Delhi District Court
Madhukar Sharma vs Smt Kamlesh Sharma Etc (Sr. Citizen) on 20 November, 2023
IN THE COURT OF SH. VIDYA PRAKASH:
ADDITIONAL DISTRICT JUDGE-09: (CENTRAL):
TIS HAZARI: DELHI.
CNR NO. : DLCT010000021996
CS DJ 609625/16 (Old Suit No.1840/1996)
In the matter of:-
1 Madhukar Sharma (Since Deceased)
Through his LR's:-
1a. Smt. Savita Sharma
(widow of Late Madhukar Sharma)
1b. Sh. Mrinal
(son of Late Madhukar Sharma)
1c. Ms. Poorva
(daughter of Late Madhukar Sharma)
All residents of:
R/o: Type-III/91, North-West
Moti Bagh, New Delhi-110 021
....... PLAINTIFF
VERSUS
1. Smt. Kamlesh Sharma
W/o Late Sh. B. D. Sharma
(Deleted from array of parties
in view of her death)
2. Sh. Sudhakar Sharma
S/o Late Sh. B. D. Sharma
3. Mrs. Madhusri Sultan
D/o Late Sh. B. D. Sharma
4. Mrs. Seema Bijlani
W/o Sh. Ram Bijlani
D/o Later Sh. B. D. Sharma
(Deleted from array of parties in view of her death)
CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 1 / 38
All Residents of:
33-A, Upkar Cooperative Housing Society
Mayur Vihar, Phase-I, Delhi.
5. Mrs. Vidooshi Jagasia
W/o Sh. Hari Jagasia
D/o Late Sh. B. D. Sharma
R/o : 6520, Lee Valley
Drive No. 103, Springfield
Verginia - 22150
U.S.A.
(Suit dismissed vide order dated 26-02-2015)
....... DEFENDANTS
Date of Institution : 05-08-1996
Date of reserving Judgement : 26-10-2023
Date of pronouncement of Judgement : 20-11-2023
JUDGMENT:
1. Vide this judgment,I shall dispose off the present suit for partition and rendition of account filed by plaintiff against the defendants.
FACTS OF THE CASE:
2. Briefly stated facts of the case, as averred in the plaint, are that the plaintiff and the defendants no. 2 to 5 are the legal heirs/children of late Sh. B.D. Sharma, whereas, the defendant no.1 is widow of late Sh. B.D. Sharma. It is stated that Sh. B.D. Sharma had purchased almost all the portions of built up immovable property No.1632, Ward No.XVI, Block-F, Gali No. 32-33, Khasra No. 942, New Nai Wala CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 2 / 38 Street, Karol Bagh, New Delhi (hereinafter called as the suit property), as shown in red color in the site plan filed with the plaint, from Sh. Narinder Anand. The description of the suit property is mentioned in Schedule-I appended with the plaint.
3. It is further the case of the plaintiff that he has been in constructive and legal possession of the suit property and his belongings were also lying therein under lock and key. It is stated that one small room/store falling in the portion of the suit property belonging to his father, was already on rent with Andhra Bank but the tenant Bank was paying rent to previous owner Sh. Narinder Anand. It is further stated that portion on First Floor of the suit property was being occupied by Sh. Mahesh Anand, who is brother of previous owner Sh. Narinder Anand. Sh. B.D. Sharma was also having one Saving Bank Account No.562 with Bank of Baroda, Sadar Bazar Branch, Delhi-110006 and certain money is lying in the said bank account. The entire documents relating to the suit property and bank account of Sh. B.D. Sharma are stated to be in possession of defendant nos.1 and 2. Defendant no. 3 is stated to be deaf and dumb and residing with defendant no.1 (mother).
4. It is further the case of the plaintiff that Sh. B.D. Sharma died intestate on 01.12.1995 leaving behind the parties to the present suit as his legal heirs. The plaintiff acquired knowledge that defendant no.2 is claiming to be having Power of Attorney given to him by Sh. B.D. Sharma for managing all his properties in collusion with Sh. Narinder CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 3 / 38 Anand and said defendant is trying to misappropriate and usurp the share of the plaintiff and of other defendants in the suit property. Not only this, said defendant is also exercising undue influence and pressure upon defendant no.1 and other defendants. It is further stated that the defendants, more particularly defendants no.1 and 2, threatened the plaintiff of being deprived from his share in the suit property and also to dispose of the suit property in connivance with previous owner Sh. Narinder Anand and his brother Sh. Mahesh Anand. The plaintiff made request to the defendants to partition the suit property several times including on 08.06.1996 but to no avail. Hence, the plaintiff filed the present suit seeking decree of partition in respect of the suit property, besides decree of rendition of account in respect of the amount lying in the afore mentioned Saving Bank Account of late Sh. B.D. Sharma.
5. The defendant no.1, in her separate written statement, raised preliminary objections, inter alia, that the plaintiff has no locus standi to seek partition of the suit property as she is the exclusive owner of the suit property on the basis of Will executed by Sh. B.D. Sharma in her favour; the plaintiff being not in possession of the suit property, has not properly valued the suit for the purposes of court fees and jurisdiction; the value of the suit property being Rs.30 lacs and the plaintiff, being out of possession, is under legal obligation to pay the court fees on the said amount and the present suit is liable to be stayed under Section 10 CPC in view of pendency of the suit for injunction filed by Sh. B.D. CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 4 / 38 Sharma during his life time.
6. On merits, the averments made in the plaint have been specifically denied, except to the extent that Sh. B. D. Sharma was owner of the suit property and the plaintiff as well as the defendants are his legal heirs and also that Sh. B.D. Sharma died on 01.12.1995. It is reiterated that Sh. B.D. Sharma had bequeathed the suit property in favour of defendant no.1 by virtue of Will and after his death, she became sole and absolute owner in possession of the suit property. It is denied that the plaintiff has been in constructive or legal possession of any portion of the suit property or that any of his belongings are lying therein under lock and key. It is claimed that there was no bank deposit or FDR or any other deposit in the name of deceased Sh. B.D. Sharma and for this reason, relief for rendition of account is not maintainable under the law. It is denied that the defendant no.2 claimed to be holding any Power of Attorney executed by Sh. B.D. Sharma during his lifetime.
7. The plaintiff filed replication to the written statement of defendant no. 1, wherein, he denied the averments made in the written statement while reiterated those of the plaint.
8. The defendants no.2 to 4 filed their joint written statement, wherein they supported the stand taken by defendant no.1 in her written statement to the effect that after death of Sh. B.D. Sharma, the defendant no. 1 became absolute owner of the suit property on the basis of Will executed in her favour and the plaintiff is neither having any right, title or interest CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 5 / 38 therein nor he is in possession of any portion of the property in question. They also raised an objection that since defendant no. 3 is deaf and dumb, no application was moved for appointment of her guardian ad litem.
9. It may be noted that the defendant no. 5 namely Mrs. Vidooshi Jagasia, was deleted from the array of the defendants, vide order dated 03.08.2000 passed in IA No. 7704/2000, but, the said order dated 03.08.2000 was reviewed, vide order dated 22.05.2002. However, the suit was subsequently dismissed against defendant no.5, vide order dated 26.02.2015. It may be further noted that while taking note of the fact that the defendant no. 3 namely Mrs. Madhusri Sultan, is deaf and dumb, the defendant no.2 namely Sh. Sudhakar Sharma, was appointed as her guardian ad litem in terms of Order 32 Rule 15 CPC, vide order dated 28.08.2017 passed by Ld. Predecessor of the court.
10. It may be further mentioned that the plaintiff died during the pendency of the suit on 22.06.2002 and his legal heirs were brought on record. The defendant no.1 namely Smt. Kamlesh Sharma also died during the pendency of the suit on 08.10.2004 and said defendant was deleted from the array of parties, vide order dated 16.04.2015 and the said fact was duly brought on record (her legal heirs being already on record in the form of plaintiff and defendants no. 2 to 4).
CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 6 / 38
11. It may be further noted that during the pendency of the suit, the defendant no.4 namely Ms. Seema Bijlani, also died issue less, as reflected in the proceedings dated 06-8-2016 and therefore, she was deleted from the array of parties, in view of statement of Ms. Savita Sharma i.e. LR of deceased plaintiff recorded on 05-9-2016.
12. It may be further mentioned that the present suit was dismissed in default on 08.12.2003 when the matter was pending trial before Hon'ble High Court of Delhi and same was restored to its original number, vide order dated 16.04.2015 passed by Hon'ble Delhi High Court. Thereafter, the suit was transferred to District Courts vide order dated 25.01.2016 in view of Notification No. 27187/DHC/ Orgl. dated 24.11.2015.
13. It may be further noted that the defendants were proceeded against exparte on 03.10.2016 and said ex-parte order was set aside on 18.10.2016 on an application under Order 9 Rule 7 CPC been moved on their behalf.
14. It may be further mentioned that the defendant nos. 2 and 3 moved an amendment application under Order VI Rule 17 CPC on 22.11.2017 and same was allowed on 02.01.2018.
15. In their joint amended written statement filed by defendant nos. 2 and 3, apart from the stand taken by them in their initial written statement, they have raised further plea that the defendant no. 1 Smt. Kamlesh Sharma (since deceased) further bequeathed the suit property in favour of defendants no.2 and 3 in equal shares, by virtue of Will dated CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 7 / 38 01.10.2004 and on the basis thereof, both the said defendants have become absolute owner of the suit property.
16. The legal heirs of plaintiff filed replication to the amended written statement of defendant nos. 2 and 3, wherein they denied the averments made in the written statement, while reiterated those made in the plaint.
ISSUES:
17. From pleadings of the parties, the following issues were framed on 05.09.2016:-
(i.) Whether property bearing no. 1632, Ward No. XVI, Block F, Gali No. 32-33, Khasra No. 942, New Nai Wala Street, Karol Bagh, Delhi is owned by late Sh. B.D. Sharma? OPP (ii.) Whether plaintiff is entitled to partition of decree claimed? OPP (iii.) Whether plaintiff is entitled to rendition of account as prayed? OPP (iv.) Whether plaintiff has got no locus standi to file the present suit? OPD (v.) Whether suit has not been valued properly for the purposes of court fees and jurisdiction? OPD (vi.) Whether plaintiff has sought no cause of action for filing the present suit? OPD (vii.) Relief.
CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 8 / 38
18. It may be further noted that in view of the amendment made in the joint written statement filed by defendant nos. 2 and 3, the following additional issue was framed on 17.02.2018:-
(i.) Whether the Will dated 01.10.2004 was duly executed by Smt. Kamlesh Sharma in favour of the defendant no. 2 and 3 in respect of suit property? If so what is its effect? OPD-2 and 3.
19. In order to prove their case, the legal heirs of the deceased plaintiff have examined PW-1 Smt. Savita Sharma (widow of deceased plaintiff), PW-2 namely Sh. Naveen, Record Keeper, Department of Delhi Archives and PW-2 (wrongly mentioned as PW2 instead of PW3) namely Sh. Sevajit, Record Attendant.
20. PW1 entered into witness box and deposed in her evidence by way of affidavit dated 03.10.2016 (Ex. PW1/A) on the lines of the averments made in the plaint. PW-1 has relied upon the following documents:
S.No. Details of documents Exhibit
1. Certified copy of sale deed obtained Ex.PW1/1 from Sub-Registrar III dated 13.09.1985 2. Site Plan Ex.PW1/2
21. On statement of counsel for LRs of deceased plaintiff, PE was closed on 09-01-2019.
22. On the other hand, in order to prove their case, the defendant nos.2 and 3 have examined DW-1 Ms. Mohini, CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 9 / 38 JJA, Record Room, Civil, Tis Hazari Courts, Delhi, DW2 Sh. Surjan Singh, Office Assistant from the office of Sub Registrar-III, Delhi, DW3 Sh. Naveen Gandas, Record Keeper from Department of Delhi Archives, DW4 Sh.
Ashutosh Bhattacharjee and DW5 Sh. Jitender Sharma.
23. The above mentioned witnesses of the defendant nos. 2 and 3 have relied upon the following documents:
S. Details of documents Exhibit
No.
1. Amended memo of parties of Ex. DW1/1
case titled as Madhukar
Sharma Vs. Narender Anand
2. Certified copy of the order Ex. DW1/2
dated 18.03.2008 passed by
Sh. Sumit Dass, the then Civil
Judge, Delhi
3. Certified copy of statement of Ex. DW1/3
Sh. A.P. Aggarwal, Advocate
4. Certified copy of the Ex. DW1/4
statement of Sh. S.S. Tomar,
Advocate of Sh. Madhukar
Sharma
5. Certified copy of the letter Ex. DW1/5
dated 17.03.2008 issued by
Andhara Bank addressed to
Sh. Sumit Dass, the then Civil
Judge, Delhi
6. Letter regarding transfer of Ex. DW2/1
the record of sale deed
executed by Sh. Narender
Anand in favour of Sh. B.D.
Sharma to Delhi Archives
Govt. of NCT.
7. Copy of Will dated Ex. DW4/1 (OSR
26.11.1995 executed by from CS No.
Brahm Dev Sharma 12493/16)
CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 10 / 38 S. Details of documents Exhibit No.
8. Certified copy of Will dated Ex. DW5/1 (OSR 01.10.2004 executed by Smt. which is lying in CS Kamlesh Sharma w/o Sh. No. 12493/16) B.D. Sharma
24. Thereafter, DE on their behalf was closed on 03-10-2023.
25. I have already heard Ms. Anju Jain Advocate for L.R.'s of deceased plaintiff, Sh Rohit Valecha Advocate for Defendant no.2 and Legal Aid Counsel namely Sh. Rajender Prasad Tripathi, Advocate for defendant no.3. I have also gone through the material available on record. I have also considered the written submissions filed by the legal heirs of deceased plaintiff, as also on behalf of defendant nos. 2 and 3, as well as the judicial precedents relied on their behalf.
26. My issue-wise findings are as under:
Additional issue no.1 Additional Issue No.1 - Whether the Will dated 01.10.2004 was duly executed by Smt. Kamlesh Sharma in favour of the defendant no. 2 and 3 in respect of suit property? If so, what is its effect?
OPD-2 and 3.
27. The burden to prove above said additional issue no.1 was placed on defendant nos. 2 and 3.
28. As already noted above, the plaintiff has set up his case to the effect that the suit property was owned by Sh. B. CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 11 / 38 D. Sharma, who died intestate, thereby leaving behind him and defendants as his legal heirs. It is also the case of legal heirs of deceased plaintiff that the defendant no.1 namely Smt. Kamlesh Sharma also died intestate.
29. On the other hand, defendant no.1 namely Smt. Kamlesh Sharma, during her lifetime, took stand in her written statement that Sh. B. D. Sharma had bequeathed the suit property to her, by virtue of Will dated 26-11-1995. It is also the case of defendant nos.2 and 3, as mentioned in their amended written statement, that defendant no.1 namely Smt. Kamlesh Sharma had further bequeathed the suit property to them, by virtue of Will dated 01-10-2004. That being so, it has to be seen as to whether or not the suit property was actually bequeathed by Late Sh. B. D. Sharma in favour of his wife i.e. defendant no.1 namely Smt. Kamlesh Sharma, during his lifetime, and further, as to whether or not defendant no.1 namely Smt. Kamlesh Sharma had bequeathed the suit property in favour of defendant nos. 2 and 3. In case, it is found by the Court that the suit property has devolved upon the defendant nos. 2 and 3 on the basis of the aforesaid Will, then the plaintiff and his legal heirs would not be entitled to decree of partition as claimed/prayed in the suit.
30. LR of deceased plaintiff namely Smt. Savita Sharma was examined as PW-1, who deposed on the line of averments made in plaint. She proved certified copy of sale deed dated 13-9-1985 and site plan of the suit property as Ex.PW-1/1 and Ex.PW-1/2 respectively. She was cross-examined at length.
CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 12 / 38
31. In her cross-examination conducted on 14-11-2018, PW-1 Smt. Savita Sharma stated that her husband was employed in Doordarshan and was living in the accommodation provided by the employer since 1982. She stated that her husband left for his heavenly above in the year 2002. She was confronted with site plan Ex.PW-1/2, however, she could not tell that Sh. B. D. Sharma was in possession of which room/store. She further could not tell from the site plan that Andhara Bank was in possession of which room as a tenant. She also could not tell as to who had prepared the site plan and under whose instruction, the site plan was prepared. She admitted that Andhra Bank was a tenant under Narinder Anand and that he had never given possession of his portion to Sh. B. D. Sharma. She stated that her husband had filed a civil suit bearing No. 141/1996 against Narender Anand, Andhara Bank and Mahesh Anand. She was shown the certified copy of the suit bearing no. 141/98/96 filed by Sh. Madhukar Sharma in the court of Sr. Civil Judge, Delhi and stated that same is signed and instituted at point 'A' by Sh. Madhukar Sharma, which was exhibited as ExPW-1/D1 (Colly.) However, she could not tell the fate of that suit. She admitted that Sh. B. D. Sharma had also filed a suit for injunction bearing No. 142/95 in the court of Sr. Civil Judge, Delhi against Narender Anand and Andhara Bank, for restraining Narender Anand from realizing the rent from Andhara Bank. She admitted that the suit filed by Sh. B. D. Sharma had been withdrawn on 18-3-2008 as Andhara Bank had handed over the possession of the portion of the property no. XVI/1632, Naiwala, CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 13 / 38 Karol Bagh, New Delhi to Sh. Narender Anand. She stated that in the suit no. 142/95, her husband Madhukar Sharma was impleaded after the death of Sh. B. D. Sharma, however, she did not have any knowledge of the fate of suit No.142/95. She admitted that Sh. Narender Anand and the legal heirs of Sh. Mahesh Anand are in possession of suit property. She stated that Sh. B. D. Sharma as well as her husband had given notices to Andhara Bank not to give rent of the premises to Sh. Narender Anand. She stated that she had not filed any such notices in this suit. She could not tell from the site plan Ex.PW-1/2 that Mahesh Anand was in possession of which portion of the first floor of the said property. She admitted that Mahesh Anand did not allow Sh. B. D. Sharma and after his death, his legal heirs to enter into the suit property.
32. In her further cross-examination, PW-1 stated that Sh. B. D. Sharma died in the year 1995 and the present suit had been filed in 1996 and after the demise of Sh. B. D. Sharma, his legal heir namely Sh. Sudhakar Sharma had taken a legal recourse against Sh. Mahesh Anand. She stated that she does not know if her husband had instituted any legal action against Sh. Mahesh Anand. She stated that neither Sh. B. D. Sharma was in possession of the suit property nor any of the legal heirs of late Sh. B. D. Sharma is in possession of the suit property. She stated that she cannot tell from the site plan that her husband Madhukar Sharma was in possession of which room/ store, however, she voluntarily stated that CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 14 / 38 Sh. Madhukar Sharma used to tell her that he was in possession of one room and store. She stated that Sh. B. D. Sharma was in possession of the sale deed dated 13-09-1985 executed by Sh. Narender Anand. She stated that she had never seen the original of the sale deed dated 13-9-1985. She stated that she did not know if the Sub-Registrar had impounded the original sale deed executed by Sh. Narender Anand for want of income tax clearance certificate.
33. In her further cross-examination conducted on 04-12-2018, PW-1 Smt. Savita Sharma, LR of deceased plaintiff, admitted that she was impleaded as legal heir of her late husband who had instituted a suit for injunction being CS No.141/2008 in the Court of Sh. Sumit Das, the then Civil Judge, THC, Delhi, however, she could not tell as to what is fate of that suit. She stated that Sh. S. S. Tomar was the counsel in the said suit. She could not tell as to from whom and what portion in the site plan Ex.PW-1/2 was purchased by Sh. B. D. Sharma except that Sh. B. D. Sharma had purchased portion of the property from Sh. Narender Anand. She also could not tell as to who is in possession of the original of Ex.PW-1/1 (sale deed dated 13-9-1985) and she could not identify the signature of Smt. Agyawanti in Ex.PW-1/1. She also could not tell the portion in the site plan Ex.PW-1/2 in occupation whereof Smt. Agyawanti was. She stated that she had no document to show that Sh. B. D. Sharma was in possession of which portion of the property.
CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 15 / 38
34. The witness was shown certified copy of proceedings in Suit No.142/1995 titled as Madhukar Sharma v. Narender Anand (Mark X) before the Court of Sh. Sumit Das, the then Civil Judge, THC,Delhi and thereafter, she stated that she was not aware of the proceedings in the said suit. She admitted that suit property was self acquired property of Sh. B. D. Sharma. She denied the suggestion that Sh. B. D. Sharma had executed any Will dated 26-11-1995. She stated that she cannot tell from the site plan Ex.PW-1/2 that Sh. Narender Anand and Sh. Mahesh Anand were in possession of which portion of the first floor of the suit property. She denied the suggestion that defendant no.2 was not in possession of any original document. She stated that she might be having signatures of Sh. B. D. Sharma. She stated that Sh. B. D. Sharma never signed in her presence and none of the legal heirs of Sh. B. D. Sharma is in possession of the suit property.
35. It is needless to mention here that no evidence whatsoever has been led on behalf of defendant nos.1 and 4 as both of them died before the stage of leading their evidence came.
36. The defendant nos. 2 and 3, however, have examined 5 witnesses as already noted above. DW-1 is official from Record Room Civil, Tis Hazari Courts and produced judicial file of suit bearing No.142/98/95 titled as "Madhukar Sharma v. Narender Anand & Anr" which was disposed of by the Court of the then Ld. Civil Judge, Delhi. The said witness has exhibited certified copy of Amended Memo of Parties in the said suit as Ex.DW1/1, CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 16 / 38 certified copy of order dated 18-3-2008, statement of Sh. A. P. Aggarwal, Advocate appearing on behalf of plaintiffs except LRs of deceased plaintiff namely Sh. Madhukar Sharma, statement of Sh. S. S. Tomer, Advocate appearing on behalf of LRs of deceased plaintiff namely Sh. Madhukar Sharma and letter dated 17-3-2018 issued by Andhara Bank as Ex.DW1/2 to Ex.DW1/5 respectively. The said witness has not been cross-examined on behalf of plaintiff.
37. DW2 is official from the office of Sub-Registrar-III, Delhi, who produced one letter dated 23-1-2019 under the signature of Sub-Registrar III, Asaf Ali Road to the effect that relevant record in respect of Sale Deed executed by Sh. Narender Anand in favour of Sh. B. D. Sharma concerning suit property, was not available in their office. The said letter was exhibited as Ex.DW2/1. The plaintiff chose not to cross-examine the witness.
38. DW3 is official from the office of Department of Delhi Archives, Govt. of NCT of Delhi. He deposed that since no details concerning Sale Deed of the suit property were furnished, he did not produce the relevant record. He has also not been cross-examined by the plaintiff.
39. DW-4 Sh. Ashutosh Bhattacharjee deposed in his evidence by way of affidavit dated 30-3-2022 (Ex.DW4/A) that he had started working under Sh. R. D. Upadhayay (since deceased) during his initial days of practice as an Advocate. Further, that on 26-11-1995, few persons CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 17 / 38 alongside Sh. B. D. Sharma were sitting with Sh. R. D. Upadhayay, Advocate, where Sh. Brahm Dev Sharma put his signature on a typed Will and Sh. R. D. Upadhayay signed there as a witness. He also deposed that on instructions of Sh. R. D. Upadhayay, he also put his signature as second witness. He further deposed that since matter was very old, he did not remember either testator namely Sh. B. D. Sharma or any other person present over there on 26-11-1995, except Sh. R. D. Upadhayay. He proved Will dated 26-11-1995 executed by Sh. B. D. Sharma in favour of his wife Smt. Kamlesh Sharma (defendant no.1) as Ex.DW4/1. He further testified that said Will bears signature of Sh. B. D. Sharma, who had signed the same in his presence as well as in the presence of Sh. R. D. Upadhayay (since deceased). He and Sh. R. D. Upadhayay had signed as attesting witnesses in the presence of each other and also that Sh. B. D. Sharma was in sound health, senses and of disposing mind. He also identified the signature of Sh. B. D. Sharma and Sh. R. D. Upadhayay at points 'A' and 'B' respectively and also his own signature at point 'C' on the said Will.
40. During his cross-examination, DW4 deposed that the Will was executed in Supreme Court Bar Lounge where his senior Sh. R. D. Upadhayay, Advocate used to sit. However, he did not remember the date or month, when the said Will was signed by the Executor. He stated that Sh. B. D. Sharma had come to meet his senior on 26-11-1995 and voluntarily CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 18 / 38 stated that he had signed the Will on the asking of his senior. He further stated that the said Will was signed by the testator as well as both the attesting witnesses together but he did not remember the time when it was signed on that day. He did not know the contents of the said Will but he recollected to the extent that it was about distribution of immovable property of the Testator to his children. He expressed ignorance as to whether or not, the said Will was got registered.
41. DW5 Sh. Jitender Sharma is one of the attesting witnesses to the subsequent Will dated 01-10-2004 purportedly executed by defendant no.1 namely Smt. Kamlesh Sharma in favour of defendant nos. 2 and 3. He testified that the Will dated 01-10-2004 (Ex.DW5/1) bears thumb impression of Smt. Kamlesh Sharma at point 'A'. He stated that she had put her thumb impression in his presence as well as in presence of Smt. Seema Bijlani (defendant no.4/since deceased). He also identified the signature of Smt. Seema Bijlani appearing at point 'C' and his own signature appearing at point 'B' on the said Will.
42. During his cross-examination, DW5 testified that he alongwith Smt. Seema Bijlani were present at the time of putting thumb impression by Smt. Kamlesh Sharma on the said Will. It was around after noon on 01-10-2004 when the said Will was signed. Smt. Kamlesh Sharma was hale and hearty and she used to manage everything on her own. Besides testator and two attesting witnesses, no other person was present at the time of putting thumb impression by CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 19 / 38 Testator in the said Will. He did not remember the contents of the said Will. However, he was family friend of Testator namely Smt. Kamlesh Sharma and used to visit at least 2-4 times a week to her place. He stated that elder son of the Testator used to stay at Moti Bagh as he had started living separately after his marriage with Smt. Savita Sharma, he being in government job. He denied that the said Will was false and fabricated. He did not know as to whether the said Will was got registered or not but he never visited the concerned Registrar for the purpose of registration of the said Will.
43. While questioning the validity of both the Wills dated 26-11-1995 (Ex.DW4/1) and 01-10-2004 (DW5/1), Ld. Counsel of plaintiff made the following submissions:-
(i.) The fact that defendant no. 1 did not produce Will dated 26-11-1995 alognwith written statement filed on 27-4-1998, coupled with the fact that said Will is unregistered, it should be looked upon with great suspicion and circumspection, in view of application of the maxim "Omnia praesumuntur contra spoliatorem" that states "If a man by his tortious act, withholds the evidence by which the truth of his case would be manifested, every presumption to him disadvantage will be adopted";
(ii.) The defendants had deliberately withheld the Will dated 26-11-1995 and subsequently another Will dated 01-10-2004, which were preferred to be filed CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 20 / 38 at a belated stage;
(iii.) The testimony of DW4 Sh. Ashutosh Bhatacharjee needs to be considered with great level of scrutiny. For the said purpose, it is argued that DW4 was unable to provide information about the individuals who were present alongside Sh. B. D. Sharma at the time of execution of the Will dated 26-11-1995; the time of execution thereof and was also unable to positively identify the signature of late Sh. B. D. Sharma on the purported Will dated 26-11-1995;
(iv.) Reliance in this regard has also been placed on the judgments viz. (a) "Md. Ihtisham Ali v. Jamna Prasad", reported as AIR 1922 PC 56;
(b) "Raj Kumari & Ors v. Surinder Pal Sharma", Civil Appeal No.9683 of 2019 [arising out of Special Leave Petition (Civil) No. 26957 of 2018];
(c) "Dharam Singh v. Aso & Anr." Reported as 1990 Suppl SCC 684; and (d) "Jagdish Chand Sharma v.
Narain Singh Saini (Dead) Through LRs & Ors"
reported as (2015) 8 SCC 615;
(v.) Since the Will is unregistered one, the general
presumption provided in Section 60 of
Indian Registration Act will not come into
operation and therefore, the defendant nos. 2 and 3 have failed to prove both the Wills dated 26-11-1995 and 01-10-2004 in accordance with law;
CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 21 / 38 (vi.) As regards the Will dated 01-10-2004 (Ex.DW5/1), it is argued that copy of said Will was produced before the Court for the first time on 05-11-2016, which creates serious doubt about its authenticity;
(vii.) There is deliberate suppression of crucial evidence and since defendant nos. 2 and 3, despite claiming to be in possession of said Will, produced it at a highly belated stage, same invites skepticism and raises the presumption against the party so producing such document at such a highly belated stage.
44. On the other hand, counsel appearing on behalf of defendant nos.2 and 3 vehemently argued that they have been able to prove both the referred Wills within the realm of S. 68 of Indian Evidence Act, as one attesting witness each of both the said Wills, have been duly examined as DW4 and DW5 respectively during the course of trial. Hence, both the said Wills should be taken to have been duly proved in accordance with law. Further, since both the said Wills would clearly establish that suit property was initially bequeathed by Sh. B. D. Sharma in favour of his wife i.e. defendant no.1 namely Smt. Kamlesh Sharma, who in turn, further bequeathed the same in favour of defendant nos.2 and 3, the present suit is liable to be dismissed as LRs of deceased plaintiff are not entitled to decree of partition having no right, title or interest whatsoever therein.
45. Before dealing with the rival submissions made on behalf of both sides, it would be relevant to refer to the relevant CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 22 / 38 provisions concerning execution of Will and proof thereof, as provided under the law.
46. Clause (c) of Section 63 of the Indian Succession Act is relevant for the purpose of deciding the issues in hand. Same reads as follows:-
"63. Execution of unprivileged wills. - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules -
(a) - (b) * * *
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
47. While dealing with the true scope and purport of Section 63 of the Succession Act, Hon'ble Supreme Court in the case titled as 'Raj Kumari And Others v. Surinder Pal Sharma' in Civil Appeal No. 9683 of 2019 decided on 17-12-2019, (which is also relied by legal heirs of the plaintiff), has held as under:-
"As per the mandate of clause (c), a Will is required to be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will or should have seen some other person sign the Will in his presence and by the direction of the testator or should have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person. The Will must be signed by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary. Thus, there is no prescription in the statute that the testator must necessarily sign the Will in the presence of the attesting witnesses only or that the attesting witnesses must put their CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 23 / 38 signatures on the Will simultaneously, that is, at the same time, in the presence of each other and the testator.
13. The need and necessity for stringent requirements of clause (c) to Section 63 of the Indian Succession Act has been elucidated and explained in several decisions. In H. Venkatachala Iyengar v. B. N. Thimmajamma and Others, (AIR 1959 SC 443) dilating on the statutory and mandatory requisites for validating the execution of the Will, this court had highlighted the dissimilarities between the Will which is a testamentary instrument vis-a- vis other documents of conveyancing, by emphasizing that the Will is produced before the court after the testator who has departed from the world, cannot say that the Will is his own or it is not the same. This factum introduces an element of solemnity to the decision on the question where the Will propounded is proved as the last Will or testament of the departed testator. Therefore, the propounder to succeed and prove the Will is required to prove by satisfactory evidence that (i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind;
(iii) the testator understood the nature and effect of the dispositions; and (iv) that the testator had put his signature on the document of his own free will. Ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signature as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. At the same time, this court observed that it is necessary to remove suspicious circumstances surrounding the execution of the Will and therefore no hard and fast or inflexible rules can be laid down for the appreciation of the evidence to this effect."
48. In Jagdish Chand Sharma v. Narain Singh Saini (Dead) Through LRs and Others [(2015) 8 SCC 615], Hon'ble Apex Court, after referring to S. 63 of the Indian Succession Act, has held as under:-
"xxxxx Section 63 mandates that the Will should be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to it or has seen some other person sign it in the presence and on the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person and each of the witnesses has signed the Will in the presence of the testator, though it is not necessary that more than one witness be CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 24 / 38 present at the same time and that no particular form of attestation is necessary. The execution and attestation of the Will are mandatory in nature and any failure and deficiency in adhering to the essential requirements would result in invalidation of the instrument of disposition of the property."
49. Further, Sections 68 and 71 of the Evidence Act, which relate to proof of documents required by law to be attested, read as under:-
"68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
***
71. Proof when attesting witness denies the execution.--If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."
50. In Jagdish Chand Sharma (supra), after referring to Sections 68 and 71 of the Evidence Act, Hon'ble Apex Court observed as under:
"22.2. These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a will. The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 25 / 38 its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence.
22.3. Section 71 provides, however, that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by the other evidence. The interplay of the above statutory provisions and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording the penultimate conclusions. With this backdrop, expedient it would be, to scrutinise the evidence adduced by the parties. xxx xxx xxx 57.1. Viewed in premise, Section 71 of the 1872 Act has to be necessarily accorded a strict interpretation. The two contingencies permitting the play of this provision, namely, denial or failure to recollect the execution by the attesting witness produced, thus a fortiori has to be extended a meaning to ensure that the limited liberty granted by Section 71 of the 1872 Act does not in any manner efface or emasculate the essence and efficacy of Section 63 of the Act and Section 68 of the 1872 Act. The distinction between failure on the part of an attesting witness to prove the execution and attestation of a will and his or her denial of the said event or failure to recollect the same, has to be essentially maintained. Any unwarranted indulgence, permitting extra liberal flexibility to these two stipulations, would render the predication of Section 63 of the Act and Section 68 of the 1872 Act, otiose. The propounder can be initiated to the benefit of Section 71 of the 1872 Act only if the attesting witness/witnesses, who is/are alive and is/are produced and in clear terms either denies/deny the execution of the document or cannot recollect the said incident. Not only, this witness/witnesses has/have to be credible and impartial, the evidence adduced ought to demonstrate unhesitant denial of the execution of the document or authenticate real forgetfulness of such fact. If the testimony evinces a casual account of the execution and attestation of the document disregardful of truth, and thereby fails to prove these two essentials as per law, the propounder cannot be permitted to adduce other evidence under cover of Section 71 of the 1872 Act. Such a sanction would not only be incompatible with the scheme of Section 63 of the Act read with Section 68 of the 1872 Act but also would be extinctive of the paramountcy and sacrosanctity thereof, a consequence, not legislatively intended. If the evidence of the witnesses produced by the propounder is inherently worthless and lacking in credibility, Section 71 of the 1872 Act cannot be invoked to bail him (the propounder) out of the situation to facilitate a roving pursuit. In absence of any touch of truthfulness and genuineness in the overall approach, this CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 26 / 38 provision, which is not a substitute of Section 63(c) of the Act and Section 68 of the 1872 Act, cannot be invoked to supplement such failed speculative endeavour. 57.2. Section 71 of the 1872 Act, even if assumed to be akin to a proviso to the mandate contained in Section 63 of the Act and Section 68 of the 1872 Act, it has to be assuredly construed harmoniously therewith and not divorced therefrom with a mutilative bearing. This underlying principle is inter alia embedded in the decision of this Court in CIT v. Ajax Products Ltd."
51. At this juncture, it may be noted that the plaintiff has filed the present suit seeking decree of partition and rendition of accounts. Thus, Court is required to decide validity of both the Wills in question in order to adjudicate the issue of the entitlement, if any, of the plaintiff to any share in the suit property. In such a situation, the question which arises for consideration is as to what is the degree of proof required qua these two Wills. This question has been dealt with by our own Hon'ble High Court in the case titled as "Geeta Tandon v. Dr. Sunil Gomber & Anr" reported as 299 (2023) Delhi Law Times 171. The relevant portion of the said judgement reads as under:-
"xxxxxxxxxxxxx
79. This being a Civil suit for partition, stringent requirements of Clause (c) to Section 63 of the Indian Succession Act, 1925 may not be applicable in same rigor, yet in order to appreciate the claims of the defendants based on the Will, two aspects need consideration to determine the proof and validity of a Will, namely the mode of execution of Wills and the manner of proof of Wills as provided under Sections 68 and 71 of the Indian Evidence Act, 1963. For this, the following facts are required to be proved by satisfactory evidence:
i. The Will was signed by the testator;
ii. The testator at the time was in a sound and disposing state of mind;
iii. The testator understood the nature and effect of the dispositions; and CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 27 / 38 iv. That the testator had put his signature on the document of his own free will.
xxxxxxxxxxxxx
97. The interplay of S.63 Indian Succession Act and Section 68 of the Evidence Act was resolved beyond controversy in Janki Narayan Bhoir v. Narayan Namdeo Kadam, VII (2002) SLT 361=I(2003)CLT21(SC) = (2003) 2 SCC 91 wherein it has been held that Clause (c) of Section 63 of the Indian Succession Act requires and mandates attestation of a Will by two or more persons as witnesses, albeit Section 68 of the Evidence Act gives concession to those who want to prove and establish a Will in the Court of law by examining at least one attesting witness who could prove the execution of the Will.
However, where one attesting witness examined fails to prove due execution of the Will, then the other available attesting witness must be called to supplement his evidence to make it complete in all respects to comply with the requirement of proof as mandated by Section 68 of the Indian Evidence Act, 1872.
Xxxxxxxxxxx"
52. After referring to H. Venkatachala Iyengar (supra), Hon'ble Supreme Court of India in the case of "Jaswant Kaur v. Amit Kaur and Others" reported as (1977) 1 SCC 369, had laid down the following propositions of law:
"(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. (2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
(3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 28 / 38 (4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. (5) It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
(6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
18.xxx
19. In Jagdish Chand Sharma (supra) reference was made to the facts of the case in M. B. Ramesh (supra) to observe that on consideration of the totality of circumstances emerging from the narration given by the attesting witness, the omission on the part of this witness to specifically state about the signature by the other attesting witness on the Will in the presence of the testatrix would amount to failure to recollect the fact which deficiency could be replenished with the aid of Section 71 of the Evidence Act. It was observed that the validity of the Will in M. B. Ramesh (supra) was upheld in the context of the attendant singular facts.
CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 29 / 38
53. Having considered the facts of the present case, more particularly, the testimonies of DW4 and DW5, on the anvil of the principles laid down in the case of Geeta Tandon (supra), this Court finds that defendant nos. 2 and 3 have been sufficiently able to prove both the Wills dated 26-11-1995 and 01-10-2004 concerning the suit property, in terms of Section 68 of Indian Evidence Act.
54. At the cost of repetition, it may be noted that DW4, who is one of the attesting witnesses of the Will dated 26-11-1995 of deceased Sh. B. D. Sharma executed in favour of his wife namely Smt. Kamlesh Sharma (defendant no.1), has specifically testified during his examination-in-chief that said Will was signed by the testator Sh. B. D. Sharma (now deceased) in his presence as well as in the presence of other attesting witness namely Sh. R. D. Upadhayay, Advocate (since deceased). Not only this, he also testified that Sh. B. D. Sharma was in sound health and in disposing state of mind at the time of execution of the said Will.
55. There is no force in the arguments raised on behalf of LRs of deceased plaintiff to disbelieve DW4 or to view the Will dated 26-11-1995 with suspicion merely because the said Will is unregistered one. It is well settled law that registration of the Will is not mandatory at all. For the similar reason, reliance placed by them upon S. 60 of Indian Registration Act, is misconceived in asmuch as, registration of the document under said Act, would merely corroborate the case of the propounder of such document by the Executant and nothing beyond that. No doubt, DW4 could CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 30 / 38 not disclose details of persons who were present alongside Sh. B. D. Sharma at the time of execution of the said Will, as also about the time when it was so executed, but same would not, in any manner, create any doubt on the authenticity or genuineness of the said Will. Such details are miniscule, but, certainly not fatal so far as the proof of said Will is concerned. It will not be out of place to mention here that DW4 is not an illiterate person. Rather, he is Advocate by profession and he was one of the associates in the office of Sh. R. D. Upadhayay, Advocate (the other attesting witness to the said Will) during the relevant period. For the similar reasons, the Court cannot be called upon to look upon the said Will with any sort of doubt or suspicion merely because DW4 deposed that he had signed the said Will as attesting witness on the instruction of his senior colleague namely Sh. R. D. Upadhayay, Advocate, as is being argued on behalf of LRs of deceased plaintiff.
56. As per the settled legal position, in case the plaintiff alleges fraud, undue influence, coercion, etc. in regard to the execution of the Will, such pleas have to be proved by him. No doubt, even in the absence of such pleas, the very circumstances surrounding the execution of the Will may raise a doubt as to whether or not the Testator was acting of his own free will. However, there is nothing on record to show that Sh. B. D. Sharma did not carry requisite intention to execute the said Will or that he was not in sound disposing state of mind. Likewise, there is nothing on record to show that DW4 was asked to sign the Will as an attesting CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 31 / 38 witness under some sort of duress, coercion and undue pressure. It is also relevant to note that said Will is executed by late Sh. B. D. Sharma during his lifetime in favour of none other than his wife namely Smt. Kamlesh Sharma (defendant no.1), which is quite natural in the Indian society.
57. Hence, Court is of the considered opinion that the Will dated 26-11-1995 was last and final Will executed by Sh. B. D. Sharma during his lifetime in favour of his wife namely Smt. Kamlesh Sharma, whereby he bequeathed the suit property in her favour. By virtue of the said Will, defendant no.1 namely Smt. Kamlesh Sharma became sole and absolute owner of the suit property to the exclusion of remaining legal heirs of Sh. B. D. Sharma i.e. the plaintiff and the defendant nos. 2 to 5.
58. This bring me to down to the subsequent Will dated 01-10-2004 purportedly executed by defendant no.1 namely Smt. Kamlesh Sharma in favour of defendant nos. 2 and 3 herein. Although, legal heirs of deceased plaintiff have termed the said Will to be forged and fabricated but they have failed to bring on record any facts and circumstances in support of their said argument. The said Will cannot be viewed with any doubt or suspicion merely because same was produced before the Court at some later stage of the proceedings. As already noted above, the present suit was dismissed in default in the year 2003 and same was restored to its original number only in the year 2016. It cannot be overlooked that defendant no.1 namely Smt. Kamlesh CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 32 / 38 Sharma has expired on 08.10.2004 and the defendant nos. 2 and 3 not only filed copy of said Will on record but also moved an amendment application under Order VI Rule 17 CPC seeking to amend their written statement thereby incorporating the factum of execution of said Will by defendant no.1 in their favour.
59. DW5 Sh. Jitender Sharma, who is one of the attesting witnesses to the Will dated 01-10-2004, has categorically deposed that Smt. Kamlesh Sharma had put her thumb impression on the said Will at point 'A' in his presence as well as in the presence of other attesting witness namely Smt. Seema Bijlani (defendant no.4, who has already expired during the pendency of the suit). DW5 has further testified that Smt. Kamlesh Sharma was in her sound disposing state of mind during the relevant period. The witness is found to have successfully withstood the test of cross-examination from the side of plaintiff and nothing contrary to the case of defendant nos. 2 and 3 could be elicited from the side of the plaintiff through litmus test of his cross-examination. It may be noted here that the Will dated 01-10-2004 is shown to have been executed by the defendant no. 1 in favour of his son i.e. defendant no. 2 and her daughter i.e. defendant no. 3 to the exclusion of her another son i.e. plaintiff and other two daughters i.e. defendant nos. 4 and 5, in the backdrop of the fact that the testator was residing with defendant nos. 2 and 3 during her lifetime. Hence, for the similar reasons as already mentioned hereinabove and in view of the discussion made CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 33 / 38 herein before, the Court is of the considered opinion that the defendant nos. 2 and 3 have been successful in proving the Will dated 01-10-2004 executed by defendant no.1 Smt. Kamlesh Sharma in their favour, whereby the suit property is shown to have been bequeathed to them in equal share to the exclusion of LRs of deceased plaintiff and and defendant nos. 4(already expired) and 5.
60. In the light of the discussion made hereinabove, the additional issue no.1 framed on 17.02.2018 stands decided accordingly.
ISSUE NO.2, 4, and 6Issue no.(ii) - Whether the plaintiff is entitled to partition of decree claimed ? O.P.P. Issue no.(iv) - Whether the plaintiff has got no locus standi to file the present suit ? O.P.D. Issue no.(vi) - Whether the plaintiff has got no cause of action for filing the present suit ? O.P.D.
61. The aforesaid issues are being taken up together as they are interlinked with each other. The burden to prove above mentioned issue no.2, was placed upon the plaintiff, whereas the burden to prove aforesaid issue nos.4 and 6 was placed upon the defendant.
62. In view of my findings on additional issue no.1 framed on 17-02-2018, there is no scope of any doubt that the plaintiff would have no cause of action to seek partition of the suit CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 34 / 38 property. He also did not have any locus standi to file the present suit seeking decree of partition of the suit property as the suit property was bequeathed by his predecessor in interest namely Sh. B. D. Sharma to his wife namely Smt. Kamlesh Sharma (defendant no.1) by way of Will dated 26-11-1995, who in turn, further bequeathed the same in favour of defendant nos. 2 and 3, by virtue of Will dated 01-10-2004. Hence, the legal heirs of deceased plaintiff are held to be not entitled to any decree of partition as claimed by them in the present suit. Accordingly, all these three issues are decided against the plaintiff.
Issue No.1 Issue no. (i)-Whether property bearing no.1632,Ward No. XVI, Block F, Gali No. 32-33, Khasra No. 942, New Nai Wala Street, Karol Bagh, Delhi is owned by late Sh. B.D. Sharma? OPP
63. The burden to prove this issue was placed upon the plaintiff.
As already noted above in preceding paragraphs, the LRs of deceased plaintiff have examined Sh. Naveen, Record Keeper from the Department of Delhi Archives as PW-2, who brought the summoned record and exhibited certified copy of the Sale Deed dated 13-9-1985 in respect of suit property (Ex.PW-1/1). Sh. Sevajit, Record Attendant from aforesaid department was also examined by LRs of deceased plaintiff as PW-2 (whereas it should have been PW-3), who also brought the summoned record in respect of the suit property and exhibited copy of Sale Deed dated CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 35 / 38 13-9-1985 (Ex.PW-1/1).
64. PW1 Smt. Savita Sharma, LR of deceased plaintiff, has also testified about the Sale Deed (Ex.PW1/1). Moreover, it is an admitted position on record that the suit property was owned by Sh. B. D. Sharma, which fact is also admitted by defendant nos. 1to 4 in their respective written statements. Hence, this issue stands decided in these terms.
Issue No.5 Issue no.(v) - Whether suit has not been valued properly for the purposes of court fees and jurisdiction? OPD
65. The burden to prove above said issue was placed upon defendant. However, no evidence whatsoever has been led by defendant nos. 2 and 3 to prove this issue. Apart from taking preliminary objection in their written statement, the defendants have failed to disclose as to how and in what manner the suit has not been properly valued for the purpose of court fee and jurisdiction. Rather, the fact of the matter is that the plaintiff has filed the present suit seeking relief of partition of the suit property, besides rendition of accounts by claiming that predecessor- in- interest of the parties to the present suit, had died intestate. Hon'ble High Court of Delhi has held in the case titled as "Shri Ram Murti Singh Sisodia v. Shri Pratap Singh Sisodia & Ors" passed in RFA No. 146/2004 decided on 24-4-2012 that in a suit for partition, no court fee is payable in asmuch as possession of one co-owner is in law possession on behalf of other CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 36 / 38 co-owners and therefore, fixed court fee of Rs.20/- is payable under Schedule-II Article 17 (vi) of the Court Fees Act, 1870. Similar view has been taken by Hon'ble Delhi High Court in the case of "Sushma Tehlan Dalal v. Shivraj Singh Tehlan & Ors" passed in CS (OS) No. 2642/2008 decided on 4-3-2011.
66. So far as valuation of the relief of rendition of account is concerned, it was not possible for the plaintiff to quantify the said relief in the absence of specified amount lying in the bank account of Sh. B. D. Sharma, being made known to him. Hence, the Court is of the considered opinion that defendants have failed to discharge the burden of proving this issue. Accordingly, the issue no.(v) stands decided in these terms.
ISSUE No.3 Issue no.(iii) - Whether plaintiff is entitled to rendition of account as prayed? OPP
67. The burden to prove this issue was placed upon the plaintiff.
However, no evidence whatsoever has been led by legal heirs of deceased plaintiff to prove this issue. Moreover, the defendant nos.1, 2 and 3 in their respective written statements, have categorically denied that Sh. B. D. Sharma was maintaining any bank account. That being so, the Court is of the considered opinion that legal heirs of deceased plaintiff have failed to prove that deceased B.D. Sharma was having any bank account or any other moveable asset(s) during his life time. Hence, there is no question of issuing CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 37 / 38 any direction to the defendants to render the accounts of the said deceased. The issue no.(iii) stands decided in these terms.
RELIEF:
68. In view of my findings on additional issue no.1 framed on 17.02.2018 and issue nos.2, 4 and 6 framed on 05.09.2016, the present suit deserves dismissal and is hereby dismissed accordingly. However, there shall be no orders as to cost.
69. Decree sheet shall be drawn up accordingly.
70. File be consigned to record room, after due compliance. Announced in the open Court On 20 th Day of November, 2023 (VIDYA PRAKASH) Additional District Judge-09, Central/THC/Delhi CS DJ 609625/16 Madhukar Sharma (deceased) through LR Vs. Kamlesh Sharma & Ors. (Sr. Citizen) Pg. 38 / 38