name of his father was H.U.F land. He stated that he had never given anything in writing regarding the fact that the agricultural land was the H.U.F property.
PW-3 and PW-5
19. PW-3 is the handwriting expert. He filed his evidence affidavit and stated that he examined the will dated 27.04.1996. He deposed that the comparative signatures are read as "Sunder Dass Baqalam Khud" on the Vakalatnama dated 08.01.1973 filed in Hon'ble Delhi High Court in the case titled as Sunder Dass v. Mulk Raj and Anr. He marked the disputed signatures as Q1 and Q2 and comparative as A1. He stated that he is of the opinion that the disputed signatures as "Sunder Dass Kapoor" has not been written by the writer of the comparative signature i.e. A1.
20. He exhibited his report as Ex. PW-3/1. The photographs are marked as Ex. PW-3/2 to Ex. PW-3/6. The negatives/C.D is marked as Ex. PW-3/7 (colly).
21. He was cross-examined. In his cross-examination, he stated that it is correct that there is a difference of about 23 years between the disputed and comparative signatures. He also stated Bishambar Lal Kapoor V. Om Prakash & Ors Page No.10 of 40 that it is always better to have comparative signatures of the period closer to the date of disputed signatures.
22. The PW-5 is Darshan Lal Kapoor. He reiterated the facts as mentioned in his evidence affidavit. In his cross- examination, he stated that he sold his share of agricultural land at the Village Chandi.
23. In his cross-examination, he stated that his brother Bishambar Lal Kapoor started the dairy business.
24. The plaintiffs dropped the witness no. 2 , 3 , 4 , 6 and 7.
Evidence of Defendants
25. The defendants examined Sh. Vijay Kumar Kapoor as the DW-1. He was partly cross-examined. Thereafter, he stopped appearing. His cross-examination could not be completed. Thereafter, the defendant examined the DW-2 as the attesting witness of the Will. The attesting witness of the Will filed his evidence affidavit, stating that he knew Vijay Kumar Kapoor i.e. the son of the testator. He became acquainted with Vijay Kumar Kapoor i.e. son of late Sunder Dass Kapoor while the witness was working with M/s Plastic Bhandar. Sh. Vijay Kumar Kapoor was in the business of Plastic granules and had business dealings with his Bishambar Lal Kapoor V. Om Prakash & Ors Page No.11 of 40 employer i.e. M/s Indian Plastic Bhandar. So, he became acquainted with Sh. Vijay Kumar Kapoor in the year 1983.
26. He stated that they had become quite friendly with each other and were regularly visiting each other house and families.
27. He stated that Sunder Dass Kapoor and his mother Ram Pyari used to live with Vijay Kumar Kapoor at Bali Nagar. He stated that he used to interact with the testator (late Sunder Dass Kapoor) as and when he visited the house of Vijay Kumar Kapoor. He stated that Sunder Dass Kapoor used to show his love and affection to him and used to treat him as his own son. He stated that during their stay at Pitampura house for about 2 years, Vijay Kumar Kapoor got his house constructed at Sainik Vihar, Pitampura. He used to attend family function of Sunder Dass Kapoor and Vijay Kapoor. After construction of the house at Sainik Vihar, Vijay Kumar Kapoor alongwith his family shifted to Sainik Vihar House.
28. He stated that on 27.04.1996, in the afternoon, he received a phone number from the testator Sh. Sunder Dass Kapoor i.e. father of Vijay Kumar Kapoor, requesting him to come to his house at Sainik Vihar. On his request, he reached his house. The testator was sitting in the front room of the house. He met him;
Bishambar Lal Kapoor V. Om Prakash & Ors Page No.12 of 40 greeted him and inquired him about the purpose of calling. He told him that he wanted to make his Will.
29. Sh. Sunder Dass Kapoor had orally discussed the matter and conveyed the details as to how he would like to write his Will for distribution of his assets.
30. Sh. Sunder Dass Kapoor requested him to write down his Will. He accordingly wrote down the Will as per his request and read over the entire Will to him. After hearing and understanding the same, Sunder Dass Kapoor became fully satisfied with the Will written by him as per his desire. Thereafter, one Arun Kumar Aggarwal reached the house of Sunder Dass Kapoor. That Arun Kumar Aggarwal was the friend of Vijay Kumar Kapoor. He was also known to the attesting witness and they were having friendly terms with each other.
31. In his evidence affidavit, he stated that he was introduced to Sh. Arun Kumar Aggarwal by Vijay Kumar Kapoor being the common friend. He deposed that at request of Sunder Dass Kapoor, he read over the Will in presence of Arun Kumar Aggarwal and Sunder Dass Kapoor. Sunder Dass Kapoor requested him to witness the Will. The Will was taken over by Sh. Sunder Dass Kapoor, who signed and executed the Will in presence of both of the witnesses. Thereafter, he signed the Will as the attesting Bishambar Lal Kapoor V. Om Prakash & Ors Page No.13 of 40 witness and after signing the same, he wrote down his details i.e. his name and address in presence of Sunder Dass Kapoor and Ajay Kumar Aggarwal. Thereafter, at the request of Sunder Dass Kapoor, Arun Kumar Aggarawal signed the said Will as the attesting witness and wrote down his name and address. Thereafter, the Will was handed over to Sh. Sunder Dass Kapoor, who again signed the said Will. Sunder Dass Kapoor signed and executed the Will in presence of both the witnesses.
32. In his evidence affidavit, he identified the signatures of Sunder Dass Kapoor on the Will (Ex. PW-1/2) at point A and B. His signature is at point C and the signatures of Arun Kumar Aggarwal is at point D.
33. He stated that Sunder Dass Kapoor was of 86 years of age when the Will was signed and executed. He was completely Well and was of sound disposing mind. He was mentally and physically alert and was in good health.
34. He deposed that after execution of the Will, the other attesting witness Sh. Ajay Kumar Aggarwal left the house. After he left, Sunder Dass Kapoor handed over the custody of Will to him and requested him to keep the same in his safe custody.
35. He deposed that in the first week of May 1996, he Bishambar Lal Kapoor V. Om Prakash & Ors Page No.14 of 40 received a phone call from Vijay Kumar Kapoor that Sunder Dass Kapoor was not well and had been admitted in the hospital.
36. He stated that he visited Sunder Dass Kapoor in the Hospital, but unfortunately, he died 2 to 3 days thereafter. He stated that after the death of Sunder Dass Kapoor, he informed Vijay Kumar Kapoor about the fact of execution of Will dated 27.04.1996 by his deceased father Sunder Dass Kapoor and told him that he had the possession of the original Will as per the wishes of his late father. In the 3 rd week of August 1996, he received a request from Vijay Kumar Kapoor that the Will dated 27.04.1996 be got registered as per the wishes of his deceased father. Sh. Vijay Kumar Kapoor accompanied him to the office of Sub-Registrar for registration of the Will. On 21.08.1996, the Will was got registered. At the time of registration of the Will, he put his thumb impression on the Will (Ex. PW-1/2) near to his signature as the attesting witness.
37. He was cross-examined. He stated that Sh. Vijay Kumar Kapoor was not working in the Indian Plastic Bhandar. During his cross-examination, he told the telephone number of Vijay Kumar Kapoor. He stated that the deceased Sunder Dass kapoor used to talk to him regarding the property at Chandi Village, Rohtak, Haryana. He stated that he did not remember the name of the Hospital where Sunder Dass Kapoor was admitted. He Bishambar Lal Kapoor V. Om Prakash & Ors Page No.15 of 40 stated that some time around in the month of February and March 1996, he met Sunder Dass Kapoor, who had discussed in detail about his intention of executing the Will.
38. In his cross-examination, he stated that Sunder Dass Kapoor explained to him the contents of Will and accordingly, he wrote down the Will in his handwriting. He stated that there was no one in the room when he was writing down the Will and therefore, there was no question of getting the photocopy of the Will. In his cross-examination, he stated that he does not remember whether other attesting witness is Arun or Varun. Again, he said that he was Arun. He stated that Sunder Dass Kapoor signed in Urdu language. Therefore, he cannot identify his signatures.
39. He stated that he may have met Arun at some function, but he did not remember it. He stated that he wanted to get the Will notarized or registered after the death of Sunder Dass Kapoor. He stated that Arun was not present when he was writing down the alleged Will and he came immediately after writing down the said Will. He again said that he came within after 5 to 10 minutes of writing the Will.
40. He stated that Sunder Dass Kapoor called Arun by making the Telephone call to him when one or two lines of the Will were remained to be written. The witness was confronted with the Bishambar Lal Kapoor V. Om Prakash & Ors Page No.16 of 40 copy of the Will and the same was exhibited as Ex. DW-2/X1.
He was again confronted with the other copy of the Will. He identified it and stated that it is the same Will. The other copy of the Will is Ex. PW-2/X2.
The witness stated that Ex. PW-2/X1 is a notarized Will and Ex. DW-2/X2 is not notarized. He stated that he put his thumb impression on the Will at the registrar office.
41. The DW-3 brought the original record of the Will dated 27.04.1996, which was registered on 21.08.1996. The photocopy of the registered Will is Ex. DW-3/A.
42. The DW-4 is the Patwari of Village Chandi (Rohtak). He brought the summoned record i.e. original mutation/Intekal Register against Mutation No. 6676-A. He exhibited the certified copy of the same as Ex. PW-4/1.
He stated in his cross-examination that the entry at the point Y-Y1 was made by Rajesh Patwari on 23.06.1991 (incorrectly typed it should be 23.06.1999 as per Ex. DW-4/1). This court has also made the relevant endorsement/correction on the cross-examination of DW-4/4 in order to avoid confusion in future by exercising powers under Section 152 CPC for correction of clerical mistakes.
Bishambar Lal Kapoor V. Om Prakash & Ors Page No.17 of 40
43. Findings on issues Issue no. 1: Whether there is any HUF of deceased Sunder Dass as alleged by the plaintiff if so, what is the share of the plaintiff in the suit?
The plaintiffs in the present case are the sons and grandson of late Sunder Dass Kapoor. The respondents are also his sons and grandsons. The pleadings as well as the memo of parties of the present suit show that the plaintiffs are only concerned with the HUF of late Sunder Dass Kapoor. He had 6 sons. As per the family tree i.e. Annexure A, his 6 sons have been shown. There is no mention of his daughters and his wife in the family tree i.e. Annexure A. Admittedly, late Sunder Dass Kapoor had a wife and 3 daughters. The name of his wife and his daughters have not been mentioned probably for the reason that the foundation of the case is the HUF property. The plaintiffs claim that the plaintiffs as well as the defendant are the coparceners of the HUF. The suit property was purchased from the HUF funds.
In the Para No. 23 of the plaint, the plaintiff averred that even otherwise Sunder Dass Kapoor passed away intestate and therefore, even if it is considered to be self acquired property of Late Sunder Dass Kapoor, the plaintiff no. 1 to 5 are each entitled to 1/6 share by the law of succession therein. In the prayer clause, a Bishambar Lal Kapoor V. Om Prakash & Ors Page No.18 of 40 preliminary decree has been sought without mentioning the shares of each plaintiffs and defendant.
Devolution by survivorship and common hotchpot
44. In the plaint, it is averred that the plaintiffs no. 1 to 5 and the defendants are entitled to 1/6th share each. It is to be noted here that with the amendment in the Hindu Succession Act in 2005, daughters have equal rights as sons in HUF. However, the present case is before the amendment of 2005. The succession in the present case was opened in the year 1996. Thus, in the present suit, the court has to see whether there was any H.U.F at the time of opening of succession following the death of Sunder Dass Kapoor. Apparently, the H.U.F property devolves by survivorship. It means when a coparcener dies, his share in the property automatically passes on to the surviving coparceners. In HUF, sons, grand sons, great grand sons are considered to be the coparcener before the amendment in the Hindu Succession Act. The pleadings of the present case delineate that the plaintiffs have filed the suit seeking devolution of property on the basis of survivorship as they have not shown the wife and daughters of Sunder Dass Kapoor as his legal heirs. Non-impleadment of the wife and daughter of Sunder Dass Kapoor shows that the plaintiff have based their suit solely on the concept survivorship.
45. Apparently, there was no Bank amount of HUF. There Bishambar Lal Kapoor V. Om Prakash & Ors Page No.19 of 40 is no legal deed that contains details of HUF members. There is no other documents showing constitution of H.U.F on the record. It is true that the Bank account and legal documents are not mandatory to show the H.U.F, however this court has to see from the pleadings and evidence on record as to whether any H.U.F of Sunder Dass Kapoor existed or not? The plaintiffs have not produced any evidence to show that there was a common hotchpot where all the members of H.U.F contributed by abandoning their separate claim. In a common hotchpot, the individual properties and self acquired individual earning of the joint Hindu family become joint family property and this hotchpot is the preliminary evidence of existence of the H.U.F. Looking at the evidence of the present case, admittedly, the plaintiff No. 1 was working in the army. The other one i.e. Plaintiff No. 5 was running his business in Jaipur. The plaintiffs have not shown as to how they had contributed to the common hotchpot. They have not produced a single document that there was the common hotchpot amongst the coparceners of the family. They have failed to produce the single document in form of any bank transfer, any receipt that the money was contributed to the common hotchpot, which was used by Sunder Dass Kapoor to purchase the movable or immovable properties in his name. Not a single transaction is shown to have taken place in the common hotchpot.
Bishambar Lal Kapoor V. Om Prakash & Ors Page No.20 of 40
46. The plaintiffs, in his cross-examination, stated that he joined employment at Delhi in the year 1958. His total salary was 3,400/- per month. He had a plot in his name at Devli extention, Delhi, measuring 150 sq yards. He purchased that plot after retirement. His wife had a plot in Delhi. She purchased that house in the year 1996. He does not know when his father shifted to Delhi.
47. He again stated that his father shifted around 1989 and died in the year 1996. His father continued to live at Chandi Village before shifting to Delhi and engaged in agricultural activities. When his father was living in Chandi Village, the plaintiff No. 1 had been living in Delhi. There is no evidence on record that he was paying anything to his father or his brothers. The other plaintiff No. 5 Darshan Lal started his carrier as a tailor in the year 1960. When the plaintiff was living in Delhi, the plaintiff No. 5 was living in Rohtak. In absence of evidence of common hotchpot, it cannot be said that Sh. Sunder Dass Kapoor constituted a Hindu Undivided family. In fact, the evidence demonstrates that his sons were earing their livelihood from different professions and were bringing up their respective families.
In the matter of Surender Kumar v. Sh. Dhani Ram and other [18th Janurary, 2016], the Hon'ble Delhi High Court held as follows:
Bishambar Lal Kapoor V. Om Prakash & Ors Page No.21 of 40 " The only way in which a Hindu Undivided Family/joint Hindu family can come into existence after 1956 (and when a joint Hindu family did not exist prior to 1956) is if an individual's property is thrown into a common hotchpotch. Also, once a property is thrown into a common hotchpotch, it is necessary that the exact details of the specific date/month/year etc of creation of an HUF for the first time by throwing a property into a common hotchpotch have to be clearly pleaded and mentioned and which requirement is a legal requirement because of Order VI Rule 4 CPC which provides that all necessary factual details of the cause of action must be clearly stated. Thus, if an HUF property exists because of its such creation by throwing of self-acquired property by a person in the common hotchpotch, consequently there is entitlement in coparceners etc to a share in such HUF property".
Thus, the issue no. 1 is decided against the plaintiffs by holding that there was no HUF of deceased Sunder Dass Kapoor as alleged by the plaintiffs. In absence of HUF, the property would devolve as per Hindu Succession Act. However, it needs to be noted here that the plaintiffs have not given any details of other legal heirs in their plaint. They have not even disclosed the names of the other legal heirs of Sunder Dass Kapoor.
Issue no. 2:- Whether Sunder Dass Kapoor left any legal or valid will dated 27th April, 1996? If so, to what effect? OPD."
48. Before coming to the merits of this issue, let me discuss the law as to how the Will is proved and what are the Bishambar Lal Kapoor V. Om Prakash & Ors Page No.22 of 40 suspicious circumstances surrounding the execution of Will.
" Law on execution of Will:
"63. Execution of unprivileged Wills - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, (or an airman so employed or engaged) or a mariner at sea, shall execute his will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has been the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the directions of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
49. The mode of proof of unprivileged will has been provided under Section 68 of the Indian Evidence Act 1872. For better understanding of this section, the same is reproduced here as under:
"68. Proof of execution of document required by law Bishambar Lal Kapoor V. Om Prakash & Ors Page No.23 of 40 to be attested - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
(Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied)."
Case Law on Execution of Will and its proof thereof:-
In the matter of Savithri v. Karthyayani Amma, (2007) 11 SCC 621 : 2007 SCC OnLine SC 1257 at page 629 "The legal requirements in terms of the said provisions are now well settled. A will like any other document is to be proved in terms of the provisions of the Succession Act and the Evidence Act. The onus of proving the will is on the propounder. The testamentary capacity of the testator must also be established. Execution of the will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the will. It is required to be shown that the will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exists suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before it can be accepted as genuine."
In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao [(2006) 13 SCC 433 : (2006) 14 Scale 186], the Hon'ble Supreme Court held:
Bishambar Lal Kapoor V. Om Prakash & Ors Page No.24 of 40 "32. Section 63 of the Succession Act lays down the mode and manner of execution of an unprivileged will. Section 68 of the Evidence Act postulates the mode and manner of which proof of execution of document which is required by law to be attested. It in unequivocal terms states that execution of will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence.
Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.
33. The burden of proof that the will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the will and that he had put his signatures out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. (See Madhukar D. Shende v. Tarabai Aba Shedage [(2002) 2 SCC 85] and Sridevi v. Jayaraja Shetty [(2005) 2 SCC 784] .) Subject to above, proof of a will does not ordinarily differ from that of proving any other document."
Bishambar Lal Kapoor V. Om Prakash & Ors Page No.25 of 40 Law on suspicious circumstances:-
Further in the matter of H. Venkatachala Iyengar [AIR 1959 SC 443] , the Hon'ble Supreme court held that the following circumstances were held to be relevant for determination of the existence of the suspicious circumstances: (Mrudula Jyoti Rao case [(2006) 13 SCC 433 : (2006) 14 Scale 186] , SCC pp. 447-48, para 34)
"34. ... (i) when a doubt is created in regard to the condition of mind of the testator despite his signatures on the will;
(ii) when the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) where propounder himself takes prominent part in the execution of will which confers on him substantial benefit."
50. Reverting back to the facts of the present case, the defendants have relied upon the Will dated 27.04.1996. The will was later on registered after the death of Sh. Sunder Dass Kapoor on 21.08.1996. Apparently, the registration of Will is not going to make it authentic. This court has to examine whether Sh. Sunder Dass Kapoor had voluntarily executed the Will without any undue influence, coercion and with sound disposing mind. The plaintiffs have challenged the Will on the ground that the will was forged and no such will had ever been executed by Sunder Dass Kapoor.
Bishambar Lal Kapoor V. Om Prakash & Ors Page No.26 of 40 Baqalam Khud (Urdu):
51. The defendants challenged the Will on the ground that Sunder Dass Kapoor used to sign as "Sunder Dass Baqalam Khud", whereas in the Will, his signatures are as Sunder Dass Kapoor. To substantiate this argument, Ld. counsel for the plaintiff has relied upon the Vakaltnama signed by late Sh. Sunder Dass Kapoor on 08.01.1973, wherein he had made his signatures as "Sunder Dass Baqalam Khud". It is stated that in the impugned Will dated 27.04.1996, he made his signatures as "Sunder Dass Kapoor".
52. It is further argued that the bare looking at the admitted signatures and the disputed signatures, there has been apparent variations in forming the disputed signatures.
53. It is to be observed here that admittedly late Sunder Dass Kapoor used to write in Urdu. He did not write his Will by his own hands. As per the attesting witness i.e. DW-2 Suresh Mahawar, he wrote down the impugned Will sitting in front of late Sunder Dass Kapoor as per his wishes. It has not been challenged that the impugned Will is not in the handwriting of Suresh Mahawar.
54. As per the testimony of attesting witness, late Sunder Dass Kapoor put his signatures at two places. The Will delineates that the agricultural land at Chandi Village was given to all 6 sons Bishambar Lal Kapoor V. Om Prakash & Ors Page No.27 of 40 in equal shares. However, the suit property was given to his two sons namely Om Prakash and Subhash Chand in equal shares. Admittedly, at the time of writing of the Will, Sunder Dass Kapoor used to live with his son namely Vijay Kumar Kapoor. The attesting witness used to visit Vijay Kumar House and used to talk with Sunder Dass Kapoor. Sunder Dass Kapoor called him and asked him to write down his Will. The witnesses has specifically stated that Sunder Dass Kapoor put his signatures in his presence and he put his signatures in presence of Sunder Dass Kapoor.
55. It is to be noted here that a person's signatures can change noticeably with age and often become less fluid due to factors such as decreased muscle control, changes in dexterity, or declining vision, resulting in slower, shakier, or more inconsistent strokes. This is particularly noticeable in later stages of life when health issues may affect hand mobility and coordination. So, the individual may experience more inconsistency and increased variation in their signatures with time due to age related issues.
The hand writing expert i.e. PW-2 has apparently not considered the time gap and old age of the testator while examining the disputed signatures. In his cross-examination, the hand-writing expert admitted that there was difference of 27 years between the disputed and comparative signatures, and it is rather better to have comparative signatures of the date closer to the date of disputed Bishambar Lal Kapoor V. Om Prakash & Ors Page No.28 of 40 signatures. The plaintiffs have not produced any written or signed document of Sunder Dass Kapoor written near to the date of execution of the Will to show that in the year 1996 or few years back to the execution of impugned Will, Sh. Sunder Dass Kapoor would sign as "Sunder Dass Baqalam Khud". The documents relied upon by the plaintiffs to show the signatures of Sunder Dass Kapoor are of the year 1973 and the impugned will is of the year 1996. It is to be noted here that Sunder Dass Kapoor was not a person, who used to write frequently. As per the averments of plaint and evidence on record, Sh. Sunder Dass Kapoor was an expert mechanic and was an agriculturist. He earned his livelihood from his skill and from his hard work in the agricultural fields. There is no evidence on record to suggest that he used to write a lot. He was not in a profession, where writing or making signatures was a daily routine. The signatures of a person who does not write often varies a lot with age. Hence, the testimony of the handwriting expert can not be relied upon for the reason that the time gap between the comparative and impugned disputed signatures was very long. Further, the plaintiff has not filed any document near to the year 1996 to show that Sunder Dass Kapoor was still signing as "Sunder Dass Baqalam Khud". The testimony of handwriting expert is of no help to the plaintiffs. As a result, the plea of "
Baqalam Khud" is of no help to the plaintiffs.
Bishambar Lal Kapoor V. Om Prakash & Ors Page No.29 of 40 Plaintiffs used the impugned Will dated 27.04.1996
56. The plaintiff No. 1 in his cross-examination has admitted that he had sold his share of agricultural land of village Chandi. Similarly, the D-5 also sold his share in the agricultural land of village Chandi. The agreement to sell is Ex. D-1. In the said agreement, the plaintiff No. 1 has mentioned that he got the right in the agricultural land from his deceased father on account of Will of his father namely Sunder Dass Kapoor and had got full rights of his shares in the agricultural land. Further, the entry in the revenue record (Intekal) is Ex. PW-1/D-3. As per Ex. PW-1/D3, all 6 sons of Sunder Dass Kapoor became the joint owner in the agricultural land after the death of Sunder Dass Kapoor on the basis of Will dated 27.04.1996. Ld. counsel for the defendants submits that as per Ex. DW-4/1 (Intekal), there has been correction at the point Y to Y1 regarding date of impugned Will and this correction makes the revenue entries unauthentic and unreliable.
It is to be noted here that the correction in the column no. 13 of Intekaal register (Revenue entries) is not going to touch upon the validity of the Will. At most, it would lead to rejection of Intekal (Revenue entries), but this intekaal was relied upon by the plaintiffs when they sold their respective shares of agricultural land to the 3rd party. Admittedly, the plaintiffs have not filed any suit for cancellation of mutation done in favour of all sons of Sunder Dass Bishambar Lal Kapoor V. Om Prakash & Ors Page No.30 of 40 Kapoor including the plaintiffs No. 1 and 5 based on the impugned Will. In fact, the plaintiffs are the beneficiary of the mutation of agricultural land in their favour and they utilized that mutation to sell their part of agricultural land. Had there been no Will, then the property would have been devolved upon all legal heirs of late Sunder Dass Kapoor including his wife and daughters. When the plaintiffs were selling the shares of their mother and sisters, having relied upon the impugned Will, they kept silent regarding the mutation entries. Once the plaintiffs have sold their part of agricultural land, then they would not be allowed to say that mutation was incorrect. The agreement to sell and sale deed specifically contain that the plaintiffs No. 1 and 5 became the owner on the basis of the Will. Once the plaintiffs having relied upon the Will and sold the property, they are not supposed to say that the will was forged.
It is to be noted here that the original Will was registered with the registrar. During cross-examination of DW-2, the photocopies of the Will were shown to the attesting witness, who stated that the will was also notarized. He stated that the copy of the Will i.e. Ex. PW-2/X1 was notarized, whereas the copy of the Will Ex. PW-2/X2 was not notarized. Here, it is relevant to observe that once the original Will has been filed before this court, the existence of other copies of the Will become inconsequential specifically in the light of the fact that the plaintiffs themselves Bishambar Lal Kapoor V. Om Prakash & Ors Page No.31 of 40 relied upon the original Will. The contents and the signatures on the original Will as well as on the copies are the same. It is reiterated here that correction in the mutation is immaterial for the use of impugned Will by the plaintiffs. The plaintiffs, after having sold the property on the basis of the Will, did not challenge the mutation. During the cross-examination of PW-1, he stated that at the time of mutation, he was in touch with the revenue authorities. The relevant extract of his cross-examination is as follows:
"Q. Did you tell the Patwari the name of the legal heirs inclusive of the sisters or not?
A. I also told the names of my sisters.
Q. Did you tell the Patwari the land in the name of
your deceased father was H.U.F land?
A. I did not convey to Patwari that the land in the
name of my father was H.U.F land"
The aforesaid answers given by the plaintiff no. 1 show that at the time of mutation, the plaintiff was in touch with the revenue authorities and knew exactly what was being recorded in the revenue record.
At this stage, it is relevant to refer to the judgment of the Hon'ble Supreme Court in the matter of Prem Lata v. Naseeb Bee and Ors. MANU/SC/0355/2022, wherein the Hon'ble Supreme court held that the defendants cannot be permitted to approbate and reprobate.
Further, the Will is challenged on the ground that the attesting witness has made contradictory statements in his cross-
Bishambar Lal Kapoor V. Om Prakash & Ors Page No.32 of 40 examination and did not support the case of the defendants during his cross-examination. Ld. counsel for plaintiffs has relied upon number of judgments to show that burden for removal of suspicious circumstances is the propounder of the Will. Ld. counsel relied upon the judgment of the Hon'ble Supreme court in the matter of Jagdish Chand Sharma v. Narayan Singh Saini (dead) through LRs and Ors AIR 2015 Supreme Court 2149, wherein the Hon'ble Supreme court held as under:
36. That a propounder has to demonstrate that the Will was signed by the testator and that he was at the relevant time in a sound disposing state of mind and that he understood the nature and effect of the disposition and further that he had put his signature to the testament on his own free will and that he had signed it in presence of two witnesses who had attested it in presence and in the presence of each other, in order to discharge his onus to prove due execution of the said document was reiterated by this Court amongst others in Surendra Pal and Ors. (supra) It was held as well that though on the proof of the above facts, the onus of the propounder gets discharged, there could be situations where the execution of a Will may be shrouded by suspicious circumstances such as doubtful signature, feeble mind of the testator, overawed state induced by powerful and interested quarters, prominent role of the propounder, unnatural, improbable and unfair bequests Bishambar Lal Kapoor V. Om Prakash & Ors Page No.33 of 40 indicative of lack of testator's free will and mind etc. In all such eventualities, the conscience of the Court has to be satisfied and thus the nature and quality of proof must be commensurate to such essentiality so much so to remove any suspicion which may be entertained by any reasonable and prudent man in the prevailing circumstances. It was propounded further that where the caveator alleges undue influence, fraud and coercion, the onus, however, would be on him to prove the same, and on his failure, probate of the Will must necessarily be granted if it is established that the testator had full testamentary capacity and had in fact executed it validly with a free will and mind.
37. In Jaswant Kumar (supra) this Court held that suspicion generated by the distrustful circumstances cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory when the Will was made or that those like the wife and children of the testator, who would normally receive their due share in the estate, were disinherited because the testator might have had seen reasons for excluding them. It was underscored that it was obligatory for the propounder to remove all legitimate suspicions before the document could be accepted as the last Will of the testator.
38. In Ravindra Nath Mukharji and Another (supra) this Court entertained the view that the, witnesses to the Will, if interested for the propounder is perceived to be a suspicious Bishambar Lal Kapoor V. Om Prakash & Ors Page No.34 of 40 circumstance, the same would lose significance if the document is registered and the Sub Registrar does certify that the same had been read over to the executor who on doing so admits the contents.
Apparently, there are some contradictions in the testimony of attesting witness such as he told that he did not know the other attesting witness prior to execution of Will, whereas in his evidence affidavit, he had stated that he knew the other attesting witness prior to execution of Will. He made contradictions with regard to the timing of arrival of other attesting witness. The attesting witness has also forgotten the name of the other attesting witness. On these contradictions, the plaintiffs want to discredit the attesting witness.
This court has carefully gone through the cross- examination of the attesting witness. It is to be noted here that the DW-2 was cross-examined in the year 2023, whereas the Will was written down in the year 1996. The witness was cross-examined after 27 years from the date of execution of the will. The twenty seven years is a long time. However, despite the lapse of such a long period of time, the attesting witness has given the requisite details as to how the impugned Will was executed. The contradiction in his testimony is on account of the long period of 27 years. It needs mentioning that Humans have limitations like memory lapses, which can affect their ability to recall information Bishambar Lal Kapoor V. Om Prakash & Ors Page No.35 of 40 accurately or timely and thus, minor contradictions need to be considered normal and do not necessarily discredit the witness. Due to the said time gap, it is but natural that he forgot the name of other attesting witness and became confused on his name as Varun or Arun. Further, it is natural for him not to identify the signature of Sunder Dass Kapoor during the cross-examination on the ground that the same were in Urdu. When he does not know Urdu, he is not expected to identify the signatures merely by looking at the signatures. Being the attesting witness, he has deposed that the testator signed the Will in his presence and he signed the Will in presence of testator. Further, the witness has deposed very naturally in his cross-examination. Hence, there is nothing on record to discredit the testimony of the attesting witness. The conscience of the court has been satisfied and thus the nature and quality of proof to show the genuinity of the Will remove the suspicious circumstances surrounding the Will. The ratio of case law relied upon by the Ld. counsel for the plaintiffs are not applicable to the facts of the present case.
Thus, it is held that Sunder Dass Kapoor left legally valid Will dated 27.04.1976.
57. Issue no. 3:- Whether the suit is not maintainable because of minors have been made party without guardian?
In response to the para no. 3 of preliminary objection Bishambar Lal Kapoor V. Om Prakash & Ors Page No.36 of 40 that the minors have been made parties without guardian, the plaintiffs did not aver a single word in their replication. In the written statement, the real age of the D-6, 7, 9 and 11 have not been shown. It has been written that they are minors. During evidence, the defendants have not led any evidence to show the actual age of the defendants No. 6, 7, 9 and 11 on the date of filing of the suit. In absence of any evidence, it cannot be said that the D-6, 7, 9 and 11 were minors on the date of filing of the suit. Hence, in absence of any evidence, it is held that the suit can not be dismissed on the ground that the defendants were minor.
58. Issue No. 4:- Whether the suit has not been correctly valued for the purposes of appropriate court fees and jurisdiction?
The plaintiff has valued the suit as Rs. 505000/- for the purpose of jurisdiction. It would thus be noted that in a suit for partition of the suit property in possession of the plaintiff, be it actual or constructive, a fixed court fees is paid. The rule regarding the valuation is that the plaintiff needs to value the suit separately for the purpose of jurisdiction and court fees.
For the purpose of jurisdiction, the plaintiff has valued the suit as Rs.505000/- and filed the fixed court fees on the ground that the plaintiffs were in possession of the suit property.
For the purpose of court fees, the averments of the plaint are generally considered to be true unless the defendant Bishambar Lal Kapoor V. Om Prakash & Ors Page No.37 of 40 shows by evidence that valuation for the purpose of jurisdiction and court fees are not correct.
In the present case, the defendants have not produced any evidence to show that the suit was not properly valued. Mere counter-averments in the written statement by the defendants are not sufficient to say that the suit was not valued properly for the purpose of jurisdiction and court fees. It is also true that the plaintiffs claim to be in constructive possession and their possession, be it actual or constructive, needs to be seen from the averments of the plaints only unless otherwise is proved. Thus, the defendants have not proved contrary to what has been claimed by the plaintiffs with regard to jurisdiction and court fees.
Thus, the suit has been properly valued for the purpose of court fees and jurisdiction. This issue is accordingly decided in favour of the plaintiffs against the defendants.
59. Issue no. 6 Whether the suit is bad for non-
joinder of widow of late Sunder Dass Kapoor?
It appears to this court that the reason for non-joining the wife of late Sunder Dass Kapoor would be that the plaintiffs filed the suit for HUF. They wanted to inherit the property by way of survivorship, and that may be the reason for non-joining the wife and daughters of Late Sh. Sundar Dass Kapoor. Reading the plaint as a whole shows that the plaintiffs filed the suit for partition, Bishambar Lal Kapoor V. Om Prakash & Ors Page No.38 of 40 claiming to be the coparceners. However, in the pleadings, the plaintiffs state that even otherwise late Sunder Dass Kapoor died intestate and all the plaintiffs and defendants through their respective branches are therefore entitled to get the suit property in equal shares. If the plaintiffs take the plea of intestate succession under Hindu Succession Act, then the wife and daughters of late Sh. Sunder Dass Kapoor become necessary parties in the present suit. At least, their shares need to be written in the plaint. However, neither the wife nor the daughters were impleaded. Even, their names have been concealed in the pleadings by the plaintiffs.
Therefore, the necessary parties have not been joined in the suit for the relief of intestate succession. The whole suit property is sought to be divided under intestate succession amongst the male coparceres of Sunder Dass Kapoor. Thus, the suit is bad for non-joinder of necessary parties. This issue is accordingly decided against the plaintiffs.
Issue No. 5 and 7 (Reliefs) Relief:
60. In view of the findings on the issue no. 1, issue no. 2 and issue no. 6, no HUF of deceased Sunder Dass Kapoor; that Sunder Dass Kapoor left legal and valid Will; and that the suit is bad for non-joinder of necessary parties, the suit for partition and permanent injunction is dismissed.
Bishambar Lal Kapoor V. Om Prakash & Ors Page No.39 of 40
61. No order as to the costs. Decree sheet be prepared accordingly.
62. File be consigned to Record Room as per rules.
Digitally signed by RAJESH RAJESH MALIK
Announced in open Court MALIK Date:
2024.11.21
Dated: 21.11.2024
16:24:13 +0530
(RAJESH MALIK)
District Judge-06 (Central)
Tis Hazari Courts
Bishambar Lal Kapoor V. Om Prakash & Ors
Page No.40 of 40