Delhi District Court
S.L. Arya vs Sameer Chatterjee Anr on 22 January, 2025
-1-
IN THE COURT OF MS. GUNJAN GUPTA,
DISTRICT JUDGE-04, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
In the matter of
CS DJ 9968/2016
1. S.L. ARYA
S/o Late Shri J.R. Arya,
R/o B-1/19, First Floor,
Malviya Nagar,
New Delhi - 110017.
2. SHRI ASHISH RAJPAL
S/o Shri G.D. Rajpal,
R/o B-1/9,
Malviya Nagar,
New Delhi - 110017. .... Plaintiffs
VERSUS
1. SHRI SAMEER CHATTERJEE (SINCE DECEASED)
Through his legal heirs .
(i) Smt. Kalyani Chatterjee
W/o Shri Sameer Chatterjee
(ii) Sh. Agnibha Chatterjee
S/o Shri Sameer Chatterjee
Both R/o I-1600,
Chittaranjan Park,
New Delhi - 110019.
2. SMT. DEEPALI CHATTERJEE (SINCE DECEASED)
Through her legal heirs
(i) Sh. Sameer Chatterjee (since deceased)
Through his legal heirs
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
-2-
(a) Smt. Kalyani Chatterjee
W/o Late Shri Sameer Chatterjee
(b) Sh. Agnibha Chatterjee
S/o Late Shri Sameer Chatterjee
Both R/o I-1600,
Chittaranjan Park,
New Delhi - 110019.
(ii) LATE SMT. MALA Anita PAL (since deceased)
Through her legal heirs
(a) Ms. Nandita Sharma
D/o Late Smt. Mala Pal
R/o 11, Mathewson Street,
Maple, Ontario, Postal Code-L6A1B6.
(b) Sh. Abhijit Paul
S/o Late Smt. Mala Pal
USA Office :
2300 Route 1 North,
North Brunswick,
New Jersey 08902 USA.
Canada Office :
1055, Clark BLVD,
Brampton On L6T 3WA
Canada.
3. BRAHAM ARENJA
S/o Late Sh. L.R. Arenja,
R/o N-51, Panchsheel Park,
New Delhi - 110019. ....Defendants
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
-3-
Date of Institution : 12.09.2011
Date reserved for judgment : 06.12.2024
Date of judgment : 22.01.2025
DECISION : DISMISSED
SUIT FOR PARTITION & PERMANENT INJUNCTION
JUDGMENT
1. The present suit has been filed by the plaintiff for partition, of property ad-measuring 341 Sq yards bearing no. I-1600, Chittaranjan Park, New Delhi (hereinafter referred to as suit property), and permanent injunction against the defendants.
2. Brief back ground of the case :
2.1 The present suit is filed with respect to property originally owned by one Sh. P.C Chatterjee who was alleged to have died inte-state leaving behind three sons and daughters as his legal heirs. The Plaintiffs claim to have purchased the 1/3 undivided share of one of the legal heirs / daughter of Sh.
P.C. Chatterjee i.e. Smt. Mala Anita Pal. However, the plaintiffs only arrayed Sh. Sameer Chatterjee (son of Sh. P.C. Chatterjee) & Smt. Deepti Chatterjee (wife of a deceased son of Sh. P.C. Chatterjee) as defendants and Smt. Mala Anita Pal who was the alleged seller of 1/3 share of suit property to plaintiffs was not arrayed as party. Also, Smt. Ella Chatterjee, w/o. Sh. Sunil Chatterjee (deceased son of Sh. P.C Chatterjee) was not made a party.
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016 -4- 2.2. During the course of proceedings both the defendants expired and were substituted by their legal heirs. However, defendant no. 3 Sh. Brahm Arenja was added on his application u/o. 1 Rule 1 CPC. He claims to have become the owner of the undivided share of Smt. Deepti Chatterjee on the basis of the Will dt 19.09.2013 allegedly executed by her.
3. CASE OF THE PLAINTIFF:
Brief facts of the case as set out in the plaint are as under:
3.1. The suit property was originally owned by Sh.
P.C. Chatterjee (father of the defendants and Smt. Mala Anita Pal who died intestate on 29.01.1992 leaving behind Sh. Amresh Chandra Chatterjee (son), Sh. Sunil Chatterjee (son) Sh. Sameer Chatterjee(son) and Smt. Mala Anita Pal (daughter).
3.2. Shri Amresh Chandra Chatterjee (son) died on 30.05.1997, leaving behind his wife Smt. Deepti Chatterjee, as his only legal heir. Shri Sunil Chatterjee (another son of Late Shri Paresh Chandra Chatterjee) died on 29.01.2002 without leaving any legal heirs. Resultantly the suit property vested in defendants and Smt. Mala Anita Pal in equal shares with each legal heir having 1/3rd share each.
3.3 It is further averred that Smt. Mala Anita Pal agreed to sell her undivided 1/3rd share in the suit property to the plaintiffs herein by virtue of agreement to sell dated S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016 -5- 22.03.2007 for a total sale consideration of Rs.67,50,000/-, out of which a sum of Rs.20 lakhs was paid to her as earnest money and the remaining balance consideration was to be paid at the time of execution of the sale deed and other documents for transfer of ownership. However, Smt. Mala Anita Pal instead of completing the formalities for transfer of her 1/3 share in the suit property, in favour of plaintiffs, filed a suit being CS(OS) No.1295/ 2007 seeking a declaration that the agreement to sell dated 22.3.2007 be declared as null and void as plaintiffs have failed to pay the balance sale consideration of Rs.47,50,000/-. The said suit was subsequently compromised before the High Court Mediation and Conciliation Centre after settlement dated 25.03.2011 whereby Smt. Mala Anita Pal agreed to transfer her 1/3 share in suit property to the plaintiffs for the total sale consideration of Rs.67,50,000/- and in view of the said settlement, the suit was disposed off vide order dated 26.05.2011.
3.4 In pursuance of the said settlement and as per the Agreement to Sell dated 22.03.2007, Smt. Mala Anita Pal, transferred/sold her 1/3 share of lease hold rights, in the suit property, in favour of the plaintiffs vide GPA, Will, affidavit all dt 05.07.2011 (Will being attested on 06.07.2011) and possession letter dated 06.07.2011 for total sale consideration of Rs. 67,50,000/-. Thus, the plaintiffs became owners of 1/3 share of Smt. Mala Anita Pal and, S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016 -6- therefore, plaintiffs and defendants have become joint owners of the 1/3 share each in the suit property.
3.5. Immediately after the said settlement, the Plaintiffs approached the Defendants for partition of the property by metes and bounds and to deliver possession of their 1/3 share. The Defendants did not pay any heed to the requests of the plaintiffs and have not agreed to partition the suit property. Hence the plaintiff has filed the present suit for partition and permanent injunction.
4. CASE OF THE DEFENDANT NO.1:
The defendant no. 1 filed his Written Statement denying the averments made in the plaint and averred as follows:
4.1 Sh. Paresh Chandra Chatterjee was the recorded owner of the suit property. During his life time, he executed a registered Will dt 23.01.1987 thereby bequeathing the suit property to all his three sons in equal shares. In the said Will no share, right or interest was given to Smt. Mala Anita Pal as she was happily married in a good family. Thus, after the demise of Sh. Paresh Chandra Chatterjee on 29.01.1992, all his three sons became the joint owners of the suit property.
4.2 In the year 1992, it came to the notice of defendant no.1 that by taking advantage of the ill heath and mental instability of Sh. Paresh Chandra Chatterjee, Sunil Chattejee has managed to get his signatures on another Will S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016 -7- dt 22.12.1987 whereby Sunil Chatterjee and his wife Mrs. Ella Chatterjee were made the sole owners of the suit property. In the year around 1930, Sunil Chatterjee was settled in Scotland with his wife and only defendant no.1 and his wife had been taking care of his father.
4.3 In the year 1992, Sunil Chatterjee filed a probate petition w.r.t. Will dt 22.12.1987, before Hon'ble High Court of Delhi, wherein the defendant no.1 raised the question qua validity of the Will dt 22.12.1987. Thereafter the said case was withdrawn by Sunil Chatterjee.
4.4 Sh. Sunil Chatterjee died interstate on 29.01.2000 leaving behind his wife Ella Chatterjee as his only legal heir. His wife must be around 85 years old and is not traceable for a long time. Thus, in accordance with the First and the Original Will dt 23.01.1987, the defendant no.1 and 2 became the joint owners of the suit property.
4.5 Since Smt. Mala Anita Pal was not the joint owner in respect of 1/3rd share in the suit property, the alleged sale of her undivided share to the plaintiff is void.
She had no right to sell any share of the suit property to the plaintiffs and the documents executed by Smt. Mala Anita Pal in favour of plaintiffs are false documents executed fradulently and without any lawful authority.
4.6 The plaintiffs and Ms. Mala Anita Pal in collusion with each other have played fraud upon the answering defendant by stating that Late Sh. Paresh S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016 -8- Chandra Chatterjee died intestate.
4.7 The documents dt 27.03.2007, GPA and Will dt 05.07.2011 are false and no right/title has been transferred on the basis of these documents as also these are unregistered documents. The title in respect of share in the suit property still remains in the name of Smt. Mala Anita Pal, therefore, the plaintiffs have no locus-standi to file the present suit.
4.8 The defendant no. 1 and 2 are in possession of the suit property and the plaintiffs are neither in possession nor have right, title or interest in the suit property, hence the suit is liable to be dismissed.
5. CASE OF DEFENDANT NO. 2Written statement was also filed on behalf of defendant no. 2 through her Power of Attorney - Sh. Brahm Arenja (now defendant no.3) raising preliminary objections and stating on merits as follows:
5.1 Sh. Paresh Chandra Chatterjee was absolute owner of suit property. He died on 29.01.1992 leaving behind a registered Will dt 03.02.1987 bequeathing his property in favour of three sons. No share was given to Smt. Mala Anita Pal.
5.2 Sh. Amresh Chandra Chatterjee died on 30.05.1997 leaving the answering defendant as his only legal heir and thus the answering defendant became owner of 1/3 share in the suit property.
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016 -9- 5.3 Sunil Chatterjee also died intestate on 29.01.2000 leaving behind his wife Smt. Ella Chatterjee and hence, after the death of Smt. Sunil Chatterjee, Smt. Ella Chatterjee become owner of 1/3 share of the suit property. She was residing in Scotland and expired in June 2012 and thus her share in the suit property devolved upon Smt. Mala Anita Pal, defendant no.1 and defendant no.2 in equal shares as per Hindu Succession Act, 1956. Hence Sh. Sameer Chatterjee (defendant no.1) became entitled to 4/9 share and Ms. Deepti Chatterjee (defendant no.2) became owner of 4/9 share and Ms. Mala Anita Pal became owner of 1/9 share.
5.4 Since Ms. Mala Anita Pal is entitled to 1/9 share in the suit property, the plaintiff cannot have better share in the suit property than that of Ms. Mala Anita Pal and are at best entitled to 1/9 share.
6. CASE OF DEFENDANT NO. 36.1 W.S was also filed by defendant no. 3 who was impleaded as defendant vide order dt 27.03.2018 passed by Ld. Predecessor of this Court. In the W.S, the defendant no. 3 has claimed the right to undivided share of Smt. Deepti Chatterjee, in the suit property, on the basis of a Will dt 19.09.2013 allegedly executed by the deceased defendant no.2 in favour of defendant no. 3. It is averred that existence of the said Will was brought to his knowledge by one of the attesting witnesses to the said Will - Sh. Jayant S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 10 -
Ghadia. Further the defendant no.3 adopted the W.S of defendant no.2 stating that he was the SPA Holder of deceased defendant no. 2.
7. REPLICATION OF THE PLAINTIFFS TO THE W.S OF DEFENDANT NO.1 & 2 7.1 The plaintiffs filed separate replications to the W/S of defendant no. 1 and defendant no. 2, reiterating the contents of the plaint and denying the averments in the W.S of both the defendants. It is stated in the replications that all the three sons of Late Sh. Paresh Chander Chatterjee taking advantage of his old age in collusion with each other had perpetuated a fraud upon the daughter Ms. Mala Anita Pal by way of executing Will dt 23.01.1987. Smt. Mala Anita Pal being the daughter of deceased Paresh Chander Chatterjee, had all the right over the undivided suit property and to sell her one third undivided share to the plaintiff.
8. REPLICATION ON BEHALF OF DEFENDANT NO. 1TO THE W.S OF DEFENDANT NO.3 Defendant no. 1 also filed replication to the W.S of defendant no.3 and averred as follows:
8.1. The Will propounded by defendant no.3 is forged and fabricated. There was no occasion for Smt. Deepti Chatterjee to make any Will or even a Power of Attorney in favour of defendant no. 3, who is neither a relative nor even a friend of Smt. Deepti Chatterjee. There is no reason why Sh. Jayant Ghadia, who is a resident of S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 11 -
Delhi, was called to Kolkata merely for attesting a purported Will. It is not clear as to why Smt. Deepti Chatterjee had chosen defendant no. 3 for bequeathing her estate. It is stated that under no circumstances, Smt. Deepti Chatterjee could execute any Will in favour of defendant no. 3, when there were several of her own relatives present in Kolkata, who were very close to her and had good relations with her. However, instead of making Will in favour of relatives, who were looking after her, she made the alleged Will in favour of a person, who had no relation with her and was living in Delhi.
8.2. The alleged Will is not registered and even the signature on it are not of Smt. Deepti Chatterjee and the said Will is surrounded with various suspicious circumstances. Smt. Deepti Chatterjee was suffering from various ailments and even the ailments and death of her husband had also effected her health, understanding and mental status/condition drastically. The condition of Smt. Deepti was bad and she was not capable of understanding or resisting anything. She was not capable of making any testament or documents and was totally incapacitated.
8.3 Witness Sh. Jayant Ghadia, is already involved in numerous frauds and multiple litigation. Defendant no. 3 is acting in connivance with the plaintiffs and Mr. Jayant Ghadia who is the attesting witness of the Will of Smt. Deepti Chatterjee and they have together played a fraud.
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 12 -
8.4 The defendant no. 3 has no locus in the present matter as a person who is yet to establish his rights or share in the property can neither be a party nor could claim any share in the suit property.
8.5 The date of GPA on the basis of which W.S was filed on behalf of defendant no. 2 and Will is the same i.e. being 19.09.2013, still defendant no. 3 averred that he was not aware of any Will and it was Mr. Jayant Ghadia i.e. attesting witness, who informed him about the Will. Sh. Jayant Ghadia is not an independent witness but an accomplice of defendant no. 3.
8.6 The testatrix has also not assigned any reason for bequeathing her alleged share to defendant no.3 by leaving her own close relatives. The relations between defendant no.1 and defendant no.2 and defendant no.1 and his brother late Sh. Amresh Chandra Chatterjee were very good. In view of such good relations, it is hard to digest that defendant no. 2 would have bequeathed her share of the suit property in favour of defendant no.3. It is highly unbelievable as the purported Will has not been registered and allegedly witnessed by unknown people and strangers. Since it was not possible to get a forged and fabricated Will registered in the absence of and without presenting Smt. Deepti Chatterjee, the Will was not got registered.
8.7 GPA & Will both are dt 19.09.2013 whereas W.S was filed on behalf of defendant no.2 on 29.05.2014, S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 13 -
yet there is no mention of the Will in the W.S. Also Sh. Jayant Ghadia is a common witness in Agreement to sell dt 22.03.2007 and Will dt 19.09.2013.
8.8 Defendant no. 2 died intestate on 04.02.2015, therefore, her share has devolved upon the heirs of her predeceased husband, namely Late Sh. Amresh Chandra Chatterjee as per Section 15(1) of Hindu Succession Act and defendant no.3 cannot claim any alleged share in the suit property.
8.9 In the probate proceedings in respect of Will set up by Sh. Sunil Chatterjee, Ms. Mala Anita Pal had categorically stated that she had no objection if the said purported Will is acted upon. However, the defendant no.1 in his reply to the said probate petition had not only objected to and challenged the said Will set up by Sunil Chattejee, but also informed the court about the legal and valid will dt 23.01.1987 of Sh. P.C. Chatterjee in favour of his three sons and also filed the same on record and thus made everyone aware of the said Will dt 23.01.987. Sh. Sunil Chatterjee and Mrs. Mala Anita Pal had thought it expedient not to proceed further and accordingly abandoned the alleged claim meaning thereby that the Will dated 23.01.1987 stood proved automatically and prevailed being duly admitted by all the legal heirs of Sh. P.C. Chatterjee including Mrs. Mala Anita Pal as none of the Legal Heirs ever challenged the said Will. Even otherwise, the fact S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 14 -
remains that by giving an NOC in the said case, Mrs. Mala Anita Pal has duly admitted that Sh. P.C. Chatterjee has not died intestate, thus she did not acquire any derivative rights in the suit property. Therefore, in the absence of any share or rights in the suit property, she could not enter into any alleged agreement with the plaintiffs.
8.10 The plaintiff and Mr. Ghadia trapped Mrs. Mala Anita Pal and lured her for selling her alleged rights in the property for throw away prices. Instead of filing a suit for specific performance for perfecting their title, the plaintiffs filed the present suit.
8.11 Share of Ms. Ella Chatterjee would devolve upon the heirs of her husband in view of section 15(2) of the Hindu Succession Act i.e. the living brothers(s) and sister(s) of Sh. Sunil Chattejee i.e. defendant no.1 and Late Smt. Mala Anita Pal.
9. ISSUES On the basis of pleadings and documents on record, following issues were framed by Ld. Predecessor of this Court vide order dt 21.08.2018:-
(i) Whether the plaintiff is entitled to a preliminary decree of partition in favour of the plaintiff and against the defendants thereby declaring that the plaintiff is entitled to a 1/3rd equal share in property described as bearing no. I-1600, C.R. Park, New Delhi by metes and bounds in accordance with the shares declared in terms of the preliminary decree of partition? OPP S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 15 -
(ii) Whether the plaintiff is entitled to a final decree of partition thereby partitioning property described as bearing no.
I-1600, C.R. Park, New Delhi by metes and bounds in accordance with the shares declared in terms of the preliminary decree of partition? OPP
(iii) Whether the plaintiff is entitled to a decree of permanent injunction in favour of plaintiff and against the defendant thereby restraining the defendant from creating any third party interest in any manner whatsoever? OPP
(iv) Whether the plaintiff has no right, title or interest in the suit property as the vendor namely Ms. Mala Anita Pal from whom the plaintiffs claimed to have purchased the suit property upon execution of GPA, Will, Affidavit, Possession Letter all dated 05.07.2011 in terms of agreement to sell dated 27.03.2007 upon receipt of total sale consideration of Rs.67,50,000/- herself had no right, title or interest in the said property? OPD
(v) Whether Late Sh. Paresh Chand Chatterjee duly executed and left behind a legal and binding Will dated 23.01.1987 thereby bequeathing the suit property in favour of his three sons in equal shares non suiting his daughter, Smt. Mala Anita Pal OPD1
(vi) Whether the suit of the plaintiff is bad for misjoinder of parties? OPD
(vii) Whether the suit of the plaintiff is without any cause of action? OPD
(viii) Relief
10.ADDITIONAL ISSUE Vide Order dt 28.10.2024, the following additional issue was framed in the matter:
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 16 -
i). Whether the Will dt 19.09.2013 executed by Smt. Deepti Chatterjee in favour of defendant no. 3 is a forged and fabricated Will ? OPD1
11.PLAINTIFFS EVIDENCE Plaintiffs in support of their case examined Sh. S.L. Arya as PW-1. He tendered his evidence by way of affidavit EX.PW1/1 and relied upon the following documents:
1. Certified copy of settlement agreement dated 25.03.2011 Ex. PW1/A.
2. Certified copy of order dated 26.05.20011Ex.
PW1/B.
3. Certified copy of of Agreement to Sell dated 22.03.2007 Mark PW1/C.
4. Original Irrevocable General Power of Attorney dated 05.07.2011 Ex. PW1/D.
5. Original Will dated 06.07.2011 Ex. PW1/E.
6. Original Affidavit dated 05.07.2011 Ex. PW1/F.
12. PW1 was duly cross-examined by defendants no.
2(A) and 2(B) and by defendant no.1. Plaintiff did not lead any other evidence in the matter.
13.DEFENDANTS EVIDENCE 13.1 No evidence was led on behalf of defendant no.1 and 2. 13.2 The defendant no. 3. in support of his case examined the following witnesses:
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 17 -
i) Ms. Priyanka Sethi Sharma, Branch Head, Allahabad Bank now Indian Bank as D3W1 who proved the transfer of Rs. 25 lacs to the account of Smt. Deepti Chatterjee. She brought the certificate dated 27.07.2023 Ex DW3/1/A with respect to DD No. 0000128 for a sum of Rs. 25 lakhs and Statement of Account in respect of the same is EX.DW3/B. She deposed that the said DD was issued in favour of Dipti Chatterjee by Arenja Enterprises Pvt. Ltd. and it was credited in her account on 04.09.2013. The said certificate is EX.DW3/A. ii. Sh. Krishan Kumar, Punjab National Bank, C.R. Park, New Delhi as DW3/2 to prove the transfer of Rs. 60 lacs and Rs. 25 lacs to the account of Smt. Deepti Chatterjee. He also brought the bank statement pertaining to A/c No. 0156010265331 and 1880010012157 of Ms. Dipti Chatterjee from 01.09.2013 till 31.12.2020. The same are EX. DW3/2/A and EX.DW3/2/B. iii. Sh. Raj Kumar, Personal Banker, HDFC Bank, GK-
II, New Delhi as DW3/3 to prove the statement of account of A/c No. 05572020004176 in the name of M/s. Arenja Enterprises Pvt. Ltd for the period 01.09.2013 to 31.09.2013 and exhibited the same as EX. DW3/3/A. He also proved the letter dated 21.06.2023 addressed to Arenja Enterprises Pvt. Ltd. by the bank giving information about cheques paid to Dipti Chatterjee, which is EX.DW3/3/D. The certificate u/s. 65-B of Indian Evidence Act and 2A of the Bankers Book of S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 18 -
Evidence Act are Ex.DW3/3/B & Ex.DW3/3/C. iv. Attested witness to the Will dt 19.09.2013 - Sh. Jayant Ghadia as DW4. He tendered his evidence by way of affidavit Ex.DW4/A and relied upon the Will dt 19.09.2013 as Ex.DW4/1 (OSR) and GPA dt 19.09.2013 as Ex.DW4/2 (OSR). The evidence affidavit of the witness is beyond pleadings as the witness deposes about the purchase of the undivided share of Smt. Deepti Chatterjee by Sh. Brahm Arenja.
v. DW5 Sh. Brahm Arenja/Defendant no. 3 who tendered his evidence by way of affidavit Ex.DW5/A . The evidence affidavit of the witness is beyond pleadings as the witness deposes about the purchase of the undivided share of Smt. Deepti Chatterjee by him.
14.ARGUMENTS ON BEHALF OF PLAINTIFFS:
14.1 It is argued by Ld. Counsel for plaintiffs that the plaintiffs in the instant case are claiming their rights in the suit property through documents namely Agreement to sell dt 23.03.2007 Mark PW1/C, irrevocable GPA dated 05.07.2011- Ex.PW1/D, Will dated 06.07.2011-Ex.PW1/E & affidavit dt 05.07.2011 Ex.PW1/F executed by Smt. Mala Anita Pal in their favour in view of the settlement dt 25.03.2011 Ex.PW1/A arrived at in CS OS No. 1295/2007 through Delhi High Court Mediation and Conciliation Centre. It is argued that the suit was disposed off in terms of settlement vide order dt S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 19 -
26.05.2011, Ex.PW1/B. It was argued that on the basis of the above documents, the plaintiffs herein had become the owner of the 1/3rd share of Smt. Mala Anita Pal in the suit property.
14.2 It was argued that defendant no. 1 has disputed the right of Smt. Mala Anita Pal in the suit property relying on the Will dt 23.01.1987, however, Smt. Kalyani Chatterjee (L.R/Wife of defendant no.1) had on 07.06.2023 stated on oath before this court that the Will dt 23.01.1987 is not a genuine Will as Sh. P.C Chatterjee was not in fit state of mind during the relevant time and was suffering from Dementia and the share in the suit property should go to all the sons and daughters. It is argued that Sh. K.K. Ganguly, brother of Smt. Kalyani Chatterjee, is a practicing Advocate and the statement was recorded in his presence who had also signed the same. It is further submitted that Smt. Kalyani Chatterjee later on moved an application for recalling the said statement which was dismissed on 18.09.2023 and therefore, the said statement has attained finality.
14.3 It was argued that in view of the statement of Smt. Kalyani Chatterjee dt 07.06.2023, it is clear that Sh. P.C. Chatterjee left no Will and died intestate and, therefore, the plaintiff through Smt. Mala Anita Pal, the L.Rs of defendant no.1 and the defendant no. 3 through defendant no.2 i.e. Smt. Deepti Chatterjee are entitled to 1/3 share each.
14.4 Ld. Counsel for plaintiff appears to have also argued on behalf of defendant no. 3 as it was argued that S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 20 -
defendant no. 3 has proved his case that he had purchased 1/3 share of Smt. Deepti Chatterjee through Agreement to Sell, GPA and Will dt 19.09.2013 and proved the payment of the sale consideration amount by summoning witnesses from the bank of Smt. Deepti Chatterjee and defendant no. 3.
14.5 It was argued that the only contesting party in the present case was defendant no.1 who has failed to prove her case and the rest of the defendants have supported the case of the plaintiff. It was argued that the suit of the plaintiff is thus liable to be decreed.
15. ARGUMENTS ON BEHALF OF DEFENDANT NO.1:
Sh. K.K. Ganguly, Sr. Advocate appearing on behalf of defendant no. 1 has based his arguments on the written submissions filed on behalf of defendant no. 1 on 25.07.2024 and 02.01.2024 & 07.12.2024. As per the written submissions, the arguments of defendant no.1 are as follows:
15.1 The plaintiffs and defendant no.3 are in collusion with each other and the plaintiffs have filed the present suit without any locus. It is stated that Sh. Jayant Ghadia who is the witness in the Power of Attorney and the Will allegedly executed by deceased defendant no.2, is also the witness in the Agreement to Sell executed by Smt. Mala Anita Pal and is a land grabber involved in various land grabbing suits, details of which have been mentioned in the written submissions.
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 21 -
15.2 Smt. Mala Anita Pal had no right, title or interest in the suit property as Late Sh. P.C. Chatterjee left a Will dated 23.01.1987, thereby bequeathing the suit property in equal shares to his 3 sons and no share whatsoever was given to his daughter Smt. Mala Anita Pal as she was happily married.
15.3 Since Smt. Mala Anita Pal was not given any share in any of the Wills, any document executed by her in favour of the plaintiff have no legal binding.
15.4. One of the sons of Sh. P.C. Chatterjee namely Sh. Sunil Chatterjee had earlier filed the probate case bearing no.14/1992 propounding a second Will of Sh. P.C. Chatterjee, dated 22.12.1987 and claiming to be the sole legatee under the Will but had withdrawn the same at a latter stage as the defendant no.1 had filed the objection bringing forth the already existing Will of Sh. P.C. Chaterjee dated 23.01.1987.
15.5 Since the Will dated 23.01.1987 was brought to the knowledge of all the legal heirs in the above mentioned probate proceedings and the same has not been challenged till date, the same is to be deemed to be the final Will of Sh. P.C. Chatterjee.
15.6 Smt. Mala Anita Pal was lured by and was in collusion with the plaintiff and gave a false statement while executing the Power of Attorney and the Agreement to Sell and also the Will that her father had died intestate, whereas, she had filed a no objection in the above mentioned probate proceedings stating that the Will dated 22.12.1987 is the last S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 22 -
Will of her father and she has no objection if the probate is granted in favour of Sh. Sunil Chatterjee.
15.07 The statement dated 07.06.2023 made by Ms. Kalyani Chatterjee LR of defendant no.1 was based on her general memory and she later realized that she could not have made any comment on the mental status of her father in law as she was at the relevant time in Kolkata. However, her application for amending the statement was dismissed and the said statement dated 07.06.2023 is being relied upon by the plaintiff to support the case.
15.8 The plaintiffs do not have any existing right in the suit property as no title can be asserted on the basis of agreement to sell, GPA, affidavit, Will etc. in the absence of registered documents and the sale deed. The Will relied upon by the plaintiff is invalid as the same has been executed against sale consideration.
15.9 The present suit is a partition suit and since in a partition suit only the pre-existing rights are partitioned, the title of the plaintiffs cannot be decided on the basis of the documents relied upon by them as the same would amount to converting the suit into a declaration suit. The plaintiff has not obtained any probate of the Will set up by him and therefore he cannot claim any right on the basis of the said Will.
15.10 Even defendant no.3 who alleges to have purchased share of deceased defendant no.2 is not entitled to any relief as he also relies upon the Will executed by Smt. S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 23 -
Deepti Chatterjee against consideration. The witness to the Will- Sh. Jayant Ghadia is not an independent witness and is connected with the plaintiff. The Will & Power of Attorney relied upon by the defendant no.3 were notorized at Kolkata in the absence of Smt. Deepti Chatterjee and Sh. Braham Arenja, as has been deposed by DW4 and DW5. The defendant no.3 claims to have purchased the property from Smt. Deepti Chatterjee through GPA, Agreement to Sell and Will executed by her and the said documents are not valid documents. The name of Smt. Deepti Chatterjee is wrongly spelled out as Dipti Chatterjee in the documents relied upon by the defendant no.3 as in the written statement filed on behalf of defendant no.2 her name has been spelt out as Deepti Chatterjee, thus clearly showing that the documents relied upon by defendant no.3 are forged documents. Further the age of Deepti Chatterjee as shown in the Will dated 19.09.2013 is 73 years, whereas, an interim application bearing IA No.8607 of 2015 dated 21.04.2015 mentions her age as 85 years.
5.11 In the cross-examination it was stated by DW4 Sh. Jayant Ghadia that the agreement to sell executed by Smt. Deepti Chatterjee was signed by the wife of Sh. Brahm Arenja and therefore, the defendant no.3 did not file the agreement to sell before this court.
5.12 The defendant no.3 and plaintiff had the intention to usurp the shares of defendant no.1 & 2 as an IA No. 8607/15 dated 21.04.2015 was filed by defendant no.3 stating that S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 24 -
defendant no.2 has settled her dispute with the plaintiff. The said application was filed on 21.04.2015 i.e. after the death of Smt. Deepti Chatterjee on 04.02.2015.
5.13 The defendant no.3 herein claimed the share of deceased defendant no.2 on the basis of an unregistered Will dated 19.09.2013 almost after 2 years of the demise of defendant no.2. It was admitted by defendant no.3 that he had purchased the share of defendant no.2 vide Agreement to Sell, Will etc. whereas the said fact of purchase from defendant no.2 by way of Will & Agreement to Sell as well as the payment of consideration amount, was not disclosed any where in the WS filed on behalf of defendant no.2 through defendant no.3 who was acting as the Power of Attorney of defendant no.2. The defendant no.3 also falsely stated that he has come to know about the Will of defendant no.2 from Sh. Jayant Ghadia whereas in his evidence, it has come out that Sh. Jayant Ghadia was visiting Kolkata for notorization and execution of the GPA & the Will of defendant no.2 at request of Sh. Brahm Arenja.
15.14 In the settlement agreement dated 25.03.2011 it was stated that the plaintiff therein i.e. Smt. Mala Anita Pal will file suit for partition in respect of the suit property and she shall execute an irrevocable power of attorney in favour of Sh. S.L. Arya for filing the suit on her behalf, whereas, the present suit has been filed by the plaintiffs in their own rights and not as power of attorney of Smt. Mala Anita Pal and thus have no locus to file the present suit.
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 25 -
The defendant no.1 has also relied upon certain judgments in the written submissions but the same were never referred to nor the judgments were produced before the court for perusal.
16. ARGUMENTS OF DEFENDANT NO.3:
Ld. Counsels for defendant no.3 stated that she supports the case of plaintiff and argued that the defendant no.3 has proved the payment of the sale consideration to defendant no.2 by summoning the witnesses from the bank of Smt. Deepti Chatterjee and defendant no.3 and defendant no.3 has supported his case in his evidence and the attesting witness of the Will Sh. Jayant Ghadia has testified as to the Will in his evidence. Thus each party is entitled to 1/3 share.
17. I have given my thoughtful consideration to the arguments of both the sides and have gone through the record of the case.
18. FINDINGS ON THE ISSUES FRAMED:
For the sake of convenience the issues are decided in the following order:-
18.1. Issue no. (v) Whether Late Sh. Paresh Chand Chatterjee duly executed and left behind a legal and binding Will dated 23.01.1987 thereby bequeathing the suit property in favour of his three sons in equal shares non suiting his daughter, Smt. Mala Anita Pal ? OPD1 18.1.1. The burden to prove this issue was upon the defendant no.1. The defendant no. 1 had relied upon the S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 26 -
Will dt 23.01.1987 to assert that Smt. Mala Anita Pal was not entitled to any share in the suit property, alleging that by way of the above mentioned Will, Sh. P.C Chatterjee had bequeathed the suit property only in favour of his three sons in equal shares. However, a statement was made by L.R of defendant no. 1 in court on oath, on 07.06.2023, in the presence of her own brother Sh. K.K. Ganguly who is also a practicing Advocate stating that the Will dt 23.01.1987 is invalid as Sh. P.C. Chatterjee was mentally unsound since the time of her marriage in 1984 which fact was known to her even before her marriage with defendant no.1. It was also stated that she is aware that her husband Sh. Sameer Chattejee (defendant no.1) had relied upon the said Will. She stated that since her father in law was mentally unsound and was not in a position to execute the Will, the share in the property should go to all sons and daughters. The said statement is also signed by her brother Sh. K.K. Ganguly who was present in court on that said date.
The said statement is reproduced hereunder:
"I am Widow of Late Sh. Sameer Chatterjee. Me and Sh. Sameer Chatterjee have a son by the name Agnibha Chatterjee who had also appeared before Court two dates back.
I say that I got married with Sh. Sameer Chatterjee in the year 1984. My father-in-law Sh. P.C Chatterjee was of mentally unsound mind since the time I saw him at the time of my marriage. I came to know that he was of mentally unsound mind before even my marriage with Sh. Sameer Chatterjee. I say that he was not in a mentally fit state to execute the Will dt S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 27 -
23.01.1987. I do not know who got this Will executed through my father-in-law. I am God fearing person and I will only state the truth.
I am aware that my husband Sh. Sameer Chatterjee had taken a stand that the Will dt 23.01.1987 is the valid Will of his father Sh. P.C Chatterjee. However, I state on oath that my father-in-law was of mentally unsound mind and was not in a position to enter and execute such Will.
Since I am the L.R of my husband Sh. Sameer Chatterjee, I state that the Will dt 23.01.1987 is invalid. The share in the property should go to all sons and daughters.
I am myself in a mentally fit state of mind to make this statement. My brother-Sh. Krishna Kishore Ganguly is also present in the Court today.
I further state that my own son Sh. Agnibha Chatterjee is not in a mentally fit state of mind. I have filed documents on record to show that his treatment was going on from AIIMS and then from IBHAS."
18.1.2 Later on an application was moved by Smt. Kalyani Chatterjee to amend her said statement which was dismissed vide a reasoned order dt 18.09.2023 and the statement made by her on 07.06.2023 thus became binding upon her. Further, the defendant no.1 has not placed on record the certified copy of the Will dt 23.01.1987 nor has led any evidence with respect to the said Will as per the provisions of Section 68 to 71 of Indian Evidence Act (now section 67 to 70 of BSA, 2023).
18.1.3 The burden to prove the said Will was on defendant no. 1 which has not been discharged and, therefore, the Will dt 23.01.1987 is not proved as per law.
18.1.4 It is also important to note here that contradictory stands have been taken by defendant no.1 every S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 28 -
now and then. Perusal of the record would show that in the W/S filed by defendant no. 1, it has been averred that the Will dt 22.12.1987 propounded by Sh. Sunil Chatterjee in the Probate Proceedings bearing no. 14/1992, claiming that entire property has been bequeathed in his name, was a forged and fabricated Will and since the Probate Petition was withdrawn by Sh. Sunil Chatterjee the only valid Will would be 23.01.1987. It has also been averred that Smt. Mala Anita Pal had given her NOC in the said petition and thus she was aware that she had no share in the suit property. However, an application was also filed u/o. 6 rule 17 CPC by defendant no. 1 wherein the defendant no.1 had placed heavy reliance upon the Will dt 22.12.1987. Though the said application was dismissed yet the averments in the said application are important to be taken note of as the said application was supported by an affidavit of defendant no. 1 and materially deviates from the stand taken in the W.S. 18.1.5 Further neither the defendant no.1 nor the L.Rs of defendant no.1 ever stepped into the witness box to prove their case. Thus the Will dated 23.01.1987 and the case of the defendant as averred in the WS remained unproved.
18.1.6 It is pertinent to note that in the replication filed by the plaintiffs, the plaintiffs have not denied this Will dt 23.01.1987 but have pleaded that the sons of Sh. P.C. Chatterjee had fraudulently got the said Will executed, however, the fact remains that the Will is mandatorily to be S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 29 -
proved by calling the attesting witness which was not done in the present case, thus leaving the Will unproved.
18.1.7 In view of the above discussion, issue no.
(v) is decided against defendant no.1.
18.2 Issue no. (i) Whether the plaintiff is entitled to a preliminary decree of partition in favour of the plaintiff and against the defendants thereby declaring that the plaintiff is entitled to a 1/3rd equal share in property described as bearing no. I-1600, C.R.Park, New Delhi by metes and bounds in accordance with the shares declared in terms of the preliminary decree of partition? OPP Issue no. (ii) Whether the plaintiff is entitled to a final decree of partition thereby partitioning property described as bearing no. I-1600, C.R. Park, New Delhi by metes and bounds in accordance with the shares declared in terms of the preliminary decree of partition? OPP Issue no. (iii) Whether the plaintiff is entitled to a decree of permanent injunction in favour of plaintiff and against the defendant thereby restraining the defendant from creating any third party interest in any manner whatsoever? OPP
(vii) Whether the suit of the plaintiff is without any cause of action? OPD Since the above issues are interconnected and can be disposed off by common reasoning, they are dealt with together hereunder.
18.2.1 The word 'partition' and the scope of suit for partition has been discussed by the Hon'ble Supreme Court in a catena of judgments and it has been held that 'partition' is S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 30 -
a redistribution of pre-existing rights and only a person having a share and interest in the suit property is entitled to seek partition. In this regard, it would be appropriate to refer to para 4 of the judgment passed by Hon'ble Supreme Court in Shub Karan Bubna @ Shub Karan Prasad Bubna vs. Sita Saran Bubna and Ors- MANU/SC/1607/2009 which is as under :-
"4. `Partition' is a re-distribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty. A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. `Separation of share' is a species of 'partition'. When all co-owners get separated, it is a partition. .... In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiff's share in the suit properties, but also division of his share by metes and bounds. This involves three issues: (i) whether the person seeking division has a share or interest in the suit property/properties; (ii) whether he is entitled to the relief of division and separate possession; and (iii) how and in what manner, the property/properties should be divided by metes and bounds ?"
(emphasis supplied) 18.2.2 In the present case, the plaintiffs claim to have purchased the 1/3rd undivided share of Smt. Mala Anita Pal through GPA and Affidavit both dt 05.07.2011 and Will dt 06.07.2011 and agreement to sell dated 22.03.2007. They also claim to have paid the entire sale consideration to Smt. Mala Anita Pal and have relied upon the settlement agreement dated S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 31 -
25.03.2011 Ex.PW1/A and order dated 26.05.2011 Ex.PW1/B in this regard. However, there is no registered sale deed in favour of the plaintiffs and as per the judgment in Suraj Lamp & Industries (P) Ld.Tr.Dir vs State Of Haryana & Anr on 11 October, 2011, the plaintiffs cannot be said to be the owners of the 1/3 share in the suit property. The relevant part of the said judgment is reproduced hereunder:
"15.Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank - 94 (2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction"
when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance.
Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property.
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 32 -
They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales."
18.2.3 Also the Will dated 06.07.2011 Ex.PW1/E allegedly executed by Smt. Mala Anita Pal in favour of the plaintiffs, has not been proved by the plaintiffs in accordance with section 68 of the Indian Evidence Act, 1872 (section 67 of B.S.A, 2023) r/w section 63 of The Indian Succession Act, 1925. Section 63 (c) of Indian Succession Act 1925 lays down a mandatory requirement of attestation of the Will by two or more witnesses. Section 63 (c) is reproduced hereunder :
"Section 63. Execution of unprivileged Wills.
(a). ***
(b). ***
(c). The Will shall be attested by two or more witnesses, each of whom has seen 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 direction of the testator, or has received from the testator a personal acknowledgement 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."
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 33 -
18.2.3 Section 68 of Indian Evidence Act, 1872 (section 67 of BSA, 2023) provides that if a document is required by law to be attested the same shall not be used as an evidence until one attesting witness has been called to prove its execution. The said Section 68 of Indian Evidence Act, 1982/Sec 67 of BSA, 2023 is reproduced hereunder :-
"68. Proof of execution of document required by law 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."
18.2.4 Thus it is clear from a conjoint reading of above two provisions that a Will has to be mandatorily proved by examining an attesting witness to the Will, who shall depose in terms of Section 63 (c) of Indian Succession Act, 192.
18.2.5 The plaintiffs have not examined the attesting witness to the Will and thus the Will dated 06.07.2011 Ex.PW1/E remained unproved and cannot be relied upon. Even a close scrutiny of the Will dt 06.07.2011 shows that the signatures of Smt. Mala Anita Pal on the said Will and the S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 34 -
agreement to sell as well as the GPA, Affidavit & settlement agreement are different despite the documents of GPA, affidavit being executed only a date prior to date of Will. The signatures on the Will are in smooth flow whereas in the other documents above mentioned the signatures are not flowy, the formation of the letter 'M' in the Will is totally different from the formation of the letter 'M' in the other documents, there is pen lifting in the word 'Mala' in the documents of GPA etc., whereas, in the Will the alphabets in the word Mala are connected and continuous. Further, the spacing of the alphabets in the word "Mala" in the Will is much more than the word "Mala" in the other documents. Thus, suspicion arises as to the due execution of the Will.
18.2.6 Since the plaintiffs have not yet become the owners as per the provisions of the section 54 of Transfer of Property Act r/w section 17 & 49 of the Registration Act and documents in favour of plaintiffs are hit by the judgment in Suraj Lamps (supra), they cannot be said to be having a pre- existing right or share in the suit property as their rights in the suit property have not yet crystallized. If the plaintiffs had any rights in the suit property, they should have filed an appropriate suit in the court of law to perfect their title and then filed a suit for partition or should have filed the present suit only through the coparcener Smt. Mala Anita Pal. Thus, the plaintiffs are not entitled to 1/3 equal share in the suit property. The plaintiffs had no cause of action and no locus whatsoever to file the S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 35 -
present suit for partition and it was only Smt. Mala Anita Pal who could have filed the present suit.
18.2.7 The plaintiffs have placed heavy reliance upon the order dated 26.05.2011 passed by Hon'ble High Court of Delhi, Ex.PW1/B and the settlement arrived between the plaintiffs and Smt. Mala Anita Pal Ex.PW1/A in support of their case.
18.2.8 However, a perusal of the settlement agreement Ex.PW1/A shows that the suit for partition was to be filed by Smt. Mala Anita Pal and the plaintiffs herein may have acted as the attorneys of Smt. Mala Anita Pal in the suit for partition which even otherwise would have been the proper course. Also when the order dt 26.05.2011 was passed by the Hon'ble High Court of Delhi, the settlement Ex. PW1/A became a part and parcel of that order and the plaintiffs were bound to comply the same. But the fact remains that the plaintiffs filed the present suit in their own capacity and also did not implead Smt. Mala Anita Pal as a party in the suit, for the reasons best known to them. Since the plaintiffs claim to have purchased the suit property from Smt. Mala Anita Pal and also did not have any valid documents of title in their favour, she was a necessary party to the present suit. At a very later stage, the LRs of Smt. Mala Anita Pal were added and impleaded in the present suit as LRs of deceased defendant no.2, Smt. Deepti Chatterjee, who as per the record did not support the case of the plaintiff.
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 36 -
18.2.9 Thus, in view of the above, it is held that the plaintiffs are not entitled to 1/3 equal share in the suit property and had no cause of action and also did not have any locus to file the present suit for partition of the suit property. Further the suit is bad for non-joinder of necessary party i.e. Smt. Mala Anita Pal. In view of the above, the issue no.1, 2, 3 & 7 are decided against the plaintiffs.
18.3 Issue no. (iv) Whether the plaintiff has no right, title or interest in the suit property as the vendor namely Ms. Mala Anita Pal from whom the plaintiffs claimed to have purchased the suit property upon execution of GPA, Will, Affidavit, Possession Letter all dated 05.07.2011 in terms of agreement to sell dated 27.03.2007 upon receipt of total sale consideration of Rs.67,50,000/- herself had no right, title or interest in the said property? OPD 18.3.1 The burden to prove this issue was upon the defendants. However, no evidence was led on behalf of defendant no.1 and 2 and it was stated on behalf of defendant no. 3 that they support the case of the plaintiff. Thus no evidence whatsoever was led qua this issue.
18.3.2 It has already been discussed and held while deciding issue no. (v) above that defendant no.1 has failed to prove the Will dt 23.01.1987. It is also important to note that a reference to another Will dt 22.12.1987 has been seen in the pleadings of defendant no.1, however, as already held above, the defendant no.1 has taken contradictory stands with respect to the said Wills and on one hand has claimed the S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 37 -
same to be forged and fabricated while on the other hand has sought to rely upon the same in his application u/o. 6 Rule 17 CPC. The fact remains that even the said Will was never produced before this court nor any evidence was led with respect to the same. Further, since defendant no.1 never stepped into the witness box, the case of the defendant no. 1 remained unproved.
18.3.3 Since the Wills propounded in the matter could not be proved, the only conclusion that can be drawn is that Sh. P.C. Chatterjee died intestate.
18.3.4 It is pertinent to note here that the plaintiff claims to have purchased 1/3 share of Smt. Mala Anita Pal in the suit property, however, it is not clear whether on the date of transactions between the plaintiffs and Smt. Mala Anita Pal, she was entitled to 1/3 share or not. A perusal of the pleadings of the parties in the present case, would show that there are different versions of the parties w.r.t the living status of Smt. Ella Chatterjee, wife of deceased Sh. Sunil Chatterjee. It is the case of the plaintiff that sh. Sunil Chatterjee died without any Legal Heirs whereas the defendants filed the W.S claiming that Sh. Sunil Chatterjee left behind his wife Smt. Ella Chatterjee. The defendant no.1 claims that Ella Chatterjee is not traceable for a long time whereas defendant no.2 claimed that she died in the year June, 2012. It was also pleaded that she had resided in Scotland with her husband Sh. Sunil Chatterjee. Despite that the plaintiff never sought to add Smt. Ella Chattejee as a legal S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 38 -
heir. It was imperative to add Smt. Ella Chatterjee as a defendant as without adding her as a party, it could not have been ascertained whether Smt. Ella Chatterjee was alive or dead. If it was a case of not being heard of for several years or her death, the same could have come to light by the proceedings of her service in the case. Only after the presumption of the death of Smt. Ella Chatterjee would have been raised, it could be said that the remaining L.Rs of Sh. P.C Chatterjee inherited the share of Smt. Ella Chatterjee and became owners of 1/3 share each. Without the date of death of Smt. Ella Chatterjee being proved or without the presumption of her death being raised u/s. 108 of Indian Evidence Act ( Section 111 of BSA, 2023), it cannot be ascertained as to whether and if so, when her share devolved upon the other L.Rs. Also, if it would have been proved that Smt. Ella Chatterjee died in 2012 as alleged, then Smt. Mala Anita Pal would not have been entitled to 1/3 share in the suit property and instead would have been entitled to only ¼ share in the same as on 22.03.2007 or on 05.07.2011 i.e. the date of entering into transaction for sale of her 1/3rd share to plaintiffs.
18.3.5 Further, it is also important to note that the plaintiffs in the replication to the WS of defendant no.1 have not denied the Will dt 23.01.1987 but have only alleged fraud and collusion of the three sons of Late Sh. P.C Chatterjee in getting the said Will executed, which shows that the plaintiffs were aware of the execution of the said Will but have chosen to S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 39 -
conceal the said fact in their pleadings.
18.3.6 Since it is not clear as to what share was inherited by Smt. Mala Anita Pal, it cannot be said that the plaintiffs are entitled to any right, title or interest in the suit property. Even otherwise, it has already been held above that the plaintiffs have no share in the suit property nor have any cause of action or locus to file the suit.
In view of the above discussion, issue no.(iv) is decided against the plaintiffs.
18.4. Issue no. (vi) Whether the suit of the plaintiff is bad for misjoinder of parties? OPD No arguments have been advanced by any of the parties on this aspect. The issue is accordingly deleted. Even otherwise, as per the provisions of CPC, a suit cannot be dismissed on the ground of mis-joinder of parties (Order 1 Rule 9 r/w order 1 Rule 13 CPC r/w Section 99 CPC).
19.FINDINGS ON ADDITIONAL ISSUE FRAMED ON 28.10.2024 :
Issue no. i). Whether the Will dt 19.09.2013 executed by Smt. Deepti Chatterjee in favour of defendant no. 3 is a forged and fabricated Will ? OPD1 19.1.1 As far as defendant no.3 is concerned, he has claimed share of Smt. Deepti Chatterjee on the basis of the Will dt 19.09.2013 executed by Smt. Deepti Chatterjee in his favour. The said Will has been challenged by defendant no.1 through replication to the W/s of defendant no. 3 filed by him.
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 40 -
19.1.2 As per the W.S of defendant no.3, it is the case of defendant no.3 that he has become the owner of the undivided share of the deceased defendant no.3 vide Will dated 19.09.2013 Ex.DW4/1 executed by deceased Smt. Deepti Chatterjee in his favour, which as per him came to his knowledge only when the attesting witness Sh. Jayant Ghadia informed him of the same.
19.1.3 Though the present issue puts the burden to prove the same on defendant no.1, yet it is for the defendant no.3 first to prove the said Will as per the provisions of law i.e. section 68 of Indian Evidence Act r/w section 63 (c ) of Indian Succession Act. Though no formal issue was framed with respect to the alleged right of defendant no.3, yet evidence has already been led on behalf of the parties and even arguments have been addressed by the parties and as such no prejudice is caused to the parties by non framing of the issue. Thus the evidence in this regard is discussed by this court hereafter.
19.1.4 To prove the said Will, defendant no.3 has examined attesting witness Sh. Jayant Ghadia as DW4. In his affidavit of evidence Ex.DW4/A-Sh. Jayant Ghadia has deposed that Sh. Brahm Arenja had purchased the property from Smt. Deepti Chatterjee by execution of Agreement to Sell, GPA, Affidavit and Will dt 19.09.2013. Thus it can be said that the animus was to be a witness to a sale transaction and not a bequeathment. Also in his affidavit, he states himself S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 41 -
to be a friend of Sh. Brahm Arenja and his wife but does not state how and why he was called by Smt. Deepti Chatterjee to attest the Will.
19.1.5 In his cross-examination, he has stated that he had taken the documents i.e. GPA dated 19.09.2013 Ex.DW4/2 and Will dated 19.09.2013 Ex.DW4/1 for notorization to Kolkata and Sh. Brahm Arenja was not present before the Notary. It has been further stated that the said documents were prepared at Kolkata whereafter the same were brought to Delhi for approval of Sh. Brahm Arenja and thereafter the same were attested and executed in Kolkata. This very fact alone shows that the Will dt 19.09.2013 Ex.PW4/1 was not executed by the testator out of free Will as the same had first been approved by Sh. Brahm Arenja. Further, the attesting witness and defendant no.3 have not testified as to the mental and physical health of the testator at the time of execution of the Will. It is also not clear as to why Sh. Jayant Ghadia was called from Delhi to Kolkata by Smt. Deepti Chatterjee to attest the said documents. It cannot be also lost sight of that Sh. Jayant Ghadia is also a witness to the agreement to sell between the plaintiffs and Smt. Mala Anita Pal.
19.1.6 It is also pertinent to note that the age of Smt. Deepti Chatterjee has been mentioned as 73 years in the Will dt 19.09.2013 whereas during the course of proceedings, an application bearing no. 8607/2015 was moved by plaintiffs S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 42 -
and defendant no.2 on 21.04.2015 wherein age of defendant no. 2 is stated to be 85 years, which itself raises doubts on the genuineness of the Will. In these circumstances, it cannot be said that Smt. Deepti Chatterjee executed the Will out of her own free Will and the execution of the same is surrounded by suspicious circumstances.
19.1.7 Further, the defendant no.3 though does not aver that he purchased the share of Smt. Deepti Chatterjee yet he led evidence of payment of sale consideration to Smt. Deepti Chatterjee by summoning the witnesses from the bank of Smt. Deepti Chatterjee and his own bank namely D3W1, DW3/2 & DW3/3. Even his affidavit of evidence Ex.DW5/A testifies as to the purchase of undivided share of Smt. Deepti Chatterjee and is beyond pleadings. Thus it is clear that the defendant no.3 has got into some transaction of sale and purchase with Smt. Deepti Chatterjee but to escape the rigours of the judgment in Suraj Lamps vs. State of Haryana (supra) has only preferred to rely upon the Will in his pleadings though leading evidence as to the purchase of the undivided share of Smt. Deepti Chatterjee as well as the Will. It is clear from the above discussion that the Will dt 19.09.2013 was a part and parcel of transactions of sale and purchase between Smt. Deepti Chatterjee and Sh. Brahm Arenja and was not actually am independent testamentary document. Thus the said Will at best could be said to be the intention of the testator to transfer the property to Sh. Brahm Arenja on receipt of some S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 43 -
consideration and not without that. However, since the defendant no.3 does not plead a case of purchase and share of Smt. Deepti Chatterjee, the Will would not support the case of defendant no. 3 as neither the purchase is proved nor independent bequeathment.
19.1.8 It is also important to note that the conduct of the defendant no. 3 is also not free of doubts and he has suppressed material facts in the present proceedings. It is pertinent to mention that the fact of the execution of the Agreement to Sell in favour of his wife, Will of Smt. Deepti Chatterjee and payment of consideration etc have not been mentioned in the written statement filed on behalf of deceased defendant no.2 through defendant no.3, though the said facts were already in his knowledge. The defendant no.3 has also falsely stated in his application under Order 1 Rule 10 CPC filed by him for his impleadment, that he was not aware of the Will dated 19.09.2013 and came to know of the same through Sh. Jayant Ghadia, though he claims to have even paid the sale consideration for the purchase of the property and has led evidence in that respect and it has come in the evidence of DW4 that the said documents were prepared in Kolkata and were brought for approval of Sh. Brahm Arenja, whereafter, the said documents were taken for attestation and execution to Kolkata. It has also been stated in evidence of DW4 that the agreement to sell was executed by Smt. Deepti Chatterjee in favour of wife of Sh. Brahm Arenja and not Sh. Brahm Arenja.
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 44 -
The said documents have been concealed by Sh. Brahm Arenja and have not been filed before this court. Thus it can be said that defendant no.3 has not come to the court with clean hands.
19.1.9 Thus it can be said that the Will dt 19.09.2013 has not been proved to be a Valid Will and thus defendant no. 3 cannot be said to have become the owner of undivided share of Smt. Deepti Chatterjee. Before parting with this issue, it is also deemed appropriate to bring on record that though defendant no. 3 claims to have filed the W.S on behalf of defendant no. 2 as her POA, yet it appears that he was contesting the suit on his own behalf under the garb of being a POA of defendant no.2. This can be said as during the proceedings it was informed by defendant no. 1 that defendant no. 2 has expired in February, 2015 only whereafter the defendant no. 3 filed application u/o. 1 rule 10 CPC for his impleadment that too without mentioning in his application as to when defendant no.2 died and whether or not any proper enquiry was made by him in this regard. In the application it is merely stated as follows:
"2. That as per the information provided by defendant no. 1, defendant no.2 expired and is not having any surviving member in her family.
3 ****
4. That the applicant on coming to know about the death of the defendant no.2, asked the witnesses in the GPA to inquire about the same and also to enquire about the legal heirs of defendant no. 2.
5. It is submitted that one of the witness to the GPA i.e. Sh. Jayant Ghadia, informed the applicant that the deceased Dipti Chatterjee had S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
- 45 -
executed the Will dt 19th September 2013 in favour of applicant as stated herein above and the same has been duly notarised. The copy of Will dated 19.09.2013 is attached herewith."
19.1.10 The proceedings continued in the suit despite the death of defendant no.2 and even an application of compromise came to be filed on 21.04.2015 despite the date of death of defendant no.2 being February, 2015 (it is not the case of defendant no.3 that defendant no.2 did not expire in 2015).
19.1.11 Since defendant no.1 did not enter into the witness box and did not lead any evidence as to whether the Will dt 19.09.2013 is forged and fabricated Will or not, the issue is decided against defendant no.1. However, it has already been held above that defendant no.3 has himself failed to prove the Will dt 19.09.2013 even on pre-ponderance of probability.
20. RELIEF :
In view of the above findings and discussions, the suit of the plaintiffs is dismissed. No order as to costs.
21. Decree sheet be drawn accordingly.
22. File be consigned to Record Room.
Announced in open court Digitally signed
by GUNJAN
GUNJAN GUPTA
on 22.01.2025 Date:
GUPTA 2025.01.27
17:37:34
+0530
(GUNJAN GUPTA)
DJ-04/South-East,Saket Courts,
New Delhi
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016