Delhi District Court
Anil Kumar Nijhawan vs Dr. Sushil Kumar Nijhawan on 11 September, 2024
IN THE COURT OF SH. PARVEEN SINGH,
DISTRICT JUDGE-11, CENTRAL DISTRICT,
TIS HAZARI COURT, DELHI.
CS DJ No. 613703/2016
CNR No. DLCT010004152011
Anil Kumar Nijhawan,
S/o late Sh. Balwant Rai Nijhawan,
Permanent resident of
9030, Haywood Avenue, Lorton,
Virginia-220079 USA.
Presently at Gymkhana Club,
New Delhi. ...Plaintiff.
Versus
1. Dr. Sushil Kumar Nijhawan,
S/o Sh. Vinod Kumar Nijhawan,
R/o 13/27, West Patel Nagar,
New Delhi-110008.
2. Brig. Vinod Kumar Nijhawan,
S/o late Sh. Balwant Rai Nijhawan,
r/o H. No. 22, Sector-37,
Arun Vihar, Noida, U.P. ...Defendants
Date of Filing : 07.12.2011
Date of Arguments : 24.08.2024.
Date of Judgment : 11.09.2024.
SUIT FOR POSSESSION, PERMANENT INJUNCTION AND
RECOVERY OF MESNE PROFITS/DAMAGES
CS No. 613703/2016
No. 1 of 69
Digitally
signed by
PARVEEN
PARVEEN SINGH
SINGH Date:
2024.09.11
14:24:41
+0530
JUDGMENT
1. The present suit for possession, permanent injunction and recovery of damages has been filed by the plaintiff against the defendants.
2. Briefly stated the case of the plaintiff is, that the plaintiff and the defendant no. 2 are real brothers. Defendant no. 1 is the son of defendant no. 2. Late Sh. Dina Nath Nijhawan, grandfather of plaintiff and defendant no. 2, was the owner of property no. 13/27, West Patel Nagar, New Delhi, measuring 200 sq. yards comprising of ground floor, first floor and second floor (hereinafter referred to as the suit property). The suit property was a self acquired property of late Sh. Dina Nath Nijhawan.
3. Late Sh. Dina Nath Nijhawan had two sons namely Sh. Lajpat Rai Nijhawan and Sh. Balwant Rai Nijhawan. Sh. Lajpat Rai Nijhawan was married to Uma Nijhawan and he died issue-less in the year 2004. Sh. Balwant Rai Nijhawan was married to Smt. Kamla Nijhawan and was employed in London. In the year 1965, Smt. Kamla Nijhawan alongwith plaintiff had shifted to London.
4. It is further the case of the plaintiff that during his lifetime, Sh. Dina Nath Nijhawan had executed a Will dated 25.09.1989 whereby, he had bequeathed the ground floor of the suit property to Sh. Balwant Rai Nijhawan and first floor and second floor of the suit property to the plaintiff. On the basis of Will, the property was mutated in the joint name of Sh. Balwant Rai Nijhawan and the plaintiff on 22.05.1996. Sh. Balwant Rai Nijhawan had executed a Will dated 22.08.1995 whereby CS No. 613703/2016 No. 2 of 69 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:24:54 +0530 he gave various properties owned by him including the ground floor of the suit property to his wife Smt. Kamla Nijhawan. Sh. Balwant Rai Nijhawan died on 31.12.1999. Thereafter, Smt. Kamla Nijhawan sold off all her assets in U.K, gave a huge amount of £1,00,000 to defendant no. 2 and joined the plaintiff in USA in the year 2002. Plaintiff was living in USA and thus, he asked defendant no. 2 to take care of the second floor of the suit property. In the year 2003, defendant no. 2 requested the plaintiff to allow defendant no. 1 to use the second floor of the suit property for his residence as he was running his dental clinic on the ground floor of the suit property. Considering the relationship, plaintiff allowed defendant no. 1 to use the second floor of the suit property. In the beginning of 2011, plaintiff thought of shifting to India and asked the defendants to make arrangement for themselves as he needed the suit property and as per Will dated 25.09.1989, Smt. Uma Nijhawan, who was residing on first floor of the suit property, could not be asked to vacate the said floor. In October 2011, plaintiff with his mother Smt. Kamla Nijhawan came to India to make arrangements for themselves and had discussions with the defendants. Plaintiff asked the defendants to vacate the suit premises to which they dilly dallied. It is further submitted that under the garb of negotiations and settlement, the defendant no. 2 had taken signatures of the plaintiff on various documents assuring that the said documents were required at the office of L&DO. Thereafter, without the consent and knowledge of the plaintiff, the defendants carried out additions and alterations on the second floor of the suit property. On 09.11.2011, defendants refused to CS No. 613703/2016 No. 3 of 69 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:25:02 +0530 vacate the second floor of the suit property. Defendant no. 2 had also taken signatures of his mother on various papers and had also taken a lot of money from his mother. Plaintiff had an apprehension that the defendants would misuse the signed papers. On 09.11.2011, defendants threatened the plaintiff to dispose of the entire suit property. It is further submitted that the plaintiff had revoked his permission with respect to use and occupation of the second floor of the suit property by defendant no. 1 and his family and thus, the defendant no. 1 had become an unauthorized occupant. Hence, the present suit.
5. On being served with the summons of the suit, the defendants filed their written statement.
6. In the written statement, a preliminary objection was taken that the plaintiff was not the owner of the suit property. The Will dated 25.09.1989 was a false and fabricated document and plaintiff got the property mutated on the basis of said Will before L&DO by concealing the fact that defendant no. 2 was also the legal heir of late Sh. Dina Nath. The records of L&DO would show that plaintiff had filed a false affidavit dated 08.05.1996 stating that apart from plaintiff, his father B.R Nijhawan and his uncle Lajpat Rai Nijhawan, late Sh. Dina Nath had left no other LR. It was further submitted that plaintiff had also concealed the fact that late Sh. Dina Nath Nijhawan had also executed a Will dated 05.04.1965 which was duly registered with Sub Registrar. The Will dated 25.09.1989 was a forged Will. It was further submitted that plaintiff had also concealed the other Will executed by his uncle Lajpat Rai Nijhawan wherein, the factum of execution of Will by Late Dina CS No. 613703/2016 No. 4 of 69 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:25:10 +0530 Nath Nijhawan in the year 1965 was mentioned. As per the Will of late Sh. Dina Nath Nijhawan executed in the year 1965, first and second floors of the property were bequeathed to Sh. Lajpat Rai Nijhawan and the ground floor was given to Sh. Balwant Rai Nijhawan. No part of the suit property was ever bequeathed to any of the grandsons of late Sh. Dina Nath Nijhawan. In the Will dated 25.09.1989, there was no mentioning of the earlier Will of 1965 and thus, the second Will was a forged one. Plaintiff had neither laid his claim over the suit property nor paid any municipal taxes and the all the ancillary charges were borne by defendant no. 2. It was further submitted that the plaintiff had not valued the suit property in accordance with law. As the plaintiff was not in possession of the suit property, he was required to pay ad valorem court fee.
7. It was further submitted that the Will of Sh. Lajpat Rai Nijhawan gave only limited right to his wife Smt. Uma Nijhawan to stay on first and second floor during her lifetime and after her death, the said property was to be devolved upon defendant no. 2. Since September 2003, defendant no. 2 had been paying Rs.3,000/- to Smt. Usha Nijhawan. The same was done to financially support Smt. Uma Nijhawan and after her death, the suit property was to devolve upon defendant no. 2 and plaintiff had no right, title or interest over the same.
It was further submitted that the plaintiff would have to seek a declaration from the court with regard to his ownership rights qua the suit property. Without seeking the relief of declaration of ownership rights, the suit of the plaintiff is liable to be dismissed. The suit is bad CS No. 613703/2016 No. 5 of 69 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:25:19 +0530 for non joinder of necessary party. It was further submitted that an agreement was executed between the parties wherein it was agreed that after getting the suit property freehold, it would be sold for Rs.7.5 crores to Sh. Sandeep Gandharva. Plaintiff agreed to take Rs.2 crores. The said agreement was signed by Smt. Kamla Nijhawan, mother of plaintiff and defendant no. 2. This fact of signing of the said agreement had been concealed from the court.
8. On merits, it was submitted that the plaintiff had concealed the execution of Will dated 05.04.1965 which was registered on 19.04.1965. It was denied that Sh. Dina Nath Nijhawan's Will dated 25.09.1989 was acted upon and the original Will was in possession of Sh. Lajpat Rai Nijhawan. It was further submitted that the second floor of the suit property was always on rent since last 40 years. After the tenants had vacated the suit property, the same was rented out to defendant no. 1 vide tenancy agreement dated 07.09.2003. The said rent agreement was duly signed by late Sh. Lajpat Rai Nijhawan, Smt. Usha Nijhawan and defendant no. 1. For last 10 years, the payment towards the municipal taxes had been remitted by defendant no. 2. Rest of the averments made in the plaint were denied.
9. In the replication to the written statement, the contents of the written statement are denied and the contents of the plaint are reaffirmed.
10. Thereafter, from the pleadings of the parties, vide order dated 27.09.2012 following issues were framed:-
1. Whether the plaintiff had permitted defendant no. 1 to use the suit CS No. 613703/2016 No. 6 of 69 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:25:28 +0530 property at the request of defendant no. 2? OPP.
2. Whether the plaintiff is entitled to grant of decree of possession against defendants no. 1 & 2 in terms of prayer para (a) of the plaint? OPP.
3. Whether the plaintiff is entitled to grant of decree of permanent injunction in terms of prayer para (b) of the plaint? OPP.
4. Whether the plaintiff is entitled to award of mesne profits and damages in terms of prayer para (c) of the plaint, if so for what period and at what rate? OPP.
5. Whether the plaintiff is not the owner of the suit property as alleged by defendants 1 & 2 in the written statement? OPD 1 & 2.
6. Whether the plaintiff procured mutation of the suit property from L & DO by concealing the name of defendant no. 2 thereby rendering the mutation dated 22.8.96 as null and void? OPD 1 & 2
7. Whether late Sh. Lajpat Rai Nijhawan executed the Will dated 13.04.2002 in sound disposing health and state of mind, if so its effect? OPD 1 & 2
8. Whether the plaintiff and defendants 1 & 2 alongwith Smt. Kamla Nijhawan had entered into a family settlement dated 22.10.2011, if so its effect? OPD 1 & 2
9. Whether late Sh. Dina Nath Nijhawan had executed duly registered Will dated 05.04.1965, if so, its effect? OPD 1 & 2
10. Whether late Sh. Dina Nath Nijhawan had executed any Will dated 25.09.1989, if so its effect? OPP.
11. Whether the Will propounded by the plaintiff dated 25.09.1989 CS No. 613703/2016 No. 7 of 69 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:25:35 +0530 alleged to have been executed by late Sh. Dina Nath Nijhawan is a forged and fabricated Will? OPD 1 & 2
12. Whether the suit filed by the plaintiff is not maintainable in terms of Section 34 of the Specific Relief Act, 1963? OPD 1 & 2
13. Whether the plaintiff has not properly valued the suit for the purpose of court fee and jurisdiction and has not paid the appropriate court fee thereon? OPD 1 & 2
14. Relief.
11. Thereafter, parties led their respective evidence. Plaintiff examined PW1 Mala Chhabra, PW2 Kamla Nijhawan, PW3 Swaraj Soni, PW4 Anil Kumar Nijhawan and PW5 Rajesh Kumar. On the other hand, defendants examined DW1 Vinod Kumar Nijhawan.
12. I have heard ld. Counsels for the parties and perused the record very carefully.
13. Ld. Counsel for plaintiff, in written submissions, has contended that issue no. 9 with regard to will dated 25.09.1989 was not required to be framed and deserved to be struck off under Order 14 Rule 5 CPC because, it was an admitted Will which was acted upon and on the basis of which mutation dated 22.05.1996 in favour of plaintiff and B. R. Nijhawan (father of plaintiff and Defendant No.2) was done.
Defendant No.2 had repeatedly admitted the plaintiff as a co-owner of property no 13/27 West Patel Nagar, New Delhi. Till date no challenge to the first mutation dated 22.05.1996 has been made by the defendants and Shri Lajpat Rai Nijhawan. It is further submitted that the issues no. 10 and 11 pertaining to the Will dated 25.09.1989 become futile and CS No. 613703/2016 No. 8 of 69 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:25:43 +0530 therefore be struck off u/O XIV Rule 5 CPC. It is further contended that when the plaintiff had filed the present suit, his mother Kamla Nijhawan had also filed a suit being CS(OS) No.3048 of 2011 seeking possession of ground floor of the aforesaid property from the defendants and both the suit were tried together. Vide judgment and decree dated 03.09.2013, the suit of Smt. Kamla Nijhawan was decreed under Order XII Rule 6 CPC. The defendants did not prove the alleged Will dated 05.04.1965 of Shri Dina Nath Nijhawan and Will dated 13.04.2002 allegedly of Shri Lajpat Rai Nijhawan by examining any of the witnesses of the aforesaid alleged Wills. The defendants also did not prove the alleged Family Settlement dated 22.10.2011. In fact, there is ample documentary evidence to show that defendant no. 2 himself pursued and facilitated mutation of the suit property applied on the basis of Will dated 25.09.1989 of Shri Dina Nath Nijhawan. It is further contended that the record of L&DO brought by PW1 Mala Chhabra revealed that initially, vide application Ex.PW1/1, Sh. Balwant Rai Nijhawan had applied for mutation of ground floor of the suit property in his favour as Shri Lajpat Rai Nijhawan was hospitalized. When Shri Lajpat Rai Nijhawan came to know of this application, he immediately applied with L&DO and filed an application dated 21.02.1994 (Page 80 of Ex.PW1/5) stating that the Will of 1965 stood superseded by the last Will dated 25.09.1989 of Sh.Dina Nath Nijhawan whereby the ground floor of the suit property had been bequeathed to Sh. Balwant Rai Nijhawan and first and second floor of the said property to the plaintiff. Thereafter, Balwant Rai Nijhawan had made an application on 28.02.1994, Ex.PW1/6, requesting CS No. 613703/2016 Digitally signed by No. 9 of 69 PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:25:52 +0530 L&DO that mutation should be done in the name of plaintiff in respect of first and second floor of the suit property. The affidavits of plaintiff, Lajpat Rai Nijhawan and Balwant Rai Nijhawan were submitted and pursued by defendant no. 2. Accordingly mutation was granted vide letter dated 22.05.1996 (Ex.PW1/2, page 17). It is further contended that there is ample documentary evidence to show that defendant no. 2 himself pursued and facilitated mutation applied on the basis of Will dated 25.09.1989. It is further contended that the defendants were fully aware of the fact that the first mutation had taken place on the basis of Will dated 25.09.1989 of late Sh. Dina Nath Nijhawan. This fact is revealed from the cross examination of PW4 when he was suggested that the original Will dated 25.09.1989 was lost by defendant no. 2 when he shifted his residence from Patel Nagar to Noida in 1997. It is further contended that the defendant no. 2, after the death of his father, had again submitted a letter dated 21.12.2001 (Ex.PW1/D1, page 106) before L&DO stating that his father was the co-owner in the suit property with Sh. Anil Kumar Nijhawan. It is further contended that DW1 in his cross examination had admitted that when he applied for mutation, he was aware that Anil Kumar Nijhawan was a co-lessee with B.R Nijhawan in the record of L&DO. It is further contended that defendants had admitted the title and ownership of the plaintiff as per Will dated 25.09.1989 and thus, the defendants have admitted the ownership rights of plaintiff with respect to first and second floor of the suit property. It is further contended that in fact, vide application dated 01.11.2011, both the plaintiff and defendant no. 2 had applied for CS No. 613703/2016 No. 10 of 69 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:26:00 +0530 conversion of lease hold rights of the said property into free hold and deposited the amounts vide challan Ex.PW5/3. Hence, now the defendants cannot challenge the ownership of plaintiff in the suit property. It is further contended that Sh. Lajpat Rai Nijhawan had neither executed, nor was he competent to execute any Will in respect of the suit property as he had no right to title in the suit property. The defendants have failed to prove and examine any of the attesting witnesses to the alleged Will dated 13.04.2002, alleged to have been executed by Sh. Lajpat Rai Nijhawan. The defendants have failed to prove the alleged family settlement dated 22.10.2011. Even the alleged family settlement proves that the plaintiff is a co-owner in the suit property. It is further contended that the defendants have failed to prove the execution of Will dated 05.04.1965. Even if it is presumed that the Will dated 05.04.1965 had been executed by Sh. Dina Nath Nijhawan, the said Will stood superseded and cancelled by Sh. Dina Nath by executing his last Will dated 25.09.1989. It is further contended that plaintiff has proved the Will dated 25.09.1989 u/s 69 of Evidence Act by examining Smt. Swaraj Soni. The plaintiff has proved that he is not in possession of the original Will dated 25.09.1989 executed by Sh. Dina Nath Nijhawan. The original Will was initially with Sh. Lajpat Rai Nijhawan and then with defendant no. 2. For a brief period on 2011, the Will was sent to plaintiff in USA and after making a copy of the same, it was returned to defendant no. 2. The Will dated 25.09.1989 was acted upon and it was never objected to by Sh. Lajpat Rai Nijhawan or by the widow of Lajpat Rai Nijhawan. The plaintiff has given a categorical CS No. 613703/2016 Digitally No. 11 of 69 signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:26:09 +0530 statement that it was he who permitted defendant no. 1 to use the suit property at the request of defendant no. 2 and there is no cross examination by the defendants to rebut this assertion. With regard to mesne profits, it is contended that the plaintiff has categorically stated in para 10 of his evidence affidavit that the market rent of suit property at the time of filing of suit was Rs.30,000/- per month and there is no cross examination of the defendants on this point. It is further contended that the present suit is not based on a Will but is based on ownership and title as the plaintiff is a title holder seeking possession from the defendants, who are unauthorized occupants of the suit property. Ld. Counsel for plaintiff has relied upon the judgments passed in Rajinder Pershad v. Smt. Darshana Devi, 93 (2001) DLT 1 (SC), Mumbai International Airport Pvt. Ltd. v. M/s Golden Chariot Airport & Anr, 2010 (10) Scale 69 (SC), New Era Impex (India) Pvt. Ltd. & Anr. v. Oriole Exports Pvt.
Ltd. 234 (2016) DLT 615, Surendra Nath Pasricha v. Kamla Pasricha & Ors., 2018 SCC Online Del 7854 and Mohinder Kaur v. Sardar Sarwan Singh Banda & ors., ILR (2009) II Delhi 631.
14. Ld. Counsel for the defendants has contended that there was no occasion for late Dinanath Nijhawan to execute a Will in favour of the plaintiff, who never resided with him. It is further contended that during the entire trial, the original of alleged Will dated 25.09.1989 had not been produced before the court either by Sh. Anil Kumar Nijhawan or by any of the witnesses examined by the plaintiff. It is further submitted that the alleged Will dated 25.09.1989 has not been exhibited during the trial and only for the sake of identification, it has been kept as CS No. 613703/2016 No. 12 of 69 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:26:17 +0530 document PX. The said exhibition of the document is merely for the purpose of identification and would not imply any concession or waiver of objections as mode of proof. It is further submitted that plaintiff, during his cross examination, had taken different versions regarding the alleged Will dated 25.09.1989. It is further submitted that if the cross examination of PW's Anil Kumar Nijhawan and Kamla Nijhawan is seen then contradictory statements with regard to alleged Will of 1989 has come on record. It is further submitted that from a bare perusal of documents Ex.PW1/D5 to Ex.PW1/D7, it is clear that there was concealment of material fact while obtaining mutation order dated 20.02.2002, Ex.PW1/D8. It is further submitted that PW1 did not support the case of the plaintiff. She was re-examined with the permission of the court, however, nothing could come out during her re-
examination. PW2 during her cross examined conducted on 23.08.2013, admitted that she shifted to UK in the year 1965 and at that time, Anil Nijhawan had also shifted with her. She further admitted that Vinod Nijhawan used to stay with his grandparents. She was asked whether her husband had submitted an affidavit with L&DO while acknowledging the Will dated 05.04.1965 of late Dinanath Nijhawan and she did not deny it. She admitted that signatures of her husband on document Ex.PW1/1. It is further submitted that in the documents Ex.PW2/D1 and Ex.PW2/D2, there is mention about execution of registered Will dated 05.04.1965. PW2 during her cross examination dated 26.08.2013 had admitted that document Ex.PW2/D2 was signed by her. PW2 admitted the documents Ex.PW2/D1 to Ex.PW2/D3, CS No. 613703/2016 No. 13 of 69 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:26:26 +0530 during her cross examination. It is further submitted that there are 17 contradictory statements made by PW Anil Kumar Nijhawan and PW Kamla Nijhawan with regard to the execution of Will dated 25.09.1989. He further contended that PW3 Swaraj Soni, who is daughter of Sh.Ram Prasad Nijhawan, who is one of the Witness of alleged Will dated 25.09.1989 was examined and the Will was exhibited as Ex.PW3/1 but the said exhibition was also subject to proof of document. During her cross examination, PW3 admitted that she was requested by her sister Smt. Kamla Nijhawan and Sh. Anil Nijhawan to give her affidavit in this case. It is further submitted that PW3 during her cross examination admitted that there was no family occasion or formal gathering at the time when Will was executed. Further PW3 during her cross examination admitted that Sh. R.P Nijhawan used to reside at 12/13 East Patel Nagar whereas in the Will the address of R.P Nijhawan is mentioned as 13/18, East Patel Nagar. It is further submitted that a bare perusal of cross examination of PW3 reveals that there is a material contradiction in the testimony of PW3. PW3 had stated in para 3 of her affidavit that it was known to the entire family that Sh. Dinanath Nijhawan had executed Will dated 25.09.1989 as the said Will was executed in a family get together. It is further submitted that from the cross examination of PW3, it is clear that the alleged Will dated 25.09.1989 was not read over to late Sh. Dina Nath Nijhawan as during her cross examination, she admitted that she did not remember whether the Will was read over to Dinanath Nijhawan or not. She also admitted that she was not personally called by Dina Nath Nijhawan. She did not CS No. 613703/2016 No. 14 of 69 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:26:34 +0530 remember whether any initials were made on the Will or not. It is further submitted that the testimony of PW4 Anil Kumar Nijhawan shows that there are material contradictions about the execution of Will, place of execution of Will, availability of original Will dated 25.09.1989. PW4 had further stated that he did not know whether his grandfather was suffering from dementia and pleurisy. PW4 stated that he was not aware whether his grandfather was admitted in Khera Hospital or not. PW4 deposed that he did not remember when his grandfather died. PW4 did not know if the first mutation application to L&DO was made in favour of his father and his younger brother Lajpat Rai Nijhawan on 10.01.1994 on the basis of registered Will 1965. He further contended that it is surprising that just after 15 days of death of Smt. Prakash Wati Nijhawan, Will of 1965 was substituted with the alleged Will of 1989 and fresh mutation was applied on the basis of forged and fabricated Will which was directly sent to USA and UK and not at the address of the suit property where Sh. Lajpat Rai Nijhawan was residing. It is further submitted that PW5 in his cross examination admitted that the property was mutated on 22.05.1996 in the name of Balwant Rai Nijhawan and Anil Kumar Nijhawan. He further admitted that L&DO did not take any steps to ascertain that B.R Nijhawan and A.K Nijhawan are the legal heirs of late Sh. Dinanath Nijhawan. From the testimony of the witness, it is clear that the plaintiff has failed to prove the execution of Will dated 25.09.1989. As the Will dated 25.09.1989 is forged, the suit of the plaintiff is not maintainable u/s 34 of Specific Relief Act. In this regard, reliance has been placed on the CS No. 613703/2016 No. 15 of 69 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:26:42 +0530 judgment of Hon'ble Supreme Court in Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs & Ors, (2008) 4 SCC 594. No requisite court fee has been filed by the plaintiff. It is further submitted that as the Will dated 25.09.1989 has not been proved in accordance with law, plaintiff has no locus standi to file the present suit. It is further submitted that PW2 had admitted the existence of Will of 1965 and PW3 also did not deny the existence of Will of 1965.Thus, it is clear that Sh. Dinanath Nijhawan had expired leaving behind only one Will dated 05.04.1965 and the first mutation was also applied on the basis of this Will. It is further submitted that by no stretch of imagination, it can be believed that just after 15 days of death of Prakashwati Nijhawan, a 4 year old Will of 1989 replaces a 28 year old registered Will of 1965. As regards the Will of Lajpat Rai Nijhawan, it is contended that no suggestion regarding the authenticity of this Will was given to DW1. It is further submitted that in the testimonies of PW2 and PW4 nothing adverse has come on record with regard to the Will of Lajpat Rai Nijhawan. Ld. Counsel for defendants has relied upon the judgments passed in (1) Dewan Chand Batra v. Harish Tandon, 2012 Lawpack (Del) 47478, (2) Vrindavan Bai Sambhaji Mane v. Ramachandra Vithal Ganeshkar & Ors, 1995 Lawpack (SC) 22682, (3) Kanak Lata Jain v. Sudhir Kumar Jain, 2012 Lawpack (Del) 46009, (4) Lalita Sharma v. Sumitra Sharma, 201 Lawpack (Del) 42317, (5) Raj Kumari v. Surinder Pal Sharma, 2019 Lawpack (SC) 63842, (6) Dayanandi v. Rukma D. Suvarna, 2011 Lawpack (SC) 50573, (7) Yumnam Ongbi Tampha Ibemma Devi v.
Yumnam Joykumar Singh, 2009 Lawpack (SC) 62268 (8) Lalita Ben CS No. 613703/2016 No. 16 of 69 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:26:50 +0530 Jayantilal Popat v. Prangaben Jamnadas Kataria 2008 Lawpack (SC) 45894, (9) Bharpur Singh v. Shamsher Singh, 2008 Lawpack (SC) 45918 (10) Apoline D'Souza v. John D'Souza, 2007 AIR (SC) 2219, (11)Benga Behera v. Braja Kishore Nanda, 2007 AIR (SC) 1975, (12)Joseph Antony Lazarus v. A.J Francis, 2006 AIR (SC) 1895 and (13) N. Kamalam v. Ayyasamy, 2001 AIR (SC) 2802.
15. My issue wise findings are as under:-
ISSUE NO. 99. Whether late Sh. Dina Nath Nijhawan had executed duly registered Will dated 05.04.1965, if so, its effect? OPD 1 & 2
16. The onus to prove that late Dina Nath Nijhawan had executed a duly registered Will dated 05.04.1965 was upon the defendants no. 1 and 2.
17. On the issue of this Will, defendant no. 1 deposed that his grandfather Dina Nath Nijhawan had expired on 28.05.1990 and during his lifetime, he had executed his last Will dated 05.04.1965, which was also a registered Will. The original Will dated 05.04.1965 had already been exhibited as Ex.PW3/D. He further deposed that the original Will bore the signatures of his grandfather and was the result of his free will and desire. The existence of this Will was also admitted by his father B.R Nijhawan and his uncle Sh. Lajpat Rai Nijhawan vide their affidavits Ex.PW1/D2 and Ex.PW1/D3. These affidavits pertain to the year 1984 and thus, rule out the execution of alleged Will of his grandfather on 25.09.1989. He further deposed that his uncle and his father, in their affidavits, had categorically stated that late Sh. Dina Nath CS No. 613703/2016 Digitally No. 17 of 69 PARVEEN signed by PARVEEN SINGH SINGH Date:
2024.09.11 14:26:58 +0530 Nijhawan had left a Will dated 05.04.1965 bequeathing the entire property no. 13/27, West Patel Nagar, New Delhi in favour of Sh. Balwant Rai Nijhawan and Sh. Lajpat Rai Nijhawan.
18. The exhibit mark on Will dated 05.04.1965 reveals that this Will was exhibited during the evidence of PW3 Swaraj Soni.
19. During the cross examination of PW3, a sealed envelope was taken out, which was containing a Will dated 05.04.1965. It was shown to her and she stated that it bore the signatures of her father at point A. This document was then marked as Ex.PW3/D. (Though the exhibition was without prejudice to the rights and contentions of either of the parties.) She however denied having any knowledge about the execution of this Will.
20. Plaintiff was also confronted with this Will, during his cross examination. On seeing the Will, he identified the signatures of his grandfather at point A. He was not aware about any Will of his grandfather of the year 1965. He did not know whether his grandfather named any executor in the Will of the year 1965.
21. During the course of arguments, it has not been disputed that the witnesses to the Will dated 05.04.1965 are not alive. Therefore, the said will could only have been proved as per Section 69 of the Indian Evidence Act (as was applicable at that time).
22. Considering the provisions of the said section, this Will could have been proved by identification of the signatures of the witnesses. Signatures of one witness to the Will have been identified by PW3, who is a witness of the plaintiff. PW3 deposed that this Will bore CS No. 613703/2016 Digitally signed by PARVEEN No. 18 of 69 PARVEEN SINGH SINGH Date:
2024.09.11 14:27:06 +0530 the signatures of her father (who was a witness to the Will) at point A. It is then that this Will was marked as Ex.PW3/D. Even the signatures of the executor of the Will i.e. late Sh. Dina Nath Nijhawan were identified by plaintiff during his cross examination. This factum of execution of this Will is further fortified from the documents Ex.PW1/D2 and Ex.PW1/D3. These are the affidavits of Sh. B.R Nijhawan and Sh. Lajpat Rai Nijhawan i.e. the sons of Dina Nath Nijhawan, which were furnished with L&DO and in the said documents, it is mentioned that late Sh. Dina Nath Nijhawan had left behind a registered Will. It is not disputed that Will dated 05.04.1965 was a registered Will and thus, a probability arises is that the affidavits refer to this Will only.
23. In view of the evidence of PW3, the admission of PW4 that the Will had the signatures of his grandfather, the fact that it is a registered Will and in view of the documents Ex.PW1/D2 and Ex.PW1/D3, I find that by preponderance of probabilities, defendants have succeeded in proving that Will dated 05.04.1965 was executed by late Dina Nath Nijhawan. Issue no. 9 is accordingly decided in favour of the defendants.
ISSUES NO. 5, 6, 10 & 115. Whether the plaintiff is not the owner of the suit property as alleged by defendants 1 & 2 in the written statement? OPD 1 & 2.
6. Whether the plaintiff procured mutation of the suit property from L & DO by concealing the name of defendant no. 2 thereby rendering the mutation dated 22.8.96 as null and void? OPD 1 & 2
10. Whether late Sh. Dina Nath Nijhawan had executed any Will dated CS No. 613703/2016 No. 19 of 69 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:27:13 +0530 25.09.1989, if so its effect? OPP.
11. Whether the Will propounded by the plaintiff dated 25.09.1989 alleged to have been executed by late Sh. Dina Nath Nijhawan is a forged and fabricated Will? OPD 1 & 2
24. All these issues shall be decided together as findings on one issue shall have bearing on the findings given on other issue.
25. One of the material questions for decision of these issues is regarding the Will of late Dina Nath Nijhawan dated 25.09.1989 subject matter of issue no. 10 & 11.
26. On this Will, PW4 Anil Kumar Nijhawan deposed that late Dina Nath Nijhawan, during his lifetime, had executed a Will dated 25.09.1989. Copy of the said Will was Ex.PW3/1. He further deposed that in fact, the original Will dated 25.09.1989 was with Sh. Lajpat Rai Nijhawan, who also gave his affidavit to L&DO, and the property was mutated vide letter dated 25.05.1996 in the joint names of Sh. B.R Nijhawan and plaintiff. The said mutation was on the basis of Will dated 25.09.1989 of late Dina Nath Nijhawan. The said Will was duly acted upon and was admitted by Sh.Lajpat Rai Nijhawan, the younger son of late Dina Nath Nijhawan, who alongwith Sh. Balwant Rai Nijhawan had applied to L&DO for mutation of the property in favour of the plaintiff and Sh. Balwant Rai Nijhawan on the basis of Will dated 25.09.1989. He further deposed that the concerned person who was to give no objection and the requisite affidavit, as per the requirement of L&DO, was Sh.Lajpat Rai Nijhawan, the other son of Sh. Dina Nath Nijhawan, who had categorically admitted that the Will dated 25.09.1989, executed CS No. 613703/2016 No. 20 of 69 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:27:22 +0530 by his late father, was the genuine Will and he had no objection if it was acted upon. He further deposed that original documents pertaining to the suit property including Will of the year 1989 were with Sh. Lajpat Rai Nijhawan and after his demise, it was with defendant no. 2. When his mother Kamla Nijhawan asked about it, defendant no. 2 informed her very conveniently that the entire property file containing the original papers of the suit property was lost when he was shifting his residence from West Patel Nagar to Noida and he in fact showed the complaint to her which he had lodged with the concerned Police Station.
27. During his cross examination, on being asked whether at the time of drafting of the case, he had informed his lawyer that he was in possession of the original Will of 1989, he answered that he did not inform his counsel when the plaint was drafted that he had the original Will with him in the month of September, 2011, and volunteered, that this Will was sent by defendant no. 2 when he was in US in September, 2011, and when they came to India it was handed back to him (defendant no. 2) in October, 2011. The Will was sent to him in US by post. He did not have any proof to show that this Will was sent to him by defendant no. 2 by post. He did not have any proof to show that the Will was handed back to defendant no. 2 and volunteered, that it was handed over to him by his mother in his presence. He admitted that these facts of sending the original Will by post to him at US and handing back to defendant no. 2 in India were not mentioned in his plaint and his affidavit. He admitted that in para no. 3 of his suit, he had stated that the original Will of 1989 was with his uncle Mr. Lajpat Rai Nijhawan and CS No. 613703/2016 Digitally signed No. 21 of 69 by PARVEEN PARVEEN SINGH Date:
SINGH 2024.09.11 14:27:33 +0530 volunteered, that it was only till 2004 that the original documents were with him and after his death, all the original documents were with defendant no. 2. He had not mentioned this fact in his plaint that after 2004, all the original documents, including the Will of 1989, were with defendant no. 2. He was aware that his mother had stated in the court that the original Will of 1989 was handed over by his uncle Mr. Lajpat Rai Nijhawan to his father and volunteered, that it was handed over for the purpose of mutation of the property in his favour and in favour of his father. He did not know if the original Will of 1989 was filed with L&DO for the purpose of mutation and volunteered, that since he was in US and his father and uncle were handling the mutation. His grandfather died within a year of the alleged execution of Will of 1989. He admitted that his mother had not mentioned in her suit or evidence that the original Will dated 25.09.1989 was handed over by her to Sh. V.K Nijhawan. On being asked, whether he or defendant no. 2 lodged any police complaint regarding the loss of original Will dated 25.09.1989, he answered that whatever his brother dictated to him, he had lodged that complaint and defendant no. 2 had also lodged complaint at Noida. For the purpose of identification, copy of that complaint was marked as Mark C-1. On being suggested that neither he nor defendant no.2 had lodged any complaint with police for the loss of original Will dated 25.09.1989, he answered that he had lodged the police complaint mark C-1. On being suggested that his brother did not lodge any police complaint with regard to missing of original Will , he answered that he did not know what he (his brother) had lodged but his brother later on Digitally signed by CS No. 613703/2016 PARVEEN PARVEEN SINGH No. 22 of 69 SINGH Date:
2024.09.11 14:27:52 +0530 gave him a copy of what he had lodged. He denied that he had not seen the original Will dated 25.09.1989 since last 13 years from the date of his cross examination. He denied that the original Will dated 25.09.1989 was lost by defendant no.2 when he shifted his residence from Patel Nagar to Noida in 1997. On being asked, when the original Will dated 25.09.1989 was lost by the defendant no.2, he answered that he did not know when the original Will dated 25.09.1989 was lost by defendant no.2 as it was handed over to him in October, 2011 by his mother. He admitted that in para 2 of 1.A. 19533/2011, he had mentioned that all the papers including the original Will of Late Sh. Dina Nath Nijhawan and Sh. B. R. Nijhawan were lost by defendant no.2 when he shifted to Noida as he had learnt about this fact from defendant no.2 himself. He denied that he had contradicted himself in this regard since in his examination in chief in para 15, he had stated this fact was told by defendant no.2 to his mother. His uncle Sh. Lajpat Rai Nijhawan had handed over original Will dated 25.09.1989 to defendant no.2. He did not know when it was handed over. Defendant no.2 had made the admission in the letters written by him to L&DO. He did not know if defendant no.2 had ever written to L&DO stating therein that he had the original Will of 1989. He did not know whether original Will of 1989 was submitted by defendant no.2 with L&DO for mutation and volunteered, that the entire mutation was done on the basis of the Will of 1989. He admitted that he had got the photocopy of Will of 1989 attested from Notary Public at US and volunteered, that then it was got attested from the Indian Embassy as attestation by Notary Public at US CS No. 613703/2016 Digitally No. 23 of 69 signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:28:00 +0530 is required for documents before submitting with Indian Embassy with all original papers. It was around 23.09.2011 when he got the photocopy of the 1989 Will attested through Notary Public as well as Indian Embassy. He admitted that he had produced the original Will of 1989 before the Notary Public and Indian Embassy for attestation. He had not mentioned in the present suit as well as in applications that the original Will of 1989 was in his possession in September, 2011 in US. His mother had asked defendant no.2 to post the original Will of 1989 to US in September 2011. His uncle Sh. Lajpat Rai Nijhawan had handed over the original Will of 1989 to defendant no.2 because the defendant no.2 was handling the mutation with L&DO. On being specifically asked that if he was convinced on the date of filing of the suit that the Will had been lost, then how had he claimed that it was given back to Sh. V. K. Nijhawan in October, 2011 by his mother, he answered that his mother had asked defendant no. 2 to send the original Will post to US in September, 2011. He had the Will attested by the Indian Embassy on 23.09.2011. Then his mother returned the original Will back to defendant no.2 in October, 2011 in India. He came to know from defendant no.2 when he (defendant no. 2) asked him to file FIR that he had lost all the documents. Defendant no.2 had intimated him that he had lost all the documents as well as the original Will of 1989 when he lodged and asked him also to lodge police complaint in 2011. At that stage, the said complaint Mark 'C-1' was exhibited as Ex.PW4/C1.
28. On this Will, plaintiff had also examined PW3 Swaraj Soni.
She deposed that she was closely related to the parties. She further CS No. 613703/2016 No. 24 of 69 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:28:07 +0530 deposed that she had seen her father, Late Shri Ram Prasad Nijhawan writing and signing in her presence and could identify his signatures. She was shown the copy of Will dated 25.09.1989 and stated, that her father's signatures were appended on the Will. She further deposed that she had known the entire family and that Shri Dina Nath Nijhawan had executed the Will dated 25.09.1989 as the said Will was executed by Dina Nath Nijhawan in a family get together at his house i.e. 13/27, West Patel Nagar, New Delhi. At that time, she, her father Sh. Ram Prasad Nijhawan, sister Sarla Devi Nijhawan and her cousin Lajpat Rai Nijhawan were present and the Will was executed in their presence where Shri Dina Nath Nijhawan signed the Will in the presence of Sh. Ram Prasad Nijhawan and Sh.S.P. Vaid and thereafter, Sh. Ram Prasad Nijhawan and S.P. Vaid signed. She further deposed that it was personally known to her that the Will was also acted upon whereby the names of the beneficiaries i.e. Sh.Balwant Rai Nijhawan and Sh.Anil Kumar Nijhawan, under the aforesaid Will, had been substituted in the records of L&DO with respect to the property bearing no. 13/27. The Will dated 25.09.1989 was Ex.PW3/1.
29. While tendering her examination in chief, she deposed that Ex.PW3/1 was the copy of Will dated 25.09.1989 and again identified the signatures of her father at point A and signatures of late Dina Nath Nijhawan at point B. (The exhibition was subject to the proof of documents in accordance with law and further subject to terms of section 65 & 69 of the Indian Evidence Act.) She also proved the death certificate of her father as Ex.PW3/2, which was objected to on the CS No. 613703/2016 No. 25 of 69 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:28:18 +0530 ground of belated production.
30. During her cross examination, she deposed that Sh. Anil Nijhawan is her ex son-in-law as well as her nephew. She admitted that Smt. Uma Nijhawan, Sh. Lajpat Rai Nijhawan and Smt. Prakashwati Nijhawan were staying on the first floor of the suit property. She admitted that Sh. Dina Nath Nijhawan, Smt. Sunita Nijhawan and the children used to live on the ground floor of the suit property and again said, Sh. Dina Nath Nijhawan had an office at the ground floor and used to stay on the first floor alongwith Smt. Prakashwati Nijhawan. She denied that Sh. Dina Nath Nijhawan was unwell or used to visit various hospitals in Patel Nagar between 1986 to 1989. She deposed that he was alright and volunteered, that except some problems relating to old age, he was alright. She denied that Sh. Dina Nath Nijhawan was suffering from dementia and pleurisy and volunteered, that he was absolutely alert and had been attending his office till his last.
31. On being suggested that Sh. Dina Nath Nijhawan had stopped attending the Courts w.e.f. 1987-1988, she replied that she did not know about it. She had never accompanied Sh. Dina Nath Nijhawan to Court in 1987 or 1988. On being suggested that Smt. Sunita Nijhawan was taking care of Sh. Dina Nath Nijhawan since the year 1980, she replied that she did not think so. She admitted that prior to his marriage, Sh. Vinod Nijhawan used to stay with Sh. Dina Nath Nijhawan, Sh. Lajpat Rai Nijhawan and Smt. Prakashwati Nijhawan. On being suggested that Sh. Vinod Nijhawan used to get posted outside Delhi and Smt. Sunita Nijhawan used to stay behind with Sh. Dina Nath Digitally CS No. 613703/2016 signed by PARVEEN No. 26 of 69 PARVEEN SINGH SINGH Date:
2024.09.11 14:28:26 +0530 Nijhawan, she admitted that Smt. Sunita Nijhawan used to say but she also used to accompany Sh. Vinod Nijhawan to his postings. His children used to stay in Delhi alongwith Smt. Sunita Nijhawan. She admitted that Sh. Dina Nath Nijhawan was very affectionate to Sh. Lajpat Rai Nijhawan and incurred all household expenses of Sh. Lajpat Rai Nijhawan. Andrew Nijhawan was her grandson. He was the son of her daughter Smt. Anju Nijhawan and Sh. Anil Nijhawan. On being suggested that Anil Nijhawan (plaintiff) had offered Andrew a very big property in lieu of her deposing as a witness in favour of Anil Kumar Nijhawan, she denied this suggestion. On being suggested that Sh. Dina Nath Nijhawan had stated that he would leave behind enough to make appropriate provisions for Smt. Uma Nijhawan and Sh. Lajpat Rai Nijhawan, she stated that he did not make any statement in her presence. However, he had stated that as long as Uma Nijhawan and Lajpat Rai Nijhawan would live, they would have right to stay on the first floor of the suit property. He had made this statement at the time of execution of Will of 1989. She admitted that this fact was not mentioned in her affidavit. There was no family occasion or formal gathering at the time when the Will was executed. They had gone there on his (Dina Nath Nijhawan) asking. Dina Nath Nijhawan had not called her personally and volunteered, that her father was called but she accompanied him as her father was not able to drive as his reflexes were slow. She admitted that this fact was not mentioned in her affidavit and volunteered, that she had informed her counsel about the same. She further deposed that she, Sh. Dina Nath Nijhawan, Sh. R.P. Nijhawan, Smt. Sarla Devi Soni, Sh.
CS No. 613703/2016 Digitally
No. 27 of 69
signed by
PARVEEN
PARVEEN SINGH
SINGH Date:
2024.09.11
14:28:36
+0530
Lajpat Rai Nijhawan and one Mr. Vaid were present in that gathering. She was not able to recall the exact date or month but it was somewhere in the year 1989. She admitted that Sh. S.P. Vaid was not residing in the suit property and volunteered, that whenever she used to visit, he used to be present most of the times. Smt. Uma Nijhawan and Smt. Sunita Nijhawan were not present at the time of execution of the Will. The Will was executed in the office of Sh. Dina Nath Nijhawan, situated at the ground floor of the suit property. This fact was not mentioned in her affidavit. The Will was executed between 03.00 p.m. to 04.00 p.m. She did not remember the day when the Will was executed. It was not a Sunday as she had come back from the school where she was working. She denied that Sh. Dina Nath Nijhawan was seriously ill in the year 1989. He was 90 years old. The Will of the year 1989 was typed simultaneously. She did not remember who typed it. Some typist had typed it in the office. She did not know who gave the instructions to type the Will or how much time was consumed in the process of typing of the Will. She did not remember whether the Will was read over to Sh. Dina Nath Nijhawan or not after it was typed. She did remember whether any correction was made in the Will or not. She denied that Sh. Anil Nijhawan was present at that time. She did not know where he was at that point of time and volunteered, that he must have been in London as he was studying and having a job in London. On being asked, whether anyone had advised Sh. Dina Nath Nijhawan for getting the Will registered as the previous Will was registered, she stated that she did not know anything about the previous Will. As far as she recalled, the Will Digitally CS No. 613703/2016 signed by PARVEEN No. 28 of 69 PARVEEN SINGH SINGH Date:
2024.09.11 14:28:45 +0530 of 1989 was got registered later on. The original Will of 1989 might have been in the possession of Sh. Dina Nath Nijhawan. She did not know who was in possession of the original Will of 1989 after the death of Sh. Dina Nath Nijhawan. She denied that being the mother-in-law of Anil Kumar Nijhawan, she was an interested witness. She denied that no Will dated 25.09.1989 was ever executed by Sh. Dina Nath Nijhawan or that it was for this reason that original Will dated 25.09.1989 had never come on record. She denied that Will dated 25.09.1989 was forged and fabricated document or that the same had been forged at the instance of Sh. Anil Nijhawan. She denied that the address of Late Sh. R.P. Nijhawan, as recorded in Ex.PW-3/1, was incorrect address and volunteered, that after the death of her husband, her father left his house at Safderjung Enclave and started living with her at 12/13, West Patel Nagar, New Delhi. She denied that Will dated 25.09.1989 had not been properly executed or attested or that the same was never acted upon.
32. On the other hand, defendant V.K Nijhawan, appearing as DW1, deposed except the registered Will dated 05.04.1965, his grandfather had not executed any other Will and the factum of registered Will dated 05.04.1965 was admitted by his father B.R Nijhawan and his uncle Lajpat Rai Nijhawan vide Ex.PW1/D2 and Ex.PW1/D3. Both these affidavits were of the year 1994 and thus ruled out any execution of the alleged Will dated 25.09.1989 by his grandfather. He further deposed that so called affidavit dated 07.05.1996 of his late uncle was absolutely false and not executed by him and the signatures on both the affidavits of 1994 and 1996 were different. The conduct of Sh. Lajpat CS No. 613703/2016 No. 29 of 69 Digitally signed by PARVEEN PARVEEN SINGH Date:
SINGH 2024.09.11 14:28:56 +0530 Rai Nijhawan in letting out the second floor and utilizing the rental proceeds negates the existence of propounded Will dated 25.09.1989. He further deposed that his grand father was a distinguished lawyer of his time and therefore, he could not have executed the alleged Will dated 25.09.1989 and writing of the earlier Will clearly rules out the possibility of him writing the subsequent Will and the execution of earlier Will has been proved through the testimony of PW3. He further deposed that no one had seen the original of propounded Will dated 25.09.1989.
33. During his cross examination, he admitted that after the death of Dina Nath Nijhawan, an application was made to L&DO for mutation with regard to the suit property and volunteered, that it was 4-5 years after his demise. He admitted that he had inspected the record of L&DO pertaining to property no. 13/27, West Patel Nagar, New Delhi vide applications dated 16.08.2010, 08.11.2010 and 22.04.2013 and the copies of the said applications were at page no. 118, 120 and 134 of Ex.PW5/1 (colly). He admitted writing the letter dated 07.02.1996 to L&DO, which was a part of Ex.PW5/1 (colly) and also admitted that he had written this letter in response to letter dated 17.07.1995 received from L&DO. He had never seen letter dated 17.07.1995 and its reference was telephonically given to him by plaintiff's mother-in-law. He had seen this letter when he had inspected the file of L&DO. He admitted that his father had given him Power of Attorney to deal with L&DO regarding the mutation of the property and the said authority was at page no. 102 & 103 of Ex.PW5/1 (colly). He admitted this letter and CS No. 613703/2016 No. 30 of 69 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:29:04 +0530 volunteered, that he was given letter of authority by his father to expedite the mutation and mutation was sent directly to UK & USA without anybody's knowledge in India. He denied that when letter dated 07.02.1996 was written, he had annexed affidavit of Lajpat Rai Nijhawan which was a part of Ex.PW5/1. He was aware about the contents of his letter dated 07.05.1996. He denied filing with L&DO the affidavit of his father dated 06.05.1996. He admitted that letter dated 22.05.1996 was issued for mutation. He denied that he had collected mutation letter 22.05.1996 from the office of L&DO on the basis of authority dated 06.05.1996. He denied that he had sent copy of mutation letter dated 22.05.1996 to his father and brother in USA and UK and volunteered, that he came to know about this document only after 06 years and therefore, question of sending the copies of documents to them did not arise. He admitted that he had written letter dated 21.12.2001 to L&DO for substitution in respect of property no. 13/27, West Patel Nagar and the copy of the said letter was a part of Ex.PW5/1 (colly) and volunteered, that letter dated 21.12.2001 was written on the premise of Will dated 25.09.1989 as told by the plaintiff on which his uncle Lajpat Rai Nijhawan became very furious. He then deposed that when he applied for mutation vide letter dated 21.12.2001, he was not aware that vide letter dated 22.05.1996, the property was also mutated in the name of Sh. Balwant Rai Nijhawan and Anil Nijhawan (plaintiff). It was in the year 2001-2002 that he came to know about the previous mutation done vide letter dated 22.05.1996. On learning of this mutation in the name of Sh. B.R Nijhawan and Anil Nijhawan, he and his uncle were CS No. 613703/2016 Digitally No. 31 of 69 signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:29:12 +0530 furious because, they came to know about those mutations after 06 years as the address was given in the mutation letter were changed to UK and USA. He denied that no change of address was ever done. They remained in dark. On coming to know about the previous mutation vide letter dated 22.05.1996, he did not take any steps. He had not known that the mutation vide letter dated 22.05.1996 in favour of B.R Nijhawan and Anil Kumar Nijhawan was done on the basis of Will dated 25.09.1989 of late Sh. Dina Nath Nijhawan. He deposed that on coming to know about the mutation of 22.05.1996, Lajpat Rai Nijhawan gave his first and second floor in a Will to him and second floor portion was given to his son as a tenant for a rent of Rs.3,000/- per month. He then deposed that when he applied for mutation, he knew that Anil Kumar Nijhawan was a co-lessee with B.R Nijhawan in the records of L&DO and volunteered, that Anil Kumar Nijhawan used to say that he had been given Will dated 25.09.1989 in his favour but never shown the original Will to anyone including the L&DO. He denied that he as well as Lajpat Rai Nijhawan had seen Will dated 25.09.1989. He denied that the mutation letter 20.02.2002, whereby the property was mutated in his name and the name of the plaintiff, was collected by him from L&DO. On being confronted with the said letter and suggested that it had his signatures / initials with remarks 'received', he admitted that the signatures on Ex.PW1/D8 belonged to him and he had applied for mutation. (The said letter is also a part of Ex.PW5/1 and is at page on.
163.) He was shown the original letter dated 28.02.1994 which was a part of Ex.PW5/1 and upon that letter, he identified the signatures of his CS No. 613703/2016 Digitally signed by No. 32 of 69 PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:29:21 +0530 father at point A. On being suggested that alongwith this letter, his father had also enclosed the copy of Will dated 25.09.1989 of late Sh. Dina Nath Nijhawan, he answered that he was not aware as being in Army, outstation in J&K, all these letters were routed through Smt. Swaraj Soni, who was his aunt and mother-in-law of the plaintiff and volunteered, that this letter too must have been routed through Smt. Swaraj Soni. He again volunteered, that it was mutually understood that he would send his messenger whenever he had to report Ms. Swaraj Soni who used to receive all the correspondence from UK and USA and used to deposit the documents with the L&DO. He denied that Sh. B. R Nijhawan used to send correspondence and documents to L&DO either directly or through him or that he had not sent any letter or document through Ms. Swaraj Soni. On being asked, whether he knew that letter dated 10.01.1994 was not signed by Sh. Lajpat Rai Nijhawan, he answered that he did not know. On being suggested that whether it would be correct that because of letter dated 21.02.1994 and 28.02.1994 written by Sh. Lajpat Rai Nijhawan and Sh. B.R Nijhawan respectively where they had enclosed Will dated 25.09.1989, mutation was not done on the basis of letter dated 10.01.1994 written by Sh. B.R Nijhawan, he denied this suggestion and deposed that there was never any Will dated 25.09.1989. Since there was no such Will in existence, there was no question of mutation being not done on the basis so suggested. On being suggested whether it would be correct that Sh. Lajpat Rai Nijhawan till his death (in the year 2004) never disputed or questioned the letter dated 21.02.1994 written by him to L&DO and he answered that he did not CS No. 613703/2016 Digitally signed by No. 33 of 69 PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:29:29 +0530 know about it. On being suggested that would it be correct that Sh. B.R Nijhawan never disputed or questioned Lajpat Rai Nijhawan's letter dated 21.02.1994 and his own letter dated 28.02.1994 written to L&DO, he answered that he did not know and volunteered, that his father and Sh. Lajpat Rai Nijhawan had given affidavits to L&DO in respect of Will dated 05.04.1965. He denied that his father and Lajpat Rai Nijhawan had never pressed the application and affidavits given to L&DO on the basis of Will dated 05.04.1965 and pursued mutation on the basis of Will dated 25.09.1989. He denied that he did not write or question the mutation done by L&DO in favour of B.R Nijhawan and A.K Nijhawan on the basis of Will dated 25.09.1989 of Sh. Dina Nath Nijhawan. In a follow up question, he was asked that when he had written to L&DO questioning the mutation, he answered that he did not write anything to L&DO and volunteered, that he and his uncle Lajpat Rai Nijhawan came to know about this in the year 2002 only. He denied that from the very beginning, he as well as his uncle Lajpat Rai Nijhawan knew about the mutation done by L&DO on the basis of Will dated 25.09.1989. He denied that after the death of his father B.R Nijhawan, vide application dated 21.12.2001, he had applied for mutation with L&DO qua the ground floor of property no. 13/27, West Patel Nagar, New Delhi and volunteered, that the mutation was applied for the entire property. He was then shown a handwritten letter dated 21.12.2001, which was a part of Ex.PW5/1 and admitted that this letter was in his handwriting. He denied that vide this letter, he had not applied for mutation of the entire property. He admitted that with his CS No. 613703/2016 No. 34 of 69 Digitally signed by PARVEEN PARVEEN SINGH Date: SINGH 2024.09.11 14:29:36 +0530 application for mutation, he had filed affidavit of Anil Kumar Nijhawan, Kamla Nijhawan and his own affidavit which were at page 107, 108 and 109 of Ex.PW5/1 (colly). On being suggested that the affidavits of Anil Kumar Nijhawan and Kamla Nijhawan were prepared by him only and then they signed affidavits at his instance, he admitted this suggestion and volunteered that three affidavits were given for second mutation and first mutation was in the name of Anil Kumar Nijhawan and his father.
On being suggested that would it be correct that during her lifetime, Kamla Nijhawan was the owner of the ground floor of property no. 13/27, West Patel Nagar, he answered that it was a matter of record. He admitted filing of complaint dated 31.10.2011 to SHO, Sector 39, Noida, U.P. and the said complaint was Ex.DW1/P1. He denied that he had got a similar complaint dated 02.11.2011 made by Anil Kumar Nijhawan to SHO, Patel Nagar, New Delhi. He denied that his complaint Ex.DW1/P1 pertained to the loss of entire file of property no. 13/27, West Patel Nagar or that the said complaint also pertained to the original Will dated 25.09.1989 and other documents regarding the said property. He denied that the original Will dated 25.09.1989 was in the custody of Lajpat Rai Nijhawan as B.R Nijhawan and A.K Nijhawan were living abroad and volunteered, that there was no such Will. He denied that after the death of Lajpat Rai Nijhawan, Will dated 25.09.1989 was in his custody. He denied that he had sent the original Will dated 25.19.1989 to his mother Kamla Nijhawan by post to USA in the month of September 2011 on her request as she wanted to have a copy of the said Will. He denied that Kamla Nijhawan gave back the original Will dated 25.09.1989 to him in Digitally signed by CS No. 613703/2016 PARVEEN PARVEEN SINGH SINGH No. 35 of 69 Date:
2024.09.11 14:29:44 +0530 October 2011 when she came to India. He denied that Lajpat Rai Nijhawan was not and never claimed to be the owner of first and second floor of property no. 13/27, West Patel Nagar, Delhi. He denied that Lajpat Rai Nijhawan and his wife Uma Nijhawan never challenged the Will dated 25.09.1989 and the mutation dated 22.05.1996 done on the basis of the said Will. On being asked, whether he could show any document to prove that they had challenged the Will dated 25.09.1989 and mutation dated 22.05.1996 done on the basis of the said Will, he answered in negative and volunteered, that they came to know about this several years later in the year 2002 and thereafter, Lajpat Rai Nijhawan executed his Will whereby he bequeathed his first and second floor to him and allowed his son to shift on the second floor of property no. 13/27, West Patel Nagar.
34. I have considered the rival submissions, judgments cited at bar and perused the record very carefully.
35. The first contention that needs to be taken up is regarding the secondary evidence of the Will dated 25.09.1989 as the original Will was not produced before the court.
36. The claim of the plaintiff is, that the original Will was sent to him by defendant no. 2 in September 2011 where he got it notarized and on return to India, the Will was handed back to defendant no. 2 who then lost it.
37. It has been contended by ld. Counsel for defendants that this entire claim is an after thought because no such fact was mentioned in the plaint.
Digitally signed by CS No. 613703/2016 PARVEEN PARVEEN SINGH No. 36 of 69 SINGH Date:
2024.09.11 14:29:53 +0530
38. As far as this contention, that factum of Will being handed over to defendant no. 2 in October 2011 is not mentioned in the plaint, it is correct. However, when the written statement was filed by the defendants and they denied the existence of the Will, replication was filed by the plaintiff and in the replication, it was mentioned that Will dated 25.09.1989 was with Lajpat Rai Nijhawan and after his demise, it was with defendant no. 2 who, on being inquired by plaintiff and his mother, informed them that entire file containing the original papers pertaining to the suit property was lost when he shifted his residence from Patel Nagar to Noida and he has lodged a complaint with the concerned police station.
39. Thus, it cannot be said that it is only during the cross examination that an entirely new stand was built up by the plaintiff regarding the said Will.
40. The plaintiff had deposed that after the said Will was lost by defendant no. 2, defendant no. 2 lodged a report with Noida police and defendant no. 2 also asked him to lodge a similar report. He had lodged police complaint with police which was marked as Ex.PW4/C1. Defendant no. 2 admitted making the police complaint Ex.DW1/P1.
41. I have seen both these documents.
42. Ex.DW1/P1 is a complaint which defendant no. 2 admitted during his cross examination to have made to SHO, Sector 39, Gautam Budh Nagar, Noida. In the said complaint, he stated that he had lost file containing the lease hold papers of the suit property and this was lost during the time when he was shifting his luggage to Noida. That the file CS No. 613703/2016 Digitally signed by PARVEEN No. 37 of 69 PARVEEN SINGH SINGH Date:
2024.09.11 14:30:01 +0530 containing lease hold papers of his ancestral property could not be traced by him despite looking for the same. Two days later, on 02.11.2011, plaintiff loaded a FIR u/s 155 Cr.P.C, which is Ex.PW4/C1, and in the said complaint, he stated that he had lost the documents of suit property which were in his name and in the name of Sh. V.K Nijhawan in the area of Patel Nagar.
43. From both these complaints, it cannot be said with clarity that the documents, which were lost, included the original Will dated 25.09.1989. However, the fact that both the plaintiff and defendant no. 2 lodged similar complaints gives some credence to the claim of the plaintiff.
44. Furthermore, during the cross examination of the plaintiff, a suggestion was given to him that the original Will dated 25.09.1989 was lost by defendant no. 2 when he was shifting his residence from Patel Nagar to Noida and plaintiff denied this suggestion. Then it was specifically asked that when the original Will dated 25.09.1989 was lost by defendant no. 2 and he answered, that he did not know when the original Will dated 25.09.1989 was lost by defendant no. 2 as the same was handed over to him (defendant no. 2) in October 2011 in his presence by their mother.
45. The first suggestion reflects that the stand of defendant no. 2 was that defendant no. 2 had lost the Will and it cannot be an inadvertence because, the second question was specifically to ask when defendant no. 2 had lost the Will. So this cross examination also raises the probability of existence of Will.
CS No. 613703/2016 Digitally
signed by
PARVEEN
No. 38 of 69 PARVEEN SINGH
SINGH Date:
2024.09.11
14:30:10
+0530
46. The further claim of the plaintiff is, that the said original Will was sent to him to USA by defendant no. 2 and the original Will was returned to defendant no. 2 when plaintiff came to India. This brings me to the cross examination of the plaintiff that was conducted.
47. Copy of the Will Ex.PW3/1 apparently was notarized in USA and was attested at Indian Embassy, USA.
48. On this point, plaintiff was cross examined. During his cross examination, plaintiff admitted that he had got a photocopy of Will attested from Notary Public in USA and volunteered, that thereafter it was got attested from Indian Embassy as attestation by Notary Public at US was required for documents before submitting with Indian Embassy with all original papers. It was around 23.09.2011 that he got the photocopy of the 1989 Will attested through Notary Public as well as Indian Embassy. He admitted that he had produced the original Will of 1989 before the Notary Public and Indian Embassy for attestation.
49. If this cross examination of plaintiff is looked at, there is no denial to the fact that the Will was got notarized in USA and was further attested at Indian Embassy. On the contrary, a positive suggestion was given that he had produced the original Will. There was no dispute raised to his testimony that the Notary as well as Indian Embassy only attested the copy after seeing the original document and that he had produced the original Will at the Embassy. So the attestation which has not been rebutted or been alleged to be forged by the notary public and Indian Embassy raises a strong probability that such attestation could not have been done by the Attache Consulate at Indian Embassy unless, the Digitally CS No. 613703/2016 signed by PARVEEN No. 39 of 69 PARVEEN SINGH SINGH Date:
2024.09.11 14:30:18 +0530 original Will was produced before the Notary and in Indian Embassy.
50. This brings me to the fact that on the basis of Will of 1989, the lease hold rights were transferred in favour of the plaintiff and Balwant Rai Nijhawan in 1996.
51. The defendant no. 2 claimed to have received the knowledge of this Will in the year 2002 and also stated that at the same time, this knowledge was received by Sh. Lajpat Rai Nijhawan, the other legal heir of late Sh. Dina Nath Nijhawan. Despite having the knowledge that a Will had been propounded and on the basis of the said Will, transfer of lease hold rights had taken place which had excluded one of the LR namely Sh. Lajpat Rai Nijhawan and which might have affected the rights of defendant no. 2; no protest at all was raised by defendant no. 2 or Lajpat Rai Nijhawan and no suit or claim for declaration of the said Will as a nullity or cancellation of transfer of lease hold rights was raised.
52. Therefore, the circumstances which raise probability of existence of Will, one after another, as have been discussed, combined together, raise a very strong probability of existence of Will dated 25.09.1989. I therefore find that by preponderance of probabilities, plaintiff has established that original Will dated 25.09.1989 existed and he is not in possession of the original Will dated 25.09.1989. That being the case, plaintiff will be entitled to lead secondary evidence.
53. This brings me to the question whether Will Ex.PW3/1 has been proved or not?
54. Ld. Counsel for plaintiff has contended that plaintiff has CS No. 613703/2016 Digitally signed No. 40 of 69 by PARVEEN PARVEEN SINGH Date:
SINGH 2024.09.11 14:30:25 +0530 successfully proved the existence of this Will by examination of PW3 Smt. Swaraj Soni. He has contended that as both the witnesses to the Will were dead, the same could only have been proved u/s 69 of Indian Evidence Act and Ms. Swaraj Soni, being the daughter of one of the attesting witnesses, had identified the signatures. He further contended that even otherwise, the defendant is estopped from denying this Will as the said Will had already been acted upon and it was under the knowledge of the defendant. In this regard, he has relied upon the judgment of Hon'ble High Court of Delhi in Surendra Nath Pasricha (supra).
55. On the other hand, ld. Counsel for defendant has contended that Will has not been proved as there are many contradictions in the testimony of PW3 Swaraj Soni. This coupled with the fact, that she was closely related to the plaintiff, puts her testimony under a shadow of doubt as she is an interested witness. He has further contended that the Will dated 25.09.1989 was executed under suspicious circumstances where a highly distinguished lawyer is claimed to have executed Will in his last days and that too an unregistered Will. He has further contended that earlier Sh. Dina Nath Nijhawan, a highly distinguished lawyer, had executed a registered Will in the year 1965 and therefore, if he had at all to supersede that Will, would have executed another registered Will as he was well versed with law.
56. The main thrust of the argument of the defendants has been that the Will dated 25.09.1989 has not been proved either u/s 68 of the Indian Evidence Act or u/s 69 of the Indian Evidence Act and could only CS No. 613703/2016 Digitally signed by PARVEEN No. 41 of 69 PARVEEN SINGH SINGH Date:
2024.09.11 14:30:33 +0530 be proved by the mode provided under these two sections and in no other manner and second is, that the Will was executed under suspicious circumstances. He has relied upon the judgments of Hon'ble Supreme Court in Apoline D'Souza v. John D'Souza, 2007 AIR (SC) 2219; Benga Behera v. Braja Kishore Nanda, 2007 AIR (SC) 1975; Joseph Antony Lazarus v. A.J Francis, 2006 AIR (SC) 1895 and N. Kamalam v. Ayyasamy, 2001 AIR (SC) 2802.
57. The sum and substance of all the judgments is, that the Will has to be proved either u/s 68 or section 69 of the Indian Evidence Act and cannot be proved in any other manner.
58. The second point which the counsel seeks to buttress through these judgments is, that if a Will is found to have been executed under suspicious circumstances, such Will should be very cautiously accepted and may be rejected if the suspicious circumstances are proved.
59. In order to prove the Will dated 25.09.1989, plaintiff examined PW3 Smt. Swaraj Soni. She is the daughter of Sh. R.P Nijhawan, who is one of the attesting witness of the Will Ex.PW3/1.
60. Her testimony that the Will bore the signatures of her father remained unrebutted. As far as section 69 of Indian Evidence Act is concerned, the said requirement will stand complied when the witness identified the signatures of one of the attesting witnesses. It is so because, the purpose of bringing a witness u/s 69 of Indian Evidence Act is for the identification of the signatures of the attesting witness, if the attesting witness is dead or cannot be found. This witness is not expected to prove the execution of Will, but if the signatures of the CS No. 613703/2016 Digitally signed by No. 42 of 69 PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:30:41 +0530 attesting witness are successfully proved, there is no further requirement from this witness to prove the execution of the Will.
61. The fact, that she is the daughter of the attesting witness, is not disputed. The fact that she could have recognized the signatures of her father is also not disputed because her father was also a signatory to the earlier Will of 1965, which has been found to be proved during the earlier discussions and it was proved u/s 69 of Indian Evidence Act upon her testimony when she identified the signatures of her father on that Will. She identified the signatures of her father on this Will also and her testimony that these were the signatures of her father remained unrebutted. It was not claimed that the signatures of her father were forged. Therefore, through Swaraj Soni, it stands proved that Will Ex.PW3/1 was signed by Sh. R.P Nijhawan as attesting witness and the requirement of section 69 of Indian Evidence Act stands complied with.
62. However, this witness also deposed about her presence at the time of execution of this Will and it is on this deposition that the contentions were raised on behalf of the defendant that testimony of this witness has contradictions. As she has deposed about it, the said testimony needs to be considered.
63. I have considered the submissions on behalf of the defendants and the testimony of PW3.
64. It is correct that there are some variations in the testimony of PW3 that have appeared with regard to whether, there was a family gathering when the Will was executed or not. However the question is, can this be taken as a material contradiction to discredit her entire CS No. 613703/2016 Digitally No. 43 of 69 signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:30:49 +0530 testimony and in my opinion, this variation does not go to the root of the matter and cannot discredit her entire testimony.
65. Similarly her relationship with the plaintiff also cannot result discarding of her testimony as being interested witness because, she was to identify the signatures of her father and it has not been controverted or suggested that she had falsely identified the signatures of her father or that those signatures did not belong to her father. On the contrary, she had also identified the signatures of her father on the Will of 1965 which had been propounded by the defendants and which had led the court to hold that the said Will stood proved. Therefore, a bias cannot be alleged against her.
66. With regard to the contention that the Will was not read over to Sh. Dina Nath Nijhawan, I find that this witness has only stated that she did not remember whether the Will was read over or not. Whether the Will was read over to Dina Nath Nijhawan or not was not for her to prove as she was a witness u/s 69 of Indian Evidence Act.
67. Thus, as far as the requirement of section 69 of Indian Evidence Act is concerned, plaintiff by examination of PW3, whose testimony as far as signatures of her father are concerned, has remained unrebutted, has succeeded in proving the existence of this Will.
68. The next challenge to the Will that has been raised on behalf of the defendants is with regard to the incapacity of Sh. Dina Nath Nijhawan to execute the Will dated 25.09.1989 at the time when it was executed and this has been projected as a suspicious circumstance.
69. Defendants had repeatedly suggested to the plaintiff's Digitally signed by CS No. 613703/2016 PARVEEN PARVEEN SINGH No. 44 of 69 SINGH Date:
2024.09.11 14:30:57 +0530 witnesses that Sh. Dina Nath Nijhawan was suffering from dementia and pleurisy and these suggestions were denied. Had Sh. Dina Nath Nijhawan been suffering from dementia or pleurisy, it would have certainly been a situation where the court could have had to accept that he may have had physical or mental incapacity to execute the Will in the year 1989. However, the only fact that stands proved is that Dina Nath Nijhawan died at a very old age but that itself does not prove that because of his age, he might have been suffering from dementia or pleurisy. No documentary evidence or medical record of any nature has been produced on record to show any disease mental or physical that Sh. Dina Nath Nijhawan might have been suffering from at the time of execution of Will. It was suggested that he had been repeated in and out of hospitals during his last days. Even the names of such hospitals were also suggested. Still no medical evidence was produced by the defendants to prove any illness which would have de-capacitated Sh. Dina Nath Nijhawan from executing this Will. I accordingly find that defendants have failed to prove that Sh. Dina Nath Nijhawan had physical or mental incapacity which would vitiate the execution of this Will.
70. The next suspicious circumstance which has been raised on behalf of the defendants is, that the first Will was according to natural line of succession and the second Will was not as per natural line of succession and therefore, the second Will is a manipulated document and is suspicious and needs to be discarded.
71. In the first Will, natural line of succession appears to have CS No. 613703/2016 No. 45 of 69 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:31:03 +0530 been followed because, the said Will bequeaths a portion of the said property i.e. ground floor to his one son Sh. Balwant Rai Nijhawan, who was living away from him and then everything else including the first and second floor were bequeathed to his other son Lajpat Rai Nijhawan as he was living with the deceased and taking care of him. In the second Will, what was to be bequeathed to Sh. B.R Nijhawan remains the same. However, the first and second floor are then bequeathed to the plaintiff while giving the right of residence to Lajpat Rai Nijhawan and his wife throughout their life. So disinheriting one of the sons seems unnatural and especially the son, for whom love and affection was clearly visible in the first Will. However, we cannot lose sight of the fact that the time gap of execution of the first Will and second Will is 24 years. In human life, a lot can happen in 24 years. When the first Will was executed, Sh. Lajpat Rai Nijhawan and his wife must have been young but when the second Will was executed, they had come in their middle ages and probability of having them any progeny would have diminished and it is then that the second Will was executed. It is not that Sh. Lajpat Rai Nijhawan or his wife were completely left out. They had been given lifetime right of residence and thus, after 24 years, if a father changes his mind because the second son did not have a child and bequeathed lifetime residence to his second son and thereafter the property to one of his grandson, it cannot be said to be completely unnatural and be accepted as a ground that execution of Will was suspicious. Coupled with these facts is the fact, that this Will dated 25.09.1989 was acted upon in the year 1996. Defendant no. 2 himself had followed up the CS No. 613703/2016 Digitally signed by No. 46 of 69 PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:31:10 +0530 substitution of lease hold rights on the basis of this Will and as discussed earlier, it is hard to believe that he was not aware that the substitution was being done on the basis of this Will. Similarly Sh. Lajpat Rai Nijhawan, at least as per defendant no. 2, came to know about this Will and the substitution of lease hold rights on the basis of this Will dated 25.09.1989 in the year 2000 but till his death, he never took any steps to challenge the validity of this Will.
72. This necessitates detailed discussion on the issue of validity and legality of the transfer of lease hold rights of property in favour of plaintiff and father of the parties.
73. It is the admitted case of the parties that, late Dina Nath Nijhawan was having the lease hold rights in respect of property no. 13/27, West Patel Nagar, New Delhi. It is also not disputed that late Dina Nath Nijhawan had expired on 28.05.1990.
74. Thereafter, whatever happened for the transfer of the lease hold rights of the suit property, has been reflected from the records brought and proved by PW1 and PW5.
75. Therefore, before proceeding on the evidence of the parties, testimonies of these two witnesses need to be considered.
76. PW1 Mala Chhabra, Assistant from Land & Development Office, Nirman Bhawan proved the application for mutation filed by Sh. Balwant Rai Nijhawan with respect to the suit property. The said application was Ex.PW1/1. Mutation was granted in favour of Sh. Balwant Rai Nijhawan and Sh. Anil Kumar Nijhawan i.e. the plaintiff was proved on record as Ex.PW1/2. She further deposed that this CS No. 613703/2016 Digitally signed by No. 47 of 69 PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:31:18 +0530 mutation was effected on the basis of affidavits filed by Sh. Anil Kumar Nijhawan, Sh. Balwant Rai Nijhawan and Sh. Lajpat Rai Nijhawan. The original affidavit dated 15.07.1994/26.08.1994 of Sh. Anil Kumar Nijhawan was Ex.PW1/3. The original affidavit dated 07.04.1995 of Lajpat Rai Nijhawan was Ex.PW1/4. The original affidavit dated 07.04.1995 of Sh. Balwant Rai Nijhawan was Ex.PW1/5. She also produced on record the letter of Sh. Balwant Rai Nijhawan dated 28.02.1994, which was accompanied by attested photocopy of Will dated 25.09.1989, as Ex.PW1/6. The Will accompanying the said letter was Ex.PX. (The exhibit was merely marked for the purposes of identification of the said document.) She also proved the original letter dated 07.05.1996 was exhibited as Ex.PW1/7. Letter dated 15.15.1996 with affidavit of Balwant Rai Nijhawan dated 06.05.1996 was Ex.PW1/8 (colly). She also proved the power of attorney/ authority letter dated 06.15.1996 as Ex.PW1/9.
77. During her cross examination, she admitted that as per practice, no objection from other LRs is sought for the purpose of mutation and volunteered, that it is in case there is no Will. She could not say whether such practice was prevalent in the year 1994 or not. During her cross examination, the affidavit submitted by Smt. Prakashwati Nijhawan was taken on record and was exhibited as Ex.Pw1/D1. She denied that by means of said affidavit, Prakashwati had given no objection to the application Ex.PW1/1. She was asked the purpose of furnishing affidavit Ex.PW1/D1 and she answered that it was submitted for the purposes of details of LRs as well as to state whether CS No. 613703/2016 Digitally signed by No. 48 of 69 PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:31:26 +0530 there was any Will left behind by the deceased. She admitted that in Ex.PW1/D1, there was a reference of a Will left by the deceased and that Will was the registered one. Copy of the will was annexed in the said affidavit and was exhibited as Ex.PY. (Here again, exhibition was done only for the purposes of identification.) She admitted that Sh. Balwant Rai Nijhawan and Sh. Lajpat Rai Nijhawan had furnished their affidavits in support of application Ex.PW1/1. The copies of the affidavits were exhibited as Ex.PW1/D2 and Ex.PW1/D3. She admitted that on 21.12.2001, an application for mutation was filed by Brig. V.K Nijhawan and Sh. Anil Kumar Nijhawan (plaintiff) for mutation in their joint names and the said application was Ex.PW1/D4. She admitted that in respect of the said application, Smt. Kamla Nijhawan, Sh. Anil Kumar Nijhawan and Sh. V.K Nijhawan had furnished their affidavits which were Ex.PW1/D5 to Ex.PW1/D7. She also admitted that vide mutation dated 20.02.2002, property was mutated in the joint names of Sh. Anil Kumar Nijhawan and Sh. V.K Nijhawan. The mutation order was Ex.PW1/D8. Thereafter, vide application (Ex.PW1/D9), Sh. Anil Kumar Nijhawan and Sh. V.K Nijhawan had jointly applied for the conversion of the property into free hold. She further deposed that as per the procedure followed by L&DO, in case of mutation on the basis of Will, affidavits of the beneficiaries are to be taken on record. Affidavits of other LRs are not to be called for L&DO in case the mutation is on the basis of a Will. She was not sure whether in case of mutation on the basis of Will, affidavits/ no objections of LRs other than the beneficiaries are to be taken or not. As per her record, there was no letter CS No. 613703/2016 Digitally No. 49 of 69 signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:31:33 +0530 or application by Sh. Anil Kumar Nijhawan for revocation of Ex.PW1/D8 i.e. the mutation order dated 20.02.2002.
78. During her re-examination on behalf of the plaintiff, she deposed that no objection with regard to mutation dated 22.05.1996 (Ex.PW1/2) nor was there any complaint or application for revocation of said mutation from any person.
79. The other witness of the record from L&DO is PW5 Rajesh Kumar. He deposed that he had brought the summoned record, copy of which was already on record and it was marked as Ex.PW5/1 (colly) (from page no. 1 to 103 of the list of plaintiff's documents dated 01.11.2013). The record was seen and returned. Apart from this, the affidavit of Sh. Anil Kumar Nijhawan, which was at page no. 51 of Ex.PW5/1 (colly) was without the back page and the said back page of the affidavit was taken on record and exhibited as Ex.PW5/2. During the tendering of documents by PW5, objections were taken to the mode of proof of the Wills dated 05.04.1965, 25.19.1989 and 22.08.1995 since in the record produced by the witness, there were only photocopies of the Wills. Objection was also taken to the mode of proof of Ex.PW5/2 i.e. the reverse side of affidavit as the executor was neither examined nor present.
80. During his cross examination, he deposed that he did not know whether any official of L&DO had seen the original Will dated 25.09.1989 or had recorded that this Will was seen and returned by him. He could not say when, for the first time, the application for mutation was applied and by whom. Against the mutation of the property, L&DO CS No. 613703/2016 No. 50 of 69 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:31:40 +0530 did not invite any objections through publication. Property was mutated on 22.15.1996 in the name of Balwant Rai Nijhawan and Anil Kumar Nijhawan. L&DO did not take any steps to ascertain that Sh. B.R Nijhawan and Sh. A.K Nijhawan were the legal heirs of late Sh. Dina Nath Nijhawan and volunteered that L&DO relied upon the affidavits furnished by them. No registered relinquishment deed executed by Sh. Lajpat Rai Nijhawan was available on record. L&DO did not ask Sh. Lajpat Rai Nijhawan to produce the relinquishment deed. No show cause notice was issued by L&DO at the suit property at the time of mutation. L&DO did not ask Sh. A.K Nijhawan to obtain a probate of Will dated 25.09.1989. He had no personal knowledge of the case and his entire knowledge was based on the record.
81. From the documents on record, it is apparent that initially, after the death of Sh. Dina Nath Nijhawan, an application for mutation was moved by Sh. B.R Nijhawan, which was Ex.PW1/1 and the application stated that it was accompanied by affidavits of Smt Prakashwati, Sh. B.R Nijhawan and Sh. Lajpat Rai Nijhawan and copy of duly registered Will of late Sh. Dina Nath Nijhawan.
82. If the record produced by PW5, which is Ex.PW5/1 (colly), is seen, this letter was accompanied by affidavits and those affidavits are on record at page no. 8 to 13. These affidavits mentioned about these three LRs and the registered Will being left behind by late Sh. Dina Nath Nijhawan.
83. The record produced by PW5 further reveals that thereafter, another letter dated 12.02.1994 was jointly issued by Sh. B.R Nijhawan Digitally CS No. 613703/2016 signed by PARVEEN No. 51 of 69 PARVEEN SINGH SINGH Date:
2024.09.11 14:31:48 +0530 and Sh. Lajpat Rai Nijhawan seeking joint mutation in their names. The said letter is at page no. 38 of Ex.PW5/1 (Colly). The letter in continuation of this letter is dated 16.02.1994, which is at page no. 35 of Ex.PW5/1. Vide this letter, a request was again made for joint transfer of the lease hold rights in favour of Sh. B.R Nijhawan and Sh. L.R Nijhawan. The said letter was written by Sh. B.R Nijhawan. The said letter referred to two affidavits accompanying this letter and they are at page no. 36 & 37 of Ex.PW5/1 (colly). Both these affidavits mentioned a Will dated 05.04.1965 of late Sh. Dina Nath Nijhawan whereby the property had been bequeathed in favour of Sh. Lajpat Rai Nijhawan and Sh. B.R Nijhawan. These two letters came to be written after the death of Smt. Prakashwati Nijhawan and this fact was informed by Sh. B. R Nijhawan vide letter dated 14.05.1994 (page no. 39 of Ex.PW5/1), which was accompanied by the death certificate of Smt. Prakashwati.
84. Thus, it is proved from the unchallenged official record that after the death of Sh. Dina Nath Nijhawan, B.R Nijhawan, Lajpat Rai Nijhawan had sought transfer of the lease hold rights in their favour on the basis of a registered Will of late Dina Nath Nijhawan.
85. However, there is a twist or change of circumstance which comes about when vide a letter dated 21.02.1994, Sh. Lajpat Rai Nijhawan informed L&DO (page no. 41 & 42 of Ex.PW5/1) that he was bed ridden and admitted in LNJP Hospital and there he came to know that his brother had sent a copy of old Will for the year 1965 which was executed by his late father but the said Will had been superseded by another Will dated 25.09.1989 whereby, the ground floor portion of the CS No. 613703/2016 Digitally No. 52 of 69 signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:31:57 +0530 said house was bequeathed to his elder brother Sh. B. R. Nijhawan, second floor was bequeathed to Sh. Anil Kumar Nijhawan and his wife Anju Nijhawan and that he and his wife had only been granted right to stay on the first floor during their lifetime. He therefore requested that the suit property be mutated in the name of Sh. B.R Nijhawan (ground floor) and Sh. Anil Kumar Nijhawan and Smt. Anju Nijhawan (first floor). It is followed by a similar letter issued by Sh. B.R. Nijhawan to L&DO requesting for mutation of lease hold rights in his favour and in favour of Sh. A.K Nijhawan as per Will of the year 1989. This letter is at page no. 46 of Ex.PW5/1.
86. Then there are various letters which reflect that matter was being followed up and then comes a letter dated 07.05.1996 ( which is Ex.PW1/7 and also at page no. 58 of Ex.PW5/1). This letter is written by Sh. V.K Nijhawan (defendant no. 2). Vide this letter, Sh. V.K Nijhawan forwards the original affidavit of Sh. Lajpat Rai Nijhawan, which, as per this letter, was duly attested by a Metropolitan Magistrate and further states that affidavits of other LRs had already been forwarded, mutation may be carried out. A noting on the said letter is, that it was personally handed over in the office. This means that V.K Nijhawan had personally handed it in the office of L&DO. Interestingly, this affidavit of Lajpat Rai Nijhawan which accompanied this letter mentioned that Dina Nath Nijhawan had left behind a Will dated 25.09.1989 and he had no objection if the said Will was acted upon.
87. Thereafter, there is another letter dated 15.05.1996 (Ex.PW1/8) of V.K Nijhawan written to Vigilance & Legal Officer of CS No. 613703/2016 Digitally signed by No. 53 of 69 PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:32:04 +0530 L&DO referring to a telephonic conversation with him. The letter is to the effect that V.K Nijhawan was enclosing an affidavit of his father B.R Nijhawan and a request was made to issue mutation papers at the earliest.
88. Interestingly, the said affidavit also refers to a Will dated 25.09.1989 and admittedly, at that time, by virtue of Power of Attorney (Ex.PW1/9), V.K Nijhawan was acting as an attorney of his father.
89. Finally vide Ex.PW1/2 dated 25.05.1996, the lease hold rights of the suit property were transferred jointly in the name of Sh. B.R Nijhawan and Sh. Anil Kumar Nijhawan. This was so done on the basis of Will dated 25.09.1989.
90. The matter with regard to the lease hold rights of this property remained at rest till the death of Sh. B.R Nijhawan who expired on 31.12.1999 and on 12.12.2001, defendant no. 2 wrote to L&DO for transfer of lease hold rights of this property in his name. The said letter is Ex.PW1/D4 and is also available at page no. 67 of Ex.PW5/1 (colly). Vide this letter, defendant no. 2 informed L&DO that Balwant Rai Nijhawan, who was the joint owner of the property with Sh.A.K Nijhawan (plaintiff), had expired on 31.12.1999 and he had left behind a Will whereby he had bequeathed 50% share in the property in favour of defendant no. 2. He further informed that he was enclosing the affidavits of all the LRs and requested to have the property transferred in his name. On the basis of his application, lease hold rights were granted in joint name of V.K Nijhawan and A.K Nijhawan (Ex.PW5/1, page 76).
91. On the document Ex.PW5/1, defendant no. 2 who appeared CS No. 613703/2016 Digitally No. 54 of 69 signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:32:13 +0530 as DW1, was cross examined. He admitted writing letter dated 07.02.1996 to L&DO to expedite the mutation.
92. During his cross examination, he was shown the original of this letter and he admitted that this letter was written by him in response to letter dated 17.07.1995 from L&DO and he had also seen this letter when he inspected the L&DO file on 16.08.2010, 08.11.2010 and 22.04.2013.
93. While admitting that he had written this letter, he stated that he had written 4-5 letters to L&DO and in fact he had trust and confidence on his brother who had assured him that he would annex with the forwarding letter any document to be supplied to L&DO for the purpose of mutation. However, those annexures were never supplied to him. He further deposed that he did not remember if on 07.05.1996, his brother Anil Kumar Nijhawan was in USA and volunteered, that he must have been in USA on that day. Though he denied that alongwith letter dated 07.05.1996, he annexed affidavit of Lajpat Rai Nijhawan , which was part of Ex.PW5/1 and original of which was shown to him but if the letter dated 07.05.1996 is seen; it unambiguously states that affidavit of Lajpat Rai Nijhawan was annexed with it. This letter is hand written. Therefore, in view of this clinching evidence that he had written the letter and annexed the affidavit of Lajpat Rai Nijhawan, his mere denial that he had not done so does not generate confidence. On the contrary, it is more probable, as the record has been produced from official file, that he had annexed affidavit of Lajpat Rai Nijhawan with his letter dated 07.05.1996. This is more so because, the said letter, as noted earlier, was CS No. 613703/2016 Digitally signed by No. 55 of 69 PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:32:22 +0530 personally handed by him in the office of L&DO. That being the case, there is no question of him not not knowing that he had handed over the affidavit of Lajpat Rai Nijhawan with his letter. This fact coupled with the fact that the defendant no. 2 is highly educated person, raises a very high probability that he must had annexed the said affidavit after reading it.
94. The transfer of lease hold rights in favour of the defendant was claimed by the defendant on the basis of Will left behind by his father B.R Nijhawan. The said Will was filed by defendant and admitted by plaintiff and was exhibited as Ex.D-1. With regard to the property in question, it is stated in the said Will that H. No. 13/27, Ground Floor, West Patel Nagar was handed over to him by his father late Sh. Dina Nath Nijhawan through a Will and is being bequeathed in favour of defendant no. 2 V.K Nijhawan. Thereafter describing the extent of construction on the ground floor, it is stated that Sh. V.K Nijhawan (defendant no. 2) shall be the owner of his interest in this property after his death. Thus, there is an acknowledgment of the defendant no. 2 that his right only flowed from the said Will of his father which bequeathed upon him the entire ground floor. It is on the basis of the said acknowledgment that lease hold rights were transferred in his favour vide letter 22.05.1996. Therefore, as per the Will of his own father, who was admittedly a joint lessee of property no. 13/27, West Patel Nagar, New Delhi, the defendant no. 2 was only bequeathed the ground floor.
95. This fact is further fortified by one of the documents filed by the defendants, which was Ex.PW2/D1. The said document was CS No. 613703/2016 No. 56 of 69 Digitally signed by PARVEEN PARVEEN SINGH Date:
SINGH 2024.09.11 14:32:29 +0530 purportedly executed by Kamla Nijhawan, who denied it. This document which is stated to be executed on 31.10.2001 i.e. prior to the time when defendant no. 2 applied for transfer of lease hold rights in his favour on the basis of Will (Ex.D-1), the said document again acknowledges that Sh. V.K Nijhawan was only entitled to the ground floor and that is why, it is stated in the said document that ground floor portion of this property has been willed to Sh. V.K Nijhawan.
96. Defendant no. 2 had sought transfer of lease hold rights in his favour by virtue of letter 12.12.2001 (Ex.PW1/D4). The said transfer was sought on the claim that his father, alongwith plaintiff, was the owner of the property and had left behind a Will whereby his father had bequeathed his share in the property to him. Therefore, the defendant by virtue of the said letter acknowledged that his right in the property is only limited to the right which is father had in this property.
97. Therefore, from the evidence on record, the facts which emerge are:
(1) Undisputedly initially an application was made for transfer of lease hold rights by the LRs of late Sh. Dina Nath Nijhawan on the basis of Will dated 05.04.1965 (2) Thereafter Sh. Lajpat Rai Nijhawan wrote to L&DO that the said Will dated 05.04.1965 had been superseded by a subsequent Will dated 25.09.1989 of Dina Nath Nijhawan and that transfer of lease hold rights should be carried out on the basis of said Will (3) That Sh. V.K Nijhawan (defendant no. 2) pursued this subsequent request and himself handed over letter (Ex.PW1/7) which accompanied CS No. 613703/2016 Digitally signed by No. 57 of 69 PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:32:36 +0530 the affidavit of B.R Nijhawan mentioning that there was a Will dated 25.09.1989 and the said Will was to be acted upon and that he also gave letter Ex.PW1/8 with affidavit of father acting as his attorney. (4) It is also established that vide order dated 22.05.1996, the Will dated 25.09.1989 was acted upon and lease hold rights of the property had been jointly transferred in favour of Sh. A.K Nijhawan and his father Sh.
B.R Nijhawan.
(5) It is further established that at least, prior to 12.12.2001, when defendant no. 2 V.K Nijhawan applied for transfer of lease hold rights of suit property in his favour on the basis of Will of his father B.R Nijhawan, V.K Nijhawan was aware that the lease hold rights of the property had already been transferred in the name of his father and his brother A.K Nijhawan. Meaning thereby, he was also aware that the earlier Will of 1965 which he seeks to propound in this suit was not acted upon and the property had not been transferred as per the said Will.
(6) It is also undisputed that after 12.12.2001 till the date on which defendants filed their written statement in this case which happened in the year 2012, defendant no. 2 never challenged the said transfer of lease hold rights in favour of Sh.A.K Nijhawan and Sh. B.R Nijhawan or the Will of Sh. Dina Nath Nijhawan dated 25.09.1989. Not only that, he himself acknowledged this transfer when after the death of his father, he wrote letter Ex.PW1/D4 to have the lease hold rights transferred in his own name.
(7) The defendant no. 2 had himself, knowing that lease hold rights had Digitally CS No. 613703/2016 signed by PARVEEN No. 58 of 69 PARVEEN SINGH SINGH Date:
2024.09.11 14:32:43 +0530 been transferred jointly to plaintiff and his father in 1996, applied for transfer of lease hold rights on the basis of the Will of his father which bequeathed upon him only the ground floor of the property. Thus, he is now, after 10 years (on the date of filing the suit) estopped from challenging the earlier transfer dated 22.05.1996.
98. The seven facts which have been discussed above also raise a high probability that there was a Will dated 25.09.1989 of late Sh.
Dina Nath Nijhawan; that the parties were aware about its existence and, with the knowledge of Class-I legal heirs of late Sh. Dina Nath Nijhawan it was acted upon. Not only this, defendant no. 2 was also aware that the Will dated 05.04.1965 was not acted upon and the lease hold rights, were transferred in the name plaintiff and B.R Nijhawan on the basis of Will dated 25.09.1989. All these facts coupled with the testimony of PW3 u/s 69 of Indian Evidence Act lead me to hold that by preponderance of probabilities, plaintiff has successfully proved that Sh. Dina Nath Nijhawan executed his last Will dated 25.09.1989. Issue no. 10 is accordingly decided in favour of the plaintiff and issue no. 11 is decided against the defendants.
99. In view of the overall facts and circumstances which have emerged, it is clear that the defendants have failed to prove that plaintiff was not the owner (lessee) of the property in question.
100. On the contrary, the conduct of the defendants, as has been discussed above and circumstances which have emerged therefrom are, that by virtue of Will dated 25.09.1989 of Dina Nath Nijhawan, lease hold rights were jointly transferred in the name of Sh. Balwant Rai Digitally signed CS No. 613703/2016 by PARVEEN PARVEEN SINGH No. 59 of 69 Date:
SINGH 2024.09.11 14:32:52 +0530 Nijhawan and Sh. Anil Kumar Nijhawan. The said transfer was of the year 1996 which in my opinion, was in the knowledge of the defendants from the very beginning as the circumstances have revealed.
101. However, even if the case of the defendants is taken to be correct that he came to know about it somewhere in the year 2002, the limitation for challenging the said transfer had already expired by the time WS came to be filed and thus, the said transfer even otherwise cannot be set aside on any of the grounds alleged or raised on behalf of the defendants. Issue no. 5 is accordingly decided against the defendants.
102. Coming onto the issue no. 6. In view of the findings of issue no. 5, circumstances have clearly revealed that there was no concealment on the part of the plaintiff as defendant no. 2 himself was instrumental in having lease hold rights transferred in the name of plaintiff and his father. Thus, the defendant no. 2 was very well aware what was being done and could have objected at that stage. Even otherwise, mutation (should have been stated to transfer of lease hold rights) dated 22.05.1996 cannot be declared a nullity on the ground that name of defendant no. 2 was concealed because; as defendant no. 2 was not the class I legal heir of late Dina Nath Nijhawan, it was not required to be disclosed that he was one of the LRs of late Sh. Dina Nath Nijhawan. Admittedly, he is the grandson of late Dina Nath Nijhawan and thus, as long as his father was alive, who admittedly at that time was alive, he was not required to be listed as one of the LRs of Dina Nath Nijhawan.
Digitally
signed by
PARVEEN
CS No. 613703/2016 PARVEEN SINGH
SINGH Date:
No. 60 of 69 2024.09.11
14:32:59
+0530
103. Even otherwise, in the entire examination in chief, he has not even whispered about this issue and has not thus led any evidence on this issue.
104. Thus I find that the defendants have failed to prove this issue. Issue no. 6 is accordingly decided against the defendants.
ISSUE NO. 88. Whether the plaintiff and defendants 1 & 2 alongwith Smt. Kamla Nijhawan had entered into a family settlement dated 22.10.2011, if so its effect? OPD 1 & 2
105. The onus to prove this issue was upon the defendants. However, in the written submissions filed on behalf of the defendants, it is submitted that this issue is having no relevancy for adjudication of actual controversy between the parties.
106. Thus, being given up, this issue is decided against the defendants.
ISSUE NO. 77. Whether late Sh. Lajpat Rai Nijhawan executed the Will dated 13.04.2002 in sound disposing health and state of mind, if so its effect? OPD 1 & 2
107. The onus to prove this issue was upon the defendants. However the Will dated 13.04.2002 of Sh. Lajpat Rai Nijhawan has not been proved by leading any evidence on behalf of the defendants. Thus, I find that the defendants have failed to prove this issue. This issue is accordingly decided against the defendants.
CS No. 613703/2016 Digitally
signed by
PARVEEN
No. 61 of 69 PARVEEN
SINGH
SINGH
Date:
2024.09.11
14:33:08
+0530
ISSUE NO. 1
1. Whether the plaintiff had permitted defendant no. 1 to use the suit property at the request of defendant no. 2? OPP.
108. In order to prove this issue, plaintiff, appearing as PW4, deposed that as he was living in USA, he had no one to take care of the suit property except the defendant no. 2, who was living in India. He therefore, asked defendant no. 2 to take care of the second floor of the suit property, to which defendant no. 2 readily agreed. In the year 2003, defendant no. 2 had made a request to him that his son i.e. defendant no. 1 was running a clinic and also living in Defence Colony, New Delhi where he was paying a huge rent of Rs.25,000/- per month. Therefore, defendant no. 2 asked him to allow defendant no. 1 to use the second floor of the suit property, which was lying vacant in the year 2003, for the purpose of his (defendant no. 1) residence, as their mother Kamla Nijhawan, who was in possession of ground floor of the suit property, had allowed him to use the ground floor for the purpose of his clinic. He, in his good earnest, allowed defendant no. 1 to use the second floor of the suit property because of his relationship with him and that defendant no. 1 would vacate as and when, he required it. He proved the site plan of the second floor of property no. 13/27, West Patel Nagar, as Ex.PW4/1.
During his cross examination on this point, he was asked and he admitted that the second floor of the suit property was on rent in the year 2003 and volunteered, that only till early 2003. He denied that defendant no. 1 was in possession of the second floor since it was CS No. 613703/2016 Digitally No. 62 of 69 signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:33:16 +0530 vacated by the tenants in the year 2003 and volunteered, that defendant no. 1 was paying rent of a property in Defence Colony as told to him by defendant no. 2, and they approached him to permit defendant no. 1 to reside on the second floor to save rent. He permitted defendant no. 1 only as a licensee and he (defendant no. 1) agreed to vacate as and when asked by him. He did not know the particulars of the property at Defence Colony where defendant no. 1 was paying rent. He did not give anything in writing for giving the second floor to defendant no. 1 and volunteered, that he trusted him as they had cordial relations. He admitted that defendant no. 2 was not staying in the property no. 13/27 in 2004. He further deposed that he had not provided any financial help to his uncle Lajpat Rai Nijhawan or his widow and volunteered, that his father and thereafter he permitted his uncle to collect rent from first floor. He denied that defendant no. 1, his sister, his mother and Dina Nath Nijhawan were residing on the first floor of the suit property till the death of Dina Nath Nijhawan.
On the other hand, the claim of the defendants in the written statement is, that the second floor was let out by Lajpat Rai Nijhawan, who was receiving the rent. After those tenants vacated, vide tenancy agreement dated 07.09.2003, Sh. Dina Nath Nijhawan had let out the property to defendant no. 1. Defendant no. 1 had also deposited Rs.4,50,000/- in the name of Smt. Uma Nijhawan and defendant no. 1. The interest accrued on the same was to be utilized by Smt. Uma Nijhawan as rent. The rent agreement was duly signed by late Sh. Lajpat Rai Nijhawan and Smt. Uma Nijhawan as well as defendant no. 1 and Digitally CS No. 613703/2016 signed by PARVEEN PARVEEN SINGH No. 63 of 69 SINGH Date:
2024.09.11 14:33:23 +0530 his mother.
However, no evidence was led by the defendants to prove the letting out of this property to defendant no. 1 by Lajpat Rai Nijhawan. Even though the alleged rent agreement was filed on record. Defendants did not prove the said rent agreement or deposition of Rs.4.50 lacs in the name of Smt. Uma Nijhawan. It was further the claim of the defendants that the property had been willed by Sh. Lajpat Rai Nijhawan to defendant no. 1 but the said Will was not proved.
Thus on the one hand, defendants had claimed and failed to prove that in September 2003, the property was let out to defendant on. 1 by Sh. Lajpat Rai Nijhawan or that Sh. Lajpat Rai Nijhawan was the owner of this property. On the other hand, plaintiff, as while deciding the earlier issues, has been found to be the owner of second floor of the property no. 13/27, West Patel Nagar.
Therefore, it is highly probable that it is by the permission of the plaintiff that defendant no. 1 had occupied the second floor of this property especially when the defendants had failed to prove their contrary claim of property being let out by Sh. Lajpat Rai Nijhawan. This issue is accordingly decided in favour of the plaintiff.
ISSUE NO. 22. Whether the plaintiff is entitled to grant of decree of possession against defendants no. 1 & 2 in terms of prayer para (a) of the plaint? OPP.
109. The decision on earlier issues has established that the lease hold rights of the property were earlier transferred in the joint name of Digitally CS No. 613703/2016 signed by PARVEEN PARVEEN No. 64 of 69 SINGH SINGH Date:
2024.09.11 14:33:30 +0530 B.R Nijhawan (father of the parties) and the plaintiff on 22.05.1996. The said transfer had taken place on the basis of Will of late Dina Nath Nijhawan whereby the ground floor of the suit property was bequeathed to the father of the parties and the rest of the property was bequeathed to the plaintiff. Defendant no. 2 was bequeathed the share of his father i.e. the ground floor by his father by his Will, Ex.D-1. On the application of the defendant no. 2, moved on the basis of Ex.D-1, the lease hold rights of the property were jointly transferred in the name of defendant no. 2 and plaintiff. However, as the claim of defendant no. 2 to the lease hold rights was limited to the rights given to him by Will, Ex D-1, defendant no. 2 only had a right qua the ground floor of the property.
110. Defendant no. 1 has not been able to prove his right to possess the property by virtue of Will of Lajpat Rai Nijhawan, which he failed to prove. Even if the Will of Lajpat Rai Nijhawan had been proved, it would not have given him any ownership because late Lajpat Rai Nijhawan (as discussed earlier) had no ownership in the property. Defendant no. 1 has failed to prove his right to be in possession of second floor of the suit property. As it has been found that he was granted permission by plaintiff to stay on the second floor of the suit property, and the plaintiff is the owner/ lessee of this property; I find that the plaintiff is entitled to a decree of possession against the defendants no. 1 and 2 in respect of the second floor of the property bearing no. 13/27, West Patel Nagar, New Delhi. This issue is accordingly decided in favour of the plaintiff.
Digitally
signed by
PARVEEN
PARVEEN SINGH
CS No. 613703/2016 SINGH Date:
2024.09.11
No. 65 of 69 14:33:38
+0530
ISSUE NO. 3
3. Whether the plaintiff is entitled to grant of decree of permanent injunction in terms of prayer para (b) of the plaint? OPP.
111. Vide this prayer, the plaintiff has sought to restrain the defendants, their attorneys, legal heirs, servants etc. from selling, alienating, transferring, creating any third party interest or parting with the possession of the second floor of property no. 13/27, West Patel Nagar.
112. As decided in earlier issues, plaintiff has been found to be the owner/ lessee of the second floor of property no. 13/27, West Patel Nagar and defendant no. 1 has been found to be in unauthorized occupation of this property. Thus, I find that the plaintiff is entitled to the decree of permanent injunction. This issue is accordingly decided in favour of the plaintiff.
ISSUE NO. 44. Whether the plaintiff is entitled to award of mesne profits and damages in terms of prayer para (c) of the plaint, if so for what period and at what rate? OPP.
113. The onus to prove this issue was upon the plaintiff.
114. Plaintiff, while appearing as PW4, deposed that he is entitled to mesne profits/ damages as claimed in the suit.
115. As it has been found that the plaintiff had given the permission to defendant no. 1 to occupy the second floor of property no. 13/27, West Patel Nagar, it was for the plaintiff to prove when this permission was withdrawn.
Digitally
CS No. 613703/2016 signed by
PARVEEN
No. 66 of 69 PARVEEN SINGH
SINGH Date:
2024.09.11
14:34:20
+0530
116. Plaintiff, appearing as PW4, deposed that in the beginning of 2011, he thought of shifting to India and asked the defendants to make a suitable arrangement for themselves and vacate the second floor as he could not have asked Uma Nijhawan to vacate the first floor because, she had a right to occupy it during her lifetime. When the defendants did not do so, he approached his counsel for legal remedy.
117. The exact date for terminating the license and seeking vacation is not given, therefore, it has to be at least presumed that the license was terminated w.e.f the date of filing of this suit. This suit was filed on 07.12.2011. Therefore from 07.12.2011, defendant no. 1 had become an unauthorized occupant of this property and is liable to pay damages/ mesne profits from the said date till the date of handing over of vacant physical possession of the second floor of property no. 13/27, West Patel Nagar (more specifically shown in site plan Ex.PW4/1).
118. However, as the plaintiff has not proved the rate of damages/ mesne profits, an inquiry under Order XX Rule 12 CPC needs to be conducted for deciding the quantum of damages/ mesne profits.
119. This issue is accordingly decided in favour of the plaintiff.
ISSUE NO. 1212. Whether the suit filed by the plaintiff is not maintainable in terms of Section 34 of the Specific Relief Act, 1963? OPD 1 & 2
120. The onus to prove this issue was upon the defendants.
121. During the course of arguments, it was contended on behalf of the defendants that as the will dated 25.09.1989 was forged, the suit of the plaintiff, in view of judgment of Hon'ble Supreme court in CS No. 613703/2016 No. 67 of 69 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:34:29 +0530 Anathula Sudhakar (supra), was not maintainable.
122. It has been established that the plaintiff, alongwith his father, had become a joint lease holder of this property in the year 1996 and this fact had come to the knowledge of the defendant no. 2 in the year 2002. However, till 2011 i.e. till the filing of the present suit, no challenge was raised to the ownership of the plaintiff qua this property.
123. Furthermore, in the year 2001, defendant no. 2 himself applied for transfer of lease hold rights of ground floor in his favour (though he did not specifically say so, but he did so on the basis of the Will of his father who only bequeathed ground floor of the property to him) stating very clearly that plaintiff was a co-owner of the property. Even thereafter, till the filing of the suit, no challenge to the ownership of the plaintiff was raised.
124. That being the case, there was no cloud on the title of the plaintiff and thus, he was not required to seek any declaration of ownership. As such the judgment of Hon'ble Supreme Court in Anathula Sudhakar (supra) is not applicable to the facts of the present case. Issue no. 12 is accordingly decided against the defendants.
ISSUE NO. 1313. Whether the plaintiff has not properly valued the suit for the purpose of court fee and jurisdiction and has not paid the appropriate court fee thereon? OPD 1 & 2
125. The onus to prove this issue was upon the defendants. However, the defendants have not led any evidence to show how the suit of the plaintiff has not been properly valued for the purpose of court fee CS No. 613703/2016 Digitally signed by No. 68 of 69 PARVEEN PARVEEN SINGH SINGH Date:
2024.09.11 14:34:42 +0530 and jurisdiction, or according to them, what should be the valuation of the suit. Thus, in absence of any evidence, the valuation done by the plaintiff has to be taken to be correct. This issue is accordingly decided against the defendants.
RELIEF
126. In view of the findings given above, the suit of the plaintiff is decreed. Defendants are directed to hand over the vacant and peaceful possession of second floor of property no. 13/27, West Patel Nagar, New Delhi (more specifically shown in the site plan Ex.PW4/1) to the plaintiff.
127. Defendants, their attorneys, legal heirs, servants etc. are further restrained from selling, alienating, transferring, creating any third party interest or parting with the possession of the second floor of property no. 13/27, West Patel Nagar.
128. Defendant no. 1 is further liable to pay damages/ mesne profits from 07.12.2011 till the date of handing over vacant and peaceful possession of second floor of property no. 13/27, West Patel Nagar, New Delhi to the plaintiff. However, decree of quantum of mesne profits/ damages, shall be passed after an inquiry under Order XX Rule 12 CPC.
129. Costs of the suit are also awarded to the plaintiff. Decree sheet be prepared accordingly. Digitally signed by PARVEEN PARVEEN SINGH SINGH Announced in open court Date:
2024.09.11 14:34:51 +0530 today on 11.09.2024. (Parveen Singh) (This judgment contains 69 pages DJ-11, Central Distt., and each page bears my signatures.) Tis Hazari Court, Delhi.CS No. 613703/2016 No. 69 of 69