Delhi District Court
Rajeev Kaula vs Anil Kaula Ors on 19 September, 2024
IN THE COURT OF SH.ABHITOSH PRATAP SINGH RATHORE,
DISTRICT JUDGE-04, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI.
Old Suit No.:CS (OS)No. 1107/2011
New Suit No.: CS DJ 8103/2016
CNR No.:DLST 01-001467-2016
IN THE MATTER OF :
Rajeev Kaula
R/o 2066, WEST SEXTON DR.
SPRINGFIELD
MO 65810 (USA) .....Plaintiff.
Versus
1.Anil Kaula
W-21, Green Park
New Delhi-110016.
2.Asha Kaula (now deceased)
3. Neerja Tankha
C-241, Indira Nagar
Lucknow, U.P-226016.
4. Sangeeta Zuthshi
1-A, Shila Kunj Colony
(Near MPEB Hostel)
Rampur, Jabalpur,
M.P-482008.
5. Namita Bhan
B-4, MahaLakshmi Enclave
P.O. Ormanjhi,
Ranchi, Jharkhand-835219.
6. Dr. Vinay Krishan Tankha
R/o C-241, Indira Nagar,
Lucknow, UP-226016. .....Defendants
Old No.CS(OS)1107/2011 Rajeev Kaula vs Anil Kaula & Ors. Page 1of 16
New No.CS DJ 8103/2016
Date of Institution of Suit : 13.01.2014
Final Arguments heard on : 04.09.2024
Date of Pronouncement : 19.09.2024
SUIT FOR PARTITION OF THE ESTATE LEFT BY
DECEASED SHRI PRITHVI NATH KAULA INCLUDING
PROPERTY BEARING NO.W-21, GREEN PARK, NEW
DELHI 110016 AND FOR PERMANENT INJUNCTION
JUDGMENT
1. The present suit has been filed by the plaintiff for Partition and Permanent Injunction.
2. As per the plaint, plaintiff and defendants are legal heirs of late Prithvi Nath Kaula, who died leaving behind wife, two sons and three daughters. The son Anil Kaula is defendant no.1 and Rajeev Kaula is the plaintiff. Wife of late Prithvi Nath Kaula Ms. Asha Kaula is defendant no.2. Ms. Neerja Tankha, Ms. Sangeeta Zutshi and Ms. Namita Bhan are the daughters and have been arrayed as defendant no.3,4&5, respectively.
As per the plaint, the deceased father during his life time acquired property bearing no. W-21, Green Park, New Delhi 110016. He passed away intestate on 30.08.2009. As the deceased father died intestate, plaintiff alongwith defendant no.1 to 5 are entitled to 1/6th share in the property. The suit was originally filed for partition of the property and also for the other immovable and movable properties left by Sh. Prithvi Nath Kaula.
3. Written statement filed on behalf of defendant no.1.
Old No.CS(OS)1107/2011 Rajeev Kaula vs Anil Kaula & Ors. Page 2of 16 New No.CS DJ 8103/2016 Defendant no.2, 3,4 & 5 gave their 'No Objection', if the assets of late Prithvi Nath Kaula are partitioned amongst all the legal heirs mentioned in the plaint.
Defendant no.1 filed his written statement in which he claimed that Prithvi Nath Kaula did not die intestate. He had left behind a Will dated 01.07.2004. As per the Will dated 01.07.2004, the ownership right of immovable property W-21, Green Park, New Delhi was bequeathed in favour of defendant no.1 to the exclusion of other legal heirs. The said Will was attested by two witnesses and, therefore, defendant contested the averment of the plaint whereby partition in six equal parts was sought by the plaintiff. Defendant no.1 further claimed that he had no knowledge about the other properties of late Prithvi Nath Kaula as whatever other properties he had, the information of the same must be with defendant no.2 and defendant no.3.
4. Replication on behalf of plaintiff was filed in which plaintiff reiterated the contents of his plaint and denied that there ever was a Will executed by his father dated 01.07.2004.
5. After completion of pleadings vide order dated 16.07.2013, the following issues were framed:
1. Whether late Shri Prithvi Nath Kaula executed a legal and valid will dated 1 st July, 2004 relied upon by defendant no.1?OPD1
2. Whether the plaintiff is entitled to a preliminary decree of partition and if so, what is the share of the parties to the Suit Property?
OPP
3.Whether plaintiff is entitled to a decree of Old No.CS(OS)1107/2011 Rajeev Kaula vs Anil Kaula & Ors. Page 3of 16 New No.CS DJ 8103/2016 partition of the suit property as prayed for?OPP
4. Relief.
6. During the pendency of trial defendant no.2 expired on 09.04.2015.
7. Vide order dated 09.11.2016 application moved by plaintiff under Order 6 Rule 17 CPC and under Order 1 Rule 10 CPC were allowed.
8. In the amended plaint, the plaintiff introduced a Will dated 19.03.2012 executed by defendant no.2 late Smt. Asha Kaula.
9. Vide order dated 16.12.2017, following additional issues were framed:
1. Whether the Will dated 19.03.2012 propounded by the plaintiff is legal and valid Will?OPP
2. Whether the Will dated 19.03.2012 executed by the deceased/defendant no.2 is forged and fabricated?
OPD-1
10. Plaintiff had examined himself as PW-1 whereas defendant examined Dr. Shri Ram Gupta, Dr. N.S. Abbas and himself as DW-3 and DW-4 was Ms. Nalini Kohli. Witness Sarveshwar Mehrotra and Nitin Mohan Saxena, the attesting witnesses of Will of Smt. Asha Kaula, were also examined. Apart from this, Dr. Mudit Goel was examined as D3W-4 and one private handwriting expert was examined as DW-5.
11. The present case involves adjudication of the validity of the two Wills. The first Will is purportedly executed by the father of the Old No.CS(OS)1107/2011 Rajeev Kaula vs Anil Kaula & Ors. Page 4of 16 New No.CS DJ 8103/2016 plaintiff as well as defendant no.1 Sh. Prithvi Nath Kaula dated 01.07.2004 and another Will is the Will by late Smt. Asha Kaula dated 19.03.2012.
12. My finding on the Issues are as follows:
ISSUE NO.1:
1. Whether late Shri Prithvi Nath Kaula executed a legal and valid will dated 1st July, 2004 relied upon by defendant no.1?
OPD1 Defendant no.1 had contested the suit on the ground that his father late Sh. Prithvi Nath Kaula had bequeathed his property at W 21, Green Park, New Delhi in his favour.
The law regarding the Will and their probative force is to a larger extent well settled. Hon'ble Supreme Court of India in plethora of judgments have time and again clarified the law. The Will of Sh. Prithvi Nath Kaula was purportedly attested by two witnesses, who have been examined and who as per their evidence affidavit had seen late Sh. Prithvi Nath Kaula sign the Will. Now, the pertinent question is whether to prove a Will all that is required is the testimony of two attesting witnesses? Whether the testimony of two attesting witnesses can supercede or over write all the suspicious circumstances in the Will. This leads this court to another question whether there are any suspicious circumstances in the Will?
Hon'ble Supreme Court of India in 'Shiv Kumar & Ors. vs Sharanabasppa and Ors.' Civil Appeal No.6076/2009 Old No.CS(OS)1107/2011 Rajeev Kaula vs Anil Kaula & Ors. Page 5of 16 New No.CS DJ 8103/2016 summarized the principles governing the adjudicatory process concerning proof of Will as follows:
1. Ordinarily, a Will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon.
2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.
3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will.
4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free Will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
6. A circumstance is "suspicious" when it is not normal or is 'not normally expected in a normal situation or is not expected of a normal person'. As put by this Court, the suspicious features must be 'real, germane and valid' and not merely the 'fantasy of Old No.CS(OS)1107/2011 Rajeev Kaula vs Anil Kaula & Ors. Page 6of 16 New No.CS DJ 8103/2016 the doubting mind'.
7. As to whether any particular feature or a set of features qualify as "suspicious: would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the depdndants; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the prof of attestation.
8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will?
9. In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essential of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will.
It is evident that at the time of execution of the Will late Sh. Prithvi Nath Kaula had normal relations with his wife as well as other sons and daughters. Nothing has come on the record to show that Sh. Prithvi Nath Kaula was having strained relations with his wife. The defendant No.1 Anil Kaula in his cross- examination dated 03.10.2013 admitted "It is correct that my father had good relations with my mother. He also enjoyed good relations with all the children." It is evident that there was no acrimony between late Sh. Prithvi Nath Kaula and his wife & other children. Hence, it is unbelievable that late Prithvi Nath Old No.CS(OS)1107/2011 Rajeev Kaula vs Anil Kaula & Ors. Page 7of 16 New No.CS DJ 8103/2016 Kaula would exclude his wife and other children from his property.
Hon'ble Supreme Court of India recently in 'Kavita Kanwar Vs Pamela Mehta & Ors', Civil Appeal No.3688/2017 while dealing with a similar case, where a person had bequeathed his property in favour of one person to the exclusion of other legal heirs, in Para 29.2 observed:
"29.2. In the given set-up, a basic question immediately crops up as to what could be the reason for the testatrix being desirous of providing unequal distribution of her assets by giving major share to the Appellant in preference to her other two children. The appellant has suggested that the parents had special affection towards her. Even if this suggestion is taken on its face value, it is difficult to assume that the alleged special affection towards one child should necessarily correspond to repugnance towards the other children by the same mother. Even if the parents had special liking and affection towards the Appellant, as could be argued with reference to the gift made by the father in her favour of the ground floor of the property in question, it would be too far stretched and unnatural to assume that by the reason of such special affection towards Appellant, the mother drifted for away from the other children, including the widowed daughter who has residing on the upper floor of the same house and who has taking her care. In the ordinary and natural course, a person could be expected to be more inclined towards the child taking his/her care; and it would be too unrealistic to assume that special lover and affection towards one, may be blue-eyed, child would also result in a person leaving the serving and needy child in lurch. As noticed, an unfair disposition of property or an unjust exclusion of the legal heirs, particularly the dependants, is regarded as a suspicious circumstances. The Appellant has failed to assign even a wee bit reason for which the testatrix would have thought it proper to leave her widowed daughter in the heap of uncertainty as emanating form the Will in question. Equally, the suggestion about want of thickness of relations between the restatrix and her son (Respondent No.2) is not supported by the evidence on record. The facts about the testatrix sending good wishes on birthday to her son and joining family functions with him, even if not establishing a very great bond between the mother and her son, they at least belie the suggestion about any strain in their relations. Be that as it may, even if the matter relating to the son of testatrix is not expanded further, it remains Old No.CS(OS)1107/2011 Rajeev Kaula vs Anil Kaula & Ors. Page 8of 16 New No.CS DJ 8103/2016 inexplicable as to why the testatrix would not have been interested in making adequate and concrete provision for the purpose of her widowed daughter (Respondent No.1).
It is evident that in the present case defendant no.1 has not tried to remove this suspicion from the mind of the court. There is no explanation, whatsoever, given regarding the exclusion of the other sons, daughter and his wife. To add to it, Will dated 01.07.2004 also contains incorrect recitals. It is stated that one of the daughters was widowed in 1997, which is accepted by defendant no.1. However, the said Will records that all the daughters are happily married. This again is a suspicious circumstance.
Another suspicious circumstance is that the propounder of Will is the sole beneficiary of it. This has been pointed out by Hon'ble Supreme Court of India as a major suspicious circumstance in Kavita Kanwar's case (supra). Another objection against the said Will is that the original of the said Will has not been produced. Even the photocopy of the same has been produced without following the procedure provided in Section 64 and 65 of Indian Evidence Act. No notice, as provided by Section 66 of Evidence Act, 1872 was ever served.As there is no explanation by the defendant no.1 of the suspicious circumstances surrounding the Will dated 01.07.2004, it does not appear to be credible.
Hence, this court is of the considered opinion that the Will dated 01.07.2004 purportedly executed by late Sh. Prithvi Nath Kaula is unreliable. Hence, Issue no.1 is decided against defendant no.1.
Old No.CS(OS)1107/2011 Rajeev Kaula vs Anil Kaula & Ors. Page 9of 16 New No.CS DJ 8103/2016 Additional Issue No.1&2 Hon'ble Supreme Court of India in 'Meena Pradhan vs Kamla Pradhan' Civil Appeal No.3351/2014 in Para 10 observed:
"10.Relying on H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426 (3Judge Bench), Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135 (3-- Judge Bench), Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91(2Judge Bench)Yumnam Ongbi Tampha Ibema Devi v.Yumnam Joykumar Singh, (2009) 4 SCC 780 (3Judge Bench) and Shivakumar v. Sharanabasappa, (2021) 11 SCC 277 (3-Judge Bench), we can deduce/infer the following principles required for proving the validity and execution of the Will:
i.The court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him;
ii.It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.
iii.A Will is required to fulfill all the formalities required under Section 63 of the Succession Act, that is to say:
(a) 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 the said signature or affixation shall show that it was intended to give effect to the writing as a Will;
(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;
(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Will or has Old No.CS(OS)1107/2011 Rajeev Kaula vs Anil Kaula & Ors. Page 10of 16 New No.CS DJ 8103/2016 seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures;
(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;
iv.For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;
v.The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator; vi.If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with;
vii.Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence;
(viii)Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last Will. In such cases, the initial onus on the propounder becomes heavier. ix.The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing Old No.CS(OS)1107/2011 Rajeev Kaula vs Anil Kaula & Ors. Page 11of 16 New No.CS DJ 8103/2016 state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will;
x.One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation. xi. Suspicious circumstances must be 'real, germane and valid' and not merely 'the fantasy of the doubting mind'. Whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc."
In the present case, the Will i.e. propounded by plaintiff dated 19.03.2012 is said to be executed by late Asha Kaula. The Will was registered at the Sub-Registrar's office, Lucknow. In the present case, the said Will by Smt. Asha Kaula inspires confidence for the below stated reasons:
(i)The Will was duly registered in the office of Sub-
Registrar, Lucknow. The witnesses from the office of Sub-Registrar were called for their examination-in-chief and cross-examination & their testimony remained unimpeached through out.
Old No.CS(OS)1107/2011 Rajeev Kaula vs Anil Kaula & Ors. Page 12of 16 New No.CS DJ 8103/2016
(ii)The main requirement for proving the execution of Will as per Section 63 of Indian Succession Act, 1925 & Section 68 of Indian Evidence Act, stands satisfied in the present case. The Will was attested by two witnesses and both the witnesses have deposed that they saw the testatrix sign the Will. It has also come in the evidence that both affixed their signature on the Will in the presence of the testatrix.
(iii)All children of the defendant no.2 late Smt. Asha Kaula have received share in the property owned by her barring defendant no.1.
(iv) There are no suspicious circumstances surrounding the Will.
Defendant no.1 had examined a private hand writing / signature expert (DW5). However, as the sample signatures were obtained from the photocopy of the Will, his report is not reliable.
In the present case, defendant no.1 has pointed out certain discrepancies, such as witness not remembering whether testatrix was sitting on a chair or wheel chair or whether draft was prepared at a particular time or not, or witness not remembering as to who presented the application before Sub Registrar and also a witness not remembering the exact age of the testatrix or not recollecting who told him the age of testatrix. Another witness also not remembering whether the signatures were put by her right or left hand. However, after perusing the evidence, this court is of considered opinion that there is no contradiction in the Old No.CS(OS)1107/2011 Rajeev Kaula vs Anil Kaula & Ors. Page 13of 16 New No.CS DJ 8103/2016 entire evidence with regard to the:
(i) Signing of the Will by late Asha Kaula.
(ii)Attesting witness signing the Will in the presence of the testatrix.
(iii)Will was registered on commission.
(iv)Testatrix was in the fit state of mind to make Will.
(v) There is also no doubt that this was the last Will of the testatrix.
In the circumstances, this court is of the opinion that the Will as required by Section 63 of Indian Succession Act, 1925 and Section 68 of Indian Evidence Act, 1872 has been duly proved.
Defendant no.1 had stressed upon the aspect that late Smt. Asha Kaula was not in a fit state of mind so that she could have signed the said Will. DW-4 Smt. Nalini Kohli had stated in her evidence that late Smt. Asha Kaula had suffered from paralytic attack and her right side was not functional. However, the testimony of Witness Dr. Mudit Goel who had issued medical certificate dated 13.03.2012 has clearly stated in his evidence that "as far as I can recollect Smt. Asha Kaula was suffering from paralysis of right side especially her right leg was affected when she used to visit me she used a walker. Rest there has been nothing she could not perform".
It is clear that, although late Smt. Asha Kaula had suffered a paralytic attack, whatever deformity she suffered was restricted mainly to her right leg. There was no deformity which would prevent her from writing. Hence, the veracity or genuineness of the Will can't be doubted on this ground alone.
Old No.CS(OS)1107/2011 Rajeev Kaula vs Anil Kaula & Ors. Page 14of 16 New No.CS DJ 8103/2016 Hence, additional Issue No.1 is decided in favour of plaintiff.
No evidence has been led by defendant no.1 to prove that the Will dated 19.03.2012 executed by late Asha Kaula is forged & fabricated. Hence, Additional Issue No.2 is decided against defendant no.1.
Relief:
Property of late Prithvi Nath Kaula shall devolve on his Class I legal heirs as per Hindu Succession Act, 1956. Plaintiff & defendant no.1, defendant no.3, defendant no.2 (now deceased), defendant no.4, defendant no.5 are entitled to 1/6h share each. As defendant no.2 has died, her 1/6th share will devolve as per her last Will dated 19.03.2012. Accordingly, parties are held entitled to the following shares:
Plaintiff is entitled to 1/6 + 1/6 x 19/20 x1/4, which is equal to 33/160 share as late Asha Kaula had stated in her Will that 95% of her share in the property be divided into four equal parts in favour of Neerja Tankha, Rajeev Kaula, Dr. Vinay Krishan Tankha and Namita Bhan. Share of plaintiff turns out to be 1/6 + 95/100 X ¼ = 99/480 = 33/160th share.
Defendant no.1 has not been awarded any share by late Asha Kaula, hence the only property he is entitled to is 1/6th share in the suit property by virtue of being a Class I legal heir of late Prithvi Nath Kaula.
Defendant no.3 & defendant no.5 are similarly placed as plaintiff. Both are entitled to equal shares in the property of late Prithvi Nath Kaula as well as in the share of late Smt. Asha Kaula. They are entitled to 33/160th share each.
Old No.CS(OS)1107/2011 Rajeev Kaula vs Anil Kaula & Ors. Page 15of 16 New No.CS DJ 8103/2016 Defendant no.4 Sangeeta Zuthshi is entitled to 1/6th share in the property of late Prithiv Nath Kaula and 5% in the share of Asha Kaula which is 1/6 + 1/6 X 1/20 which turns out to be 21/120 or 7/40.
Defendant no.6 is not entitled to any share in the property of late Prithvi Nath Kaula. However, he is entitled to 1/4th share in 95% of late Asha Kaula that turns out to be 1/6 X 1/4 X 19/20 =19/480.
To avoid confusion the share of the parties are given as below:
a. Plaintiff 33/160th share in the property b. Defendant no.1 1/6th share in the property c. Defendant no.3 33/160th share in the property d. Defendant no.4 7/40th share in the property e. Defendant no.5 33/160th share in the property f. Defendant no.6 19/480th share in the property.
Preliminary decree be drawn accordingly. List for further proceedings on 09.10.2024.
abhitosh Digitally signed by abhitosh Typed to the dictation directly, pratap pratap singh rathore corrected and pronounced in the singh Date:
2024.09.19 open Court on 19.09.2024 rathore 15:28:31 +0530 (Abhitosh Pratap Singh Rathore) District Judge-04, South District, Saket Courts, New Delhi Old No.CS(OS)1107/2011 Rajeev Kaula vs Anil Kaula & Ors. Page 16of 16 New No.CS DJ 8103/2016