Delhi District Court
Sh. Ravinder Gupta (Since Deceased) vs (1) Sh. Virender Mohan (Since Deceased) on 18 August, 2022
IN THE COURT OF MS. CHARU AGGARWAL
ADDITIONAL DISTRICT JUDGE-02: CENTRAL DISTRICT:
TIS HAZARI COURT:DELHI.
CS No. 618439/2016
In the matter of:-
Sh. Ravinder Gupta (Since deceased)
S/o Late Sh. Mahendra Nath Goel
R/o 4582/52, Rehgarpura,
Arya Samaj Road, Karol Bagh,
New Delhi-110005.
(Through his LR Sh. Rocky Ravinder Gupta
impleaded vide order dated 04.11.2015) ......... Plaintiff.
Vs.
(1) Sh. Virender Mohan (Since deceased)
S/o Late Sh. Mahendra Nath Goel,
R/o H. No. 2767, Gali No. 22,
Beadonpura, Karol Bagh,
New Delhi-110005.
(Through his LRs, who are
defendants no. 17 to21 in the suit)
(2) Sh. Satinder Kumar
S/o Late Sh. Mahendra Nath Goel,
Utrade Group Ny Inc.
247, West 38th Street, Second Floor,
Ny-10018 (USA)
(3) Smt. Shanti Devi
W/o Sh. G. L. Bansal
R/o A-37, Kailash Colony,
New Delhi-110048.
(4) Smt. Saroj Kumari
W/o Sh. K. K. Gupta
R/o 59-D,Block-Ad,
Shalimar Bagh,
New Delhi-110052.
Digitally signed by
CHARU
CHARU AGGARWAL
Ravinder Gupta Vs. Virender Mohan & Ors. AGGARWAL Page 1 of 27
Date: 2022.08.20
16:05:39 +0530
(5) Smt. Sulochana Mittal
W/o Sh. Bhimsain Mittal,
R/o 16, Vijay Block,
Laxmi Nagar, New Delhi.
(6) Smt. Subhashini Gupta,
W/o Sh. G. K. Gupta,
R/o Bn-23, Poorvi Shalimar Bagh,
New Delhi-110052.
(7) Sh. O. P. Bansal,
Husband of late Smt. Shakuntala Devi,
R/o Du-138, Pitampura,
New Delhi.
(8) Smt. Alka Vaddakkan,
R/o H-1502, 2nd Floor, Chitranjan Park,
New Delhi-110005.
(9) Sh. Rajiv Bansal,
S/o Late Smt. Shakuntala Devi,
R/o Du-138, Pitampura,
New Delhi.
(10) Smt. Rekha Bansal
D/o Late Smt. Shakuntala Devi,
R/o Du-138, Pitampura,
New Delhi.
(11) Smt. Seema Bansal
D/o Late Smt. Shakuntala Devi,
R/o Du-138, Pitampura,
New Delhi.
(12) Sh. D. K. Gupta
Husband of late Smt. Satya Kumar Gupta
R/o A-2/27, Paschim Vihar,
New Delhi.
Digitally signed
by CHARU
CHARU AGGARWAL
AGGARWAL Date: 2022.08.20
16:05:49 +0530
Ravinder Gupta Vs. Virender Mohan & Ors. Page 2 of 27
(13) Sh. Atul Gupta
S/o Late Smt. Satya Kumari Gupta
R/o A-2/27, Paschim Vihar,
New Delhi.
(14) Sh. Rajeev Gupta
S/o Late Smt. Satya Kumari Gupta
R/o A-2/27, Paschim Vihar,
New Delhi.
(15) Sh. Amit Gupta
S/o Late Smt. Satya Kumari Gupta
R/o A-2/27, Paschim Vihar,
New Delhi.
(16) The Delhi Development Authority
Through Its Vice Chairman,
Vikas Sadan, INA Market,
New Delhi.
(17) Sh. Surender Mohan
S/o Sh. Virender Mohan,
R/o B-914, Kings Ride Lane,
Houston, Tx 77079, USA.
(18) Sh. Pradeep Kumar
S/o Sh. Virender Mohan
R/o 3582, Breezy Point Driver,
Okemos, Mi 48864-5966, USA.
(19) Sh. Rajinder Mohan
S/o Sh. Virender Mohan,
R/o 4, Partridge Road,
Mansfield, Ma 02048, USA.
(20) Sh. Dharmender Mohan
S/o Sh. Virender Mohan
R/o 10121, Windmill Lake Boulevard,
Apt 1001, Houston, Tx 77055, USA.
Digitally signed
by CHARU
CHARU AGGARWAL
AGGARWAL Date: 2022.08.20
16:05:58 +0530
Ravinder Gupta Vs. Virender Mohan & Ors. Page 3 of 27
(21) Smt. Rameshwari Devi
W/o Sh. Virender Mohan
R/o 2767/22, Beadon Pura,
Karol Bagh, New Delhi-110005. ..... Defendants
Date of institution : 22.02.2001
Date of decision : 18.08.2022
JUDGMENT
1. The present suit has been filed by the plaintiff against his real siblings, seeking partition of the property bearing Khasra No. 1339/48, Block-P Municipal No. 2767, Gali No. 22, Beadon Pura, Karol Bagh, New Delhi-110005 (hereinafter referred as "Suit Property").
2. The suit was originally filed by the plaintiff in Hon'ble Delhi High Court, but due to enhancement of pecuniary jurisdiction of Delhi District Court, the suit was transferred from Hon'ble High Delhi Court to District Court, Central District, vide order dated 11.12.2003 of Hon'ble High Court and was assigned to this court.
3. At the outset, it would be relevant to mention here that plaintiff is claiming share in the property of his father late Sh. Mahendra Nath Goel, who has expired on 01.06.1986. Sh. Mahendra Nath Goel had total 9 children i.e. 3 sons and 6 daughters. Plaintiff and defendants no. 1 & 2 are his three sons and defendants no. 3 to 6 are daughters of late Sh. Mahendra Nath Goel. Prior to filing of the suit by the plaintiff, his two sisters have already expired, therefore, the defendants no. 7 to 15 are Legal Heirs (LRs) of his two deceased sisters. Defendant no. 16 is DDA, who has been impleaded since after the death of late Sh. Mahendra Nath Goel, the property has been Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date:
2022.08.20 16:06:06 +0530 Ravinder Gupta Vs. Virender Mohan & Ors. Page 4 of 27 mutated in the names of defendants no. 17 to 20, who are nephews of plaintiff and sons of defendant no. 1. Defendant no. 21 is wife of defendant no. 1 and mother of defendant no. 17 to 20.
4. The plaintiff has filed the suit for partition, Declaration, cancellation, possession, damages and rendition of accounts against the defendants in respect of suit property on the ground that the suit property was owned by Hindu Undivided Family (HUF) consisting of his grandfather, father & paternal uncle (Chacha) and after the death of all the members of HUF, plaintiff and his siblings have 1/9th share each in the suit property for which this suit has been filed.
5. The case of the plaintiff is that the suit property belongs to Hindu Undivided Family (HUF), formed by his grandfather Sh. Ram Prasad during his lifetime consisting of he himself, his brother Sh. Manphool Singh and son Sh. Mahendra Nath Goel (plaintiff's father). The said HUF was doing a business of money lending and grocery shop from the property at Village Bahadurgarh. Plaintiff's grandfather Sh. Ram Prasad died in the year 1906 leaving behind his brother Sh. Manphool Singh and his minor son Mahendra Nath Goel, who at that time was 6 years old, therefore, Sh. Manphool Singh became Karta of HUF and guardian of his minor nephew. Sh. Manphool Singh brought up & educated plaintiff's father Sh. Mahendra Nath Goel and also performed his marriage from the HUF Funds. It is stated that in the year 1930, HUF acquired suit property from the funds of HUF. Sh. Manphool Singh is stated to have died in or about 1945, and after his death, plaintiff's father late Sh. Mahendra Nath Goel became the sole surviving member of the HUF, therefore, the entire suit property devolved upon him though belongs to joint Hindu family. It is stated Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date:
Ravinder Gupta Vs. Virender Mohan & Ors. 2022.08.20 Page 5 of 27 16:06:14 +0530 that after the death of plaintiff's father late Sh. Mahendra Nath Goel on 01.06.1986, defendant no. 1 is in the sole occupation of the entire suit property and recently plaintiff came to know that defendant no. 1 has got the mutation of the suit property in the name of his sons i.e. defendants no. 17 to 20, on the basis of Will dated 29.06.1982 of Late Sh. Mahendra Nath Goel. The gravamen of the plaintiff is that he was never informed regarding execution of any Will by the testator, therefore, he has alleged that the Will purported to be executed by late Sh. Mahendra Nath Goel is a forged and fabricated document, therefore, in June-2000, he requested the defendant no. 1 to partition the suit property, however, same was denied by him, hence, the present suit.
6. In response to the summons of the suit, the defendant no. 1 filed his written statement denying the claim of the plaintiff in toto on the ground that the suit property was the self acquired property of late Sh. Mahendra Nath Goel and there was no HUF in the family, therefore, the question of suit property belonging to HUF is completely baseless. He has also denied that late Sh. Mahendra Nath Goel died intestate but he has propounded a registered Will dated 29.06.1982, executed by late Sh. Mahendra Nath Goel in respect of suit property in favour of his four grand children (defendants no. 17 to 20), sons of defendant no. 1.
7. The defendant no. 1 has stated that there was no Manphool Singh in their family and in order to explain that no such Manphool Singh was brother of his grandfather, he has given the brief history of the family stating that parents of late Sh. Mahendra Nath Goel expired when he was just 3-4 years old and they had no property Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.08.20 Ravinder Gupta Vs. Virender Mohan & Ors. 16:06:23 +0530 Page 6 of 27 in the village. Sh. Mahendra Nath Goel was brought up by the village elders. He was a meritorious child, therefore, the village people arranged scholarship for his education and he completed his studies from Lahore from the funds arranged by the Mittal families of the village. He completed his post graduation in History from Ramjas College, Delhi. He has claimed ownership of his four sons in the suit property on the basis of Will dated 29.06.1982.
8. It would be pertinent to mention here that suit has been contested only by the defendant no. 1 and his sons (defendants no. 17 to 21) since the Will dated 29.06.1982 of Late Sh. Mahendra Nath Goel, is in their favour.
Most of the other defendants either remained ex-parte or few of them who filed their written statements supported the case of defendant no. 1 and his sons that late Sh. Mahendra Nath Goel was the exclusive owner of the suit property who during his lifetime executed the Will dated 29.06.1982, in favour of his grand children (defendants no. 17 to 20), sons of defendant no. 1.
9. Replication to the written statement of defendant no. 1 has been filed by the LRs/son of plaintiff in the year 2016 after the death of original plaintiff, reiterating and reaffirming the same facts as stated in the plaint.
10. After completion of the pleadings, vide order dated 03.03.2008, the following issues were framed:-
1. Whether suit against defendant no. 16 is bad for want of notice U/s 53 of Delhi Development Act?OPD.
2. Whether relief of cancellation of Digitally signed by CHARU CHARU AGGARWAL Ravinder Gupta Vs. Virender Mohan & Ors. AGGARWAL Date: Page 7 of 27 2022.08.20 16:06:32 +0530 mutation of suit property on the basis of registered Will dated 29.06.82 is barred under Punjab Land Revenue, 1887?OPD.
3. Whether the suit has been properly valued for the purposes of Court fee and jurisdiction and appropriate Court fee has been affixed on the plaint?OPP.
4. Whether the suit property is the joint Hindu Family property of which late Sh. Mahendra Nath Goel was the Karta? OPP.
5. Whether Sh. Mahendra Nath Goel had any bequeathable interest in the suit property and that he had executed a registered Will dated 29.06.82 in respect thereof in favour of their grand sons Defendants no. 17-20?OPD.
6. Whether plaintiff is entitled to the decree of partition of the portion of suit property?OPP.
7. Whether plaintiff is entitled to decree of possession of the portion of suit property falling to his share on partition?OPP.
8. Whether plaintiff is entitled to decree for cancellation of mutation in favour of defendants no. 17-20 by defendant no. 16? OPP.
9. Whether plaintiff is entitled to decree for rendition of accounts and thereby recover Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date:
Ravinder Gupta Vs. Virender Mohan & Ors. 2022.08.20 Page 8 of 27 16:06:40 +0530 damages for use and occupation/enjoyment of the suit property according to his share? OPP.
10. Relief.
11. The plaintiff has examined himself in his evidence as PW-
1. He has not relied upon any document. He filed his affidavit in evidence reiterating and reaffirming the same facts as stated in the plaint. After the death of the plaintiff, his son Sh. Rocky Ravinder Gupta also got examined himself in rebuttal evidence as PW-2. He also reiterated and reaffirmed the same facts in his affidavit as contained in the plaint.
12. The defendant no. 1/defendants no. 17 to 20, have examined three witnesses in their evidence. DW-1 is wife of defendant no. 1 (mother of defendants no. 17 to 20). DW-2 Smt. Salochna Mittal (defendant no. 5 in the suit), sister of plaintiff. DW-3 is Sh. Yogesh Saxena (it seems that this DW has been inadvertently numbered as DW-4 instead of DW-3). DW-2 & DW-3 have been examined by defendant no. 1/defendants no. 17 to 20 as attesting witnesses on the Will dated 29.06.1982.
Defendant no. 1/defendants no. 17 to 20, have relied upon the following documents:-
(i) Registered Will dated 29.06.1982 Ex.
PW-1/X-2;
(ii) Mutation Certificate Ex. DW-1/1;
(iii) Pension pass book Ex. DW-1/2;
(iv) Letter issued by Post Master Ex.DW-
Digitally signed
by CHARU
CHARU AGGARWAL
Ravinder Gupta Vs. Virender Mohan & Ors. AGGARWAL Date:
Page 9 of 27 2022.08.20 16:06:50 +0530 1/3;
(v) Reply to the legal notice Ex. DW-1/4.
13. DW-2 Ms. Salochna Mittal has relied upon the following documents:
(i) Registered Will dated 29.06.1982 Ex.
PW-1/X-2;
(ii) Registered Will dated 02.03.1966 Ex.
DW-2/1;
(iii) Registered Will dated 05.05.1975 Ex.
DW-2/2.
All three Wills executed by late Sh. Mahendra Nath Goel, in favour of defendants no. 17 to 20.
14. DW-3 Sh. Y. L. Sachdeva has relied upon the following document:-
(i) Registered Will dated 29.06.1982 Ex.
PW-1/X-2.
15. I have heard counsels for the parties.
16. Ld. Counsel for plaintiff has argued that defendants no. 17 to 20 have failed to prove the execution of Will (Ex.PW-1/X-2) by late Sh. Mahendra Nath Goel since DW-1 Smt. Rameshwari Devi could not identify the signatures of the testator on the Will. DW-2, the attesting witness, at number of places in her cross examination has stated that the last Will of his father was hand written but the Will (Ex.PW-1/X-2) relied upon by the defendants is a typed Will and as per Ld. Counsel, the statement of DW-2 regarding hand written Will has completely demolished the defence of the defendants regarding Digitally signed by CHARU CHARU AGGARWAL Ravinder Gupta Vs. Virender Mohan & Ors. AGGARWAL Date: Page 10 of 27 2022.08.20 16:07:00 +0530 execution of Will by testator. He has stated that the perusal of Will in question also shows that the testator has mentioned names of all his children in the said Will except of DW-2 Smt. Salochna Mittal, who was attesting witness on the Will, also raises serious doubt on the execution of Will. It is further argued that the another attesting witness DW-3 also failed to prove the identity of the testator since during his cross examination, he specifically said that he did not personally check the identity proof of the testator.
17. Ld. Counsel for defendants no. 17 to 20 has argued that plaintiff has failed to prove the existence of HUF as there was no person by the name of Manphool Singh in their family and late Sh.
Ram Prasad, father of late Sh. Mahendra Nath Goel expired when the later was just 6 years old, therefore, the question of forming any HUF does not arise at all. He has also argued that otherwise also, the plaintiff even from his evidence could not prove that any person by the name of Sh. Manphool Singh existed in their family. He has pointed out that during cross examination, he (plaintiff/PW-1) has stated that when Sh. Manphool Singh was 35 years old, the plaintiff was only 8 years old, hence, the age difference between plaintiff and Sh. Manphool Singh was 27 years old, then the alleged Manphool must have been born in 1902 and plaintiff's father admittedly born in the year 1900, hence, it is argued that as per plaintiff's own admission, his father was elder to Sh. Manphool Singh, therefore, Manphool Singh could not become the Karta of the alleged HUF. It is argued that otherwise also the minor cannot become the Karta of the family since as per own showing of the plaintiff, alleged Sh. Manphool Singh as well as Sh. Mahendra Nath Goel, both were minor in the year 1906, Digitally signed by CHARU AGGARWAL CHARU Date: Ravinder Gupta Vs. Virender Mohan & Ors. AGGARWAL 2022.08.20 Page 11 of 27 16:07:07 +0530 when late Sh. Ram Prasad, grandfather of plaintiff expired. It is argued that the Will (Ex.PW-1/X-2) is a 30 years old document, therefore, as per Section 90 of Indian Evidence Act, there is presumption that the document has been executed by the person whose name is reflected in the document. Ld. Counsel has further argued that the Will (Ex.PW- 1/X-2) is a registered document, duly proved by both the attesting witnesses of the said Will. It is also argued that late Sh. Mahendra Nath Goel had expired in the year 1986 and the plaintiff has filed the suit after 15 years of his death in the year 2001, only to harass the defendants no. 17 to 20. He has further argued that prior to filing of the suit, plaintiff issued a legal notice dated 17.06.2000 (Ex.PW-1/X-1) to defendant no. 1 and defendants no. 17 to 20, in which he mentioned about the Will of 1982 of late Sh. Mahendra Nath Goel but in the suit/plaint, he nowhere whispered about the said Will and shown his complete ignorance indicates the intention of plaintiff to grab the suit property. Ld. Counsel has pointed out that plaintiff came up with a averments regarding Will by moving application U/o 6 Rule 17 CPC after filing of written statement by the defendants. He has further argued that the intention and willingness of late Sh. Mahendra Nath Goel to bequeath the suit property in favour of defendants no. 17 to 20, is manifest not only from the Will in question but also from his earlier two Will (Ex. DW-2/1 and Ex.DW-2/2) both dated 02.03.1966 and 05.05.1975.
18. The arguments advancement by both the counsels are considered. Written arguments perused alongwith other record. My issue-wise finds are as under:-
Issue No. 1:- Whether suit against defendant no. 16 is bad for want of Digitally signed by CHARU CHARU AGGARWAL Ravinder Gupta Vs. Virender Mohan & Ors. AGGARWAL Date: Page 12 of 27 2022.08.20 16:07:14 +0530 notice U/s 53 of Delhi Development Act?OPD Issue No. 2:- Whether relief of cancellation of mutation of suit property on the basis of registered Will dated 29.06.82 is barred under Punjab Land Revenue, 1887?OPD.
& Issue No. 3:- Whether the suit has been properly valued for the purposes of Court fee and jurisdiction and appropriate Court fee has been affixed on the plaint?OPP.
19. The onus to prove issue no. 1 & 2 was upon the defendants and onus to prove issue no. 3 was upon the plaintiff but both the counsels during the course of arguments submitted that they do not want to press these issues and they be accordingly disposed off. In view of the submissions of Ld. Counsels for both the parties, the issues no. 1 to 3 are disposed off as not pressed.
Issue no. 4:- Whether the suit property is the joint Hindu Family property of which late Sh. Mahendra Nath Goel was the Karta? OPP.
20. The onus to prove issue no. 4 was upon the plaintiff, however, during the course of arguments, counsel for plaintiff submitted that the plaintiff does not want to press this issue and wants to confine his claim only on the ground that the suit property was the self acquired property of his father late Sh. Mahendra Nath Goel, who died intestate on 29.06.1986 and after his death, all his nine children including plaintiff have inherited 1/9th share each in the suit property and plaintiff is claiming his said 1/9th share by way of this suit.
In view of the submissions of counsel for plaintiff that issue no. 4 is not pressed, the court is not required to give any finding on the said issue as it seems that the plaintiff has conceded that he Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.08.20 Ravinder Gupta Vs. Virender Mohan & Ors. 16:07:23 +0530 Page 13 of 27 could not prove that the suit property was a Hindu Joint Family property but keeping in mind that the entire case of the plaintiff was based on the factum that the suit property was HUF property and throughout trial, he maintained his said stand, therefore, this court deems it appropriate to record the findings on issue no. 4, in order to give logical end to the dispute between the parties.
21. The plaintiff has claimed the suit property to be joint Hindu Family formed by his grandfather late Sh. Ram Prasad alongwith his brother Sh. Manphool Singh and son Sh. Mahendra Nath Goel. The said HUF had one property in village Bahadurgarh from which the business of money lending and grocery shop used to be run. It is stated by the plaintiff that his grandfather Late Sh. Ram Prasad expired in the year 1906, leaving behind his brother Sh. Manphool Singh and one child/son Sh. Mahendra Nath Goel (plaintiff's father). Sh. Mahendra Nath Goel at the time of death of his father was only six years old, therefore, Sh. Manphool Singh, uncle of Sh. Mahendra Nath Goel, became Karta of HUF. He brought up, gave education and married plaintiff's father out of the HUF funds. In the year 1930, HUF acquired a plot (suit property) on which construction was carried out from the funds of HUF. It is further stated by him that Sh. Manphool expired in the year 1945 and after his death plaintiff's father alone acquired the suit property, hence, plaintiff and his all siblings have 1/9th share each in the suit property.
22. The plaintiff is claiming the existence of HUF amongst his grandfather, father and paternal uncle prior to 1956, therefore, this court would briefly mention the law in existence on HUF prior to coming into force Hindu Succession Act, 1956, as taken note by Digitally signed by CHARU CHARU AGGARWAL Ravinder Gupta Vs. Virender Mohan & Ors. AGGARWAL Date:
Page 14 of 27 2022.08.20 16:07:33 +0530 Hon'ble Delhi High Court in "Sunny & Ors. Vs. Raj Singh & Ors", 225 (215) DLT 211, in para no. 7 of the judgment wherein it is observed that prior to passing of Hindu Succession Act, 1956, the traditional Hindu law was that whenever a male ancestral inherits any property from any of his paternal ancestral upto three decrees above him, then his male legal heirs upto three decrees below him had a right in that property equal to that of the said person who inherited the same.
The relevant portion of para no. 7 of the judgment is reproduced as under:-
"7. (i). As per the ratio of the Supreme Court in the case of Yudhishter (supra) after passing of the Hindu Succession Act, 1956 the position which traditionally existed with respect to an automatic right of a person in properties inherited by his paternal predecessors-in-interest from the latter's paternal ancestors upto three degrees above, has come to and end. Under the traditional Hindu Law whenever a mate ancestor inherited any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him had a right in that property equal to that of the person who inherited the same. Putting it in other words when a person 'A' inherited property from his father of grandfather or great Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date:
Ravinder Gupta Vs. Virender Mohan & Ors. 2022.08.20 Page 15 of 27 16:07:39 +0530 grandfather then the property in his hand was not to be treated as a self acquired property but was to be treated as an HUF property in which his son, grandson and great grandson had a right equal to 'A'. After passing of the Hindu Succession Act, 1956, this position has undergone a change and if a person after 1956 inherits a property from his paternal ancestors, the said property is not an HUF property in his hands and the property is to be taken as a self-acquired property of the who inherits the same".
23. Here, the entire case of the plaintiff is based upon the fact that his grandfather formed a HUF during is lifetime consisting of he himself, his brother Manphool and son Sh. Mahendra Nath Goel, therefore, in order to succeed in this case, the plaintiff was required to prove existence of HUF and the property & business of said HUF, if any, however, the plaintiff has miserably failed to prove the existence of any HUF consisting of his grandfather, father and paternal uncle. The defendants since filing of their written statements were taking a plea that there was no person by the name of Sh. Manphool Singh in their family, therefore, the formation of HUF by late Sh. Ram Prasad alongwith Sh. Manphool does not arise. The objection regarding the existence of Manphool was raised by the defendants, therefore, in order to prove the existence of HUF, the plaintiff was firstly required Digitally signed by CHARU CHARU AGGARWAL Ravinder Gupta Vs. Virender Mohan & Ors. AGGARWAL Date: Page 16 of 27 2022.08.20 16:07:46 +0530 to prove the existence of said Manphool, who was one of the member of alleged HUF, but the plaintiff from the evidence led by him could not prove that there was any Manphool in his family. In this regard, Ld. Counsel for defendants has rightly pointed out that the plaintiff in his chief examination has stated that his grandfather died in the year 1906, leaving behind Sh. Manphool and his son Sh. Mahendra Nath Goel, who at that time was aged about 6 years. During his cross examination, plaintiff (PW-1) further said that when Manphool was 35 years old, the plaintiff was only 8 years old, meaning thereby the age gap between Manphool and plaintiff was 27 years old. The plaintiff has stated himself to be born on 01.03.1929, accordingly, if in the year 1935, the plaintiff was 8 years old, the alleged Manphool would have been born in 1902 which implies that Sh. Manphool was younger to Sh. Mahendra Nath Goel in the year of death of late Sh. Ram Prasad, therefore, the question of Sh. Manphool becoming Karta of HUF does not arise at all. Furthermore, the plaintiff has taken contradictory stands in regard to the business being run by HUF as at some places in his cross examination, he stated that Sh. Manphool was Karta of HUF and the said HUF was doing the business of money lending and grocery shop but in his cross examination, he said that the said business was being done by Sh. Manphool alone. The averment of the plaintiff regarding the property at village Bahadurgarh stated to be HUF property allegedly inherited by his father from his grandfather also falls flat in view of his own admission in the cross examination that the house of the family at village Bahadurgarh was never sold but it was given to one Pandit. This clearly implies that plaintiff's father did not inherit anything from his father late Sh. Ram Prasad. All the Digitally signed by CHARU CHARU AGGARWAL Ravinder Gupta Vs. Virender Mohan & Ors. AGGARWAL Date: 2022.08.20 Page 17 of 27 16:07:52 +0530 facts and circumstances indicated above, clearly show that plaintiff has miserably failed to prove existence of any HUF in his family. Accordingly, issue no. 4 is decided against the plaintiff and in favour of defendants.
Issue no. 5: Whether Sh. Mahendra Nath Goel had any bequeathable interest in the suit property and that he had executed a registered Will dated 29.06.82 in respect thereof in favour of their grand sons Defendants no. 17-20?OPD.
24. The onus to prove this issue was upon the defendant no. 1/defendants no. 17 to 21. The case of these defendants is that the suit property was self acquired property of late Sh. Mahendra Nath Goel, who during his life time executed a registered Will dated 29.06.1982 (Ex.PW-1/X-2), bequeathing the entire suit property in their favour and after his death on 01.06.1986, they have become the absolute owner of the suit property.
25. This court has already recorded its findings while deciding issue no. 4 that plaintiff has failed to prove that the suit property was HUF property. Otherwise also, during the course of final arguments, plaintiff has conceded that suit property was the self acquired property of his deceased father, thus, it remains undisputed that late Sh. Mahendra Nath Goel was the exclusive owner of the suit property. The plaintiff has claimed his share in the suit property on the premise that his father has died intestate, however, defendant no. 1/defendants no. 17 to 19 have propounded a Will dated 29.06.1982, in their favour.
26. Before proceeding further, it would be appropriate to take note of the legal principles governing the execution of Will, its proof Digitally signed by CHARU AGGARWAL CHARU Date: AGGARWAL 2022.08.20 16:08:02 Ravinder Gupta Vs. Virender Mohan & Ors. +0530 Page 18 of 27 and its acceptance by the court.
Needless to say that the Will comes into operation after the death of a testator. Section 59 of Hindu Succession Act provides regarding execution of a Will to the effect that every person of sound mind, not minor, may dispose off his property by way of Will. As per Section 63 of the said Act, the Will should bear the signatures of the testator or any person on his behalf and shall be attested by two or more witnesses each of whom has seen the testator signing the Will.
27. In regard to the proof of Will, mentioning of 68 Evidence Act will be relevant which envisages that a document required to be attested cannot be used in evidence unless at least one attesting witness is called for proving of its execution.
28. I would also like to mention the settled principle of law laid down by the Hon'ble Apex Court in catena of judgments in relation to proof of Will by its propounder. It is settled law that onus to prove the Will is always upon the propounder of a Will. The burden is on the propounder to prove due and valid execution of the Will by leading cogent evidence that the Will bears the genuine signatures of the testator, at the time of execution of the Will, the testator was in sound state of mind. He understood the nature and effect of the disposition and put his signatures on the document out of his free own will and there is no any other suspicion circumstance surrounding the Will.
29. Reverting back to the facts of the case, as already noted above, the propounders of the registered Will dated 01.06.1982 (Ex. PW-1/X-2) of late Sh. Mahendra Nath Goel, are defendant no. 1/defendants no. 17 to 20, therefore, onus to prove the said Will was Digitally signed by CHARU CHARU AGGARWAL Ravinder Gupta Vs. Virender Mohan & Ors. AGGARWAL Date: Page 19 of 27 2022.08.20 16:08:11 +0530 upon them.
30. The defendants in order to prove the Will have examined three witnesses, DW-1 is defendant no. 21 herself. She is wife of deceased defendant no. 1 and mother of defendants no. 17 to 20. DW-2 & DW-4 are attesting witnesses to the Will (Ex. PW-1/X-2). All these three witnesses of the defendants have categorically deposed in their evidence recorded in chief examination regarding execution of Will (Ex.PW-1/X-2) by late Sh. Mahendra Nath Goel in favour of defendants no. 17 to 20. DW-2, one of the attesting on the said Will, is the most crucial and star witness of the case since she is real sister of plaintiff & defendant no. 1 and daughter of testator late Sh. Mahendra Nath Goel. She is crucial witness also for the reason that she also had 1/9th share in the suit property and by way of Will in question, she was completely ousted from her share in the suit property despite that she being attesting witness on the Will supported the claim of defendant no. 1 and his sons by deposing that Will in question was executed by her father during his lifetime whereby he bequeathed the entire suit property in favour of his grandsons (defendants no. 17 to 20). She has further deposed in her evidence in chief that Will (Ex.PW-1/X-2) was the last and final Will of her father and prior to this also, her father executed two other Wills dated 02.03.1966 & 05.05.1975 (Ex. DW-2/1 & Ex. DW-2/2) when his daughters were not married but as and when the daughters got married, he kept modifying his Wills and in all the three Wills the suit property was bequeathed by him to his grandsons (defendants no. 17 to 20) i.e. sons of defendant no. 1. She correctly identified the signatures and thumb impressions of her father on the Will Ex. PW-1/X-2 as well as her own signatures on the said Will. She Digitally signed by CHARU CHARU AGGARWAL Ravinder Gupta Vs. Virender Mohan & Ors. AGGARWAL Date: Page 20 of 27 2022.08.20 16:08:44 +0530 has stated that she has seen her father writing and signing since her childhood. She has also correctly identified signatures of her father on his other two Wills dated 02.03.1966 (Ex. DW-2/1) & Will dated 05.05.1975 (Ex. DW-2/2). During the chief examination of DW-2, LR Sh. Rocky Ravinder Gupta (PW-2, son of plaintiff), objected on the reliance by DW-2 on these two Wills stating it to be beyond pleadings but his said objection is over-ruled as these Wills were taken on record in pursuance of order dated 21.03.2012 of Hon'ble Delhi High Court passed in CM (Main) filed by the defendants challenging the order dated 13.10.2011, passed by Ld. Predecessor whereby these Wills were declined to be taken on record. The order dated 21.03.2012 has attained finality, hence, the objection on behalf of the plaintiff that these Wills are beyond pleadings has no legs to stand. DW-2 was cross examined at length by the plaintiff's counsel on the execution of Will (Ex. PW-1/X-2), particularly on the signatures of the testator and his sound state of mind. Even, DW-1 was also examined on both these points of signature and sound state of mind of the testator. Though, the said cross examination of both these DWs on the above points was beyond pleadings since the plaintiff neither in his plaint nor in affidavit in evidence anywhere stated that the Will (Ex.PW-1/X-2) does not bear signatures and thumb impressions of his father. He has not specifically disputed signatures of his father on the Will during the entire trial of the suit pending since 2000 till date. Although, he at some places in his cross examination attempted to deny signatures of his father on the Will but in his cross examination recorded on 26.11.2012, he specifically admitted that he is disputing the signatures of his father on the Will (Ex.PW-1/X-2) only because his father did not disclose him Digitally signed by CHARU CHARU AGGARWAL Ravinder Gupta Vs. Virender Mohan & Ors. AGGARWAL Date: Page 21 of 27 2022.08.20 16:08:53 +0530 regarding execution of his Will. The relevant portion of his cross examination is reproduced as under:-
"The only basis as to why I am disputing the signatures of my father on the Will Ex.PW-1/X-2 at points A to F is that my father did not disclose to me regarding the execution of his Will".
31. Be as it may, the defendants had to prove the execution of Will by the testator by way of their own evidence. Both the witnesses DW-1 & DW-2, particularly the attesting witness (DW-2), daughter of testator & sister of plaintiff and defendant no. 1 during her entire cross examination, maintained the stand that the Will (Ex.PW-1/X-2) bears the signatures and thumb impression of the testator. She has also categorically deposed in her cross examination that after the marriage of her sister Subhashini, her father shown her willingness to execute a Will to avoid any litigation. DW-2 during her entire evidence, be it chief or cross examination, maintained a stand that her father late Sh. Mahendra Nath Goel executed a Will (Ex. PW-1/X-2). The said Will is typed one but DW-2, at some places in her cross examination, said that the last Will of her father was hand written and this statement of DW-2 provided an opportunity to plaintiff to raise suspicion on the Will (Ex.PW-1/X-2) on the ground that the defendants are relying on the typed Will but as per DW-2, attesting witness on the Will, the last Will of the testator was hand written. The plaintiff cannot be allowed to take benefit of this statement of DW-2 since no statement or averment can be read in isolation. Truly, DW-2 at some places in her cross Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date:
Ravinder Gupta Vs. Virender Mohan & Ors. 2022.08.20 Page 22 of 27 16:09:00 +0530 examination stated that the Will of her father was hand written but the holistic reading of her evidence nowhere creates doubt in the mind of the court that Will (Ex.PW-1/X-2) was not executed by late Sh. Mahendra Nath Goel, father of the parties as throughout her evidence, she testified that her father had always shown his intention and willingness to execute the Will in favour of defendants no. 17 to 20. She (DW-2) also relied upon two another Wills (Ex.DW-2/1 & Ex.DW-2/2, both dated 02.03.1966 & 05.05.1975, respectively) of her father and as per those Wills also, the suit property was bequeathed by the testator in favour of defendants no. 17 to 20. The Will (Ex.PW- 1/X-2) also finds mention of earlier two Wills of 1966 and 1975 of testator. All the three Wills executed by the testator since 1966 till his last Will in 1982, he has bequeathed his property in favour of defendants no. 17 to 20, clearly indicates his intention and willingness to bequeath the suit property in favour of his grand children, sons of defendant no. 1. DW-2 has duly proved the execution of Will Ex. PW- 1/X-2 by the testator late Sh. Mahendra Nath Goel that it was executed by the later out of his free Will, consent and without any coercion. As per Section 68 of Evidence Act, the testimony of one of the attesting witness was sufficient to prove a document including Will. Here, DW- 2 has duly proved the execution of Will by late Sh. Mahendra Nath Goel but the defendants have also examined another attesting (DW-4) witness on the Will, who also identified signatures of the testator as well as his own signatures on the Will (Ex.PW-1/X-2). This witness was cross examined by the plaintiff's counsel on some unrelated issues on the factum of identity of the testator. This witness is a Document Writer and an independent person. He correctly identified the Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date:
Ravinder Gupta Vs. Virender Mohan & Ors. 2022.08.20 Page 23 of 27 16:09:06 +0530 signatures and thumb impression of the testator stating that the testator put the thumb impression and signed the Will in his presence. The identity of testator was never in dispute, therefore, the cross examination of DW-4 on the identification of testator is completely unwarranted and not required to be discussed to decide the execution of the Will.
32. The defendants have also stated that at the time of execution of Will (Ex.PW-1/X-2), late Sh. Mahendra Nath Goel was in sound state of mind. The plaintiff never disputed that his father had any kind of medical issue or he was unfit to execute the Will, however, counsel for plaintiff cross examined defendants' witnesses beyond their pleadings on the ground that testator was not in sound state of mind at the time of execution of Will. But, both DW-1 & DW-2, family members of the testator being his daughter in law (DW-1) and daughter (DW-2), have consistently stated in their evidence that late Sh. Mahendra Nath Goel was in sound state of mind at the time of execution of Will (Ex.PW-1/X-2). DW-2, rather in her cross examination also said that during the year 1982, she used to leave her son with the testator and picked up him in the evening. Similarly, DW- 1 also said that Sh. Mahendra Nath Goel was not suffering from any illness as he used to teach his grand children even just prior to his death. Though, DW-1 has stated that Sh. Mahendra Nath Goel had some medical issues but she specifically stated that those medical issues cropped up just few days prior to his death in the year 1986. The Will in question was executed in the year 1982, and the testator has expired after four years of its execution, also shows that during the period the Will was executed, the testator was not suffering from any Digitally signed by CHARU CHARU AGGARWAL Ravinder Gupta Vs. Virender Mohan & Ors. AGGARWAL Date: Page 24 of 27 2022.08.20 16:09:13 +0530 kind of serious illness resulting into his immediate death. Furthermore, PW-2, plaintiff's son, who first time and probably afterthought added a new plea of illness of testator did not bring any medical document of the testator to prove that the later was suffering from any kind of disease due to which he was not in sound state of mind. Moreso, the plea of PW-2 first time raised by him in his affidavit that late Sh. Mahendra Nath Goel was suffering from "Alzheimer Dementia" in the year 1982, when he executed the Will, is beyond pleadings, never taken by his father (plaintiff) during his lifetime, till the time he contested the suit, accordingly, the plaintiff could not prove on record that the time of execution of the Will, late Sh. Mahendra Nath Goel was not in sound state of mind, per contra defendants have duly proved otherwise.
33. The plaintiff has also tried to raise suspicion on the Will (Ex.PW-1/X-2) on the ground that name of one of the daughter Ms. Salochna Mittal of the testator is not mentioned on the Will and name of husband of one of the daughter is also wrongly mentioned on it. In regard to this, DW-2 Ms. Salochna Mittal, daughter of testator has clarified in a cross examination that it was only a typographical error that her name and name of husband of one of the daughter is not mentioned or wrongly mentioned in the Will. This explanation given by DW-2 in regard to the names in the Will is found to be satisfactory and otherwise also, it hardly has any consequence to infer the intention and willingness of the testator to give the suit property to his grand children i.e. defendants no. 17 to 20.
34. The plaintiff also attacked on the Will (Ex.PW-1/X-2) on the count that the testator has not executed the Will (Ex.PW-1/X-2) out Digitally signed by CHARU CHARU AGGARWAL Ravinder Gupta Vs. Virender Mohan & Ors. AGGARWAL Date: Page 25 of 27 2022.08.20 16:09:21 +0530 of his own will and free consent since the testator was residing with defendant no. 1, therefore, he was under his influence and defendant no. 1 got the Will in question executed from the testator by exercising coercion upon him. The plaintiff could not prove even this plea. The family in the suit is a "Aggarwal Family". Late Sh. Mahendra Nath Goel (testator) had three sons i.e. plaintiff and defendants no. 1 & 2. The plaintiff during his cross examination admitted that he got married with a Punjabi girl, therefore, his father after his marriage asked him to go out of the house. Plaintiff further admits in his cross examination that his father late Sh. Mahendra Nath Goel did not attend his marriage and not only he but no relation of the plaintiff be his other brothers or sisters attended his marriage. Plaintiff goes on to admit in his cross examination that he did not attend the last rites of his father since he was not informed about his death. All these admissions by the plaintiff clearly shows that after his marriage, his relationship with his father till his death were strained. The record also shows that defendant no. 2 i.e. another son of the testator, also did not have cordial relations with his father since he also got married with a Punjabi girl. Otherwise also, defendant no. 2 is a citizen of USA and settled there since long time, therefore, also he because of his circumstances was unable to serve his father. In the pecuniar facts and circumstances of the case, this court finds nothing unusual or suspicious, rather it is obvious and expected act of an old aged father to give his hard earned money invested by him in a property during his lifetime to a son or grand children, who probably would have served him throughout his lifetime. The testator for obvious reasons that out of his three sons only one followed his principles, culture and unsaid norms of the family, therefore, probably Digitally signed by CHARU CHARU AGGARWAL Ravinder Gupta Vs. Virender Mohan & Ors. AGGARWAL Date: Page 26 of 27 2022.08.20 16:09:29 +0530 he bequeathed the suit property only in favour of his grand children, sons of defendant no. 1 who as per own showing of the plaintiff was residing and serving the testator throughout his lifetime. It is also very relevant to note that out of nine children of the testator, seven, apart from defendant no. 1, are not claiming anything in the suit property, rather they all in one voice are supporting the claim of defendant no. 1 or his sons that suit property was self acquired property of the testator which was bequeathed by him by way of Will (Ex.PW-1/X-2) in favour of sons of defendant no. 1.
35. In view of foregoing reasons, this court is of the considered opinion that defendants have proved the execution of Will (Ex.PW-1/X-2) by late Sh. Mahendra Nath Goel, out of his free consent, without any coercion and undue influence, whereby the entire suit property was bequeathed by him to them. Accordingly, issue no. 5 is decided in favour of defendants and against the plaintiff.
36. In view of findings on issues no. 4 & 5, issues no. 6 to 9 are decided against the plaintiff and in favour of defendants. RELIEF:-
In view of aforesaid discussion, the suit of the plaintiff is hereby dismissed.
Decree sheet be prepared accordingly. File be consigned to record room.Digitally signed by CHARU
CHARU AGGARWAL
AGGARWAL Date:
2022.08.20
16:09:36 +0530
Announced in the open court (Charu Aggarwal)
on 18th August, 2022. ADJ-02/Centre/THC/Delhi.
Ravinder Gupta Vs. Virender Mohan & Ors. Page 27 of 27