Delhi District Court
Anita Rani vs Chander Kanta on 11 May, 2023
In the court of Dr. Rakesh Kumar: Additional District Judge-03
of Central District at Tis Hazari Courts, Delhi
CS No. 1611/2018
CNR No. DLCT01-006578-2018
In the matter of :-
Anita Rani
D/o Late Ram Nath
R/o 5864/B-4,
Gali no.6, Ground floor,
Dev Nagar, Karol Bagh,
New Delhi-110005. ...........Plaintiff.
Versus
1. Chander Kanta
W/o Hem Chand
D/o Late Ram Nath
R/o 23-B, Baghwan Nagar,
Delhi-110014
2. Urmila
D/o Late Ram Nath,
R/o 5864/B-4, Second floor,
Gali no.6, Dev Nagar, Karol Bagh,
New Delhi-110005.
3. Meena
W/o Late Kaushal Singh
4. Meghali
D/o Late Kaushal Singh
Grand D/o Late Ram Nath
5. Pallavi
D/o Late Kaushal Singh
Grand D/o Late Ram Nath
6. Deepali
D/o Late Kaushal Singh
Grand D/o Late Ram Nath
CS No. 1611/2018 Anita Rani v. Chander Kanta & Ors. Page no. 1 / 18
7. Lakshita
D/o Late Kaushal Singh
Grand D/o Late Ram Nath
Defendants no.3-7 All R/o 5864/B-4
Gali no.6, Ground Floor,
Dev Nagar, Karol Bagh, Delhi-05
8. Neetu Kapil
D/o Munni Lal Kapil
Grand D/o Late Ram Nath
9. Manish Kapil
S/o Munni Lal Kapil
Grand S/o Late Ram Nath
10. Kushant Kapil
S/o Munni Lal Kapil
All R/o 8952, Shidi Pura,
Karol Bagh, New Delhi. .....Defendants
Date of institution : 15.05.2018
Reserved for judgment : 06.05.2023
Date of decision : 11.05.2023
SUIT FOR PARTITION, POSSESSION, PERMANENT INJUNCTION
AND DECLARATION
JUDGMENT
1. This is a suit for partition, possession, declaration and permanent injunction in respect of property, namely, 5864, Block-4B, Gali no.5-6, Dev Nagar, Karol Bagh, New Delhi-110005.
2. Facts are that Ram Nath was the owner of property bearing no.5864, Block-4B, Gali no.5-6, Dev Nagar, Karol Bagh, New Delhi- 110005 admeasuring about 77 sq. yds, consisting ground floor, first floor, second floor, third floor along with terrace (hereinafter referred to as 'the CS No. 1611/2018 Anita Rani v. Chander Kanta & Ors. Page no. 2 / 18 suit property') who died on 21.10.2016; that Late Ram Nath had four daughters, namely, Jai Kumari, Chander Kanta, Urmila, Anita Rani and one son, namely, Khushal Singh; that Jai Kumari and Khushal Singh had died during the lifetime of Ram Nath; that the legal heirs of Late Khushal Singh (defendants no.3-7) are residing at the ground floor of the suit property; that the first, second and third floors were let out by Late Ram Nath during his lifetime and on his directions, the plaintiff was collecting rent from the tenants; that the defendant no.2 is also residing in one room at the second floor of the suit property; that the plaintiff came to know that the defendants no.1-3 are trying to get the tenanted portions vacated from the tenants and want to sell the property without the consent of the plaintiff; that the plaintiff being legal heir of Late Ram Nath has 1/5th share in the suit property and requested for partition of the suit property by metes and bounds but the defendants have refused to do so, hence, this suit.
3. The defendants no.1 and 2 contested the suit by filing separate written statement of their defence wherein took common preliminary objections to the effect that the plaintiff did not come to the Court with clean hands and concealed material facts; that the suit is bad for non- joinder of necessary parties. In reply on merits, it is commonly contended by the defendants no.1 and 2 that the father of the parties had made a Will dated 20.02.2008 in which he mentioned the beneficiaries of the suit property, namely, Chanderkanta, Urmila, Anita Rani and his only son Khushal Singh but the name of daughter Jai Kumari is not mentioned, so, the legal heirs of Jai Kumari are not entitled for right, title or interest in the suit property; that after the death of Late Ram Nath, the plaintiff has collected the rent amount of around Rs.6,76,000/- and has never given a CS No. 1611/2018 Anita Rani v. Chander Kanta & Ors. Page no. 3 / 18 single penny to the defendants; that Late Ram Nath had savings in the bank account of around Rs.1,00,000/- which has been withdrawn by the plaintiff without informing the defendants. Other contentions mentioned in the plaint are denied and pray for dismissal of the suit.
4. The defendants no.3-7 also contested the suit by filing joint written statement of their defence wherein took preliminary objections to the effect that the plaintiff has concealed material facts; that the plaintiff is not entitled to any relief of injunction and is hit by Section 41(i) of Specific Relief Act. In reply on merits, it is contended by the defendants no.3-7 that the father of the parties had made a Will bearing registration no.123, Book no.3 pages 148-151 dated 20.02.2008; that this Will has clearly partitioned and have created shares of the suit property among Chanderkanta, Urmila, Anita Rani and Late Kaushal Singh; that LRs of Jai Kumari are not entitled to any share; that after the death of Late Ram Nath, the plaintiff by way of force took over the possession of the Almirah of Late Ram Nath and also got hold of the Will, documents of property and ATM Card of the bank account and took away all the money out of the bank account of Late Ram Nath. Other allegations of the plaint are denied and pray for dismissal of the suit.
5. The defendants nos.8-9 have also filed separate written statements of their defence wherein commonly stated that the contents of the plaint are a matter of record; that if the property is partitioned by metes and bounds, defendants no.8-9 have no objection. It is denied that the plaintiff had requested for partition of the property by metes and bounds but the defendants had refused for the same.
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6. The defendant no.10 was served and appeared twice, however, he did not file any written statement and vide order dated 07.03.2023, he was proceeded ex-parte and his right to lead evidence was closed.
7. The plaintiff filed separate replications to the written statements of defendants no.1-7 wherein the contentions of the written statement are traversed and the averments of the plaint are reaffirmed. It is stated in the replications that father of the plaintiff was not in a good physical and mental health and the defendants no.1-3 have forged and prepared the alleged Will. It is denied that any Will dated 20.02.2008 was ever executed by Late Ram Nath.
8. On pleadings of the parties, following issues were framed on 08.04.2019:-
1. Whether the plaintiff entitled for a decree whereby declaring the plaintiff is entitled for 1/5th share in suit property i.e. bearing no.5864, Block-4B, Gali no.506, Dev Nagar, Karol Bagh, New Delhi-110005 measuring 77 sq. yards with consequent relief? OPP
2. Whether the plaintiff is entitled for a decree of permanent injunction as prayed in respect of suit property? OPD
3. Whether Late Shri Ram Nath had executed a Will dated 20.02.2008 and defendant nos. 1 & 2 are entitled for 1/4th each share of the suit property with consequential relief? OPD
4. Whether the defendant nos. 1 & 2 are entitled to receive her 1/4th each share of Rs.6,76,000/- which was collected by the plaintiff from the tenants of the suit property?
5. Whether the defendant nos. 1 & 2 are entitled to receive her each share 1/4th of amount of Rs. 1,00,000/- which was left by the father of the defendant nos. 1 to 3 and plaintiff in his Bank Account?
6. Relief.
9. To prove her case, the plaintiff examined herself as PW1 and tendered her evidence by way of affidavit Ex.PW1/A and relied on CS No. 1611/2018 Anita Rani v. Chander Kanta & Ors. Page no. 5 / 18 documents Ex.PW1/1 to PW1/8.
10. The defendants no.3-7 examined three witnesses. DW1 is Meena Kumari, the defendant no.3, who tendered her evidence by way of affidavit Ex.DW1/A and relied upon document Mark A and identified the signature of Late Ram Nath on the document Mark A. DW2 is Ashok Kumar who tendered his evidence by way of affidavit Ex.DW2/A and relied upon the document Mark A and Ex.DW3/2. DW3 is Dharmender Kumar, Dealing Assistant, Sub-Registrar-III who brought summoned record Ex.DW3/1 i.e. true copy of the Will.
11. I have heard counsel for the parties and perused the material available on record.
12. My issue wise findings are as follows:-
Issue nos. 1 and 3
-Whether the plaintiff entitled for a decree whereby declaring the plaintiff is entitled for 1/5th share in suit property i.e. bearing no. 5846, Block-4B, Gali no.506, Dev Nagar, Karol Bagh, New Delhi-110005 mearsuring 77 sq. yards with consequent relief?
-Whether Late Shri Ram Nath had executed a Will dated 20.02.2008 and defendant nos. 1 and 2 are entitled for 1/4th each share of the suit property with consequential relief?
13. Issues no.1 and 3 are being considered together being inter- connected. The onus to prove issue no.1 was placed on the plaintiff and issue no.3 on the defendant.
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14. To prove her claim, it is stated by PW1 Anita Rani, the plaintiff, in her affidavit that Late Ram Nath (father of the parties) was the owner of the suit property vide Release Deed (Ex.PW1/1) bearing registration no.51, Book no.1, Vol. no.6597, pages 151 to 153 dated 03.01.1990 and the site plan is Ex.PW1/2. It is further stated by PW1 that Late Ram Nath died on 21.10.2016, leaving behind four daughters and one son and the death certificate is Ex.PW1/3. It is further stated by PW1 that one son Khushal who was pre-deceased had left behind 5 legal heirs and one daughter who was pre-deceased had left 3 legal heirs and the death certificates annexed are Ex.PW1/4 and Ex.PW1/5. It is further stated by PW1 that parties to the suit are Hindu and governed by Hindu Law, so, the plaintiff has 1/5th share in the suit property and that when the plaintiff requested to partition the property by metes and bounds, the defendants refused to do so.
15. In the cross-examination, it is stated by the plaintiff/ PW1 Anita Rani as follows:
"....It is wrong to suggest that a Will was executed on 20.02.2008 by Shri Ram Nath and this Will was registered in the office of Sub-Registrar....It is wrong to suggest that I have the knowledge of the existence of the said Will and the said Will is in my keeping and I have concealed this fact from the Hon'ble Court intently. It is wrong to suggest that my father had excluded the LRs of Jaya Kumari in his Will and they are not entitled to any share.
....It is wrong to suggest that any Will was executed by my father. It is wrong to suggest that name of Jaya Kumari has been mentioned in the Will. Vol. No Will was executed by my father, hence no question arise to mention the name of Jaya Kumari... There are three tenants in the property. I am collecting the rent from two tenants and one tenant is depositing the rent in the Court as my father had instructed to the tenants to pay the rent to me. Before the death of my father, I was collecting the rent from tenants on behalf of my father...."
16. At the outset, I may notice here that the plaintiff is claiming partition in respect of the property left by her deceased father but she has CS No. 1611/2018 Anita Rani v. Chander Kanta & Ors. Page no. 7 / 18 not stated in her plaint under which law she is seeking partition. In the entire plaint, the plaintiff has nowhere stated which religion they are related to and which personal law is applicable to them. Although, in the affidavit of evidence, the plaintiff/PW1 has stated that they are Hindu and are governed by the Hindu Law but the plaintiff has not stated so in the plaint that they are Hindus and for seeking partition of the property left by their deceased father, the Hindu Succession Act, 1956 is applicable to them. It is the duty of the plaintiff to specifically state in the plaint that they are Hindu and also to state what Schools of Hindu Law are applicable to them and they are governed by Hindu laws for that they are seeking partition under the provisions of Hindu Successions Act and not of the Court to assume and presume from the names of the parties which religion they are related to or that under which law they are governed. In view of the above, I am of the clear view that the plaintiff has failed to specifically state the very basis of her claim in the plaint.
17. As noted above, the plaintiff has not stated in the plaint that they are Hindu though the plaintiff has stated in the affidavit of evidence that they are Hindu. It is well settled law that the plaintiff must first plead facts in the plaint and then prove the facts by adducing evidence. It is also well settled law that evidence beyond pleading should not be taken into consideration. If, there is a variance between the pleading and the evidence, the evidence beyond the pleading should not be taken into consideration and should be ignored. Since, the plaintiff has not pleaded in her plaint that they are Hindu and has only stated so in her affidavit of evidence, therefore, such facts mentioned in the affidavit of evidence cannot be taken into consideration for being beyond pleadings.
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18. The plaintiff has also not stated in the plaint nor proved in evidence that her father had died intestate. Although absence of such facts from the pleadings and the evidence are not fatal to the case of the plaintiff yet it is one of the circumstances against the claim of the plaintiff.
19. Again, it is in the cross-examination of the plaintiff that it was correct that she had never gone to the defendant's no.1 and 2 for partition. From the admission made by the plaintiff in her cross-examination, a doubt has been created against cause of action having been arisen for institution of the present suit.
20. The defence set up by the defendants except the defendants no.8- 10 is that Late Ram Nath had executed a Will during his lifetime whereby he had bequeathed the suit property in favour of his three daughters and one son and excluded his pre-deceased daughter, namely, Jai Kumari.
21. To prove their defence, DW1 Meena Kumari, the defendant no.3 has stated in her affidavit as follows:
"1. That my father-in-law had signed a registered Will in which he had excluded Jai Kumari from inheriting his property. The will was executed on 20.02.2008 by Sh. Ram Nath and this Will was registered before the office of Sub-Registrar which is located in Asaf Ali Road, Delhi. The will was registered vide registration no.123, Book No.III registered in 2008 from pages no.148 to 151. The Copy of the Will is Mark 'A'."
22. In her cross-examination, DW1 Meena Kumari, the defendant no.3 stated as follows:
"It is correct that my father in law was residing along with the plaintiff till his death. It is correct that my father in law was seriously ill for a long time. He was a patient of diabetes and before his death he was sick for CS No. 1611/2018 Anita Rani v. Chander Kanta & Ors. Page no. 9 / 18 three months......It is wrong to suggest that my father in law was seriously ill and on his instructions the plaintiff used to collect the rent from the tenants. (Vol. He was very well good mental health.)....The name of the all four daughters has been mentioned in the Will i.e. Mark A. It is correct that the Smt. Jai Kumari was pre-deceased from the Late Sh. Ram Nath.... It is correct that when Sh. Ram Nath had died, Manish was residing along with Late Sh. Ram Nath....It is also correct that name of the children of Late Jai Kumari are also not mentioned in the said Will.....I do not have the original Will. The original Will is in the possession of the plaintiff....I do not know who else visited the Registrar's Office at the time of registration of the Will. It is wrong to suggest that Sh. Ram Nath was seriously ill for last 10 years and he could not have visited the Registrar's Office for the purpose of registration of the Will. It is wrong to suggest that Will Mark A was not made by Sh. Ram Nath in his correct mental state and that is why the Will is silent on the factum of death of his wife and daughter.....The factum of existence of Will of Late Sh. Ram Nath had came to my knowledge after one year of his death..."
23. In the present matter, both the attesting witnesses to the Will were stated to have been died. However, to prove execution of Will, the defendants have examined DW2 Ashok Kumar son of one of the attesting witnesses, namely, Late Ram Prasad, who has stated in his evidence affidavit Ex.DW2/A as follows:
"1. That the name of my father was late Sh. Ram Prasad S/o late Sh. Chittar Mal R/o 3860, Tel Mandi Pahad Ganj, Delhi-110055.
2. That Mr. Ramnath Ji was a very close relative of my father i.e. Sh. Ram Prasad they both were Jija and Saale.
3. That I do not know the exact date but my father told me once that late Sh. Ram Prasad Ji had taken him to the office of Sub-Registrar for registration of his Will and my father was a witness to it.
4. That the Will which is exhibited as DW2/1 is the Will where at Point 'A' bears the signatures of my father. I had seen my father signed numbers of documents when I was in business with my father and the signatures on the Will at point 'A' are the exact signatures of my father. I can identify the signatures of my father at point 'A'."
24. In his cross-examination, DW2 Ashok Kumar stated as follows:
".....I visited the house of Late Sh. Ram Nath i.e. the suit property lastly when he was ill.....I have filed death certificate of my father along with my affidavit. At this stage, witness is shown his affidavit Ex.DW2/A and replied that he has not filed the death certificate of his father Late Sh. Ram Prashad.....My father was illiterate. Again said he knew little bit of Hindi only reading. (Vol. He could have signed in Hindi)....In the year 2008 it CS No. 1611/2018 Anita Rani v. Chander Kanta & Ors. Page no. 10 / 18 came to my knowledge in respect of the Will of Late Sh. Ram Nath when my father had returned after giving his witness in the said Will. I have never seen the said Will. I have never informed to any party of the suit in respect of the existence of any Will of Late sh. Ram Nath.....I am called by Smt. Meena i.e. defendant no.3 for deposing in the Court. Smt. Meena had never shown the Will to me. (Vol. It is shown to me by Mr. Hem Chand, husband of defendant no.2 today itself outside of the Court). The affidavit Ex.DW2/A was not prepared by me or on my instructions. (Vol. But it was in my knowledge)..."
25. For proving registration of Will, the defendants have examined DW3 Dharmender Kumar, Dealing Assistant, Sub-Registrar-III, 4/7, Asaf Ali Road, New Delhi-02 who produced the true copy of Will (Ex.DW3/1) and stated as follows:
"I am the summoned witness. I have brought the summoned record pertaining to document i.e. Will Ex.DW3/1 is the true and correct as per the record of my office. I have brought true copy of the Will as well."
26. What is the true legal position in the matter of proof of Wills? It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the CS No. 1611/2018 Anita Rani v. Chander Kanta & Ors. Page no. 11 / 18 requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by Will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the Will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the dispositions in the Will? Did he put his signature to the Will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of Wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. H. Venkatachala Iyengar v. B. N. Thimmajamma and others, AIR 1959 SC 443.
27. However, there is one important feature which distinguishes Wills from other documents. Unlike other documents the Will speaks from the CS No. 1611/2018 Anita Rani v. Chander Kanta & Ors. Page no. 12 / 18 death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in the support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. H. Venkatachala Iyengar (supra).
28. The Hon'ble Supreme Court in the case of Daulat Ram & others. v. Sodha & Others,AIR 2005 Supreme Court 233, has held as follows:-
"In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other."
29. Similar view has also been taken in Sridevi & Others v. Jayaraja Shetty & Others,AIR 2005 SC 780 which is as follows:-
CS No. 1611/2018 Anita Rani v. Chander Kanta & Ors. Page no. 13 / 18 "The propounder of the Will has to show that the Will was signed by the testator; that he was the relevant time in sound disposing state of mind; that he understood the nature and effect of dispositions and had put his signatures to the testament of his own free will and that he had signed it in the presence of the two witnesses who attested in his presence and in the presence of each other."
30. In the light law laid down in H. Venkatachala Iyengar's (supra), Daulat Ram's (supra) and Sridevi's (supra), in order to assess as to whether the Will has been duly executed, the propounder has to show that the Will was signed by the testator and that he has put his signatures on the Will of his own free will; that at the time of execution of the Will, he was in a sound disposing state of mind and understood the nature and effect of the dispositions. In the light of this settled position of law, I have to examine whether the Will under consideration had been duly executed and validly attested.
31. Defendant no.3 is the propounder of the Will, so, the burden to prove the due execution and attestation of the Will is on the defendant no.3.
32. It is important to note here that the original Will was never produced in the Court. The explanation tendered on behalf of the defendant is that the Will was in custody of the plaintiff. The plaintiff has not stated anything about the execution of Will in her plaint. The plaintiff has specifically denied the execution of the Will by her father.
33. DW1 Meena Kumari, the propounder of the Will has not stated anything in her affidavit of evidence regarding due execution and valid attestation of the said Will. DW2 Ashok Kumar, son of one of the attesting witnesses has also not stated a single word in his evidence CS No. 1611/2018 Anita Rani v. Chander Kanta & Ors. Page no. 14 / 18 regarding due execution and valid attestation of the said Will. There is no evidence at all on behalf of the defendants to prove due execution and valid attestation of the Will propounded by them.
34. As per the cross-examination of DW2 Ashok Kumar, he had never seen the said Will and he had also never informed to any party to the suit in respect of existence of the Will. DW2 was called by Smt. Meena (the defendant no.3.) for deposing in the Court, however, she had never shown the Will to him and the Will was shown to the witness only outside the Court on the day of his deposition and even the affidavit of his evidence was not prepared by him or on his instructions.
35. In the instant case, when both the attesting witnesses were not alive to prove the Will, the evidence of a scribe becomes very material. The propounder of the Will has not examined the scribe of the Will to prove the execution. The Will in question has been scribed in the English. It is not in the evidence of the propounder that the testator knew English at the time of making of Will. It is also not in the evidence that the contents of the Will were explained to the testator in the language known to him or that he had signed it after he understood the nature and effect of the dispositions and put his signature to the document of his own free will.
36. Further, it has neither been pleaded nor proved by the defendants that the testator of the Will i.e. Ram Nath was of sound mind when he executed the Will. In the response to the written statement, it has specifically been stated by the plaintiff in the replication that father of the plaintiff and defendants was not in good physical and mental health since a long time. It is also stated by plaintiff that she was taking care of her CS No. 1611/2018 Anita Rani v. Chander Kanta & Ors. Page no. 15 / 18 father and was residing with him till his death. DW1 Meena Kumari has also admitted in her cross-examination that the testator was residing along with the plaintiff till his death. DW1 has also admitted that the testator was seriously ill for a long time. All these admissions made by the defendants also creates doubts about the disposing state of mind of the testator at the time of making the Will.
37. Furthermore, as per the defence set up by the defendants, Late Ram Nath had excluded Legal Representatives of his one daughter Jai Kumari (pre-deceased) from his property. Although the Will has not been proved by the defendants as per law applicable to prove the Will yet the Will can be seen against them as it has been filed by them.
38. The Will Ex.DW3/1 states, "I(testator) have three daughters namely (1) Smt. Chander Kanta wife of Shri Hem Chand, (2) Smt. Urmila wife of Shri Sidharth Kumar Gautam and (3) Miss Anita Rani who un-married and only son namely (4) Khushal Singh." Whereas, the testator had four daughters. It is well settled law that if the testator wishes to exclude any Legal Representative from his property then it should be by way of specifically stating so in the Will and that too, by giving reasons/grounds for such exclusion. But, the exclusion cannot be by not mentioning the name of the Legal Representative in the Will. I fail to understand how a reasonably prudent person can say that he has three daughters when actually he has four. It makes no difference if the fourth daughter pre-deceased the testator when she is survived by two sons and a daughter. Even, the son of the testator had also pre-deceased the testator. It is in the cross-examination of DW1 that Manish son of Late Jai Kumari was residing with the testator, therefore, no explanation has CS No. 1611/2018 Anita Rani v. Chander Kanta & Ors. Page no. 16 / 18 been tendered by the defendants to exclude the children of Late Jai Kumari from inheriting the property of the testator. This is also one of the suspicious circumstances surrounding the execution of the Will.
39. In view of the above discussion, since the plaintiff has failed to specifically state the necessary facts, as discussed above, in the plaint, the issue no.1 is decided against the plaintiff. The Will on which the defendants have based their claim is neither produced nor proved by the defendants. The defendants have also not proved due execution and valid attestation of the said Will, therefore, the issue no.3 is decided against the defendants and in favour of the plaintiff.
Issue no.2 Whether the plaintiff is entitled for a decree of permanent injunction as prayed in respect of suit property?
40. Onus to prove issue no.2 was placed on the defendants.
41. While deciding issue no.1, this Court has observed that a doubt has been created about the cause of action having been arisen for seeking partition and decided the main issue no.1 against the plaintiff. Once the main issue has been decided against the plaintiff she is also not entitled to the relief of permanent injunction, therefore, this issue is also decided against the plaintiff.
Issues no. 4 and 5 Whether the defendant nos. 1 & 2 are entitled to receive her 1/4th each share of Rs.6,76,000/- which was collected by the plaintiff from the CS No. 1611/2018 Anita Rani v. Chander Kanta & Ors. Page no. 17 / 18 tenants of the suit property?
Whether the defendant nos. 1 & 2 are entitled to receive her each share 1/4th of amount of Rs. 1,00,000/- which was left by the father of the defendant nos. 1 to 3 and plaintiff in his Bank Account?
42. Onus to prove issue no.2 was placed on the defendants.
43. There is no evidence at all on behalf of the defendants to prove these issues. Therefore, these issues are decided against the defendants and in favour of the plaintiff for want of evidence.
Relief:-
44. In view of my findings on issue no.1 and 2, the plaintiff is not entitled to the relief claimed in the plaint. This suit is dismissed. No order as to costs as the defendants have also failed to prove the defence set up by them. Decree-sheet would be prepared accordingly.
45. File be consigned to record room after due compliance.
Digitally signedAnnounced in the Open Court DR by DR RAKESH
KUMAR
RAKESH Date:
on 11th May, 2023 2023.05.11
KUMAR 17:42:22
+0530
(Dr. RAKESH KUMAR)
ADDITIONAL DISTRICT JUDGE -03
(CENTRAL) THC/DELHI /11.05.2023
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