Delhi District Court
Prem Lata vs Mohan Lal Kaushik Others on 29 May, 2024
IN THE COURT OF MS. PRABH DEEP KAUR, DISTRICT JUDGE-
05 (SOUTH EAST), SAKET COURTS, NEW DELHI
CS DJ No. 9951/16
CNR No. DLSE01-000735-2013
In the matter of :-
1. Smt. Prem Lata,
W/o Sh. Gopi Chand Bhardwaj,
R/o H.No. 55, Basant Vihar Colony,
Near I.T.I, City & Distt. Palwal,
Haryana-121102.
.....Plaintiff
Versus
1. Mohan Lal Kaushik
S/o Late Sh. Hari Parshad,
R/o Gali No. 19, Molar Band Extension,
Badarpur, New Delhi.
2. Bhupender Kumar Kaushik
S/o Late Sh. Hari Parshad,
R/o Gali No. 10-C, Molar Band Extension,
Badarpur, New Delhi.
3. Radhey Shyam Kaushik
S/o Late Sh. Hari Parshad,
R/o Near Govt. Girls School, Village Bawal,
Distt. Rewari, Haryana
4. Purushottam Lal Kaushik,
S/o Late Sh. Hari Parshad,
R/o H.No. 1158, Sector-2,
Ballabhgarh, Distt. Faridabad, Haryana.
5. Umesh Kumar Kaushik,
New DJ No.9951/16 Page No. 1 of 44
S/o Late Sh. Hari Parshad,
R/o Madhu Vihar, Near Holy Child School,
City & Distt. Rewari, Haryana, India
6. Smt. Anju
W/o Sh. Gyan Chand Sharma,
R/o Behind Vivekanand Sr. Sec. School,
Near Khota Mandir, Krishna Colony,
City & Distt. Palwal, Haryana-121102
....Defendants
Date of institution of the suit : 22.02.2013
Date of arguments : 06.04.2024
Date of decision : 29.05.2024
SUIT FOR PARTITION, POSSESSION, RENDITION OF RENT
ACCOUNT AND MESNE PROFITS AND PERMANENT &
MANDATORY INJUNCTION WITH CONSEQUENTIAL
RELIEVES.
JUDGMENT
1. Vide this judgment, the suit of the plaintiff for partition, possession, rendition of rent account and mesne profits and permanent & mandatory injunction relieves against the defendants.
2. Succinctly stated the factual matrix of the case is that the plaintiff and defendant no. 6 are daughters of Late Sh. Hari Prasad and defendant no. 1 to 5 are sons of Late Sh. Hari Prasad and thus, all the parties are siblings. The mother of parties had already expired in the year 2009. The only class I legal heirs of Late Sh. Hari Prashad are plaintiff and defendants. Late Sh. Hari Prashad left his divine soul to heaven on New DJ No.9951/16 Page No. 2 of 44 02.12.2021.
Plaintiff's version.
3. The case of the plaintiff is that Late Sh. Hari Prashad died intestate, therefore, all his movable and immovable properties need to be shared and partitioned in equal proportion i.e. 1/7th each, amongst all his said seven legal heirs i.e. the plaintiff and the defendants. The father of the plaintiff Late Sh. Hari Prashad has purchased and took possession of a plot no. 4, measuring 260 sq. yard in Khasra No. 19, situated at Village Molar Band Extension, Meethapur, Badarpur, New Delhi (hereinafter called as "Suit property"), solemnly out of his funds on 10.01.1984 from Sh. Rattan Lal, Budhan & Sohan Lal, all sons of Sh. Chajju R/o Village Meethapur, New Delhi. In course of time out of his own funds, Late Sh. Hari Prashad constructed ground floor of the plot, five shops at front portion followed by three rooms with two kitchens, two toilets and two bathrooms as per annexed site plan. It is stated that Late Sh. Hari Prashad and his family has used the residential section of the said plot for a long time while the shops have been leased/licenced out for generating rental income. In course of time, all sisters and four brothers did marriage. Therefore, all legal heirs bifurcated from the parental family, got settled and shifted to the place of their choice and convenience. At present, shops are being used by the respective tenants/licensees; while the residential section of the plot is lying vacant, having locks of defendant no. 1 to 5. The father of plaintiff was collecting and keeping the rent generated from all the five said shops during his life time and after his death defendant no. 1 to 5 have been collecting and keeping the rental income, in which all the seven legal heirs i.e. the plaintiff and defendants have equal shares @ 1/7th each. As the New DJ No.9951/16 Page No. 3 of 44 plaintiff is not aware of accumulation of actual rent, so, the defendant no.1 to 5 to be directed to render accounts of rent collected from the tenants/licencees of the five shops after 02.12.2011 till the date of rendition of accounts. Plaintiff has requested number of times from the defendant no. 1 to 5 to divide and share the above said property in equal proportions amongst all the legal heirs i.e. the plaintiff and defendants by metes and bounds, but they failed to do so. Further, on 15.01.2023 and 10.02.2023 defendant nos. 1 to 5 have threatened to sell the above said property. The plaintiff has valued the suit property at about Rs.57,00,000/- and has stated that as plaintiff has 1/7th share in the property, the value of suit property for the purpose of Court fee has been fixed as about Rs.8.14 lacs upon which the ad valorem Court fee of Rs. 24430/- has been paid. Further, for the relief of rendition of accounts injunction, a fixed Court fee of Rs. 650/- has been paid with undertaking to pay Court fee in case of any deficiency. Reliefs sought by plaintiff:
(A) to pass a decree of partition of the suit property, as described in para 4 of the present Suit, so as each among the plaintiff and defendants would be entitled to its 1/7th share in equal proportion; and to hand over the physical, peaceful & vacant possession of the plaintiff's share in suit property to her; and (B) to pass a decree dividing in equal proportion i.e. 1/7th each between the plaintiff and defendants, the accumulated rental income from the suit property in hands of Defendant No. 1 to 5 along with interest at prevailing market rate, after rendition of accounts with mens profits; and (C) to permanently restrict the defendants from doing any sort of alienation or creating third party interest in the suit property, including sale, New DJ No.9951/16 Page No. 4 of 44 agreement to sale, further lease/rent/licence agreement, construction, renovation etc Original Defence of defendant nos. 1, 3 and 5.
4. Defendant no. 1 and defendant no. 3 and 5 have filed separate written statements but they have taken same defence (for the sake of convenience defendant nos. 1, 3 and 5 are hereby referred as "contesting defendants"). As per their defence, plaintiff does not possess any right in the property in question and movable and immovable properties of Late Shri Hari Parshad, which were required to be shared and partitioned between parties had already been partitioned and shared. The Plaintiff had already taken her share of money around Rs. 20,25,000/- [Rupees Twenty Lac Twenty five Thousand Only] out of the sale proceeds of the agricultural land in the month of January, 2012 soon after the demise of Shri (Late) Hari Parshad and it was also agreed that the Plaintiff and the Defendant No. 6, being female members, would not claim any right in any of immovable and movable properties of their father. Hence, the Plaintiff has no right to claim any share in the suit property. In 1972, the Defendant No.1 shifted to Delhi when he completed his Higher Secondary schooling for purpose of earning. After 4/5 years, the Defendant No.2 also shifted to Delhi when he completed his Higher Secondary, and joined same Company, at Badarpur Border. In 1984, out of their earnings, the Defendant No.1 & 2 purchased the suit property, however, out of love and affection, the same was purchased in the name of their father. Defendant No.1 & 2 constructed five shops in 1993, which were given on rent by the father of parties. In 2003, the defendant No.1 and 2 constructed three rooms, one toilet, thereafter the defendant No.2 shifted to the suit property and started New DJ No.9951/16 Page No. 5 of 44 using one room and toilet. In 2008, the defendant No.1 alongwith his family shifted to the suit property after constructing toilet and kitchen, and since then the defendant No.1 is in possession of two rooms, toilet, bathroom and kitchen in the suit property. Late Shri Hari Parshad never permanently resided at the suit property and however he used to come to meet the family of the defendant No.1 and used to reside there during those visits. The marriages of sisters and brothers never took place at the property in question. Except the plaintiff, the marriages of all the brothers and sister were performed at Village Bawal, District Rewari, Haryana. Sh. (Late) Hari Parshad and his family had not used the residential section of the said plot for long time, however, the shops have been leased / licensed out for generating rental income. All legal heirs, never resided at the property in question at the property in question. The shops are being used by the respective tenants/licensees and while the residential section of the plot is lying vacant, having locks of the plaintiff's brothers i.e. the defendant no. 1 to 5. Only the Defendant No. 1 to 5, have right in the property in question, hence the Plaintiff cannot seek rendition of account as prayed. Amended Defence of defendant nos. 3 and 5.
5. Thereafter, during trial, at the stage of DE, defendant no. 3 and 5 have come up with additional defence by way of amendment in WS which was allowed vide order dated 07.09.2018. The additional defence taken by defendant no. 3 and 5 in the amended WS is that in last week of June, 2018, the defendant No. 5, while searching for documents at his house, came to know that late Shri Hari Parshad executed his last and final will dated 21.09.2011, and according to the said will, the plaintiff and the Defendant No. 6 herein have no rights of what-so-ever nature in the New DJ No.9951/16 Page No. 6 of 44 property in question. The said will was duly witnessed by Mr Surender Singh s/o late Shri Parbhati Lal Sharma and according to the said will, the suit property was purchased in 1984 by his adult sons i.e. the defendant no.1 and 2, however the same was purchased in the name of the father with a view to secure that he and his wife i.e. the mother of parties would be taken care of by their sons and Late Shri Hari Parshad also divided the five shops of the property in question as well as the constructed portion and the open portion would be divided into among the defendant no. 1 to 5. Defence of defendant nos. 2 and 4 (substantially supported the plaintiff)
6. Defendant no. 2 and 4 have filed separate written statement. The defence of defendant no. 2 and 4 is that defendant No.3 & 5 had produced a false and fabricated WILL as there was no whisper either in the plaint of the plaintiff or in the WS filed by the defendant No.3 & 5 about any WILL. Even after receiving the notices of the suit, defendant no. 3 and 5 did not raise a question of any WILL and all of a sudden, an application had been moved in 2018 that their father Late Sh. Hari Prasad had left a Will in their favour which is not a registered Will. The defendant No.2 contributed and paid money at the time of purchase of the subject plot and even thereafter, he made contributions with the money received from the sale of another property, father got constructed three rooms, one big kitchen, latrine bathroom and the in suit property. One small kitchen, one latrine and a bathroom were got constructed by defendant no. 4, Sh. Purushottam Lal Kaushik from out of his own funds in the suit property. It is denied that Late Sh. Hari Prashad carried out construction on the subject property from out of own his funds only. The contribution of defendant New DJ No.9951/16 Page No. 7 of 44 No.4 is there. Defendant No.5 Umesh Sh. Kumar Kaushik has illegally taken possession of the following movable assets left by their mother, i.e.
i) 4 Gold Karas weighing 6 tolas; ii) Mother's leghanga and Chunni which has 5 tolas of gold; iii) Gold Jhumkis of 2 tolas; iv) Silver waist band (tagdi); v) Big silver glass; vi) Silver. All the legal heirs are entitled to 1/7th share of the assets left behind their father. Late Sh. Hari Parshad and his family used the residential section of the subject house and the shops were leased/ licensed by him to generate rental income. However, shops remained closed since 1994 to 1997 as defendant No.1 Sh. Mohan Lal Kaushik had locked the access to the shops. Presently the residential section of the suit property is not lived in. Defendant no.1 has illegally locked 2 rooms, one big kitchen, one toilet and one bathroom. Central room, adjoining small kitchen, one toilet and one bathroom are under the lock and key of defendant No.4. Defendant no.1 has apart from his residential property two more houses in close vicinity. The defendant No.4 is getting rent in lieu of his contribution towards the property. Defendant no. 2 and defendant no. 4 supported the plaintiff that defendant No.1, 3 & 5 be directed to render accounts so that defendant No.4 in proportion to his contribution, can get his share.
Defence of defendant no. 6 (substantially supported the plaintiff)
7. Defendant no. 6 has filed separate written statement. In WS, defendant no. 6 supported the claim of plaintiff and she has also challenged the Will produced by defendant no. 3 and defendant no. 5 during trial. As per defendant no. 6, the Will in question produced by the Defendant No. 3 & 5 after about 5 years of filing the instant suit, is absolutely false & fabricated. It apparently doesn't bear genuine signature of the deceased and New DJ No.9951/16 Page No. 8 of 44 the Will in question is alleged to be executed on 21.09.2011 i.e. just 2 months before leaving his divine soul to heaven. That time it was not even possible for the deceased to go 65 Kms far away to execute the Will at Gurgaon; because he was at age of 84 years and suffering from numerous old age diseases at that time. Alleged partition has never been occurred till date. In fact, apart from the suit property, the deceased Sh. Hari Prasad had an agricultural land at Bawal (Rewari); and in his lifetime Sh. Hari Prasad did an agreement to sale for selling this agricultural land with the buyers and after his demise, all the Legal heirs i.e. the Plaintiff and defendants executed 'Sale Deed' in respect of that agricultural land in favour of the buyers; and the buyers paid the sale consideration directly to all the legal heirs i.e. the plaintiff and the defendants in proportion to their respective shares. That time, neither arose any question about relinquishment of right by anybody in the father's property, nor anybody have relinquished such right.
Replication.
8. The Plaintiff has filed replication to the written statement of defendants thereby reaffirming and reiterating the contents of plaint and denying the contents of written statements.
Issues.
9. On the basis of said pleadings, following issues were framed vide order dated 02.11.2016:
I. Whether the plaintiff is entitled to a preliminary decree of partition in respect of property described as plot no. 4, Khasra No. 19 situated at Village Molar Band Ext. Meethapur, Badarpur measuring 260 sq. yard declaring that the plaintiff New DJ No.9951/16 Page No. 9 of 44 and the defendants are entitled to 1/7th share each in the aforestated property being legal heirs of Late Sh. Hari Parshad?
II.Whether the plaintiff is entitled to a final decree of partition in respect of property described as plot no. 4, Khasra No. 19 situated at Village Molar Band Ext. Meethapur, Badarpur measuring 260 sq. yard as thereby partitioning the property by metes and bounds in equal shares of 1/7th each between the plaintiff and the defendants?
III. Whether the plaintiff is entitled to a preliminary decree of rendition of accounts in respect of the rental income obtained from the suit property in the hands of defendant no. 1 to 5?
IV. Whether the plaintiff is entitled to a final decree of apportioning the rental income obtained from the suit property in the hands of defendant no. 1 to 5 into 7 equal shares between the plaintiffs and defendants?
V. Whether the suit for partition and rendition of account is not maintainable as the property was partitioned amongst the legal heirs of late Hari Prasad and the plaintiff has taken her share of money in the amount of Rs. 20,25,000/- OPD VI. Whether the property described as plot no. 4, Khasra No. 19 situated at Village Molar Band Ext. Meethapur, Badarpur measuring 260 sq. yard was purchased by defendant no. 1 and 2 out of their own funds? If so, it is effect? OPD VII. Relief.
10. Additional issues framed vide order dated 05.02.2019.
Issue no. VI A: Whether late Sh. Hari Prasad has left behind a duly executed Will dated 21.09.2011 in a sound disposing mind vesting and partitioning the suit property in favour of New DJ No.9951/16 Page No. 10 of 44 defendant nos. 1 to 5?OPD 1, 3 and 5.
Issue No. VI B : Whether Will dated 21.09.2011 set up by defendant no. 3 and 5 is a forged and fabricated document? OPP.
Plaintiff's evidence.
11. In order to prove her case, plaintiff has examined herself as PW-1. She has reiterated and reaffirmed the stand taken by her in the plaint by affidavit Ex. PW-1. She has relied upon the documents i.e. General Power of Attorney dated 10.01.1984 Ex.P-1, Affidavit dated 10.01.1984 Ex. P-2, Agreement to sale dated 10.01.1984 Ex. P-3, receipt dated 10.01.1984 Ex. P-4, site plan Ex.P-5, Judgment dated 17.12.2023 Ex. P-6 and copy of bank pass book Ex. P-7. She was cross-examined by Sh. Vijender Kumar, Ld. Counsel for defendant nos.1, 3 and 5. Cross examination on behalf of defendant no. 2 and 4 conducted by Ld. Counsel Sh. Jagat Singh was recorded as Nil opportunity given. PW-1 was not cross examined by defendant no. 6. Thereafter, matter was fixed for defendants' evidence.
Defence evidence.
12. (a) In Defence, on 17.04.2018, Sh. Mohan Lal Kaushik was examined himself as DW-1. He has tendered his evidence by way of affidavit Ex. DW-1/A. His cross examination is deferred as there is no representation on behalf of plaintiff.
12(b) On 19.03.2019, Sh. Jai Narain was examined as DW-1 and was cross examined by Sh. Rajiv Mangla, Ld. Counsel for plaintiff as well as by Sh. Jagat Singh, Ld. Counsel for defendant no. 2 and 4. On the same day, Sh. Surender Singh was examined as DW-2 and was cross examined New DJ No.9951/16 Page No. 11 of 44 by Sh. Rajiv Mangla, Ld. Counsel for plaintiff as well as by Sh. Jagat Singh, Ld. Counsel for defendant no. 2 and 4.
12(c) Thereafter, on 26.07.2022 Sh. Bhupender Kumar Kaushik(defendant no. 2) was examined as DW-2(inadvertently mentioned as DW-2). He has tendered his evidence by way of affidavit Ex. DW-2/A and he was cross examined by Sh. Rajiv Mangla, Ld. Counsel for plaintiff as well as by Sh. Vijender Kumar, Ld. Counsel for defendant no.1, 3 and 5. 12(d) Thereafter, Sh. Mohan Lal Kaushik was again examined as DW-3. He has tendered his evidence by way of previous affidavit Ex. DW- 3/A(earlier tendered as DW-1/A) and he was cross examined by Sh. Rajiv Mangla, Ld. Counsel for plaintiff as well as by Sh. Jagat Singh, Ld. Counsel for defendant no. 2 and 4.
12(e) Thereafter, on 07.08.2019 Sh. Radhey Shyam Kaushik (defendant no. 3) was examined as DW-4 and he was cross examined by Sh. Rajiv Mangla, Ld. Counsel for plaintiff as well as by Sh. Jagat Singh, Ld. Counsel for defendant no. 2 and 4.
12(f) Thereafter, on 21.09.2019 Sh.Umesh Kumar Kaushik(Defendant no. 5) was examined as DW-5. He was cross examined by Sh. Rajiv Mangla, Ld. Counsel for plaintiff as well as by Sh. Jagat Singh, Ld. Counsel for defendant no. 2 and 4.
12(g) Thereafter, on 26.07.2022 Ms. Anju (Defendant no. 6) was examined as DW-6 and she was cross examined by Sh. Rajiv Mangla, Ld. Counsel for plaintiff as well as by Sh. Vijender Kumar, Ld. Counsel for defendant no.1, 3 and 5. Thereafter, matter was fixed for final arguments.
13. I have heard Ld. counsels for both the parties and meticulously gone through the record and also considered the written arguments filed by New DJ No.9951/16 Page No. 12 of 44 them.
Admitted facts.
14. Admittedly, father of the parties purchased the property in 1984 by way of agreement to sell, GPA etc. (though as per defendant nos. 1, 3 and 5, it was purchased from the funds of defendant no. 1 and 2) and in due course, property was constructed. At present, property is having 5 shops and 5 residential units. The defendant nos. 1 to 5 are in possession of one shop each. All the 5 shops have been occupied by tenants while residential units are lying vacant. Defendant nos. 1, 3 and 5 have substantially opposed the claim of plaintiff for partition and rendition of account while defendant nos. 2, 4 and 6 have supported the claim of plaintiff that property should be partitioned and all the legal heirs are entitled to 1/7th shares of the assets left behind their father. Initially all the parties admitted that father of parties died intestate, however, during trial at the stage of DE, defendant nos. 3 and 5 have brought on record one Will dated 21.09.2011 (Ex. DW-1/1) and thereafter, defendant nos. 1, 3 and 5 have heavily relied upon the Will according to which plaintiff and defendant no. 6 i.e. daughters of the testator were barred from having any share in the properties of testator i.e. father of parties.
15. My issue-wise finding is as follows:-
Issue no. VI A: Whether late Sh. Hari Prasad has left behind a duly executed Will dated 21.09.2011 in a sound disposing mind vesting and partitioning the suit property in favour of defendant nos. 1 to 5?OPD 1, 3 and 5.
Issue No. VI B : Whether Will dated 21.09.2011 set up by defendant no. 3 and 5 is a forged and fabricated document? OPP.New DJ No.9951/16 Page No. 13 of 44
All these issues are taken up together as they are interrelated and finding on one issue will have bearing on the other. The onus to prove issues no. I, III and VI B was placed upon the plaintiff while onus to prove issue no. VI A was placed upon defendant nos. 1, 3 and 5. 15 (a) Plaintiff has filed the present suit for partition of the suit and during trial defendant no .1, 3 and 5 have set up the defence that father of parties had executed Will dated 21.09.2011 Ex. DW-1/1. As per the Will, the father of the parties had disowned both daughters i.e. plaintiff and defendant no. 6 on the ground that sufficient expenditure had been incurred in their marriage and both had been given sufficient dowry and both are well settled. Further, in the Will, the testator/ father had stated that all his movable or immovable properties should be divided amongst his sons i.e. defendant nos. 1 to 5 and he had executed an agreement to sale qua agricultural land on 19.09.2001 for the sale consideration of Rs.
1,21,00,000/- per acre and all amount should be given to his sons and daughters should have no share in the same. It is further stated in the Will that the suit property had been purchased on 10.01.1984 from the consideration paid by his major sons (i.e. defendant no. 1 and 2) and it was taken in name of father out of love and affection and after his death, the plot /suit property should be divided in the following manner i.e. each son would get one shop and the three rooms constructed behind the shops will be divided amongst two portions and the vacant portion would be divided amongst three portions in which gallery would be included (nothing mentioned as to who would take which portion of the rooms constructed and vacant place).
15 (b) Plaintiff has filed written arguments and during final New DJ No.9951/16 Page No. 14 of 44 arguments in the Court plaintiff has reiterated the written arguments filed by the plaintiff. Let the written arguments filed by the plaintiff be read as part of record and same are not being reproduced here for the sake of convenience. The plaintiff has relied upon the following judgments of Hon'ble Supreme Court of India in case titled "Janki Narayan Bhoir Vs. Narayan Namdeo Kadam", CA No. 11194/1995, decided on 17.12.2002;
"N. Kamalam Vs. Ayyasamy, CA Nos. 3164-3166/1997, decidd on 03.08.2001;
15 (c) Further, it has been argued on behalf of contesting defendants that father of parties had executed Will on 21.09.2011 Ex. DW-1/1 which was last and final Will of father of parties. Ld. Counsel for defendants had read over the contents of Will and has read over the testimony of DW-1 Sh. Jai Narian. It has been argued that Sh. Jai Narian had proved the signatures of father and he had also deposed that he signed the Will as a witness and also as a scribe. It has been further argued that while evaluating the testimonies of witnesses to the Will, Court has to consider that their testimonies were recorded after elapse of eight years and after eight years nobody can remember the exact details as to who was wearing what on the date of execution of Will. It has been further argued that plaintiff has not brought anyone to prove that signatures of father of parties on the Will, were forged and fabricated and defendants with the help of testimony of DW-1, DW-2, DW-3 and DW-5 have proved that the Will dated 21.09.2011 Ex. DW-1/1 bears signatures of father of parties. Ld. Counsel for defendants has read over the testimony of DW-1/Sh. Jai Narain and has argued that the witness has duly proved by way of his testimony that he had signed the Will as a scriber and also as a witness. It has been further argued New DJ No.9951/16 Page No. 15 of 44 that DW-1 /Sh. Jai Narain has been thoroughly cross examined but even the cross examination could not shake the veracity of the witness and the testimony of DW-1 has remained in support of defendants in toto. Further, Ld. Counsel for defendants has read over the relevant portion from the cross examination of DW-1 /Sh. Jai Narian and has argued that the witness has duly explained why signatures were not put on all pages and he has also explained how he prepared the Will at instance of father of parties and the witness has denied the suggestions of plaintiff that Will was forged and fabricated. Further, DW-1/Sh. Jai Narain duly deposed regarding the intentions of testator i.e. father of parties and he has also explained the terms mentioned in the Will and he has also explained his intention and genuineness of the will and thus, he has duly proved the Will in terms of Section 68 of the Indian Evidence Act which states that at least one attesting witness should prove the execution of Will. Further, Ld. Counsel for defendants has read over the testimony of DW-2/Sh. Surender Singh and it has been argued that Sh. Surender Singh has also signed the Will as a witness and during his testimony he had duly proved the signatures of testator and his own signatures on the Will. It has been further argued that during cross examination, DW-2/Sh. Surender Singh has duly corroborated the testimony of DW-1 /Sh. Jai Narain on all material aspects including the fact that DW-1 had asked the testator to get the Will registered at Bawal. It has been further argued that from the testimony of DW-1 Sh. Jai Narain and DW-2 Sh. Surender Singh, it has been duly proved that late Sh. Hari Prasad i.e. father of parties has signed the Will and there is no dispute as to signatures of the father on the Will. Further, Ld .Counsel for defendants has drawn the attention of the Court towards the order dated 06.12.2019 and it New DJ No.9951/16 Page No. 16 of 44 has been argued that on 06.12.2019 defendant no. 2 and 4 have moved an application for summoning of the account opening form etc. from the bank of their father alongwith his signature card etc. Vide order dated 06.12.2019, the application was allowed, however, defendant nos. 2 and 6 have not taken steps for summoning of the record after lock down, for the reasons best known to them and thus, plaintiff and defendant nos. 2, 4 and 6 cannot dispute the signatures of their father on the Will, only through the oral averments without producing any record or evidence. Further, Ld. Counsel for defendant has argued that Court is not required to look into the mode as to how Will has come on record and the Court has to consider only the intentions of testator. Ld. Counsel for defendants has read over the order dated 07.09.2018 whereby the application of defendant nos. 3 and 5 to amend the WS incorporating the facts as to existence of Will dated 21.09.2011, was allowed and it has been argued that in the order dated 07.09.2018 Court has already appreciated the fact regarding discovery of Will and has taken the Will on record by way of amendment in WS of defendant nos. 3 and 5. Further, to counter the objection of plaintiff in respect to section 62 of Indian Evidence Act that will should be attested by two witnesses, Ld. Counsel for defendants has relied upon the judgment of Hon'ble High Court of Delhi in case titled as "Harjeet Singh v. Surender Singh", RFA No. 24/2018, decided on 18.01.2018. It has been further argued that the same judgment has held that the scriber of the Will can be an attesting witness and there is no bar on the same and in the present matter also DW-1/Sh. Jai Narain has duly proved by way of his testimony that the he signed the Will as an attesting witness and as a scriber also. It has been further argued that in the present matter purchase of the property New DJ No.9951/16 Page No. 17 of 44 is not disputed but it is also settled principle that the documents i.e. agreement to sell etc. don't confer any ownership upon the buyer and in the present matter, plaintiff has relied upon agreement to sell, GPA etc. executed in favour of father of parties but these documents cannot confer ownership to the father and once the ownership is not conferred to the father, no question of partition arises. It has been further argued that in the present matter purchase happened with unregistered documents and by way of document like agreement to sell, GPA etc. the father got right to execute further sale deed but he never exercised his right and therefore, the ownership of the father is not proper as absolute title has not been transferred in favour of father and therefore, property cannot be partitioned as prayed by plaintiff. Further, Ld. Counsel for defendants has relied upon the judgment of Hon'ble Supreme Court of India in case titled as "Shakeel Ahmad Vs. Syed Akhlaq Hussain", Civil Appeal No. 1598 of 2023. It has been further argued that plaintiff has sought the relief of rendition of account but during entire trial, plaintiff has not brought anything on record to prove how much rent is being paid to defendants and who is taking how much amount. It has been further argued that during cross examination, plaintiff admitted that she had added additional averments in her examination in chief tendered by way of affidavit and therefore, that part of affidavit of plaintiff cannot be read as evidence against the defendants. It has been further argued that neither plaintiff nor defendant no. 2 and 4 have brought anything on record to dispute the signatures of father on Will and apart from bald averments, no evidence is there on record to entitle the plaintiff for the relief of rendition of account. It has been further argued that defendant nos. 1, 3 and 5 have duly proved the Will dated 21.09.2011 Ex.New DJ No.9951/16 Page No. 18 of 44
DW-1/1 and in terms of Will plaintiff and defendant no. 6 are not entitled for any share in the properties of their father and therefore, the suit of the plaintiff is liable to be dismissed.
15 (d) Arguments heard. Record perused.
15 (e) To prove the Will dated 21.09.2011 contesting defendants have examined two witnesses i.e. Sh Jai Narain i.e. scriber of the Will as DW-1 and Mr. Surender Singh i.e. witness of the Will as DW-2. Both DWs have deposed that they had signed the Will at behest of late Sh. Hari Prasad i.e. father of parties and he has signed the Will in their presence and they have identified the signatures of testator.
15 (f) The testimony of DW-2 Sh. Surender Singh is coherent and cogent and no major contradiction has come on record during his testimony. He has duly deposed that he signed the Will in presence of testator and he admitted that he had signed the Will only at last page and testator had also signed the Will at the last page only. Ld. Counsel for plaintiff has pointed out towards the contradictions in the testimonies of DW-1 Sh. Jai Narain and DW-2 Sh. Surender Singh with respect to the fact as to who was wearing what and who typed the Will. As far as these contradictions are concerned, there is strength in the arguments of contesting defendants that the testimonies of these witnesses are to be read while keeping in mind that their testimonies were recorded after eight years and therefore, minor contradictions are bound to happen due to human nature. The Court is in agreement with the Ld. Counsel for contesting defendants and therefore, it is clear that the above mentioned contradictions are not material contradictions.
Testimony of DW-1 contradictory to the stand of contesting New DJ No.9951/16 Page No. 19 of 44 defendants.
15 (g) In the present matter, DW-1/Sh. Jai Narain has deposed that "on 21.09.2011 he wrote a Will on behest of late SH. Hari Prasad /father of parties and the testator bequeathed suit property to his five sons i.e. defendant no. 1 to 5 and clearly stated that nothing should be given to his daughters". DW-1 further deposed that "..... He especially has mentioned in his Will that he present want to give even in single inch in a plot situated at Delhi because that plot was purchased from the income invested by his all five sons. Hari Prasad did not invest even any single penny in that plot. However, their sons transferred this plot at the time of registration in the name of Hari Prasad as a token of respect.....". But as per contesting defendants, the suit property was purchased from the funds of defendant nos. 1 and 2 and it was never their stand that suit property was purchased by all brothers and thus the testimony of DW-1 is contradictory to the stand of contesting defendants. The contradictions mentioned above is material as only last page of the Will Ex. DW-1/1 bears signatures and therefore, the ocular evidence of DWs to prove the terms of Will is important.
Admission that only last page bears signature of testator, attesting witness and scriber.
15 (h) DW-1/ Sh. Jai Naraian further deposed that ".....The Will written by me was read over to the testator and the witness simultaneously. The testator signed the Will as correct and the attested witness Surender Singh also signed in my presence and later when I asked about the second witness he requested you should stand as a second witness and the subscriber as well. After having done this, I handed over the Will to the New DJ No.9951/16 Page No. 20 of 44 testator for his further records and reference.....".
Further during cross examination, DW-1 deposed that "....It is correct to suggest that I have signed page no. 5 only of Ex. DW-1/1. It is correct to suggest that I have not placed any signatures from page no. 1 to 4 of Ex. DW-1/1. I did not instruct the testator and the attesting witness to sign on each and every page of Ex. DW-1/1......I recognize all the pages from 1 to 5 Ex. DW-1/1 as the said document was get typed by me at the behest of Late Hari Prasad Ex. DW-1/1 is not typed by me. It was get typed at Riwari from one of the computers. The operator of the computer who typed Ex. DW-1/1 was not known to me. I do not know the name of the computer operator. This computer operator usually sit at Riwari......"
Thus, DW-1 admitted that only last page of Will Ex. DW-1/1 was signed by him and other witness and by testator (i.e. father of parties) and first four pages don't bear signatures of anyone.
Doubt over the credibility of Will.
15 (i) The fact that first four pages of Will don't bear signatures of anyone, creates a serious doubt over the credibility of the Will. Generally, when a document runs into several pages, signatures are put on each and every page to give sanctity to the documents. In the present case, the first four pages of the Will do not bear signature of anyone, therefore, no sanctity can be attached to the first four pages of Will. Moreover, what if the four pages are replaced by the other four pages. It cannot be assured that these are the same four pages which were written at behest of the testator i.e. father of parties. What if the first four pages are changed with the averments of the plaintiff and are attached with the last signed page of the Will. Moreover, perusal of Will Ex. DW-1/1 shows that first three pages New DJ No.9951/16 Page No. 21 of 44 of the Will are having different font and different colour in comparison to last two pages of the Will. Further, even the third page of the Will is having slightly different font than first two pages of the Will. Though DW-1 has deposed that he had not asked the testator and witness to sign the first four pages of the Will but this explanation is not sufficient to clear the clouds created over the credibility of the Will.
Due execution of Will by two attesting witnesses.
15 (j) Further, a lot has been argued on behalf of plaintiff and contesting defendants on the issue whether Will is attested by two witnesses as required by Section 63 (c) of Indian Succession Act 1925. In nutshell it has been argued on behalf of plaintiff that Will Ex. DW-1/1 shows the name of one witness only and there is no heading of witness no. 2 and Mr. Jai Narain(DW-1) has signed the Will as a scriber and not as a witness and he cannot be a witness and therefore, Will has not been executed properly. On the other hand as per contesting defendants, Mr. Jai Narain (DW-1) had signed the Will as a scriber and as a witness too and he has proved the same by way of his testimony and thus, Will has been executed properly.
15 (k) For deciding the present matter, it would be appropriate to reproduce the relevant provisions i.e., Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872 which reads as under:
"Section 63 of the Succession Act
63. Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed New DJ No.9951/16 Page No. 22 of 44 or engaged, or a mariner at sea, shall execute his Will according to the following rules:-
(a)The testator shall sing or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has 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 of 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."
Section 68 of the Evidence Act "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 it's execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx"New DJ No.9951/16 Page No. 23 of 44
15 (l) Thus, to prove that Will has been duly executed, the requirement mentioned in Clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e., (a) the testator has to sign or affix his mark to the Will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a Will; (c) that the Will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witnesses has to sign the Will in the presence of the testator. Clearly, one of the requirements of due execution of Will is its attestation by two or more witnesses which is mandatory. 15 (m) Coming to the facts in hand, perusal of Will Ex. DW-1/1 shows that Mr. Surender Singh has signed the documents as witness no. 1 and in the Will there is no heading of witness no. 2. DW-1 Sh. Jai Narain has signed the Will and his signatures have been appended on the stamps "Drafted by.... Jai Narain, ADV..., F.Nagar, Gurgaon". Thus, DW-1 /Sh. Jai Narain has signed the Will as s scriber and not as a witness. His oral testimony that he signed the Will as a witness is contradictory to the written documents. Moreover, no reason is coming forward why DW-1/Sh. Jai Narain has not signed the Will separately under the head of witness if the testator asked him to sign the Will as a witness too, specifically considering New DJ No.9951/16 Page No. 24 of 44 the fact that he is an advocate and therefore, he being legally educated person cannot act carelessly or make the statement loosely when it comes to legal requirements. As far as the judgment of "RAM NIWAS RANA & ORS Vs. ANIL KUMAR & ORS,(SUPRA)" relied upon by contesting defendants is concerned, the judgment is not applicable to the facts in hand as in the said case the Will was registered Will and the Will was signed by the testator as well as by the scriber on each and every page.
Interestingly in the amended written statement of defendant no. 3 and 5 as well as during their evidence, it has been specifically stated that "the said Will was duly witness by Mr. Surender Singh s/o Late Sh. Prabhati Lal Sharma". Thus, in the pleadings no such plea has been taken by the contesting defendants that Will was signed by Mr. Jai Narain (DW-
1) as a scriber and also as a witness. Therefore, the plea that DW-1/ Sh. Jai Narain has signed the Will as a scriber and also a Will, is not only beyond the pleadings but also seems an improvisation as afterthought.
Thus, the Will has not been duly executed in terms of Section 63 (c) of the Indian Evidence Act, 1872 as it has not been signed /attested by at least two witnesses.
Doubts over the recovery of Will.
15 (n) Further, the testimonies of defendant no. 3/ DW-4 Sh. Radhey Shyam Kaushik and defendant no. 5/DW-5 Sh. Umesh Kumar Kaushik create reasonable doubts over the circumstances under which Will has been found. Both the witnesses have deposed that in the last week of June 2018 when defendant no. 5 was searching for documents at his house, he came to know that their father executed last and final Will dated 21.09.2011 Ex. DW-1/1 according to which plaintiff and defendant no. 6 had no right over New DJ No.9951/16 Page No. 25 of 44 the suit property and the same was to be divided amongst defendant no. 1 to 5. Both DWs have not disclosed the exact date when Will was found and have not disclosed exact portion of the house from where the Will was found and the testimonies of both witnesses are vague and loose which seems odd.
Further, during examination in chief by way of affidavit, both DW-4/defendant no. 3 and DW-5/defendant no. 5, deposed that defendant no. 5 recovered the Will while searching for the documents. However, during cross examination DW-4/defendant no. 3 deposed that: "I alongwith defendant no. 5 were searching the documents concerning the Bawal property, then we found this Will. At that time, only I and defendant no. 5 were present. We were searching the documents at our house in Bawal in which I reside. I am residing in this house since 10.06.2012, after leaving the defendant no. 5.....We were searching the documents concerning the Bawal properties which concern to all the legal heirs of my father. Then we showed these documents to our advocates in Bawal who advised us to show the Will to our advocates in Delhi.....
Further, DW-5/defendant no.5 deposed during cross examination that "......I am not residing in the house in Bawal from where Will dated 21.09.2011 was found. I am residing in Rewari. In the house of Bawal, my brother Radhey Shyam/defendant no. 3 is residing. At that time, when we found the said Will, the defendant no. 3 was also present with me......"
Thus, both DW-4 and DW-5 have taken new plea that when defendant no. 5/DW-5 found the Will, defendant no. 3/DW-4 was also present. Further, interestingly the testimony of defendant no.1/DW-3 Sh.
New DJ No.9951/16 Page No. 26 of 44Mohan Lal Kaushik was recorded on 07.05.2019 after amendment of issues with respect to Will but he has not uttered even a single word with respect to the Will in his examination in chief recorded by way of affidavit.
Further, even for the sake of arguments, it is considered that defendant nos. 4 and 5 found the Will, even then the following questions remained unanswered that is (i) Why the property documents of suit property were not searched by the contesting defendants earlier when the suit was filed and why in between the litigation, they searched the documents in the hope of getting any new document; (ii) How come that none of the contesting defendants remember the exact date when Will was found, despite the fact that Will is such an important document that it could have defeated the case of the plaintiff; (iii) Why none of the contesting defendants could disclose as to the exact portion of the house where they were searching the Will whether in any almirah in any room or in any suitcase etc. Further it is also strange that the Will was found after completion of plaintiff's evidence at the stage of DE and the Will contains the same averments as made by the contesting defendants in the WS. The Court has taken on record the Will vide order dated 07.09.2018 but Court has not adjudicated the evidentiary value of Will or the circumstances under which Will was found and therefore, the order dated 07.09.2018 cannot be read as if it has attached any sanctity to the Will or to the circumstances under which Will was found.
15 (o) Further, as per Will Ex. DW-1/1 the sale amount of agricultural land should not have been given to plaintiff and defendant no. 6 while admittedly, plaintiff and defendant no. 6 have received a sum of Rs.
New DJ No.9951/16 Page No. 27 of 4420,25,000/- from the sale proceeds of agricultural land in Bawal. Surprisingly, none of the contesting defendants has objected to the same till date nor they have filed any suit for recovery against the plaintiff and defendant no. 6.
Further, admittedly succession certificate dated 17.12.2013 has been issued by the Court in Rewari, Haryana, in respect of equal distribution amount lying in the savings bank account of father of parties. In pursuant to the same, plaintiff has received approx. Rs. 02 lacs in her bank account and same was admitted by DW-4/defendant no. 3 during his cross examination that "It is correct that a succession case was contested in the Rewari Court for distribution of my father's bank balance. It is also correct that succession certificate were issued in this case, after that this bank balance was released to all the legal heirs of my deceased father i.e. the plaintiff and all the defendants...."
Strangely this judgment has not been challenged by the contesting defendants despite discovery of Will in the last week of year 2018.
Both these bank transfers in favour of plaintiff support the claim of plaintiff that plaintiff has right to get equal shares in the suit property. Objection as to title of the father by the documents I.e of agreement to sell, GPA etc
16. (a) Further, during arguments the contesting defendants have raised question over the title of father of the parties. During arguments the contesting defendants have argued that admittedly, the suit property was purchased in the name of father of parties but no absolute title has been transferred in favour of father of parties as GPA, agreement to sell etc. cannot confer ownership or title of the property in favour of father of New DJ No.9951/16 Page No. 28 of 44 parties and once there is no ownership in favour of father, question of partition does not arise at all. Ld. Counsel for contesting defendants relied upon the judgment of Hon'ble Supreme Court of India in case titled as "Shakeel Ahmad Vs. Syed Akhlaq Hussain", Civil Appeal No. 1598 of 2023.
None of the parties produced originals 16 (b) During evidence plaintiff has relied upon GPA (Ex. P1), affidavit (Ex. P2), agreement to sell(Ex. P3) and receipt (Ex. P4), executed in favour of father of parties with respect to suit property. Admittedly these are photocopies and none of the documents is in original.
During trial on 16.04.2014, plaintiff has moved an application for seeking directions to defendant no. 1 to 5 to file the original documents on the ground that originals are in possession of defendants. However, the order dated 11.07.2014 records as follows:
"Ld. Counsel for defendant nos. 2 and 4 submits that defendant nos. 2 and 4 are not in possession of original title documents, however, requests time to file reply...."
Further, order dated 14.05.2015 records as follows:
"Today the case is coming up for admission/denial of documents. There are no documents filed on record by the defendants. Ld. Counsel for defendant nos. 1, 3 and 5 submits that the said defendants are not in custody of any of the original documents. There are only photocopies filed on record by the plaintiff. All documents filed by plaintiff are subject to proof in evidence. Stage of admission/denial of the documents is taken as complete......"
Thus, all the parties admitted that none of the parties is in New DJ No.9951/16 Page No. 29 of 44 possession of original documents. Therefore, once it is proved that primary evidence is not available, Court is required to look into the secondary evidence.
Conclusion that defendant no. 1 intentionally withhold the originals 16 (c) Further, during cross examination defendant no. 1/DW-3 admitted that he has original papers of four other properties which he purchased out of his funds. Strangely, he is not in possession of original papers of suit property despite the fact that as per defendant no. 1, father of parties purchased the suit property from the funds of defendant no. 1 and 2.
Further, during cross examination, Defendant no. 3/DW-4 admitted that " my father was in possession of original title deed of the suit property but I don't know who is in possession of these documents after death of my father. I never kept these documents."
Further, during cross examination defendant no. 5/DW-5 deposed that "I don't know as to who has taken possession of valuable documents and property documents of my father after his death. It is correct that said documents are not in my possession."
Further, defendant no. 1 /DW-3 deposed during cross examination that "the seller handed over the documents concerning purchase of suit property to me. I don't remember as on this date whether I am in possession of documents of suit property."
Thus, defendant no. 3 and 5 have categorically deposed that they are not in possession of in original title documents while defendant no.1/DW-3 has given totally evasive reply and it seems that he has intentionally withhold the original documents.
16 (d) Further, as far as plea of defendants that GPA, agreement to New DJ No.9951/16 Page No. 30 of 44 sell etc. does not confer title in favour of their father is concerned, the contesting defendants have not raised this issue during pleadings and even during trial no such objections was taken, therefore, this argument seems an afterthought just to defeat the case of plaintiff.
Preponderance of probabilities.
16(e) The civil case are to be decided on the basis of preponderance of probabilities. Preponderance means the evidence that persuades a judge to lean to one side as opposed to the other, during the course of litigation. In Lowery Vs. Albama Power Co. 483 F 3D 1184 (2007) Justice Gerald TJO flat of the United States Court of appeals wrote :-
"Preponderance of the evidence (means) the greater weight of the evidence, superior evidenciary weight; that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other."
The party bears the burden to prove his claim by preponderance of the evidence. When a party has a burden of proof it means they must be able to persuade by the evidence that the claim is more probably true then not. The evidence on one side is perceived outweighing the other, if the evidence on one side is more persuasive and impressive than the evidence of other side. The concept of 'preponderance' of the evidence can be visualized as a scale representing the burden of proof, with the totality of evidence presented by each side resting on the respective trays on either side of the scale. If the scale tips ever so slightly on one side or the other, the weightier side will prevail. If the scale does not tip towards the side of ail.7 the party bearing the burden of proof, party cannot prevail. 16 (f) Coming to the facts in hand, all the contesting defendants have New DJ No.9951/16 Page No. 31 of 44 categorically admitted throughout the trial that property was purchased in the name of father and none of the defendants have produced title documents executed in their favour and therefore, it can be concluded safely that father of parties had better title than the contesting defendants. None of the defendants could establish a better title than his father. During his lifetime, father of the parties was admittedly collecting the rent of the suit property and thus, father was in constructive possession of property till his death and only after his death, the defendants started collecting rent from the shops. Further, the contesting defendants have taken the plea that father of parties never resided in the suit property. However, during cross examination DW-3/defendant no. 1 admitted that the suit property was shown as residential address of his father in his voter card. Though defendant no. 1 /DW-3 stated that voter card has been prepared by defendant no. 2 fraudulently but there is nothing on record to substantiate the plea of defendant no. 1. Therefore, there is no dispute that defendant no. 1 to 5 have derived the title and possession of the suit property from their father only and therefore, on the basis of rule of estoppel, they are estopped from questioning the title of their father. Moreover, it seems that the objections as to title of the father has been raised just to stop the plaintiff from claiming her share in the property. Clearly, the preponderance of probabilities does not lie in favour of contesting defendants, therefore, objection of contesting defendants is dismissed.
17. Further, during evidence defendants have internally tried to establish that some of the properties bought by defendant no. 1 /DW-3, were bought from the funds of father of parties and it was also pleaded by defendant no. 2 and 4 that defendant no. 5 has taken gold and silver jewellery of their New DJ No.9951/16 Page No. 32 of 44 mother while depriving others of their shares. From the perusal of entire record it is clear that apart from bald averments nothing has come on record to substantiate that any of the property belonging to defendants was purchased from the funds of father or defendant no. 5 had taken any jewellery of their mother.
In view of above said discussion, issue no. VI A and VI B are decided in favour of plaintiff and against the contesting defendants i.e. defendant no. 1, 3 and 5.
18. Issue no. V: Whether the suit for partition and rendition of account is not maintainable as the property was partitioned amongst the legal heirs of late Hari Prasad and the plaintiff has taken her share of money in the amount of Rs. 20,25,000/- OPD The onus to prove this issue was upon the contesting defendants. 18 (a) It has been argued on behalf of contesting defendants that after demise of their father, plaintiff and defendant no. 6 have taken their shares and it was orally decided that plaintiff and defendant no. 6, being female heirs of their father, would not claim any right in the movable and immovable properties of their father.
18 (b) On the other hand, Ld. Counsel for plaintiff has argued that plaintiff had received a sum of Rs. 20.25 lacs out of sale proceeds of agricultural land sold by the father during his life time and plaintiff had never agreed that she would not claim any right, title or share in the property of her father.
18 (c) Arguments heard. Record perused.
Denial by the plaintiff that she had already taken her share.
New DJ No.9951/16 Page No. 33 of 4418 (d) Upon cross examination on the averments of issue no. V, plaintiff deposed that : "......The agricultural property was situated in village Bawal in district Rewari which was ad-measuring about 3.75 killas. An agreement to sell concerning this property was done in year 2011 by my father. He expired on 02.12.2011. it is correct that I had received about Rs. 20,00,000/- out of the sale proceeds. I cannot tell the total sale consideration. Again said, it was over Rs. 1 crore. My share was 1/7. It is incorrect to suggest that after receiving the amount of Rs. 20,00,000/- towards my share, I had no right or interest in any other property of my father......"
Thus, plaintiff denied that after receiving Rs. 20 lacs, she has no right title or claim in the suit property or she ever agreed that after receiving the said amount, she would not claim any share in the remaining property.
Admission by defendant no. 1 that no partition.
18 (e) Further, during cross examination, defendant no. 1/D3 (Mr. Mohan Lal Kaushik) admitted that ".....My father had certain agricultural land in Bawal, Rewari district. It is correct that my father did an agreement to sale of this agricultural land before his death. It is correct that my father expired before execution of the sale deed in respect of this property. I got my share of the sale proceed of the above agricultural land. I do not remember whether all my brothers and sisters got their part of sale consideration in respect of this property. The purchaser had directly transferred the share of sale consideration of each legal representative in their account directly.......it is correct that no family settlement was ever penned down.....
New DJ No.9951/16 Page No. 34 of 44......My father had certain agricultural land in Bawal, Rewari district. It is correct that my father did an agreement to sale of this agricultural land before his death. It is correct that my father expired before execution of the sale deed in respect of this property. I got my share of the sale proceed of the above agricultural land. I do not remember whether all my brothers and sisters got their part of sale consideration in respect of this property. The purchaser had directly transferred the share of sale consideration of each legal representative in their account directly.......It is correct that no family settlement was ever penned down...... There was no any such agreement in written which shows that plaintiff is not entitled for her share in her father's property. No partition had taken place between the co-shares and me after the death of late Hari Prasad....".
Thus, defendant no. 1 /DW-3 admitted that no partition had taken place between parties and this admission is in contradiction to the defence of contesting defendants.
Admission by defendant no. 3 too that no partition between parties. 18 (f) Further, even defendant no. 3/DW-4 (Mr. Radheshyam Kaushik) admitted during cross examination that "......It is correct that the sale consideration received out of agricultural land in Bawal was received by the plaintiff and all the defendants in equal proportion. (Vol. All the legal heirs have executed the sale deeds in respect of their shares in the property and accordingly received sale consideration of their part). It is correct that my father had executed an agreement of sale in respect of this agricultural land before his death. It is also correct that my father expired before execution of the sale deed in respect of this property.......No New DJ No.9951/16 Page No. 35 of 44 settlement had taken place in the lifetime of my father for partition of the properties between the plaintiff and the defendants....." 18(g) Further, defendant no. 5/DW-5 (Mr. Umesh Kumar Kaushik) also deposed during cross examination that ".......It is correct that sale consideration of the agricultural land in Bawal was equally distributed between seven legal heirs i.e. the plaintiff and the defendant no. 1 to
6......It is correct that agreement to sell in respect of land in Bawal was executed by my father. He received an amount of Rs. 12,00,000/- at the time of execution of agreement to sell. The said amount was deposited in the account of my father....".
18(h) Thus, all the three contesting defendants admitted that father of parties had entered into agreement to sell qua the agricultural land in Bawal (Rewari) during his life time and thereafter, he passed away. After the death of their father, the purchaser had paid the remaining amount in equal portions to all the parties herein and admittedly, plaintiff and all the defendants had received a sum of Rs. 20.25 lacs each in their bank account towards the sale proceeds of agricultural land. Further, defendants have admitted during cross examination that no partition had taken place between parties. Thus, defendants have failed to prove that the sum of Rs. 20.25 lacs was paid to plaintiff towards her share in the property, in pursuant to the partition between parties.
In view of the same, the issue no. V is decided in favour of plaintiff and against the defendants.
19. Issue no. VI : Whether the property described as plot no. 4, Khasra No. 19 situated at Village Molar Band Ext. Meethapur, Badarpur measuring 260 sq. yard was purchased by defendant no. 1 New DJ No.9951/16 Page No. 36 of 44 and 2 out of their own funds? If so, it is effect? OPD 19(a) The onus to prove this issue was upon the defendants. The defence of defendant nos. 1, 3 and 5 is that defendant no. 1 and defendant no. 2 had bought the suit property from their funds and it was taken in name of father of parties out of love and affection.
Testimony of defendant no. 2 that he had not paid sale consideration, unrebutted.
19(b) Interestingly during DE, defendant no. 2 Sh. Bhupender Kumar Kaushik had entered into witness box as DW-2 and tendered his evidence by way of affidavit Ex. DW-2/A, in lieu of examination in chief. During DE, defendant no. 2 /DW-2 (Sh. Bhupender Kumar Kaushik) had completely changed his defence and he supported the claim of plaintiff. He deposed that the father of parties died intestate and he had purchased the suit property solemnly out of his funds in 1984 and during course of time, father got the property constructed out of his own funds. He also deposed that he has objection if the suit property is partitioned between all the seven legal heirs.
Defendant no. 2/DW-2 (Sh. Bhupender Kumar Kaushik) was cross examined by defendant no. 1, 3 and 5 but DW-2 was not cross examined regarding the above deposition/averments nor any suggestion had been given that averments of DW-2 corroborating the plea of plaintiff, are false and fabricated. He was also not cross examined on the aspect that father had bought the property in 1984 from his funds and later on constructed the same from his own funds. Thus, the testimony of defendant no. 2/DW-2 remained unrebutted on the plea that father purchased the property from his own funds and defendant no. 2 had not contributed in it.
New DJ No.9951/16 Page No. 37 of 44No proof that defendant no. 1 and 2 paid consideration. 19(c) Further, the contesting defendants have not brought any document or any other proof on record to prove that defendant no. 1 and 2 had paid the consideration amount, not the father.
DW-3(defendant no. 1) was cross examined regarding the details of the purchaser of suit property and DW-3 deposed that "....... At the time of purchasing the suit property, I alongwith defendant no. 2 and my father were present at the time of discussion. The documents concerning the suit property were prepared by the seller himself and thereafter the sale consideration was paid. I do not know the place where the documents concerning the suit property were prepared. The seller handed over the documents concerning purchase of the suit property to me. I do not remember as on this date whether I am in possession of documents of the suit property. It is wrong to suggest that entire sale consideration in respect of the suit property was paid by me deceased father. It is wrong to suggest that entire expenses towards construction of the suit property was also borne by my deceased father.....
....it is correct that there is no mention either in plaint or in my affidavit of evidence that how much money was paid by me and by defendant no. 2 for purchasing of suit property....."
Thus, defendant no. 1 (DW-3) admitted that he had not given details as to what was the sale consideration and who paid how much amount and from whom the property was purchased etc. 19(d) Further, DW-4 /Defendant no. 3 (Sh. Radhey Shyam Kaushik) deposed during cross examination that "......The suit property was purchased in about 1984. I do not know the sale consideration paid for New DJ No.9951/16 Page No. 38 of 44 against this property. I do not know from whom this property was purchased.......I was living at Bawal and was studying in a school at Bawal at the time of purchasing the property......
........... I was not present when the suit property was purchased. I do not know how much sale consideration was paid for purchasing this property. It came to know from family that the sale consideration was paid by the defendant no. 1 and 2.....There is no proof with me for investing money by defendant no. 1 and 2 for purchasing the suit property......"
Thus, defendant no. 3/DW-4 admitted that he was not present when the suit property was purchased. Even during testimony, he could not disclose the details of purchase of the property as to who paid how much amount and from whom the property was purchased and how much was the sale consideration etc. Thus, his testimony is only hear say evidence without any supporting documents and is in contradiction to testimony of defendant no. 2 who deposed that he had not paid any consideration amount.
19(e) Further, during cross examination, defendant no. 5/DW-5 Sh. Umesh Kumar Kaushik deposed during cross examination that : ".......The witness has not answered the question as who had told him that the amount regarding purchase of suit property was paid by whom.(vol. At that time, there were only two earning members in the family, one is the defendant no. 1/Mr. Mohan Lal Kaushik and second is the defendant no. 2/Mr. Bhupender Kumar Kaushik......"
Thus, even the testimony of DW-5 is general in nature and even he has failed to disclose the details of the alleged transaction of purchase of suit property by defendant no. 1 and 2.
New DJ No.9951/16 Page No. 39 of 44Merely because defendant no. 1 and 2 were working, no proof of purchase of suit property.
19(f) Except the admission of parties that defendant no. 1 and defendant no. 2 were working at the time when suit property was purchased in 1984, there is nothing on record to corroborate the plea of defendants that the suit property was bought from the funds of defendant no. 1 and defendant no. 2. Merely because defendant no. 1 and defendant no.2 were working at the relevant time period, does not ipso facto prove that the consideration was paid by them, specifically in view of the fact during DE, DW-3/defendant no. 1 (Sh. Mohan Lal Kaushik) admitted that "I have three or four immovable properties apart from the suit property. All these properties are in Badarpur ". Thus, defendant no. 1 has purchased properties in his name and no reason is coming forward why he would purchase the suit property in name of his father while he would purchase remaining properties in his name.
Further, DW-3/defendant no. 1(Sh. Mohan Lal Kaushik) admitted that "......I purchased one property in 1980 with the help of funds given by one of the relative (father in law) and I returned the funds in the same year. My father-in-law gave the entire sale consideration but it was in thousands....."
Thus, in 1980, defendant no. 1 purchased the property from funds given by his father-in-law, it means that he was not having money in 1980 and later on he returned the money to his father-in-law. Then, how had he arranged the funds to pay the sale consideration of suit property in 1984. Moreover, if he wanted to secure interests of his parents, he would have bought the property which he purchased in 1980, in the name of father New DJ No.9951/16 Page No. 40 of 44 only.
No explanation why rent was collected by father during his life time. 19(g) Further, DW-3/defendant no. 1(Sh. Mohan Lal Kaushik) admitted during cross examination that "....The rent of the shops situated in the suit property are being collected by all sons of my deceased father, after the death of my father. Each son is having one shop. Two room situated in the suit property are in my possession, while one room is in possession of defendant no. 4....".
Similarly, DW-4/defendant no. 3(Sh. Radhey Shyam Kaushik) admitted during cross examination that "......defendant no. 1 to 5 are collecting the rental income generated from the shops situated in the suit property. Prior to death of my father, the defendant no. 1 used to collect the rent and hand over the same to my father. My father was in possession of the original title deeds of the suit property, but I do not know who is in possession of these documents after the death of my father.......".
Similarly DW-5/defendant no. 5(Sh. Umesh Kumar Kaushik) admitted during cross examination that "......I came into possession of one of the shops in the suit property after death of my father. My father used to receive the rent of said shops before his death......".
Now, the contesting defendants could not give any explanation why the rent of shops was being collected by father of the parties during his life time when the property was purchased in the name of father only out of love and affection and why after the death of father, rent is being collected by defendant nos. 1 to 5 and not by defendant nos. 1 and 2 only. Futile attempt to assail the financial capacity of father. 19(h) Further, during DE, defendant no. 1, 3 and 5 have tried to New DJ No.9951/16 Page No. 41 of 44 assail the financial capacity of father in 1984 to pay the sale consideration of the suit property but while evaluating the same, the court has to keep in mind that admittedly, father of parties owned agricultural land too and the same was sold for approximately Rs. 1.52 crores at least (as each parties herein has received Rs. 20 lacs apart from the earnest money of Rs. 12 lacs taken by father of parties at the time of agreement to sell, as deposed by DW-5/defendant no. 5 during evidence that at the time of agreement to sell, my father had received Rs. 12 lacs. It seems improbable that father of parties who admittedly was active till his death would not have means to purchase the property in 1984.
Moreover, admittedly property documents had been executed in name of father, therefore, presumption would be that he paid the sale consideration and the onus was upon the defendants to rebut he presumption but defendants have not produced any evidence apart from bald averment that sale consideration was paid by defendant no. 1 and 2. 19(i) Thus, apart from bald averments, contesting defendants have completely failed to prove that property was purchased from the funds of defendant no. 1 and 2. They have also failed to prove the details as to from whom the property was purchased, what was the sale consideration and who paid how much amount. No reason is coming forward why contesting defendants could not prove the terms and conditions of the purchase of suit property by ocular evidence.
Therefore, issue no. vi is decided in favour of plaintiff against defendants.
20. Issue no. i : Whether the plaintiff is entitled to a preliminary decree of partition in respect of property described as plot no. 4, Khasra New DJ No.9951/16 Page No. 42 of 44 No. 19 situated at Village Molar Band Ext. Meethapur, Badarpur measuring 260 sq. yard declaring that the plaintiff and the defendants are entitled to 1/7th share each in the aforestated property being legal heirs of Late Sh. Hari Parshad? OPP Issue no. iii : Whether the plaintiff is entitled to a preliminary decree of rendition of accounts in respect of the rental income obtained from the suit property in the hands of defendant no. 1 to 5? OPP.
In view of above discussion upon the findings on other issues, it is clear that Court has already held that father of plaintiff was owner of the suit property and all the defences raised by the contesting defendants have been discarded during findings upon issue no. V, VI, VIA and VI B. Admittedly, plaintiff and defendants are class 1 legal heirs of their father and therefore, they are entitled for equal shares in the property of their father. Accordingly, all the parties are entitled to 1/7 share each in the suit property.
21. As far as the relief of rendition of account is concerned plaintiff has not led any evidence to prove the amount of rent being received by the defendant no. 1 to 5, though it is admitted fact that after death of father of parties rent is being collected by defendant no.1 to 5. During cross examination, defendant no. 5 /DW-5 has deposed "there are five shops in the suit property and I am also having some rental income from the said shops. It will be around Rs. 3000/- per month. Some time there is no tenant in the said shops". Thus Court can assume that suit property is fetching rent of least Rs. 15000/- per month from all the shops and it should be distributed amongst all parties equally and each party is entitled to 1/7 share in the rent from death of their father i.e. 02.12.2011 till today and also New DJ No.9951/16 Page No. 43 of 44 from the preliminary decree onwards.
Accordingly, issue no. i and iii are decided in favour of plaintiff and against the defendants.
Relief.
22. In view of findings on aforesaid issues, the suit of the plaintiff is decreed and thereby the plaintiff and defendants are held to be entitled to 1/7th share each in the suit property i.e. plot no. 4, measuring 260 sq. yard in Khasra No. 19, situated at Village Molar Band Extension, Meethapur, Badarpur, New Delhi. Interim order dated 22.02.2013 to continue and parties are restrained from creating third party interest in the property till final decree is drawn. Preliminary decree of partition be drawn accordingly.
Typed to the dictation directly, (Prabh Deep Kaur)
corrected and announced ADJ-05/South East,
in the open court on this day Saket Courts, New
of 29th May, 2024. Delhi/29.05.2024
New DJ No.9951/16 Page No. 44 of 44