Delhi District Court
Prannath Sharma vs Shashi Shankar & Ors. on 19 March, 2012
Prannath Sharma Vs Shashi Shankar & Ors.
IN THE COURT OF SHRI VIRENDER KUMAR BANSAL: ADJ-8,
CENTRAL, DELHI
Unique I.D. No. 02401C0105172003
CS No. 140/10
1. Sh. Pran Nath Sharma
S/o Late Sh. Mulakh Raj Sharma
R/o 3/39-39A, Vijay Nagar,
Double Storey, Delhi.
2. Sh. Shyam Sunder Sharma
S/o Late Sh. Mulakh Raj Sharma
R/o 1/9375, West Rohtas Nagar,
Shahdara,Delhi. .............Plaintiffs
VERSUS
1. Sh. Shashi Shankar Sharma
s/o Late Shri Mulakh Raj
2. Smt. Manju Sharma
W/o Shri Shashi Shankar Sharma
3. Shri Rahul Sharma
S/o Shri Shashi Shanker Sharma
4. Shri Rohit Sharma
S/o ShriShashi Shankar Sharma
All R/o 10683,Subhash Park,Shahdara, Delhi.
5. Shri Munish Kumar Sharma
S/o Shri Shyam Sunder Sharma
R/o 1/9375, West Rohtas Nagar,
Shahdara, Delhi. ...........DEFENDANTS
Date of institution of the suit: 11.11.2003
Date of reserving judgment : 03.03.2012.
Date of judgment : 19.03.2012
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Prannath Sharma Vs Shashi Shankar & Ors.
JUDGMENT
1. Sh. Pran Nath Sharma and Sh. Shyam Sunder Sharma, (hereinafter referred as plaintiffs) filed the suit for partition and rendition of accounts against Sh. Shashi Shankar Sharma (herein after referred as defendant no.1) Smt. Manju Sharma (herein after referred as defendant no.
2) Shri Rahul Sharma (herein after referred as defendant no.3) Shri Rohit Sharma (herein after referred as defendant no.4) Shri Munish Kumar Sharma (herein after referred as defendant no.5). It is alleged by the plaintiff that Sh. Mukand Lal was grandfather of plaintiffs and defendant no.1. He was displaced persons from Pakistan and came to India in 1947. Sh. Mukand Lal had two sons namely Sh. Mulakh Raj and Sh. Yagdev and two daughters namely Kaushalaya Devi and Ram Piari. Sh. Mukand Lal filed a claim with the Ministry of Rehabilitation of the properties left behind by him in Pakistan. His claims were settled and he was paid about Rs. 23,200/-. Sh. Mukand Lal paid Rs. 11,600/- each to his two sons. Sh. Mukand Lal also purchased property bearing no. P-309, Sector 18, Chandigarh with the amount and the jewellery which he brought from Pakistan. Sh. Mukand Lal died somewhere in the year 1958. After his death the property at Chandigarh devolved upon Sh. Mulakh Raj and Sh. Yagdev Sharma as Kaushalya Devi and Ram Piaari surrendered their rights in favour of their brothers. Out of the funds provided by Sh. Mukand Lal, Sh. Mulakh Raj purchased the following properties i.e. : Property no. D-2/8, Rana Pratap Bagh, Delhi, property no. 1/10683, Subhash Park, Shahdara Delhi, property bearing no. 29, Friends Colony, G.T. Road,Shahdara, Delhi. In 1966 Sh. Mulkraj sold the property no. D-2/8, Rana Pratap Bagh, Delhi and purchased property bearing no. 42, Friends Colony, G. T. Road, Shahdara, Delhi in the year 1967 in the name of Smt. Mohan Devi. The property at Chandigarh was sold by Sh. Mulakh Raj and Sh. Yagdev somewhere in the year 1963-64. Out of the sale proceeds of the said property, the property CS No. 140/2010 2 of 18 Prannath Sharma Vs Shashi Shankar & Ors.
bearing no. 27, Frineds Colony, G. T. Road, Shahdara, Delhi was purchased by Sh. Mulakh Raj in the name of defendant no.1 who was minor at that time. After coming from Pakistan Mulakh Raj started the business of Soda Water Factory as Hindu Undivided Family business in the year 1948-49 and continued the same upto the year 1956-57. In the yea4 1958 Sh. Mulakh Raj started business under the name and style of M/s Allied Cycle Industries as HUF Firm. Plaintiff no.1 was in the service and whatever the plaintiff used to earn by way of the salary, he used to give in the Joint Hindu Family funds for being used for the entire family of the plaintiffs and the defendant no.1. Even in the income tax the business of M/s Allied Cycle Industries was treated to be a HUF business. Sh. Mulakh Raj and Smt. Mohan Devi also got claims of the properties left by them at Pakistan. Those claims were adjusted towards value of the property no. 3/39-39A, Vijay Nagar, Double Storey, Delhi and Rs. 1725/- was paid by Sh. Mulakh Raj towards the balance consideration out of the HUF funds. All the properties standing in the name of Sh. Mulakh Raj and Smt. Mohan Devi and defendant no.1 were in fact HUF properties, though purchased in the name of different persons. Sh. Mulakh Raj died in the year 1989. The plaintiffs and defendants allowed Smt. Mohan Devi to realise rent of the property no. 29, Friends Colony, G. T. Road, Shahdara, Delhi for the purpose of her maintenance and for the maintenance of the properties and Smt. Mohan Devi continued to realise the rent. It is alleged that property bearing no. 1/10683,Subhash Park, Shahdara, Delhi is in exclusive possession of the defendant no.1 to 4 and the property situated at Vijay Nagar is in possession of the plaintiff no.1. Property bearing no. 29, Friends Colony, G.T. Road, Shahdara, Delhi is in possession of defendant no.1 and remaining half is in possession of the tenants. Property bearing no. 42, Friends Colony, G. T Road, Shahdara, Delhi is also in possession of the tenant and defendant no.1 is realising the rent for the said property. Property no 27, Frineds Colony, G. T. Road, Shahdara, Delhi is also in possession of the tenants from whom the CS No. 140/2010 3 of 18 Prannath Sharma Vs Shashi Shankar & Ors.
defendant no.1 is realising rent. Smt. Mohan Devi died and after her death plaintiff asked the defendants to render the accounts rent realized from the tenants and at that time it was disclosed that Smt. Mohan Devi executed the Will bequeathing property bearing no. 42, Friends Colony, G. T. Road, Shahdara, Delhi in favour of Smt. Manju Sharma, Sh. Rohit Sharma, defendants no. 2 and 4. It was also disclosed that Sh. Mulakh Raj had also executed Will bequeathing property no. 29, Friends Colony, G.T. Road,Shahdara, Delhi to Sh. Rahul Sharma, defendant no.3 and Sh. Munesh Sharma, defendant no. 5. Smt. Mohan Devi also executed a Will in respect of property no. 1/10683, Subhash Park, Shahdara Delhi in favour of defendant no.1. Plaintiffs told to defendant no.1 that neither Sh. Mulakh Raj nor Smt. Mohan Devi could have executed the Will in favour of any person because the said properties were Joint Hindu Family properties and Smt. Mohan Devi and Sh. Mulakh Raj have no right to bequeath the properties in favour of anybody without the property being partitioned. Even otherwise, the said Will are nothing but forged and fabricated documents. Defendant no. 2 to 5 have no right whatsoever in any of the properties. Plaintiffs asked defendant no.1 to partition the property by meets and bounds but the defedants refused, hence, the suit filed by plaintiff claiming 1/3 share each along with defendant no.1 and also for rendition of accounts.
2. Summons of the suit were sent to the defendants. Defendants no.1 to 4 filed written statement mentioning that property no. 29, Friends Colony, G.T. Road, Shahdara, Delhi was owned by Sh. Mulakh Raj who died on 21.08.1989, from his own self-earned income, the said property is measuring 355 sq. yards out of which 250 sq. yards is in possession of Pushkar Industries at the monthly rent of Rs. 1,000/- but defendants have not received any rent from the tenant. 60 sq. yards of the plot is on rent with Vikas Udyog at the monthly rent of Rs. 600/- but no rent has been paid by the tenants. About 60 sq. yards is in possession of defendant no.1 from CS No. 140/2010 4 of 18 Prannath Sharma Vs Shashi Shankar & Ors.
where the defendant no.3 is running factory. Sh. Mulakh Raj also executed a Will on 17.02.1982 duly registered with the office of Sub-Registrar. By virtue of the said Will, the aforesaid property has been bequeathed in favour of Sh. Munish Kumar Sharma, defendant no.5 i.e. son of the plaintiff and Sh. Rahul Sharma, Defendant no.3. Therefore, plaintiffs have no cause for instituting the present suit. Property no. 39/39A, Vijay Nagar measuring 60 sq. yards was owned by late Sh. Mulakh Raj and Smt. Mohan Devi. The property consists of ground, first, second and third floors. The ground , second and third floors are tenanted and the first floor is in occupation of plaintiff no.1. Plaintiff no.1 is collecting the rent from the tenants. Sh. Mulakh Raj Sharma did not execute or mention this property in his Will, however Smt. Mohan Devi executed a Will with respect to the said property and bequeathed in the name of defendant no.1. Plaintiff is now in unauthorised occupation of the same.
3. Property bearing no. 42, Friends Colony, G. T. Road, Shahdara, Delhi is 300 sq. yards and is a commercial property. It is in possession of four tenants, they are paying rent at a monthly rate of Rs 1000/-, 800/-, 500/- and 1,567/-. This property was purchased by Smt. Mohan Devi on 28.01.1966, out of her own income and sources. She died on 16.08.2002. She was collecting the rent during her life time. Smt. Mohan Devi executed Will on 23.02.1988 which was duly registered in the office of Sub-Registrar and bequeathed the property in favour of defendant no.2 and 4. Property no. 1/10683, Subhash Park, Shahdara Delhi was exclusively owned by Smt. Mohan Devi . The said property was purchased by virtue of Sale Deed dated 23.03.1959 of her own funds. The property consists of three shops out of which two are in occupation of tenants and one shop is with defendant no.1. The first floor is in occupation of defendant no.1 in whose favour the property has been bequeathed by Smt. Mohan Devi by virtue of the Registered Will executed by her on 17.02.1982. So far as property bearing CS No. 140/2010 5 of 18 Prannath Sharma Vs Shashi Shankar & Ors.
no. 27, Frineds Colony, G. T. Road, Shahdara, Delhi is concerned that property was purchased by defendant no.1 in 1969 and had already been sold. It is alleged that late Sh. Mulakh Raj Sharma was income tax assessee and was sole properietor of M/s Dil Bahar Soda Water Factory. He was income tax assessee since 1951-52. This clearly establishes that none of the property owned by him was ancestral or HUF. Similarly, Smt. Mohan Devi was also an Assessee since 1969 and may be earlier and she also purchased the property of her own resources and funds. Preliminary objection has been taken. The suit has not been valued properly for the purposes of court fee and jurisdiction. In reply on merits all the contents are denied and alleged that the suit is not maintainable.
4. Defendant no.5 filed the written statement separately admitting the contents of the plaint and denied the claims made by defendant no. 1 to
4. Plaintiff filed the replication to the written statement filed by defendant no. 1 to 4 wherein he denied all the averments made in the written statement and re-asserted the facts mentioned in the plaint.
5. From the pleadings of the parties, the following issues were framed:
1. Whether the plaintiff has suppressed material facts from the court as alleged in written statement?OPD
2. Whether the suit has not been properly valued for the purposes of court fees and jurisdiction? OPD
3. Whether the suit is bad for mis-joinder and non-joinder of parties? OPD
4. Whether the suit is barred by time? OPD
5. Whetehr the plaintiff is entitled for the relief of partition as claimed in the plaint? OPP.
6. Whether plaintiff is entitled to rendition of accounts? OPP
7. Relief.
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Prannath Sharma Vs Shashi Shankar & Ors.
6. Thereafter the case was fixed for PE. PW1 tendered his
affidavit Ex. PW1/A in the evidence and also proved on record the income tax assessment orders and demand notice as Ex P.1 to P.15. During cross examination he stated that he started his earning in the year 1954. He denied the suggestion that his mother was having her own income or that property no. 1/10683, Subhash Park, Shahdara Delhi was purchased by her mother from her own funds but admitted that her mother was paying income tax after 1969. He admitted that his mother was also having gold jewellery and other articles. He also admitted that Sh. Mulakh Raj Sharma was having his own business right from 1961. He further admitted that property bearing no. 3/39-39A, Vijay Nagar stands in the name of his father and mother and that he is in possession of second and third floor of the property.
He admitted that property bearing no. 42, Friends Colony, G. T. Road, Shahdara, Delhi is in the name of his mother, occupied by tenants and rent was realised by his mother. He admitted that the property no. 1/10683, Subhash Park, Shahdara Delhi was purchased by Smt. Mohan Devi wife of late Sh. Mulakh Raj. He stated that he does not know as to who is realizing the rent from the tenants after the death of Smt. Mohan Devi. Sh. Shyam Shankar Sharma also filed his affidavit on the same lines as plaintiff no.1 and admitted the facts that his father and mother were the absolute owners and he was only 11 years old in 1947. He admitted that property bearing no. 27, Friends Colony, G. T. Road, Shahdara, Delhi has already been sold. Thereafter PE was closed.
7. Defendant no.1 filed his affidavit in the evidence on the lines as mentioned in the written statement. During cross examination he admitted that he was not knowing about the property no. D-2/8, Rana Pratap Bagh, Delhi how it was purchased and whether it was sold or not but he denied the purchase of other properties by Sh. Mulakh Raj out of the HUF funds or that CS No. 140/2010 7 of 18 Prannath Sharma Vs Shashi Shankar & Ors.
M/s Allied Cycle Industries business was being run by HUF.
8. Sh. Rohit Sharma also filed is affidavit on the same lines. Defendants also examined Sh. Dharmander Singh, LDC from the office of Sub-Registrar-IV who placed on record the Wills mark A to D. Sh. Dori Lal, Record Attendant, Special Grade was examined as DW4. He brought the original record of the Sale Deed dated 23.03.1959 executed by Sh. Gopal Dass in favour of Smt. Mohan Devi and proved on record as Ex. DW1/4 and also brought the record of Sale Deed dated 29.04.1958 executed bySardar Bahadur in favour of Sh. Mulakh Raj and proved the same on record as Ex. DW1/1 and also proved the certified copy of the registered Sale Deed dated 31.01.1966 as Ex. DW1/9. Defendant did not examine the witness Manoj who was the attesting witness of the will despite opportunities, saying that defendant is not in position to examine the witness as the said witness is under influence of plaintiff and is avoiding to come to the court to give evidence. The DE was closed on 30.11.2007. Defendants preferred CS (Main) no. 141/2008. Hon'ble High Court provided him one more opportunity to examine Sh. Y.L. Sachdeva Adv. but the defendant failed to summon and produce Sh. Y. L Sachdeva and his evidence was closed on 31.07.2008. The case was fixed for arguments.
9. I have heard learned Counsel for the parties and perused record.
10. My issue wise findings are as under:
ISSUE NO.2 The onus was upon the defendant to prove that plaintiff has not valued the suit properly for the purpose of court fee and jurisdiction. No CS No. 140/2010 8 of 18 Prannath Sharma Vs Shashi Shankar & Ors.
evidence has been brought on record but it is argued by ld. counsel for the defendant that plaintiffs are not in possession of any part of the property which they are seeking to be partitioned. As they are not in possession of the property which is required to be partitioned, therefore, they were required to value the suit on the basis of the value of there own share in the property which had not been done. Plaintiff was liable to pay the advalorem court fee which has not been paid and therefore, suit of the plaintiff is liable to be rejected. ld. counsel for the defendants relied upon the judgment cited as Sar--- Prakash and anr. Vs Udayjeet Prakash & anr, 2010, Volume 8, Apex Decision Delhi 318.
Ld. counsel for the plaintiff submitted that plaintiffno.1 is in possession of the part of the property left behind by late Sh. Mulakh Raj and smt. Mohan Devi. As plaintiffs are in part possession of the property, therefore, they are not liable to pay the advalorem court fee, their liability was only to pay the fixed court fee which they had already paid. ld. counsel submitted that it is admitted even by the defendants that plaintiff are in part possession of the suit property. Even in the written statement in the preliminary submission in reference to property no. 3/39-39A, Vijay Nagar, it is specifically mentioned that plaintiff is in occupation of first floor of property bearing no. 3/39-39A, Vijay Nagar. Even during cross examination, defendants suggested to the plaintiff no.1 that " it is correct that property bearing no.
3/39-39A, Vijay Nagar stands in the name of my father. It is correct that said property is also in the name of my mother. It is correct that second and third floor exists in the said property and the same is in my possession. I am living in this house since 1952."
Ld. counsel submitted that from this suggestion given by defendant himself to the plaintiff it is clear that plaintiffs are being in part possession of the suit property and therefore, not liable to pay the CS No. 140/2010 9 of 18 Prannath Sharma Vs Shashi Shankar & Ors.
advalorem court fee, their liability is only to pay fixed court fee which they has already paid.
After hearing arguments and going through the record, I found that fixed court fee was payable under article 17(6) of Schedule 2 of the Court Fee Act if plaintiff is in joint possession and not the advalorem court fee. In the present case plaintiff has alleged to be in joint possession and this fact is also admitted by the defendants in the written statement as well as during cross examination. Even otherwise the possession of co-owner is not exclusive but is also on behalf of other co-owners. However, in the present case admittedly plaintiff is in possession. There is nothing on record to presume the exclusion of the plaintiff from the joint possession and therefore, in my opinion plaintiff was liable to pay only fixed court fee. Onus which was on the defendants has not been discharged. The issue is accordingly decided in favour of plaintiff and against the defendant.
ISSUE NO.3 The onus of proving this issue was on the defendant but defendant has not argued on this point as to how the suit is bad for mis- joinder and non-joinder of parties, however, from the written statement it may be made out that defendant no. 2 to 5 were not the necessary parties but from the plaint as well as from the defence taken by the defendant no.1 to 4 it is clear that defendant no.1 alleged the execution of will by Sh. Mulakh Raj as well as Smt. Mohan Devi bequeathing the property in the name of defendants no. 2,3,4 & 5 and as they were also effected party due to the suit, therefore in my opinion they were the necessary party and hence the suit is not bad for mis-joinder of parties. So far as non-joinder is concerned, defendants have not led any evidence or even argued as to who else is the necessary party who should have been impleaded in the suit. There is no CS No. 140/2010 10 of 18 Prannath Sharma Vs Shashi Shankar & Ors.
such pleading that Sh. Mulkh Raj or Smt. Mohan Devi left behind any other legal heir who should also have been impleaded in the suit as in his absence the property cannot be partitioned by meets and bounds. Hence, I am of the considered opinion that suit is not bad even for non-joinder of the parties. The issue is accordingly, decided in favour of the plaintiff and against the defendant.
ISSUE NO.4.
The onus of proving this issue was also upon the defendant that the suit s barred by limitation. This suit is for partition. Plaintiffs alleged that the property is not partitioned by meets and bound till date. On the other hand defendants alleged that the property has already been bequeathed by the parents of plaintiffs and defendant no.1. There is no such averment that the property was partitioned earlier by meets and bounds between the parties. There is no such law that the right to seek partition will accrue on the death of the father or mother. Therefore, in my opinion the suit is not barred by limitation and is perfectly within the period of limitation. The issue is accordingly decided in favour of the plaintiff and against the defendant.
ISSUE NO.1 and 5 are taken together as both are related and are overlapping Ld. counsel for the plaintiff submitted that the property no. 29, Friends Colony, G.T. Road,Shahdara, Delhi, 3/39-39A, Vijay Nagar, 42, Friends Colony, G. T. Road, Shahdara, Delhi, 1/10683, Subhash Park, Shahdara Delhi are the ancestral properties. Ld. counsel submitted that in fact the ancestors of the plaintiffs and defendant no.1 shifted to India in 1947 with some money and jewellery which they could save leaving behind their property in Pakistan. In lieu of the property left in Pakistan by the ancestors of the plaintiffs and the defendants i.e. Sh. Mukand Lal grandfather of the plaintiffs and defendant no.1 Sh. Mukand Lal filed claim, which was settled CS No. 140/2010 11 of 18 Prannath Sharma Vs Shashi Shankar & Ors.
and he was paid Rs. 23,200/-. He distributed Rs. 11600/- each between to his two sons namely Sh. Mulakh Raj and Sh. Yagdev. Sh. Mukand Lal also purchased one property bearing no. P-309, Sector 18, Chandigarh from the money and jewellery etc which he brought from Pakistan. Out of the funds received by Sh. Mulakh Raj from Sh. Mukand Lal he purchased the property bearing no. D-2/8, Rana Pratap Bagh, Delhi, 1/10683, Subhash Park, Shahdara Delhi, property bearing no. 29, Friends Colony, G.T. Road,Shahdara, Delhi. Later on Sh. Mukand lal sold property bearing no. D-2/8, Rana Pratap Bagh, Delhi and purchased property bearing no. 42, Friends Colony, G. T. Road, Shahdara, Delhi. These properties were purchased out of the funds received from Sh. Mukand Lal and also from the income raised from the Hindu Undivided Family Business i.e. M/s Allied Cycle Industries. Ld. counsel submitted that property no. 3/39-39A, Vijay Nagar, Double Story was also allotted to Sh. Mulakh Raj and Smt. Mohan Devi against the claim of the properties left by them at Pakistan. Sh. Mulakh Raj paid Rs. 1725/- towards the balance consideration from the income of Hindu Undivided Family Business. Learned counsel submitted that from this, it is clear that all the properties were purchased by Sh. Mulakh Raj from the funds either received from Sh. Mukand Lal or from the Hindu Undivided Family business and thus all the properties are the ancestral properties. Ld. counsel submitted that plaintiffs and defendant no.1 being the sons to Sh. Mulakh Raj are entitled to 1/3 share each in the property. Ld. counsel submitted that this being the ancestral property, Sh. Mulakh Raj or Mohan Devi were not having any right to execute the Will as alleged by the defendants. Learned counsel further submitted that even otherwise the defendants are not been able to prove and establish the will as required under law. Learned counsel submitted that the onus was upon defendant no.1 to prove and establish the Will. No attesting witness has been examined by the defendants to prove and establish the Will and hence, it is not established that Sh. Mulakh Raj or Smt. Mohan Devi executed any Will.
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Learned counsel submitted that in fact no such Will was ever executed either by Sh. Mulakhraj or by Smt. Mohan Devi. These are the forged and fabricated documents. No right goes to the defendant on the basis of the documents. Admittedly, plaintiffs are the sons of Sh. Mulakhraj as defendant no.1. It is also admitted that properties left behind by late Sh. Mulakh Raj & Smt. Mohan Devi have not been partitioned till date. There is no other legal heir except the plaintiff and defendant no.1. They are three brothers and each is entitled to 1/3 shares of the property. It is prayed that accordingly, preliminary decree be passed.
Learned counsel for the defendants submitted that onus was upon the plaintiff to prove and establish that it was the ancestral property but no such evidence has been brought on record. Learned counsel submitted that in fact the properties are self-owned property of Sh. Mulakh Raj and Smt. Mohan Devi which is established from the Sale Deed proved on record as exhibited Ex. DW1/1, DW1/4 and DW1/9. These being the self-acquired properties of Sh. Mulakh Raj and Mohan Devi, they were having every right to execute the Will in respect of These properties. Sh. Mulakh Raj was exclusive owner of property bearing no. 29, Friends Colony, G.T. Road, Shahdara, Delhi which he purchased on 29.04.1958 and he bequeathed this property vide Will dated 17.02.1982 in the name of defendant no.3 and 5, which is available on record as mark 'A'. It is registered documents. The witness from the office of Sub-Registrar was also examined as DW3 who proved that these documents are in the office of the Registrar. Ld. counsel further submitted that so far as property no. 3/39-39A, Vijay Nagar is concerned, it was owned by Sh. Mulakh Raj Sharma and Smt. Mohan Devi Sharma. Smt. Mohan Devi executed a Will mark 'B' with respect to this property bequeathing the same in favour of defendant no.1. Learned counsel further submtited that so far as the property no. 42, Friends Colony, G. T. Road, Shahdara, Delhi is concerned, it was purchased by Mrs. Mohan CS No. 140/2010 13 of 18 Prannath Sharma Vs Shashi Shankar & Ors.
Devi in her own name and she bequeathed this property vide Will dated 23.02.1988 in favour of defendant no.2 and 4. Learned counsel submitted that so far as property no. 1/10683, Subhash Park, Shahdara Delhi is concerned that was owned by Smt. Mohan Devi purchased vide Sale Deed dated 23.03.1959 proved on record as Ex. DW1/4. Smt. Mohan Devi bequeathed this property in favour of Sh. Rohit Sharma defendant no.2 and
4. So far as property no. 27, Frineds Colony, G. T. Road, Shahdara, Delhi is concerned that was purchased by defendant no.1 in his own name and had already been sold. Therefore, there is no question of partitioning. All the properties were purchased by parents of plaintiffs and defendant no.1 from their own funds and not from the Hindu Undivided Family business or by selling ancestral property. No such evidence has been brought on record.
So far as income tax assessment orders are concerned, it is clear that HUF has been added later on. Learned counsel submitted that from this, it is clear that these properties were self-owned properties of Sh. Mulakh Raj and Smt. Mohan Devi and they were having right to bequeath the same and they executed the Will mark A, B and C which have been proved on record. Learned counsel submitted that in this case as the witness from the office of the Sub-Registrar has been examined for proving the Will, that is sufficient to prove and establish the same. Learned counsel in support of his argument has relied upon judgements cited as : Babu Singh & Ors. Vs Ram Sahai @ Ram Singh, AIR 2008, Supreme Court 2485; Mahinder Pal Gupta & Anr. Vs Mahender Pal Mahajan & Ors. 2011, AD (Delhi) 334; Messrs. Ram Gopal Dula Singh Vs Sardar Gurbus Singh Jiwan Singh & Others, AIR 1955 Punjab 215 (V.42 C. 80 Oct.); V.Sumathi, No. 152, Mettu Street, Ayanavaram, Chennai Vs D.Vedagiri, Old No. 26, New No.4, Alagiri Nagar, Main Road, Vedapalani, Chennai, Madras High Court.
After hearing the arguments and going through the record, I found that onus was upon plaintiff to establish that all the properties left were ancestral properties or purchased from the funds of HUF business, but no CS No. 140/2010 14 of 18 Prannath Sharma Vs Shashi Shankar & Ors.
such evidence except oral testimony has been brought on record. It is also not brought on record that the business in the name of M/s Allied Cycle Industries was HUF business, though, in the two documents (i.e. assessment orders) it is mentioned that it is HUF but the assessment order shows that earlier it was mentioned individual but later on HUF had been written. Then again it has not been shown as to whether the funds were withdrawn from HUF business when the properties were purchased. Onus was on the plaintiff to establish the same as mentioned above which in my opinion plaintiff failed to discharge and hence, I am of the opinion that the properties i.e. property no. D-2/8, Rana Pratap Bagh, Delhi, property no. 1/10683, Subhash Park, Shahdara Delhi, property bearing no. 29, Friends Colony, G.T. Road,Shahdara, Delhi, property bearing no. 42, Friends Colony, G. T. Road, Shahdara, Delhi except the property bearing no. 27, Frineds Colony, G. T. Road, Shahdara, Delhi were the self-acquired properties of Sh. Mulakh Raj and Smt. Mohan Devi.
Defendant alleged that Mulakh Raj and Mohan Devi executed the Will bequeathing these properties in the name of the defendants. The onus of proving these Wills was upon the defendants. It is settled law that for proving the Will at least one attesting witness has to be examined and if no such attesting witness is found then it must be proved that attestation of one attesting witness , at least was in his handwriting and that signatures of person executing document is in the handwriting of that person. Herein in the present case, plaintiff had denied the execution of Will. It is alleged that the Wills are forged and fabricated. The Wills were also not put to the plaintiffs when they appeared in the witness box as to whether the Wills mark A,B, C and D bears the signatures of the executents i.e. Sh. Mulakh Raj and Smt. Mohan Devi. The attesting witness have also not been examined. On the Will of Smt. Mohan Devi mark 'B' there were two witnesses i.e. Sh. Manoj Kumar and Sh. Y. L. Sachdeva, Adv. Defendant CS No. 140/2010 15 of 18 Prannath Sharma Vs Shashi Shankar & Ors.
was given opportunity to examine Sh. Manoj Kumar but on 30.11.2007 defendants told the court that they are not in position to examine Manoj Kumar witnesses as the said witness is under the influence of the plaintiff and is avoiding to come to the court to give evidence. The defendant was also given opportunity to examine sh. Y.L. Sachdeva, Adv. the other attesting witness to the Will but defendants did not summon him also. On the other Wills but the attesting witness was Mr. Iqbal Bahadur Mathur, Adv. r/o 5742, Nai Sarak, Delhi -6. No efforts whatsoever were made to call him as witness. There is also nothing on record that he was not traceable or he had died. So far as the Will of Mr. Mulakh Raj is concerned which is mark 'A', Smt. Mohan Devi was one of the witness, certainty she could have been called as witnesses and the other attesting witness was Mr. I.B. Mathur, Adv. and no efforts whatsoever was made to summon him. There is nothing on record that this attesting witness was not available to depose. Under these circumstances, in my opinion when no efforts were made by the defendant to summon these attesting witnesses merely because he had summoned the record from the office of the Registrar does not prove the Wills. Even the signatures on the Will that of the executent have also not been proved and established. Even the defendant no.1 in his affidavit or in his statement on oath does not mention that the signatures on the Will mark A,B, C and D are of the executent i.e. his father Sh. Mulakh Raj and mother Smt. Mohan Devi. Therefore, I am of the considered opinion that defendant has not been able to establish on record the Wills of Sh. Mulakh Raj and Smt. Mohan Devi.
It is not disputed that the plaintiffs and the defendants are the only sons of Sh. Mulakh Raj and smt. Mohan Devi. They are the only three LRs and are entitled to equal shares on the property i.e. 1/3 share in the property. As discussed above the properties were left behind by Sh. Mulakh Raj and Smt. Mohan Devi. The Will as discussed are not proved. There is no other legal heir. Hence, I am of the opinion that the plaintiff and CS No. 140/2010 16 of 18 Prannath Sharma Vs Shashi Shankar & Ors.
defendant No.1 are entitled to 1/3 share each in the property. So far as the allegations of the defendants that plaintiffs have suppressed the material facts are concerned, no such evidence has come on record that plaintiffs have suppressed the material facts.
ISSUE NO.6 Ld. counsel for the plaintiff submitted that in this case admittedly, defendant no.1 is receiving the rent with respect to the properties which are under his occupation. He is having 1/3 share in the entire property and therefore, it is required that account of the same be produced and the rent so received by the defendant be apportioned among the plaintiffs and defendant no.1 as per share in the property for which it is necessary that rendition of account be carried on. ld. counsel for plaintiff submitted that it is rather admitted that earlier the rent was received by Smt. Mohan Devi and now after her death it is defendant no.1 or other defendants are receiving the rent. It is prayed that preliminary decree for rendition of accounts be passed.
Ld. counsel for the defendant submitted that during the life time Smt. Mohan Devi was receiving the rent and after her death the defendant is receiving the rent as the property had come to his share. The rent is received by the defendant in their own right It is rather plaintiff who is receiving the rent unauthorizedly from the tenants occupying the property bearing no. 3/39-39A Vijay Nagar which was bequeathed in the name of defendant no.1 by late Smt. Mohan Devi. Ld. counsel submitted that keeping in view this position, there is no necessity to pass any decree for rendition of account as it is plaintiff himself who is mis-appropriating and mis- using the rents received by plaintiff.
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11. Keeping in view the submissions and the fact that it is clear that rent of some properties is collected by the defendants and of one property by the plaintiff no.1 and also the fact that no account whatsoever had been settled till date of the rent so received after the death of Smt. Mohan Devi. In view of my finding as issue no.5 it is clear that plaintiffs and defendants No.1 are entitled to 1/3 share each in the properties left by late Sh. Mulakh Raj and Smt. Mohan Devi. Accordingly, in my opinion, they also have right to share the rent so collected. No account whatsoever have been given or provided either by the plaintiff or defendants in this regard. Therefore, in my opinion it is required that rendition of accounts of the rent so received be carried out. The issue is accordingly decided in favour of plaintiff and against defendants.
12. In view of the above, in my opinion, the preliminary decree is passed that the plaintiffs and defendants are entitled to 1/3 share each in the property bearing no. D-2/8, Rana Pratap Bagh, Delhi, 1/10683, Subhash Park, Shahdara Delhi, 29, Friends Colony, G.T. Road, Shahdara, Delhi D-2/8, Rana Pratap Bagh, Delhi and property No. 42, Friends Colony, G. T. Road, Shahdara, Delhi. The preliminary decree is accordingly passed for rendition of account of the rent realised by the plaintiffs and defendant no.1 after the demise of Smt. Mohan Devi till the passing of final decree to the extent of 1/3 share in the property.
ANNOUNCED IN THE OPEN COURT TODAY.
DATED: 19.03.2012 (VIRENDER KUMAR BANSAL)
ADDL. DISTRICT JUDGE:
DELHI.
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Prannath Sharma Vs Shashi Shankar & Ors.
19.03.2012
Present: Sh. A.P. Aggarwal, Adv. for the plaintiff with plaintiff.
Sh. O.P. Aggarwal, Adv. for the defendant.
Vide separate judgment the preliminary decree is accordingly passed for rendition of account of the rent realised by the plaintiffs and defendant no.1 after the demise of Smt. Mohan Devi till the passing of final decree to the extent of 1/3 share in the property.
Now, to come up on 29.03.2012.
(VIRENDER KUMAR BANSAL) ADDL. DISTRICT JUDGE:
DELHI.
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