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Cs No. 41/17/97 (New No.8000/16) Brij ... vs . Sona Devi & Ors. 1/57 on 18 November, 2017

     IN THE COURT OF SH. SANJAY KUMAR, ADDITIONAL
             DISTRICT JUDGE-02, WEST, DELHI.


CS No. 41/17/97
New No. Civ. DJ-8000/16

Shri Brij Mohan Gupta
S/o Late Shri Sampat Rai
R/o A-66, Lok Vihar,
Pitam Pura, Delhi-110034.                                                  ......Plaintif

                                           versus


1.       Smt. Sona Devi (since deceased)
         W/o Late Sampat Rai
         R/o A/123, Khurbara Mohalla
         Dehradun, U.P.

2.       Sh. Nikhil Singhal (LR of Prehlad Rai)
         W/o Late Prehlad Rai
         R/o 565/33, Ram Nagar,
         Mohalla Kathmandu, Rohtak (Haryana)

3.       Sh. Satish Kumar Singhal
         S/o Sh. Sampat Rai
         R/o A-19, Ashok Vihar Phase-1
         Delhi-110052

4.       Smt. Kailash Devi
         W/o Late Sh. Gurcharan Das Goel
         R/o Naya Bazar, Shamli, Distt.
         Mujafar Nagar, Delhi.

5.       Smt. Vijay Laxmi
         D/o Sh. Sampat Rai
         W/o S.P. Goel
         R/o 1/123, Khurbara Mohalla,
         Dehradun, U.P.

6.       Sh. Mukat Behari (LR of Santosh Devi)
         S/o Sh. Sushil Kumar Mittal

7.       Smt. Guddi (LR of Santosh Devi)
         S/o Sh. Sushil Kumar Mittal


CS No. 41/17/97 (New No.8000/16)   Brij Mohan Gupta vs. Sona Devi & Ors.                  1/57
 8.       Ms. Reena (LR of Santosh Devi)
         S/o Sh. Sushil Kumar Mittal

9.       Sh. Avadh (LR of Santosh Devi)
         S/o Sh. Sushil Kumar Mittal

10.      Ms. Anshu ( LR of Santosh Devi)
         D/o Sh. Sushil Kumar Mittal

         All C/o 94, Railway Road,
         Roorkee, U.P.

11.      Delhi Development Authority
         Through its Vice Chairman,
         Vikas Sadan, I.N.A. Market,
         New Delhi.
                                                                  .........Defendants

Date of institution of the case                                            : 20.10.1997
Date of reserving of judgment                                              : 01.11.2017
Date of pronouncement of judgment                                          : 18.11.2017


                                   JUDGMENT

1. The plaintif has filed a suit for declaration and partition. The brief facts necessary for the disposal of the suit are as under:

2. It is stated that the plaintif and defendant nos. 2 and 3 are the sons of Sh. Sampat Rai, defendant nos. 4 and 5 are the daughters of Sh. Sampat Rai, defendant no.1 is wife of Sh. Sampat Rai and defendants no. 6 to 10 are the LRs of deceased daughter Smt. Santosh Kumari of Sh. Sampat Rai. Sh. Sampat Rai died on 26.06.1993. Daughter of Sh. Sampat Rai Smt.Santosh Kumari i.e. mother of defendant nos. 6 to 10 predeceased him. Defendant no. 11 is DDA from whom the property no. A-19, Ashok Vihar, Phase-I, New Delhi (hereinafter referred as to 'suit property') was purchased.

CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 2/57

3. It is stated that the defendant nos. 4 to 10 are well settled in their families and they were not given anything orally or otherwise. The sisters of the plaintif have relinquished all their rights in favour of the plaintif and defendant nos. 1 to 3. Defendant nos. 4, 5 and mother of LRs of defendant nos. 6 to 10 have received sufficient amount in their marriages. The property at Dehradun was purchased in the name of defendant no.1 with the joint income of the family from the family business. The defendant nos. 2 and 3 were engaged in their studies and were not in service till 1967-68. In the year 1959, the salary of the plaintif, income from agricultural land, income from HUF business was the only source of income of the family of the father of the plaintif. Money received from the salary of the plaintif, agricultural land and from HUF business was used and utilized for the purchase of property no. A-19, Ashok Vihar, Phase-I, Delhi and to meet out the liabilities and expenditure and also to perform the marriages of the daughters of late Sh.Sampat Rai. The family was joint.

4. In the year 1959, the plaintif was posted in PWD at Manipur, Imphal as Junior Engineer and from there he used to send 2/3rd of his income to his father. On or about 1967, the plaintif participated in the auction held by the DDA in respect of property No. A-19, Ashok Vihar, Phase-I, Delhi. The bid of the plaintif was accepted. He was declared successful bidder in the said auction by the DDA and the plaintif became entitled to the allotment of the said property. The auction money was deposited by the plaintif. Since the plaintif was a member of HUF, to avoid any misunderstanding in the family to maintain cordial relations, CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 3/57 he got the said property leased in the name of his father who was Karta and manager of the HUF. The perpetual lease was obtained in the name of the father of the plaintif even though the entire cost of the plot was borne by the plaintif alone. The payments were made by various cheques to the DDA by the plaintif from his personal account. The said amount was received by the plaintif from his employer CPWD. The plaintif deposited Rs.18,500/- by cheque bearing no. 159861 dated 10.11.1967 drawn on Punjab National Bank, R.K. Puram, New Delhi and another cheque no. 513871 dated 30.07.1967 for Rs.9260/- was also deposited by the plaintif with the DDA from his Account no. 417 maintained in State Bank of India, R.K. Puram, New Delhi. The plaintif also deposited Rs.6937/- which includes penalty and interest and also paid the stamp and registration charges for the registration of the lease deed.

5. It is stated that the plaintif was the owner of the property in question as he has made the entire investment/payment from his own account received by him from his employer. Even as per rules of the DDA, it is the plaintif alone who was entitled for the allotment of plot as he has given the bid in his own name and he has deposited the entire amount including the bid amount and the balance amount from his own income. It is stated that as desired by the father of the plaintif and as he has interest and faith in the family, he got the lease of the plot registered in the name of his father being Karta and head of the family. Thus the plaintif has right and interest in the plot no. A-19, Ashok Vihar, Phase-I, Delhi, in the agricultural land, HUF business and various lands held in the name of his father and mother.

CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 4/57

6. It is stated that the father of the plaintif had always acknowledged and admitted that the plaintif and defendant nos. 2 & 3 are having interest in the property held in his name. The defendant no. 2 Sh. Prehlad Rai also confirmed in writing on 21.01.1995 that the plaintif is having equal share and right in the property no. A-19, Ashok Vihar, Phase-I, Delhi. The defendant no.1 also acknowledged the right and interest of the plaintif in the property held by his father in his name as head of the family.

7. It is stated that MCD raised a demand of House Tax of property No. A-19, Ashok Vihar, Phase-I, Delhi which was fixed jointly and the plaintif paid a sum of Rs.14,000/- after withdrawing the amount from his savings Account No. 534 maintain the the name of his wife with Nainital Bank, Pitam Pura, Delhi. The payment was made till 23.02.1995. It is stated that father of the plaintif was having no right to execute any Will as the property was purchased with the income made available by the plaintif and the construction thereon was also raised with the income from the agricultural land which is ancestral land and other sources. The plaintif is having equal right and share in the property. Since the father was not having right to execute the Will in respect of any of the properties held by him in his name, therefore, the execution of the Will is without authority and the same is not binding on the plaintif and the plaintif is entitled to his own share.

8. It is stated that the plaintif filed a suit for partition and permanent injunction and in the said suit for the the first time, the defendant came up with the plea that the CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 5/57 father had executed second Will dated 10.02.1993 in respect of the property held by him. Till the filing of the suit it is not disclosed to the plaintif that there is a second Will dated 10.02.1993. The said Will was never acted upon for about 4 years as such Will was not in operation or not executed by the father of the plaintif. The DDA was also not informed by the defendant nos. 2 and 3 about any existence of Will dated 10.02.1993 within three months as contemplated under perpetual lease deed. Since the said Will was not there and it was not executed by the father of the plaintif, the DDA was not informed about the same. Their application for substitution was also dismissed by the DDA.

9. It is stated that the father of the plaintif was not competent to execute any Will as he was not the owner. He was holding the property as Karta for and on behalf of plaintif and defendant nos. 1 to 3. The said property was purchased with the income made available by the plaintif and the construction was raised with the income of agricultural land which is ancestral property. All the parties to the suit have always acknowledged and admitted that the property is HUF and all male members i.e. plaintif and defendant nos. 22 and 3 are having equal interest. Therefore, the plaintif has a right and his right cannot be taken away by any Will dated 06.04.1990 and 10.02.1993.

10. It is stated that the father of the plaintif was not physically fit and used to remain ill in the year 1990-93 and was also admitted in the Rohtak Medical Hospital, Rohtak from 16.03.1991 to 14.04.1991 and 10.04.1993 to 24.04.1993. The of the plaintif was mentally sick and he was CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 6/57 also sufering from various ailments and he was uncertain about his life and was under terror of death and was not in sound disposing mind and was acting under the instructions of the others as he was of weak mind unable to take correct decisions. After 1990, the father of the plaintif was under

pressure of defendant nos. 2 and 3 and he had lost his own will and power since he was acting under the instructions of defendant no. 2 and 3 and the in-laws of the said defendants. The said defendants have manipulated and procured the alleged Will dated 10.02.1993, which the father of the plaintif was not competent to execute ignoring the interest of the plaintif.

11. It is stated that defendant Sh. Prehlad Rai is living with his in-laws at Rohtak since 1971 and he never rendered any help to the father of the plaintif till he was alive. After the death of the father, the defendants have failed to partition the property and failed to give the share of the plaintif and the plaintif issued notice dated 16.06.1997 and called upon the defendant nos. 2 and 3 to partition the property but they have failed to do so and accordingly, as suit was filed against the defendant nos. 2 and 3 and DDA but the same was withdrawn with permission to file fresh suit as the plaintif had not issued notice as contemplated under DDA Act.

12. It is stated that plaintif is having equal right and share in the property at Ashok Vihar and the share of the plaintif is 1/3rd and defendant nos. 2 and 3 cannot have the said property exclusively to the exclusion of the plaintif as the said property was purchased with the income of the CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 7/57 plaintif and was HUF property. The plaintif has not claimed partition of the other properties as the defendants have not disputed the rights of the plaintif in the said properties.

13. The plaintif seeks that a decree of declaration may be passed in favour of the plaintif and against the defendants declaring the property No. A-19, Ashok Vihar Phase-I, Delhi as a joint property and the plaintif and the other LRs of late Shri Sampat Rai are having equal rights in the said property and Sh. Sampat Rai was not competent to execute any Will in respect of the said property held by him being the head of the family/ Karta and Manager. Plaintif further seeks that a decree for partition of the property No. A-

19, Ashok Vihar, Phase-I, Delhi by meets and bound be passed; a preliminary decree for carrying on the partition by meets and bounds be also passed; appointment of the Commissioner for efecting the partition in terms of the preliminary decree; final decree of partition embodying the commission report be passed.

14. The LRs of defendant no.2 filed written statement and taken the preliminary objections that the present suit is barred under Section 4 of Benami Transaction Act, 1988. The suit is liable to be dismissed under Order VII Rule 11 CPC as the entire cause of action is mischievous, false and frivolous and present suit filed by plaintif is without any cause of action. The suit is barred by limitation as suit is filed well beyond the period of limitation prescribed by law. The present suit is barred under the law of adverse possession also. The suit has not been properly valued for the purposes of court fees and jurisdiction and proper court fee has not CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 8/57 been paid. The court has got no pecuniary jurisdiction to entertain and try the present suit because the value of the suit property is more than Rs.3.50 Crores. The suit is barred by resjudicata. The suit is not maintainable as plaintif has got no subsisting rights in the suit property. The suit is barred by the provisions of Rule 2 of Order II CPC.

15. On merits the answering defendants denied the averments made in the plaint and it is stated that plaintif has no concerned whatsoever of any nature with respect to suit property and plaintif has created a false and concocted story with a view to grab the suit property and extort money and to harass the answering defendant. The suit property was purchased by late Sh. Sampat Rai, father of the defendant no.2 from the defendant no.11/DDA. The suit premises was self acquired property of late Sh. Sampat Rai, who had executed a registered Will dated 10.02.1993 in favour of defendant no.2 with respect to suit property. The plaintif has nothing do do with the suit premises.

16. It is stated that the Will dated 10.02.1993 was validly executed by late Sh. Sampat Rai and plaintif has even executed the said Will, by substituting the names of beneficiaries, of other properties at Safidon, District Jind, Haryana as per averments made in the Will. The suit premises is self acquired property of late Sh. Sampat Rai and built by him as he was class one contractor. Late Sh. Sampat Rai had executed registered Will dated 10.02.1993 and bequeathed the premises in question in favour of defendant nos. 2 and 3 being absolute owner. The plaintif has no concerned, right and authority whatsoever of any nature in CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 9/57 the suit premises, so the question of relinquishing the rights by the defendant nos. 4 to 10 in favour of the plaintif does not arise at all. The property at Dehradun was purchased by late Sh. Sampat Rai from his own income in the name of the defendant no.1 and not from the joint income of the family or joint family business as alleged by the plaintif. There was no joint business at any point of time.

17. It is stated that no HUF was in existence at any point of time and is not in existence as alleged. The agricultural land and the business was owned by late Sh. Sampat Rai in his individual capacity. Late Sh. Sampat Rai was earning his livelihood from his own agricultural land and business and not from joint family business. It is further denied that plaintif's salary and income from agricultural land and from HUF business was used and utilized for the purposes of property No. A-19, Ashok Vihar, Phase-I, Delhi or to meet out the liabilities and expenditure and also to perform the marriages of the daughters of late Sh. Sampat Rai. Late Sh. Sampat Rai performed the marriages of his daughter during his life time from his own income. Late Sh. Sampat Rai left no liability behind him either to be met by the plaintif. All the allegations mentioned in the present suit had not been taken by the plaintif in the previous suit No. 15/97 filed by him before the court and the same are an after thought. At the relevant time, the plaintif was posted at Manipur, Imphal and he had taken his family to that place and out of meager salary he cold not even think of saving a single penny and therefore question of contribution of salary of plaintif does not arise at all.

CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 10/57

18. It is stated that the plaintif had never paid even a single money from his salary or part thereof to his father. The plaintif was not earning satisfactory salary to feed his family so the question of sending the money to his father does not arise. There was no joint family at all at any time. It is stated that the plaintif participated in the auction held by DDA in respect of property no. A-19, Ashok Vihar, Delhi on behalf of late Sh. Sampat Rai and had given the bid on the asking of his father and the same was accepted. Late Sh. Sampat Rai asked the plaintif to submit bid on behalf of him and in private context the plaintif was declared successful bidder as a representative of late Sh. Sampat Rai in the said auction held by DDA. Late Sh. Sampat Rai being busy in his business asked his elder son i.e. the plaintif to attend the auction held by DDA and give bid on his behalf. At that time intention of plaintif turned bad and he dishonestly with bad intention to grab the money of late Sh. Sampat Rai gave bid in his own name unauthorizedly and when this matter came to the knowledge of late Sh. Sampat Rai, he asked the reason for his nefarious activities and plaintif admitted his fault and gave up his claim and the property in question was therefore allotted in the name of late Sh. Sampat Rai. All the amount was contributed by late Sh. Sampat Rai out of his own income and no money was paid by the plaintif. The father of the plaintif and defendant nos. 2 and 3 was the leading contractor of central Government and Railway Department and he paid the amount to DDA.

19. It is stated that whatever money was deposited by the plaintif to DDA, the same was given to him by his father late Sh. Sampat Rai and thereafter late Sh. Sampat CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 11/57 Rai paid the rest of the money of the suit property to DDA by diferent modes. The plaintif deposited one installment of the suit property to the DDA on the asking of hi father and even the said amount was given to him by late Sh. Sampat Rai. There was no firm of HUF so the plot registered in the name of late Sh. Sampat Rai being the Karta and Head of the family never arose nor could arise at all.

20. It is stated that about the Will dated 10.02.1993, the defendant nos. 2 and 3 did not have any knowledge and got the original Will from their mother i.e. defendant no.1 after completion of Barsi ceremony after the death of their father which was performed at Dehradun. The said Barsi Ceremony was not attended by the plaintif. The defendant no.2 never wrote any letter to the plaintif either on 21.01.1995 or any other date to confirm the right of the plaintif in the suit premises. The defendant nos. 2 and 3 become the owner of the property in question by virtue of Will dated 10.03.1993 executed by late Sh. Sampat Rai so the question of conforming the equal right of the plaintif in the property in question does not arise at all. Late Sh. Sampat Rai bequeathed the property in question in favour of defendant nos. 2 and 3 and disinherited the plaintif, his two daughters and legal heirs of his deceased third daughter by registered Will dated 10.02.1993.

21. It is stated that plaintif is residing in property No. A-66, Lok Vihar, Pitam Pura, Delhi ever since the date of construction thereon. It is denied that MCD raised the demand of house tax of property No. A-19, Ashok Vihar, Phase-I, Delhi from the plaintif and the same was fixed CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 12/57 jointly. The father of the answering defendant and plaintif had given the fiancial help for construction of plot No. A-66, Lok Vihar, Pitampura from time to time. Therefore, plot no. A- 66, Lok Vihar, Pitampura is also joint property of the defendant nos. 2 and 3 and the plaintif. The defendant nos. 2 and 3 are equally entitled to get share in the said property No. A-66, Lok Vihar, Pitampura, Delhi.

22. It is stated that the earlier suit for partition and injunction filed by the plaintif was dismissed as withdrawn on 28.05.1997 subject to payment of cost of Rs.700/-. The plaintif has not paid the cost till date. It is stated that the defendant nos. 2 and 3 had moved an application to the defendant no. 11/ DDA for mutating the suit property in their names. This fact was within the knowledge of the plaintif from the date of moving the said application. The plaintif is guilty of suppression of the material fact from the Court. The plaintif had also moved an application to mutate the property in question in his name but the said application was rejected by the defendant no.11 in the existence of Will dated 10.02.1993 executed by late Sh. Sampat Rai. The plea of the plaintif of the unawareness of the Will dated 10.02.1993 executed by late Sh. Sampat Rai is totally false, shame, frivolous and moon-shine. On the basis of Will dated 10.02.1993, the plaintif and defendant nos. 2 & 3 have applied for the mutation of the agricultural land situated in Safidon, District Jind, Haryana in their names and the same has been mutated in the name of the plaintif and defendant nos. 2 and 3 on the basis of Will dated 10.02.1993, by the Patwari of the Tehsil. On the one hand, the plaintif got mutated the agricultural land in his name as per the Will CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 13/57 dated 10.02.1993 and on the other hand he is challenging the said Will and both the contrary stand taken by the plaintif cannot go together. The matter further remain that the Will dated 10.02.1993 has partly been executed by the plaintif and defendant nos. 2 and 3 and the same is in existence, so the question of non operation of the Will never arouse nor could arise. The plaintif and defendant nos. 2 and 3 are bound by the Will dated 10.02.1993.

23. It is stated that the father of the plaintif and defendant nos. 2 and 3 was of sound mind & health who could understand his good and bad before the execution of Will dated 10.02.1993 executed by him. Defendant nos. 2 and 3 looked after their father in every manner. The father of the plaintif was of sound mind till his death and could understand good or bad of any acts and things done by him. The father of the plaintif never did any act on the instructions of others and he was a man of principal, who took his own decision regarding what to do and what not to do. The plaintif started to abuse and beat his mother i.e. defendant no.1. The plaintif misbehave and used to beat his mother so badly that she was hospitalized in a Nursing Home at Pitampura, Delhi. She got several stitches and the bleeding was started. The plaintif has no regard for her mother and his deceased father. It is stated that no notice was ever served upon the defendant nos. 2 and 3 and therefore, the authenticity of the notice dated 16.06.1997 is denied. No cause of action has ever arisen in favour of the plaintif and against the defendants. The answering defendant seeks dismissal of the suit with exemplary cost.

CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 14/57

24. Defendant no.3 filed his written statement and taken the preliminary objections that the entire cause of action is mischievous, false and frivolous and the present suit filed by the plaintif is without any cause of action and suit is liable to be dismissed under Order VII Rule 11 CPC. The plaintif has made a false and concocted story before the Court and the suit has been framed on frivolous and false ground and is an abuse of process of the court. The site plan of the premises in question has not been supplied to the answering defendant and therefore the authenticity of the said plan is denied. The plaintif has concealed the material fact from this Court and misrepresented the facts in the case which suits the plaintif.

25. It is stated that the suit has not been properly valued for the purposes of court fees and jurisdiction and property court fee has not been paid. This court has got no pecuniary jurisdiction to entertain and try the present suit because the suit property is more than Rs.1.50 Crores. The suit is barred by resjudicata. The suit of the plaintif is not maintainable as he has got no subsisting rights in the suit property. The suit of the plaintif is barred by the provisions of Rule 2 of Order II of CPC.

26. On merits, the defendant no.3 has denied the averments made in the plaint. It is pertinent to mention that the defendant no.3 has also taken the same defence as has been taken by defendant no.2. It is stated that the plaintif, defendant no.1 and defendant nos. 4 to 10 have no concern whatsoever of any nature in the suit property and the plaintif has created a false and concocted story before the Court with CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 15/57 a view to harass the answering defendant. The entire suit has been framed on mischievous cause of action.

27. It is stated that the suit property was purchased by late Sh. Sampat Rai from defendant no.11. The payment of the premises in question was also paid by late Sh. Sampat Rai from his own income. The plaintif has nothing to do with the suit premises. It is admitted that defendant nos. 4 to 10 are well settled in their family and they have nothing to do with the suit premises. Even the plaintif has nothing to do with the suit premises. It is denied that there exists any relinquishment deed by defendant no. 4 to 10 in favour of plaintif and defendant nos. 1 to 3. It is stated that Will dated 10.02.1993 was validly executed by late Sh. Sampat Rai and plaintif has even executed the said Will by substituting the names of beneficiaries of other properties at Safidon, District Jind, Haryana. The premises in suit was purchased and built by late Sh. Sampat Rai from his own income as he was Class 1st Contractor. Late Sh. Sampat Rai being absolute owner of the suit premises executed a Will dated 10.02.1993 and bequeathed the premises in question in favour of the defendant nos. 2 and 3. Neither the plaintif nor the defendant no.1 nor defendant nos. 4 to 10 have any concern, right and authority whatsoever of any nature in the suit premises and the question of relinquishing the rights by the defendant nos. 4 to 10 in favour of the plaintif does not arise at all. The plaintif has made a false and concocted story before this Court with a view to grab the right of defendant nos. 2 and 3 from the suit premises. The property at Dehradun was purchased by late Sh. Sampat Rai from his own income in the name of the defendant no.1 and not from CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 16/57 the joint income of the family or joint family business. There was no joint business at any point of time.

28. It is stated that no HUF was in existence at any point of time and is not in existence as alleged by the plaintif. The agricultural land and the business was owned by late Sh. Sampat Rai in his individual capacity, so the question of income of HUF business does not arise at all. Late Sh. Sampat Rai was earning his livelihood from his own agricultural land and business and not from joint family business. It is further denied that plaintif's salary and income from agricultural land and from HUF business was used and utilized for the purposes of property No. A-19, Ashok Vihar, Phase-I, Delhi or to meet out the liabilities and expenditure and also to perform the marriages of the daughters of late Sh. Sampat Rai. Late Sh. Sampat Rai performed the marriages of his daughter during his life time from his own income. Late Sh. Sampat Rai left no liability behind him either to be met by the plaintif. All the allegation mentioned in the present suit had not been taken by the plaintif in the previous suit No. 15/97 filed by him before the Court and the same are an after thought. At the relevant time plaintif was posted at Manipur, Imphal and he had taken his family to that place and out of meager salary he could not even think of saving a single penny and therefore question of contribution of salary of plaintif does not arise at all.

29. It is stated that the plaintif was not earning satisfactory salary to feed his family so the question of sending the money by him to his father does not arise. It is stated that the plaintif participated in the auction held by CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 17/57 DDA in respect of property No. A-19, Ashok Vihar, Delhi on behalf of late Sh. Sampat Rai and had given the bid on the asking of his father and the bid was accepted by DDA. Late Sh. Sampat Rai being busy in his business asked the plaintif to attend the auction held by DDA and give bid on his behalf as a representative of late Sh. Sampat Rai. At that time his intention turned bad and he dishonestly with the bad intention to grab the money of late Sh. Sampat Rai gave bid in his own name unauthorizedly and when this matter came to the knowledge of late Sh. Sampat Rai, he asked the reason for his nefarious activities and the plaintif admitted his fault and gave up his claim and the property in question was therefore allotted in the name of late Sh. Sampat Rai. All the amount was contributed by late Sh. Sampat Rai out of his own income and no money was paid by the plaintif out of his own earnings. The perpetual lease deed has been issued by the DDA in the name of late Sh. Sampat Rai. Late Sh.Sampat Rai was the leading contractor of Central Government and Railway Department and he paid the amount to DDA.

30. It is stated that the intention of plaintif had turned bad therefore instead of payment the amount in cash he paid the amount which had already been given to him by late Sh. Sampat Rai. Plaintif deposited one installment of the suit property to the DDA on the asking of his father and even the said amount was given to him by late Sh. Sampat Rai. Late Sh. Sampat Rai was the absolute owner of the property in question bearing No. a-19, Ashok Vihar, Ophase-I, Delhi, who had paid the entire money of the property in question and a lease deed dated 03.07.1972 has also been executed CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 18/57 by the defendant no.11/DDA in the name of father of the plaintif and defendant nos. 2 & 3 i.e. late Sh. Sampat Rai.

31. It is stated that the defendant nos. 2 and 3 have become the owner of the property in question by virtue of Will dated 10.03.1993 executed by late Sh. Sampat Rai so the question of confirming the equal right of the plaintif in the property in question does not arise at all. Late Sh. Sampat Rai alias Sampat Rai Gupta bequeathed the property in question in favour of defendant nos. 2 and 3 and disinherited the plaintif, his two daughters and legal heirs of his deceased third daughter by registered Will dated 10.02.1993. The defendant no.1 never acknowledged any right, title or interest to the plaintif in the suit property. The suit property was purchased by late Sh. Sampat Rai in his individual capacity and not as the Karta of HUF family as alleged by the plaintif.

32. It is stated that a plot bearing No. A-66, Lok Vihar, Pitam Pura, Delhi was purchased by the plaintif with the monetary help of his father. The father of the plaintif had been giving the monetary help to the plaintif from time to time as his financial position was not very sound. Plaintif is residing in the property No. A-66, Lok Vihar, Pitam Pura, Delhi ever since the date of construction thereon. It is denied that the MCD raised the demand of house tax of property bearing No. A-19, Ashok Vihar, Phase-I, Delhi from the plaintif and the same was fixed jointly. As and when the house tax of the property in question was due, the same had been paid by the defenant no.3 and no demand was raised from the plaintif at any point of time. The plaintif has never paid any amount on account of house tax of the property in question as alleged by CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 19/57 him. The defendant nos. 2 and 3 never acknowledged any right, title or interest of the plaintif in the suit property.

33. It is stated that the plaintif had file a suit for partition and injunction before the court and the same was dismissed as withdrawn on 28.05.1997 subject to payment of cost of Rs.700/- The plaintif has not paid the cost till date. The defendant no. 2 and 3 had moved an application to the defendant no.11 for mutating the suit property in their names. This fact was within the knowledge of the plaintif from the date of moving the said application. The plaintif is guilty of suppression of material fact from the court. The plaintif had also moved an application to mutate the property in question in his name but the said application was rejected by the defendant no.11 in the existence of Will dated 10.02.1993 executed by late Sh. Sampat Rai. The plaintif of the plaintif of the unawareness of the Will dated 10.02.11993 executed by late Sh. Sampat Rai is totally false, shame, frivolous and moon-shine.

34. It is stated that about the Will dated 10.02.1993, the defendant nos. 2 and 3 did not have any knowledge and got the original Will from their mother i.e. defendant no.1 after completion of Barsi ceremony after the death of their father which was performed at Dehradun. The said Barsi Ceremony was not attended by the plaintif or his family members. It is stated that the father of the plaintif and defendant nos. 2 and 3 was of sound mind & health who could understand his good and bad before the execution of Will dated 10.02.1993 executed by him. The father of the plaintif and defendant nos. 2 and 3 was admitted to Rohtak CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 20/57 Medical Hospital, Rohtak because he got fracture. The defendant nos. 2 and 3 looked after their father in every manner. The plaintif did not visit the hospital to see his father. The father of the plaintif and defendant nos. 2 & 3 again got intertrochanteric fracture and he was admitted in Rohtak Medical Hospital, Rohtak, Haryana and at that time the defendant nos. 2 and 3 looked after their father and the plaintif neither visited the hospital to look after his father nor he bothered.

35. It is stated that the father of the plaintif was of sound mind till his death and could understand good or bad of any acts and things done by him. The father of the plaintif never did any act on the instructions of others and he was a man of principal, who took his own decision regarding what to do and what not to do. The plaintif started to abuse and beat his mother i.e. defendant no.1. The plaintif misbehave and beaten his mother so badly that she was hospitalized in a Nursing Home at Pitampura, Delhi. She got several stitches and the bleeding was started. The plaintif has no regard for her mother and his deceased father. It is stated that no notice was ever served upon the defendant nos. 2 and 3 and therefore, the authenticity of the notice dated 16.06.1997 is denied. No cause of action has ever arisen in favour of the plaintif and against the defendants. The answering defendant seeks dismissal of the suit with cost.

36. Defendant no.11/DDA filed written statement on 29.07.1999 and again on 06.01.2000. However, the earlier written statement dated 29.07.1999 is taken up for consideration. The defendant no.11/DDA has taken the CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 21/57 preliminary objections that plaintif has not served with notice under Section 53-B of the D.A. Act before filing the suit. The plaintif has not filed the proper court fee. The plaintif has not come to the court with clean hands and has concealed the major and material facts that he had failed to furnish a relinquishment deed from the other legal heirs. Besides other legal heirs, namely, Sh. Prahlad and Sh. Satish Kumar Singhal had represented to the Department that the suit plot in question be divided in other legal heris. Whereas vide letter dated 11.09.1994, the plaintif had represented that he is also one of the legal heirs of the deceased, as such the property may not be transferred /mutated in the name of his brothers. Further, the plaintif stated that he had purchased the property/plot in question and his brothers be not allowed to get the same mutated. Since the plaintif had paid the entire consideration at that time of purchase from other legal heirs. Whereas the other legal heirs represented that it was a joint family property and the plaintif being one of the legal heirs is a limited interest equivalent to his share only. The contents of the alleged Will of the testator and the name of the plaintif was contradictory as such the answering defendant cannot mutate the property unless a probate is obtained from the court of competent jurisdiction.

37. It is stated that the plot bearing no. A/19, Ashok Vihar, Phase-I, New Delhi was originally purchased by Sh. Brij Mohan Gupta (plaintif) s/o late Sh. Sampat Rai in an open auction held on 11.11.1967. Thereafter, on the request of the plaintif Sh. Brij Mohan Gupta, the plot in question was transferred in the name of his father Sh. Sampat Rai. The lease deed was executed in favour of Sh. Sampat Rai.

CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 22/57 Thereafter, the father of the plaintif Sh. Sampat Rai expired on 26.06.1993. Sh. Prehlad Chand and Sh. Satish Kumar Singhal vide their application jointly applied in the defendant's office for mutation of plot no. A-19, Ashok Vihar in their favour after the death of their father Sh. Sampat Rai. They submitted the indemnity bond; affidavit regarding legal heirs; affidavit under ULCR Act; Undertaking in respect of abide by the terms and conditions of lease deed; death certificate; proof of relationship of the other heirs; photograph and signatures attested; photocopy of ration card; copy of Will. However, they did not furnish the relinquishment deed from the other legal heirs.

38. It is stated that from the photocopy of the Will submitted by Sh.Prehlad and Sh. Satish Kumar Singhal, it was came to know that Shri Sampat Rai, lessee of plot in question had made a Will that the plot in question divided in favour of Sh. Satish Kumar and Sh. Prahlad only. The plaintif made a representation dated 11.09.1994 that he is one of the legal heirs in the property in question and the same may not be transferred/mutated in the name of his brothers i.e. Sh.Prehlad and Sh. Satish Kumar Singhal without his consent/ NOC. He has again represented through his letter dated 18.02.1997 that his brothers are trying to get the mutation done in their names by filing false documents in respect of plot in question. He has stated that plot was purchased by him and the entire amount of the plot was made by him from his own pocket. He has requested that the mutation/transfer of the plot may not be made in their names unless he is personally heard. The plaintif sent a legal notice through his Advocate caling upon the DDA to make entry in the record CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 23/57 that the property bearing No. A-19, Ashok Vihar, Phase-I, Delhi is a joint family property and Sh. Brij Mohan being a son of late Sh. Sampat Rai has equal right in the property and that necessary entries to the efect may be made in the record of DDA/defendant, failing which legal action shall be taken against the DDA in the court of law.

39. The DDA vide his letter dated 07.05.1997 earlier intimated to the plaintif that Sh. Prahlad Chand and Sh. Satish Kumar Singhal applied for mutation but the mutation had not been held on receipt of his complaint and further pointed out that the mutatees were asked to submit a clear title from the court of law or to submit NOC from other legal heirs as the same was not produced by them and due to which mutation was not possible. On merits it is stated that the most of the paras are do not pertain to the answering defendant.

40. Plaintif filed replication to the written statement of the defendant no.3, in which he denied the averments made in the written statement and reiterated the averments made in the plaint.

41. Plaintif also filed replication to the written statement of the defendant no. 11/DDA and again reiterated the averments made in the plaint.

42. On the pleadings of the parties, the following issues were framed by Ld. Predecessor on 27.09.2004:

(1). Whether the Will dated 10.02.1993 propounded by the defendant nos. 1, 2 and CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 24/57 3 was validly executed by late Sh.Sampat Rai and is genuine Will of the testator Sh.Sampat Rai? OPD (2). Whether the father of the plaintiff was not entitled to execute the Will dated 10.02.1993 as claimed by the plaintiff? OPD (3). Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD (4). Whether the plaintiff is entitled to the partition of the property as claimed by him?

OPP (5). Relief.

43. It is pertinent to mention that vide order dated 27.09.2004, issue no. 3 was treated as preliminary issue. On which parties were directed to led evidence. Accordingly, the parties have led their evidence. Vide order dated 08.08.2001 preliminary issue no.3 was decided against the plaintif and the plaintif was directed to correct the value of the suit property within one month. As observed in order dated 12.09.2011, the plaintif filed/deposited Rs.7500/- towards court fees towards his one third share in the property. Thereafter, LRs of deceased defendant no.2 filed an application for dismissal of the suit on account of non compliance of order dated 08.08.2011, which was dismissed as withdrawn on 24.01.2013.

CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 25/57

44. During the course of trial defendant no.2 Sh.Prehlad Rai expired and an application under Order 22 Rule 4 CPC was filed by plaintif for bringing the LRs of deceased defendant no.2 on record, which was allowed vide order dated 03.09.2009.

45. It is pertinent to mention that to prove his case, plaintif tendered his affidavit in evidence as Ex. PW1/A and partly cross-examined by Ld. Counsel for the defendant no.3 but during his cross-examination, it was observed by the Court that "Witness is unnecessarily shouting and leveling allegations against the opposite party. He is also started cursing the opposite party without any provocation and reason. Witness is warned and to behave properly. He is not even ready to listen to his counsel. He is again warned to behave properly and to maintain decorum of the court. The witness is not ready to listen at all and has left the witness box stating that he does not want to be examined any further. In these circumstances, there is no other option left except to close the plaintiff's evidence. The witness is discharged."

46. In view of the above reasons, vide detailed order dated 12.05.2016, Ld. Predecessor directed that testimony of PW-1 Sh. Brij Mohan Gupta will not be read in evidence. The plaintif vide separate statement closed his evidence in affirmative on 09.08.2016.

47. Defendant no. 3 Sh. Satish Kumar Singhal got himself examined as D3W1, he tendered his evidence by way CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 26/57 of affidavit as Ex. D3W1/A and proved on record the documents i.e. copy of Perpetual lease deed dated 03.07.1972 and registration dated 26.07.1972 as Ex.D3W1/1(OSR), copy of possession letter dated 03.07.1972 as Ex.D3W1/2(OSR), copy of letter dated 05.07.1979 of DDA as D3W1/3(OSR),copy of letter dated 18.07.1972 of DDA as Ex.D3W1/4(OSR), copy of possession letter dated 24.08.1971 as Ex.D3W1/6(OSR), copy of letter received on 02.03.1971 issued by Sh. Sampat Rai as Ex.D3W1/7(OSR), copy of letter dated 03.08.1971 of DDA as Mark D3W1/A, copy of letter dated 07.05.1970 of DDA as Ex.D3W1/8(OSR), letter dated 19.04.1971 of DDA as Ex.D3W1/9(objected), copy of letter dated 03.11.1987 issued by sh Sampat Rai as Ex.D3W1/10(OSR), certified copy of mutation as Ex.D3W1/11(OSR), Income tax clearance certificate as Mark D3W1/B and Mark D3W1/C, copy of assessment order dated 29.05.1962 as Ex.D3W1/15, copy of assessment order dated Nov, 1980 as Ex.D3W1/16, four Acknowledgments dated 19.09.1979 as Ex.D3W1/17, copy of Assessment order dated 10.03.1972 as Ex.D3W1/18, copy of assessment order dated 16.02.1963 as Ex.D3W1/19, copy of letter issued by Sh. Sampat Rai as Ex.D3W1/20, copy of letter dated 18.01.1979 of CPED as Ex.D3W1/21, copy of letter dated 01.01.1979 alongwith documents as Ex.D3W1/22(colly), copy of five acknowledgments as Ex.D3W1/23(colly), seven copies of house tax payment receipts of diferent years as Ex.D3W1/24(colly), copy of letter dated 16.08.1972 of DDA as Ex.D3W1/25, copy of site plan as Ex.D3W1/26, copy of letter dated 29.05.1988 of DDA as Ex.D3W1/27, copy of letter dated 03.04.1980 of DDA as Ex.D3W1/28, copy of letter dated 08.10.1980 as Ex.D3W1/29, copy of letter dated 14.10.1980 CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 27/57 of DDA as Ex.D3W1/30, copy of receipt of DDA dated 13.03.1981 as Ex.D3W1/31, copy of certificate of architect dated 28.04.1981 as Ex.D3W1/32, copy of letter dated 29.04.1981 issued by Sh. Sampat Rai as Ex.D3W1/33, copy of receipt of DDA dated 30.04.1981 as Ex.D3W1/34, copy of receipt dated 18.11.1981 of DDA as Ex.D3W1/35, copy of letter dated 18.11.1981 of DDA as Ex.D3W1/36, copy of receipt of DDA bearing no. 370318 as Ex.D3W1/37, copy of letter dated 05.04.1982 as Ex.D3W1/38, copy of letter dated 15.05.1982 of DDA as Ex.D3W1/39, copy of letter dated 06.07.1982 issued by Sh. Sampat Rai as Ex.D3W1/40, copy of letter dated 25.05.1982 of DDA as Ex.D3W1/41, copy of letter dated 12.07.1982 of DDA as Ex.D3W1/42, copy of letter of DDA with respect to the letter of Sh. Sampat Rai dated 28.12.1982 as Ex.D3W1/43, copy of letter of DDA dated 29.01.1983 as Ex.D3W1/44, copy of receipt of DDA dated 09.05.1983 as Ex.D3W1/45, copy of Form-C as Ex.D3W1/46, copy of letter dated 25.05.1983 of DDA as Ex.D3W1/47, copy of Form-D as Ex.D3W1/48, copy of receipts of payment of fees of sewer as Ex.D3W1/49, copy of deposit voucher dated 27.08.1987 as Ex.D3W1/50, copy of letter issued by Sh. Sampat Rai dated 03.11.1987 as Ex.D3W1/51, copy of deposit voucher dated 15.02.1990 as Ex.D3W1/52, copy of letter of DDA dated 23.07.1990 and 26.07.1990 as Ex.D3W1/53, copy of letter of DDA dated 12.03.1991 and 14.03.1991 as Ex.D3W1/54, copy of receipt of cremation ground and death certificate of Sh. Sampat Rai as copy of letter of DDA dated 23.07.1990 and 26.07.1990 as Ex.D3W1/55, and Ex.D3W1/56, copy of application for mutation as copy of letter of DDA dated 23.07.1990 and 26.07.1990 as Ex.D3W1/57, copy of deposit voucher dated 07.11.1994 as CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 28/57 Ex.D3W1/58, copy of letter dated 29.12.1994 of DDA as Ex.D3W1/59, copy of letter dated 20.02.2002 of DDA as Ex.D3W1/60, copy of acknowledgment of DDA as Ex.D3W1/61, copy of deposit voucher dated 16.01.2002 as Ex.D3W1/62, copy of letter addressed to DDA dated 16.01.2002 as Ex.D3W1/63, copy of letter dated 15.01.1999 issued by Sh. Satish Kumar Singhal as Ex.D3W1/64.

48. D3W1 Sh. Satish Kumar Singhal in his cross- examination deposed that his date of birth is 31.03.1951. He did not know whether he has placed any proof on record to show that his father had purchased the suit property out of his own funds/money. He denied the suggestion that he has not placed any document because the property was not purchased by his father from his own funds. He denied the suggestion that defendant nos. 4 to 10 had relinquished their rights with respect to suit property in favour of plaintif and defendant nos. 2 & 3. His father owned agricultural land in Safidon, Haryana approximately 9 Acres. The said land was mutated in his name, defendant no.2 and plaintif on the basis of Will dated 10.02.1993 executed by his father which is already exhibited as Ex. PW1/D3X5 in the year 1997 approximately and the same was got mutated on the application moved by his brother Sh. Brij Mohan Gupta - plaintif. All the three brothers have already sold their respective shares of the said agricultural land. He sold his share in and around year 2012. The plaintif has sold his share in and around 2014. Defendant no.2 has sold his share prior to 2012.

CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 29/57

49. D3W1 further denied the suggestion that his father was seriously ill at the time of his death. He admitted that he was admitted in Rohtak Medical Hospital due to fracture in his hip. He admitted that his father had been working as civil contractor (Category -III up to I) with government of India (CPWD and Railway). He denied the suggestion that his father ever faced any attachment proceedings during his lifetime. He denied the suggestion that his father was bankrupt. He denied that the suit property was purchased from the funds of plaintif. He denied that the property at Dehradoon was purchased in the name of his mother out of joint funds. He volunteered that the said property was purchased from the funds of his father. He admitted that there was agricultural income out of land situated at Safidon. The land at Dehradoon was purchased around 1967 or 1968. He denied the suggestion that in the year 1959 the source of income of the family was the salary of the plaintif, income from agricultural land and the income from HUF business. He denied the suggestion that the plaintif had financially assisted to his father Sh. Sampat Rai in his business and agriculture. He denied that all the properties belonging to his father were of HUF. He denied that in 1959, his father was doing business and agriculture as HUF. He denied that the salary of the plaintif, income from the agricultural land and income from the HUF business was used and utilized for the purpose of property No. A-19, Ashok Vihar, Phase-I, Delhi. He denied that the salary of the plaintif was used to purchase the suit property. He denied that plaintif had always assisted financially to their father. He denied that the salary of the plaintif was sufficient to maintain his own family and their livelihood.

CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 30/57

50. D3W1 in his cross-examination admitted that plaintif had participated in the auction and submitted bid with respect to suit property in the year 1967. He volunteered that the plaintif did the same on the instructions and on behalf of his father. He is not aware whether there exists any document to show that his father instructed the plaintif to participate in the auction and give bid. He volunteered that Plaintif in several documents has mentioned that he did the same on behalf of their father to DDA. He denied that no such document is existence as stated by him. He denied that plaintif has participated in the auction for himself. He denied that the plaintif wanted to use his own funds to purchase the suit property. He denied that he is deposing falsely with respect to the fact that plaintif participated in the auction on behalf of his father and the money of his father was utilized for purchasing the suit property. He denied that he is deposing falsely with respect to the fact that at that time the intention of the plaintif has turned bad. He denied that he is deposing falsely that plaintif dishonestly wanted to grab the money of their father Sh.Sampat Rai. He denied the suggestion that he is deposing falsely that the plaintif gave bid in his own name unauthorizedly. He denied that after the death of their father, they all three brothers became the co-owner of suit property.

51. D3W1 further deposed in his cross-examination that his father was Class III contractor however, he used to work as Class I Contractor. He had filed a letter of CPWD in this respect already exhibited as Ex. D3W1/20. He denied the suggestion that his father was working as Class I Contractor. He did not know whether his father had mortgaged the CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 31/57 agricultural land situated in Safido, Distt. Jind, Haryana. He did not know whether any attachment proceedings had been initiated qua the alleged mortgaged properties. He did not know whether the Bank of India, Vishakhapatnam Branch had initiated any attachment proceeding against his father. He is not aware whether Sh. B.M. Gupta, had participated in the auction conducted by DDA in the year 1967. He volunteered that all afairs done by plaintif on behalf of his father. He has already on record the relevant documents for the authorization of his father to the plaintif. The witness has been shown the file but no such document is available in the court file. He denied that suggestion that Sh. B.M. Gupta had never acted upon the instructions of his father.

52. D3W1 in his cross-examination further deposed that he does not know whether initially the plot was allotted in the name of plaintif. He admitted that later on the plot was transferred in the name of his father. He volunteered that the plaintif had given NOC to the DDA and thereafter the plot was transferred in the name of his father. He did not know whether the plaintif had paid the bid amount or not. He denied the suggestion that there was an existence of HUF in their family. It is not in his knowledge whether he had filed any document to the efect to show that his father had given money to plaintif to participate in bid. He has no proof to show that his father had given money to the plaintif to participate in the bid. He denied the suggestion that the plaintif had participated in the bid from his own money and had never taken any assistance from his father. He denied that to maintain harmony in the family, the plaintif had transferred the property in the name of his father.

CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 32/57

53. D3W1 in his cross-examination further deposed that except the suit property all brothers have equal rights in the properties which was belong to his parents. He admitted that the house of the plaintif is situated at A-66, Lok Vihar, Pitampura, Delhi. He volunteered that the plaintif had relinquished his right in the suit property to purchase the house bearing no. A-66, Lok Vihar, Pitampura, Delhi. He does not have any document to the efect to show that the plaintif had relinquished his right in the suit property in order to purchase the house bearing no. A-66, Lok Vihar. He denied that plaintif had purchased the house bearing no. A-66, Lok Vihar, as his own property from his own funds. He has not filed any document on record to the efect to show that his father had been giving the monetary help to plaintif from time to time as his financial position was not very sound. He volunteered that it might be in the passbook of plaintif. The Will dated 10.02.1993 was executed in Rohtak. He admitted that in the year 1993 he was residing in Delhi. He had never resided at Rohtak. His father used to stay all places i.e Delhi, Dehradoon and Rohtak. He admitted that his father was admitted in PGI Rohtak due to fracture for two days only. He has not filed any document regarding the admission in hospital for two days only but he can produce the same. He denied that when the Will dated 10.2.1993 was executed when his father was not in the fit state of mind and without his consent.

54. D3W1 in his cross-examination further denied the suggestion that plaintif had paid a sum of Rs. 14,000/- towards the property tax which was withdrawn from the saving account bearing no. 534, Nainital Bank, Pitampura, CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 33/57 Delhi maintained by his wife. He denied that plaintif has no right in the suit property. He cannot either admit or deny whether plaintif had invested any money in the property in question at the time of bid. He volunteered that his father had contributed the entire sale consideration of the suit property. He admitted that his father had executed a Will initially while staying at Dehradoon and thereafter the Will in question was executed by him. He admitted that plaintif was government employee. He did not know whether the salary of the plaintif was sufficient for maintaining his family or not. He admitted that younger son of plaintif is settled in U.K. He denied that plaintif had a sound financial position since his employment. He denied the suggestion that he had deposed falsely with respect to the fact that his father was physically fit.

55. D3W1 in his cross-examination denied the suggestion that plaintif had deposited the money in respect of suit property on diferent occasions. He denied that the plaintif had deposited the penalty amount with DDA with respect to suit property. He denied that his father had no right to execute the will with respect to the suit property as plaintif has invested his own money in suit property. He has no knowledge whether any notice regarding the partition of the suit property was got issued by the plaintif to him as well as his other brother on 16.06.1997. He admitted that he has not placed any report on record with respect to the beatings given by the plaintif to his mother. He denied that plaintif never gave any beatings to mother of the parties at any point of time as stated by him in his affidavit. He denied that his father used to remain under debt and plaintif used to help CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 34/57 him financially at diferent point of time. He admitted that plaintif has not filed any suit for partition of land situated at Safidon, Haryana and house at Dehradoon. The property at Dehradoon is in the name of his mother. To a specific question that plaintif has not filed suit against the properties situated at Safidon, Haryana, because the property was already been partitioned after death of your father, he replied that it is correct as per Will. He denied the suggestion that he has filed a false affidavit for his evidence. He denied the suggestion that plaintif has a 1/3rd share in the suit property.

56. D3W2 Sh. Bharat Bhushan Jain deposed that he has seen original Will dated 10.02.1993 from the judicial record, which is already exhibited as Ex. PW1/D3X5, the same bears his signatures at point A already marked in red colour on page no.3. He identifies signatures of Sh. Sampat Rai on the said Will which are at points A, B & C already marked in blue colour on all the pages of the said Will. He also identifies the signatures of other attesting witness of the said Will at point B already marked in red colour. He also identifies the signatures of petition writer on the said Will at point X. They all signed the said Will in the presence of each other.

57. D3W2 in his cross-examination deposed that deceased Sh. Sampat Rai was having permanent residence at Dehradoon. He knew him as he used to visit his son Sh.Prehlad Rai. He had met him about 5-7 days prior to signing of the Will Ex. PW1/D3X5. He expressed his desire to execute a Will. He told him whatever his wish he get it typed from the petition writer. He accompanied him to the CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 35/57 petitioner writer Sh. Umesh Sharma. He knew Sh. Umesh Sharma who was working for many years at Rohtak as petition writer. He along with deceased Sampat Rai and one Sanjay Jain went to the petition writer. He came from his house. Deceased Sampat Rai came from his own house separately. Sh. Sanjay Jain already reached at petition writer. He told him that he want to execute the Will on 10.02.1993. The deceased disclosed to him, his desire to execute Will at the shop of Sh. Prehlad Rai. Sh. Prehlad Rai was also present at that time. He did not discuss in whose favour he wish to execute the Will. He did not disclose to him about any previous Will executed by him. He denied the suggestion that deceased Sampat Rai executed a Will dated 10.04.1990 prior to present Will. The time was fixed to visit petition writer was about 1.00 p.m.. Sh. Sanjay Jain was not present at the time of fixing of the time. Sh.Prehlad Rai was the husband of sister of father of Sh.Sanjay Jain ('Fufa'). He never met wife of deceased Sampat Rai. He is Income Tax Advocate at Rohtak. He denied the suggestion that the Will Ex. PW1/D3X5 has been fabricated in collusion with Sh. Prehlad Rai and it does not bear the signatures of deceased Sampat Rai.

58. D3W3 Sh. Sanjay Kumar Jain deposed that he has seen original Will dated 10.02.1993 from the judicial record, which is already exhibited as Ex. PW1/D3X5 The same bears his signatures at point B on page no.3 already marked in red colour. He identifies signatures of Sh. Sampat Rai on the said Will which are at points A, B & C already marked in blue colour on all the pages of the said Will. He also identifies the signatures of other attesting witness of the said Will at point A already marked in red colour. Hes also identify the CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 36/57 signatures of petition writer on the said Will at point X. They all signed the said Will in the presence of each other. He also identify the signatures of 'Numbardar' on the said Will at point Y on the back side of the first page of the said Will.

59. D3W3 in his cross-examination deposed that he has not talked to Sh. Bharat Bhushan Jain during the lunch, who is the other witness examined today before lunch. Sh.Prehlad Rai was his 'Fufa' who has since expired. He can identify the signatures of Sh. Prehlad Rai. He has seen the document Ex. D3W3/PX1. The same is signed by Sh. Prehlad Rai at point A. He is not conversant with the signatures of Sh.Satish Kumar, the other brother of Sh.Prehlad Rai. Sh.Prehlad Rai was having motor parts business in Rohtak at Hissar Road, Rohtak. He does not know its number. He denied the suggestion that Sh. Prehlad Rai was doing the business of sale of old motor parts on the Patri on the road side and was not having any regular shop. He denied the suggestion that he is not aware of the number because he was not having any shop. There was no number of the shop of Sh. Prehlad Rai at that time. Deceased Sampat Rai used to reside at Dehradoon and sometime used to come to reside with his son at Rohtak for 2-3 months at a time. His House was at a distance of two 'Galies' from house of Sh. Prehlad Rai. He had met deceased Sampat Rai on the day of execution of the Will and thereafter he remained in Rohtak for two months when he met him thereafter he never met him during his lifetime.

60. D3W3 in his cross-examination further deposed that deceased Sampat Rai had disclosed his desire about 5-7 CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 37/57 days prior to execution of the Will. He was alone at that time. No other person was present. He told him that after 2-4 days he will get prepare the Will at Rohtak Tehsil. Deceased Sampat Rai told him on 10.02.1993 to visit the Rohtak Tehsil for execution of the Will. The Will was got prepared at Rohtak Tehsil. Deceased Sampat Rai and myself went together at about 1 or 1.30 p.m. He was present at the time of preparation of the Will. He told that prior to this Will he had executed another Will. He was not having the copy of the said earlier Will. Deceased was literate person and told about the earlier Will to the petition writer. The other attesting witness namely, Sh. Bharat Bhushan Jain came there when the Will was already got typed. He does not remember whether Sh. Bharat Bhushan Jain read the contents of the Will or not. He does not remember whether he had read the contents of the Will or not. He is graduate. He is doing transport business. He denied the suggestion that on the day of execution of Will he was selling old moter parts. Today he does not remember the period for which deceased Sampat Rai stayed at Rohtak. He admitted that in April, 1993 deceased Sampat Rai got fracture in his leg and he was hospitalized for the said treatment. Deceased Sampat Rai had not expressed any reason to execute the Will stated by him. He denied the suggestion that the Will Ex. PW1/D3X5 has been fabricated in collusion with Sh. Prehlad Rai & Sh.Bharat Bhushan Jain and it does not bear the signatures of deceased Sampat Rai.

61. D3W4 Sh. Ashok, JJA, Record Room (Sessions), Tis Hazari Courts deposed that as per report the summoned record has been weeded out. The report is Ex. D3W4/1 and CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 38/57 bears his signatures at point A. The report is prepared on the basis of Goshwara Register maintained by the concerned office. This witness has not been cross-examined.

62. D3W5 Sh. Yogesh Kumar, Stenographer, Income Tax Office, Ward-2 (3), Dehradun deposed the summoned record is not available in the Office and a letter issued by Sh.A. A. Khan, Income Tax Officer is Ex. D3W5/1 which bears the signature of Sh. A. A. Khan at point 'A' whose signature he can identify. This witness has not been cross-examined.

63. D3W6 Sh.Kashmiri Lal, Patwar Mohrar, Sadar Kanoongo Branch, DC Office, Jind, Haryana deposed that he has brought the summoned record which is a Intkal Register. At serial No. 6944, there is a entry with regard to mutation of agricultural land which was earlier in the name of Sh. Sampat Rai and the land was mutated on the basis of registered Will dated 10.02.1993 having registration No. 435. The photocopy of the same is placed on record as Ex. D3W6/A, original seen and returned. This witness has not been cross-examined.

64. D3W7 Sh. Sanjay Kumar, Halqa Patwari, Halqa Safedo, Revenue Department, Tehsil, Safedo, District Jind, Haryana deposed that he has brought the summoned record which is a Intkal Register. At serial No. 6944, there is a entry with regard to mutation of agricultural land which was earlier in the name of Sh. Sampat Rai and the land was mutated on the basis of registered Will dated 10.02.1993 having registration No. 435. The certified copy of the same is already exhibited as Ex. PW1/D3X2, original seen and returned. This witness has not been cross-examined.

CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 39/57

65. D3W8 Sh. Chetan, Registry Clerk,Sub Registrar Office/ Revenue Department, Tehsil Safedo, District Jind, Haryana deposed that he has brought the summoned record in which the office copy of sale deed is kept. The said sale deed was executed by Sh. Brij Mohan vide registration No. 3566 dated 28.03.2013 with respect to land situated at Safedo. The photocopy of the same is placed on record and the same is Ex. D3W8/1, original seen and returned. This witness has not been cross-examined.

66. D3W9 Sh. Parvesh, Record Keeper, Head Registration Branch, DC Office, Rohtak, Haryana deposed that the summoned record was destroyed in the year 1995 due to heavy flood in the area. A letter issued in this regard by Deputy Revenue Officer is Ex. D3W9/A which bears his signature at point 'A'. This witness has not been cross- examined.

67. D2W1 Sh. Nikhil Rai tendered his affidavit in evidence as Ex. D2W1/A, in which he reiterated the defence of the defendant no.2 taken in the written statement. He relied on the documents i.e. registered will dated 10.02.1993 already exhibited as Ex. PW1/D3/X5 and lease deed dated 03.07.1972 as Ex. D2W1/1. He also relied on the documents already exhibited by D3W1 Sh. Satish Kumar Singhal i.e. Ex. D3W1/1, Ex. D3W1/11, Ex. D3W1/2 and Ex. D3W1/24 (colly).

68. D2W1 Sh. Nikhil Rai in his cross-examination further deposed that he is sufering from speech problem since 2012. During the cross-examination, the court has given the observation that "the witness states that he has been CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 40/57 sufering from neuro disease thereby his speech has been afected and stammers while speaking. The witness understands the contents of his affidavit and written statement. Therefore, his examination is permitted".

69. His father died on 24.12.2008. He was around 30 years old at the time of his death. The affidavit was prepared by Counsel on his instructions. His paternal grand father had executed only one Will as per his knowledge. His grand father was working as contractor. As per Will his grand father having 11 acres agricultural land in Safidon, Jind and other land also in the name of his grand father at Safidon itself. It is incorrect that at the time of execution of the Will, his grand father was hospitalized in Rohtak Hospital. To a specific question that initially the Ashok Vihar property i.e. suit property was purchased by plaintif, he replied that as per his knowledge, the property was purchased by his grand father.

70. D2W1 Sh. Nikhil Rai denied the suggetion that suit property was purchased by the plaintif out of his own funds. He denied that entire consideration of the suit property was not paid by his paternal grand father. He denied that Will Ex. PW1/D3X5 dated 10.02.1993 was not duly executed by his grand father. As far as he knows, his grand father was not under any debt of Bank of India. He denied that at the time of execution of Will dated 10.02.1993, his grand father was not having healthy state of mind. He denied that at that time he was not fit for executing the said Will. He denied that his grand father was doing his business as HUF. He denied that the sale consideration of the suit property was paid out of the earning of the HUF business and CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 41/57 income from agricultural business of his grand father. He cannot tell the exact age diference between plaintif and his late father. He cannot say anything about when the plaintif had joined his service, his father was about 7 or 8 years.

71. D2W1 Sh. Nikhil Rai in his cross-examination further deposed that as far as he knows the financial position of plaintif was very poor and there was no occasion for the plaintif to send any financial to his grand father at the relevant time. As and when plaintif used to visit their house at Rohtak, his father used to help plaintif financially. At present he has no proof to show that such financial aid was made nor he can bring. He denied that he is deposing falsely with respect to financial aid to the plaintif and due to this reason he is unable to produce any proof in this regard. The proof relating to authorizing the plaintif by his grand father to participate in the bid/auction of the suit property are lying in the file of DDA. He denied the suggestion that there exists no such proof and he is deposing falsely in this regard. He denied that he has falsely deposed in his affidavit of examination in chief with respect to the fact that at the time of auction of the suit property, the plaintif's intention turned bad and he gave bid in his own name in an unauthorized manner. He admitted that he has not placed any proof relating to admission of the plaintif in front of his father with respect to his unauthorized act of participation in the bid of suit property. He can identify signature of his father. At point 'X' on Ex. PW1/6, the signatures are not of his father.

72. D2W1 Sh. Nikhil Rai in his cross-examination denied the suggestion that he is intentionally disputing the CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 42/57 signatures of his father on Ex. PW1/6. He denied that he has falsely deposed in para nos. 14 & 15 of his examination in chief affidavit Ex. D2W1/A. He was aware about the execution of Will dated 10.02.1993 soon after it was executed. He denied that plaintif joined the last rites of his grandfather. The agricultural land which was situated at Safidon, Haryana came into the equal 1/3rd share of plaintif, his late father and defendant no.3. He volunteered that the said shares are as per Will of his grandfather dated 10.02.1993 and rest of land is also lying there as it is. He denied the suggestion that plaintif had issued a legal notice to his late father and defendant no.3 to partition the suit property. He denied that since the plaintif was entitled to 1/3rd share in the agricultural land at Safidon, so he got 1/3 rd share in the same. He volunteered that it was as per Will of his grand father dated 10.02.1993. He denied that the plaintif got the Will mutated in the Revenue Record with respect to agricultural land situated at Safidon, Haryana. He has denied the suggestion that he has no personal knowledge about the purchasing the suit land i.e. A-19, Ashok Vihar, Delhi.

73. D11W1 Sh. Laxmi Narayan, Assistant Director, DDA tendered his affidavit in evidence as Ex. D11W1/A and deposed on the lines of the defence of the defendant no.11/DDA. He proved on record copy of allotment letter duly issued on 31.05.1968 as Ex. D11W1/1; consent letter dated 28.11.1968 in response to the DDA letter dated 12.11.1986 as Ex. D11W1/2 & Ex. D11W1/3; copy of perpetual lease deed issued on 03.07.1972 and registered on 28.07.1972 as Ex. D11W1/4 and the application dated 19.09.1994 for the mutation in the name of Sh.Prahlad Chand and Sh. Atish CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 43/57 Kumar Singhal along with copy of registered Will dated 10.02.1993 as Ex. D11W1/5 (colly).

74. D11W1 Sh. Laxmi Narayan in his cross-

examination done by Counsel for the plaintif deposed that he has no personal knowledge of the present case but he is deposing on the basis of record brought by him. In the cross- examination done by Ld. Counsel for the defendant no.3, he admitted that a letter dated 09.10.1968 was received in their office from the plaintif and the copy of the same is Ex. D11W1/D1. The same is accompanied by the affidavit of Sh.Sampat Rai, copy of the same is Ex. D11W1/D2. He admitted that in the entire file of the DDA, there is no document to show that there was any undivided Joint Hindu Family in any name as find mentioned in Ex. D11W1/D1 at point A to A. He denied the suggestion that Ex. D11W1/1 is not the allotment letter of the suit property.

75. D11W1 Sh. Laxmi Narayan in his cross-

examination by Ld. Counsel for the defendant no.3 further admitted that file which he has brought contains copy of Form c, copy of which is Mark A, copy of Form D, copy of which is Mark B, copy of letter dated 29.01.1983 issued by DDA to Sh.Sampat Rai, copy of which is Mark C, copy of letter dated 25.05.1983 issued by DDA to Sh.Sampat Rai, copy of which is Mark D, show cause notice dated Nil, and the copy of the same is Ex. D11W1/D3, original letter dated 03.11.1987 written by Sh.Sampat Rai to DDA, copy of which is Ex. D11W1/D4, letter dated 30.06.1983 written by Sh. Sampat Rai to DDA, copy of which is Ex. D11W1/D5, letter dated 08.06.1970 written by plaintif to DDA, copy of which is Ex.

CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 44/57 D11W1/D6, letter dated 05.09.1970 written by plaintif, copy of which is Ex. D11W1/D7, letter dated 30.11.1970 issued by DDA to Sh.Sampat Rai, copy of which is Ex. D11W1/D8, extension letter 03.04.1980 issued by DDA to Sh.Sampat Rai, copy of which is Ex. D11W1/D9, letter dated 14.11.1981 issued by DDA to Sh. Sampat Rai, copy of which is Ex. D11W1/D10. Ld. Counsel for the defendant no.2 adopted the cross-examination conducted on behalf of defendant no.3.

76. I have heard Sh. R.S. Kela, Counsel for the plaintif; Sh. Ajay Singh, proxy Counsel for Sh. Ajay Jain, Counsel for LRs of defendant no.2; Sh. Munish Gupta, Counsel for the defendant no.3; and Sh. Sanjay Sharma, Counsel for the defendant no.11/DDA. I have also gone through the written arguments filed on behalf of plaintif and defendant no.2 and perused the record.

ISSUE NO. 2

77. Issue no. 2 has been framed on the plea of the plaintif that his late father Sh. Sampat Rai was not competent and entitled to execute the Will dated 10.02.1993 Ex. PW1/D3X5. The burden or proof was on the contesting defendants. The contesting defendants in total examined 11 witnesses. The vital witnesses are D3W1 Sh. Satish Kumar Singhal and D11W1 Sh. Laxmi Narayan, Assistant Director, DDA. The testimony of D3W1 Sh. Satish Kumar Singhal, which is already discussed herein above in detail, the documents with regard to suit property proved. He proved the perpetual lease deed dated 03.07.1972 as Ex. D3W1/1, copy of possession letter dated 03.07.1972 as Ex. D3W1/2, copy CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 45/57 of letter of DDA dated 05.02.1979 as Ex. D3W1/3, copy of letter dated 18.07.1972 of DDA as Ex. D3W1/4, copy of its letter dated 24.08.1971 as Ex. D3W1/6. He further proved letter written written by late Sh. Sampat Rai to DDA as Ex. D3W1/7 dated 02.03.1971 and similarly other correspondence letters dated 02.05.1970 as Ex. D3W1/8, letter dated 29.04.1971 as Ex. D3W1/9 and letter dated 03.11.1987 issued by late Sh. Sampat Rai as Ex. D3W1/10. In the detailed cross-examination, there is no cogent, coherent evidence brought on record by the plaintif to challenged the veracity of these documents with regard to purchase of the suit property and registration of lease deed in the name of late Sh. Sampat Rai.

78. These documents further proved and corroborated by D11W1 Sh. Laxmi Naryan, Assistant Director, DDA, who had brought his DDA file in respect of suit property. He further proved the allotment letter dated 31.05.1968 as Ex. D11W1/1, consent letter dated 28.11.1968 as Ex. D11W1/2, another response letter of DDA dated 12.11.1968 as Ex. D11W1/3. He also proved the lease deed dated 03.07.1972. He further proved the correspondence between late Sh. Sampat Rai nd DDA, specially the letter dated 03.11.1987 as Ex. D11W1/D4. During the cross-examination by the plaintif, no document has been assailed. In my considered opinion, these documents establsihed and proved that suit property was allotted by DDA in the name of late Sh. Sampat Rai being the exclusive owner as a successful bidder and thereafter perpetual lease deed was also executed. It is pertinent to mention here that during the examination of D3W1 Sh. Satish Kumar Singhal, it is proved on record that CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 46/57 deceased Sh. Sampat Rai was Class-III Cotractor with CPWD and this fact is established vide letter Ex. D3W1/20 dated 17.08.1949. The fact further established that apart from suit property late Sh. Sampat Rai had also purchased other property including agricultural land at Safidon, Jind (Haryana).

79. On the other hand, plaintif averred that there was HUF and he had invested the money on the instructions of his father in purchase of the suit property. However, no document proved on record by the plaintif. He has not examined even a single witness to prove his plea that he invested in the purchase of properties in the name of his father. There is no documentary or oral evidence proved on record that there was existence of HUF and the suit property belongs to HUF. On the other hand, contesting defendants proved on the basis of above discussed, cogent, coherent evidence and DDA official's record that late Sh. Sampat Rai was the exclusive owner of the suit property. Hence, in my considered opinion, being the owner of the self acquired suit property, late Sh. Sampat Rai was competent to execute Will especially the Will Ex. PW1/D3X5 dated 10.02.1993. On the basis of above observation and discussion, issue no. 2 is decided in favour of contesting defendants and against the plaintif.

ISSUE NO. 1

80. The burden of proof of this issue is on the contesting defendants, who are relying the Will dated 10.02.1993 Ex. PW1/D3X5 of late Sh. Sampat Rai being genuine, legal and last Will. Before appreciating the evidence CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 47/57 led by defendants to prove the legality of the Will in question, let us peruse the law laid down by Hon'ble Apex Court in H. Venkatachala Iyengar Vs B.N. Thimmajamma & Others, 1959 AIR 443 decided on 13th November 1958 in which the Apex court laid down the following prepositions on the nature and standard of evidence required to prove a Will:-

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 No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 48/57

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.

CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 49/57 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 surrounded 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. "

81. Let us pursue the law laid down by Apex Court in recent judgment of Jagdish Chand Sharma vs. Narain Singh Saini, (2015) 8 SCC 615.

"19. The contentious pleadings and the assertions thereupon in the backdrop of the evidence as a whole have been analyzed. The pleading perspective notwithstanding, the purport and play of Section 63 of Indian Succession Act (hereinafter referred to as 'the Act') read with Section 68 and 71 of Indian Evidence Act, 1872 (hereinafter referred to as '1872 Act'), it would thus be apt, nay, imperative to refer to these legal provisions before embarking on the appreciation of evidence to the extent indispensable.

20. Section 63 of the Act and Sections 68 and 71 of the 1872 Act are thus extracted hereunder for ready reference:

20.1 Section 63 of the Act:

63. Execution of unprivileged wills - Every testatrix, 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) The testatrix shall sign or shall affix his CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 50/57 mark to the will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testatrix, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.

(c) The will shall be attested by two or more witnesses, each of whom has seen the testatrix sign or affix his mark to the will or has seen some other person sign or will, in the presence and by the direction of the testatrix, or has received from the testatrix a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the will in the presence of the testatrix, 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.

20.2 Section 68 & 71 of the 1872 Act:

68. Proof of execution of document required by law to be attested - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

71. Proof when attesting witness denies the execution - If the attesting witness denies CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 51/57 or does not recollect the execution of the document, its execution may be proved by other evidence.

21. As would be evident from the contents of Section 63 of the Act that to execute the will as contemplated therein, the testatrix would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testatrix or the signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as will. The section further mandates that the will shall have to be attested by two or more witnesses each of whom has seen the testatrix sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testatrix, or has received from the testatrix, personal acknowledgment of a signature or mark, or the signature of such other persons and that each of the witnesses has signed the will in the presence of the testatrix. It is, however, clarified that it would not be necessary that more than one witness be present at the same time and that no particular form of attestation would be necessary.

22. It cannot be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of a will under the Act are mandatory in nature, so much so that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property. 22.1 In the evidentiary context Section 68 of the 1872 Act enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of the court and capable of giving evidence proves CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 52/57 its execution. The proviso attached to this section relaxes this requirement in case of a document, not being a will, but has been registered in accordance with the provisions of the Registration Act, 1908 unless its execution by the person by whom it purports to have been executed, is specifically denied.

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 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 would be, to scrutinize the evidence adduced by the parties."

CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 53/57

82. Now applying the well settled principle of law in the present case in order to establish the important ingredients of Section 63 of Indian Succession Act read with Section 68 of Indian Evidence Act. The contesting defendants examined D3W2 Sh. Bharat Bhushan Jain and D3W3 Sh.Sanjay Kumar Jain, two attesting witnesses. Their detailed testimony has been discussed herein above in detail. Both the attesting witnesses Sh. Bharat Bhushan Jain and Sh.Sanjay Kumar Jain identified the signatures of deceased testator and their respective signatures. Sh. Bharat Bhushan Jain is Income Tax Advocate and Sh.Sanjay Kumar Jain is the relative of the deceased testator. D3W3 Sh. Sanjay Kumar Jain also identified the signatures of one 'Nambardar', who also signed the Will Ex. PW1/D3X5 at point Y as per procedure at Rohtak, Haryana. In the detailed cross-examination, both the witnesses explained how and in what circumstances the deceased testator got executed and registered the Will Ex. PW1/D3X5. Deceased had expressed his desire to Sh.Bharat Bhushan Jain for executing a Will. On the day of execution and registration, both the witnesses reached there.

83. It is pertinent to mention here that deceased testator late Sh. Sampat Rai in the Will Ex. PW1/D3X5 specifically revoked the earlier dated 06.04.1990. The Will is in regard to complete immovable estate of deceased including agricultural land at Safidon, Jind (Haryana). Although plaintif did not got himself presented in the witness box and his cross-examination could not be completed. However, defendants in their evidence brought more vital fact with regard to admission of Will Ex. PW1/D3X5 by the plaintif and he acted upon the same to get mutation of CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 54/57 agricultural land at Safidon, District Jind, Haryana in his name on the basis of said Will Ex. PW1/D3X5. D3W7 Sh. Sanjay Kumar, Halqa Patwari from Revenue Department, Safedon appeared and proved revenue record as Ex. Pw1/D3X2 having entry no. 6944 and sale deed dated 28.03.2013 proved by D3W8 Sh. Chetan, Registry Clerk as Ex. D3W8/1. As per Ex.D3W6/A, revenue record, the plaintif applied for mutation.

84. There is a specific observation and submission of a copy of registered Will dated 10.02.1993 by the plaintif with the revenue authorities for getting the mutation of the agricultural land in his favour as per Will. The revenue authorities accordingly mutated the agricultural land as per share of the plaintif in his name. The plaintif himself admitted and acted upon the registered Will Ex. PW1/D3X5 of his father late Sh. Sampat Rai. His averment in the suit comes out to be false and there is a concealment of this vital and important fact by the plaintif. The fact is further corroborated by the sale deed Ex.D3W8/1, which was executed by plaintif himself by selling 3 Kanal 13.6 Marla of agricultural land, of which he become the owner after mutation on the basis of Will dated 10.02.1993. These documents established beyond reasonable doubt that plaintif had full knowledge of the Will in question and also taken benefit being the beneficiary.

85. In my considered opinion, on the basis of above observation and discussion, the contesting defendants proved and established on record that late Sampat Rai had executed valid, legal and last Will Ex. PW1/D3X5. Accordingly, issue is decided against the plaintif and in favour of contesting defendants.

CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 55/57 ISSUE NO. 4

86. The burden to prove this issue is on the plaintif, who is claiming a decree of declaration and partition. It has already been observed that the plaintif could not completed his own examination and there is a detailed order of my Ld.Predecessor in this regard dated 12.05.2016. He has not summoned any other witness or examined any other witness to prove his case. In the absence of documentary or oral evidence, the plaintif is not able to prove his averment made in the plaint that money received from his salary, agricultural land and from HUF business was utilized to purchase the suit property. The averment that till the filing of the present suit, he was not in the knowledge of second Will dated 10.02.1993 Ex. PW1/D3X5, it is established on record that he acted upon the said Will and become owner of agricultural land and sold the same.

87. The plaintif also not proved on record how the suit property was HUF property and there is no evidence led to prove that there was HUF business as well. There is no iota of evidence proved by plaintif to establish that the money contributed from him from HUF business and agricultural income was the main source for purchase of suit property. On the other hand while discussing issue no.2, it stands proved on record that late Sh. Sampat Rai acquired the suit property at his own and his self acquired property. Hence, on the basis of findings on issue nos. 1 & 2, the plaintif failed to prove that the suit property is joint property and plaintif is entitled for partition. Accordingly, issue no. 4 is decided against the plaintif and in favour of contesting defendants.

CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 56/57 ISSUE NO. 5 (RELIEF)

88. In view of my findings on issue no. 1, 2 and 4, it is held that plaintif is not entitled to any relief in the present suit. The suit is dismissed with cost of Rs.25,000/-, which shall be equally distributed among contesting defendants.

89. Decree Sheet be prepared accordingly.

90. File be consigned to Record Room.

Announced in the open court today the 18th November, 2017.

(Sanjay Kumar) ADJ-02,West/Delhi 18.11.2017 CS No. 41/17/97 (New No.8000/16) Brij Mohan Gupta vs. Sona Devi & Ors. 57/57