Delhi District Court
Bela Butalia vs Rahul Butalia And Others on 17 December, 2024
IN THE COURT OF DISTRICT JUDGE-01, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CS DJ- 747/2016 (Old number) 10472-16(New Number)
Old case of year 2012
MS. BELA BUTALIA
D/o late Sh. J.S. Butalia
Presently residing at
First floor of B-26, Gulmohar Park,
New Delhi-110049.
Plaintiff
VS
1. RAHUL BUTALIA
S/o late Sh. J.S. Butalia
At First Floor,
D-54, Gulmohar Park,
New Delhi-110049.
2. SH. PANKAJ BUTALIA
S/o late Sh. J.S. butalia
At Second Floor,
B-26, Gulmohar Park,
New Delhi-110049.
3. MS. URVASHI BUTALIA
D/o late Sh. J.S. Butalia
At first floor,
B-26, Gulmohar Park,
New Delhi-110049.
..Defendants
JUDGMENT
Date of Institution : 11.01.2012
Date of Reserving judgment : 19.10.2024
Date of Judgment : 17.12.2024
CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 1 of 49
Digitally signed
by RAHUL
RAHUL BHATIA
BHATIA Date:
2024.12.19
17:06:05 +0530
JUDGMENT
1 The present suit has been filed for permanent injunction, declaration,
partition and possession of movable properties and rendition of accounts. PLAINTIFF'S CASE:-
2 The plaintiff and the defendants are the children of late Sh. J.S. Butalia and late Smt. Subhadra Butalia. The parents of the parties were co-
owners of property bearing no. B-26, Gulmohar Park, New Delhi (hereinafter referred to as Immovable Property) vide conveyance deed dated 25.01.2001. It is stated that apart from the above immovable property, parents of the parties also left various movable assets, bank accounts, fixed deposits and other household articles (collectively, Suit Property). One of the bank accounts was managed by defendant no. 1 and the other by defendant no. 2.
3 Father of the parties died intestate on 20.08.2001 leaving behind the parties to the suit and their mother as the only surviving legal heirs of the father. Thereafter, the parties to the suit relinquished their respective shares in the immovable property in favour of the mother and the property was mutated in the name of the mother. Thereafter, the mother of the parties died intestate on 12.06.2011 leaving behind the parties to the suit as her legal heirs and all the parties have inherited 1/4th share after the demise of the mother.
4 Plaintiff is in occupation of one portion of the first floor and defendant no. 3 is in possession of the other portion of the first floor. Defendant no. 2 is in possession of the second and third floor. During her life time, the mother of the parties was residing on the ground floor and one room on the ground floor was in possession of the plaintiff. After the CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 2 of 49 Digitally signed by RAHUL RAHUL BHATIA Date: BHATIA 2024.12.19 17:06:15 +0530 demise of the mother, defendant no. 1 who had been living separately in another property in the same locality since 1994 broke down the locks of the ground floor and forcibly trespassed into the ground floor. Some articles of the plaintiff kept in the ground floor portion have also been taken by the defendant no. 1.
5 It is also stated in the plaint that defendants no. 1 and 2 are propounding Will purportedly executed by the mother of the parties. 6 On these facts, the plaintiff has filed the present suit with the following prayers:-
(i) Pass a decree in favour of the plaintiff and against the defendants declaring the plaintiff as the owner of the 25 per cent share in the suit property i.e. entire B-26, Gulmohar Park, New Delhi-110049, admeasuring 300 sq. yards and demarcate her 25 per (one-fourth share) in the suit property by partitioning the same through meets and bounds in the interest of justice.
(ii) Pass a decree for permanent injunction in the favour of the plaintiff and against the defendants restraining them and their agents, servants, employees, nominees etc, from selling, alienating, assigning, parting with the possession or creating any charge/third party rights in the suit property in any manner whatsoever.
(iii) Pass a decree in favour of the plaintiff and against the defendants directing them ot render the accounts from the amount left behind by Sh. J.S. Butalia and Smt. Subhadra Butalia in their various Bank accounts and Fixed deposits that the time of their demise and the current status of CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 3 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:06:21 +0530 proceeds/amounts if invested anywhere and further directing the defendants to pay the 25 per cent of the total amount left by her parents to the plaintiff along with the interest etc.
(iv) Pass a decree in favour of the plaintiff and against the defendants for possession of the goods belonging to the plaintiff as mentioned in para 16 of the plaint.
(v) Costs of the suit may be awarded in favour of the plaintiff and against the defendants.
(vi) Such other or further orders may also be passed as this Hon'ble Court deems fit in the interest of justice.
7 Defendants were served and they appeared and filed their separate Written Statements.
WRITTEN STATEMENT OF DEFENDANT NO. 1:-
8 Defendant no. 1 has filed his written statement and has stated that the Suit Property is not amenable to partition as the same has been bequeath by way of Will dated 12.10.2006 by the mother of the parties and parties to the suit have been given their respective shares in the Suit Property. 9 It is further stated that the defendant no. 2 is also propounding a Will dated 20.11.2007 which is a false and fabricated Will which was manufactured in 2009 and back dated by the other parties in connivance with each other. It is stated that defendant no. 1 received a letter dated 03.05.2010 from Sh. H.K. Tolani, on behalf of the mother, calling upon the defendant no. 1 to come and inspect the content of the Will dated 20.11.2007. As the mother of the parties was alive at that point of time, defendant no. 1 contacted her who told him that she had not executed any Will after 12.10.2006 and he need not reply to the said notice. It is stated CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 4 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:06:29 +0530 that the same letter was not issued on behalf of the mother as the same was sent after around 3 years of the Will and was not sent directly by the mother but was sent through an Advocate. It is further stated that the said letter mentions a Power of Attorney dated 11.11.2009 in favour of the defendant no. 2 which shows the malafide intention and connivance of the plaintiff and other defendants. The said Power of Attorney was created for the sole purpose of setting up forged and fabricated Will dated 20.11.2007, which was made in 2009 but was back dated. The fraudulent Will was set up by defendant no. 2 as an attempt to appropriate the largest share in the Immovable Property along with the backyard on the ground floor while giving the front lawn of the house to defendant no. 3. Defendant no. 1 has claimed that the plaintiff had never in possession of any part of the ground floor.
10 The prayer of the plaintiff regarding the rendition of accounts of the father of the parties is resisted on the ground of limitation as the case has been filed 11 years after the death of the father. Further, it is stated that the construction on the third floor has been illegally done by the defendant no. 2 and the said area is common area for the benefits of all the parties to the suit.
11 In reply on merits, the defendant no. 1 has reiterated the Will dated 12.10.2006 and has stated that the Suit Property has been divided by her by way of said Will. The operation of the bank accounts of the mother of the parties has been denied for want of knowledge. It is further stated that although the defendant no. 2 procured a Power of Attorney from the mother through undue influence, the same became void at the death of the mother, yet the defendant no 2 was handling the financial affairs of her mother even after her death. In reply to para no. 5 of the suit, regarding CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 5 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:06:36 +0530 relinquishment of share and mutation of the Immovable Property in the name of the mother, the contents to the extent of mutation of the Immovable Property in the name of the mother in MCD records is admitted but rest of the contents are denied. The share of the parties in the suit property to the extent of one-fourth each has been denied by the defendant no. 1 on the basis of Will dated 12.10.2006. 12 As far as the possession of the Immovable Property is concerned, the possession of plaintiff on a portion of first floor, defendant no. 3 on the rest of the first floor and the possession of the defendant no. 2 of the second and third floor has been admitted. However, the possession of the plaintiff of portion of ground floor is denied. Similarly, the allegation on defendant no. 1 regarding the breaking open of lock of ground floor is denied and it is stated that defendant no. 1 is in lawful possession of the ground floor as per Will dated 12.10.2006. Other averments with respect to the conduct of the various parties as well as connivance between each other have been made. WRITTEN STATEMENT OF DEFENDANT NO. 2:-
13 Defendant no. 2 has filed his written statement and has propounded Will dated 20.11.2007 and has stated that plaintiff is only entitled to 14.22 per cent share in the immovable property. 14 In reply on merits, defendant no. 2 has denied the knowledge of any bank account of the father of the parties and has stated that he was dealing with one account of the mother for the period 2008- 2011 and there was a fixed deposit of Rs. 7 lacs lying in the said account. The other account was being managed by defendant no. 1. As far as the Share Certificates of the names of the father of the parties is concerned, it is stated that they are still in his name and the defendant no. 1 is in possession of the Share CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 6 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:06:44 +0530 Certificates of the father.
15 With respect to para 5 regarding the relinquishment and mutation of the Immovable Property, it is submitted that after the death of the father, all the parties to the suit gave their respective no objection to MCD for the purpose of mutating the same in the name of the motherand the rest of the contents are denied. The claim of one-fourth share of the plaintiff as per law of succession is denied on the basis of Will dated 20.11.2007. Further, it is claimed that the defendant no. 2 spent an amount of Rs. 10,000/- from his own earning in the year 1973-1974 and an amount of about Rs. 11 lacs in the year 2000 for raising construction on the third floor, which is in the possession of defendant no. 2. The physical possession of the plaintiff on the first floor is admitted. Allegations of defendant no. 1 living at a separate property and of defendant no. 1 forcibly occupying the ground floor by breaking of the lock is also admitted. It is further stated that the defendant no. 2 has on numerous occasions has offered the parties to render the account but no one came to scrutinize the same. WRITTEN STATEMENT OF DEFENDANT NO. 3:-
16 Defendant no. 3 has also propounded the Will dated 20.11.2007. She has denied any knowledge about the bank accounts of the mother. She has denied knowledge of the Share Certificates of the father but has stated that they are in possession of defendant no. 1 and 2. Allegations of defendant no. 1 breaking open the locks of the ground floor have been admitted. 17 The contents of para no. 5 as to the relinquishment of rights in the immovable property by the parties to the suit in favor of the mother is admitted. But on the basis of Will dated 20.11.2007, the share of the plaintiff at 25 per cent is denied. It is further claimed that the defendant no.
CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 7 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:06:51 +0530 3 spent an amount of Rs. 6 lacs in 2001-02 for construction and expansion of the portion of the Immovable Property in her possession. Possession of the parties of their respective portions, as mentioned in the plaint is admitted. The claim of the plaintiff regarding being in possession of one room on the ground floor since 2009 is also admitted. Allegation of defendant no. 1 living separately and forcibly taking possession of the ground floor as mentioned in the plaint is also admitted. It is submitted that the defendant no. 3 has propounded Will dated 20.11.2007 and that she has handed over photocopy of the same to all the parties to the suit. ISSUES:-
18 Vide order dated 24.02.2015, the following issues were framed:-
(i)Whether the Suit for the relief for the rendition of accounts is barred by limitation? (OPD -1).
(ii)Whether the suit has been improperly valued for the purpose of court fees? (OPD-1).
(iii) Whether Late Smt. Subhadra Butalia, mother of the parties, had executed a will dated 12.10.2006, bequeathing portions of the suit property to all the parties in the suit, as alleged by the Defendant No. 1 and if so, the effect thereof? (OPD - 1).
(iv)Whether late Smt. Subhadra Butalia had executed a will dated 20.11.2007, bequeathing portions of the suit property to all the parties in suit, as alleged by the defendants No. 2 and 3, and if so, the effect thereof? (OPD-2 and 3).
(v) Whether late Shubhadra Butalia had any right to execute a will in respect of the suit property and if so, the effect CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 8 of 49 Digitally signed by RAHUL RAHUL BHATIA Date: BHATIA 2024.12.19 17:06:57 +0530 thereof? (OPP).
(vi) If issues No. 3 to 5 are decided in favour of the plaintiff, whether she is entitled to a decree of partition against the defendants, thereby declaring the parties to be owners of 25% share each in the suit property? (OPP).
(vii) If it is held that the suit property is to be partitioned, whether it can be partitioned, whether it can be partitioned by metes and bounds and if not, what should be the mode of partition? (OPP).
(viii) Whether the Plaintiff is entitled to a decree of permanent injunction against the defendants, restraining them from alienating, assigning, parting with possession or creating any third party interests in the suit property? (OPP).
(ix) Whether the plaintiff is entitled to a decree of rendition of accounts against the defendants in respect of the amounts left behind by late J.S Butalia and late Smt. Subhadra Butalia, parents of the parties in bank accounts and fixed deposits, as per the averments made in para 4 and 5 of the plaint and, if so, whether the parties are entitled to 25% share each in the same amount? (OPP).
(x)Whether the plaintiff is entitled to a decree of possession in respect of the goods/articles belonging to the mother of the parties, as mentioned in para 15 of the plaint? (OPP).
(xi)Relief.
19 Since, the defendants have propounded two separate Wills, on the CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 9 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:07:13 +0530 request of Ld. Counsel for plaintiff and no objection of the defendants, it was directed that the defendants would lead the evidence first and thereafter the plaintiff's shall lead her evidence. EVIDENCE:-
20 As per directions, defendant no. 1 Sh. Rahul Butalia led his evidence first and examined himself as D1W1 and relied upon the following documents:-
(I) Ex. D1W1/A - Evidence by way of Affidavit of D1.
(ii)Ex. DW1/1 - Will Dt. 12.10.2006.
(iiI) Ex. DW1/2 - Original Airtel Bills issued in the name of wife of D1 for the Period 23.07.2009 till 22.04.2012.
(iv)Ex. D7/D2 - Police Complaint Dt. 15.11.2011.
(v)Ex. D2/D2 - Original Letter Dt. 05.10.2011.
(vi) Ex. DW1/3 - Complaint Dt. 29.01.2012.
(vii) Ex. DW1/4 - Original Letter Dt. 17.10.2011 Addressed to Sh. A.C. Butalia, whereby the receiving of a copy of the Will Dt. 20.11.2007 was denied by the D1.
(viii)Ex. DW1/5 - Original Letter Dt. 14.11.2011 Sent by Sh. A.C. Butalia and Received by D1.
(ix) Ex. D3/D2 - Original Letter Dt. 15.11.2011 Whereby the Executor of The Alleged Will Dt. 20.11.2007 authorised the Plaintiff and Other Co-Defendants to take possession of the areas of B-26 Gulmohar Park. (@ 1745).
(x) Ex. DW1/6 (Colly) - Letters Dt. 20.11.2011 addressed to the Commissioner, DDA whereby D1 informed the Authorities that the Plaintiff and other Co-Defendants CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 10 of 49 Digitally signed by RAHUL RAHUL BHATIA Date: BHATIA 2024.12.19 17:07:27 +0530 Along with the Executor of the alleged Will, in connivance with each other, would fraudulently attempt to have the Subject Property mutated in their names.
(xi) Ex. DW1/7 - Letter Dt. 21.11.2011 By D1 To The Post Master Of Gulmohar Park Post Office Apprising Him About the death of the mother of the parties and asking him not to take any action on any request of any Legal Heir with respect to deposit of Late Mother.
(xii) Ex. DW1/8 - Letter Dt. 21.11.2011 by the D1 to the Branch Manager, State Bank of India, Asian Games Village Complex Branch, Shahpur apprising him of the circumstances and requesting him not to take any action for Encashment of monies.
(xiii) Ex. D1/D2 - Letter Dt. 03.05.2010 sent by Sh. H. K. Tolani to D1 Calling upon him to come and inspect the content of the Will Dt. 20.11.2007.
(xiv) Ex. DW1/9 - Email Dt. 06.05.2010 Sent by D2 to the other parties stating that the alleged POA in his favour is only a preventive device and that there will be a complete Status Quo on the Will.
(xv) Ex. D1 - Email Dt. 15.08.2011 Sent by The Plaintiff to D1 asking for an extension of her floor and further demanding Rs 7,00,000 From D1 which was allegedly said to be borrowed By D1 From the Late Mother. (xvi) Ex. DW1/10 - Affidavit Under Section 65-B. (xvii) Ex. D2 - Email Dt. 01.10.2011 wherein it is stated that the Plaintiff has been residing on the First Floor of the CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 11 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:07:35 +0530 Property and that it is D1 who has always been residing on the Ground Floor.
(xviii) Ex. DW1/11 - Postal Order dt. 24.03.2014 with reply received from RTI dt. 18.03.2014.
(xix) Ex. P1/D1 - Conveyance Deed in the name of J. S. Butalia and Subhadra Butalia.
(xx) Ex. D1W1/6 - Email dt. 22.10.2007 from D1 to D3. (xxi) Ex D1/D2 - Letter Dt. 03.05.2010 sent by Sh. H. K. Tolani to D1 Calling upon him to come and inspect the content of the Will Dt. 20.11.2007.
(xxii) Ex. D1W1/D2 - Email Dt. 22.10.2007 from D3 to D1. (xxiii) Ex. D1W1/D4 - Email Dt. 13.07.2011 from D3 to D1.
(xxiv) Ex. D1W1/D3 - Email dt. 13.07.2011 From D1 to his family and D3.
(xxv) Ex. D1W1/4 - Letter Dt. 17.10.2011 by D1 to A.C. Butalia, whereby the receiving of a copy of the Will Dt. 20.11.2007 was denied by the D1.
(xxvi) Ex. D1W1/D5 - Judicial Record of Civil Suit 250/2011 and 252/2011.
(xxvii) Mark D1W1/D1 - Email dt. 08.11.2007 from D1 to D3.
(xxviii)Mark D1W1/D2 - Email dt. 13.08.2007 from D3 to D1.
(xxix)Ex. D1W1/D1 - Email dt. 21.10.2007 from D3 to D1. (xxx)Mark C-1 - Site Plan (Coloured).
(xxxi) Mark C-2 - Lease Agreement Dt. 31.01.2005.
CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 12 of 49 Digitally signed by RAHUL RAHUL BHATIA Date: BHATIA 2024.12.19 17:07:42 +0530
(xxxii) Mark C-3 - Residents Directory Of 2003 of Gulmohar Park.
(xxxiii). Mark C-4 - Emails dt. 08.11.2009, 08.11.2009 and 01.05.2010.
(xxxiv). Mark C-5 - Email Dt. 12.07.11 from Wife of D1 to D3.
(xxxv). Mark C-6 - Email Dt. 12.07.2011 from D3 to Wife of D1.
(xxxvi). Mark C-7 - Email Dt. 12.07.2011 from Wife of D1 to D3.
(xxxvii).Mark C-8 (Colly) - Emails Between D1 and D3 Sh. Ravinder Kumar (D1W2).
(xxxviii). Ex. D1W2/A - Order no. 4971-5060/HAR/SD Dt. 10.04.2018 whereby it is stated that the summoned record has been destroyed.
21 Thereafter, defendant no. 1 examined Sh. Ravinder Kumar as D1W2 who relied upon Ex D1W2/A being the order stating that the summoned record has been destroyed.
22 Thereafter, defendant no. 1 examined Sh. Devender Gautam as D1W3 who relied upon EX. D1W3/A - The records pertaining to the number 011-26523447.
23 Thereafter, defendant no. 1 examined Sh. S.P. Sharma as D1W5 who relied upon following documents:-
(i). EX. D1W5/A - Letter Dt. 21.11.2011 by the Defendant No. 1 to the Branch Manager, State Bank of India, Asian Games Village Complex Branch, Shahpur.
(ii). EX. D1W5/B: Letter Dt. 28.05.2018.
CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 13 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:07:49 +0530
24 Thereafter defendant no. 1 examined Sh. H.K. Tolani himself D1W6 who relied upon the following documents:-
(i). EX. D1/D2 Letter Dt. 03.05.2010 sent by Sh. H. K. Tolani to D1 Calling upon him to come and inspect the content of the Will Dt. 20.11.2007.
(ii). EX. D1W6/A E-Mail Dt. 08.05.2010 By Tolani to D2 "Intimation Letter Has Been Sent to the parties to the suit as per their mothers' wish".
(iii). EX. DW1/02 4 original Acknowledgment cards.
25 Thereafter, defendant no. 1 examined Adesh Chander Butalia as D1W7 who relied upon following documents:-
(a). Ex. DlW7/1 (COLLY) Undertaking regarding the receiving of the Will of 2007 bearing signatures of Plaintiff, D2 and D3 alongwith Five Papers of the last Will and Testament of Subhadra Butalia dt. 20.11.2007.
(b). EX. D1W7/2 Original Letter Dt. 17.10.2011 by D1 to A.C. Butalia, whereby the receiving of a copy of the Will Dt. 20.11.2007 was denied by the D1.
(c). EX. D1 W7/3 Original Letter Dt. 14.11.2011 sent by Sh. A.C. Butalia to D1.
26 Thereafter, defendant no. 2 Sh. Pankaj Butalia examined himself as D2W1 who relied upon following documents:-
(i). Ex-D2W1/A Affidavit by way of Evidence dates 20.03.2015 of D2.
(ii). Ex-D2W1/1 Will dated 20.11.2007 executed by the mother of the parties.
CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 14 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:07:59 +0530
(iii). Ex-D2W1/2 Letter dated 07.11.2009 from the mother of the parties to Sh. A.C. Butalia.
(iv). Ex-D2W1/3 MCD tax receipts for the year 2009-10.
(v).Ex-D2W1/4 MCD tax receipts for the year 2010-11.
(vi). Ex-D2W1/5 MCD tax receipts for the year 2011-12.
(vii).Ex-D2W1/6 Electricity Bill.
(viii).Ex-D2W1/7 Credit Card Statement
(ix). Ex-D2W1/8 Bank Statement of July 2008.
(x).Ex-D2W1/9 Bank Statement of April 2010
(xi). Ex-D2W1/D1A Email dated 16.10.2009 by D2 to all family members.
(xii). Mark D1A Emails dated 21.09.2009 written by Meera to all the siblings.
(xiii).Ex-D2W1/D2 Email dated 06.05.2010 by D2 to all his siblings.
(xiv). Ex-D2W1/D3 Email dated 13.07.2011 sent by D2.
(xv). Ex-D2W1/D4 FDs drawn on SBI, Asian Games Village Branch.
(xvi). Ex-D2W1/D5 Email dated 09.07.2011 by D3 to Plaintiff, D1 and D2.
(xvii) Ex-D2W1/D6 Email dated 26.09.2012 of D3 containing information regarding Will of 2007 to all the parties in late 2012.
(xviii). Ex-D5/D2 Letter dated 05.10.2011. (xix).Ex-D1W1/5 Letter dated 14.11.2011.
CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 15 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:08:06 +0530 (xx).Ex-D3/D2 Letter dated 15.11.2011. (xxi).Ex-D7/D2 Police Complaint dated 15.11.2011. (xxii).Ex D2W1/D7 Email dated 16.10.2009 sent by D2 to Plaintiff, D3, D1 and Meera Butalia.
(xxiii).(Ex-D2W1/D8) (Colly) Email dated 16.10.2009 sent by D2 to Plaintiff, D1, D3 and Wife of D1.
(xxiv).Ex-D2W1/D9 Emails dated 16.10.2009 sent by D2 to Plaintiff, D1, D3 and Meera Butalia.
(xxv). Ex-D2W1/D11 Emails dated 16.10.2009 sent by D2 to Plaintiff, D1, D3 and Meera Butalia.
(xxvi). Ex D2W1/D11 Emails dated 13.07.2011 sent by D2 to the parties to the suit.
27. Thereafter, Ms. Kanta Butalia was examined as D2W2 who relied upon following documents:-
(i). Ex-D2W2/A Evidence by way of Affidavit.
(ii). Ex-D2W1/1 Will dated 20.11.2007.
(iii). Ex-DW1/1 Will dated 12.10.2006.
(iv). Ex-D2W1/2 Letter dated 07.11.2009 by H.K Tolani to Plaintiff and Defendants.
28. Thereafter, plaintiff led his evidence as PW1 who relied upon the following documents:-
(i)Ex. PW-1/1 - Site Plan (Coloured).
(ii) Ex. D2W1/D2 - Email dt. 06.05.2010.
(iii) Ex. P-1/D-1 - Application for mutation dt. 22.09.2003 CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 16 of 49 Digitally signed RAHUL by RAHUL BHATIA BHATIA Date: 2024.12.19 17:08:12 +0530 along with other documents.
(iv)Ex. P-1/D-2 - Police Complaint dt. 08.11.2011.
(v)Ex. P-1/D-3 - Police Complaint dt. 07.12.2011.
(vi) Ex. P-1/D-4 - Email dt. 07.12.2011 written by the Plaintiff to D3.
(vii) Ex. PW-1/DX-1-4 - Photographs taken in the living room of the Suit Property after the demise of the mother.
(viii) Ex. PW-1/D-5 - Email dt. 27.04.2016.
(ix) Ex. PW-1/D-6 -Email dt. 27.04.2016.
(x) Ex. PW-1/D-7 - Email dt. 04.07.2018 sent by the Plaintiff to D2.
(xi)Ex. PW-1/D-8 - Email dt.13.09.2018 sent by the Plaintiff to D1.
(xii) Mark PW-1/X1 - Email dt. 09.06.2012.
(xiii) Ex. PW-1/D-9 - Email dt. 30.11.2014.
(xiv)Ex. PW-1/D-10 - Email dt. 26.06.2014.
(xv) Mark PW-1/X2 - Email dt. 01.05.2010. (xvi)Mark PW-1/X3 - MCD Property Tax Record dt. 28.03.2010.
ARGUMENTS OF THE PLAINTIFF:-
29. Ld. counsel for plaintiff has submitted that the present suit has been filed for the partition of the estate left by the parents of the parties and comprehensive list of assets of the parents has been mentioned in the plaint. It is stated that the CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 17 of 49 Digitally signed by RAHUL RAHUL BHATIA Date: BHATIA 2024.12.19 17:08:23 +0530 conveyance deed dated 25.01.2001 Ex P1/D1 was executed in their joint names. It is further submitted that after the demise of the father, all the parties gave their respective NOCs in favour of the mother for mutation of the Immovable Property in her name. It is stated that near filing of NOCs Ex P1/D1 (colly) was only for the purpose of mutation in the name of the mother and does not give any legal title to the mother and as such the mother could not have bequeathed the Immovable Property by her Will. It is further submitted that both the Wills propounded by defendant no. 1 and defendant no. 2 are of suspicious nature and have not been proved in accordance of law. It is submitted that as none of the Wills have been proved and the parents of the parties have died intestate, all the parties are entitled to one- fourth share in the estate of their parents.
ARGUMENTS OF DEFENDANT NO. 1:-
30. On this insistence of defendant no. 1, three issues were framed regarding the limitation of the suit with respect to rendition of accounts of the father of the parties, improper valuation for the purpose of court fees and whether the Will dated 12.10.2006 was validly executed by the mother of the parties.
31. Ld. counsel for defendant no. 1 has submitted that the father of the parties passed away on 20.08.2001. The present suit with regard to rendition of accounts of the father of the parties has been filed on 10.01.2012 i.e. after a period of 10.5 years. It is submitted that limitation period for relief of rendition CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 18 of 49 Digitally signed by RAHUL RAHUL BHATIA Date: BHATIA 2024.12.19 17:08:29 +0530 of accounts is three years in terms of the Article 5 of the Schedule of the Limitation Act and hence the present suit is barred by limitation.
32. No arguments or averments have been led by the defendant no. 1 with respect to improper valuation of the suit for the purpose of court fees.
33. With respect to the Will dated 12.10.2006, Ex D1/W1/1, it is submitted by Ld. Counsel for defendant no. 1 that the said Will was validly executed by the mother of the parties. It is submitted that D1/W7, one of the witnesses of the Will has stated that the mother of the parties had executed Will dated 12.10.2006. Thus, it is submitted that the Will dated 12.10.2006 is validly proved.
34. With respect to Will dated 20.11.2007, Ex D2W2/1, it is stated by Ld. Counsel for defendant no. 1 that the said Will was got executed by defendant no. 2 by way of coercion along with a Power of Attorney. It is stated that the mother of the parties was suffering from Alzheimer's disease during her final years and was not of sound mind at the time of the alleged execution of the Will, which has been supported by the testimony of D1W6. It is submitted that as per Section 61 of the Indian Succession Act, 1925, any Will obtained by way of fraud or coercion is void. It is stated that the defendant no. 2 along with the Will dated 20.11.2007 also executed alleged power of attorney dated 11.11.2009, the contents of which would show that both these documents were obtained by the defendant no. 2 CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 19 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:08:36 +0530 under coercion from the mother of the parties.
35. With respect to issue no. 5, as to the right of the mother of the parties to execute Will in respect of Immovable Property, Ld. Counsel for defendant no. 1 has submitted that the mother of the parties was not the sole and absolute owner of the Immovable Property and as such, did not have capacity to execute any Will. It is submitted that the parties only gave their respective NOCs, Ex P1/D1(colly) which was for the purpose of mutation of the immovable property in the name of the mother. It is submitted that mere giving of the said NOC does not make the mother of the parties absolute owner of the Immovable Property. Letter dated 11.03.2004, Ex P1/D1(colly), issued by the MCD is taken as a support of the arguments that the mutation would not result in the ownership of the mother of the parties. It is further submitted that the defendant no. 2 in his written statement has only admitted furnishing of NOC to MCD and has not admitted to the relinquishment of the shares by the parties in favour of their mother. Further, it is submitted that defendant no. 2 has denied in his cross examination that the parties relinquished their shares in favor of their mother. Thus, the shares of the parties were never transferred to the mother and she had no authority to execute any Will with respect to the immovable property. It is further submitted that the arguments of Ld. Counsel for defendant no. 2 that there was an oral settlement with respect to the ownership of the immovable property in favour of their mother is neither pleaded in the CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 20 of 49 Digitally signed by RAHUL RAHUL BHATIA Date: BHATIA 2024.12.19 17:08:44 +0530 written statement of defendant no. 2 nor it has been proved by any of the parties. As such, it is submitted that the mother of the parties did not have any right to bequeath the complete Immovable Property.
36. With respect to issue no. 6, as to the entitlement of the parties to 25 per cent share in the Suit Property, it is submitted that the mother of the parties was the owner of only 60 per cent of the immovable property and as such, the said 60 per cent has to be devolved upon all the four parties in equal proportion. ARGUMENTS OF DEFENDANT NO. 2:-
37. It is submitted by Ld. Counsel for defendant no. 2 that the Will dated 12.10.2006 Ex D1W1/1 has not been proved in accordance with law. It is submitted that the original of Ex D1W1/1 has never been produced in the court and as such this issue cannot be decided in favour of defendant no. 1 to hold the said Will as a genuine and valid Will. It is submitted that vide order dated 15.10.2012, defendant no. 1 had stated that he would not be able to file the original Will as he wishes to file a probate petition and as such an inspection of the original Will was granted. Thereafter, on 09.10.2013, an application moved by defendant no. 1 seeking to modify the above order by stating that the original of Ex D1W1/1 is with defendant no. 3 was allowed. Thus, it is submitted that in the absence of original of the Will, the same cannot be held to be proved. Further, D1W7, one of the witnesses to the Will has stated in his cross examination that he cannot say with certainty that Ex D1W1/1 CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 21 of 49 Digitally signed by RAHUL RAHUL BHATIA Date: BHATIA 2024.12.19 17:08:51 +0530 is the same document which he had signed as the original has not been shown to them.
38. With respect to Will dated 20.11.2007, Ex D2W1/1, it is submitted that the witness to the Will has been examined who has proved the execution of the said Will. Apart from this, Ld. Counsel for defendant no. 2 has relied upon various communications between the parties to show that the Will was validly executed and that all the parties to the suit were aware of the Will of the mother even before her demise. It is further submitted that once the plaintiff and the defendant no 1 have taken a stand that the immovable property was relinquished to the mother, they cannot now claim that mother was not the complete owner of the immovable property and could not have made the Will dated 20.11.2007. It is further submitted that no evidence has been led by any party contesting the said Will to the effect that the mother of the parties did not have mental capacity to understand the terms of the Will and hence was not validly executed. The evidence of both the attesting witnesses regarding the said Will and its date of execution is beyond reproach. Learned Counsel of the Defendant No. 2 has relied upon Judgments of Hon'ble High Court of Delhi in Uma Shankar v. Anand Prakash, 2018 SCC OnLine Del 12867, Raminder Ahluwalia v. Sandeep Walia, 2019 SCC OnLine Del 7278 and Uma Gupta v. Indu Gupta, CS(OS) No. 63/2019 - Order dt. 01.02.2019 to substantiate that once the parties are in settled position of their respective portions under the Will, suit CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 22 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:08:58 +0530 of partition is not maintainable.
39. With respect to the right and capacity of the mother of the parties to execute a Will with respect to the immovable property, it is submitted that the mother of the parties had a right to execute the Will. It is submitted that the plaintiff has herself asserted that the mother was the sole owner of the property and she has made a specific averment that all the parties relinquished their shares in the immovable property in favour of their mother. Further, the suit is cast in a way that the plaintiff is claiming partition of the estate of the mother and not the father and as such there is a direct admission on her behalf that the mother was the owner of the suit property. Further, all the parties to the suit have admitted that the mother was the sole owner of the immovable property and once such admission is made, the parties cannot lead any evidence contrary therein. The parties have led evidence which have proved in the positive that the mother of the parties was the sole owner of the immovable property. It is stated that since the parties have led pleadings to the effect that the mother was the complete owner of the suit property, they cannot lead any evidence which is contrary to their pleadings that she was not the complete owner of the suit property. Learned Counsel of the Defendant No. 2 has relied upon the following judgments to substantiate the point:-
(i)Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491.
(ii)Prakash Rattan Lal v. Mankey Ram, 2010 SCC OnLine Del 184.
(iii) Mustaque Ahmed Khan v. Mahammad Nasim, 2010 SCC OnLine Cal CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 23 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:09:06 +0530 2208.
(iv)Trojan & Co. Ltd. v. N.N. Nagappa Chettiar, Manu/SC/0005/1953.
(v) Union of India v. Ibrahim Uddin, Manu/SC/0561/2012.
(vi) Arikala Narasa Reddy v. Venkata Ram Reddy Reddygari, Manu/SC/ 0079/ 2014.
(vii)State of Orissa v. Mamata Mohanty, Manu/SC /0 110/ 2011.
(viii)National Textile Corporation Ltd. v. Nareshkumar Badrikumar Jagad, Manu/ SC/1028/2011.
(ix)M.N. Saji v. K.R. Krishnakumar, RSA No. 186/2022 - Judgment dt. 20.09.2023.
(x)State of H.P. v. Baldev, Manu/HP/ 0950/2015.
(xi)Sha Mulchand & Co. Ltd. v. Jawahar Mills Ltd., (1952) 2 SCC 674.
(xii)Hardev Singh v. Gurmail Singh, (2007) 2 SCC 404.
(xiii)Mukhinder Singh v. Gurbux Singh, 2012 SCC OnLine Del 664.
40. It is further stated that enough evidence has come on record to form the basis/necessary inference that the parties entered into an oral family settlement and the parties treated the mother as the sole and complete owner of the Immovable Property. This is further evident from the conduct of the parties which show that the mother was treated as the owner of the Immovable Property by all the parties concerned. It is submitted that the conduct of the parties show that there was a family settlement after the demise of the father by way of which the mother was treated as the owner of the Immovable Property. Learned Counsel of the Defendant No. 2 has relied upon the following judgments to substantiate that an oral family settlement can be inferred from the conduct of the parties:-
CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 24 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:09:15 +0530
(i) Prem Prakash V. Champa Devi and Ors., MANU/DE/ 3680/2012.
(ii)Bhagwan Krishan Gupta V. Prabha Gupta, 2007 SCC OnLine Del 1706.
(iii)Vimla Monga V. Ramlubhai, 2014 SCC OnLine Del 1347.
41. It is further submitted that once a family settlement whether oral or otherwise is proved before a court, the court should lean in favour of the family settlement rather than setting them aside on technicalities. Learned Counsel of the Defendant No. 2 has relied upon the following judgments to substantiate the point:-
(i)Kale V. Deputy Director of Consolidation, 1976 3 SCC 119.
(ii)Sahu Madho Das v. Pandit Mukand Ram, 1955 SCC OnLine SC 42.
(iii)Hari Shankar Singhania (2) v. Gaur Hari Singhania, (2006) 4 SCC 658.
(iv)K.K. Modi v. K.N. Modi, (1998) 3 SCC 573.
(v)Smt. Rama Devi and Another vs Mahendra Pal and Others, Writ Petition (M/S) No. 689/2015.
(vi)Krishan Dass Gupta V. State, MANU/DE /0570/2012.
(vii)Bishnu Das V. Bishwatosh Das and Ors., 2015 SCC OnLine Del 9614.
(viii)Ravinder Kaur Grewal & Ors V. Manjit Kaur & Ors., (2020) 9 SCC
706.
42. It is submitted that as there is no assertion of execution of a relinquishment deed or any document in writing, there is no question of applicability of Registration Act or the Stamp Act and the disability mentioned in those Acts would not apply to the present case. Learned Counsel of the Defendant No. 2 has relied upon the following judgments to substantiate the point:-
(i) Gaj Singh Yadav V. Satish Chander Yadav and Ors., MANU/DE CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 25 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:09:22 +0530 /0550/1999.
(ii) Muthusamy Gounder v. Ammasi Gounder, 2016 SCC OnLine Mad 23262.
(iii)Subraya MN V. Vittala MN & Ors., MANU/SC /0733 /2016.
(iv) Thulasidhara v. Narayanappa, (2019) 6 SCC 409.
(v)Korukonda Chalapathi Rao and Ors. V. Korukonda Annapurna Sampath Kumar, MANU/SC/ 0757/2021.
43. Thus, it is submitted that as the ownership of the immovable property has been admitted by the parties, in terms of Section 58 of the Indian Evidence Act, the admission need not be proved and should be accepted by the Court as such without the insistence of any evidence for the same.
44. Defendant no. 2 had filed an application under Section 340 CrPC and this case was listed along with the said application as the orders in both the matters were to be pronounced together and arguments in the other application were not advanced. Defendant no. 2 withdrew the application under Section 340 CrPC on 19.10.2024. Thereafter, the present matter was listed for orders.
ANALYSIS AND REASONING:-
ISSUE NO. 1:- Whether the Suit for the relief for the rendition of accounts is barred by limitation? (OPD-1).
45. The onus of proving this issue was on defendant no. 1. Defendant no. 1 has submitted that the father of the parties expired on 20.08.2001 and the present suit has been filed in 2012 i.e. after a period of 10.5 years from the date of demise of the father. Ld. Counsel for defendant no. 1 has relied CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 26 of 49 Digitally signed by RAHUL RAHUL BHATIA Date: BHATIA 2024.12.19 17:09:29 +0530 upon Article 5 of the Limitation Act to state that the present suit is barred by limitation. However, Article 5 of the Limitation Act deals with suits for account and share of the profits of a dissolved partnership. The present case is for partition of the estate of the father as well as the mother of the parties and rendition of account is a consequential relief of the said partition. Limitation to file a suit for partition starts from the ouster of a party from the joint estate or dispute between the parties. Since the dispute between the parties did not arise till the death of the mother of the parties and the suit is filed within six months of the demise of the mother, the prayer of rendition of account cannot be said to be barred by limitation. Thus, the issue is decided against defendant no. 1 and is answered in negative. ISSUE NO. 2:- Whether the suit has been improperly valued for the purpose of court fees? (OPD-1).
46. The present issue was also framed on the insistence of defendant no. 1 and the onus was also put on him. However, defendant no. 1 has led no evidence to show that the valuation of the suit is different from what is claimed in the plaint. No arguments have been led on the said issue. As the defendant no. 1 has produced no evidence and the onus was on him, this issue is also decided against defendant no. 1 and is answered in negative. ISSUE NO. 3:- Whether Late Smt. Subhadra Butalia, mother of the parties, had executed a will dated 12.10.2006, bequeathing portions of the suit property to all the parties in the suit, as alleged by the Defendant No. 1 and if so, the effect thereof? (OPD - 1).
47. Defendant no. 1 has propounded Will dated 12.10.2006, Ex D1W1/1. The onus was on defendant no. 1 to prove the Will as per law. The defendant no. 1 has examined himself and tendered a copy of the Will as CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 27 of 49 Digitally signed by RAHUL RAHUL BHATIA Date: BHATIA 2024.12.19 17:09:37 +0530 Ex D1W1/1. Vide order dated 15.10.2012, the defendant no. 1 had stated that Ex D1W1/1 cannot be produced in original as the defendant no. 1 wanted to file probate case at that point of time. As such, defendant no. 1 was directed to give an inspection of the original Will to the Ld. Counsel for plaintiff. On 09.10.2013, an application by defendant no. 1 for modification of order dated 15.10.2012 was filed whereby it was stated that due to bona fide miscommunication, it was stated that the defendant no. 1 is not in possession of the Will whereas the same is in possession of defendant no. 3. Although the said application was allowed and it was clarified that the original Will was not with defendant no. 1 but the effect of non-production of the Will was left open to be decided with the case. The original of Ex D1W1/1 has never been produced in the present case. No efforts have been taken by defendant no. 1 to summon defendant no. 3 for production of the original Will. Defendant no. 1 also did not take any steps under Section 65/66 of the Indian Evidence Act, 1872 to prove Ex D1W1/1 by any other method permissible by law. As per the claim of defendant no. 1, D1W7 and D2W2 were the attesting witnesses of Will Ex D1W1/1. Defendant no. 1 got examined one of the witnesses of the Will who is D1W7. D1W7 has stated in his evidence that he was a witness to a Will dated 12.10.2006 and he had signed on all the pages of the original of the same. He further stated that since Ex D1W1/1 is a photocopy, he cannot comment with certainty that this is a copy of the Will dated 12.10.2006 or not.
48. Thus, what can be gathered from the above discussion is that the original of Ex D1W1/1 has never been produced before the Court. The witness to the Will has also not confirmed that Ex D1W1/1 is the correct CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 28 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:09:46 +0530 copy of the Will he had witnessed on 12.10.2006. Thus, in the absence of the original Will and the Will not being proved in accordance with law, the Will dated 12.10.2006 cannot be taken as a validly executed Will of the deceased mother of the parties. Thus, this issue is also decided against defendant no. 1 as the Will has not been proved and as such will have no effect on the present case.
Issue no. 4:-Whether late Smt. Subhadra Butalia had executed a will dated 20.11.2007, bequeathing portions of the suit property to all the parties in suit, as alleged by the defendants No. 2 and 3, and if so, the effect thereof? (OPD-2 and 3).
49 Another Will dated 20.11.2007 has been propounded by defendant no. 2 and 3 and the same is also witnessed by the two witnesses who had witnessed the execution of Will dated 12.10.2006. Ld. Counsel for defendant no. 2 has submitted that the Will dated 20.11.2007, Ex D2W1/1 is a valid Will and the last and final Will of the mother of the parties. Ld. Counsel for defendant no. 2 has submitted that the Will is duly proved as both the attesting witnesses of the Will have been examined in the present case and their evidence is beyond reproach. Both the attesting witnesses have admitted to attesting the said Will in the presence of the testator who had signed the Will in the presence of both the witnesses. It is submitted that the Will has been proved as per law and even the conduct of the parties prior to the execution of the Will and subsequent to the same will show that all the parties were aware of the preparation of the new Will and execution of the same at the relevant point of time. Thus, it is submitted that the defendant no. 2 has been able to prove the valid execution of the Will Ex D2W1/1. He has further stated that both the witnesses have attested to the CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 29 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:09:53 +0530 mental capacity of the mother and no evidence has been led to prove that the mother was incompetent to execute the said Will. It is stated that only vague pleadings regarding mental incapacity have been raised without any proof or evidence thereof. As such, Ex D2W1/1 is duly proved. Defendant no. 2 has relied upon the following judgments:-
(i) Murthy V. C. Saradambal, (2022) 3 SCC 209.
(ii)Raj Kumari v. Surinder Pal Sharma, (2021) 14 SCC 500.
50. Per contra, Ld. Counsel for defendant no. 1 has submitted that Ex D2W1/1 was executed without the free consent of the mother. It is stated that as per Section 59 of the Indian Succession Act, a person needs to be of sound mind to execute a Will. It is stated that the defendant no. 2 has not been able to establish that the mother of the parties was of sound mind at the time of execution of Ex D2W1/1. Testimony of D1W6 has been relied upon to show that the mother of the parties was not in a fit state of mind at the time of execution of the Will. It is further submitted that Ex D2W1/1 was obtained by coercion on behest of defendant no. 2 alongwith Power of OA Attorney dated 11.11.2009. which has conveniently not been placed on record by defendant no. 2. Ld. Counsel for plaintiff has submitted that the defendant no. 2 has not been able to prove the Will Ex D2W1/1 in accordance with law and as such the same cannot be given any effect.
51. Proving a Will is an onerous task as the maker of the Will is not available to give testimony in support of the Will and the same has to be proved by the attesting witnesses as to the valid execution of the Will. The onus of proving the Will is on the propounder of the Will as to the valid execution as well as the fit mental state of the testator. Ld. Counsel for defendant no. 2 has relied upon the judgment of Hon'ble Supreme Court of CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 30 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:10:01 +0530 India in Murthy Vs. C. Saradambal (supra) to state that the onus on the plaintiff is with respect to proving the execution of the Will in a sound and disposing state of mind. Hon'ble Supreme Court of India in the said case has held as follows:-
"30. Before considering the correctness of the impugned judgment of the Division Bench of the High Court, it would be useful to refer to the following judgments of this Court on proof of wills:
(a) One of the celebrated decisions of this Court on proof of a will, reported in MANU/SC/0115/1958 : AIR 1959 SC 443 is in the case of H. Venkatachala Iyenger v. B.N. Thimmajamma, wherein this Court has clearly distinguished the nature of proof required for a testament as opposed to any other document. The relevant portion of the said judgment reads as under:-
"18. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting Under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this Section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This Section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 31 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:10:09 +0530 will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."
In fact, the legal principles with regard to the proof of a will are no longer res integra. Section 63 of the Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872, are relevant in this regard. The propounder of the will must examine one or more attesting witnesses and the onus is placed on the propounder to remove all suspicious circumstances with regard to the execution of the will. In the above noted case, this Court has stated that the following three aspects must be proved by a propounder:
(i) that the will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and
(ii) when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of propounder, and
(iii) if a will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounded can be taken to be discharged on proof of the essential facts indicated therein."
52. Similarly, the Hon'ble Supreme Court of India in Niranjan Umesh Chandra Joshi Vs. Mrudula Jyoti Rao & Ors AIR 2007 SC 614 has held as follows:-
"19. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 32 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:10:17 +0530 sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai Shedage MANU/SC/0016/2002 : [2002]1SCR132 and Sridevi and Ors. v. Jayaraja Shetty and Ors. MANU/SC/0065/2005 : AIR2005SC780 ]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document."
53. Thus, what appears from the reading of the above two judgments, it is clear that the initial onus of proving a Will is on the propounder of the Will. The propounder has to initially discharge the onus as to the valid execution of the Will and it being a genuine document. He is also required to prove that the testator had put his signature on the Will out of his own free will and was having a sound dispossession of mind and understood the nature and effect thereof.
54. On going through the pleadings of defendant no. 2, it is revealed that defendant no. 2 has nowhere mentioned in his written statement or in his evidence that the mother of the parties was of sound disposing mind and that the Will was executed out of her own free will. Defendant no. 2 has relied upon the testimony of D1W7 and D2W2 for the valid execution of the Will. D1W7 in his cross examination by defendant no. 2 has admitted his signatures on D2W1/1 i.e. Will dated 20.11.2017. D1W7 has admitted his signature on the Will D2W1/1 and has stated that he has seen the testator sign the Will on all the five pages. He has stated in his cross examination that the testator was in a fit state of mind at the time of execution of the Will. However, he has stated that he could not comment CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 33 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:10:23 +0530 whether the mother signed the document out of her free will or under someone's pressure. He has stated that apart from the mother and the two witnesses, defendant no. 2 and 3 were present at the time of the execution of the Will. Similarly, D2W2, the other witness of the Will has also admitted to the execution of the Will by the deceased and has admitted her signing the Will on all the five pages. She has also stated that the mother was well-oriented and in her state of mind when she signed Ex D2W1/1. She has further stated that her affidavit in evidence, Ex D2W2/A was drafted by her husband and defendant no. 3 had taken her somewhere probably the High Court to sign the affidavit. She had made no statement as to whether the mother had executed the sale deed out of her own free will or not.
55. Defendant no. 1 has also examined D1W6 one Sh. H.K. Tolani who had sent letter Ex D1/D2 dated 03.05.2010 to the defendants with respect to the reading of the Will. The said witness is stated to have known the mother of the parties since 1995. He has stated that the contents of Ex D1/D2 were discussed in the presence of plaintiff, defendant no. 2 and their mother. The letter was drafted and sent for correction to the defendant no. 2 and after receiving confirmation from him the same was sent to the parties to the suit. With regards to the mental capacity of the mother of the parties, D1W6 has stated that she was not in a fit state of mind since last two years. She had stopped identifying people and would come under influence of any person known to her. He has stated that she was also suffering from loss of memory. In his re-examination, the witness has stated that the contents of letter dated 03.05.2010 were dictated by defendant no. 2 and defendant no. 2 paid all the professional charges to him. Although in Ex D1/D2, the CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 34 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:10:32 +0530 witness had stated that he has a copy of the Will, however, in his evidence, he has stated that he did not have a copy of the Will and in case anyone had sought inspection at that time he would have requested his client to provide a copy for inspection. He has further stated that the mother of the parties was unfit since last five years of her life and not in position to take any decision on her own and had even stopped recognizing the witness for the last two years. He has denied knowledge as to any manipulation by defendant no. 2 in the proceedings of the mother of the parties.
56. Thus, the evidence in support of D2W1/1, Will dated 20.11.2007 has to be examined on the following parameters:-
(i) Whether the Will was executed by the deceased.
(ii) Whether the Will was executed out of the free Will of the deceased and without any coercion or undue influence.
(iii) Whether the deceased was in a fit state of mind while executing the Will.
57. As far as the execution of the Will is concerned, both the attesting witnesses have attested to the fact that the deceased signed the Will in their presence and thereafter D1W7 signed the Will as a witness followed by D2W2. Both of them have also attested that the said Will was executed by the deceased and dated by herself. Although, Ld. Counsel for defendant no. 1 has made a case that the Will was executed in 2009 and was back dated to 2007, however, no evidence has been led by defendant no. 1 to substantiate his submission. As such, the contention of the defendant no. 1 of backdating the Will is not proved. Thus, it can be said that the mother of the parties did sign the Will Ex D2W1/1.
58. As far as the issue of free will of the deceased in executing the Will, CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 35 of 49 Digitally signed by RAHUL RAHUL BHATIA Date: BHATIA 2024.12.19 17:10:39 +0530 as per the judgment of the Hon'ble Supreme Court of India in Niranjan (supra), the burden of proof that the testator had signed the Will out of his own free will is on the propounder of the Will. D1W7 was one of the attesting witnesses of the Will. Although he was examined by defendant no. 1, he has also admitted to his signing of the Will propounded by defendant no. 2, he has stated that he cannot comment whether the mother of the parties signed the document out of her free will or not. The other attesting witness, D2W2 has also not stated anywhere in her deposition that Ex D2W1/1 was executed by the mother of the parties by her own free will. No evidence has been led by defendant no. 2 ie. the propounder of the Will to show the mental fitness of the mother at the time of exeuction of Ex D2W1/1. The onus to prove free will of the deceased was on the propounder of the Will. No contemporaneous evidence has come on record to show that the mother executed the Will out of her own choice. Only document to seek support that the mother had executed the Will voluntarily is letter dated 07.11.2009, Ex D2W1/2 whereby the testator has purportedly written a letter to D1W7 stating that Ex D2W1/1 was executed by her two years ago and the same is her last Will and testimony and if any other Will is propounded after her death, the same shall have been obtained under coercion or false pretenses. The said letter had been written by the mother of the parties to D1W7 who has admitted the receipt of the original of the same. However, the original of the same was produced in evidence by defendant no. 2 and not D1W7 who is stated to be the recipient of the said letter. No other evidence has come on record which would throw any light on the free will of the mother of the parties.
59. Coming to the mental capacity of the mother of the parties, D1W6 CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 36 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:10:47 +0530 has stated that the mother of the parties was not in a fit state of mind since last two years and was suffering from memory loss. He has further stated in his re-examination that she was unfit for the last five years for her life and was not in a position to take any decision of her own. Further, it is stated that she would not recognize the witness for the last two years. Although, D1W7 and D2W2, the attesting witnesses of the Will have testified as to the fit mental condition of the deceased, however, the same have to be read in view of specific statements of D1W6 as to the unfitness mind of the deceased.
60. D1W6 is an independent witness who is not related to the parties to the suit. He has stated to have known the deceased since 1995. He has further stated that defendant no. 2 used to pay his remuneration and as such any statement made by him against the case of defendant no. 2 cannot be said to be motivated or false statement. He has raised doubts as to the mental incapacity of the deceased for the last 2 to 5 years of her life. The same has not been rebutted by way of any evidence by the defendant no. 2. This issue of fitness of mind is of paramount importance in deciding the validity of the Will Ex D2W1/1 as the onus to prove fitness of mind and free will of the deceased was upon the defendant no. 2 Since the testimony of D2W6 has raised suspicion on the mental fitness of the deceased, this Court is inclined to believe that the fit state of mind of the deceased mother at the time of execution of Ex D2W1/1 has not been proved by the defendant no. 2. Further, letter Ex D2W1/2 also cannot be taken as an indication of free will of the deceased mother executing the Will as the testimony of D1W6 has shown that in the last two years of her life, the deceased mother was not in a fit state of mind.
CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 37 of 49
Digitally signed
by RAHUL
RAHUL BHATIA
Date:
BHATIA 2024.12.19
17:10:54
+0530
61. As per the judgment of Hon'ble Supreme Court of India in Niranjan (supra), while adjudicating on a Will, the Will has to be proved as per the law governing evidence but has to also satisfy the conscience of the court as the true contention of the deceased has to be gathered from the evidence recorded after the death of the testator. Since the plaintiff has not been able to discharge the burden regarding free will of the deceased as well as her fitness of mind, this Court is not inclined to believe that Ex D2W1/2 has been proved in accordance with law. Further, the suspicion raised as to the mental state of the deceased by D1W6 and no counter evidence to dispel this suspicion having been led by the propounders of the Will, the Will also does not satisfies the conscience of the court as to the free will and mental state of the deceased.
62. In view of the above discussion, issue no. 4 is decided against the defendant no. 2 and 3 and is answered in the negative. ISSUE NO. 5:-Whether late Shubhadra Butalia had any right to execute a will in respect of the suit property and if so, the effect thereof? (OPP).
63. The present suit has been filed by the plaintiff claiming that the parents of the parties were the co-owners of the Immovable Property vide conveyance deed dated 25.01.2001. It is stated that the father died on 20.08.2001 leaving behind parties to the suit and their mother as his legal heirs. It is claimed by the plaintiff that after the death of the father the parties to the suit relinquished their shares in the Immovable Property in favour of their mother and the property was mutated in the name of the mother. The mother expired on 12.06.2011 intestate leaving behind the parties to the suit as her sole legal heirs. In view of the above, plaintiff has claimed one-fourth share in the immovable property and rendition of CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 38 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:11:01 +0530 account of bank accounts, shares, etc of both the father and the mother.
64. The defendant no. 1 and defendant no. 2 and 3 have propounded two separate Wills of the mother of the parties, thereby canvassing a position that the mother was the sole owner of the Immovable Property and the same should be divided as per their respective Wills and not intestate. The mother of the parties vide the two Wills had also bequeathed her movable property to the various parties to the suit.
65. Since the conveyance deed of the Immovable Property was in the joint name of the parties and issue regarding the capacity of the mother of the parties to execute a Will in respect of Immovable Property was also framed and is the crux of the present matter as the competing Wills propounded by the defendants will come in picture if it is found that the mother had the capacity to execute the Will.
66. On this aspect, Ld. Counsel for plaintiff has submitted that the mutation in the name of the mother would not make the mother as the owner of the suit property and was only done for the purpose of payment of property tax. Initially, the defendant no. 1 has propounded a Will. However, on this issue, Ld. Counsel for defendant no. 1 has submitted that the mother of the parties was not the sole and absolute owner of the immovable property as both of them were joint owners. It is submitted that as per Section 59 of the Indian Succession Act, 1925, a person can dispose of his property by a Will. It is submitted that as the immovable property was not of the mother, she could not have dispose it off by way of Will. It is submitted that the mother was owner of only 60 per cent of the immovable property and the no objections Ex P1/D1(colly) do not transfer any title on the mother.
CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 39 of 49 Digitally signed by RAHUL RAHUL BHATIA Date: BHATIA 2024.12.19 17:11:07 +0530
67. Per contra, the case of defendant no. 2 is that all the parties treated the mother as the owner of the immovable property as the basis foundation of the plaint is that the mother was the owner of the immovable property, which is a position adopted by all the defendants as well as they have propounded the Will of the mother and not of the father. Further, the case of the defendant no. 2 is that as the parties have admitted the mother to be the sole owner of the Immovable Property, it is an admission on their part and they are estopped from claiming rights contrary to their admitted position. Further, the parties have led evidence which would show that the mother was the sole and absolute owner of the Immovable Property. It is further submitted that sufficient evidence has come on judicial record to show that the parties have treated the mother as the owner and this conduct of the parties is similar to an oral family settlement and the courts lean in favour of family settlement rather than setting them aside on mere technicalities.
68. Thus, what has to be decided is that whether the mother was the absolute owner of the Immovable Property on the basis of NOCs Ex P1/D1, mutation in the name of the mother of the parties and the conduct of the parties showing oral family settlement. To ascertain the factual position, first of all we have to look at the pleadings of the parties. Plaintiff in paragraph no. 5 has claimed relinquishment of shares by the parties and mutation of the immovable property in the name of the mother. The following chart would give the comparative position of the parties with respect to this fact.
Plaintiff Defendant no. 1 Defendant no. 2 Defendant no. 3
"5. That on the "5. That the contents "5. That the contents "5. That the contents
death of the of para 5 of the of para 5 are correct of para 5 are correct
CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 40 of 49
Digitally signed
by RAHUL
RAHUL BHATIA
Date:
BHATIA 2024.12.19
17:11:14
+0530
plaintiff's father, the plaint are not denied to the extent that the to the extent that the plaintiff and other to the extent of father, Shri J.S. father, Shri J.S. legal heirs (iii) to (v) mutation of the Butalia passed away Butalia passed away relinquished their property in MCD on 20.08.2001 and on 20.08.2001 and respective shares in records. Rest of the all the legal heirs all the legal heris the immovable contents are furnished their relinquished their property in favour of denied." respective "No rights to the suit their mother and the objection" to the premises B-26, property was MCD for mutation Gulmohar Park, new maturated in the of the suit property, Delhi in favour of name of Mrs. i.e. B-26, Gulmohar their mother."
Subhadra Butalia." Park, New Delhi, in
the name of their
mother."
69. The plaintiff in her plaint has mentioned in paragraph no. 5 that after the death of the father of the parties the parties to the suit " relinquished their respective share in the immovable property in favour of their mother and the property was mutated in the name of Mrs. Subhadra Butalia". Though, the defendant no. 1 has propounded a Will dated 12.10.2006 Ex D1W1/1 of the mother of the parties and the defendant no. 2 and defendant no. 3 have propounded Will dated 20.11.2007 Ex D2W1/, however, in reply to paragraph no. 5 of the plaint, the defendant no. 1 has admitted the contents of the paragraph with respect to the mutation of the property in MCD records but has denied rest of the contents of the paragraph. Defendant no. 2 admitted the contents to the extent of the date of death of the father and in reply has specifically stated that the parties to the suit furnished their respective no objection to MCD for mutation of the immovable property in the name of their mother. Defendant no. 3 has admitted the contents as correct to the extent of the death of the date of the father and the fact that all the parties relinquished their rights with respect to the immovable property in favour of the mother.
CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 41 of 49
Digitally signed
by RAHUL
RAHUL BHATIA
Date:
BHATIA 2024.12.19
17:11:26
+0530
70. Ld. counsel for defendant no. 2 has sought to read the reply to contents of paragraph 5 of the plaint by al the defendants as an admission to the fact that the mother was treated as the complete owner of the immovable property. He has submitted that the foundation of the suit as well as the foundation of the written statement of all the defendants is that the mother was the complete owner of the Immovable Property. It is further submitted that the evidence in the case would show that there was an oral family settlement between the parties to treat the mother as the owner of the immovable property.
71. Thus, first what has to be seen is whether the parties entered into any kind of oral family settlement treating the mother as owner or not and what is the effect of such oral settlement in case the same is proved. A reading of the pleadings of the parties would reveal that the plaintiff and defendant no. 3 have stated that they had relinquished their shares in the immovable property to the mother of the parties. However, defendant no. 1 has admitted the mutation of the Immovable Property in the name of the mother but has denied the other contents including the relinquishment in the name of the mother. On the other hand, Defendant no. 2 has stated the fact of execution of NOC for mutation in favour of the mother but has neither admitted nor denied the relinquishment of their shares by the parties. Thus, even if we assume this as an admission of defendant no. 2, still the parties are at dispute qua the relinquishment and an issue was framed as to the capacity of the mother in executing the Will. Thus, as the fact of relinquishment has not been admitted by all the parties to the suit, it needed to have been proved.
72. Before coming to the evidence of the parties, it is important to note CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 42 of 49 Digitally signed by RAHUL RAHUL BHATIA Date: BHATIA 2024.12.19 17:11:33 +0530 that both the case of Defendant No. 1 and Defendant No. 2 is based upon the Will of the mother and as such, both of them have founded their case that the mother of the parties was indeed the sole owner of the parties.
73. Although all the defendants have propounded Will of the mother, which would tend to show that they were treating the mother as the owner, however, neither the Defendant No. 1 or the Defendant No. 2 has stated in their evidence that the mother was the sole owner of the Immovable Property or the parties relinquished their shares in the Immovable Property. After the Defendant No. 1 was not able to prove the Will, he has conveniently shifted his stand to assert that
74. A careful perusal of the affidavit in evidence of the defendant no. 2 would reveal that nothing has been stated in his statement in chief as to the mother being the owner of the Immovable Property. In fact, the evidence qua the reply to para 5 of the plaint is missing in the examination in chief of the defendant no. 2. Thus, what is clear from this is that the defendant no. 2 has pleaded in his written statement that all the parties gave No objection to the mutation of the Immovable Property and the pleadings are silent on behalf of him qua the relinquishment of the share in favour of the mother. Thus, even it is assumed that the defendant no. 2 has pleaded that the parties have relinquished their share in the Immovable Property, but he has not led any evidence on this aspect. Moreover, the argument of an oral family settlement is completely alien to the pleadings of the parties and the evidence led by them. There are no pleadings or evidence of any of the parties which would suggest that an oral family agreement was ever reached between the parties. As such, the same cannot be raised by the defendant no. 2 at the final argument stage. Thus, the judgments cited by CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 43 of 49 Digitally signed by RAHUL RAHUL BHATIA Date: BHATIA 2024.12.19 17:11:40 +0530 the Defendant no. 2 qua the absence of pleadings disentitling the parties to lead evidence or arguments would hamper the defendant no. 2 to give the mutation of the Immovable Property the colour of a family settlement without the same having any basis in the pleadings of defendant no. 2 or any of the parties.
75. Even if it is assumed that the pleadings show a semblance of existence of an oral family settlement, the same needed to be proved by the party propounding the same by way of cogent evidence. An oral agreement can either be proved by the parties entering into the said oral agreement or by some other evidence which would show that the parties actually entered into the same. Once a person relies on an oral agreement, before relying on any other or circumstantial evidence, the person has to himself state that such an oral agreement was actually achieved. The basis of the inference of an oral family agreement, as canvassed by the learned counsel for defendant no. 2, is the fact that the parties treated the mother of the parties as the sole owner of the Immovable Property as they have relinquished their shares in the Immovable Property to the mother of the parties. Thus, before relying on other evidence, the defendant no. 2 has to himself accept that he, let alone other parties, relinquished their share in Immovable Property. An analysis of the evidence of the defendant no. 2 would show that no categorical statement as to an oral family settlement or the relinquishment of the share in Immovable Property has been made by defendant no. 2. Moreover, when asked in the cross examination as to the relinquishment of shares in the Immovable Property by the parties to the suit, he has stated "It is not correct to suggest that subsequent to my fathers death all CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 44 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:11:46 +0530 the siblings relinquished their shares in favour of our mother".
76. Once, the defendant no. 2 has categorically stated on oath that the share in the Immovable Property was not relinquished in favour of the mother, the defendant no. 2 cannot now, at the stage of the final arguments argue contrary to his own facts and evidence.
77. Thus, at least in pleadings and evidence led before this Court, the defendant no 2 has denied that the share in the immovable property was relinquished in favour of the mother. Moreover, the issue of oral family settlement is not made the basis of the case of the defendant no. 2 in his pleadings or his evidence. The said stance has been taken only in the final arguments. Thus, the issue of oral family settlement was neither pleaded nor sought to be proved and as such the said contention cannot be accepted without any pleadings or evidence.
78. Ld. Counsel for defendant no. 2 has stated that as the parties to the suit by their conduct have treated the mother as owner which shows that an oral family settlement was reached between the parties. However, once the defendant no. 2 has himself denied the relinquishment of shares in Immovable Property in favour of the mother, the defendant no. 2 cannot be allowed to seek support of any indirect evidence when he himself has negated the relinquishment by his own direct evidence. Thus, a propounder of an oral agreement cannot say that though I have denied the oral agreement, but as the conduct of the other parties prove it so the Court has to accept it even when he himself is denying it.
79. Thus, the only conclusion which can be drawn is that by the pleadings of defendant no. 2 himself and his categorical denial of relinquishment of share in favour of the mother, the oral family settlement CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 45 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:11:53 +0530 as canvassed by the defendant no. 2 has not been proved by defendant no.
2. The conduct of the parties or their alleged admission with regard to relinquishment of share in favour of the mother will also not come in aid of the defendant no. 2 as the position of defendant no. 2 in his cross examination is that the shares were not relinquished in favour of their mother.
80. Although the defendant no. 2 has propounded a Will, he has not been able to prove that the mother of the parites was the owner of the property by way of oral family settlement or otherwise. The success of the Will or otherwise was to come into question only upon the declaration that the mother of the parties was competent execute the Will based upon the relinquishment of the respective shares by the parties in favour of the mother. As the Will has been propounded by the defendant no. 2, it was he who had to stand up to the absolute right of the mother in the Immovable Property, but he has himself negated the very basis of the case by denying the relinquishment of share in the Immovable Property and now cannot take a stand opposite to his own evidence.
81. The conduct of the parties of treating the mother as the owner will not make the mother the owner of the immovable property until and unless some evidence is placed on record to show that the parties willingly relinquished their share in the immovable property to the mother. No such evidence which shows the above fact has been led by the parties.
82. Once, the oral family settlement has not been proved, reliance of the defendant no. 2 on the concept that courts would generally lean in favour of family settlements and supporting judgments is of no avail as there is no family settlement oral or otherwise which has come on record in the CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 46 of 49 Digitally signed by RAHUL RAHUL BHATIA Date: BHATIA 2024.12.19 17:11:59 +0530 present case. Similarly, the reliance on the proposition that parties cannot lead evidence or arguments on the facts which have not been pleaded by the party is in fact against the defendant no. 2 himself as the pleadings as well as evidence of defendant no. 2 is against the relinquishment of share to the mother and hence the judgments cited by the defendant on this aspect shall also be of no avail to him.
83. Since, it is an admitted position of the parties that the immovable property was in the joint names of the parents of the parties and nothing has come on record to substantiate that the shares were relinquished in favour of their mother or there was an oral agreement, this court had to conclude that the mother of the parties did not have the capacity to execute a Will in respect of the immovable property.
84. Thus, based upon the above discussion, the present issue is decided against the defendants and it is held that the mother of the parties did not have the right to execute the Will in respect of the immovable property. ISSUE No. 6:-If issues No. 3 to 5 are decided in favour of the plaintiff, whether she is entitled to a decree of partition against the defendants, thereby declaring the parties to be owners of 25% share each in the suit property? (OPP).
85. Issues no. 3 to 5 have been decided in favour of the plaintiff. All the parties have admitted that the suit property belongs to the parents of the parties. Further, there is no dispute as to the facts that there are only four legal heirs of the deceased parents. As such, the plaintiff as well as the defendants are entitled to 25 per cent share each in the suit property. Thus, this issue is decided accordingly.
ISSUE No. 8:-Whether the Plaintiff is entitled to a decree of permanent CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 47 of 49 Digitally signed by RAHUL RAHUL BHATIA Date: BHATIA 2024.12.19 17:12:07 +0530 injunction against the defendants, restraining them from alienating, assigning, parting with possession or creating any third party interests in the suit property? (OPP).
86. Issue no. 6 has been decided in favour of the plaitniff and it is held that all the parties to the suit are entitled to 25 per cent share each in the suit property. As such, all the parties have equal share in the suit property. Thus, the present issue is also decided in favour of the plaintiff and the defenants are directed not to create any third party interest in the suit property till the final disposal of the case.
ISSUE No. 9:-Whether the plaintiff is entitled to a decree of rendition of accounts against the defendants in respect of the amounts left behind by late J.S Butalia and late Smt. Subhadra Butalia, parents of the parties in bank accounts and fixed deposits, as per the averments made in para 4 and 5 of the plaint and, if so, whether the parties are entitled to 25% share each in the same amount? (OPP).
87. Since, it has been held that the parents of the parties died intestate and each of the parties is entitled to 25 per cent share in the estate of their parents, the plaintiff is entitled to rendition of accounts of the movable properties of the parents of the parties including the bank accounts, fixed deposits and share certificates in the name of the parents. ISSUE No. 10:-Whether the plaintiff is entitled to a decree of possession in respect of the goods/articles belonging to the mother of the parties, as mentioned in para 15 of the plaint? (OPP).
88. Since, both the parents of the parties have died intestate, all the four parties are owners of the estate to the owner of 25 per cent and as such a decree of possession in respect of the goods and articles of the mother of CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 48 of 49 Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2024.12.19 17:12:14 +0530 the parties in the sole favour of the plaintiff cannot be granted. RELIEF:-
89. In view of the above, the parties are declared as co-owners of the suit property to the extent of 25 per cent each, the defendants are directed to render accounts with respect to the bank accounts, fixed deposit and share certificates in their possession, as per law.
90. Decree sheet be prepared accordingly.
91. Issue no. 7 as to the mode of the partition of the suit property as well as the decision on the accounts rendered is left open to be decided later.
Digitally signedRAHUL by RAHUL BHATIA Announced in the open BHATIA Date: 2024.12.19 (RAHUL BHATIA) 17:12:23 +0530 Court on 17.12.2024 District Judge 01(SE), Saket Courts, New Delhi.
CS DJ- 10472/2016 Bela Butalia Vs. Rahul Butalia & Ors Pg. 49 of 49