Delhi District Court
Mira Gupta vs Dinesh Chand on 30 September, 2019
IN THE COURT OF MR. SUNIL BENIWAL,
ADDITIONAL DISTRICT JUDGE -02,
(CENTRAL), DELHI
Case No. 618953/16
Mira Gupta
Widow of Late Subhash Chand Gupta
D/o Shri Om Prakash Goel
R/o 1607-08, Dariba Kalan
Delhi-110006 ..... Plaintiff
Versus
1 Dinesh Chand
S/o Late Prem Chand
R/o 1607-1608, Dariba Kalan,
Delhi
2 Saroj Bala
widow of Late Sh. Dinesh Chand
R/o 1607-1608, Dariba Kalan,
Delhi
3 Ms. Rashi
Adopted daughter of
Late Shri Subhash Chand Gupta
R/o 4, Cavalry Lines
Mall Road, Delhi
CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 1/78
4 Sh. Rajeshwar Nath Gupta
S/o Shri Bhola Nath Gupta
R/o 4, Cavalry Lines
Mall Road, Delhi
5 Sh. Satish Chand Gupta
S/o late Sh. Prem Chand
R/o A-224, Moti Bagh-I,
New Delhi-110022
6 Sh. Kiran Chand Gupta
S/o Late Sh. Prem Chand
R/o House No.6, Nimri colony-I,
Delhi-110052
7 Sh. Avinash Gupta
S/o Late Sh. Prem Chand
R/o 174-L, Aram Bagh
Paharganj,
New Delhi-110055
.........Defendants
Date of Institution of Suit : 14.11.1991
Date of pronouncement of judgment : 30.09.2019
SUIT FOR PARTITION, RENDITION OF ACCOUNTS AND
PERPETUAL INJUNCTION
This is a suit for partition of property filed by plaintiff
CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 2/78
Meera Gupta against four defendants originally. Defendant no.1 is Sh.
Dinesh Chand, defendant no.2 is Smt. Saroj Rani wife of defendant
no.1, defendant no.3 is Ms. Rashi adopted daughter of late Sh. Subhash
Chand Gupta and defendant no.4 is Sh. Rajeshwar Kumar Gupta,
natural father of defendant no.3.
Facts as stated in the plaint are as follows :
1 As per the pedigree table, late Sh. Prem Chand had married twice in his life time. First wife was Smt. Raj Dulari who died in 1949 and second wife was Smt. Satya Devi. From the first wedlock, late Sh. Prem Chand had two children namely Sh. Dinesh Chand defendant no.1 and Sh. Subhash Chand. Sh. Subhash Chand also married twice during his life time. First wife of Sh. Subhash Chand was Smt. Prakash who was also expired on the date of filing of the suit and the second wife is the plaintiff Smt. Meera Gupta. Late Sh. Subhash Chand and late Smt. Prakash had adopted one daughter namely Ms. Rashi who is defendant no.3. Late Sh. Prem Chand had three sons from his second wife Smt. Satya Devi namely Sh. Satish Chand, Sh. Kishan Chand and Sh. Avinash Chand. Defendant no.2 Smt. Saroj Bala is wife of defendant no.1 and they live in a portion of house no. 1607-08, Dariba Kalan, Delhi. Sh. Subhash Chand was also living in a portion of house no. 1607-08, Dariba Kalan, Delhi. Late Sh Subhash Chand and his first CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 3/78 wife Smt. Prakash adopted defendant no.3 Ms. Rashi on 24.07.1981. Smt. Prakash died on 16.07.1988. On the date of filing of the plaint, plaintiff was 30 years old. On 10.12.1990, Sh. Subhash Chand married the plaintiff according to Hindu rights and ceremonies. The plaintiff is in occupation of one room, store, balcony and kitchen on the first floor. She is also enjoying the amenities of bath, laterine, open terrace and covered varanda on the first floor and barsati and open terrace on the second floor in common with defendant no. 1 & 2. Husband of the plaintiff died intestate on 20.03.1991. Plaintiff is now residing alone in the red portion in the site plan and enjoying amenities shown in the yellow portion. Husband of plaintiff and his brother Sh. Dinesh Chand defendant no.1 owned the following immovable properties in equal shares:-
1 property no. 1607-08, Dariba Kalan, Delhi.
2 property no. 818, Chhota Bazar, Kashmere Gate, Delhi 3 property no. C-7, Geetanjali Enclave, New Delhi.
2 Both the husband of plaintiff and defendant no.1 sold property bearing no. 808, Chhota Bazar, Kashmere Gate, Delhi before the death of husband of the plaintiff. In property no. 1607-08, Dariba Kalan, there are shops in the ground floor which are let out to the tenants. Property no. C-7, Geetanjali Enclave is under tenancy of Mr. CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 4/78 P.R Aggarwal advocate. Plaintiff and defendant no. 1 & 3 are co- owners of properties mentioned at item no. 1 & 3 above and their shares are as under :-
a) plaintiff is entitled to 1/4th share out of half share left by Sh. Subhash Chand.
b) defendant no.3 having 1/4th share i.e. half share left by Sh.
Subhash Chand c) defendant no.1 having one half share. 3 At the time of filing of the suit, Ms. Rashi was a minor and
in care and custody of her natural father defendant no.4. It is submitted that defendants have colluded to;
1) forcibly deprive the plaintiff of her rights of the property left by her husband
2) to deprive her forcibly of her ornaments and jewellery and other movable assets
3) forcibly dispossess the plaintiff from the said portion of the first floor of house no. 1607-08, Dariba Kalan, Delhi
4) to forcibly deprive the plaintiff of the amenities shown in yellow in the site plan of house no. 1607-08, Dariba Kalan, Delhi being used by the plaintiff
5) to grab all the properties of the plaintiff both movable and CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 5/78 immovable 4 Plaintiff is working in Bank of India, Chandni Chowk Branch. Defendants in collusion with a view to harass the plaintiff keep the door of the staircase leading to the first floor locked from inside and do not open the same when the plaintiff returns from her office and other places. The defendants object to the father, brother and sisters and other near relative of the plaintiff from visiting the plaintiff and use abusive language. After four days of the death of husband of the plaintiff, defendants in collusion with one another took away from the possession of the plaintiff all the debentures, shares, national savings certificate, fixed deposit receipts, other bank papers and records, documents and provident fund and gratuity etc. belonging to husband of the plaintiff on false pleas of realization of those assets. After the death of her husband, defendant no. 1 & 3 are realizing the rents from the tenants and properties in question and had not paid the share of the plaintiff. The defendants are liable to render the accounts of the rents realized by them and share the same according to the entitlement of the plaintiff. Plaintiff has now come to know that her husband has also left movable assets mentioned in Annexure P-1. In these circumstances, plaintiff does not want to keep her property joint with the defendants and hence this suit.
CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 6/78 5 That being the wife of late Sh. Subhash Chand Gupta, plaintiff is entitled to be maintained out of the income of the property left behind by her husband and is entitled to recover a sum of Rs.5000/- per month at least on account of her maintenance. It is therefore prayed that;
1) the court be pleased to pass decree for partition in favour of plaintiff and against defendant no. 1 & 3 for the partition of properties bearing no. 1607-08, Dariba Kalan, Delhi and property no. C-7, Geetanjali, New Delhi
2) that a local commissioner be appointed to suggest mode of partition
3) a final decree for partition in terms of report of local commissioner be passed in favour of the plaintiff and against the defendant no. 1 & 3 and separate possession of the share of the plaintiff be delivered to her
4) a decree for partition of movable assets mentioned in Annexure P-1 and forming part of plaint be also passed in favour of plaintiff and defendant no.3
5) a decree for rendition of account be passed in favour of plaintiff and against defendant no. 1 & 3 in respect of rents and profits realized by them from suit property bearing no. 1607-08, Dariba Kalan, CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 7/78 Delhi and property no. C-7, Geetanjali Enclave, Delhi and actual amount found due and payable by defendant no. 1 & 3 to the plaintiff be ascertained and a decree for the amount so ascertained be passed in favour of the plaintiff and against defendant no.1 & 3
6) a decree for perpetual injunction be passed in favour of plaintiff and against the defendants restraining them, their agents etc. from
a) forcibly dispossessing the plaintiff from the portion on first floor in her occupation as shown in red in house no. 1607-08, Dariba Kalan, Delhi
b) from objecting to the relatives of the plaintiff from visiting the plaintiff and from obstructing them from their visits and using abusive language
c) harassing the plaintiff from keeping them from entering into the staircase leading to the first floor from inside
d) from forcibly depriving the plaintiff of her right in the properties left by her husband
e) to forcibly deprive the plaintiff of her ornaments, jewellery etc.
f) from grabbing the property of plaintiff both movable and immovable CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 8/78
g) from causing any injury of any nature to the plaintiff
7) cost of the suit may also be awarded against the defendants. Facts as stated in the WS of defendant no. 1 & 2:-
6 Although the plaintiff married late Sh. Subhash Chand Gupta, they were living only in part of the first floor portion. It is admitted that Kashmere Gate property has been sold while Dariba Kalan property is subject matter of dispute. About the property of Geetanjali, there is no dispute. This was owned 50-50. Portion of first floor of Dariba Kalan property is in occupation of Smt. Meera Gupta while portion of first floor and entire second floor are in occupation of defendant no. 2 & 3. Sh. Subhash Chand Gupta has made a Will in favour of his adopted daughter Ms. Rashi and hence plaintiff has no share.
7 Immediately after the death of Sh. Subhash Chand Gupta, plaintiff with the help of her father Sh. Om Prakash removed all her ornaments, movable assets to her parent's house in Muzaffar Nagar. Late Sh. Subhash Chand Gupta was an employee of Bank of India and he was in service at Chandni Chowk branch, Delhi at the time of his death. After the death of late Sh. Subhash Chand Gupta, plaintiff was employed by the bank on compassionate grounds in accordance with its policy. Late Sh. Dinesh Chand helped the plaintiff to secure a job in CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 9/78 said branch. It is in the knowledge of the plaintiff that the doors of the staircase are always kept locked/bolted from inside for security reasons but as soon as any visitor or family member knocks the door, the same is opened by occupants of the house. This has always been the accepted practice. Defendants never objected to visit of relatives of the plaintiff but Sh. Om Prakash, father of the plaintiff has been abettor and creator of all disputes and differences between the plaintiff and the defendants. It is for these reasons that defendants had been objecting to the stay of Sh. Om Prakash continuously in the premises of Dariba Kalan property. It is important to submit that the plaintiff picked up quarrels on petty things in her first matrimonial home also and her father intervened and aggravated the matter and forced the plaintiff to take divorce after taking huge amounts from her previous husband.
8 All the documents mentioned in para 19 of the plaint are in power and possession of the plaintiff and it is denied that the defendants took away any of these documents, movable properties, etc. Late Sh. Dinesh Chand was the eldest male member of the family and was realizing all the rents of Geetanjali property and three of the tenants at Dariba Kalan property which came to Rs.2254/- per month and Sh. Dinesh Chand incurred all expenses towards regular annual repairs of various properties and payment of house tax. Apart from the CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 10/78 abovementioned, all the allegations and averments made by the plaintiff which are contrary to the submissions made by LRs of deceased defendant no.1 in their written statement have been denied. 9 WS of defendant no. 3 & 4 in reply to the amended plaint dated 14.02.1992 alongwith counter claim:
10 Now this written statement has been very beautifully scripted and has tried to give very minute details of the averments made in the plaint. Facts stated in the WS cum counter claim of defendant no. 3 & 4 are as follows:-
11 It is submitted that the counter claim is also a suit for partition but certain declarations are implicit in the counter claim. Preliminary submissions:-
12 Lala Prem Chand married Smt. Raj Dulari. From that marriage, he had two children namely Sh. Dinesh Chand Gupta and Sh.
Subhash Chand Gupta. Smt. Raj Dulari died in 1949. Thereafter, Lala Prem Chand married Smt. Satyawati. From this marriage, he had three children namely Sh. Satish Chand, Sh. Kiran Chand and Sh. Avinash. Sh. Subhash Chand Gupta born in 1945, married Smt. Prakash Kaur. Out of that wedlock, they did not have any children and therefore on 05.03.1981, they adopted Kumari Rashi (then named Aarti) born on 29.01.1981. Adoption deed dated 24.07.1981 was executed and CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 11/78 registered. Sh. Subhash Chand Gupta and his wife Smt. Prakash renamed Aarti to Rashi. Unfortunately, Smt. Prakash, first wife of Sh. Subhash Chand Gupta and adoptive mother of defendant no.3 died on 16.07.1988. Smt. Prakash died intestate. Her heirs under Section 15 of Hindu Succession Act were her husband Sh. Subhash Chand Gupta having 50% share and adopted daughter Ms. Rashi having 50% share. Smt. Prakash left behind property detailed in Annexure A. In all these properties, one half interest devolved upon Ms. Rashi defendant no.3 and the other half devolved upon Sh. Subhash Chand Gupta since deceased. No partition of these assets was affected in life time of Sh. Subhash Chand Gupta. Thereafter, Sh. Subhash Chand Gupta got married to plaintiff on 10.12.1990. Sh. Subhash Chand Gupta died on 20.03.1991 which is three months after his second marriage with the plaintiff. He was only 46. Sh. Subhash Chand Gupta left behind the surviving defendant no.3 i.e. his adopted daughter and Smt. Meera Gupta, the plaintiff as widow. Property detailed in Annexure B was left behind by deceased Sh. Subhash Chand Gupta who did not die intestate. He left behind Will dated 16.09.1988. This Will is Annexure C. It was a registered will duly registered with the office of Sub Registrar, Delhi. By this Will, Sh. Subhash Chand Gupta bequeathed all his properties to defendant no.3 except whatever he gave to the trust CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 12/78 which is also mentioned in the said Will. Sh. Rajeshwar Nath Gupta, defendant no.4 natural father of defendant no.3 was appointed as testamentary guardian and also the executor of the Will. Residential house of C-7, Geetanjali was under ownership of Sh. Subhash Chand Gupta and his brother Sh. Dinesh Chand Gupta in equal share as they got the same from their grandmother Smt. Nirmala Devi by Will dated 13.12.1973 which is also registered with Sub-Registrar, Delhi on 13.12.1973. Property no. 1607-08, Dariba Kalan, Delhi is old residential house which is now occupied by the plaintiff. One half undivided interest of this house is owned by Sh. Dinesh Chand Gupta deceased defendant no.1 and the other half by defendant no.3 Rashi in terms of Will of late Sh. Subhash Chand Gupta.
Paragraphwise reply:
13 Barsati was never in possession of Sh. Subhash Chand Gupta and therefore never came into possession of the plaintiff.
Possession of plaintiff is common with that of defendant no.3. The alleged writing propounded by the plaintiff dated 05.03.1991 is a forgery and fabrication. The sale proceeds of house no. 818, Chhota Bazar, Kashmere Gate, Delhi were equally divided between deceased defendant no.1 and late Sh. Subhash Chand Gupta and sale proceeds of Rs.75,000/- were deposited by Sh. Subhash Chand Gupta with Mehta CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 13/78 and Company of Tolstoy Marg.
14 It is correct that plaintiff is working with Bank of India, Branch Chandni Chowk but she has no right to stay in Dariba Kalan. Valuable goods were removed from the house of Dariba Kalan and taken away to Muzaffar Nagar by father of the plaintiff. Answering defendants are not aware about any withdrawal of Rs.25,000/- by Sh. Dinesh Chand. It is correct that such amount per month as will be reasonable to make for the sustenance of plaintiff is perhaps liable to be realized from the assets. However, though such is an entitlement of a widow, but the factors that the plaintiff has already recovered her maintenance from her first husband whom she had divorced and also took away jewelry and other valuables dis-entitles her from any claim for maintenance. Further, by virtue of being a widow of Sh. Subhash Chand Gupta, she has got a job with Bank of India and income therefrom also has the effect on the claim of maintenance. Therefore, her claim for maintenance is denied. Earlier the plaintiff had married one Sh. Vinod Kumar and it is said that she regularly quarreled with him, filed false complaints and thereafter abandoned him. Plaintiff is not entitled to any decree or injunction.
Facts stated in the counter claim are as follows:-
15 Facts on which counter claim is based have already been CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 14/78 stated in preliminary submissions made above. So far as assets left behind by Smt. Prakash detailed in Annexure A are concerned ½ interest is liable to be declared as belonging to Rashi defendant no.3 as successor of Smt. Prakash while the other half devolved upon Sh. Subhash Chand Gupta. By virtue of Will Annexure C that also came to be owned by defendant no.3 Rashi the counter claimant. On account of the claims made by the plaintiff, it has become necessary for defendant no.3 to obtain a declaration that she is the owner of all these assets. Even if it is assumed for the sake of arguments only that Sh. Subhash Chand Gupta died intestate, then 75% (50% in her own right and 25% as successor to Sh. Subhash Chand Gupta) belongs to Rashi and the remaining 25% would be covered by the Will Annexure C. A declaration to that effect be granted. So far as the asset left behind by Sh. Subhash Chand Gupta is concerned, plaintiff has sought partition on the ground that she has 50% share but defendant no.3 disputes the same and claims that she alone is entitled to all of it. Since in many items, the deceased owned 50% and the remaining 50% belonged to late Sh. Dinesh Chand partition thereof with Sh. Dinesh Chand is also sought. As regards Annexure B and items stated therein, defendant no.3 is entitled to be declared owner thereof in 100% share and a declaration to that effect may be granted. Wherever Sh. Subhash Chand Gupta had CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 15/78 ½ share and the other half is owned by Sh. Dinesh Chand, such properties will be divided because everything that was owned by Sh. Subhash Chand Gupta comes to the share of Ms. Rashi in terms of the Will. Assets mentioned in Annexure D came to be acquired by defendant no.3 on gift from her maternal grandparents, mother Smt. Prakash, father Sh. Subhash Chand Gupta as also from her natural parents. These at the time of death of both Smt. Prakash and Sh. Subhash Chand Gupta were Rashi's own property and did not form part of the estate of either of these. The plaintiff in her attempt to lay claim to one and all is also setting her eyes on these. This cast a cloud on Rashi's title which necessitates a decree for declaration by this court. Therefore, it is necessary to obtain a decree of declaration that assets mentioned in Annexure D are absolute ownership of defendant no.3 and had nothing to do with succession of Smt. Prakash or Sh. Subhash Chand Gupta and that plaintiff has no claim upon the same. 16 Document of 05.03.1991 now propounded by the plaintiff is a deed of revocation. Explanation as regards the alleged deed is as follows. Now plaintiff placed reliance on document dated 05.03.1991 alleged to have been executed by Sh. Subhash Chand Gupta and purporting to operate as a deed of revocation. This section of the written statement deals with the said document. A photocopy of this CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 16/78 document alongwith English translation is Annexure E. The original plaint in the suit for partition is dated 12.11.1991 and the plaint makes no reference to this document dated 05.03.1991. A list of documents was filed alongwith plaint but a copy of this document is not filed. A list of reliance was also filed but that too makes no reference to this document. On receiving summons of this suit, defendant no.3 filed WS which carried with it a counter claim registered as the separate suit no. 160/92. In the written statement, it was pleaded that by virtue of Will dated 16.09.1988, Sh. Subhash Chand Gupta bequeathed the bulk of his assets in favour of daughter Rashi defendant no.3. After receiving copy of WS and documents on 15.01.1992, plaintiff sat about thinking what to do. She deliberately delayed in filing of replication and filed the same only after four months despite explicit instructions of the court to file the same at the earliest possible convenience. Replication was filed on 14.05.1992. In this replication, she came up with a new story. She pleaded execution of writing dated 05.03.1991. Plaintiff said that by virtue of this document/writing dated 05.03.1991, Sh. Subhash Chand Gupta revoked his earlier Will dated 16.09.1988 which was a registered Will. Plaintiff failed to file the original of this writing dated 05.03.1991 and filed only a photocopy although an inspection of the said document was given. Factum of this writing dated 05.03.1991 in not being CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 17/78 referred to in the plaint or in the list of documents or list of reliance and the delay in filing of this document instead of notices/orders is sufficient to discredit this document and reject the same as forgery. Now, the dilemma before the filing and the scoring out in the said document. January and February 1992 were taken up in the manufacture of this document. The document being ready but then there was a dilemma before the plaintiff which was that if this writing dated 05.03.1991 was filed as a Will and the same being unregistered the court will ask as to why was it not filed with the plaint. Therefore, more time was sought. It appears that attempts at forging more signatures did not turn out to be as good as the specimen filed in the file. Thereafter, they took a view that as a Will, this document will not hold good and portion should be scored out so as to bring it in line with the original plaint. Words were selected. They were scored out. What was originally manufactured as a Will was thus converted into a deed of testamentary revocation. The plaintiff and the forgers did not think to borrow the pen with which the forgery was committed from the forger of the earlier document and therefore both the pen and the ink turned out to be different. Their object was, that, with the scoring out the plea of intestate succession as laid in the plaint would continue and there would be no necessity of making a plea of testamentary succession. CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 18/78 Now let us examine the documents on the assumption that scoring out was done by the deceased. If that be so,
1. Firstly, if the deceased was actually there, he would have simply re-written the document.
2. Secondly, where was the reason for not appending signatures in respect of the scoring out.
3. Thirdly, the scoring out would not have been with a different pen.
4. Fourthly, he would have added some words after the scoring out of giving his intention such as "I will shortly make a fresh Will" or something of the like.
5. The deceased late Sh. Subhash Chand Gupta was not uneducated, he was a bank officer who did all his writing work in English. His Will dated 16.09.1988 was also in English. Who writes a subsequent and unregistered Will in Hindi, the only reason is that the person, the plaintiff could take into confidence was one who knew only Hindi and not English i.e. Sh. Jagdish Prashad, typist Collectorate compound, Muzaffar Nagar. The sequence of events which led to the preparation of this writing under challenge seems to be as under;
1) several signatures of Sh. Subhash Chand Gupta on such of the old sheets that they were able to lay their hands on are carried out by an CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 19/78 expert forger.
2) the plaintiff, her father and his confidencee selected the best result of the forgery attempt. The sheet in question is then given that status.
3) after the forgery has been carried out, document is transported and for which purpose it is folded. There are three folds appearing in the paper and their measurement from the top are: first 89mm, second 182 mm and third 274 mm.
4) Thereafter, the contents are inscribed on it. What is to be noted is that the top margin is as little as 18.5mm.
17 The witnesses also are not either related or otherwise associated with the deceased. They are however, associated with the father of the plaintiff. The following points are also to be seen;
i) signatures are in dark blue ink while the scoring out is both in different pen and different ink.
ii) the two witnesses have also signed in different ink.
iii) the paper margin may now be seen. The top margin is only 18.5mm while the left margin is 39mm. Between para 1 & 2, the distance is 9mm.
iv) "Hasta Mukir" is superfluous. Placement of these words has unusual space both at the top and at the bottom.
CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 20/78
v) No title is given to this document.
vi) Why Muzaffar Nagar for execution of this document? Late Sh. Subhash Chand was employed in Delhi and was resident of Delhi.
vii) Earlier registered Will is never superseded by an unregistered Will and of this type.
18 In line no.3 of the writing dated 05.03.1991 heart problem is followed by lack of confidence in life which is hardly to be expected from a newly married man. In line no. 7 & 8, an attempt to show that the earlier Will was a result of depression is sought to be inserted. In line no. 9, it says that he has fully recovered from the heart problem. This is a contradiction. Now, first of all he seeks to retain absolute ownership of his property till his death which is;
1) typical of Wills by semi-illiterate person 2) quite a contrast from his earlier Will where he had not included any such clause 3) he knew that such a clause is wholly superfluous. 19 In line no. 23, a Benami for the shares is sought to be
inserted and in lines 25 and 26, locker is given absolutely to Meera Gupta. Even if, assuming that this is a Will, it gave the right of locker to the plaintiff and it would be too much for the plaintiff to have us believe for having exclusive rights to the locker and that she will still CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 21/78 come forward with the plaint saying half and half. To this, the answer is that this document was manufactured as a Will sometime in January 1992 but during the month of February, March, April when the plaintiff was seeking time to file replication, they were basically deliberating that this last clause of locker to Meera Gupta would run counter to the plaint and therefore, they ultimately decided on the scoring out. 20 What is also conspicuous about this document is that there is:
i) no provision for Rashi's education. ii) no provision for Rashi's marriage iii) no provision that she will carry his name
Then even for Rashi's half share, it does not appoint any guardian.
21 No provision for charity is made for that would have run counter to the plaint as originally put down by the plaintiff. It is not as if for a heart patient, marriage makes him forget charity. And, to sound the last post, even a provision of Rs.5,000/- for last rites, is missing. It is submitted that this document has been forged and fabricated after the filing of WS cum counter claim. It is therefore, prayed as under:-
1) that suit of the plaintiff for partition be dismissed and she be held not entitled to any share in the property/estate. CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 22/78
2) counter claim be entertained. A decree for declaration be passed that the assets detailed in Annexure A were the ownership of Smt. Prakash and on her death came to be owned by Sh. Subhash upto 50% and Rashi upto 50% and on death of Sh. Subhash Chand in terms of his Will came to be wholly owned by Rashi as a result of which she is now the absolute owner thereof.
3) As far as the assets left behind by Sh. Subhash Chand are concerned in Annexure B, all these came to be owned by Rashi in terms of his Will and are owned absolutely by her.
4) Since a number of assets primarily the house in Geetanjali and Dariba Kalan are joint with defendant no.1 Sh. Dinesh Chand, these be partitioned and 50% share be separately awarded to Rashi and 50% to Sh. Dinesh Chand. For this purpose, a preliminary decree be passed whereafter a final decree can follow.
5) All matters pertaining to estate of Sh. Subhash Chand be gone into and proper decree/directions in that regard be given.
6) A decree for declaration that the assets mentioned in Annexure D are absolute ownership of defendant no.3 Rashi and have nothing to do with succession of either Smt. Prakash and Sh. Subhash and that plaintiff has no claim thereto be passed.
7) Costs of the litigation as the court deems proper be also CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 23/78 awarded.
WS on behalf of defendant no. 5 to 7:
Preliminary objections and submissions:-
22 The present suit has been filed without disclosing true and correct facts which are as follows:-
23 Late Lala Pyare Lal, father of Sh. Prem Chand married thrice during his lifetime. His first wife Smt. Shakuntala died issueless, second wife Smt. Maharani gave birth to late Sh. Prem Chand and after her death late Sh. Pyare Lal married Smt. Nirmala Devi, who did not bear any issue and died on 09.02.1979. Late Sh. Pyare Lal and late Sh. Prem Chand formed a joint Hindu family and after the death of late Sh. Pyare Lal, Sh. Prem Chand became karta of the said joint family property bearing no. 1607-18, Dariba Kalan which was inherited by late Sh. Pyare Lal where the joint family resided. Late Sh. Prem Chand alongwith his step mother Smt. Nirmala and his sons lived in said house. Present suit has been filed without disclosing that the property at Dariba Kalan was joint family property and answering defendants have a share in the same. Sh. Prem Chand married twice, first with Smt. Raj Dulari with whom he had two sons Sh. Dinesh Chand and Sh. Subhash Chand. At the time of marriage with Smt. Raj Dulari Devi in 1936, father of Smt. Raj Dulari namely Lala Ram Sarup gave house no. CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 24/78 1/808, Chhota Bazar, Kashmere Gate in dowry to Sh. Prem Chand and Smt. Raj Dulari Devi. After death of Smt. Raj Dulari in 1949, Sh. Prem Chand married Smt. Satya Devi with whom he had three sons being the answering defendants. Smt. Nirmala Devi let out the property of Dariba Kalan without consent of Sh. Prem Chand and collected Rs.80,000/-. Out of the said funds and from the proceeds of movable properties like jewellery etc., Sh. Prem Chand constructed a plot bearing no. C-7, Geetanjali Colony, Mehrauli Road, New Delhi in the name of Smt. Nirmala Devi. Said plot was purchased by Sh. Prem Chand from joint family funds in 1950-51 in the name of his step mother Smt. Nirmala Devi. Smt. Nirmala Devi was a house wife and illiterate and died on 11.02.1979. Sh. Prem Chand filed a suit for partition bearing suit no. 305/1979 making all his five sons and second wife Smt. Satyawati as defendants of the following properties;
a) two and a half storey property bearing municipal no. 4/1605, 7 & 8 situated at Gali Dak Khanewali, Dariba Kalan, Delhi
b) Leasehold rights on plot bearing no. C-7, Geetanjali, Mehrauli Road, New Delhi
c) property municipal no. 1/808, Old Chhota Bazar, Kashmere Gate, Delhi.
24 All the rent receipts were issued by late Sh. Prem Chand CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 25/78 Gupta as karta of Pyare Lal Prem Chand HUF.
25 Said suit was dismissed in default and application for restoration was also dismissed by order dated 22.04.2003. Reply on merits:-
26 Pedigree table is correct. Defendants no. 5 to 7 also have a share in the properties mentioned in para 9. Dariba Kalan property is joint family property. Sh. Prem Chand purchased lease hold rights in property C-7, Geetanjali in the name of his mother Smt. Nirmala. That is also a joint family property and defendants have a share therein. The third property municipal number 1/808, Chhota Bazar, Kashmere Gate, Delhi was also brought in the joint family pool after the death of Smt. Raj Dulari Devi in 1949 and treated as joint family property. All the answering defendants have share in the said three properties. Answering defendants are entitled to 1/5th share each in the above mentioned three properties.
Replication on behalf of LRs of defendant no.1 and defendant no.2 to the WS of defendant no. 5 to 7:-
27 Third wife of Sh. Pyare Lal and step mother of Sh. Prem Chand did not bear any issue and died on 11.02.1979 leaving behind a Will dated 12.12.1976 bequeathing all her movable and immovable properties in favour of her two grandsons Sh. Dinesh Chand and Sh. CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 26/78 Subhash Chand whom she had bought up after they were abandoned by their father Sh. Prem Chand on contracting second marriage. Joint family had only one property i.e. 1607-1608, Gali Dak Khanewali, Dariba Kalan, Delhi. Apart from that, the family was having about 13 plots of land in khasra no. 85 inside notified area committee Shahdara. All these plots were acquired by notification dated 13.11.1959 and huge compensation was received by Sh. Prem Chand who did not account for the said compensation to other family members i.e. Smt. Nirmala Devi and late Sh. Dinesh Chand and late Sh. Subhash Chand and appropriated the entire amount to himself alongwith his second wife Smt. Satyawati and three sons from Smt. Satyawati i.e. defendant no. 5 to 7. Sh. Prem Chand, his second wife Smt. Satyawati and three sons of that marriage i.e. defendant no. 3 to 5 received much more than what they were entitled to in partition of residential property at Dariba Kalan. They were deemed to have separated in 1953 itself when they left Dariba Kalan and finally when they received huge compensation and did not account for the same. After marriage with Smt. Satyawati, Sh. Prem Chand abandoned his two sons from first wife namely Sh. Dinesh Chand and Sh. Subhash Chand and started living separately in Darya Ganj since 1953. Sh. Dinesh Chand and Sh. Subhash Chand Gupta were brought up by Smt. Nirmala Devi, their grandmother at CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 27/78 residential house 1607-1608, Gali Dak Khanewali, Dariba Kalan out of the meager rental income of the said property and her other resources. Through her Will dated 12.12.1976, Smt. Nirmala Devi bequeathed her entire half share in property at 1607-08, Dariba Kalan and herself acquired property bearing no. C-7, Geetanjali enclave and all her movable and immovable properties in favour of her two grandsons Sh. Dinesh Chand and Sh. Subhash Chand. Sh. Pyare Lal died leaving behind only two legal heirs, his widow Smt. Nirmala and Sh. Prem Chand who succeeded to the property of Dariba Kalan in equal shares. Share of Smt. Nirmala Devi has been bequeathed to Sh. Dinesh Chand and Sh. Subhash Chand in equal shares i.e. 1/4th share each. Share of Sh. Prem Chand i.e. half share in property of Dariba Kalan is alone liable to be partitioned. Each of the five sons of Sh. Prem Chand are entitled to 1/10th share in the property of Dariba Kalan. Legal heirs of Sh. Dinesh Chand and Sh. Subhash Chand are entitled to 7/10 th share in the property of Dariba Kalan. There is no other property in which defendant no. 5 to 7 can claim any share. Smt. Nirmala Devi was allotted leasehold rights in plot C-7, Geetanjali @ Rs.29/- per sq. yards i.e. total of Rs.10,672/- and this payment was made to the society in installments spread over 12 years from 1959 to 1971 and entire payment was made by Smt. Nirmala Devi out of her personal resources. CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 28/78 Smt. Nirmala Devi being a freedom fighter received a monthly pension of Rs.200/-. She also had savings and insurance policies in her own name and had substantial cash and personal jewellery worth Rs.7,000/-. She also raised loans of Rs.45,000/- from various sources including Sh. Dinesh Chand and Sh. Subhash Chand who had started earning by then. Out of the abovementioned resources, Smt. Nirmala Devi constructed house at C-7, Geetanjali. No amount whatsoever was spent for either the acquisition of sub lease rights or the construction of super structure on the said plot of land out of family money, assets and income. The family did not have any resources or income. The meager amount received by Smt. Nirmala Devi towards rent of the shops on ground floor was spent in bringing up two sons from first wife of Sh. Prem Chand. No amount was saved out of the said rental income received by Smt. Nirmala. Prior to 1953 all rents were realised by Sh. Prem Chand. After 1953, with mutual consent, Smt. Nirmala was receiving rent from first two tenants of 110.37/- per month and Sh. Prem Chand was receiving rent from other two tenants @ Rs.53.50/- per month. There were no other assets of the family. Late Sh. Pyare Lal died in 1941 and the property of Dariba Kalan was mortgaged at that time. Said property was got redeemed by whatsoever assets that were left. After redemption of the property, no estates remain and financial condition was stringent. CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 29/78 Reply to preliminary objections:-
28 It is not denied that property of Dariba Kalan was a joint family property in which two sons from the first marriage and three sons from the second marriage had a share. It is wrong and denied that Lala Ram Sarup, father of Smt. Raj Dulari Devi gave property no. 1/808 situated at Chhota Bazar, Kashmere Gate in Delhi. The actual fact is that Lala Ram Sarup bequeathed/gifted the property of Chhota Bazar, Kashmere Gate to late Smt. Raj Dulari by a registered deed dated 12.03.1936 by which all the rights and interests in said property were transferred to Smt. Raj Dulari except the right to transfer the said property during her life time and after her death, said property was to become absolute property of her sons in equal shares. It is denied that the said property of Chhota Bazar can be or was included in joint family property. It is wrong to suggest that late Smt. Nirmala Devi collected any amount much less than Rs.80,000/-.
29 It is further wrong and denied that from the said alleged amount of Rs.80,000/- or from the sale proceeds of family jewellery, property bearing plot no. C-7, Geetanjali colony, Mehrauli Road was constructed or that the constructions were made by late Sh. Prem Chand. It is wrong and denied that the plot of Geetanjali at C-7 was purchased by Sh. Prem Chand from joint family funds in 1950-51 in the CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 30/78 name of his step mother Smt. Nirmala Devi. Relations between Sh. Prem Chand and Smt. Nirmala Devi were not good. Sh. Prem Chand deserted his two sons from his first wife and his step mother Smt. Nirmala in 1953. Property at C-7, Geetanjali Enclave and of Chhota Bazar were wrongly included by Sh. Prem Chand as properties liable to be partitioned. Property at Geetanjali was self-acquired property of Smt. Nirmala. Sh. Prem Chand, his second wife and his three sons from the second wife had no right, title or interest in the property at Geetanjali. It is wrong and denied that any rent receipt in respect of property at 1/808, Chhota Bazar, Kashmere Gate, could be issued by Sh. Prem Chand as karta of Sh. Pyare Lal Prem Chand HUF in any case, issuing of any receipt in the name of Sh. Pyare Lal Prem Chand HUF could not have changed the character of property of Chhota Bazar, Kashmere Gate. The suit filed by Sh. Prem Chand was dismissed by Hon'ble High Court on 14.03.1991. On 12.10.1992 i.e. 19 months after, Smt. Satyawati moved application under Order 9 Rule 9 that two sons plaintiff no. 2 & 3 of that suit had deserted her. On these allegations, Smt. Satyawati prayed for recall of order of dismissal. Thereafter, the court was pleased to dismiss the application for restoration of the said suit.
CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 31/78 On merits:-
30 Smt. Nirmala bequeathed her entire half share in the property of Dariba Kalan in favour of Sh. Dinesh Chand and Sh. Subhash Chand. Defendant no. 5 to 7 are entitled to 1/10th share each in property of Dariba Kalan. It is denied that property of Chhota Bazar was brought in joint family pool after the death of Smt. Raj Dulari in 1949 or was treated as joint family property.
Replication filed by plaintiff to written statement filed by defendant no. 1(a) to 1(c):-
31 It is submitted that since after the marriage of the plaintiff the lodging and boarding of two brothers Sh. Subhash Chand and Sh. Dinesh Chand has been separated. It is denied that Smt. Satyawati was realizing the rent from M/s Anup Singh and sons. It is denied that rent realized by defendant no.1 from the tenants is only Rs.254/- per month. Defendant no.1 has also realized huge amounts by way of pagri from occupants of ground floor. The Will dated 16.09.1988 stands validly revoked by writing dated 05.03.1991. Smt. Satyawati and her sons have no share in any of the properties. In the rest of her replication, plaintiff has denied all the averments and allegations which are contrary to her own plaint and reiterated her stand taken in the plaint to be true.
CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 32/78 Replication of plaintiff to WS of defendant no. 3 & 4. Facts stated are as follows:-
32 Adoption of Rashi is admitted. Adoption deed is also admitted. Property mentioned in Annexure A is of Sh. Subhash Chand. It is submitted that on 05.03.1991 Sh. Subhash Chand executed a Will at Muzaffar Nagar where he had gone to attend the marriage of Sh. Kamal Kumar Goyal younger brother of plaintiff. Sh. S.P Gupta of Gulabi Bagh and Sh. Subhash Chand Gupta of Najafgarh were also present to attend the said marriage. Sh. S.P Gupta is father of Sh. Anil Kumar who is married with Smt. Suruchi, younger sister of plaintiff. Sh. Subhash Chand Gupta of Najafgarh is husband of Smt. Gayatri Devi who is the real elder sister of plaintiff. Husband of plaintiff was already a heart patient. At the time of signing Will dated 05.03.1991, Sh. Subhash Chand Gupta changed his mind. Earlier part of document dated 05.03.1991 was retained and the later part was scored of. Then Sh. Subhash Chand signed it in the presence of attesting witnesses who signed thereafter in his presence at one and the same time. Therefore, Will dated 16.09.1988 stands cancelled. It is also not denied that plaintiff was first married to Sh. Vinod Kumar who later divorced the plaintiff. The plaintiff has not received any maintenance from her first husband. The pleas of defendants that the plaintiff abandoned her first CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 33/78 husband are false and fabricated.
WS of the plaintiff to counter claim of defendants:- 33 It is submitted that properties mentioned in Annexure A did not belong to Smt. Prakash and therefore defendant no.3 does not inherit half of the property mentioned in schedule A as successor to Smt. Prakash nor does she inherit the remaining half as successor to Sh. Subhash Chand by virtue of Will Annexure C. Defendant no.3 is not entitled for declaration of ownership in regard to those properties. It is denied that defendant no.3 is entitled to 75% of properties mentioned in schedule A. It is denied that defendant no.3 is entitled to any of the reliefs prayed for in her counter claim and has therefore prayed that counter claim be rejected and suit of plaintiff be decreed with costs. Plaintiff Evidence:-
34 Plaintiff examined herself as PW1 by way of evidence affidavit in her examination in chief. In her evidence affidavit, she has deposed on exactly the same lines as that of her amended plaint and no new fact which may substantially change her case or her pleadings has been added or subtracted from her evidence affidavit. She tendered documents Ex.P-1 to Ex.P-6 so referred in her affidavit but these documents were objected to on the ground that they cannot be exhibited because plaintiff is neither the author of these documents nor these CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 34/78 documents were coming from the custody of this witness and hence she was incompetent to prove those documents. Plaintiff was cross examined. Relevant extracts of her cross examination are as follows:- 35 She deposed that she was married on 10.12.1991. Prior to that she was also married on 27.02.1985. In 1985, she was married to one Mr. Vinod. She does not remember the name of father of Mr. Vinod. She does not even remember the house address of said Mr. Vinod. She got divorced in 1986. Petition for divorce was filed in September or October 1986. She had a daughter from her previous marriage with Mr. Vinod but that daughter lives with Mr. Vinod. She deposed that they were three brothers and five sisters. Witness was confronted with contents of para 6 of the original plaint dated 12.11.1991 and amended plaint dated 14.02.1994 where she stated that she is the only daughter of Sh. Om Prakash Goyal. She deposed that on 05.03.1991, she was in Muzaffar Nagar at Bari Dharamshala for Tika ceremony and marriage of her brother. She was aware that Sh. Subhash Chand Gupta had an adopted daughter defendant no.3 before her marriage with Mr. Gupta. She was not aware of any Will in favour of defendant no.3. Mr. Subhash Chand Gupta disclosed about the Will in favour of defendant no.3 at the time of Tika ceremony on 05.03.1991 when he expressed his desire to change the Will. When Sh. Subhash CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 35/78 Chand Gupta disclosed these facts, Mr. S.P Gupta, father in law of her younger sister Suruchi, Sh. Subhash Chand Gupta, husband of her elder sister Gayatri Gupta, her father and plaintiff/PW1 were present. Sh. Jagdish Prashad typist was also present. Sh. Jagdish Prashad typist was friend of her father who had come to attend the marriage of her brother. She does not remember if anyone else was present at that time in the room. Sh. Dinesh Chand, elder brother of Sh. Subhash Chand Gupta was not present. The second Will of her husband Sh. Subhash Chand Gupta was typed and signed when someone told that Sh. Dinesh Chand had also reached the venue of marriage and Sh. Subhash Chand Gupta closed the file containing the papers. Smt. Saroj Bala, defendant no.2 was also not present when the Will was executed. The time was around 2.30 pm to 3.00 pm. She does not remember the exact time. Tika ceremony was held at 12.00 noon. Marriage was on 06.03.1991. She does not have any card of the marriage of her brother that the marriage was solemnized on 06.03.1991. She was not present throughout in the room when the Will of 05.03.1991 was executed but she was coming in and going out. The Will was signed in her presence. This document was not given to her and might have been kept by her husband. She was aware on 05.03.1991 itself that a document dividing the property in two shares, one in her name and the other in the name of defendant no.3 has CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 36/78 been executed by her husband. She had not come to her advocate before filing of the plaint. Her father used to visit the advocate. She had given authority to her father to file a suit on her behalf but does not remember whether the plaint was signed by her or her father. No document was prepared when her child from the first marriage was taken by Mr. Vinod Kumar Gupta. She does not remember whether there was any settlement or any court order relating to alimony, maintenance, jewellery items etc. She does not remember the time till when Tika ceremony was continued but it continued upto 4 to 5 pm. She was asked to tell names of friends and relatives of Sh. Subhash Chand who were invited in the marriage of her brother but plaintiff deposed that as far as she knew, only Sh. Dinesh Gupta and his wife were invited. While writing the second Will, her husband and others were sitting in a separate room and were there for about 2 ½ to 3 hours. In the very next line, she deposed that may be they were sitting in a separate room starting from 12.00 noon or 1.00 pm. She deposed that it is correct that she was aware of the document dated 05.03.1991 on 05.03.1991 itself. It is also correct that on 05.03.1991, she was also aware of the registered Will dated 16.09.1989 of her husband in favour of daughter Rashi. She is not aware of education qualification of her husband Sh. Subhash Chand Gupta but he was an educated person CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 37/78 being a bank officer. She does not know if her husband had consulted any advocate before executing document dated 05.03.1991. Her husband used to conduct his official work in English as well as in Hindi language as per the requirements. Will dated 16.09.1989 is in English. Witness has to check if any other document in Hindi language executed or written by her husband is available apart from the document dated 05.03.1991. Sh. Subhash Chand came to Delhi alone from Muzaffar Nagar but she does not remember the date on which he came back alone. Her father was sitting inside the court room on the date of her deposition and cross examination. She came to know that Sh. Subhash Chand Gupta was a heart patient after her engagement. They came to know about the illness of Sh. Subhash Chand Gupta through her maternal uncle. Site plan was prepared by the draftsman on instructions of her father. It was not prepared in her presence. She did not search for any document in Hindi executed or written by her husband. Her stirdhan comprised of four kada, one chain, one pair of tops and ring. She deposed that she did not give description of her stridhan to her counsel during preparation of plaint. She does not remember whether late Sh. Subhash Chand Gupta was having a rough draft in his hands when he was giving dictation to Sh. Jagdish Prasad on 05.03.1991. She does not remember whether dictation given by Sh. Subhash Chand CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 38/78 Gupta was spontaneous or in continuing or was given after thinking. She also cannot recollect whether typist Sh. Jagdish Prasad typed only one document or more than one. It is correct that Ex. P-6 was the only document which was typed. She is not aware as to why there is very less margin on the top of document Ex. P-6. She also cannot say as to why the old paper was used for preparing this document. She had brought letter dated 23/25.11.1990 written by her late husband Sh. Subhash Chand Gupta and the same is Ex.PW1/D3X7 running into 2 pages back to back. She was asked if she could tell as to why a new document was not typed when almost ½ (half) of the contents of the document dated 05.03.1991 were scored off to which she replied that when this document was prepared it was partly scored off, at that time somebody came inside and told her that her Jeth (elder brother of her husband ) Sh. Dinesh Chand and Jethani Smt. Saroj Rani had arrived from Delhi and thereafter all the persons signed and document was closed. She deposed that relations between Sh. Subhash Chand Gupta were not cordial with his brother Sh. Dinesh Chand and his Bhabhi Smt. Saroj Rani. She could not say as to who looked after Rashi who was only 5 to 6 years of age when Sh. Subhash Chand Gupta used to leave for his office. On cross-examination dated 26.07.2013, PW1 deposed that documents etc. including shares, debentures, FDR, CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 39/78 National Saving Certificate, Provident Fund etc. lying in the cupboard of Sh. Subhash Chand, her husband were taken away by Sh. Dinesh Chand as he was in possession of the keys but in her cross examination dated 22.11.2014, PW1 deposed that keys of the Almirah were in possession of plaintiff PW1 at that time when these documents were taken away by Sh. Dinesh Chand. She deposed that she did not refuse to give the keys despite having strained relations with Sh. Dinesh Chand. She deposed that Sh. Subhash Chand her late husband and Sh. Dinesh Chand her jeth never asked for partition inter-se in her presence. This fact is also in contradiction to her earlier statement given in her cross examination where she deposed that relations between Sh. Subhash Chand and Sh. Dinesh Chand were not cordial on account of property disputes. She does not know the reason as to why Sh. Subhash Chand gave dictation of document Ex. P-6 at Muzaffar Nagar. It is correct that both the attesting witnesses of Ex. P-6 are residents of Delhi. Ex. P-6 was not got registered and PW1 does not know the reason for non-registration of the same. It is correct that PW1/plaintiff was aware that Sh. Subhash Chand Gupta her late husband has executed a Will pertaining to the year 1988. Cross examining counsel pointed out that there were contractions in cross examination of PW1 in her statement made on 30.08.2014 and statement made on 28.04.2015 CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 40/78 regarding arrival of Sh. Dinesh and his wife Smt. Saroj Gupta to which witness deposed that statement made by the witness on 30.08.2014 is correct in comparison to the statement made on 28.04.2015. She deposed that there is no relation between Sh. S.P gupta who is attesting witness of Ex. P-6 and her late husband Sh. Subhash Chand Gupta. She deposed that signatures at point C on Ex. P-6 are of Sh. Subhash Chand Gupta. She deposed that her husband knew Sh. Subhash Chand Gupta and S.P Gupta only after her marriage. She again stated that they knew her husband since her engagement with Sh. Subhash Chand Gupta. She deposed that she was not aware as to why Ex. P-6 is not witnessed by any of relations or friends of Sh. Subhash Chand. She is not aware whether late Sh. Subhash Chand Gupta disclosed Ex. P-6 to Sh. Dinesh Chand. She also did not disclose Ex. P-6 to any person. She deposed that she did not file Ex. P-6 alongwith her original plaint as she was shocked by the tragedy that took place.
36 She deposed that she claimed in the suit that Sh. Subhash Chand Gupta died intestate when she had knowledge about the execution of Will because the same was not registered. It is correct that she disclosed about the Will Ex. P-6 for the first time in her replication. She is not aware as to why time of 16 weeks was taken to file replication when she was only granted three weeks to do the same. She CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 41/78 deposed that the Will was lying with Sh. Satya Narain Gupta (Mamaji) and there was no document, letter or writing to show the existence of Ex. P-6 anti-dated to 14.05.1992. She deposed that it is correct to suggest that she had knowledge of the registered Will of Sh. Subhash Chand Gupta dated 16.09.1988 at the time of filing of the suit but she did not know where this Will was. She does not remember as to when she learnt about the registered Will dated 16.09.1988 but it was after the marriage. She deposed that she did not bring her pay slips/income tax return despite taking an adjournment for the same on the previous date of her cross examination. She deposed that she learnt about Ex.PW-1/PX-1 (will dated 16.09.1988) on 05.03.1991 at the time of her brother's ring and Tika ceremony. She does not recollect whether she mentioned about this fact of the Will of 1988 to her advocate before filing of the present suit. She deposed that Sh. Jagdish Prasad typist who typed the second Will Ex. P-6 dated 05.03.1991 was a friend of her father. She deposed that it is correct that there was only one kitchen in the house of Dariba Kalan before her marriage. She also deposed that it is correct that both the brothers Sh. Subhash Chand Gupta and Sh. Dinesh Chand were living together and having a common mess and were sharing the expenses. She deposed that it is incorrect to suggest that there were cordial relations between Subhash Chand Gutpa and Sh. CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 42/78 Dinesh Chand. She deposed that she is not aware whether any partition was sought by any of the brothers before death of Sh. Subhash Chand Gupta. She was asked to specify her stridhan jewellery to which she replied, as per her recollection, there were gold chain, 8 or 9 gold or diamond rings, two pendent sets, one pearl set, one Ramnami or Satlada, diamond bangles and kada. She deposed that her father had made payment of the jewellery but there is no receipt. She (the plaintiff) does not have any document or writing to support her claim with regard to stridhan. No complaint was ever filed by PW1 regarding the alleged withdrawal of money from the bank account of Sh. Subhash Chand Gupta. She could not say as to why she did not make any complaint in writing with regard to the withdrawal of the amount.
37 Mr. Jagdish Prashad was examined as PW2 by way of evidence affidavit. He stated as follows:-
38 That he has been working as typist in Muzaffar Nagar, U.P for the last 50 years. He has seen document dated 05.03.1991 Ex. P-6 and his signatures are at point D. Ex. P-6 was typed by him on directions of Sh. Subhash Chand Gupta executant who had come to Muzaffar Nagar to attend marriage of his brother-in-law Sh. Kamal Kumar. Sh S.P Gupta and Sh. Subhash Chand Gupta attesting witness CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 43/78 of Ex. P-6 had also come to Muzaffar Nagar to attend the said marriage. Initially Sh. Subhash Chand Gupta contemplated to execute a Will which was dictated by him and typed by PW2 in Hindi on dictation of Sh. Subhash Chand Gupta. However, before signing said document, Sh. Subhash Chand Gupta changed his mind and while retaining the earlier part of document, got its later part scored off which PW2 did on his instructions. Thereafter, Sh. Subhash Chand Gupta signed Ex. P-6 at point A. Thereafter, Sh. S.P Gupta and Sh. Subhash Chand of 610, Najafgarh signed at point B & C. Thereafter, deponent signed at point D. Relevant parts of his cross examination are as follows:- 39 He deposed that he is a typist by profession and is not a deed writer. He deposed that he used to write applications etc. for court work. He has 63 years of experience in document writing. He could also write affidavits himself. He deposed that he could prepare documents in Hindi and English. He deposed that he signed the evidence affidavit Ex.PW2/A at his seat at Kachehri collector compound, Muzaffar Nagar and second time he signed before the Notary public. He deposed that the said affidavit was attested by notary public in Muzaffar Nagar, U.P. He deposed that he has never come to Delhi for the purpose of either preparing or signing or attestation. He CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 44/78 was shown that the word New Delhi is typed in the verification encircled at point X in Ex.PW2/A and asked if he had to say anything to which the witness replied that he does not recollect. He deposed that as far as drafting of affidavit is concerned, he does not remember where the same was drafted but the same was signed and got attested in Muzaffar Nagar. He never maintained any register in respect of documents written by him. He has drafted Will and codicils. He must have drafted 100 of Wills and codicils. He knew Sh. Om Prakash, father of the plaintiff about 10 years before writing of Ex. P-6. He deposed that he had brought two papers for the purpose of dictation. He deposed that it is correct that words Hast Mukir at point Z1, Sakshi at point A are not aligned to each other in document Ex. P-6. He deposed that he scored the portion from point A to A and B to B on his own language on instructions of Sh. Subhash Chand Gupta the executant. He deposed that he did not type on the second paper when first paper was scored out to almost half because he had taken only two papers and when he suggested to Sh. Subhash Chand Gupta that he would re-type on the second paper then some relatives of Sh. Subhash Chand Gupta came to whom Sh. Subhash Chand Gupta did not want to show the document and he said "chalo ji ho gaya". He deposed that he could not say if Sh. Subhash Chand Gupta did any mistake while dictating Ex. P- CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 45/78
6. He deposed that he was invited only in the marriage. (it is an important point because this document dated 05.03.1991 was allegedly executed on the date of Tika ceremony and the marriage to which he was invited was on next date i.e. 06.03.1991). 40 Thereafter, Mr. Sri Prakash Gupta was examined in chief by way of evidence affidavit. He deposed as follows:- 41 That he is relative of plaintiff Ms. Meera Gupta and had gone to Muzaffar Nagar to attend marriage of Sh. Kamal Kumar, brother of plaintiff on 05.03.1991. He deposed that Sh. Subhash Chand Gupta husband of the plaintiff was a known case of heart patient. He deposed that document dated 05.03.1991 was typed in Hindi on dictation of Sh. Subhash Chand Gupta husband of plaintiff by Sh. Jagdish Prasad. He deposed that at the time of signing document dated 05.03.1991 Sh. Subhash Chand Gupta husband of plaintiff changed his mind and scored off later part while retaining the earlier part of the document. He was also cross examined. Relevant part of his cross examination is as follows:-
42 He deposed that he is the Mausa of plaintiff. He deposed that Tika ceremony commenced at 9.30 am. He deposed that the ceremony continued for one hour till 10.30 am and thereafter there was lunch and they stayed there till 2 pm. He deposed that he left the CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 46/78 premises at 2pm. He further deposed that Sh. Subhash Chand Gupta, executant asked Sh. Om Prakash father of plaintiff to call the typist after 2 pm. His attention was drawn to his earlier statement given in cross examination where he had deposed that he had left at 2 pm and was asked which of his statement is correct to which he replied that they were sitting in the room after 2 pm and continued to remain in the said room till 5pm. He deposed that the dictation started at 2.50 pm. He deposed that he signed document at about 2.35 pm. This statement is also a contradiction to his previous statement in cross examination where he deposed that dictation started at 2.50 pm. He deposed that the typist Sh. Jagdish Prasad brought two papers for the purpose of typing (This statement corroborates exactly with the statement of typist Sh. Jagdish Prasad which seems highly unbelievable and almost impossible to believe as there was no way of knowing by this witness as to how many documents were brought for typing by typist Sh. Jagdish Prasad. This fact could only have been in the personal knowledge of typist himself). He deposed that advocate of plaintiff drafted this evidence affidavit and he had instructed him. He deposed that he does not know whether Sh. Jagdish Prasad typist was invited in marriage but he did not see Sh. Jagdish Prasad typist in any function. He deposed that late Sh. Subhash Chand Gupta CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 47/78 was continuously dictating to the typist without pausing. He deposed that he is not aware whether Sh. Dinesh Chand and Smt. Saroj Rani Gupta were invited for the Tika ceremony.
Defendant Evidence:-
43 Defendant examined several witnesses. Defendant examined Smt. Saroj Rani as DW1 by way of evidence affidavit. She was the wife of defendant no.1 and also his legal heir upon his death.
She deposed that property bearing no. 1607-08, Dariba Kalan was ancestral property of the HUF of which Lala Pyare Lal was karta of Smt. Nirmala Devi a member. On death of Lala Pyare Lal, Smt. Nirmala Devi became 3/4th share owner and Lala Prem Chand became owner of 1/4th share. Said HUF did not own or possess any other property. After death of Sh. Pyare Lal, Smt. Nirmala Devi resided in said property with her step son Sh. Prem Chand and his two grandsons Sh. Dinesh Chand and Sh. Subhash Chand. Sh. Prem Chand shifted his residence after marrying Smt. Satyawati to a rented property on account of non-compatibility of his new wife Smt. Satyawati with Smt. Nirmala. On marrying Smt. Satyawati, Sh. Prem Chand abandoned his two sons Sh. Dinesh Chand and Sh. Subhash Chand and left them under the care of Smt. Nirmala. Smt. Nirmala brought up her grandsons as her own sons, gave them education and got them married. She CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 48/78 resided with them throughout her life. She received a pension of Rs.200/- per month being a freedom fighter. She also had her own savings, fixed deposits and insurance policies and substantial cash and jewellery worth several thousands as stridhan. She was the sister of then Chief Executive Counselor Radha Raman. Original passbook of Smt. Nirmala of account no. 10124 with Bank of India is Ex.DW1/4-A. Original savings passbook for account no. 6802 jointly held with Sh. Subhash Chand are Ex.DW1/5-A and Ex.DW1/5-B. Details of fixed deposits are Ex.DW1/6-A to Ex.DW1/6-I. Her form of becoming member of Delhi Pradesh Congress Committee is Ex.DW1/7. Sh. Radha Rama floated a society called Lok Sevak Group Housing Society and developed a residential colony namely Geetanjali Enclave in South Delhi. He made his family members and close relatives members of said society. At his instance, Smt. Nirmala also acquired membership of said society and acquired lease hold rights in respect of plot at C-7, Geetanjali Enclave. Original share certificate is Ex.DW1/8. Entire payment for becoming member and for acquiring lease hold rights in plot no. C-7, Geetanjali was made out of her own separate income and stridhan. All installments of the lease premium were paid by Smt. Nirmala out of her own income and stridhan. Original receipts for the years 1959 to 1971 are Ex.DW1/9-A to Ex.DW1/9-U. Original CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 49/78 payment letters addressed to Smt. Nirmala are Ex.DW1/10-A to Ex.DW1/10-D. Original letter addressed to Smt. Nirmala informing her that she can get the sub lease registered in her name for plot no. C-7 is Ex.DW-1/13. She subsequently constructed a small residential house on the said plot out of her own separate income and stridhan. 44 Perpetual sub lease in respect of plot at C-7, Geetanjali Enclave was registered in the name of Smt. Nirmala. Smt. Nirmala Devi executed a Will dated 12.12.1973 during her life time. Signatures of Smt. Nirmala are identified at points A, B, G & H. Said Will is Ex.DW1/1 colly. It was registered on 13.12.1973. Registration receipt is Ex. DW-1/2. Through this Will Smt. Nirmala Devi bequeathed all her properties, movable and immovable including her 3/4th share in Dariba Kalan and immovable property at C-7, Geetanjali in favour of her grandsons Sh. Dinesh Chand and Sh. Subhash Chand in equal shares. Smt. Nirmala died on 11.02.1979 leaving behind a Will. Smt. Nirmala during her life time vide letter dated 04.04.1969 also nominated her two grandsons Sh. Dinesh Chand and Sh. Subhash Chand as per nominee for plot at C-7, Geetanjali. The said nomination letter is Ex.DW1/29. Sh. Prem Chand died on 11.12.1983. His wife Smt. Satyawati died on 04.12.1994 on their death, ¼th share in the property at Dariba Kalan was succeeded on Sh. Dinesh CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 50/78 Chand and Sh. Subhash Chand and their three step brothers namely Sh. Satish Chand, Sh. Kiran Chand and Sh. Avinash, defendant no. 5 to 7 in equal share of 1/20th share each. Therefore, Sh. Dinesh Chand and Sh. Subhash Chand have 17/40 share each. Sh. Subhash Chand Gupta adopted defendant no.3 Ms. Rashi because he was issueless with his first wife Smt. Prakash. Smt. Prakash died on 16.07.1988 intestate leaving behind her husband and Rashi as her legal heir. Her estate was inherited by Sh. Subhash Chand and Rashi in equal shares. On 10.12.1990 Sh. Subhash Chand married plaintiff and died on 20.03.1991 just three months after leaving behind his Will dated 16.12.1988. This Will is Ex.DW1/3. According to this Will, he bequeathed his entire movable and immovable property including 17/40th share in Dariba Kalan and half share in Geetanjali Enclave property to defendant no.3. By virtue of this Will, a charitable trust was also created out of a small portion of movable properties. Smt. Prakash left behind movable properties detailed in Annexure A to the WS filed on behalf of defendant no. 3 & 4 and Sh. Subhash Chand left behind properties mentioned in Annexure B. Defendant no. 3 is therefore owner of 17/40th share in the property of Dariba Kalan. Assets mentioned in Annexure D to the WS of defendant no. 3 & 4 were acquired by defendant no.3 on gift from her matrimonial grandparents, CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 51/78 mother Smt. Prakash, father Sh. Subhash Chand and also from her natural parents. Properties mentioned in Annexure D are exclusive properties of Rashi. Under the alleged Will Ex. P6 one locker was exclusively given to Smt. Meera Gupta but in the plaint she claimed only ½ share. The scoring off in Ex. P6 is neither signed nor initialed by late Sh. Subhash Chand Gupta. Both witnesses of Ex. P6 are closely related to the plaintiff through the side of her father. Late Sh. Subhash Chand Gupta was a permanent resident of Delhi. There is no reason as to why he had executed the Will at Muzaffar Nagar. Document Ex. P6 is not registered particularly when it seeks to revoke a registered document. Letter dated 16.03.1991 is written by late husband Sh. Dinesh Chand of DW1 Smt. Saroj Rani in which he has secured a job for plaintiff on compassionate ground. The said letter is Ex.DW1/30 and signatures of late Sh. Dinesh are identified. Her cross examination is as follows:-
45 She deposed that the Will of 16.09.1988 was handed over to her husband by late Sh. Subhash Chand prior to his marriage with the plaintiff. The said Will was in English. She deposed that she did not become an attesting witness of the said Will because her husband never wished the same. She deposed that late Sh. Subhash Chand Gupta normally used to write in English. She deposed that he used to write CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 52/78 applications and other papers in English and also used to write all the school applications of her children. She deposed that her children were not studying in English medium but studied in Indraprastha school. In the entire remaining cross examination of DW1, neither the plaintiff nor any of the other parties could bring out anything which might be useful to the case of the plaintiff or might be contradictory to the claims of LRs of deceased defendant no.1.
46 Mr. Sewajit, Record Attendant was examined as DW2. He was a summoned witness. He brought the original record i.e. Will dated 13.12.1973 registered on 15.12.1973. Copy of the same was Ex.DW2/1 (original seen and returned). Cross examination of this witness did not yield anything useful to the cross-examining counsel. 47 Thereafter, Mr. Jagdish Prasad Gupta was examined by way of evidence affidavit. He deposed as follows:-
48 He deposed that he knew Smt. Nirmala Devi wife of late Sh. Pyare Lal who had executed the Will dated 12.12.1973 Ex.DW1/1.
Will was signed by Smt. Nirmala Devi in his presence at point A & B and he also signed as a witness at point C & D. Other attesting witness namely Mr. Rajeshwar Nath Gupta advocate was also present at the time of execution of the Will. He signed at point E & F in presence of Smt. Nirmala Devi. On the next day, he accompanied Smt. Nirmala CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 53/78 Devi to Sub Registrar office and got the Will registered. Smt. Nirmala Devi signed the Will at point G & H and he signed at point I before the Sub Registrar. Smt. Nirmala also put her thumb impressions below her signatures at point A, B, G & H in his presence. He deposed that Smt. Nirmala was in sound disposing mind and enjoying good health at the time of execution of the Will. He tendered his evidence affidavit Ex.DW3/A. He deposed that he was attesting witness to this Will Ex.DW1/1. Nothing contradictory came out of the cross examination of this witness which might be useful to the case of the plaintiff or to the written statement of defendant no. 5 to 7.
49 Thereafter, Sh. Rajeshwar Nath was examined by way of evidence affidavit. He deposed as follows:-
50 That he was natural father of defendant no.3. Entire examination in chief of this witness is in consonance with written statement filed on behalf of defendant no. 3 & 4. He deposed that according to the Will dated 16.09.1988 Mr. Subhash Chand Gupta bequeathed his entire movable and immovable properties including his 17/40th share in Dariba Kalan property and half share in Geetanjali Enclave property to his adopted daughter Rashi i.e. defendant no.3. He deposed that by virtue of the said Will, a charitable trust was also created out of a small portion of the movable properties. He deposed CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 54/78 that Smt. Prakash the first wife of husband of the plaintiff left behind movable properties detailed in Annexure A to the WS filed on behalf of defendant no.3 and Sh. Subhash Chand also left behind properties mentioned in Annexure-B to the WS filed on behalf of defendant no.3 and himself. By virtue of the Will dated 16.09.1988, he was appointed as testamentary guardian of defendant no.3. He deposed that the entire property left behind by Smt. Prakash and late Subhash Chand the adoptive father of defendant no.3 now belongs to defendant no.3 by virtue of Will dated 16.09.1988 which comes to ½ share in the property at C-7, Geetanjali Enclave, 17/40th share in the Dariba Kalan property and properties detailed in Annexure A, B, C & D. He deposed that document Ex. P-6 is forged and fabricated document and the execution of said document is shrouded with serious suspicious circumstances enumerated in the WS of defendant no. 3 & 4.
51 Cross examination of this witness could not demolish the testimony given in his examination in chief. Although on account of old age, this witness got irritated during his cross examination and also pleaded ignorance to most of the questions put to him. 52 Thereafter defendant no.3 was examined by way of her evidence affidavit in which she iterated the contents of her written statement to be true and denied the claim of plaintiff. Cross CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 55/78 examination of this witness also could not prove the case of the plaintiff and did not put any dent in the case of defendant no.3 who is also a claimant of her share in the suit properties falling to the share of late Sh. Subhash Chand Gupta.
53 Thereafter Sh. Ashok Jain was examined as DW6. He deposed that he was attesting witness to the registered Will of late Sh. Subhash Chand Gupta Ex.PW1/X1. He deposed that the same was executed by late Sh. Subhash Chand Gupta in his presence and he signed as an attesting witness at point C. He deposed that there was another attesting witness Sh. Naresh Gupta who put his signatures at point D. Cross examination of this witness also could not prove the case of the plaintiff or demolish the case of defendant no.3 and LRs of defendant no.1.
54 Thereafter Sh. Naresh Gupta was examined as DW7 who also proved the Will Ex.PW1/X1 and deposed on the same lines as that of DW6. He also duly proved the Will of late Sh. Subhash Chand Gupta Ex.PW1/X1. Even the cross examination of this witness proved the due attestation and execution of Will Ex.PW1/X1.
55 Thereafter Sh. Satish Chand Gupta defendant no.5 was examined by way of evidence affidavit. He deposed on the same lines as that of his written statement. He deposed that late Sh. Pyare Lal and CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 56/78 his son late Sh. Prem Chand formed a joint Hindu family and after the death of late Sh. Pyare Lal, Sh. Prem Chand became karta of joint family. He deposed that property bearing no. 1607-08, Dariba Kalan was inherited by late Sh. Pyare Lal where the joint family resided. He deposed that the ground floor of the premises of Dariba Kalan property was let out by Smt. Nirmala Devi without consent of late Sh. Prem Chand Gupta to a tenant namely M/s Madan Electrical from where she collected Rs.80,000/- from the said tenant. From the said funds and also from the proceeds, movable properties of the family like jewellery was purchased. He deposed that from the said proceeds Sh. Prem Chand raised construction on the plot bearing no. C-7, Geetanjali Colony and the said plot/lease hold rights of the said plot was purchased by Sh. Prem Chand Gupta from joint family funds in 1950-51 in the name of his step mother Smt. Nirmala Devi. It is alleged that each of the defendant no. 5 to 7 is entitled to a share in the properties. Will of late Sh. Prem Chand dated 13.04.1979 is Ex.DW8/2 (original seen and returned). He deposed that he had seen late Sh. Prem Chand put his signatures in the ordinary course of his life and as such he identified the signatures of late Sh. Prem Chand on the Will at point A, B & C. He deposed that late Sh.Prem Chand was in sound disposing mind and the Will is also signed by Sh. K.K Gupta a family friend who was a Deputy CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 57/78 Manager in Oriental Insurance Company. The deponent Sh. Satish Chand Gupta himself was a development officer in Oriental Insurance Company and had worked under Sh. K.K Gupta and had therefore seen Sh. K.K Gupta signing on various occasions and identified his signatures on the said Will at point D. Sh. K.C Bansal the other witness was a family relative working in Indian Tourism Development Corporation and he also identified the signatures of Sh. K.C Bansal on the Will at point E. Both the abovementioned witnesses have expired but their death certificates could not be produced. Therefore, the abovementioned will DW8/2 has not been proved in accordance with the laws of evidence as per the prevailing Indian laws. He deposed that he alleged Will dated 12.12.1973 of late Smt. Nirmala Devi is not a valid Will and Sh. Subhash Chand, Sh. Dinesh Chand and Smt. Saroj Rani have forged and fabricated the alleged Will just to deny defendant no. 5 to 7 their rightful shares. But there's no proof of this alleged forgery whatsoever and this alleged forgery has not been proved by defendants number 5 to 7. It is submitted that late Smt. Nirmala Devi was 67 years of age and was not in sound state of mind to execute the Will dated 12.12.1973. He deposed that Smt. Nirmala Devi did not have any income of her own. He deposed that late Prem Chand expired on 11.12.1983 and before his death, late Sh. CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 58/78 Prem Chand executed his last Will dated 13.04.1979 vide which he bequeathed all his movable and immovable assets in favour of his wife namely Smt. Satyawati and after his death, his wife Smt. Satyawati became sole and absolute owner of movable and immovable properties left by late Sh. Prem Chand in terms of the said Will. It is deposed that property at C-7, Geetanjali is a joint family property and defendant no. 5 to 7 have a share in the same. He further deposed that defendant no.1 and late Sh. Subhash Chand who have sold of the property bearing no. 1/808, Chhota Bazar, Kashmere Gate are liable to render accounts of the sale of the said property and give defendant no.5 to 7 their share from the sale proceeds. The property at Geetanjali was let out to Sh. P.K Aggarwal at the instance of Sh. Dinesh Chand and Sh. Subhash Chand but the said letting was subject to undertaking given by Sh. P.K Aggarwal that he shall vacate the same after expiry of three years.
56 During his cross examination, he deposed that his father had told him that property bearing no. 1/808, Chhota Bazar, Kashmere Gate, Delhi was given to him by way of a deed in writing. He deposed that this fact was told to him by his father Lala Prem Chand when he was 10 to 12 years old. He did not have any documentary evidence of any kind to prove that this fact was told to him by his father when he CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 59/78 was 10 to 12 years old. He deposed that he has not seen any such document which could prove that the property of 1/808, Chhota Bazar was given to his father by way of a deed and he could not recollect what efforts this witness had made in trying to find out where the said document of transfer was lying presently. After going through the entire record, this witness as well as his counsel admitted that document Ex.D-17 which is a English translation of a document which proves that the property at 1/808, Chhota Bazar had devolved upon Smt. Raj Dulari and after her death on her natural born sons Sh. Dinesh Chand and Sh. Subhash Chand was placed on record by defendant no. 5 to 7 themselves. Therefore, their claim that the property no. 1/808, Chhota Bazar was given to their father Sh. Prem Chand by virtue of a deed is entirely false. During his cross examination, this witness deposed that the portion let out to M/s Madan Electrical might have been let out by Smt. Nirmala Devi, Sh. Subhash Chand and Sh. Dinesh Chand. This is in contradiction to his earlier statement given in deposition in his examination in chief whether this witness had deposed that the property was let out by Smt. Nirmala Devi. The remaining cross examination of this witness also does not inspire any confidence in the claim of defendant no.5 to 7 that even the property at C-7, Geetanjali was an ancestral property and belong to the CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 60/78 HUF or joint family. This witness could not prove that the property at Geetanjali was acquired by Sh. Prem Chand directly or was acquired by Smt. Nirmala Devi mother of late Sh. Prem Chand out of the funds of late Sh. Prem Chand or out of joint family funds.
57 Thereafter, Sh. Naveen was examined as DW9. He was Record Keeper for Director of Archives, Government of NCT of Delhi. He had brought the document from his records i.e. Will dated 16.09.1988 Will of Sh. Subhash Chand Gupta. Copy of Will from his original record Ex. DW-9/A was placed on record. This witness was not cross examined.
58 Thereafter, Sh. Giriraj Khanna was examined as DW10. He brought the complete file of property bearing no. C-7, Geetanjali Enclave. Copy of this file is Ex. DW10/A collectively. As per the records of this witness sub lease deed of the property of C-7, Geetanjali was executed not in the presence of Sh. Prem Chand but in the presence of Sh. Subhash Chand. As per the records, Smt. Nirmala Devi is the allottee of C-7, Geetanjali Enclave. As per the records, the receipts of ground rent payment of C-7, Geetanjali issued by Lok Sewa Co- operative House Building Society Ltd. were issued in the name of Smt. Nirmala Devi and are Ex. DW10/A colly. As per the records Sh. Dinesh Chand became member of the society after the death of Smt. Nirmala CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 61/78 Devi and was nominated by Smt. Nirmala Devi. As per records, both Sh. Dinesh Chand and Sh. Subhash Chand were nominated together for the membership of the said society after the death of Smt. Nirmala Devi.
59 Thereafter, one Sh. Inderjeet Shahi was examined as DW11. He deposed by way of evidence affidavit and deposed that he was having a shop number 1946, Shankar Street Building, H.C Sen Road, Fountain Delhi, which was adjacent to the shop of late Sh. Prem Chand at shop number 1946, Shankar Street Building, H.C Sen Road, Fountain Delhi. He deposed that on several occasions, he had seen Sh. Dinesh Chand and Sh. Subhash Chand coming to the said shop and taking money from late Sh. Prem Chand for their financial requirements and day to day needs. During his cross examination, he deposed that his evidence affidavit was typed in the office of advocate Sh. Deepak Aggarwal, advocate for defendant no. 5 to 7 and the same was signed by him in Pataudi house, Darya Ganj where the same was also attested. He deposed that Sh. Deepak Aggarwal advocate for defendant no. 5 to 7 prepared his evidence affidavit in his office. The cross examination of this witness could not throw light on any material aspect of the case but after going through his entire deposition, it appears that this witness has been brought in just to forcefully establish CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 62/78 the point that Sh. Prem Chand used to give money to his sons from first wife i.e. Sh. Dinesh Chand and Sh. Subhash Chand whereas in the entire file and on the entire record there is no proof of the same. 60 All the pleadings and relevant evidence in relation to the issues that were framed have been discussed above. Now I shall proceed to decide the issues.
Issue no.1: Whether Will dated 16.09.1988 was executed by Subhash Chand? OPD-3 61 None of the parties have disputed the validity of this Will. Therefore, this Will stands proved.
Issue no.2: Whether writing dated 05.03.1991 was left behind by deceased Subhash Chand? If so, does it have the effect of revoking the Will dated 16.09.1988? OPP 62 This writing dated 05.03.1991 is the real bone of contention between the parties especially the plaintiff and defendant no.3 whose interests are adversely affected by the said writing. If it is established that the said writing was actually left behind by deceased Subhash Chand and is found to be correct and genuine then the plaintiff shall have a right over half of the properties, both movable and immovable left behind by deceased Subhash Chand. If the plaintiff is unable to CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 63/78 prove that the said writing is genuine and was actually left behind by late Sh. Subhash Chand then the whole of the estate of late Subhash Chand shall devolve upon defendant no.3 Smt. Rashi the adopted daughter of late Sh. Subhash Chand from his earlier wedlock with Smt. Prakash. Now let us examine the circumstances under which writing dated 05.03.1991 was produced and sought to be proved by the plaintiff. When the original plaint was filed, the claim of the plaintiff was that late Sh. Subhash Chand died intestate without leaving behind any Will. When WS was filed by defendant no.3 in which the existence of a Will dated 16.09.1988 was alleged by defendant no.3, existence of this Will was not denied by the plaintiff but in fact she came up with a new story of the said Will having been revoked by the subsequent writing dated 05.03.1991 which bequeaths half of the properties and estate of late Subhash Chand in favour of plaintiff. There is stark distinction between the Will dated 16.09.1988 and the subsequent writing dated 05.03.1991 with respect to both the contents as well as general tenor of both the documents which are alleged to have been executed by the same person late Subhash Chand. In the Will dated 16.09.1988 all the properties of Subhash Chand have been bequeathed to defendant no.3 his adopted daughter and a provision for charity as well as his ceremonial rights after his death has also been made. In the CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 64/78 writing dated 05.03.1991 there is no provision of charity nor any provision for his ceremonial rights. The writing dated 05.03.1991 is shrouded with suspicion. There are many reasons for the same. Now most of these reasons have already been enumerated and elaborated by defendant no.3 in her written statement. There are several unexplained circumstances which surround the execution of writing dated 05.03.1991. Firstly, there is no explanation as to why the plaintiff in her original plaint wrote that late Sh. Subhash Chand died intestate when she admitted that on 05.03.1991 she had knowledge of the existence of Will dated 16.09.1988. Moreover, this alleged writing dated 05.03.1991 was produced after four months of filing of the plaint as well as the written statement of defendant no.3. There is no explanation till date as to why this writing dated 05.03.1991 was not cited and mentioned in the original plaint when plaintiff was aware about the same. Moreover, there is no explanation why late Sh. Subhash Chand would suddenly change his mind and execute the writing dated 05.03.1991 when he had gone for the purpose of attending marriage of brother of the plaintiff. There is also no explanation as to why late Sh. Subhash Chand would execute writing dated 05.03.1991 revoking his earlier Will dated 16.09.1988 in Hindi medium and that too with an unregistered document when the original Will was executed in English language and CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 65/78 on top of that the same was also registered by the executant. Moreover, there are no witnesses who are personally known to the alleged executant late Sh. Subhash Chand from his side of the family who are witnesses to the alleged writing dated 05.03.1991. There is no proof on record that relations between Subhash Chand and his brother Dinesh Chand were not cordial. So, why would late Subhash Chand windup the entire proceedings which culminated in writing dated 05.03.1991 upon arrival of late Sh. Dinesh Chand and his wife to Muzaffar Nagar. All the above mentioned circumstances and the explanation given by defendant no.3 in her written statement regarding the suspicious circumstances surrounding the execution of alleged writing dated 05.03.1991 point to the inescapable conclusion that writing dated 05.03.1991 cannot be relied upon and is not capable of belief and being trustworthy. It does not appear that the said writing dated 05.03.1991 was actually executed by late Sh. Subhash Chand at any point of time or was executed without undue influence, coercion, duress etc. Therefore, in view of the above mentioned discussions and explanations, this court has arrived at the conclusion that writing dated 05.03.1991 was not left behind by late Subhash Chand and therefore does not affect his earlier Will dated 16.09.1988 in any manner. Onus to prove this writing was upon the plaintiff and the plaintiff has failed to CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 66/78 prove the same on the scale of preponderance of probabilities.
Issue no.3: Whether the assets mentioned in Annx. A form part of Smt. Prakash's or Subhash Chand's estate? OPD (The issue in this form would cover whether Benami Transaction (prohibition) Act 1988 is applicable?) 63 It is asserted by defendant no.3 that the assets mentioned in Annex. A form part of the estate of the first wife of Sh. Subhash Chand Gupta namely Smt. Prakash. There is no evidence led or proved to the contrary. All the evidence produced and the pleadings have already been discussed above in detail. I therefore hold that the assets mentioned in Annex. A form part of Smt. Prakash's Estate and would be inherited by defendant no. 3 Ms. Rashi.
64 The properties belong to the family property falling to the share of late Sh Subhash Chand and his first wife late Smt Prakash and thus the provisions of Benami Transaction Prohibition Act 1988 are not applicable.
65 Since the court has already arrived at the conclusion that writing dated 05.03.1991 is not original, genuine and authentic and does not have been effect of altering or modifying the Will dated CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 67/78 16.09.1988, therefore, it does not matter whether the assets mentioned in Annexure A form part of Smt. Prakash's estate or Sh. Subhash Chand estate because the assets detailed in Annexure A devolved upon defendant no.3, the adopted daughter of late Subhash Chand and his first wife Smt. Prakash by virtue of Will dated 16.09.1988.
Issue no.4: Whether the assets detailed in Annx. D do not belong to Rashi and also where these are at the moment? OPD-3 66 No evidence has been led by the plaintiff that the assets detailed in Annex D do not belong to Rashi whereas from the pleadings and the collective evidences brought on record by defendants number 1 to 4, they have been able to establish that the assets detailed in annexure D belong solely to Rashi, the defendant no 3. Annex. D the assets of Rashi have been mentioned as under:-
The counsel for defendant no.3 submitted that the accounts i.e. Bank of India double plus (1990) Scheme and account no. 22240 with Bank of India are still with Bank of India. The reinvestment plan with UTI as above are still with Union Trust of India. The further submission of the defendant no.3 is that the shares of MGF and Telco and the jewellery mentioned therein were in possession of the plaintiff. However, no evidence has been led with regard to the CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 68/78 possession of the shares and jewellery with the plaintiff.
67 The answer regarding ownership of the assets detailed in Annexure D is also the same as that of the assets mentioned in Annexure A. By virtue of Will dated 16.09.1988 defendant no.3 is the owner of all these assets. Where these are at the moment is a matter of inquiry to be conducted by the Local Commissioner after the preliminary decree has been passed.
Issue no.5: If it is held that the entire estate of Subhash Chand Gupta goes to Rashi by virtue of Will dated 16.09.1988, what is the entitlement of Mira towards maintenance? OPP 68 Since the court has already held that by virtue of Will dated 16.09.1988 the entire estate of late Subhash Chand goes to Rashi that the plaintiff is not entitled to any maintenance out of the estate of Late Shri Subhash Chand. Moreover, admittedly she was employed in the bank as officer after the death of her husband late Sh. Subhash Chand as per bank policy which more than covers her right for maintenance and alimony, if she had any, towards her second husband late Sh. Subhash Chand.
Issue no.6: What is the estate left behind by Subhash Chand Gupta? OP Parties CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 69/78 69 The estate left behind by Sh. Subhash Chand Gupta is mentioned in Annexure B. In Annexure B, the property left behind by Sh. Subhash Chand Gupta is mentioned. The other properties mentioned therein are movable assets left behind by him. There is no dispute with regard to the said properties except the objection of defendant no. 5 to 7 who claimed their share.
70 Onus to prove this issue was upon the parties. Now from the pleadings of the evidences brought on record, it is clear that now only two properties remain which are subject matter of partition and dispute. One is the property of Dariba Kalan which is admittedly an ancestral property of late Sh. Subhash Chand and is liable to be divided between all the legal representatives of late Sh. Pyare Lal and Smt. Nirmala Devi, the grandparents of late Sh. Subhash Chand. The other property is C-7, Geetanjali Enclave which was acquired by late Smt. Nirmala Devi and bequeathed to her grandsons late Sh. Subhash Chand and late Sh. Dinesh Chand. From the evidence brought on record, it stands sufficiently proved on the scale of preponderance of probabilities that the property of Geetanjali Enclave was acquired by Smt. Nirmala Devi out of her own funds and resources and therefore she was the absolute owner of the said property and by virtue of a Will dated 12.12.1973, she bequeathed this property in equal portions to her CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 70/78 grandsons late Sh. Subhash Chand and late Sh. Dinesh Chand. Therefore, apart from the movable assets of late Sh. Subhash Chand, Sh. Subhash Chand is also owner of ½ portion of Geetanjali property. Now as regards of Dariba Kalan property, the same being ancestral property it falls in equal shares to Smt. Nirmala Devi wife of Sh. Pyare Lal and mother of Sh. Prem Chand and half share devolved upon Sh. Prem Chand the only surviving heir of late Sh. Pyare Lal. Now by virtue of Will of late Smt. Nirmala Devi, her half share is divided equally between late Sh. Subhash Chand and late Sh. Dinesh Chand and the share of late Sh. Prem Chand is to be equally divided between his remaining survivors and legal heirs i.e. both his wives namely Smt. Raj Dulari Devi and Smt. Satyawati and their five children i.e. late Sh. Subhash Chand, late Sh. Dinesh Chand and defendant no. 5 to 7. Therefore, estate left behind Sh. Subhash Gupta comes to half share in Geetanjali property and 1/3rd share in Dariba Kalan property which again devolves upon Rashi defendant no.3. Same is the status of Sh. Dinesh Chand. He also gets 1/3rd share in Dariba Kalan property and half share in Geetanjali Enclave property and defendant no. 5 to 7 claim 1/9th share each in Dariba Kalan property and no share in Geetanjali property.
CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 71/78 Issue no.7: In the event of Will or revocation of the Will being not established what are the shares of parties? OP Parties 71 Late Shri Pyare lal died on 08/03/1941 leaving behind Nirmala as his wife and one son Prem Chand. One half share of the property devolved on Nirmala as the limited estate owner as per provisions of women's right to property act 1937. The remaining half devolved on Premchand. In the hands of Prem chand it was ancestral property. Any property inherited from father, grandfather or great grandfather prior to Hindu succession act is ancestral property in the hands of the son, Grandson or great grandson as the case maybe. Therefore, his own half of the property in the hands of Premchand is mitakshra coparcenary property. Premchand died on 11/12/83. The ancestral property in the hands of Premchand would devolve as per section 6 of the Hindu succession act 1956. When first of all as per sec 6 there would be a deemed partition between Premchand and his sons. At the time of death Premchand had left five sons namely Dinesh, Subhash from his first wife Smt. Ram Dulari and Satish, Avinash and Kiran from Smt. satyawati his second wife who was alive on 11/12/83. Rules of the partition have not been codified and therefore the rule of partition of Hindu Classical Law will apply. Whenever there is a partition between 2 generations, i.e. father and sons, then each wife of the father is CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 72/78 entitled to a share equal to that of the son. In this case Prem Chand left behind five sons and one wife namely satyawati and on notional partition, share of Premchand comes to ½ Multiplied by 1/7 equal to 1/14th share of the property. Rest 1/14th each of his five sons would also get. Share of prem chand, i.e. 1/14 would devolve by inheritance as he has left a class 1 female heir, namely satyawati his wife, therefore his 1/14th share would devolve equally upon 5 sons and his surviving wife Smt. Satyawati. Therefore, each would get 1/84 th share in addition to their 1/14th share. If we add 1/84th share to 1/14th then, share of each one of them becomes 1/12. Smt. Satyawati died on 4/12/94 leaving behind 3 sons and her share of 1/12 th would devolve as per section 15 and 16 of Hindu Succession Act and therefore each of her son would be entitled to 1/36th share in addition to their own bringing share of each son to 1/9 of the property of Dariba Kalan. Therefore, share of Satish chand, kishan and avinash comes to 1/9th of dariba kalan. Out of the share of Premchand, the share of Dinesh Chand and Subhash Chand was 1/12th each. Nirmala Devi executed a will before her death leaving behind her half share of property of Dariba Kalan equally among Dinesh and Subhash. Therefore, the share of Dinesh and Subhash becomes 1/12th plus ¼th each i.e. 1/3rd each. 1/3rd of property of Dinesh Chand has to be equally divided between his legal Heirs which comes CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 73/78 to 1/9th each as he has 3 Legal heirs. Late Shri Subhash Chand left a will as per which his share devolved on Rashi, she becoming entitled to 1/3rd share of property of dariba kalan. Therefore, out of this ancestral property, share of Sarojrani is 1/9, share of Sonia and Chandni is also 1/9 each being legal heirs of late Dinesh Chand. Share of Rashi is 1/3rd. 72 In the event the deed of revocation not being established, the plaintiff would not inherit any share in the estate left behind by late Sh. Subhash Chand Gupta. Accordingly, Ms. Rashi Gupta (defendant no.3) would get 1/3rd share in 1607-1608, Dariba Kalan, Delhi and ½ share in the property C-7, Geetanjali Enclave, New Delhi. All the movable assets mentioned in Annex. A,B,C and D would also be inherited by Ms. Rashi Gupta (defendant no.3) as the plaintiff has not been able to establish her claim over any of them, either by way of ownership by any means or by claim of succession and survivorship or by any other means. Half share of the property of C-7 geetanjali enclave is also inherited by 3 survivng LRs of late Shri dinesh Chand in share of 1/6th each. With respect to the property of Kashmere Gate none of the parties have been able to prove that is was not belonging jointly to late Dinesh Chand and Subhash Chand, therefore none other is entitled to any share of sale proceeds of the same.
CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 74/78 Issue no.8: Is the plaintiff entitled to a decree for rendition of accounts against defendants 1 and 3? OPP 73 As already established above, plaintiff is not entitled to any share both movable and immovable in the estate of late Sh. Subhash Chand, therefore, she is not entitled to decree of rendition of accounts against defendant no. 1 & 3.
Issue no.9: Is the plaintiff entitled to permanent injunction restraining the defendants from dispossessing her from the portions of the property 1607-8, Dariba Kalan, Delhi in her occupation and from objecting to the visit of near relations of the plaintiff? 74 In view of my decision in issue no.5 that she is not entitled to a residence in her matrimonial household of Dariba Kalan property, she is not entitled to permanent injunction restraining the defendants from dispossessing her from the property at Dariba Kalan which comes under her occupation. So far as objecting to the visits of near relatives of the plaintiff is concerned, this court does not have powers to grant this relief as the court cannot supervise and monitor the visits of near relations of the plaintiff.
Additional Issue that was framed later on by the court: Whether Sh. Subhash Chand and Sh Dinesh Chand were not the only two co- CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 75/78 owners of the suit properties, and that the suit properties belonged to a larger HUF of Sh. Prem Chand, father of Sh. Subhash Chand and Sh. Dinesh Chand? If so, its effect? (OPD 5 to 7) 75 Onus to prove this issue was upon defendant no. 5 to 7 who were subsequently added and impleaded as defendants after many years of institution of the suit. In their written statement, it was alleged by defendant no. 5 to 7 that apart from the property of Dariba Kalan, property of Chhota Bazar, Kashmere Gate that was sold by Sh. Subhash Chand and Sh. Dinesh Chand as well as property of Geetanjali Enclave were both HUF properties of which their father Sh. Prem Chand was karta and therefore, all the properties are liable to be partitioned equally between all the five brothers.
76 Now, it is an admitted fact that property of Dariba Kalan was ancestral property with regard to that there is no dispute. Now, the property of Chhota Bazar, Kashmere Gate was admittedly given to Lala Prem Chand by father of his first wife Smt. Raj Dulari Devi who is natural mother of late Sh. Subhash Chand and Sh. Dinesh Chand. Defendant no. 5 to 7 have failed to prove that both the properties of Chhota Bazar as well as property of Geetanjali enclave were thrown into common hotchpotch of the joint Hindu undivided family either by Sh. Pyare Lal or by Lala Prem Chand. Defendant no. 5 to 7 have also CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 76/78 failed to establish that the property of Geetanjali Enclave was purchased by Lala Prem Chand or by the funds or resources of Lala Prem Chand. Since, they have failed to discharge their burden of onus of proof, it cannot be held that the property of Chhota Bazar or the property of Geetanjali Enclave was joint Hindu undivided property and liable to be partition equally between all the five brothers.
Relief.
In view of my above findings, plaintiff has failed to prove her case. Hence, suit of the plaintiff is hereby dismissed. A preliminary decree is passed in favour of defendants with respect to the suit properties both movable and immovable as detailed above in the findings of all the issues that were framed. Defendant no 3 Rashi is entitled to one half share in the property of C-7, Geetanjali Enclave and 1/3rd share in the property of Dariba Kalan. She is also entitled to all the properties detailed in Annexures A,B,C and D. All the 3 LRs of late Dinesh Chand are entitled to 1/6th share each in the property of C-7, Geetanjali Enclave and 1/9th share each in the property of Dariba Kalan. Defendants number 5 to 7 are entitled to 1/9th share each in the property of Dariba kalan and have no share in any of the other suit properties. Plaintiff is not entitled to any share whatsoever in either CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 77/78 movable or immovable properties which are the subject matter of the suit. Digitally signed by SUNIL SUNIL BENIWAL BENIWAL Date:
2019.09.30 Announced in the open Court on 16:10:34 +0530 30th day of September, 2019 (SUNIL BENIWAL) ADJ-02, Central,THC/Delhi CS No. 618953/16 Meera Gupta vs Dinesh Chand & Ors. 78/78