Delhi District Court
Praveen Trehan vs Bd Trehan Others on 22 September, 2023
DLSE010007482016
Presented on : 27-01-2016
Registered on : 29-02-2016
Date of Institution : 27.01.2016
Date reserved for judgment : 13.09.2023
Date of announcement of judgment : 22.09.2023
Decision :Preliminary Decree passed
IN THE COURT OF SHRI MUNISH MARKAN
ADDITIONAL DISTRICT JUDGE (ADJ02) SOUTH EAST,
DISTRICT COURTS, SAKET, NEW DELHI
CS DJ 7492/2016
SHRI PRAVEEN TREHAN
S/o Shri B.D. Trehan,
R/o H.No. 4/7, West Patel Nagar,
New Delhi110 008. .... Plaintiff
VERSUS
1. SHRI B.D.TREHAN (deceased)
S/o Late Shri Hans Raj Trehan,
R/o H.No. 4/7, West Patel Nagar,
New Delhi110 008.
Presently staying at
R/o H.No. E143, Amar Colony,
Lajpat NagarIV,
New Delhi.
2. SHRI SUNIL TREHAN
S/o Shri B.D. Trehan,
R/o H.No. 4/7,
CS DJ 7492/16 Praveen Trehan Vs. B.D. Trehan & Ors. 1/16
West Patel Nagar, First Floor,
New Delhi110 008.
3. SHRI SUDHIR TREHAN
S/o Shri B.D. Trehan,
R/o H.No. E143, Amar Colony,
Lajpat NagarIV,
New Delhi.
4. SMT. ARADHANA TREHAN
W/o Shri Sudhir Trehan,
R/o H.No. E143, Amar Colony,
Lajpat NagarIV,
New Delhi. .... Defendants
JUDGMENT:
1. The plaintiff, defendant no.2 & 3 are brothers. Defendant no.1 was their father. Defendant no.4 is the wife of defendant no.3. The dispute initially pertained to 2 properties, first bearing no. 4/7, West Patel Nagar, New Delhi - 110008 measuring 200 sq. yards (hereinafter called 'West Patel Nagar Property'. During pendency of the suit, the parties settled the matter qua this West Patel Nagar Property on 26.09.2018 and the suit was dismissed as withdrawn as settled qua defendant no.2.
2. The second property is bearing no. E143, Amar Colony, Lajpat NagarIV, New Delhi - 110008 measuring 200 sq. yards built upto 4 floors and barsati (hereinafter called 'the suit property). Therefore, pleadings of the parties are being confined only in respect of the Amar Colony Property, which is herein being treated as the 'suit property'. The plaintiff has filed CS DJ 7492/16 Praveen Trehan Vs. B.D. Trehan & Ors. 2/16 the suit claiming that suit property is the HUF property and therefore, sought the declaration to the effect that gift deed dated 29.09.2008 executed by his brother i.e. defendant no.3 in favour of his wife i.e. defendant no.4 in respect of the suit property on the basis of Will dated 23.03.2004 of Smt. Krishna Trehan, the mother of the plaintiff, in respect of the suit property as null and void.
3. Further, the plaintiff had sought the consequential relief seeking declaration to the effect that plaintiff is entitled 1/4th share in the suit property and also sought final decree of partition. Defendant no.1, the father of the contesting parties died during pendency of the suit on 30.05.2021.
4. The case of the plaintiff is that his grand father i.e. father of defendant no.1 namely Late Sh. Hansraj Trehan owned various properties in Pakistan and when migrated to India, he was allotted the property in Karbala, Lodhi Road, New Delhi in the year 1948. He expired in 1976. At the time of his death, there existed a HUF consisting of all the family members and therefore, the plaintiff, defendant no.2 & 3 became members of the said HUF by virtue of their birth. From the funds of HUF and contribution of all the parties, the suit property initially having 100 sq. yards was purchased in the name of Smt. Krishna Trehan who was the wife of defendant no.1 and construction was raised, wherein the grand father and maternal grand father of the plaintiff also contributed. Smt. Krishna Trehan was a housewife and did not have any funds and the said property was also always CS DJ 7492/16 Praveen Trehan Vs. B.D. Trehan & Ors. 3/16 treated as HUF provided as the entire consideration was paid by HUF funds. In 1984, another adjoining peace of land measuring 100 sq. yards was purchased, again out of funds of HUF but in the name of Smt.Krishna Trehan. The father Sh. B.D. Trehan i.e. defendant no.1 retired as Inspector from Postal Department in 1986. Construction was made in the suit property from time to time and entire expenses were made by the plaintiff. Plaintiff got married in 1985. Defendant no.2 was working as a Bank Clerk and defendant no.3 was working as Assistant with the plaintiff. The suit property of Lajpat Nagar was constructed in the year 1996 and 4 floors alongwith barsati were constructed and entire expenses were made from the funds of the HUF and all the parties also contributed. Thereafter, the father i.e. defendant no.1 alongwith the mother and defendant no.3 shifted to the said suit property and the plaintiff occupied ground floor and the second floor of the West Patel Nagar property.
5. It is further stated that in second week of April 2010, defendant no.2 informed the plaintiff about the execution of the Will by Smt. Krishna Kumari wife of defendant no.1 in favour of defendant no.3 in respect of the Will dated 23.03.2004 which is forged and defendant no.3 further gifted the suit property to his wife defendant no.4 vide gift deed dated 29.09.2008. Hence, the present suit.
6. Defendant no.1, 3 & 4 filed their joint written statement wherein they took the plea that the suit is bad for non joinder of necessary parties as the brothers and sisters of CS DJ 7492/16 Praveen Trehan Vs. B.D. Trehan & Ors. 4/16 defendant no.1 have not been impleaded. Suit has also not been properly valued qua the gift deed and proper court fees has not been paid as the value of the suit property was Rs.90 lakhs in September 2008.
7. It is further stated that defendant no.1 vide public notice dated 04.01.2010 debarred the plaintiff from making any claim in the suit property as plaintiff and his wife misbehaved with defendant no.2. Defendant no.3 admitted execution of the registered gift deed dated 29.09.2008 in favour of his wife and took the plea that declaration qua the Will dated 23.03.2004 is barred by limitation and is also not properly valued for the purposes of court fees and jurisdiction. Defendants denied the existence of HUF at the time of the death of Sh. Hansraj Trehan. Sh. Hansraj Trehan have 3 sons and 2 daughters and they were all separately living and having their own independent occupation. Defendant no.1 was living separately since 1954 and worked in P & T Department. His eldest brother Sh. Dwarka Das Trehan a Government employee was residing in Meerut and the elder brother Sh. Pyare Lal Trehan was worked in Voltas and living in Model Basti, Delhi. The sisters married in 1948 were living separately in their matrimonial home. Defendants denied any contribution of funds by HUF in purchase of any of the properties. The suit property of Amar Colony was purchased in the year 1963 when plaintiff was 4 years of age, defendant no.2 was 9 years and defendant no.3 was not even born. The suit property was purchased by defendant no.1 out of his own funds CS DJ 7492/16 Praveen Trehan Vs. B.D. Trehan & Ors. 5/16 in the name of his wife Smt. Krishna Trehan. The construction completed in August 1969 and it was let out till December 1976. The ground floor of the suit premises was occupied by defendant no.1 and his family and defendant no.3 shifted to the ground floor in 1995 and also occupied the first floor. The first floor was in occupation of defendant no.1. Defendant no.3 was a partner with plaintiff in the business, once he shifted to Lajpat Nagar property, he started his own independent business. Wife of defendant no.1 executed Will dated 23.03.2004 in favour of defendant no.4 bequeathing the suit property of Amar Colony in his favour. Smt. Krishna Trehan wife of defendant no.1 expired on 26.01.2005. Defendants prayed for dismissal of the suit.
8. Plaintiff filed the replication refuting the stand taken by the defendants in their written statement and reiterated the case as made in the plaint.
9. From the pleadings of the parties, following issues were framed: ISSUES:
1. Whether the Will Dated 23.03.2004 is liable to be declared as illegal & void? OPP
2. Whether the gift deed dated 29.09.2008 is liable to be declared as illegal & void? OPP
3. Whether the plaintiff is entitled to 1/4 th share in the suit property bearing no. E143, Amar Colony, Lajpat NagarIV? OPP
4. Relief.
10. During plaintiff evidence, plaintiff examined himself CS DJ 7492/16 Praveen Trehan Vs. B.D. Trehan & Ors. 6/16 as PW1 and tendered affidavit as Ex. PW1/A. However, he has not relied upon any documents and prays that documents as exhibited by him in his affidavit in toto be not read in his evidence.
11. During defendants' evidence, defendants examined DW1 Sh. Sudhir Trehan. who tendered his affidavit exhibited as Ex. DW1/A and relied upon following documents:
(1) Sale Deed dated 18.12.1967 Ex.PW1/DA.
(2) Lease Deed dated 22.04.1965 Ex.PW1/DC.
(3) Mutation Letter dated 22.04.1968 Ex.DW1/1.
(4) Completion certificates Ex.DW1/2 and Ex.DW1/3.
(5) Revised Lease Deed dated 20.04.1985 is Ex.PW
1/DB.
(6) Documents pertaining the additional strip of land
dated 13.08.1984 Ex.PW1/DD.
(7) Deposit Receipt is Mark A.
(8) Transfer Charges Receipt Ex.DW1/5.
(9) Conveyance Deed Ex.PW1/DE.
(10) Conversion Challan Ex.DW1/6.
(11) ITR of Smt. Krishna Kumari Ex.DW1/7.
(12) Death Certificate of Smt. Krishna Kumari Ex.DW1/8.
(13) Will dated 23.03.2004 of Smt. Krishna Kumari
Ex.PW1/DF.
(14) Gift Deed dated 29.08.2008 in favour of
CS DJ 7492/16 Praveen Trehan Vs. B.D. Trehan & Ors. 7/16
Mrs.Aradhana Trehan Ex.DW1/9.
(15) Public Notice datd 04.01.2010 Ex.DW1/10
(16) Copy of written statement Ex.DW1/11.
12. DW2 Mrs. Rupa Singh tendered her affidavit Ex.DW2/1.
13. I have heard Ld. Counsel for the parties and have gone through the record carefully. Issuewise findings of the court are as under:
ISSUE No.1 :
Whether the Will Dated 23.03.2004 is liable to be declared as illegal & void? OPP
14. The plaintiff, defendant no.2 and defendant no.3 are brothers. Defendant no.1 was their father who died on 30.05.2021 during the pendency of the present suit. It is not in dispute that the suit property was in the name of Smt. Krishna Trehan, mother of the plaintiff and defendants no.2 and 3. The remaining aspects regarding her ownership are being dealt with while deciding issue no.3. It is also not in dispute that Smt. Krishna Trehan died on 26.09.2005 as reflected from her death certificate Ex.DW1/8. As per the plaintiff, Smt. Krishna Kumari died intestate. However, as per defendants, Smt. Krishna Kumari had executed the Will dated 23.03.2004 Ex.PW1/DF bequeathing the suit property in favour of her son defendant no.3 Sh.Sudhir Trehan.
15. This one page document Ex.PW1/DF is purported to be Will dated 23.03.2004 executed by Smt. Krishna Kumari.
CS DJ 7492/16 Praveen Trehan Vs. B.D. Trehan & Ors. 8/16 The bare look of this single page laminated document reflects that about 1/3rd upper portion of the said document is blank and thereafter, the document starts. Ex.PW1/DF is a handwritten document. As per the defendants, it is drafted by Sh.B. D. Trehan, the husband of Smt. Krishna Kumari who was also defendant no.1. Ex.PW1/DF also reflects that an endorsement at the bottom which states "Drafted by: Sh.B. D. TREHAN Husband of the Executor under her instructions". It shows two witnesses Mrs. Rupa Singh and is Sh.Palinder Kumar Rattan. At the bottom, there is a handwritten endorsement in the same handwriting in which the rest of the document is written. The said endorsement is "I have examined the above Executor & found her in sound disposing mind". Below it, the name of Dr. M.K. Gupta is mentioned with address and bears the signatures apparently of the said person at two places.
16. During cross examination of DW1 Sh.Sudhir Trehan done on 25.08.2022 before the Local Commissioner, DW1 admitted that his father Late Sh.B. D. Trehan used to visit the Government Department for the matters like property tax etc. for the Amar Colony House bearing No.E143, Lajpat NagarIV, New Delhi (Suit Property). On31.08.2022, DW1 stated that he is not aware how his father used to take signatures of his mother for going to Government Departments on her behalf.
17. DW1 further stated in his cross examination that his shop was on the ground floor and the residence was at the first floor in the same building i.e. the suit property. DW1 stated that CS DJ 7492/16 Praveen Trehan Vs. B.D. Trehan & Ors. 9/16 he was not present at the time when his mother was executing the said Will dated 23.03.2004 Ex.PW1/DF. He admitted that another witness to the Will Sh.Palinder Kumar Rattan is his friend and he has business relations with him. DW1 further stated that at the time of the execution of the said Will, he thought he was in his shop and his wife had gone to market along with his kids and he was not aware that his mother was executing the said Will. He further stated that one of the witnesses Sh.Palinder Kumar Rattan came to meet him before and after the execution of the Will but Sh.Palinder did not tell the reason for visiting the house before or after the execution of the Will. However, DW1 stated that Sh.Palinder is his friend and they have family relations and he can even recognize his signatures. Further, DW1 stated that his father told him in the year 2008 for the first time about the execution of the Will dated 23.03.2004 by his mother. DW1 was also confronted with para 23 of their written statement to the amended written statement wherein it was stated that wife of the defendant no.1 expired on 26.09.2005 and her last Will and testament was disclosed to all concerned on her death including the plaintiff.
18. Before proceeding further, the aforementioned testimony of DW1 Sh.Sudhir Trehan needs to be appreciated. On the one hand, in his pleadings, he has stated that he became aware of the Will of the mother on her death in the year 2005. At the same time, during his cross examination, he stated that his father first time told him about the Will in the year 2008 i.e. after CS DJ 7492/16 Praveen Trehan Vs. B.D. Trehan & Ors. 10/16 a period of about 4 years. The Will is dated 23.03.2004.
19. The testimony of DW1 was recorded in the year 2022 and he vividly tried to explain as to what happened on that date i.e. 23.03.2004, Sh.Palinder Kumar Ratan one of the witnesses came to meet him before and after the execution of the Will and his wife had gone to market along with kids and Sh.Palinder Kumar did not disclose about the execution of the Will. In my considered opinion, this testimony of DW1 Sh.Sudhir Trehan is self demolishing and cannot be believed.
20. Further, DW1 stated that Dr. M. K. Gupta is a Cardiologist and has no family relations but his clinic is in the neighbourhood and he was not a regular Doctor who treated his mother's health issues. Further, to the question whether he can call Dr. M. K. Gupta for his evidence, DW1 answered "NO". Another similar question was whether he can call Sh.Palinder Kumar for his evidence, again his answer was "NO". Though law requires examination of at least one witness for proving the Will but the circumstances of the present case are that a Doctor was specially called to testify about the health of the executant. The said Doctor is still available along with another attesting witness. The said Doctor himself has not written in his own hands regarding the endorsement of examining the executant but it is the father of the plaintiff and defendants no.2 and 3 who wrote it with his hands that he has examined the executor and found her in sound disposing mind. All this is the unnatural conduct.
21. Perusal of the Will on the face of it reflects that the CS DJ 7492/16 Praveen Trehan Vs. B.D. Trehan & Ors. 11/16 signature of the Doctor M. K. Gupta appear to be procured on this Will at two places. The leaving of 1/3rd space of the page of Ex.PW1/DF also is an unnatural conduct. Defendant no.1 the father of the plaintiff took extra precaution of not only ensuring the presence of two witnesses but also calling a Doctor but left the 1/3rd upper page of the document blank. There is no plausible explanation for the same and it is very unnatural in the circumstances of the present case. Nobody starts writing a document by leaving such a big margin on the upper portion in the ordinary course.
22. Besides, the signature of the executant are with a different pen whereas rest of the handwriting is from different pens. The name and signature of witness Sh.Palinder Kumar Rattan and that of Doctor are with black ink. All these raise strong suspicious circumstances about the execution of the Will by Smt. Krishna Kumari.
23. The Will Ex.PW1/DF is laminated. A suggestion was given by the plaintiff that the Will has been deliberately laminated just to protect the same from Forensic examination. Perusal of the document Ex.PW1/DF and the manner it appears to have been executed give credence to the stand of the plaintiff that the defendant no.1 father of the parties might have used the blank signed paper of Smt. Krishna Kumari which he used to keep with him for presenting on her behalf to government departments in respect of the suit property.
24. Further, cross examination of DW2 Ms.Rupa Singh CS DJ 7492/16 Praveen Trehan Vs. B.D. Trehan & Ors. 12/16 one of the attesting witness to the Will Ex.PW1/DF reflects that Sh.B. D. Trehan became the witness to the Gift Deed dated 29.09.2008 Ex.DW1/9. This Gift Deed was executed by defendant no.3 in favour of his wife defendant no.4. DW2 further failed to say that whether the observation by Dr. M. K. Gupta was already mentioned on the Will or not when she signed the Will as witness. She had further stated that when she reached for witnessing the Will, defendant had already prepared and drafted it. She has further stated that it might have been drafted by Sh.B. D. Trehan. She even further stated that she does not remember who wrote her name and address on the Will. She feigned ignorance whether Mr. M. K. Gupta asked any question from Smt. Krishna Kumari at the time of execution of the Will. Therefore, considering the totality of the facts and circumstances, the cross examination of DW1 and DW2 and closer examination of Will Ex.PW1/DF raise serious doubts and create suspicious circumstances which warrants that the Will be not accepted as genuine Will of Smt. Krishna Kumari for all intents and purpoases. Therefore, it is held that Will dated 23.03.2004 Ex.PW1/DF is not genuine and cannot be relied upon. Therefore, this issue is decided in favour of the plaintiff and against the defendants.
ISSUE No.2 :
Whether the gift deed dated 29.09.2008 is liable to be declared as illegal & void? OPP
25. In view of the findings given in issue no.1, wherein the CS DJ 7492/16 Praveen Trehan Vs. B.D. Trehan & Ors. 13/16 Will dated 23.03.2004 Ex.PW1/DF has been held to be not genuine, now the impact of the said findings has to be seen on the gift deed dated 29.09.2008 Ex.DW1/9 executed by defendant no.3 Sh. Sudhir Trehan in favour of his wife defendant no.4 Smt. Aradhana Trehan in respect of the suit property. The basis of the said gift deed is the Will dated 23.03.2004 Ex.PW1/DF and the said fact is also mentioned in the said gift deed dated 29.09.2008 Ex.DW1/9. Therefore, when the Will being held as not genuine, the very foundation of the said gift deed dated 29.09.2008 Ex.DW1/9 is taken away. Therefore, it is held that the gift deed dated 29.09.2008 Ex.DW1/9 executed by defendant no.3 Sh.
Sudhir Trehan in favour of his wife defendant no.4 Smt. Aradhana Trehan in respect of the suit property is liable to be declared as null and void and is accordingly held so. Therefore, issue no. 2 is also decided in favour of the plaintiff and against the defendants.
ISSUE No.3:
Whether the plaintiff is entitled to 1/4 th share in the suit property bearing no. E143, Amar Colony, Lajpat NagarIV? OPP
26. In addition to the findings given in issue no.1 & 2, now the question of ownership of the suit property is to be examined.
The case of the plaintiff is that the suit property is an HUF property. However, during his cross examination, the plaintiff had stated that he does not know whatsoever the name of the said HUF. He did not know whether this HUF is registered CS DJ 7492/16 Praveen Trehan Vs. B.D. Trehan & Ors. 14/16 with Income Tax Department or it was having any bank account in its name and he did not know what happened to the said HUF after the demise of his grand father in the year 1976. He did not know whether any other properties were purchased by the HUF or from HUF funds. He categorically stated that he does not know the name of HUF. He categorically stated that 100 sq. yards land was purchased in the name of Smt. Krishna Kumari. He failed to state the exact funds shared by HUF members. He failed to state as to when it was agreed that the suit property shall be treated as HUF property. PW1 categorically stated that he does not have any documentary evidence to show the existence of HUF funds.
27. PW1 categorically admitted that his mother was the owner and she has the right and capacity to bequeath the suit property. Therefore, it is clear that there is not any iota of evidence to show that the suit property was either owned b any HU., Infact there is no evidence about the existence of any HUF. So far as the defendants are concerned, the gift deed Ex.DW1/9 relied upon by the defendants mentions the status of the suit property wherein they had taken the stand that Smt. Krishna Kumari was the owner of the suit property.
28. Not only that, Ex.PW1/DA is the sale deed dated 18.12.1967 in favour of Smt. Krishna Kumari in respect of 100 sq. yards land of the suit property. Ex. DW1/1 is the letter of the L&DO dated 22.04.1968 mutating the suit property in favour of Smt. Krishna Kumari. Ex. PW1/DE is the conveyance deed of CS DJ 7492/16 Praveen Trehan Vs. B.D. Trehan & Ors. 15/16 the suit property in respect of 200 sq. yards. Therefore, it is clear that Smt. Krishna Kumari was the owner of the suit property and she left behind the plaintiff, defendant no.2, defendant no.3 as 3 sons and husband Sh. B.D. Trehan as her legal heirs. Sh. B.D. Trehan died on 30.05.2021 during the pendency of the suit and suit was abated qua him. Defendant no.2 Sh. Sunil Trehan having settled the matter with the plaintiff and other defendants and made the statement in the court on 26.09.2018 categorically stating that he will not claim any right in future in respect of the suit property bearing no. E143, Amar Colony, Lajpat NagarIV, New Delhi - 110008 measuring 200 sq. yards.
29. Therefore, it is held that plaintiff and defendant no.3 are entitled to ½ share each in the suit property. Preliminary decree is passed to this effect. Accordingly, this issue is decided in favour of plaintiff and against the defendants.
Announced and dictated in the open court on 22.09.2023 (Munish Markan) Additional District Judge02 (SE), District Courts, Saket, New Delhi ks/pk CS DJ 7492/16 Praveen Trehan Vs. B.D. Trehan & Ors. 16/16