Delhi District Court
Mukesh Wadhwa (Senior Citizen) vs Smt. Kamlesh Wadhwa on 17 January, 2025
In the court of Shri Naresh Kumar Laka
District Judge - 07, Central District,
Tis Hazari Courts, New Delhi
CS DJ 610426/2016 (Old No. 1384/2002)
CNR No. DLCT01-000033-2002
In the matter of:
Amended memo of parties
Mukesh Wadhwa (Senior Citizen)
S/o Late Sh. Jagdish Mitra Wadhwa,
R/o J-144, Reserve bank of India Enclave,
Paschim Vihar, New Delhi-110063
....... Plaintiff
vs.
1) Smt. Kamlesh Wadhwa (since expired)
through her following LRs:
(a) Sh. Mukesh Wadhwa,
S/o Late Sh. Jagdish Mitra Wadhwa,
R/o J-144, Reserve bank of India Enclave,
Paschim Vihar, New Delhi-110063
(b) Smt. Ansu Sharma (since deceased)
W/o Late Sh. Deepak Sharma
Through her LRs
(i) Tarun Sharma (son)
(ii) Puneet Sharma (son)
(iii) Mrs. Shruti Singh Gill (daughter)
All R/o J-1101, Park View City-1, Sector-48,
Sohna Road, Gurgaon, Haryana-122018
CS DJ No. 610426/2016 (Old No. 1384/2002) Page no. 1 of 19
MUKESH WADHWA (SENIOR CITIZEN) VS. SMT. KAMLESH WADHWA
(c) Smt. (Dr.) Shashi Kant Vikas Joshi
W/o Dr. Vikas B Joshi
R/o 185, Sat Jeeven, Ganesh bagh Lane,
Kurla, Mumbai-400070
2. Smt. Anshu Sharma through her LRs
(i) Tarun Sharma (son)
(ii) Puneet Sharma (son)
(iii) Mrs. Shruti Singh Gill (daughter)
All R/o J-1101, Park View City-1, Sector-48,
Sohna Road, Gurgaon, Haryana-122018
3. Smt. (Dr.) Shashi Kant Vikas Joshi
W/o Dr. Vikas B Joshi
R/o 185, Sat Jeeven, Ganesh bagh Lane,
Kurla, Mumbai-400070
...... Defendants
Date of Institution : 06.09.2002
Final arguments concluded on : 18.12.2024
Date of decision : 17.01.2025
Result : Partly decreed
SUIT FOR PARTITION, DECLARATION,
RENDITION OF ACCOUNTS AND PERMANENT INJUNCTION
JUDGMENT
Suit in brief The present suit has been filed by Mukesh Wadhwa for the relief of partition and other reliefs by claiming that Sh. Jagdish Mitra Wadhwa, father of the plaintiff was an officer posted in Reserve Bank of India and was also a member of the RBI Employees Group Housing Society and in the year 1978-79, a plot no. J-144, Reserve Bank Of India Enclave, Paschim Vihar, New Delhi-110063 was allotted to him by the said society. The defendant CS DJ No. 610426/2016 (Old No. 1384/2002) Page no. 2 of 19 MUKESH WADHWA (SENIOR CITIZEN) VS. SMT. KAMLESH WADHWA no.1 is the mother of plaintiff and the defendants no. 2 Smt Anshu Sharma and defendant no.3 Smt. Shashi Kant Vikas Joshi are sisters of plaintiff. It is claimed that besides the aforesaid property, the father of the plaintiff had acquired certain movable assets/securities, investments and retirement benefits but after the death of Sh. Jagdish Mitra Wadhwa on 27.09.2000, the respondent no.1 locked her almirahs and shifted to the house of respondent no.2. It is also alleged that she had also taken away all movable properties and documents of the father of plaintiff.
2. It is alleged that through a legal notice dated 12.07.2002, the plaintiff came to know that the defendant no.1 had debarred him and his mother had also filed a false complaint against him to dispossess from the suit property and also debarred him from getting share in the movable and immovable property of the father of the plaintiff. Therefore, present suit was filed.
Defence in brief
3. The defendants contested this suit and filed their joint written statement wherein it is claimed that the present suit of the plaintiff has become infructuous qua prayer no.1 A (a) as the property no. J-144, Reserve Bank of India Enclave, Paschim Vihar, New Delhi-110063 had already been disposed of by the defendants as per the outcome of Criminal Writ Petition no. 1009 of 2002 and the defendants has already compensated the plaintiff for vacating the said house as per the order dated 08.10.2002 passed by Hon'ble Division Bench, Hon'ble High Court of Delhi.
4. The defendant no. 1 claimed her own exclusive right in the other CS DJ No. 610426/2016 (Old No. 1384/2002) Page no. 3 of 19 MUKESH WADHWA (SENIOR CITIZEN) VS. SMT. KAMLESH WADHWA movable assets of her husband Sh. Jagdish Mitra Wadhwa and that the plaintiff and his family members were already debarred by her from all movable and immovable properties due to misconduct of the plaintiff. Therefore, it was prayed that the present deserves to be dismissed.
Replication, issues & trial
5. Plaintiffs filed replication wherein the allegations of the written statement were controverted and the averments of the plaint were reiterated. From the pleadings of the parties, following issues were framed on 06.08.2007:
1. Whether the suit is bad for misjoinder of parties? OPD
2. Whether the plaintiff is entitled for preliminary decree of par-
tition as prayed in para 1(A) (a, b) of prayer clause of the plaint? OPP
3. Whether the plaintiff is entitled for decree of partition of the property as prayed in para no. 1 (B) of prayer clause of the plaint? OPP
6. In order to prove his case, the plaintiff examined himself as PW-1. In order to prove their case, defendants examined two witnesses, namely, Smt. Kamlesh Wadhwa as DW1 and Smt. Anshu Sharma as DW2.
7. I have heard arguments from the plaintiff and Sh. Mahendra Singh, ld. Counsel for the defendants at length. File perused. For the purpose of convenience, the parties are referred to by their original description.
CS DJ No. 610426/2016 (Old No. 1384/2002) Page no. 4 of 19 MUKESH WADHWA (SENIOR CITIZEN) VS. SMT. KAMLESH WADHWA Reasons for decision
8. From the record, it is seen that the plaintiff has already been given his share in respect of property no. J-144, Reserve Bank of India Enclave, Paschim Vihar, New Delhi-110063 in the other criminal proceeding and even plaintiff also does not claim any relief in respect of the said property. Accordingly, the prayer 1A(a) of the present suit becomes infructuous.
Issue No. 1. Whether the suit is bad for misjoinder of parties? OPD
9. The onus of proving this issue was upon the defendants but the defendants did not point out as to how the present suit is bad for misjoinder of the necessary party. As per the plaintiff, the father of the plaintiff expired leaving behind his four legal heirs i.e. his mother (defendant no.1) and three children (which include plaintiff and defendant no. 2 and 3) and all the said persons were already impleaded in the present suit. Therefore, this issue is decided against the defendants and in favour of the plaintiff.
Issue No. 2 . Whether the plaintiff is entitled for preliminary decree of parti- tion as prayed in para 1(A) (a, b) of prayer clause of the plaint? OPP
10. The plaintiff claimed that there were certain movable assets in the form of some shares/debentures/policies etc. which were purchased from the funds of his father and after his death, the plaintiff and other legal heirs i.e. defendant no. 1 to 3 are entitled for distribution of the said assets as per their shares to which parties are entitled to. It is further stated that the defendant no.1 expired during pendency of the case intestate and her share is also required to be divided between the plaintiff and defendant no.2 and 3.
CS DJ No. 610426/2016 (Old No. 1384/2002) Page no. 5 of 19 MUKESH WADHWA (SENIOR CITIZEN) VS. SMT. KAMLESH WADHWA
11. On the other hand, the defendants claimed that father of the plaintiff Sh. Jagdish Mitra Wadhwa had devised a Will whereby all the movable and immovable assets were bequeathed in favour of the defendant no.1, who was the mother of the plaintiff. The plaintiff has specifically denied the said Will in the replication.
12. The onus to prove the said Will was upon the defendants especially the defendant no.1 who claimed to be the beneficiary of the said Will. The Ld. Counsel for the defendants argued that the said Will was already relied in other case, therefore, this was not required to be proved on record. In the present case, the plaintiff specifically denied the said Will and, therefore, the defendants were required to prove the said Will in the present case as per law. The defendants had examined only two witnesses, namely, Smt. Kamlesh Wadhwa as DW1 and Smt. Anshu Sharma as DW2. None of the said witnesses is/are the attesting witness(s) of the said Will, therefore, their testimonies are not admissible to prove the said Will. The Section 68 of the Indian Evidence Act is very relevant in this regard and same is reproduced as under:
"Sec. 68. Proof of execution of document required by law to be attested.-
If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
13. As per aforesaid Section 68 of the Indian Evidence Act, a Will CS DJ No. 610426/2016 (Old No. 1384/2002) Page no. 6 of 19 MUKESH WADHWA (SENIOR CITIZEN) VS. SMT. KAMLESH WADHWA can be proved by examination of at least one of the attesting witnesses and if the attesting witness is not available or dead, signature of the said attesting witness is required to be proved by other evidence but no witness, who can identify the signature of the attesting witness, has been examined by the defendants. It is further seen that the said Will dated 16.05.1997 has not been produced in original and only a photocopy (marked Ex. DW1/B) was filed on record and a specific objection was taken by the Ld. Counsel for the plaintiff on the mode of proof of the said Will during examination of the DW1. From the aforesaid facts, this court is of the considered opinion that the defendants have failed to prove the said Will dated 16.05.1997. Consequently, this court holds that the father of the plaintiff died intestate.
14. During the pendency of the case, the defendant no.1 also expired and the defendants did not bring on record any testamentary instrument which was left behind or executed by the defendant no.1. However, a Will dated 25.01.2020 of Smt. Kamlesh Wadhwa was received by post before this court. From the perusal of the contents of the said Will and comparison with the shares/subject matter of the movable assets as mentioned in the plaint, this court already held that the said Will is of no effect as far as subject matter of the present suit is concerned. Therefore, this court holds that even the defendant no.1 also died intestate.
15. After expiry of the father as well as mother of the plaintiff, their children which are the plaintiff and the defendant no. 2 and 3 have inherited the assets of their parents as per Section 6 and 15 of the Hindu Succession Act, 1956 and the said share is determined as under:
CS DJ No. 610426/2016 (Old No. 1384/2002) Page no. 7 of 19 MUKESH WADHWA (SENIOR CITIZEN) VS. SMT. KAMLESH WADHWA Devolution of interest of Late Shri Jagdish Mitra Wadhwa on his death Table A Legal Heirs Share Smt. Kamlesh Wadhwa 1/4 Sh. Mukesh Wadhwa, 1/4 Smt. Ansu Sharma 1/4 Smt. (Dr.) Shashi Kant 1/4 Vikas Joshi Devolution of interest of Late Smt. Kamlesh Wadhwa on her death Table B Legal Heirs Share Legal Heirs of shareholder Sh. Mukesh Wadhwa, 1/3 Late Smt. Ansu Sharma 1/3 (i) Tarun Sharma (son)
(ii) Puneet Sharma (son)
(iii) Mrs. Shruti Singh Gill (daughter).
(They all will have 1/3 share of late Smt. Anshu Sharma jointly or 1/3 each from 1/3 share of Smt. Ansu Sharma) Smt. (Dr.) Shashi Kant 1/3 Vikas Joshi
16. As far as prayer 1(A)(b) is concerned, the plaintiff has prayed his share in Shares and debentures of various companies. The plaintiff has placed on record the details of various shares and debentures as under:
Shares in joint name of father of plaintiff Late Sh. Jagdish Mitra Wadhwa and mother Late Smt. Kamlesh Wadhwa stock holding DEMAT Account CS DJ No. 610426/2016 (Old No. 1384/2002) Page no. 8 of 19 MUKESH WADHWA (SENIOR CITIZEN) VS. SMT. KAMLESH WADHWA no.-17224046 S. N. Name of the No. of Same Petitioner Transferred in account of company shares as shares share as without giving petitioner on death of after per 1/3rd share JM Bonus/s Wadhwa plit became
1. Grasim Industries 137 685 228 To defendant no. 2 AXIS Ltd. DMAT No. 1156649
2. RIL Ltd. 152 608 203 To defendant no. 3 IN3026730304953 DMAT No. 1156649
3. Tata Global 200 2000 667 To defendant no. 2 AXIS Bevarages ltd. (Now DMAT No. 1156649 TCPL Ltd) Shares allotted to shareholders holding above RIL shares after death of Jagdish Wadhwa for Ambani brothers settlement
4. Reliance CAPITAL 6 6 2 To defendant no. 3 IN3026730304953 DMAT No. 1156649
5. Reliance 152 152 51 To defendant no. 3 Communication IN3026730304953 DMAT No. 1156649
6. Reliance 12 12 4 To defendant no. 3 Infrastructure Ltd. IN3026730304953 DMAT No. 1156649
7. Reliance Natural 152 152 51 To defendant no. 3 Resources Ltd. IN3026730304953 DMAT No. 1156649 Details of split/bonus issued Company Reason Grasim Bonus Stock split in 2016, received 5 shares in 2009 and 2017= 608 RIL Ltd. Stock split in 2010, 10 shares were received for every share 2000 CS DJ No. 610426/2016 (Old No. 1384/2002) Page no. 9 of 19 MUKESH WADHWA (SENIOR CITIZEN) VS. SMT. KAMLESH WADHWA Share in joint name of mother Late Smt. Kamlesh Wadhwa and father of petitioner Late Sh. Jagdish Mitra Wadhwa Stock holding DEMAT Account no. 13194697 S. N. Name of the company No. of Same Shares Petitioner Transferred shares as on after share as per in account death of JM Bonus/split 1/3rd of - without Wadhwa became giving petitioner share
1. Asian Paints Ltd. 307 4610 1537 2. Britannia Ltd. 109 1090 363 3. EIH Ltd. 63 470 157 4. Grasim Industries 100 500 167 5 Nestle India 150 1500 500 6. Proctor & Gamble (P&G) 150 225 75 Heiginen healthcare Ltd.7. RIL Ltd. 126 504 168 8. Zensar technologies 25 250 83
Shares allotted to
shareholders holding
above RIL shares after
death of Jagdish Wadhwa
for Ambani brothers
settlement
Reliance CAPITAL
Reliance Communication
Reliance Infrastructure
ltd.
Reliance Natural
Resources Ltd.
Details of split/bonus
issued
Company Reasons
Asian Paints Britannia For every 2 shares 1 Bonus share in 2003 and
Ltd.
Britannia Ltd. Stock split 2010 in 2018 total Share -1090 (2010-545
then 2018-1090)
EIH Ltd. For every 2 shares 1 bonus share in 2006 and stock split
CS DJ No. 610426/2016 (Old No. 1384/2002) Page no. 10 of 19
MUKESH WADHWA (SENIOR CITIZEN) VS. SMT. KAMLESH WADHWA in 2006, received 5 shares for every share=470 Grasim Bonus Stock split in 2016, received 5 shares for every share =500 Nestle India Stock split in 2024, 10 shares were received for every share = 1500 P&G Health & Hygiene For every 2 shares 1 bonus share in 2003 Zensar Technologies Ltd. For every share, 1 bonus share was issued in 2010 and stock split in 2018, 5 shares were received for every share = 250 Shares in single name of father of petitioner Late Sh Jagdish Mitra Wadhwa Demat account no. 10320651 (Abhipara DEMAT account) S.n. Name of the company No. of shares as Same shares Petitioner Transferred in account of Demat account no. 10320651 on death of JM after share as without giving petitioner (Abhipara DEMAT account) Wadhwa Bonus/split per 1/3rd share became 1 Ambalal Sarabhai Ltd. 186 186 62 to defendant no. 3
-IN30267930304953 2 BASF Ld 405 405 135 to defendant no. 3
-IN30267930304953 3 Good year India Ltd 84 84 28 to defendant no. 3
-IN30267930304953 4 ICI Ltd (name changed to Akzo 17 17 6 to defendant no. 3 Nobel -IN30267930304953 5 Premier Automobiles Ltd. 220 220 73 to defendant no. 3
-IN30267930304953 6 RIL Ltd. 56 448 149 to defendant no. 3
-IN30267930304953 Shares allotted to shareholders holding above shares after death of Jagdish Wadhwa 7 Reliance CAPITAL 2 2 0.6 to defendant no. 3
-IN30267930304953 8 Reliance Communication 56 56 19 to defendant no. 3
-IN30267930304953 9 Reliance Infrastructure Ltd 4 4 1.3 to defendant no. 3
-IN30267930304953 10 Reliance Natural Resources 56 56 19 to defendant no. 3 Ltd -IN30267930304953 Details of split/bonus issued RIL Ltd As per stock CS DJ No. 610426/2016 (Old No. 1384/2002) Page no. 11 of 19 MUKESH WADHWA (SENIOR CITIZEN) VS. SMT. KAMLESH WADHWA split in 2006 1 share was issued for every share and 1 bonus share was issued in 2009 and in 2017 separately Shares in name of father of petitioner Late Sh Jagdish Mitra Wadhwa Physical shares S.n. Name of the company No. of shares as on Same shares Petitioner State Physical shares death of JM Wadhwa after Bonus/split share as became per 1/3rd 1 Indo matsushita carbon co ltd (now known as Panasonic 67 67 22 Physical shares Carbon India Co. Ltd) 2 Garware shipping Physical shares corporation ltd (now known as Global 50 50 16 Offshore Services Ltd) 3 JL Morison (India) Ltd 35 35 11 Physical shares 4 International 200 200 6 Physical shares combustion India ltd Shares in the name of defendant no. 1 bought by father of petitioner Lt Sh.
Jagdish Mitra Wadhwa as Lt Kamlesh Wadhwa (defendant no.1) was never working [Stock holding DEMAT acc no. - 13194701] S.n. Name of the company No. of shares as on Same shares Petitioner Transferred account of death of JM Wadhwa after Bonus/split share as without giving petitioner became per 1/3rd share 1 Ab Nuvo 525 525 175 to defendant no. 3 -
IN30267930304953 2 Akzo Nobel India ltd 17 17 6 to defendant no. 3 -
IN30267930304953 3 Alkyl Amines 200 1600 533 to defendant no. 3 -
IN30267930304953 4 Andhra Cements Ltd 75 75 25 to RELIGARE securities
- 10042227 5 Apeejay Tea 50 50 17 to RELIGARE securities
- 10042227 6 Ashok Leyland 151 3020 1006 to defendant no. 3 -
IN30267930304953 7 Avery India Ltd. 112 112 37 to CITI BANK DP -
10010503 8 BASF to defendant no. 2 - AXIS CS DJ No. 610426/2016 (Old No. 1384/2002) Page no. 12 of 19 MUKESH WADHWA (SENIOR CITIZEN) VS. SMT. KAMLESH WADHWA 1115 1115 372 BANK DMAT no. -
11056649 9 BILT 15 15 5 10 CEAT 225 225 75 to defendant no. 3 -
IN30267930304953 11 Chambal fertilizers 27 27 9 and chemicals 12 Clariant Chemicals 328 328 109 to defendant no. 3 -
Ltd. IN30267930304953
13 Dynamatic 266 266 89 66 to Def 2 - AXIS
technologies BANK DMAT no. -
11056649 and 200 to
defendant no. 3 -
IN30267930304953
14 Escorts Ltd 378 to Def 2 - AXIS
BANK DMAT no. -
478 478 159 11056649 and 100 to
defendant no. 3 -
IN30267930304953
15 Essar Steel India Ltd 75 75 25
16 Exide Industries Ltd 2040 2040 680 to defendant no. 3 -
IN30267930304953
17 Forbes and Company 60 60 20 Now to Def 2 - AXIS
Ltd BANK DMAT no. -
11056649
18 Global Offshore 50 50 16 to defendant no. 3 -
Services Ltd IN30267930304953
19 Gujrat Narmada Valley
Fert n Chem 75 75 25 to defendant no. 3 -
IN30267930304953
20 Hindustan Unilever 14840 14840 4947 to defendant no. 3 -
Ltd IN30267930304953
21 India Polyfibre Ltd 20 20 6
22 Integrated Finance 500 500 166
Company Ltd
23 ITC Ltd 4140 12420 4140 to defendant no. 3 -
IN30267930304953
24 ITD Cementation 80 800 267 to RELIGARE securities
India Ltd - 10042227
25 Nestle India Ltd 1400 14000 4666 9000 to defendant no. 3 -
IN30267930304953 and
2000 to Def 2 - AXIS
BANK DMAT no. -
11056649
26 Novartis India Ltd 146 146 49 to defendant no. 3 -
IN30267930304953
27 Phillips Carbon Black 250 2500 833 to defendant no. 3 -
IN30267930304953
28 PTL Enterprises Ltd 10 100 33 to RELIGARE securities
- 10042227
CS DJ No. 610426/2016 (Old No. 1384/2002) Page no. 13 of 19
MUKESH WADHWA (SENIOR CITIZEN) VS. SMT. KAMLESH WADHWA 29 Reliance CaPITAL 16 16 5 to defendant no. 3 -
IN30267930304953 30 Reliance Capital 330 330 110 to defendant no. 3 -
Venture Ltd IN30267930304953
31 Reliance 330 330 110 to defendant no. 3 -
Communication IN30267930304953
32 Reliance Energy 330 330 110 to defendant no. 3 -
Venture Ltd IN30267930304953
33 Reliance Industries 430 1720 573 to defendant no. 3 -
Ltd IN30267930304953
34 Reliance Infrastructure 24 24 8 to defendant no. 3 -
Ltd IN30267930304953
35 Reliance Natural 330 330 110 to defendant no. 3 -
Resources Ltd IN30267930304953
36 Samtel India Ltd 133 133 44 to defendant no. 3 -
IN30267930304953
37 Sunil Healthcare Ltd 37 37 12 to defendant no. 3 -
IN30267930304953
38 Syngenta India Ltd 146 146 49 to defendant no. 3 -
IN30267930304953
39 Tata Chemical Ltd 500 500 167 to defendant no. 3 -
IN30267930304953
Details of split/bonus
issued
Company Reason
Alkyl Amines Ltd Stock split in 2014 and 2021, received 8 shares for every share = 1600
Ashok Leyland India For every share 1 Bonus share in 2011 and for stock split received 10 shares
Ltd for every share in 2004 = 3020
ITD Cementation Stock split in 2015 received 10 shares for every share = 800
India Ltd
ITC Ltd For every share 1 bonus share was received in 2010 and for every 2 shares, 1
was received in 2016
Nestle India Ltd 1400 shares of Nestle India of face value of Rs.10 became 14000 shares
after split in these 2 years
Phillips Carbon Black Stock split in 2018 and 2022 10 shares were received for every share after split in these 2 years RIL Ltd 1 bonus share was issued for every share for RIL in 2009 and 2017 so 430 became 1720
17. Now a question arises, as to how the shares standing in the name of father of the plaintiff and in the joint names of other persons will be partitioned. Since it has already been held that the father of the plaintiff died intestate, therefore the shares/debenture which were in the name of father of CS DJ No. 610426/2016 (Old No. 1384/2002) Page no. 14 of 19 MUKESH WADHWA (SENIOR CITIZEN) VS. SMT. KAMLESH WADHWA the plaintiff alone will be divided as per the shares allocated in Table A above to the legal heirs (i) Kamlesh Wadhwa, (ii) Mukesh Wadhwa, (iii) Smt. Anshu Sharma and (iv) Dr. Shashi Kant Vikash Joshi as 1/4th share each.
18. The plaintiff has claimed his shares in the shares/debentures which are in the joint name of Shri Jagdish Mitra Wadhwa and Smt. Kamlesh Wadhwa and the shares in the exclusive name of Kamlesh Wadhwa or defendant no. 2 and 3 on the ground that they were purchased by his father from his own fund and that his mother (defendant no.1) was only a housewife.
19. In the case of Surasaibalini Devi v. Phanindra Mohan Majumdar, reported in AIR 1965 SC 1364, Hon'ble Apex Court laid down as under:
"We start with the position that the court will presume an ostensible title to be the real title unless a plaintiff who seeks to assert the contrary pleads and proves that the ostensible owner is not the real owner. In other words, the onus is on the person who alleges a transaction to be benami to make it out. Of course, the source of the funds from which the purchase is made coupled with the manner of its enjoyment would be a very material fact or for establishing the proof of benami but the mere proof of the source of purchase money would not finally establish the benami nature of the defendants title. Even where the plaintiff purchases property with his own funds in the name of 'B' the surrounding circumstances, the mode of enjoyment might still indicate that it was intended to be a gift and it would then not be a case of benami notwithstanding that the purchase money did not proceed from the defendant."
20. In view of the aforesaid caselaw/precedent, this court holds that the burden to prove the source of consideration amount through which the shares were purchased and that the same were not intended to be the exclusive property of the title holder, was upon the plaintiff but the plaintiff did not lead any evidence to prove the said essential elements. Therefore, this court holds CS DJ No. 610426/2016 (Old No. 1384/2002) Page no. 15 of 19 MUKESH WADHWA (SENIOR CITIZEN) VS. SMT. KAMLESH WADHWA that the shares which were in the name of original person other than father will be treated their absolute property in whose names they were purchased.
21. Accordingly, the shares in the joint name of Shri Jagdish Wadhwa and Smt. Kamlesh Wadhwa will be divided amongst their legal heirs by treating them as their absolute property. The plaintiff claimed in the written arguments that the defendant no.1 already transferred joint shares which were in the name of Jagdish Wadhwa and Kamlesh Wadha in the account of defendant no.2 and/or 3. Therefore, this court holds that if the defendant no.1 had already transferred her shares in the account of defendant no.2 and/or 3 or any other person during her lifetime, then the plaintiff will not have any right on the said shares to the extent of share of Smt. Kamlesh Wadhwa but all the legal heirs will have a share from the 50% share of Shri Jagdish Wadhwa. The entitlement of the plaintiff is held as under:
Distribution of the shares in the joint name of Jadish Wadhwa and Kamlesh Wadhwa Legal Heirs Share from % from total 50% shares of shares value Jadish Wadhwa Smt. Kamlesh Wadhwa 1/4 50+12.5 = 62.50 Sh. Mukesh Wadhwa, 1/4 12.5 Smt. Ansu Sharma 1/4 12.5 Smt. (Dr.) Shashi Kant 1/4 12.5 Vikas Joshi
22. Thus, the share of plaintiff in the aforesaid joint shares comes out to be 12.5% only.
CS DJ No. 610426/2016 (Old No. 1384/2002) Page no. 16 of 19 MUKESH WADHWA (SENIOR CITIZEN) VS. SMT. KAMLESH WADHWA
23. The plaintiff has also claimed his share in the shares/debentures which were in the name of Smt. Kamlesh Wadhwa alone. It has already been held that Smt. Kamlesh Wadhwa died intestate, therefore, he will have 1/3rd share in the assets/shares of Kamlesh Wadhwa and the defendant no.2 and 3 will also have 1/3 share each, provided the said assets/shares were not trans- ferred by Smt. Kamlesh Wadhwa during her life time. The plaintiff also ad- mitted that Smt. Kamlesh Wadhwa had already transferred her exclusive shares, therefore, the plaintiff will not have any right in those shares/deben- tures/assets.
24. Accordingly, this issue is decided in favour of the plaintiff and a preliminary decree is passed for determination of shares of the parties as per aforesaid findings.
Issue No. 3. Whether the plaintiff is entitled for decree of partition of the property as prayed in para no. 1 (B) of prayer clause of the plaint? OPP
25. In the said prayer, a final decree has been claimed in respect of following assets:
(i) Shares and debentures of various companies.
(ii) Jeevan Akshay Policies of LIC.
(iii) Units of Unit Trust of India -Unit Scheme 1964.
(iv) Units of Unit Trust of India - 7 Years monthly Income Unit Scheme with bonuses and growth 1990 (II).
(v) Deposit with banks.
(vi) UTI Monthly Income Scheme - MIP 1996(IV).
(vii) IDBI Monthly Income Bond (1997)
26. As far as the point (i) Shares and debentures is concerned, their details have been brought on record and even shares have been decided.
CS DJ No. 610426/2016 (Old No. 1384/2002) Page no. 17 of 19 MUKESH WADHWA (SENIOR CITIZEN) VS. SMT. KAMLESH WADHWA Therefore, final decree is also passed for division of shares of the said items. With regard to other points, clarification is required and appropriate order will be passed after hearing submission from both sides on the next date.
Conclusion/Relief
27. In the light of aforesaid findings, the suit of the plaintiff is partly decreed and a preliminary decree as well as final is passed to the effect that Shri Jagdish Mitra Wadhwa and Smt. Kamlesh Wadhwa died intestate and their legal heirs will have shares in the shares and debentures as prayed in the present suit.
28 As a result, the defendants are directed to transfer 1/4 th share of the plaintiff from the shares/debentures which were in the name of Shri Jagdish Mitra Wadhwa alone (details thereof are given above) within 30 days. The small fraction of division into 1/3rd can be ignored e.g. if for a particular company, there are 13 shares which are not divisible to 1/3rd, then its 4 shares can be transferred to the plaintiff.
29. The defendants are directed to transfer 12.5% share to the plaintiff from the shares/debentures which were in the joint name of Shri Jagdish Mitra Wadhwa and Smt. Kamlesh Wadhwa (details thereof are given above) within 30 days. The small fraction of division into 1/3 rd can be ignored.
30. The defendants are also restrained to create third party interest on the share/debentures which are subject matter of the present suit (to the extent of share/interest of the plaintiff) till final disposal of the present suit CS DJ No. 610426/2016 (Old No. 1384/2002) Page no. 18 of 19 MUKESH WADHWA (SENIOR CITIZEN) VS. SMT. KAMLESH WADHWA without due process of law.
31. Put up for clarification on the other relief on 28.02.2025.
Announced & dictated in Digitally the open court on 17.01.2025. signed by NARESH NARESH KUMAR LAKA KUMAR Date:
(Naresh Kumar Laka) LAKA 2025.01.20 11:34:05 District Judge-07 +0530 Central District/THC, Delhi.
CS DJ No. 610426/2016 (Old No. 1384/2002) Page no. 19 of 19 MUKESH WADHWA (SENIOR CITIZEN) VS. SMT. KAMLESH WADHWA