Delhi District Court
Rajan Khosla vs Smt. Simi Khosla on 24 April, 2023
IN THE COURT OF MR. SATYABRATA PANDA, ADJ-04,
PATIALA HOUSE COURTS, NEW DELHI
CS NO.58860 OF 2016
Date of insitution:19.12.2013
Arguments heard on: 23.02.2023
Date of judgment: 24.04.2023
Rajan Khosla
s/o Late Dr. (Col.) Iqbal Nath Khosla
r/o Flat no.1706-A, Sector-B
Pocket-1, Vasant Kunj
New Delhi 110070
..........Plaintiff
VS
1. Smt. Simi Khosla
w/o Late Deepak Khosla
2. Ms. Sheena Khosla
d/o Late Deepak Khosla
Both r/o Flat no.9138, Sector-C
Pocket-9, Vasant Kunj
New Delhi 110070
............Defendants
JUDGMENT
1. The present suit has been filed by the plaintiff seeking the relief of possession, damages and mandatory injunction.
2. The case of the plaintiff as pleaded in the plaint is as follows. It is stated in the plaint that the plaintiff's late father Dr. (Col.) Iqbal Nath Khosla, was the original allottee and owner of Flat No. 9138, 2 nd floor, sector C, pocket 9, Vasant Kunj, New Delhi 110070 (hereinafter CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.1 referred to as the "suit property"), which comprises of two bedrooms, one drawing-room, dining room, kitchen, two toilets, one balcony, and a scooter garage situated on the ground floor. The suit property was the self-acquired property of the plaintiff's father. The plaintiff's father took possession of the suit property in April 1989 as owner and, thereafter, he shifted in the suit property along with his wife Smt. Kamla Khosla and their two sons i.e. the plaintiff herein and Mr. Deepak Khosla, who is the deceased husband of the defendant no.1. The defendant no.2 is the daughter of Mr. Deepak Khosla and the defendant no.1. It is the case of the plaintiff that the plaintiff's late father allowed the plaintiff as well as his elder brother Mr. Deepak Khosla along with the defendants, being his wife and daughter, to live in the said flat as mere licensees having permissive use. Despite the fact that the plaintiff's late father provided the facility of residence to Mr. Deepak Khosla and to the defendants herein, they were disrespectful to Dr. (Col.) Iqbal Nath Khosla and Smt. Kamla Khosla and also grossly misbehaved with them. The plaintiff's late parents tried their level best to make them behave with dignity towards them but it had no effect. It is stated that the relationship between Mr. Deepak Khosla and the defendants on the one hand and the plaintiff's parents on the other was greatly strained. It is stated that the plaintiff's late father was even constrained to make several complaints to the local police from time to time against the misbehaviour of Mr. Deepak Khosla and the defendants. Mr. Deepak Khosla expired on 01/05/2007. It is further stated in the plaint that the plaintiff is an advocate in Delhi and had a small office in a part of the drawing room of the flat in the year 1989 wherein he kept some furniture, bookshelves etc. He had been using the office for carrying on his legal CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.2 profession. The plaintiff had been peacefully living with his parents till his marriage on 04/11/1996. The plaintiff was forced to leave the parental house upon his marriage due to constant turmoil and unpleasantness created in the house by the defendants, who had deliberately adopted such attitude in order to compel the plaintiff to leave the suit property. In these circumstances, the plaintiff was constrained to live with his relatives for some time and then took a flat on rent in village Masoodpur, New Delhi. The plaintiff thereafter shifted to his present address where he is living with his wife and two sons.
3. It is further stated in the plaint that the plaintiff's late father expired on 05/06/2009. He had executed a registered will dated 08/04/1992 bequeathing all his movable and immovable assets including the suit property in favour of his wife Smt. Kamla Khosla, and in case she predeceased him, then to the plaintiff. The plaintiff's late father also made it clear in his will that his elder son i.e. Mr. Deepak Khosla, or the defendants, would not be entitled to any share, right or interest in his movable and immovable properties. After the demise of the plaintiff's father, his entire properties, movable and immovable, including the suit property, were inherited by the plaintiff's mother Smt. Kamla Khosla by virtue of the will dated 08/04/1992.
4. It is further stated in the plaint that the plaintiff's late mother Smt. Kamla Khosla expired on 24/08/2013. Smt. Kamla Khosla had executed will dated 24/12/2009 whereby she bequeathed all her movable and immovable properties including the suit property in favour of the plaintiff, and the plaintiff was also appointed as executor of the said will. It was also made clear by the plaintiff's late mother in CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.3 her will that she had been constrained to disinherit the defendants due to their abusive and violent behaviour towards her and her late husband. It is stated that the plaintiff was the primary caretaker of his late parents and he had served and looked after his parents with full devotion to the best of his ability and did his best to safeguard and insulate them from the malicious actions of the defendants, in order to ensure comfort and dignity in their life. It is further stated in the plaint that even the mother of the plaintiff i.e. Smt. Kamla Khosla had made complaints to the police against the defendants due to the ill treatment and illegal actions of the defendants. Ultimately, Smt. Kamla Khosla died on 24/08/2013. It is stated that the defendants did not even care to visit Smt. Kamla Khosla during her hospitalisation for hip joint replacement surgery in January 2013, or during the period of July- August 2013 when she was again hospitalised, nor even subsequently when she was admitted in ICU on 12/08/2013 on account of post- operative complications, which ultimately caused her death on 24/08/2013. It is stated that after the demise of the plaintiff's mother, by virtue of the will dated 24/12/2009, the plaintiff has acquired absolute rights of ownership and possession in the suit property.
5. It is further stated in the plaint that the plaintiff always had one set of keys to the two locks on the main door, the keys to the locks of his office door (another set of keys was with the plaintiff's mother) and keys of his mother's bedroom (one set of keys was with the plaintiff's mother) and one set of keys of the letter box on the door of the scooter garage. The defendants never had any duplicate keys of the plaintiff's office in the suit property or of the bedroom of the plaintiff's mother. It is stated that on 03/09/2013 when the plaintiff went to the suit CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.4 property, he saw that the locking system on the main door had been changed. The plaintiff questioned the defendants who did not hesitate to own their illegal acts and even went to the extent of threatening that they shall also break open the locks on the door of the bedroom earlier occupied by the plaintiff's late mother. The plaintiff warned them not to take the law in their own hands, otherwise, the plaintiff would be constrained to approach the local police. However, the defendants appeared to be unruffled. It is stated that on 03/09/2013, the plaintiff approached the police for action against the defendants but no action was taken. It is stated that the non-action on the part of the police emboldened and encouraged the defendants to take the law in their own hands and they trespassed even to the bedroom with attached toilet of the plaintiff's late mother after having broken the two locks on the bedroom door. The plaintiff on 30/10/2013, made a complaint in writing to the local police but again no action was taken.
6. It is the plaintiff's case that in these circumstances, the plaintiff is entitled to decree for possession. The plaintiff has also claimed damages/user charges at the rate of Rs. 30,000/- per month on the basis of the prevailing market rent of the suit property in 2013-2014. The plaintiff has also sought damages for mental agony and harassment.
7. On the basis of the aforesaid pleadings, the plaintiff has sought the following reliefs in the suit:
"a) A decree for possession may kindly be passed in favour of the plaintiff and against the defendants in respect of Flat no.9138, second floor, Sector-C, Pocket-9, Vasant Kunj, New Delhi as shown in colour red in the site plan annexed with the plaint;
CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.5
b) a decree for recovery of damages @ Rs.30,000/- (Rupees thirty thousand only) per month for the period 25.08.2013 till the defendants vacate the suit property;
c) pass a decree for recovery of damages amounting to Rs.3,00,000/- (Rupees three lakhs only) for the damages caused to the plaintiff's reputation and mental agony and torture caused by the defendants from time to time;
d) pass a decree of mandatory injunction in favour of the plaintiff and against the defendants, directing the defendants to hand over all the articles and goods belonging to the plaintiff's late parents as well as to the plaintiff which are lying in the suit flat;
e) award the costs of the present proceedings in favour of the plaintiff and against the defendants;
f) a decree for such other or further relief/s including costs of this lis, as this Hon'ble Court may deem fit, expedient and/or appropriate."
8. The defendants have filed written statement in their defence. It is stated in the written statement that the present suit was not maintainable as the plaintiff had not sought probate of the will dated 24/12/2009. It is further stated that the plaintiff had concealed the execution and registration of the will dated 24/12/2009 and the said will was registered after the death of the testator in the office of the sub- registrar without giving notice to the defendants. It is further stated that the will dated 29/12/2009 was a forged and fabricated document. It is further stated that Smt. Kamla Khosla had executed her last and final will dated 13/02/2011 which was in the knowledge of the plaintiff but the plaintiff has filed the present suit just to harass the defendants and with a view to grab the share of the defendant no.2 in CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.6 the suit property. It is stated that as per the will dated 13/02/2011, Smt. Kamla Khosla had bequeathed the suit property in two equal shares in favour of the plaintiff and the defendant no.2. The allegations regarding the strain in relationship between the parents of the plaintiff and the defendants is denied. It is stated that it was the defendants who were living with the parents of the plaintiff and were taking care of them. With regard to the will dated 08/04/1992 of Dr. (Col.) I.N. Khosla it is stated that the defendants had seen the said will for the first time in the suit. It is stated that the defendants were always told that Dr. I.N. Khosla had bequeathed the flat in question to his wife and the defendants had never objected to the same. It is stated that the defendants had no personal knowledge of the execution of the will dated 08/04/1992 of Dr. I.N. Khosla. The defendants have denied the case of the plaintiff in general and have sought for dismissal of the suit.
9. The plaintiff has filed replication to the written statement in which the plaintiff has denied the averments made in the written statement and has reiterated the averments made in the plaint.
10. Vide order dated 15/10/2014, the following issues were framed in the suit:
"(i) Whether the plaintiff has acquired absolute rights of ownership and possession of property in question by virtue of Will dated 24.12.2009? OPP
(ii) Whether the plaintiff is entitled for the Decree of possession of the property in question against the defendants? OPP
(iii) Whether the plaintiff is entitled for damages, if so, at what rate and for what period? OPP CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.7
(iv) Whether the plaintiff is entitled for damages for causing mental agony and loss of reputation, if so, to what extent? OPP
(v) Whether the plaintiff is entitled for injunction prayed for?
OPP
(vi) Whether the suit is not maintainable in view of preliminary objection No.1 in the written statement? OPD
(vii) Whether the plaintiff's mother has executed Will dated 13.02.2011, if so, its effect? OPD
(viii) Whether the suit has not been properly valued for the purpose of Court Fee? OPD
(ix) Whether the plaintiff has no cause of action to file the present suit? OPD
(xi) Relief."
11. In support of his case, the plaintiff has led evidence, both oral as well as documentary. The plaintiff has examined himself as PW-1 and has tendered his affidavit in evidence dated 30/05/2014 Ex.PW-1/1 and additional affidavit in evidence dated 16/09/2014 Ex.PW-1/B in which he has deposed on the lines of the plaint. The plaintiff also tendered another affidavit in rebuttal evidence dated 07/02/2019 also exhibited as Ex.PW-1/1. The plaintiff (PW-1) has relied upon the following documents:
1) Complaint by plaintiff's father dated 03.03.2001 to PS-
Vasant Kunj as Ex.PW1/A
2) Complaint by plaintiff's father dated 08.08.2005 against defendants no.1 and 2 acknowledged by police authorities of PS- Vasanj Kunj as Ex.PW1/B. CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.8
3) Complaint by plaintiff's father dated 26.09.2005 as Ex.PW1/C.
4) Duly acknowledged copy of complaint by plaintiff's father to PS-Vasant Vihar dated 30.09.2005 as Ex.
PW1/D.
5) Complaint dated 27.11.2015 as Ex. PW1/E.
6) Complaint dated 11.05.2006 as Ex. PW1/F.
7) Complaint dated 15.09.2006 as Ex. PW1/G.
8) Complaint dated 02.03.2005 as Ex. PW1/H.
9) Hand written and signed statement dated 20.06.2005 of
defendant no.2 as Ex. PW1/IA.
10) Hand written statement dated 10.02.2007 of defendant no.1 and 2 as Ex.PW1/IB.
11) Death certificate of Mr. Deepak Khosla dated 03.07.2007 as Ex. PW1/J.
12) Death certificate of plaintiff's late father dated 16.06.2009 as Ex.PW1/K.
13) Will dated 8.04.1992 of plaintiff's father Dr.(col) Iqbal Nath Khosla as Ex.PW1/L.
14) Death certificate of late Smt. Kamla Khosla dated 19.09.2013 Ex.PW1/M.
15) Will dated 24.12.2009 of late Smt. Kamla Khosla dated 24.12.2009 as Ex.PW1/N
16) Photograph of damaged/broken door of law office on 03.07.2013 as Ex.PW1/O.
17) Complaint dated 03.07.2012 by plaintiff's mother through plaintiff as Ex.PW1/P.
18) Complaints by plaintiff's mother through plaintiff dated 09.07.2013 and 18.07.2013 and duly acknowledged by office of DCP (south) and by office of ACP (Vasant Vihar) as Ex.PW1/Q and Ex.PW1/R, respectively.
19) Site plan as Ex.PW1/S.
20) Complaint dated 03.09.2013 as Ex.PW1/T. CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.9
21) Complaint dated 30.10.2013 acknowledged by the SHO, PS-Vasant Kunj as Ex. PW1/U.
22) Office copy of security card issued to PW1 and his wife for safety of their children dated 05.09.2003 issued by school as Ex.PW1/VA and Ex.PW1/VB respectively.
23) School bus pass issued to plaintiff and his wife as Ex.PW1/W.
24) Letters dated 03.09.2003 and 02.09.2003 written by father of plaintiff to the MTNL as Ex.PW1/XA and Ex.PW1/XB, respectively.
25) Letter dated 30.05.2004 written by plaintiff's father to Touchtel Telecom and Internet Service as Ex.PW1/Y.
26) Attestation of signatures and photographs of plaintiff's mother by notary public on 22.12.2009 as Ex.PW1/Z.
27) Public notice published in Statesman newspaper dated 24.01.2014 Ex.PW1/ZA.
28) Prints out of profile page of Shri Ikrant Sharma, Advocate as Ex.PW1/Z-2 (colly).
29) Legal notice dated 10.08.15 as Ex. PW1/Z-3.
30) Postal receipts as Ex.PW1/Z-4 and Z-5.
31) Legal notice to Sh. Sanjeev Maini as Ex.PW1/Z-6
32) Postal receipts as Ex.PW1/Z-7 and Z-8.
33) Legal notice dated 28.01.2019 issued upon defendants as Mark X
34) Postal receipts as Mark Y and Z.
12. The plaintiff has examined PW-2 Mr. Suraj Parkash Aggarwal, who is the attesting witness to the will dated 08/04/1992 Ex.PW-1/L of Late Dr. (Col.) Iqbal Nath Khosla. He has tendered his affidavit in evidence Ex.PW-2/A and was subjected to cross-examination.
13. The plaintiff has also examined PW-3 Mr. Ajai Nirula, who is the attesting witness to the will dated 24/12/2009 Ex.PW-1/N of late Smt. CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.10 Kamla Khosla. He has tendered his affidavit in evidence Ex.PW-3/A and was subjected to cross-examination.
14. The plaintiff has summoned PW-4, Ct. Manish, a constable from PS Vasant Kunj, North, New Delhi to produce the records pertaining to the complaints made by the late father and mother of the plaintiff against the defendants. PW4 Ct. Manish produced the original complaints dated 03.07.2013, 09.07.2013, 03.09.2013 and 30.10.2013 exhibited as Ex.PW1/P, Ex.PW1/Q, Ex.PW1/T and Ex.PW1/U, respectively. PW4 further deposed that he had not brought the original complaints summoned for the period prior to 02.03.2005 and the original record upto 2011 was destroyed in view of Ex.PW4/1 being order no.8071-8154/HAR/SD dated 04.12.2014. PW4 also produced Ex.PW4/2 being daily diary entries pertaining to DD no.42B dated 08.08.2005, DD no.42B dated 26.09.2005, DD no.79B dated 30.09.2005, DD no.35B dated 11.5.2006, DD no.63B dated 15.09.2006. PW-4 also produced the investigation report Ex.PW4/DA.
15. The plaintiff has also summoned PW-5, Sh. Jatin, an officer from the State Bank of India, Vasant Kunj Branch, New Delhi to produce records pertaining to the savings account of late Smt. Kamla Khosla. As per the record brought by PW5, Smt. Kamla Khosla was holding Saving Account no.10502097882 with their branch. He also brought the record of Smt. Kamla Khosla's signatures in the bank's records which were exhibited as Ex. PW-5/1. There was nil cross-examination of PW-5 by the defendants despite opportunity.
16. The plaintiff has also summoned as PW-6, Mr. Tirath Singh, Notary Public, enrollment no.C-6374, in order to prove the signatures of late CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.11 Smt. Kamla Khosla on the document Ex.PW-1/Z. There was nil cross- examination of PW-6 by the defendants despite opportunity.
17. The defendants have in support of their case examined the defendant no.2 Ms. Sheena Khosla as DW-1 and she has tendered her affidavit in evidence Ex.DW-1/A1, in which she has deposed along the lines of the written statement. The defendant no.2 (DW-1) has relied upon the following documents:
1) Will dated 20/10/2011 Ex. DW1/A.
2) The original UTI Bond in the name of D-2 as Ex.DW1/B.
18. The defendants have also examined Mr. Sanjeev Maini as DW-2, who is the attesting witness to the will dated 20/11/2011 Ex. DW-1/A of Smt. Kamla Khosla as propounded by the defendants. DW-2 has tendered his affidavit in evidence Ex.DW-2/A.
19. It is pertinent to mention that although the defendants had also filed an affidavit in evidence of the defendant no.1 Mrs. Simi Khosla, however, the defendant no.1 never entered the witness box to tender her affidavit in evidence and face cross-examination. Hence, there is no testimony by the defendant no.1.
20. The learned counsel for the plaintiff has referred to the relevant pleadings and evidence in support of the case of the plaintiff. It is submitted that the plaintiff has been able to prove from the evidence on record that the relationship between the parents of the plaintiff and the defendants was strained. The learned counsel has referred to the various complaints filed by the father of the plaintiff i.e. Dr. I.N. Khosla with the local police against his elder son Mr. Deepak Khosla and the defendants. It is submitted that the plaintiff has also proved the execution of the will dated 08/04/1992 Ex.PW-1/L of Dr. I.N. Khosla.
CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.12 It is submitted that by this will the property was bequeathed to Smt. Kamla Khosla. It is submitted that in the said will Ex.PW-1/L, it was also provided that in case Smt. Kamla Khosla predeceased the testator then the property shall devolve upon the plaintiff and it was also made explicitly clear that in no circumstances shall Mr. Deepak Khosla or the defendants be entitled to the properties. It is submitted that upon the demise of Dr. I.N. Khosla, the suit property devolved upon his wife Smt. Kamla Khosla. It is submitted that it is proved from the record that the relationship between Smt. Kamla Khosla and the defendants was strained. The learned counsel has referred to the various complaints filed by Smt. Kamla Khosla against the defendants. It is further submitted that the strained relationship is proven even by the document filed by the defendants being complaint dated 03/07/2013 Ex.DW-1/DE which is a complaint to the police by the defendant no.1. It is further submitted that the plaintiff has proved the execution of the will dated 24/12/2009 by Smt. Kamla Khosla.
21. It is further submitted by the ld. counsel for the plaintiff that the will propounded by the defendants is a forged and fabricated document. It is submitted that in the written statement, the defendants have referred to a will dated 13/02/2011 and have stated that Smt. Kamla Khosla had executed will dated 13/02/2011 as her last and final will. It is submitted that however, there is no will dated 13/02/2011 which has been filed by the defendants. It is submitted that the defendants have rather filed an alleged will dated 20/10/2011 Ex.DW-1/A which is a forged and fabricated document. It is submitted that the signatures on the will dated 20/10/2011 Ex.DW-1/A are not the signatures of Smt. Kamla Khosla. It is submitted that Smt. Kamla Khosla signed in CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.13 English language as evident from the will dated 24/12/2009 Ex.PW- 1/N and the bank documents of Smt. Kamla Khosla Ex.PW-5/1, as well as the signatures of Smt. Kamla Khosla before the notary public in the documents Ex.PW-1/ZA.
22. It is further submitted by the ld. counsel for the plaintiff that the will dated 20/10/2011 Ex.DW-1/A is shrouded in suspicious circumstances. It is submitted that the plaintiff has proved the will dated 24/12/2009 Ex.PW-1/N. It is submitted that the plaintiff has also proved the strained relationship of the defendants with the parents of the plaintiff. It is submitted that right from the time when the father of the plaintiff was alive there were strained relationships between the parties. In this regard, the ld. counsel for the plaintiff has referred to the various complaints to police filed by Dr. I.N. Khosla. The ld. counsel has also referred to the complaints filed by Smt. Kamla Khosla as well as to the complaint filed by the defendant no.1 herself being complaint dated 03/07/2013 Ex.DW-1/DE. It is submitted that thus, for clear reasons, Dr. I.N. Khosla had in his will dated 08/04/1992 clearly disinherited the defendants and his son Mr. Deepak Khosla. It is submitted that even Smt. Kamla Khosla had in her will dated 24/12/2009 clearly disinherited the defendants. It is submitted that apart from the fact that the signatures on the alleged will dated 20/10/2011 were not of Smt. Kamla Khosla, even otherwise, the said will was shrouded in suspicious circumstances as the defendants have been unable to show why Smt. Kamla Khosla would change the manner of succession when she had already clearly disinherited the defendants in the will dated 24/12/2009.
CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.14
23. On the other hand, the learned counsel for the defendants has referred to the relevant pleadings and evidence in support of the defendants and has submitted that the suit ought to be dismissed. The learned counsel for the defendants has submitted that Dr. Iqbal Nath Kosla was the original owner of the suit property. It is submitted that the plaintiff had moved out of the suit property in 1996 after his marriage as the plaintiff had wished to have a nuclear family. It is submitted that the plaintiff since the beginning did not feel responsible to take care of his parents and more so subsequent to moving out of the suit property and he had disregarded the requirements of his parents. It is submitted that since the beginning, the defendants had been taking care of the daily needs of the parents of the plaintiff who were parents-in-laws of the defendant no.1. It is submitted that the defendant No.1 has been residing in the suit property since the very first day of her marriage alongwith her husband namely Late Sh. Deepak Khosla as well as the parent-in-laws. After the marriage of defendant No.1, the defendant no.1 was constrained to quit her job and started working with Sh. Deepak Khosla. Subsequently within 2-3 years due to heavy drinking by Sh. Deepak Khosla, the business started to suffer and defendant no.1 had to take care by herself.
24. It is submitted by the ld. counsel for the defendant that Smt. Kamla Khosla had executed her last and final will dated 20/10/2011 (Ex. DW- 1/A) bequeathing the suit property equally to the plaintiff and the defendant no. 2 and other movable properties to defendant no.2. It is submitted that instantly after the death of Smt. Kamla Khosla, in the month of September 2013 the plaintiff threatened the defendants with dire consequences if they did not vacate the suit property. It is CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.15 submitted that subsequent to the death of Smt. Kamla Khosla, the plaintiff instantly filed the present suit for possession without giving any intimation to the defendants about the will dated 24/12/2009 which was forged and fabricated and got the will dated 24/09/2009 registered on 14/03/2014 i.e. during the pendency of the present suit.
25. The ld. Counsel for the defendants has submitted that the will dated 08/04/2009 of Sh. Iqbal Nath Khosla Ex. PW1/L was forged and fabricated. It is submitted that the writing in the will was not aligned and certain content at point A, B and C of the will Ex.PW-1/L was typed upon portion where whitener fluid had been applied. It is submitted that this fact is admitted by the attesting witness to the will Sh. S.P Aggarwal PW-2. It is further submitted that it was admitted by PW-2 that no initials have been made besides the portion typed on the whitened portion. It is submitted that this creates a cloud of suspicion over the will Ex. PW-1/L. It is further submitted that both the attesting witnesses were not known to the testator Dr. Iqbal Nath Khosla since Sh. S.P Aggarwal PW-2 was merely a lawyer only known to the plaintiff and did not have any relationship with the testator and the other attesting witness Sh. Devender Sachdeva was also not known to the testator entirely. It is submitted that this creates suspicious circumstances. It is submitted that the plaintiff had failed to establish and/or prove the fact that either of the witnesses had any relationship with the testator. It is submitted that the onus was upon the plaintiff to remove the suspicious circumstances surrounding the will dated 08/04/1993 of Dr. I.N. Khosla and that the plaintiff had failed to remove the suspicious circumstances.
CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.16
26. The ld. Counsel for defendant has further submitted that the will of Smt. Kamla Khosla Ex.PW1/N dated 24.12.2009 is also surrounded by suspicious circumstances. It is submitted that as propounder of the will, the onus was on the plaintiff to show that the will was signed by the testatrix, that she was at the relevant time in sound disposing state of mind, that she understood the nature and effect of the deposition and put her signature testament out of her own free will, and that she had signed it in the presence of two witnesses who attested her presence and in the presence of each other. The ld. counsel for the defendants has submitted that there is no evidence to show that the contents of the will were read over and explained to the testatrix. The attesting witness Devender Sachdeva was not known to the testatrix. There is no explanation as to why the said witness was called and who had called him to attest the will was shrouded in mystery and there is no evidence with regard to this. The said witness was never examined in court. The ld. counsel for the defendants has submitted that the will was purported to have been signed at the house of plaintiff whereas the testatrix was an old woman and of ill health and had a house of her own, which again creates suspicious circumstances. The ld. counsel for the defendants has submitted that the second attesting witness i.e Ajay Narula PW-3 was unaware of the contents of the will and signed the same without reading the contents of the will which itself shows the suspicious circumstances. The ld. counsel for the defendants has submitted that PW-3 was unsuccessful to even describe the house in which Ex. PW1/N was claimed to have been signed by the testatrix. It is submitted that this raises suspicious circumstances as any prudent man makes note of his surroundings in the least. The ld. counsel for the defendants has submitted that the beneficiary under Ex. PW1/N is CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.17 also the executor and the will was registered four years after the death of testatrix, which also creates suspicious circumstances with respect to the will. The ld. counsel for the defendants has submitted that the plaintiff had concealed the execution as well as registration of the will dated 24.12.2009 and the plaintiff herein did not deem it fit to inform the legal heirs of the testatrix, which also shows suspicious circumstances surrounding the will.
27. The ld. counsel for the defendants has submitted that it is a well-
established principle of law that the burden of proof vis-a-viz the validity of the execution and the genuineness of the will is on the propounder. It is submitted that the propounder is also required to prove that the testatrix has signed the will and put the signature out of her own free will having a sound deposition of the mind and having understood the nature and effect thereof. It is submitted that the onus would be on the propounder of the will to remove the suspicion by leading sufficient and cogent evidence. It is submitted that the plaintiff has failed to discharge the onus of proving the will dated 24/12/2009 Ex.PW-1/N. The Ld. Counsel for defendants has relied upon the following judgments regarding the principles of proof of valid execution of a will: Adivekka & Ors. Vs. Hanamavva Kom Venkatesh, AIR 2007 SC 2025, Madhukar D. Shende v. Tarabai Shedage (2002) 1 SCR 132, and Sridevi v. Jayaraja Shetty AIR 2005 SC 780. The ld. counsel for the defendants has further submitted that it was for the propounder of the will to remove the suspicious circumstances, which the plaintiff had been unable to do in the present case. In this regard, the ld. counsel has relied upon Apoline D'souza Vs. John D'souza, AIR 2007 SC 2219. It is submitted that the testatrix having CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.18 disinherited the defendants who were also her natural legal heirs and who had been residing with the testatrix from the very beginning created suspicious circumstances and the plaintiff had been unable to remove the suspicion. It is submitted that the fact that one of the attesting witnesses was not known to the testatrix and the other attesting witness was not even in the knowledge of the contents of the will also raised suspicious circumstances. It is submitted that the statutory requirements of proving the will had to be complied with even if the will was a registered will. Reliance is placed upon Bharpur Singh & Ors. Vs. Shamsher Singh, AIR 2009 SC 1766.
28. It is further submitted that it was a settled principle of law that where the will was propounded by the chief beneficiary under it who had taken a leading part in its preparation and execution, then the evidence must remove the suspicious circumstances and clearly prove that the testator approved the will. Reliance is placed upon H. Venkatachal Iyengar Vs. B.N. Thimmajamma & Ors., AIR 1959 SC 443, Vellasawmy Servai v. Sivaraman Servai (1929) L.R. 57 I.A. 96.
29. It is submitted by the Ld. Counsel for defendants that Smt. Kamla Khosla had never herself lodged any complaints again the defendants. It is submitted that the complaints were in the handwriting of the wife of the plaintiff and the plaintiff had signed certain complaints on behalf of Smt. Kamla Khosla without any authorisation to do so. It is submitted that it is the plaintiff himself who had made the false and fictitious complaints against the defendants in the name of Smt. Kamla Khosla, only in order to create the false illusion that the defendants were being cruel to the testatrix. It is submitted that, on the contrary, the defendants were on very good terms with the testatrix Smt. Kamla CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.19 Khosla and it was the defendants who were taking care of her. It is submitted that this is why Smt. Kamla Khosla was residing with the defendants and not with the plaintiff. It is further submitted that the fact that no active legal action was taken by the plaintiff or Smt. Kamla Khosla corroborates this. It is submitted that the plaintiff is a practising advocate and he was well versed with the law and could have easily filed a senior citizen petition for eviction of the defendants before the District Magistrate. It is submitted that the fact that this legal remedy was never availed shows that the plaintiff has created a false and fictitious story against the defendants.
30. It is further submitted that Smt. Kamla Khosla never nominated the plaintiff in her bank accounts and hence it can be inferred that she never intended the plaintiff to inherit the entire suit property. It is further submitted that Smt. Kamla Khosla also financially assisted the defendant no.2 and had a joint account with her which shows that she was a concerned grandmother who loved her granddaughter and wanted her to avail the best education and comfortable life. It is further submitted that Smt. Kamla Khosla had never asked the defendants to vacate the suit property even after the death of her husband Dr. I.N. Khosla as the defendants were taking care of her daily requirements and therefore neither did she ask the defendants to vacate nor did she shift with the plaintiff as he was unwilling to fulfil his duties as a son.
31. The ld. counsel for the defendants has further submitted that the plaintiff never took care of Smt. Kamla Khosla even when she was terminally ill or required surgery. It was the defendants who were assisting Smt. Kamla Khosla round the clock and catering to her every CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.20 need. It is submitted that the plaintiff had constricted his mother to stay at her place on the second floor against the advice of the doctors. It was a matter of record that the plaintiff resided on the ground floor in the same area but he did not even offer his mother to stay with him as he was unwilling to take care of his ill and ageing mother.
32. The ld. counsel for the defendant has further submitted that the plaintiff had failed to even examine the advocate who is supposed to have drafted the will on the instructions of the testatrix. It is further submitted that the plaintiff has also not examined the sub-registrar before whom the will is said to have been presented for registration. It is submitted that there is no evidence that the will was ever read over to and explained to the testatrix before she executed the will. The ld. counsel has relied upon Joseph Antony Lazarus Vs. A.J. Francis, AIR 2006 SC 1895.
33. I have considered the submissions made by the learned counsel for both the parties and I have perused the record including the pleadings and evidence, both oral as well as documentary, as well as the written submissions filed by the parties.
34. My issue-wise findings are as under:
Issue (i) Whether the plaintiff has acquired absolute rights of ownership and possession of property in question by virtue of Will dated 24.12.2009? OPP Issue (ii) Whether the plaintiff is entitled for the Decree of possession of the property in question against the defendants? OPP Issue (v) Whether the plaintiff is entitled for injunction prayed for? OPP CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.21 Issue (vii) Whether the plaintiff's mother has executed Will dated 13.02.2011, if so, its effect? OPD Issue (ix) Whether the plaintiff has no cause of action to file the present suit? OPD
35. The aforesaid issues are taken up together for discussion.
36. It is the admitted case of both parties that the suit property was initially owned by late Dr. (Col.) I.N. Khosla and after his demise, the suit property devolved upon his wife i.e. late Smt. Kamla Khosla. It is the case of the plaintiff that Dr. I.N. Khosla had executed will dated 08/04/1992 Ex.PW-1/L, which was a registered document, bequeathing the suit property to his wife late Smt. Kamla Khosla. The defendants have stated in their written statement that they had seen the will dated 08/04/1992 for the first time in the suit. The defendants have further stated that they were always told that Dr. (Col.) I.N. Khosla had left the suit property to his wife i.e. Smt. Kamla Khosla and that they had never objected to the same. The defendants have further stated that they had no personal knowledge of the execution of the will dated 08/04/1992. The defendants have denied the will dated 08/04/1992 of Dr. (Col.) I.N. Khosla which has been relied upon by the plaintiff. Although both parties are in agreement that Dr. (Col.) I.N. Khosla had bequeathed the suit property to his wife Smt. Kamla Khosla, the will dated 08/04/1992 Ex.PW-1/L assumes relevance due to the contents of the said will.
37. The plaintiff has examined PW-2 Mr. Suraj Prakash Aggarwal, who is the scribe as well as the attesting witness to the will dated 08/04/1992 Ex.PW-1/L. PW-2 has tendered his affidavit in evidence Ex.PW-2/A and he was cross-examined by the defendants. PW-2 has deposed that CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.22 he was an attesting witness to the will dated 08/04/1992 Ex.PW-1/L. He has deposed that Dr. (Col.) I.N. Khosla had put his signatures in English on the will in his presence. He has deposed that at the time Dr. I.N. Khosla was having full knowledge and understanding of the contents of the will, which was also drafted by the PW-2 as per his instructions. He has deposed that Dr. (Col.) I.N. Khosla had read and understood the contents of the will and had admitted before him the correctness of the contents of the will and that it was his last will and testament. He has deposed that the will was signed by Dr. (Col.) I.N. Khosla in his presence and in the presence of another witness Mr. Devindar Sachdeva, who also signed in his presence as a witness. He has deposed that Dr. (Col.) I.N. Khosla and the two attesting witnesses signed the will in the presence of each other. He has further deposed that he had also accompanied Dr. (Col.) I.N. Khosla to the office of the Sub-Registrar, Asaf Ali Road for registration of the will. He has deposed that the will was presented by Dr. (Col.) I.N. Khosla in his presence to the sub-registrar and the will was registered in his presence as well as in the presence of the other attesting witness i.e. Sh. Devindar Sachdeva. PW-2 was cross-examined by the defendants. The testimony of PW-2 is unshaken in cross-examination. He has deposed in his cross-examination that he had prepared the will. He has deposed that the deceased had visited his office three times for preparation of the will Ex.PW-1/L. He has deposed that the will was prepared at his residence-cum-office. He has deposed that at the time of registration of the will Ex.PW-1/L, the deceased, himself and Mr. Devender Sachdeva were present. PW-2 has denied the suggestion that the will was not drafted by him at the instructions of the deceased. He has denied the suggestion that the will was not attested by him. He has CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.23 denied the suggestion that the deceased did not execute the will voluntarily and was under pressure from the plaintiff. He has further deposed that he did not know the plaintiff at the time when he had prepared the will of Dr. (Col.) I.N. Khosla.
38. The learned counsel for the defendants has submitted that certain content of the will Ex.PW-1/L at point A, B and C had been typed on portion where fluid had been applied. It is submitted that this was admitted by the witness PW-2 in his cross examination and PW-2 had also admitted that the whitened portion was not initialled by the testator. It is submitted that this creates a cloud of suspicion over the genuineness of the will as the possibility of tampering with the will cannot be ruled out. I do not find merit in this submission. PW-2 has deposed that the will was executed by the testator Dr. (Col.) I.N. Khosla in his presence and the will was also registered in his presence. He has deposed that Dr. I.N. Khosla had read and understood the contents of the will and had admitted before him the correctness of the contents of the will. His testimony regarding the execution and registration of the will remains unshaken. The defendants have put no question to the witness as to when the whitener fluid was put and the content printed upon. There is even no suggestion put to PW-2 by the defendants that the whitener fluid was put and content printed thereupon subsequent to the execution of the will or that the will was tampered with. Rather, the suggestion which was put to PW2 during cross-examination by the defendants was that Dr. I.N Khosla did not execute the will voluntarily and was under pressure from the plaintiff, which suggestion was denied by PW2. Having put no suggestion to the witness that the will was tampered with, the defendants cannot CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.24 now argue that the will was tampered with. Even otherwise, I find that at points A, B and C on the will Ex.PW-1/L, the whitener has been used only for what appears to correct simple typographical errors in three or four words and the printing on the whitened portion does not in manner contain anything substantive to create any suspicious circumstances.
39. The learned counsel for the defendants has also raised the objection that the plaintiff had failed to prove that the attesting witnesses to the will Ex.PW-1/L were not known to the testator which created suspicious circumstances which the plaintiff has been unable to dispel. Again, I find no substance in this objection. PW-2 was the scribe and attesting witness to the will Ex.PW-1/L. PW-2 has clearly proved the execution and registration of the will Ex.PW-1/L in his deposition. The defendants have not questioned PW-2 as to how PW-2 was known to the testator Dr. (Col.) I.N. Khosla. Thus, there was no opportunity given to PW-2 to explain how he was known to the testator. Once the defendants have not questioned PW-2 in his cross-examination regarding how he was known to the testator, the defendants cannot argue that the plaintiff had failed to show how PW-2 was known to the testator. Even otherwise, it has clearly come out in evidence that PW-2 was an advocate and he is the scribe and attesting witness to the will. He has deposed that the testator had come to his office three times for drafting of the will.
40. The defendants have admitted that the initial owner of the suit property was Dr. I.N. Khosla and that after his demise, his wife Smt. Kamla Khosla became the owner. The defendant no.2 has admitted in the course of her cross-examination on 03/02/2015 that Smt. Kamla CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.25 Khosla had become owner of the property as Dr. I.N. Khosla had executed a will in her favour. She has further deposed that she had not seen any other will executed by Dr. I.N. Khosla apart from the Ex.PW- 1/L. She has further deposed that she was denying the will as Dr. I.N. Khosla had not left anything in favour of her father, her mother and herself in the will. In so far as the defendant no.1 is concerned, she has not even entered the witness box to depose.
41. Thus, it is clear that it is the defendants' own case that Smt. Kamla Khosla had become owner by virtue of a will executed by Dr. I.N. Khosla in favour of Smt. Kamla Khosla. Although the defendants have denied the will dated 08/04/1992 Ex.PW-1/L, they have not come forward with any other will executed by Dr. I.N. Khosla in favour of Smt. Kamla Khosla. This also makes it unlikely that there was any other will apart from the will dated 08/04/1992 Ex.PW-1/L.
42. Overall, the testimony of PW-2 is believable and the defendants have been unable to shake his testimony. I would hold that the plaintiff has been able to prove the due execution of the will of Dr. (Col.) I.N. Khosla Ex.PW-1/L through the testimony of PW-2, who is the scribe as well as the attesting witness to the will. In the result, I would hold that the plaintiff has been able to prove the due execution of the will dated 08/04/1992 Ex.PW-1/L of Dr. (Col.) I.N. Khosla.
43. The contents of the will dated 08/04/1992 Ex.PW-1/L executed by Dr. (Col.) I.N. Khosla are extracted hereunder, in extenso:
"WILL THIS IS THE LAST WILL & TESTAMENT OF ME, Dr. Iqbal Nath Khosla, Retd. Col. Son of late Sh. Kashmiri Lal, aged 67 years, resident of Flat No. 9138, Sector-C, Pocket-9, Vasant Kunj, New Delhi 110030 made on this 8th day of April, 1992, CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.26 hereby revoking all other WILLS and CODICILS heretofore made by me. I am executing this last will of mine with my own free will and without any kind of undue influence, force, coercion or solicitation of any kind. I am in the best of my health and I am in a sound disposing state of mind.
I retired from the Army Medical Corps (A.M.C.) on 30.4.1980. At present I am working as a consultant radiologist at Holy Angels Hospital, Plot 'B', Community Center, Basant Lok, Vasant Vihar, New Delhi-110057.
Whereas I was allotted and am in possession of a Delhi Development Authority self financing scheme Flat namely Flat No. 9138, Sector-C, Pocket-9, Vasant Kunj, New Delhi-110030. The aforesaid flat is my self acquired property and the entire payment of which has already been made by me. I have got it well furnished and have got all fittings and fixtures etc. done with my own funds. I have my saving bank account, account in public provident fund scheme 1968 and some investments in Unit Trust of India, besides other moveable property.
And whereas I have the following members of my family:
1. Smt. Kamla Khosla My wife
2. Shri. Deepak Khosla My elder son, married
3. Shri. Rajan Khosla My younger son, married NOW THIS WILL WITNESSES AS UNDER
1. That I shall remain absolute owner of all my moveable and immovable properties upto the time of my death.
2. That Smt. Kamla Khosla, my wife shall become the absolute owner of all my immovable properties as well as my movable properties including saving bank account, account in public provident fund and units in unit trust of India which I won and possess and may be owning and/or possessed of at the time of my demise; after my death.
3. That my wife Smt. Kamla Khosla alone will become the owner of my flat no. 9138, Sector-C, Pocket-9, Vasant Kunj, New Delhi-110030 with all rights of leasehold and easements etc. of the said flat after my death.
CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.27
4. That in case my wife predeceases me, then my younger son Sh. Rajan Khosla, Advocate, alone will become the absolute owner of all my moveable properties including my saving bank account, account in public provident fund scheme and investments in Unit Trust of India, etc. and of my aforesaid flat no. 9138, Sector-C, Pocket-9, Vasant Kunj, New Delhi-110030 and of all other moveable and immoveable properties which I may be owning and/or possessed of at the time of my death;
after my demise.
5. I hereby specifically declare that my son Shri DEEPAK KHOSLA, his wife or his children or any one else claiming through him or otherwise, except as stated above, will neither have nor entitled to claim any share, title or interest in my moveable or immoveable properties including my savings, etc. in any manner whatsoever after my death.
6. I hereby appoint my son Sh. Rajan Khosla as the Executor of this Will of mine.
IN WITNESS WHEREOF I, Dr. Iqbal Nath Khosla Retired Colonel, the above named Testator, have put my signatures to this last WILL & TESTAMENT at Delhi on this 8 th day of April, 1992, in the presence of the following witnesses.
........."
(Emphasis supplied by me)
44. Dr. (Col.) I.N. Khosla through the will dated 08/04/1992 Ex.PW-1/L bequeathed his properties upon his wife i.e. Smt. Kamla Khosla. He had further mentioned that in case his wife predeceased him then the properties shall devolve upon his son Sh. Rajan Khosla i.e. the plaintiff herein. He also made the plaintiff herein as the executor of the will. It is also relevant to note that he specifically declared that his son Sh. Deepak Khosla and his wife and children, who are the defendants herein, or anyone claiming through him would not have any claim to CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.28 any share, title or interest in his properties. Thus, he had clearly expressed his intention that Sh. Deepak Khosla and the defendants herein would not succeed to his estate. This indicates that there was strain in relations between Dr. I.N. Khosla on the one hand and his elder son Mr. Deepak Khosla and the defendants on the other.
45. It would now be appropriate to consider the complaints made by Dr. (Col.) I.N. Khosla with the police, which have been heavily relied upon by the plaintiff. These complaints are the complaint dated 03/03/2001 Ex.PW-1/A, complaint dated 08/08/2005 Ex.PW-1/B, complaint dated 26/09/2005 Ex.PW-1/C, complaint dated 30/09/2005 Ex.PW-1/D, complaint dated 27/11/2005 Ex.PW-1/E, complaint dated 11/05/2006 Ex.PW-1/F, and complaint dated 15/09/2006 Ex.PW-1/G. The plaintiff has filed copies of all the aforesaid complaints, all of which bear the stamps in original of the police in acknowledgment of receipt of the complaints. The complaints are handwritten and are signed by Dr. I.N. Khosla. The plaintiff has deposed as PW-1 that the complaints had been made by his late father i.e. Dr. (Col.) I.N. Khosla against the defendants with the police. In some of the complaints, along with the acknowledgment stamps by the police are also mentioned the Police Daily Diary Entry numbers. In the Ex.PW-1/B, along with the stamp of the police is also mentioned DD No.42B dated 08/08/2005. In the Ex.PW-1/C, along with the stamp of the police is also mentioned DD No.40B dated 26/09/2005. In the Ex.PW-1/D, along with the stamp of the police is also mentioned 79B dated 30/09/2005. In the Ex.PW-1/F, along with the stamp of the police is also mentioned DD No.35B dated 11/05/2006. The plaintiff had summoned the records from the Police Station, Vasant Kunj. PW-4, CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.29 Constable Manish, No.1333 SD, PS Vasant Kunj, North, New Delhi appeared in response to the summons. PW-4 has deposed that the original record upto 2011 had been destroyed in view of order no.8071-8154/HAR/SD dated 04/12/2014 Ex.PW-4/1. PW-4 had also brought the relevant daily diary registers for the period up to 02/03/2005. PW-4 produced the record of DD No.42B dated 08/08/2005, DD No.40B dated 26/09/2005, DD No. 79B dated 30/09/2005, DD No.35B dated 11/05/2006 and DD No.63B dated 15/09/2006 which are exhibited as Ex.PW-4/2. A perusal of the Ex.PW-4/2 being the Daily Diary registers shows that it is mentioned that Sh. I.N. Khosla had made the respective complaints upon which the DD entries were made at the police station. As deposed by the PW- 4, the original complaints which were with the police authorities had been destroyed. The Ex.PW-1/A to Ex.PW-1/G bear the original acknowledgement stamps of the police. The complaints Ex.PW-1/B, Ex.PW-1/C, Ex.PW-1/D and Ex.PW-1/F also mention the DD numbers along with the police stamp. The Daily diary entries in Ex.PW-4/2 which has been produced by PW-4 show that Dr. (Col.) I.N. Khosla had made the complaints with the police. The DD numbers mentioned in the Ex.PW-4/2 are corresponding with the dates and DD numbers mentioned in the respective complaints. Thus, I would hold that the plaintiff has been able to prove that Dr. (Col.) I.N. Khosla had made the complaints Ex.PW-1/A to Ex.PW-1/G to the police.
46. It would be appropriate to extract the relevant portion of the complaints by Dr. (Col.) I.N. Khosla to the police against the defendants, as hereunder:
Complaint dated 03/03/2001 Ex.PW-1/A:
CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.30 "I am the allottee of Flat No.9138, Sector-C, Pocket-9, Vasant Kunj, New Delhi 110070, which I have purchased from D.D.A. from my income. I have been continuously residing in this flat with my wife Mrs. Kamla Khosla.
My elder son Mr. Deepak Khosla, his wife Mrs. Simi Khosla and their daughter are also residing in my flat at present. I wish to bring to your notice vide this complaint that my son Mr. Deepak Khosla and my daughter-in-law Mrs. Simi Khosla are forcibly trying to make unauthorized construction on the balcony which is adjoining the dining room of my flat.
Today, in the morning, Mr. Deepak Khosla and Mrs. Simi Khosla brought some workmen for making construction of a room on the balcony and forcibly tried to ensure the commencement of the construction work. My wife Mrs. Kamla Khosla with great difficulty and in the face of constant abuses and threats from my son and daughter-in-law, managed to prevent the workmen from starting the work.
When I reached home from Holy Angels Hospital, Basant Lok, Vasant Vihar, New Delhi-110057, where I am working as Consultant Radiologist, my son Mr. Deepak Khosla and my daughter-in-law Mrs. Simi Khosla abused and threatened me that they will forcibly carry out the construction of a room on the balcony of my flat.
I and my wife who are both senior citizens are being threatened by the aforesaid persons namely Mr. Deepak Khosla and his wife Mrs. Simi Khosla and we apprehend that we may be harmed physically and further more the aforesaid construction will be forcibly and illegally carried out in my flat either tomorrow or shortly thereafter.
Yours sincerely Sd/-
(Dr. Col. I.N. Khosla)"
Complaint dated 08/08/2005 Ex.PW-1/B:
CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.31 "Subject: Complaint on behalf of myself & wife against criminal acts of intimidation & physical violence by Mrs. Simi Khosla & her daughter Miss Sheena Khosla.
Sir, I and my wife Mrs. Kamla Khosla are respectable senior citizens aged 80 years and 72 years respectively. I am the original allottee of my flat No.9138, Sector-C, Pocket-9, Vasant Kunj, New Delhi-70.
My daughter-in-law Mrs. Simi Khosla and her daughter Miss Sheena Khosla have been routinely intimidating me and my wife and also have been frequently indulging in acts of violence against my wife.
Mrs. Simi Khosla has been regularly warning me of dire consequences in case I do not bow down to her demand of selling my aforesaid flat and give her Rs.Twenty lacs from the sale proceeds of the said flat.
They have both been threatening and harassing us since a very long period of time. I have called the Police on numerous occasions, whenever they have indulged in intimidation and violence in my flat, and have repeatedly requested the Police to investigate the complaints and to lodge FIR against them, as well as to remove them from my flat as our lives are in danger on account of their criminal actions. However I regret to state that our lives continue to be in danger on account of the inaction of the Police and also on account of the refusal of the police to lodge/record FIR whenever we called the police.
Yesterday night (7.8.05), at around 11.45 P.M. while we were sleeping, we were awakened on hearing loud abuses being shouted by my daughter-in-law Mrs. Simi Khosla and her daughter Miss Sheena Khosla. When we were getting up, my daughter-in-law Mrs. Simi Khosla pushed open the door of our bed room, abused us and attempted to physically assault my wife, but could not do so as my wife Kamla Khosla locked herself in the bathroom. Mrs. Simi Khosla tried to break open the bathroom door, but did not succeed. She also abused me and demanded that I should sell my flat and give her Rupees Twenty CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.32 lacs, failing which she warned me that she would harm the children of my younger son Shri Rajan Khosla as well as kill me and my wife.
Meanwhile her daughter Miss Sheena Khosla who was in the dining room, was shouting abuses at us and started breaking all the items that were displayed/ stored in the crockery shelves in the dining room. She also threw on the ground all the photos of my religious Gurus and my elder brother and his wife's photo. Then she went to the drawing room and smashed the glasses of the steel book rack in which the law books of my younger son are kept.
She then forcibly locked her father/ my elder son, Deepak Khosla in her bedroom and also locked the entrance door. She further continued shouting abuses at us.
In the meantime my wife Mrs. Kamla Khosla called up my younger son on the phone and told him what was happening and asked him to call the police. Thereafter the police came and ordered Mrs. Simi Khosla & Miss Sheena Khosla to unlock the main door. Then they entered the flat and enquired about my complaint call. Then they ordered for the opening of the bedroom door and spoke to my elder son.
I regret to state that the said policemen did not register an FIR against the criminal actions of Mrs. Simi Khosla and Miss Sheena Khosla.
I further regret to state that the said police men instead of doing their duty went on to advise me take up the matter in Civil Court, as they do not have any power to help me in any manner.
I am shocked at the repeated inaction of the Police which is causing further danger to our lives.
You are requested to initiate enquiry into my repeated complaints against the criminal actions of Mrs. Simi Khosla and Miss Sheena Khosla and to therefore lodge an FIR against them.
CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.33 You are further requested to ensure that they vacate my flat immediately to prevent further physical danger/harm to our lives.
Yours sincerely Sd/-
(Dr. Col. I.N. Khosla)"
Complaint dated 26/09/2005 Ex.PW-1/C:
"Subject: Complaint against by daughter-in-law Mrs. Simi Khosla & my grand daughter Miss Sheena Khosla.
Sir, This is in continuation of my earlier complaints, particularly my complaint dated 8.8.05. Today morning my daughter-in-law Mrs. Simi Khosla forcibly tried to take away my T. V. set and when she was questioned by my wife and my elder son namely Mrs. Kamla Khosla and Mr. Deepak Khosla, she became very abusive and violent against both of them. Then my grand daughter Miss Sheena Khosla also started abusing and pushing them around. My wife Mrs. Kamla Khosla was compelled to run out of the flat to save herself.
You are requested to investigate the matter and lodge FIR against both of them. Our lives are in danger and you are requested to evict them from my house.
Yours sincerely Sd/-
(Dr. Col. I.N. Khosla)"
Complaint dated 30/09/2005 Ex.PW-1/D:
"Subject: Complaint against my daughter-in-law Mrs. Simi Khosla on account of indulging in physical violence and very filthy language against my wife Mrs. Kamla Khosla and making highly defamatory allegations against me, my wife, my younger son & my younger daughter-in-law.
Sir, Today in the morning, my elder daughter-in-law Mrs. Simi Khosla started abusing my wife in highly filthy language. She threatened my wife that she would make her and my CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.34 younger daughter-in-law into widows. She also threatened to falsely defame my younger son Mr. Rajan Khosla, Advocate, in the Courts and among the legal fraternity.
She went out to the balcony of my flat & started shouting loudly to ensure that neighbours could hear her. She shouted loudly that the Khosla family has misappropriated her jewellery. She also shouted loudly that Khosla family has been extorting money from her parents and that her parents have beencompelled to leave their residence at Noida on account of their inability to pay more money.
She also shouted that Mr. Rajan Khosla and Mrs. Bulbul Khosla are inciting me against her. Then she hurt my wife on her chin.
I state that all the allegations are baseless and defamatory. She has caused harm to our reputation among out neighbors.
Incidentally, on 28th Sept. 2005, when she had been called to the police station in connection with my earlier complaints against her; she went to the flat of my son Mr. Rajan Khosla (B-1/1706-A, Vasant Kunj, New Delhi-70) and threatened his wife Mrs. Bulbul Khosla that she would kill both of them and also their two children, Master Gaurav Khosla and Master Sukrit Khosla. She also threatened to destroy the personal and professional reputation of Mr. Rajan Khosla by spreading malicious rumors.
You are requested to convert this complaint into an FIR and to take necessary action to evict her and her daughter from my flat as our lives are in danger.
Yours sincerely Sd/-
(Dr. Col. I.N. Khosla)"
Complaint dated 27/11/2005 Ex.PW-1/E CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.35 "Subject: complaint against my daughter-in-law Mrs. Simi Khosla for damaging/destroying my property Sir, I am a senior citizen aged 81 years old and residing in my own flat with my wife Mrs. Kamla Khosla. My elder son Mr. Deepak Khosla, his wife Mrs. Simi Khosla & his daughter Miss. Sheena Khosla (aged 18 years) are also residing in my flat C- 9/9138, Vasant Kunj, New Delhi-70.
I have been repeatedly filing criminal complaints against Mrs. Simi Khosla and Miss. Sheena Khosla regarding their repeated violence, threats and abuses against me and my wife, but till date the police station Vasant Kunj has not heeded my repeated requests for filing FIR against them and for physically removing them from my flat for safeguarding our lives and property. I have repeatedly asked Mrs. Simi Khosla and her daughter to leave my house on account of their violence, abuses and threates to us.
Today in the afternoon, Mrs. Simi Khosla had a verbal argument with her husband and thereafter went into the bath room which is attached to the dining room and smashed the washbasin and also damaged the bathroom door with a small wooden chowki. Then she immediately left the flat after threatening us that we would be beaten up by her.
My son Deepak Khosla rang up PCR (100) from my mobile phone. However, since no one came for quite some time, he again dialed 100. Then 2 personnel from police station Vasant Kunj came to my flat and I showed them the washbasin which had been broken by Mrs. Simi Khosla.
The policemen spoke to my daughter-in-law Mrs. Simi Khosla on her mobile phone, & asked her to come over but she said that she was in Gurgaon. Thereafter the police men told me that they were going to her business premises in Masoodpur village and said that they would return shortly. The broken washbasin is still lying in pieces in the bathroom. The Wooden chowki is also there.
CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.36 I apprehended that my complaint is likely to be brushed aside like my previous criminal complaints under the usual pretext of the matter being a civil dispute. Till date the police station Vasant Kunj has not been taking any action under the pretext of investigating the matter, while at the same time we have advised repeatedly (including today also) that the police cannot intervene in this matter as it is a claimed by them that it is not a criminal offence.
Please investigate the matter today itself and either register an FIR against Mrs. Simi Khosla (&Miss Sheena Khosla on the basis of my earlier complaints) for their violence, abuses & threats against us or inform me in writing that no criminal offence has been committed.
Yours sincerely Sd/-
(Dr. Col. I.N. Khosla)"
Complaint dated 11/05/2006 Ex.PW-1/F "Sir, I am the owner and resident of my flat C-9/9138, Vasant Kunj, New Delhi, where I am residing with my wife Mrs. Kamla Khosla.
My son Mr. Deepak Khosla, his wife Mrs. Simi Khosla and his daughter are continuing to forcibly reside in my flat inspite of repeated telling them to leave. They have been continuously misbehaving with us. All our previous complaints to the police have been ignored by the police and no action has been taken against them, nor have they been evicted.
On 10th May, 2016, they have forcibly brought all their catering equipment from their shop in Masoodpur at about 9 p.m. and have forcibly kept their catering equipment in my flat. They have started commercial activity of catering/cooking in my flat from today i.e. 11th May 2006.
They have told me that they will remove all the equipment/utensils etc. and shift to Dwarka on 15th May 2006.
CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.37 I state that I have not authorized any commercial activity in my flat.
In case, they refuse to remove their catering equipment by 15th May, 2006, you are requested to take appropriate action against them.
Yours sincerely Sd/-
(Dr. Col. I.N. Khosla)"
Complaint dated 15/09/2006 Ex.PW-1/G "Sir, My son Deepak Khosla and his wife Mrs. Simi Khosla are threatening me that they are going to shift their catering business from village Masoodpur to my residence, C-9/9138, Vasant Kunj, New Delhi.
I have already lodged several complaints in Police Station Vasant Kunj for seeking police help for forcibly evicting Deepak Khosla and his family from my flat on account their repeated and continuous violent and abusive behaviour towards me and my wife, Mrs. Kamla Khosla. Please note that I am 81 years old and my wife is 73 years old. You are requested to take urgent action to prevent their plan of shifting their business to my flat and to further evict them to safe guard our lives.
Yours sincerely Sd/-
(Dr. Col. I.N. Khosla)"
(Emphasis supplied by me)
47. As already noted, in his will dated 08/04/1992 Ex.PW-1/L, Dr. I.N. Khosla had specifically declared that Sh. Deepak Khosla and the defendants would not be entitled to succeed to his estate. The aforesaid complaints Ex.PW-1/A to Ex.PW-/G clearly show that the relations between Dr. I.N. Khosla and his wife Smt. Kamla Khosla on the one hand and their elder son and the defendants on the other hand were greatly strained. Dr. (Col.) I.N. Khosla has made grave allegations CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.38 against Sh. Deepak Khosla and the defendants in his complaints and has accused them of harassing and abusing him and his wife i.e. Smt. Kamla Khosla. He has repeatedly asked the police to take action against his elder son Mr. Deepak Khosla and the defendants herein and to have them evicted from the suit property. This shows that the relations were strained between them.
48. The defendant no.1 has not even stepped into the witness box to prove the defendant's case. The defendant no.1 has not come as a witness to explain the complaints filed by her father-in-law against her, her husband and her daughter i.e. the defendant no.2. The defendant no.1 would have been the best person to explain the allegations which had been levelled against her in the complaints filed by her father-in-law. An adverse inference ought to be drawn against the defendants for avoiding defendant no.1 from coming in the suit as a witness.
49. It would now be appropriate to refer to the complaints filed by Smt. Kamla Khosla to the police against the defendants, which are relied upon by the plaintiff, being Complaint dated 03/07/2013 Ex.PW-1/P, Complaint dated 09/07/2013 Ex.PW-1/Q, and Complaint dated 18/07/2013 Ex. PW-1/R. PW-4, Constable Manish from the PS Vasant Kunj, has produced the record of the aforesaid complaints filed with the police. The plaintiff has deposed as PW-1 that these complaints were filed by Smt. Kamla Khosla with the police through the plaintiff. I find the testimony of the plaintiff to be believable upon consideration of the entire facts and circumstances of the case. The complaint dated 03/07/2013 Ex.PW-1/P is signed by the plaintiff on behalf of his mother. The complaint dated 09/07/2013 Ex.PW-1/Q is also signed by CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.39 the plaintiff on this mother's behalf. The complaint dated 09/07/2013 Ex.PW-1/Q bears the signatures of Smt. Kamla Khosla.
50. It would be appropriate to extract the relevant portion of the aforesaid complaints by Smt. Kamla Khosla to the police against the defendants, as hereunder:
Complaint dated 3/7/2013 Ex.PW-1/P "From:
Mrs. Kamla Khosla Wife of Late Dr. (Col.) I.N. Khosla R/o C-9/9138, Vasant Kunj, New Delhi-70 Through Mr. Rajan Khosla Son of Late Dr. (col.) I.N. Khosla R/o B-1/1706-A, Vasant Kunj New Delhi-70 (M) 9868122962 Sub: Criminal complaint/FIR against Mrs. Simi Khosla wife of late Mr. Deepak Khosla and Ms. Seena Khosla D/o Late Mr. Deepak Khosla, both residents of C-9/9138, Vasant Kunj, New Delhi.
Sir, Today at about 12 noon, when I came back hom from the hospital, my daughter in law Mrs. Simi Khosla and my grand daughter Ms. Seena Khosla started abusing and threatening me and my son Mr. Rajan Khosla. They stated that they have full rights over the flat and demanded that the office/study of my son Mr. Rajan Khosla, Advocate should be removed from the flat.
They stated that they are going to get the flat renovated and want to remove the office/study portion from the drawing room. They also threatened my son Mr. Rajan Khosla that he should never enter this flat again and should remove all his books etc. from the flat. They threatened me that I should hand over the flat to them. When I protested that I am the owner of CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.40 this flat and that the flat is the self acquired property of my late husband Dr. I.N. Khosla and I have full rights over the said flat, they started abusing me and threatened that they will make life hell for me, my son Mr. Rajan Khosla, who is my caretaker, my daughter in law Mrs. Bulbul Khosla, my gandsons Gaurav Khosla and Sukrit Khosla.
They threatened physical violence against all of us.
When my son Mr. Rajan Khosla asked them to talk and behave properly, and also told them not to make such threats, they said "We will start right now, immediately rushed to the drawing room with a hammer and other heavy instruments. They started smashing the door, the lock and the bolt on the room of my son. My son and I asked them to stop damaging and destroying my property. They started getting more aggressive. My son therefore left the premises and went to the police station to lodge a complaint. Since the matter was not being promptly attended to by the police station officials and immediate intervention was not done, my son dialled 100 and asked for immediate action for protection of my life and property, as well as the threat to him.
The police responded quickly but these two ladies were still very aggressive and kept on threatening me, my son and his family.
The PCR van staff called the local police station (Vasant Kunj) to take up the matter. After some time, two policemen came to my house but by that time Simi Khosla and Sheena Khosla had gone away from the flat, alongwith the things they had broken.
My son Mr. Rajan Khosla gave the phone number of Simi Khosla to the police personnel who spoke to her on the mobile. She told them that they were in the police station. So my son, Mr. Ranan Khosla, went to the police station, where he found them making a false complaint against me and my son.
CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.41 I state that I and my son have acted with restraint, inspite of the threats, abuses and violence of Simi Khosla and Sheena Khosla.
I further state that they have been threatening me, my son, and earlier my late husband also. They have become violent on many previous occasions. They have often threatened that they will lodge a false rape case against my son Mr. Rajan Khosla.
Several complaints have been filed earlier by my late husband Dr. I.N. Khosla but no action has been taken by the local police station, under various pretexts.
You are requested to investigate the matter and take urgent action against them, as per law, and to safeguard my family and my property.
Yours Sincerely (Sd/- by Mr. Rajan Khosla) Mrs. Kamla Khosla through Mr. Rajan Khosla"
Complaint dated 9/7/2013 Ex.PW-1/Q "Sub: Urgent request for providing relief to me, my younger son and his family Sir, I have filed a criminal complaint dated 3.7.13 in the police station, Vasant Kunj (North) against the threats and violence of my daughter-in-law Mrs. Simi Khosla and my grand daughter Ms. Sheena Khosla. (Copy Enclosed) Similar complaints had been filed earlier by my late husband. No action was taken then nor has any action been taken now. Due to inaction of the police, these two ladies have been getting more aggressive and abusive and violent.
They have been constantly threatening to kill me, my younger son Mr. Rajan Khosla, his wife and his two children. They have been threatened to file false case of rape against my son.
CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.42 We have shown utmost restraint, but to no avail. I am a senior citizen, aged 79 years. I am living in fear and anxiety, as the lives of myself, my son and his family are under constant threat.
I request you to ensure prompt and proper investigation and action in this regard, for safeguarding me, my son and his family and my property.
Yours Sincerely (Sd/- by Mr. Rajan Khosla) Mrs. Kamla Khosla Through Mr. Rajan Khosla"
Complaint dated 18/7/2013 Ex.PW-1/R "Sub: Complaint against (1) Mrs. Simi Khosla W/o Late Mr. Deepak Khosla and (2) Ms. Sheena Khosla d/o Late Mr. Deepak Khosla, both residing at C-9/9138, Vasant Kunj, N. Delhi.
Sir, On 3.7.13, I had called No. 100 through my son Mr. Rajan Khosla and also filed a complaint/FIR against my daughter-in-law Mrs. simi Khosla and my grand daughter Ms. Sheena Khosla; through my son Mr. Rajan Khosla.
I state that the complaint is genuine and it was signed on my behalf after discussing with me.
These two women have broken the latch and lock and handles as well as the sunmica covering on the door of the office/study of my son Mr. Rajan Khosla, which is in a portion of the drawing room of my flat. The police has also taken photograph of the damaged door.
They have also abused me, threatened me, as well as my son Mr. Rajan Khosla and his family.
My late husband had filed numerous complaints in the police station, Vasant Kunj, against the abuses, threats and CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.43 violence of these two women. But no action was ever taken against them by the police.
Now, they are becoming more aggressive and violent and are issuing threats to my life and property. As well as to my son and his family. This is because of the inaction and connivance of the police personnel.
I am hereby requesting you to take appropriate action as per law and to take immediate steps for safeguarding my life and property.
Yours Sincerely Sd/-
(Kamla Khosla)"
51. PW-4, Constable Manish from the PS Vasant Kunj, has also produced the record of the investigation report dated 05/07/2013 Ex.PW-4/DA in respect of the complaint made by Smt. Kamla Khosla. It would be appropriate to extract the investigation report Ex.PW-4/DA, in extenso:
"Subject:- Complaint of Mrs. Kamla Khosla W/o Late Mr. I.N. khosla Rs/o C-9/9138, Vasant Kunj, ND Gist of complaint:- Allegations levelled by Smt. Kamla Khosla against her daughter in law Ms. Simi Khosla of abusing and threatening her son Mr. Rajan Khosla and threatening to acquire the flat of late husband of Smt. Kamla Khosla.
Kindly refer to office letter/diary no. as mention above the facts of the enquiry are as under:
Enquiry Conducted:- During the course of enquiry the alleged Simi Khosla was contacted who on enquiry stated that she has been residing in the said house since last 24 years and her husband died 07 years ago. She further stated that she is residing at the given address along with her mother in law (present complainant) and her daughter (age 26 years). She also alleged that her brother in law Rajan Khosla always abuse, threaten and threat her and her daughter and wants to CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.44 grab the said flat in connivance with Smt. Kamla Khosla who favors him. As per the statement obtained of Smt. Simi Khosla and enquiry conducted so far the matter relates to family dispute and does not attract any cognizable offence.
In this complaint no cognizable offence is made out. Kindly consider above explained facts and the complaint may please be filed.
Submitted please SI Sandeep Sharma PS Vasant Kunj (N) New Delhi"
(Emphasis supplied by me)
52. As per the aforesaid report of investigation Ex.PW-4/DA, the police officer has reported that during the course of enquiry, the defendant no.1 herein was contacted. Upon inquiry, the defendant no.1 informed to the police that the plaintiff was trying to grab the flat in connivance with the plaintiff's mother who was favouring the plaintiff. Thus, as per the own stand of the defendant no.1 before the police, the plaintiff's mother was supporting the plaintiff.
53. It would also be appropriate at this stage to refer to complaint dated 03/07/2013 Ex.DW-1/DE filed by the defendant no.1 herself with the police. This document was filed by the defendants themselves in the present suit. It would be appropriate to extract the complaint, in extenso:
"TO, S.H.O, VASANT KUNJ Subject: Domestic violence, physical abuse and mental harassment.
I, Simi Khosla, resident of C-9/9138, Vasant Kunj, have bin residing in this house since last 24 years. My husband financed CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.45 my father in law, to buy the. apartment (flat). I have bin continuously harassed physically and mentally since my husband, Late Deepak Khosla's death, by my brother-in-law Mr. Rajan Khosla, due to his greed for the property. He is already living in his own house in B-11Vasant Kunj since 15 years. I and my daughter who is now about to get married age 26 yrs have been going through physical and mental torture since last ten years by my brother-in-law, as my husband was ill for a couple of years before his death 7 years back. Rajan has always abused threatened for abducting me and my daughter and getting us killed if we do not vacate the house. We have bin pushed around, ill treated and physically tortured for many years and whenever we tried to seek help he threaten to kill my daughter, who is my only hope to live as I have lost my husband and parents. I have bin serving my mother in law in need and have bin treated like a ma.... in the house for many years now. But now when we arrived home from a trip to meet daughter's in-laws. I saw a big metal ...(illegible) the door which we had made for my brother in law to practise before he got married and shifted in his own house. On further confront about the lock and requesting to open it, as my daughter's in law were supposed to come and visit us, I requested to get the lock in the living room removed. On which I was pushed and threatened to not dare to touch the lock, or will be thrown out of the house alongwith my daughter to which my daughter reacted and asked for a reason for this outrageous behaviour with her mother. She was slapped and he twisted her arm and pushed her, she fell and injured her hand on the glass table. My mother-in law who has bin for the brother-in law laughed and said I will throw you both out, and being a senior citizen she further threatened us to not involve the cops as she is well aware that they will only take her side on us. He threatened to not only get us thrown out, also behind bars as he is a lawyer and tries to over power us on the basis of ...(illegible) police constable and pressurized him to ... (illegible) us. We did not open any lock but decided to get the house renovated for which he disagreed and physically abused us (me and my daughter). We are alone, helpless, powerless and scared. He is a legal, powerful, violent and psycho-maniac who has constantly bin attacking us to leave the house as he is interested the money my husband, financed my father in law who had the ownership in his name and on his death he made CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.46 Mrs. Kamla Khosla (mother in law) the nominee who has bin favouring her younger son all th..(illegible). Since my husband (elder son) died. We are helpless and need help as Rajan Khosla who has bin backed by my mother in law can hurt us and he is a threat to our life. I have given up as I don't have the strength to fight this battle anymore. This is my first and last letter to you. ...(illegible) if something happens to me or my daughter Miss. Sheena Khosla, my brother in law who threatens to kill us should be held responsible for. I am trying very hard to make my ends meet and survive. But they are making our life hell even ... ...(illegible) make a living out of doing a small catering business in Gurgaon. Now my daughter who is 25, has to get married and he is constantly threatening and physically torturing her too now. I am scared. He used to beat and mis... (illegible) with his own father too and that time also the mother in law supported him as he has some psychiatric issues which he has been treated for since he was in college. I am harassed, he passed cheap comments, and disrespects us in ways I am even ashamed to pen down to you, but now I have to point where I need justice.
I and my daughter, have nowhere to go, nor are we financially strong to fight this nightmare alone. I have never raised my hand on anyone nor has my daughter but if we do not get justice, we will hang ourselves and set an example for those who have bin in similar situations. We are in a deep depression and pain. In this country, we have very less hope to find justice but this is my last and final attempt for help.
Please take into consideration only on the basis of your post and above all humanity.
(Sd/-) SIMI KHOSLA (987171****)"
(Emphasis supplied by me)
54. In the aforesaid complaint dated 03/07/2013 Ex.DW-1/DE, the defendant no.1 has clearly admitted that her mother-in-law i.e. Smt. Kamla Khosla who was in favour of the plaintiff told the defendants that she would throw the defendants out of the suit property. In CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.47 Ex.DW-1/DE, the defendants have also clearly admitted that Smt. Kamla Khosla had been favouring her younger son Mr. Rajan Khosla who is the plaintiff herein. It is also admitted in the complaint Ex.DW- 1/DE that Smt. Kamla Khosla was backing the plaintiff against the defendants.
55. The defendant no.1 never stepped into the witness box to explain the complaint Ex.DW-1/DE which was made by her to the police or the investigation report Ex.PW-4/DA made by the police. Adverse inference would be drawn against the defendants for failing to bring defendant no.1 as witness. The defendant no.2 has admitted in her cross-examination recorded on 30/05/2015 that the Ex.DW-1/DE was in the handwriting of her mother i.e. the defendant no.1. Ex.DW-1/DE had been filed in the suit by the defendants themselves.
56. The learned counsel for the defendants has submitted that the fact that the complaints Ex.PW-1/P, Ex.PW-1/Q and Ex.PW-1/R were not in the handwriting of Smt. Kamla Khosla and were actually being filed by the plaintiff only would go to show that it was not Smt. Kamla Khosla who was making the complaints to the police against the defendants, but rather it was the plaintiff who was actually making the complaints in the garb of using his mother's name. I do not agree with this submission of the learned counsel for the defendants. The complaints Ex.PW-1/P and Ex.PW-1/Q were signed by the plaintiff on behalf of his mother. The complaint Ex.PW-1/R was signed by the Smt. Kamla Khosla herself. She has stated in Ex.PW-1/R that the previous complaints were made on her behalf. Further, it has clearly come out from the evidence and the defendant's own admission that Smt. Kamla Khosla was backing and supporting the plaintiff against the CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.48 defendants. The defendant no.1 herself had stated in her complaint Ex.DW-1/DE that Smt. Kamla Khosla wanted to throw out the defendants from the suit property. The admissions of the defendant no.1 in the complaint dated 03/07/2013 Ex.DW-1/DE clearly show that the relations were not good between Smt. Kamla Khosla on the one hand and the defendants on the other. Smt. Kamla Khosla was clearly supporting the plaintiff against the defendants even as per the case of the defendants in the complaint dated 03/07/2013 Ex.DW- 1/DE. This clearly corroborates that the complaints Ex.PW-1/P, Ex.PW-1/Q and Ex.PW-1/R were made by the plaintiff at the behest of Smt. Kamla Khosla only. Further, from the investigation report Ex.PW-4/DA it has also come out that the defendant no.1 had stated to the police that Smt. Kamla Khosla favoured her son Sh. Rajan Khosla against the defendants.
57. As already mentioned, the defendant no.1 has not stepped into the witness box to prove the defendant's case. The defendant no.1 has not come as a witness to explain the complaints filed by her mother-in-law against her and her daughter. The defendant no.1 has also not come forward as a witness to explain the police investigation report Ex.PW- 4/DA wherein it is stated that upon being contacted the defendant no.1 had stated to the police that Smt. Kamla Khosla favoured her son Sh. Rajan Khosla against the defendants. The defendant no.1 has also not come forward to explain her complaint to the police Ex.DW-1/DE in which she has admitted that her mother-in-law was in favour of the plaintiff and had told the defendants that she would throw the defendants out of the suit property. An adverse inference would be CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.49 drawn against the defendants for failing to bring the defendant no.1 as a witness.
58. Now, coming to the Will dated 24/12/2009 Ex.PW-1/N of Smt. Kamla Khosla which is relied upon by the plaintiff. In order to prove this will, the plaintiff has examined the attesting witness to the will being PW-3 Mr. Ajai Nirula. PW-3 has filed his affidavit in evidence Ex.PW-3/A. PW-3 has deposed that Smt. Kamla Khosla had asked him to be one of the attesting witnesses. He has deposed that he is son of the elder sister of late Smt. Kamla Khosla. He has deposed that he was witness to the execution of the will dated 24/12/2009 Ex.PW-1/N and that Smt. Kamla Khosla had put her signatures in English on the will in his presence. He has further deposed that at the time Smt. Kamla Khosla was having full knowledge and understanding of the contents of the will and had read and understood the contents of the will and had admitted before PW-3 the correctness of the contents of the will. He has further deposed that the will was executed in his presence as well as in the presence of another witness Mr. Devinder Sachdeva and that the testator and the witnesses signed the will in presence of each other. PW-3 was cross-examined by the defendant and I find that his testimony has remained unshaken in cross-examination. In his cross- examination he has deposed that he had seen the will at the time of attesting the same. He has deposed that Smt. Kamla Khosla was his 'Mausi' and he was having good relations with her. He had attended the funeral of Mr. Deepak Khosla and also of Dr. I.N. Khosla. He has also deposed that Smt. Kamla Khosla had called him to attest the will that she wanted to execute. He has further deposed that on the phone she also stated to him that she was having strained relationship with CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.50 the defendants. He has deposed that the will Ex.PW-1/N was executed at the house of the plaintiff. He has deposed that another attesting witness Mr. Devender Sachdeva, himself and Smt. Kamla Khosla were present when the will was signed. The plaintiff was present in his office/reception area of the house. The will was executed in the drawing room area of the house of the plaintiff. Smt. Kamla Khosla had signed the will first of all, thereafter Mr. Sachdeva signed the will and then PW-3 signed the will. He has denied the suggestion that Smt. Kamla Khosla had not executed the will Ex.PW-1/N. he has denied the suggestion that he or Mr. Devender Sachdeva had not signed the will in the presence of the deceased. He has denied the suggestion that the will Ex.PW-1/N was prepared after the death of the deceased.
59. The ld. counsel for the defendants has argued that the will Ex.PW-1/N is claimed to have been signed in the house of the plaintiff whereas the testatrix was having her own house and she was an old woman of ill health. It is submitted that there was no occasion for the testatrix to go to the house of the plaintiff to execute any will when she could execute the same in her own house. It is submitted that as such this was a suspicious circumstance. I do not find any substance in this submission. It has clearly come out that there were strained relations between the defendants and Smt. Kamla Khosla. The defendant no.1 has herself admitted in her complaint Ex.DW-1/DE to the police that Smt. Kamla Khosla was supporting the plaintiff against the defendants. In such circumstances, it is quite likely that Smt. Kamla Khosla would have thought it fit to execute the will at the plaintiff's house rather than at her own house, as she would not have wanted the CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.51 defendants to know what she was doing to save herself from any harassment from the defendants.
60. The ld. counsel for the defendant has also submitted that PW-3 Ajay Nirula who was the attesting witness to the will was unaware of the contents of the will and had admitted to signing the will without having read the contents of the will. It is submitted that as such the requisites for valid execution of the will have not been complied with and these are suspicious circumstances. There is no merit in this submission. I do not find that PW-3 has stated that he was unaware of the contents of the will or had signed without reading the contents of the will. What he states is that Smt. Kamla Khosla had not disclosed the contents of the will before signing the same. The line of testimony of PW-3 was that prior to signing the will, Smt. Kamla Khosla had not disclosed the contents of the will. That is not the same thing as the PW-3 being unaware at the contents of the will at all. PW-3 has deposed that Smt. Kamla Khosla had signed the will and thereafter the attesting witnesses signed the will. PW-3 has deposed that he had seen the will at the time of attesting of the will when Smt. Kamla Khosla had signed the same. The natural inference is that PW-3 became aware of the contents of the will after signing by Smt. Kamla Khosla. There is even no suggestion put to the witness that he was never aware of the contents of the will.
61. The ld. counsel for the defendants has also submitted that there was no evidence to show that the testatrix understood the nature and effect of the disposition under the will. Again, I do not find any substance in this submission. PW-3 who is the attesting witness to the will has deposed in his examination in chief by way of affidavit that at the time CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.52 of execution of the will Smt. Kamla Khosla was having full knowledge and understanding of the contents of the will. He has deposed that Smt. Kamla Khosla had read and understood the contents of the will and admitted before him the correctness of the contents of the will. From the cross-examination of PW-3, I find that there has been no line of questioning by the defendants regarding whether the testatrix had understood the contents of the will. There is even no suggestion made to PW-3 that the testatrix had not understood the contents of the will or had not admitted the contents of the will to PW-
3. Having not questioned PW-3 regarding the knowledge and understanding of the testatrix of the contents of the will and having not even put suggestions to PW-3 that the testatrix did not read or understand the will or that she did not admit to the contents of the will, the defendants cannot now argue that the plaintiff had failed to prove that the testatrix had understood the contents of the will. PW-3 has already deposed in his examination in chief by way of affidavit that at the time of execution of the will Smt. Kamla Khosla was having full knowledge and understanding of the contents of the will, and that Smt. Kamla Khosla had read and understood the contents of the will and admitted before him the correctness of the contents of the will. The defendants have not challenged this testimony of PW-3 in his cross- examination.
62. The argument of the ld. counsel for the defendants that there are also suspicious circumstances since PW-3 had failed to give the details of the place where the will Ex.PW-1/N was executed is also without any merit. PW-3 has deposed that the will Ex.PW-1/N was executed at the house of the plaintiff. He has deposed that he does not know the CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.53 residential address of the plaintiff, but he knew the location. He has stated that he did not know the number of rooms in the house of the plaintiff. He has stated that he could not say if the house of the plaintiff consisted of one drawing room and two bed rooms. He has deposed that the will was executed in the drawing room of the house. He has deposed that when the will was signed the plaintiff was in the office/reception area of the house. Merely because PW-3 had stated that he did not know the number of rooms in the house of the plaintiff, that would not be a ground of suspicious circumstance. PW-3 has deposed that the will was deposed in the drawing room of the house. I do not find any line of questioning in the cross-examination in which PW-3 has been questioned about the details of the drawing room of the house. When PW-3 has deposed that the will was executed in the drawing room of the house, then merely because PW-3 was not aware of the number of rooms in the house, that would be of no consequence.
63. The ld. counsel for the defendants has also argued that Smt. Kamla Khosla had financially assisted the defendant no.2 and had opened UTI bonds in the name of the defendant no.2 as she was a concerned grandmother and loved her granddaughter. It is submitted that in these circumstances it was highly improbable that Smt. Kamla Khosla would disinherit the defendants. I have also considered this submission. It appears from the record that the grandparents of the defendant no.2 had purchased UTI bonds for the benefit of the defendant no.2 during her minority and an account was opened for deposit of the maturity amount of UTI bonds. The account was closed after withdrawal of the maturity amount by the defendant no.2. It may have been that the grandparents would have wanted to give some CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.54 financial assistance to their granddaughter when she was a minor. However, this by itself is not good enough to dispel the otherwise overwhelming evidence regarding the strain in relations with the defendants.
64. Another argument raised by the ld. counsel for the defendants was that the Dr. I.N. Khosla and Smt. Kamla Khosla never took any steps in the civil courts to evict the defendants from the suit property and this showed that relations were not strained between the parties. Again, I do not find any merit in this submission. In their complaints to the police, both Dr. I.N. Khosla and Smt. Kamla Khosla have requested for action against the defendants and for evicting the defendants from the suit property. Merely because no civil action for eviction was taken would not dispel the otherwise overwhelming evidence which has come on the record regarding the strain in the relations. In fact, the defendant no.1 had in her own complaint to the police Ex.DW-1/DE stated that Smt. Kamla Khosla was favouring the plaintiff against the defendants and had threatened to throw the defendants out of the suit property.
65. The ld. counsel for the defendants has also argued that the fact that the plaintiff had concealed the fact of execution of the will Ex.PW-1/N was a suspicious circumstance. Again, I do not find any merit in this argument. There was no duty under law upon the plaintiff to disclose the will Ex.PW-1/N to the defendants. Although the defendants were living together with Smt. Kamla Khosla, however, it has clearly come on the record that the relations were strained. It is quite probable that Smt. Kamla Khosla did not want to disclose the will to the defendants as this would have led to harassment by the defendants.
CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.55
66. The fact that the plaintiff got the will registered after the demise of Smt. Kamla Khosla and during the pendency of the present suit also does not create any suspicious circumstances. There is no prohibition in law on registration of a will after the demise of the testator. The registration of a will which may have been registered during the lifetime of the testator may add to the strength of the case of the propounder of the will, however, merely because the will is registered after the death of the testator does not by itself weaken the case of the propounder the will, if otherwise the propounder is able to discharge the onus to prove the execution of the will. In the present case, I would hold that the plaintiff has discharged that onus.
67. The ld. counsel for defendants has also submitted that the failure of the plaintiff to examine the scribe of the will of Smt. Kamla Khosla Ex.PW1/N would be fatal to the case of the plaintiff. I have also considered this submission. The plaintiff as PW-1 has deposed that his mother had got the will prepared with the assistance of a friend of hers who had arranged for it to be drafted by a lawyer. He has further deposed that he could not recall the name of the friend but she was resident of Vasant Kunj. He has further deposed that his mother did not tell him the name of advocate to whom she had gone for drafting of the will. In as much as I find that in the present case PW3 Sh. Ajay Nirula as the attesting witness of Ex.PW1/N is a reliable witness and has proved the valid execution of the will and the circumstances in which the defendants have been disinherited in Ex. PW1/N have also been clearly proved by the plaintiff in evidence, I would hold that non- examination of the scribe of the will Ex.PW1/N would not be fatal to the case of the plaintiff. It has clearly come out in the evidence that the CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.56 relationship between deceased Smt. Kamla Khosla and the defendants was strained. In fact, the defendant no.1 had herself admitted in her complaint Ex.DW1/DE that Smt. Kamla Khosla had threatened that she would remove the defendants from the house and was favouring the plaintiff against the defendants. The will of Smt. Kamla Khosla Ex.PW-1/N is on similar lines as the will of her husband Ex.PW-1/L in disinheriting the defendants. In the facts of the present case and on the basis of the evidence on record otherwise proving the valid execution of the will and explaining the circumstances of disinheriting the defendants, I would hold that the non-examination of the scribe of will Ex.PW-1/N would not be fatal to the case of the plaintiff.
68. So far as the argument of the ld. counsel for the defendants regarding non-examination of Sub-Registrar in respect of registration is concerned, again I do not find any substance in this argument. The plaintiff has otherwise been able to prove the valid execution of the will Ex.PW-1/N and has clearly explained the circumstances in which the defendants were disinherited. It is the admitted position that the will Ex.PW1/N was registered only after the demise of Smt. Kamla Khosla and during the pendency of the suit. As such, non-examination of the Sub-Registrar with respect to the registration of the will Ex.PW1/N does not in any manner help the case of the defendants.
69. The ld. counsel for the defendant has relied upon various case-laws in the course of her arguments on the principles of the proof of valid execution of wills. These judgments are: Adivekka & Ors. Vs. Hanamavva Kom Venkatesh, AIR 2007 SC 2025, Madhukar D. Shende v. Tarabai Shedage (2002) 1 SCR 132, and Sridevi v. Jayaraja Shetty AIR 2005 SC 780, Apoline D'souza Vs. John D'souza, AIR 2007 CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.57 SC 2219, Bharpur Singh & Ors. Vs. Shamsher Singh, ARI 2009 SC 1766, H. Venkatachal Iyengar Vs. B.N. Thimmajamma & Ors., AIR 1959 SC 443, and Vellasawmy Servai v. Sivaraman Servai (1929) L.R. 57 I.A. 96.
70. In H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426 : AIR 1959 SC 443, the Hon'ble Supreme Court held as under:
"18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.58 attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.59
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.60 conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word "conscience" in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson [(1946) 50 CWN 895] "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect."
(Emphasis supplied by me)
71. In so far as the principles of law with respect to the proof of valid execution of will as laid down in the judgments relied upon by the ld. counsel for the defendant are concerned, there is no doubt about the CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.61 same. The general principles are that a propounder of the will has to prove the due and valid execution of the will and if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. In fact, even the ld. counsel for the plaintiff has also relied upon the principles of law declared in the same judgments relied upon by the defendants in support of his case. However, the case-laws relied upon by the ld. counsel for the defendants wherein it was held that the propounder of the will had been unable to dispel the suspicious circumstances were on their own facts. As held by the Hon'ble Supreme Court in H. Venkatachala Iyengar (supra), the application of the aforesaid two general and broad principles broad principles for proving the will shall depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. In the facts of the present case and the evidence led, I would hold that the plaintiff has been able to satisfactorily discharge the onus of proving the will. The suspicious circumstances which are alleged by the defendants have also been clearly dispelled. It has clearly come out in the evidence that there was constant strain in relations between Dr. I.N. Khosla and Smt. Kamla Khosla on the one hand and the defendants on the other. As such, there was nothing unnatural in the defendants being disinherited.
72. From the chain of circumstances which can be culled out from evidence on record, it has clearly come out that the relations between Dr. (Col.) I.N. Khosla and his wife Smt. Kamla Khosla on the one hand and Sh. Deepak Khosla and the defendants on the other hand were greatly strained. Dr. (Col.) I.N. Khosla had specifically excluded CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.62 Sh. Deepak Khosla and the defendants in his will Ex.PW-1/L. He had bequeathed the properties to his wife Smt. Kamla Khosla and also provided that in case she predeceased him, then the properties shall devolve upon the plaintiff. There are numerous complaints from Dr. (Col.) I.N. Khosla to the police being Ex.PW-1/A to Ex.PW-1/G during the period from 2001 to 2006 in which he has made allegations that Sh. Deepak Khosla and the defendants were abusing and harassing him and his wife Smt. Kamla Khosla. He has repeatedly requested the police in his complaints to take action against the defendants and to evict them from the property. Normally, no old parents would file police complaints against their own son, daughter- in-law and granddaughter unless the relations have really deteriorated between them and the old parents genuinely feel threatened. After the demise of Dr. (Col.) I.N. Khosla, there are again complaints made by Smt. Kamla Khosla to the police against the defendants herein being Ex.PW-1/P to Ex.PW-1/R in the year 2013. Again, this shows complete deterioration of relations between Smt. Kamla Khosla and defendants. Even the defendants have admitted in their own complaint to the police dated 03/07/2013 Ex.DW-1/DE that Smt. Kamla Khosla was siding with the plaintiff and had threatened to remove them from the property. From the police investigation report Ex.PW-4/DA also it has come out that in was the defendants' own case that Smt. Kamla Khosla favoured her son Sh. Rajan Khosla against the defendants.
73. In the background of the aforesaid facts and circumstances, there is nothing unnatural in Smt. Kamla Khosla completely ousting the defendants from any claim to her properties through her Will dated 24/12/2009 Ex.PW-1/N. The ld. counsel for the defendants has argued CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.63 that the defendants having been disinherited in the Ex.PW-1/N was a suspicious circumstance since along with the plaintiff, they were also the natural legal heirs. I do not find any merit in this argument. It has clearly come out from the evidence on record that the relationship between the defendants on the one hand and the parents-in-law of the defendant no.1 on the other hand were strained. Dr. I.N. Khosla had disinherited his elder son Mr. Deepak Khosla and the defendants. He had provided that the property would go to his wife and if he were to predeceased him then to the plaintiff. His wife Smt. Kamla Khosla has also executed her will on similar lines by disinheriting the defendants and bequeathing her property to the plaintiff. Merely because the natural line of succession is altered in the will would not by itself be a suspicious circumstance, when it is otherwise clearly proven by the evidence on record that the relations were strained between the testatrix and the persons who are disinherited.
74. In the result, I would hold that the plaintiff has been able to prove Ex.PW-1/N Will dated 24/12/2009 of Smt. Kamla Khosla.
75. It would be appropriate to extract the relevant portion of the Will dated 24/12/2009 Ex.PW-1/N of Smt. Kamla Khosla, in extenso:
"WILL I, Smt. Kamla Khosla, Wife of Late Dr. (Col) Iqbal Nath Khosla, aged about 76 years, resident of Flat No. 9138, Sector-C, Pocket-9, Vasant Kunj, New Delhi-110070, hereby revoke any previous will and or testamentary writing that may have been executed by me and declare this to be my last and final will and testament. I am executing this last will of mine, with my own free will and without any undue influence, force, coercion or solicitation of any kind. I am in the best of my health and I am in sound disposing state of mind.
CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.64 Whereas, I have been bequeathed immovable property namely Flat No. 9138, Sector-C, Pocket-9, Vasant Kunj, New Delhi- 110070, as well as all movable properties including savings, deposits etc. by my husband Dr. (Col) Iqbal Nath Khosla vide his will executed and registered on 8th April 1992. I also own movable properties including jewellery.
1. I appoint my son Shri. Rajan Khosla who is residing at B-1/1706-A, Vasant Kunj, New Delhi-110070 to be executer of this will.
2. I hereby bequeath all my movable and immovable properties that I own and possess and also all other properties of whatsoever nature and where so ever situated that I may be owning at the time of my demise, to my son Shri. Rajan Khosla, to have and to hold absolutely and for ever as full owner thereof after my demise.
3. That in case my son Shri. Rajan Khosla predeceases me then my daughter-in-law Smt. Bulbul Khosla, w/o Shri Rajan Khosla, my grand sons, Master Gaurav Khosla and Master Sukrit Khosla will jointly became the absolute owners of all my movable and immovable properties, which I may be owning and/ or possessed of at the time of my demise, after my demise.
4. I specifically declare that my daughter-in-law Smt. Simi Khosla, w/o Late Shri. Deepak Khosla, and my granddaughter Ms. Sheena Khosla, daughter of Late Shri. Deepak Khosla or any one else claiming through them or otherwise, will neither have nor be entitled to claim any share, title or interest in my movable/ immovable properties in any manner what so ever after my demise. I am compelled to disinherit both of them on account of their abusive and violent behaviour towards me and my late husband.
IN WITNESS WHEREOF I Smt. Kamla Khosla the above named testator have put my signature to this last will and testament at Delhi on this 24th day of December 2009 in the presence of the following witnesses.
CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.65 TESTATOR Signed by the said Smt. Khosla as her LAST WILL AND TESTAMENT in the presence of us, present at the same time, who in her presence and in the presence of each other sign as witnesses hereto.
... ... ..."
(Emphasis supplied by me)
76. In the Will dated 24/12/2009 Ex.PW-1/N, Smt. Kamla Khosla has referred to the Will dated 08/04/1992 of Dr. (Col.) I.N. Khosla and has stated that she became owner of the property through the said will of her husband after his demise. Thus, the Will dated 24/12/2009 Ex.PW- 1/N of Smt. Kamla Khosla also corroborates the Ex.PW-1/L Will dated 08/04/1992 of Dr. (Col.) I.N. Khosla.
77. In Ex.PW-1/N, Smt. Kamla Khosla has bequeathed all her properties to the plaintiff herein. She has further stated that in case the plaintiff predeceased her, then the properties shall devolve upon the wife and the children of the plaintiff. Smt. Kamla Khosla has also specifically declared that the defendants herein or anyone claiming through them shall not be entitled to any claim in her properties. The defendants were disinherited on account of their abusive behaviour by Smt. Kamla Khosla.
78. Now, coming to the will dated 20/10/2011 Ex.DW-1/A which is propounded by the defendants.
79. There is a very strange circumstance for which the defendants have been unable to give any plausible explanation. It is the case of the defendants in their written statement that Smt. Kamla Khosla executed her last and final will dated 13/02/2011 whereby she bequeathed the suit property in equal shares in favour of the plaintiff and the CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.66 defendant no.2. The defendants have very specifically mentioned 13/02/2011 as the date of the will which is relied upon by them in various paragraphs of their written statement. However, there is no will dated 13/02/2011 which has been filed by the defendants or which has otherwise come on the record. Rather, the defendants filed a Will dated 20/10/2011 purporting to have been executed by late Smt. Kamla Khosla. This Will dated 20/10/2011 Ex.DW-1/A has been relied upon by the ld. counsel for the defendants at the time of arguments as the last and final will of Smt. Kamla Khosla. Importantly, in the written statement of the defendants there is no mention of any will dated 20/10/2011. The defendants have only mentioned will dated 13/02/2011 in their written statement. At the same time, there is no will of the said dated of 13/02/2011 which has been filed by the defendants. The will which is filed bears the date 20/10/2011 and does not find mention anywhere in the written statement. Even the issue which was framed upon which the onus was put upon the defendants was regarding the will dated 13/02/2011. It is not understood how the defendants could fail to mention the will dated 20/10/2011 in their written statement and rather mentioned a will dated 13/02/2011 which is not even filed by them. The defendants also never came forward to amend the written statement with any plea that there was a typographical error in the written statement incorrectly mentioning the date of the will as 13/02/2011 instead of 20/10/2011. The issue upon which onus was placed upon the defendants was also with respect to the will dated 13/02/2011 and there is no issue framed regarding the will dated 20/10/2011. The defendants also never sought amendment of the issue regarding the will dated 13/02/2011. The defendant no.1 never came into the witness box to explain why there was this CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.67 discrepancy in the date of the will as mentioned in the written statement as 13/02/2011 and the will relied upon being Ex.DW-1/A bearing the date 20/10/2011. The defendant no.2 has stated in her cross-examination that there was no will dated 13/02/2011 and that there was a typographical error and that the will was dated 20/10/2011.
80. The written statement of the defendants was signed by both the defendants and is also supported by their affidavits. Both the defendants are educated persons. In the entire written statement, there is only mention of a will dated 13/02/2011 and there is no mention of any will dated 20/10/2011. The mention of the will dated 13/02/2011 is not only in one place but is spread out in multiple paragraphs of the written statement. It is very strange that the defendants could make an inadvertent error with regard to such a crucial matter of their defence. The defendants never even sought correction of their written statement and even the issue was framed with regard to the will dated 13/02/2011 only in the presence of the ld. counsels for the parties. The defendant no.2 has stated in her cross-examination recorded on 02/02/2015 that she had signed the written statement after going through its contents. The defendant no.1 has never come forward as a witness to explain the discrepancy. This certainly raises red flags regarding the will propounded by the defendants.
81. It is the case of the plaintiff that the will dated 20/10/2011 Ex.DW-1/A relied upon by the defendants was a forged and fabricated document. It was the specific case of the plaintiff that the signature of Smt. Kamla Khosla on the will was forged and fabricated. The purported signature of Smt. Kamla Khosla on the Ex.DW-1/A is in Hindi language in Devanagari. The plaintiff has been able to show through the evidence CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.68 that Smt. Kamla Khosla used to sign in English language. Smt. Kamla Khosla was an educated lady who had studied in Bishop Cotton School, Shimla. The plaintiff has proved Ex.PW-1/N Will dated 24/12/2009 of Smt. Kamla Khosla, in which the signatures of Smt. Kamla Khosla are in the English language. PW-3, the attesting witness to the will Ex.PW-1/N who is also a relative/nephew of Smt. Kamla Khosla has deposed that Smt. Kamla Khosla was well versed with English and she used to talk in Hindi as well as English. The plaintiff has also proved from the bank records pertaining to Smt. Kamla Khosla being Ex. PW-5/1 that Smt. Kamla Khosla signed in English language. These bank records are unchallenged. The plaintiff has also proved through the evidence of the notary public PW-6, that Smt. Kamla Khosla had made specimen signatures before the notary being Ex.PW-1/Z, which signatures are in English language. Thus, it has clearly come out from the evidence that Smt. Kamla Khosla used to sign in English language. The signature of Smt. Kamla Khosla is quite distinctive. She signed as "MRS. Kamla Khosla" in English/Roman alphabets. The defendants have been unable to prove that Smt. Kamla Khosla also made signatures in Hindi language. The defendants have not filed a single document which would corroborate the purported signatures of Smt. Kamla Khosla on the will dated 20.10.2011 Ex.DW-1/A. In her cross-examination recorded on 02/02/2015, the defendant no.2 had stated that she could produce the documents signed by her grandmother i.e. Smt. Kamla Khosla in Hindi if available. However, the defendant no.2 did not produce any documents signed by Smt. Kamla Khosla in Hindi. Thereafter, in her cross-examination on 03/012/2015, the defendant no.2 denied the suggestion that she did not have any document written and signed by her grandmother. She CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.69 further stated that she could produce the document if she could trace the same. However, again no document containing signatures of Smt. Kamla Khosla in Hindi language was produced by the defendants. The defendants were living with Smt. Kamla Khosla since the very beginning and it is highly unlikely that they would not have even a single document signed by Smt. Kamla Khosla in Hindi in case any such document actually existed. It is highly doubtful that Smt. Kamla Khosla would be signing in Hindi, when it has clearly come out in evidence that she had signed the will Ex.PW-1/N in English language and even the bank documents are signed in English language. The will Ex.DW-1/A which is propounded by the defendants is also in the English language. It is improbable that when Smt. Kamla Khosla generally signs in English language, which has clearly been proved in the evidence, and the will Ex.DW-1/A is written in English language, then she would be signing the document in Hindi. This makes it is highly doubtful that the purported signatures appearing on the Ex.DW- 1/A were actually the signatures of Smt. Kamla Khosla and that Ex.DW-1/A was actually signed by Smt. Kamla Khosla.
82. There are also grave suspicious circumstances surrounding the will Ex.DW-1/A which is relied upon by the defendants. It has already come out in evidence that the relationship between Dr. I.N. Khosla and his wife Smt. Kamla Khosla on the one hand and Sh. Deepak Khosla and the defendants on the other hand were not at all cordial. There was great tension in the relations to the extent that Dr. I.N. Khosla and his wife Smt. Kamla Khosla were even making complaints to the police against Sh. Deepak Khosla and the defendants. In his will dated 08/04/1992 Ex.PW-1/L, Dr. I.N. Khosla had completely ousted Sh.
CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.70 Deepak Khosla and the defendants from his estate. There are series of complaints by Dr. I.N. Khosla to police which are on the record pertaining to the period from 2001 to 2006. In these complaints, Dr. I.N. Khosla had made grave allegations against the defendants of harassing and abusing him and his wife Smt. Kamla Khosla. He has called upon the police to take action against the defendants and to evict them from the suit property. After his demise, there are complaints from Smt. Kamla Khosla to the police against the defendants in the year 2013, in which Smt. Kamla Khosla has alleged that the defendants were harassing and abusing her. She has also referred to the earlier complaints filed by her husband. In her will dated 24/12/2009 Ex.PW-1/N, Smt. Kamla Khosla has ousted the defendants from succeeding to her properties just like her late husband had done in his will Ex.PW-1/L. Even as late as 03/07/2013, the defendants had made a complaint to the police being Ex.DW-1/DE, in which they have stated that Smt. Kamla Khosla was siding with the plaintiff herein and was threatening to throw the defendants out of the suit property. Thus, there are grave and suspicious circumstances which surround the will dated 20/1//2011 Ex.DW-1/A relied upon by the defendants. The defendants have been unable to explain as to what was the change in circumstances which moved Smt. Kamla Khosla to change the manner of bequeathing from the will dated 24/12/2009 Ex.PW-1/N in which the defendants were completely ousted to the purported manner provided in the will dated 20/10/2011 Ex.DW-1/A. The document Ex.DW-1/A appears highly unnatural in the background of the facts and circumstances which have already been narrated in details in the aforesaid paragraphs. The defendants have been unable to dispel the suspicious circumstances surrounding the will Ex.DW-
CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.71 1/A. The document Ex.DW-1/A clearly appears to be a fabricated document which has been got made up only to resist the claim of the plaintiff to the suit property.
83. The defendants have examined DW-2 Mr. Sanjeev Maini as the attesting witness to the will Ex.DW-1/A. He has deposed in his examination-in-chief by way of affidavit that Smt. Kamla Khosla had put her signatures on the will in the presence of the witnesses in Hindi. As already mentioned, the defendants have failed to produce any document showing that Smt. Kamla Khosla signed in Hindi language. DW-2 has also stated in his cross-examination on 17/07/2015 that he did not have any document in the handwriting or signature of Mrs. Kamla Khosla in Hindi language. It has also clearly come out in the evidence that Smt. Kamla Khosla was an educated woman and she used to sign in English language. Smt. Kamla Khosla had signed the will Ex.PW-1/N in English and her bank documents were also signed by her in English. The will Ex.DW-1/A propounded by the defendants is in English language. It is highly improbable then that Smt. Kamla Khosla would have signed Ex.DW-1/A in Hindi. This makes the testimony of DW-2 doubtful.
84. DW-2 is a resident of Jaipur. He has stated in his cross-examination that Smt. Kamla Khosla had made a telephone call to him 4 to 5 days before 20/10/2011. He has deposed that she asked her to meet her for some urgent work and that she did not inform DW-2 as to what was the urgent work despite DW-2 asking about the same. It is deposed by DW-2 that pursuant to that DW-2 visited Delhi on 20/10/2011. He has also deposed that Smt. Kamla Khosla had not specifically called him on 20/10/2011. All these circumstances also appear to be doubtful. It CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.72 seems strange that Smt. Kamla Khosla shall be calling a person for witnessing the will all the way from Jaipur and would not even inform the person as to for what purpose he was being called despite the person specifically asking her. Then, although the witness is not specifically called on 20/10/2011, he visited Delhi on 20/10/2011. All this seems unnatural. The will Ex.DW-1/A comprises of two pages and the purported signature of Smt. Kamla Khosla is only on the second page and there is no signature on the first page. This is also a suspicious circumstance since normally in a will the testator signs all the pages and does not leave any page unsigned. In her will Ex.PW- 1/N, Smt. Kamla Khosla had signed all the pages. Further, DW-2 has in his cross-examination denied the suggestion that during their lifetime Dr. I.N. Khosla and Smt. Kamla Khosla were not having cordial relations with Mr. Deepak Khosla and the defendants. This deposition of the DW-2 is completely contrary to the evidence on record showing completely strained relations between Dr. I.N. Khosla and Smt. Kamla Khosla on the one hand and Mr. Deepak Khosla and the defendants on the other hand. Thus, the veracity of the testimony of DW-2 is doubtful and he is not a reliable witness. It would not be safe to rely upon his testimony and since he does not appear to be stating the truth, the evidence of DW-2 deserves to be rejected.
85. In the result, I would hold that the defendants have failed to prove the will dated 20/10/2011 Ex.DW-1/A. The said will Ex.DW-1/A appears to be a fabricated document which has been set up by the defendants only in order to create false defence in the suit.
86. In the result, I would hold that the plaintiff has been successful in proving that the will dated 24/12/2009 Ex.PW-1/N was the last and CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.73 final will of late Smt. Kamla Khosla. I would hold that the plaintiff became the absolute owner of the suit property under the will dated 24/12/2009 Ex.PW-1/N. The Issue (i) (Whether the plaintiff has acquired absolute rights of ownership and possession of property in question by virtue of Will dated 24.12.2009? OPP) is accordingly decided in favour of the plaintiff and against the defendants.
87. In so far as the Issue No.(vii) (Whether the plaintiff's mother has executed Will dated 13.02.2011, if so, its effect? OPD) is concerned, the defendants have failed to prove any will dated 13/02/2011 purported to have been executed by Smt. Kamla Khosla. I would also hold that Ex.DW-1/A purporting to be will dated 20/10/2011 was a fabricated document. The Issue No.(vii) is thus decided against the defendants and in favour of the plaintiff.
88. Consequently, the Issue No.(ii) (Whether the plaintiff is entitled for the Decree of possession of the property in question against the defendants? OPP) is also decided in favour of the plaintiff and against the defendants. The plaintiff would be entitled to decree of possession in respect of the suit property against the defendants.
89. The Issue No. (v) (Whether the plaintiff is entitled for injunction prayed for? OPP) is also decided in favour of the plaintiff and against the defendants. The plaintiff would be entitled to decree of mandatory injunction directing the defendants to hand over all the articles and goods belonging to the plaintiff's late parents which were lying in the suit property to the plaintiff.
90. The Issue No.(ix) (Whether the plaintiff has no cause of action to file the present suit? OPD) is also decided in favour of the plaintiff and CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.74 against the defendants. The plaintiff had a clear cause of action to file the present suit.
Issue (iv) Whether the plaintiff is entitled for damages for causing mental agony and loss of reputation, if so, to what extent? OPP
91. The plaintiff has been clearly able to prove that the will dated 24/12/2009 Ex.PW-1/N was the last and final will of Smt. Kamla Khosla. The will dated 20/10/2011 Ex.DW-1/A which is propounded by the defendants has been held to be a fabricated document. The defendants have denied possession of the suit property to the plaintiff on the basis of a false and fabricated document. The plaintiff has been forced to prosecute the present suit against the defendants since 2013. Clearly, the circumstances are such which clearly show that the plaintiff has suffered mental agony and harassment at the hands of the defendants. The plaintiff has prayed for compensation of Rs. 3,00,000/- towards the mental agony and harassment. I would hold that in view of the long harassment to the plaintiff at the hands of the defendants, the compensation of Rs. 3,00,000/- would be reasonable. Accordingly, the plaintiff is awarded compensation/damages of Rs. 3,00,000/- towards mental agony and harassment along with interest @ 9% p.a. from the date of the decree till actual realization.
Issue (iii) Whether the plaintiff is entitled for damages, if so, at what rate and for what period? OPP
92. The plaintiff has in the plaint also sought damages/user charges from the defendants for use and occupation of the suit property. The plaintiff has stated in paragraph 33 of his plaint that the prevailing CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.75 market rate of the suit property was Rs. 30,000/- per month in the area of Vasant Kunj. Although in their written statement, in response to paragraph 33 of the plaint, the defendants have barely denied the damages @ Rs. 30,000/- per month as per the prevailing market rate, the defendants have not mentioned what would be the market rate of rent as per the defendants. The plaintiff as PW-1 has stated in his examination-in-chief by way of affidavit filed in 2014 that the prevailing market rate of rent of the flat was Rs. 30,000/- per month. The plaintiff was cross-examined at length on various dates by the defendants. The defendants however never questioned the plaintiff on the market rate of the flat. The defendants also never challenged the testimony of the plaintiff that the prevailing market rate of the flat was Rs. 30,000/-. Not even a suggestion was made to the plaintiff that the prevailing market rent was not Rs. 30,000/-. The plaintiff himself lived on the ground floor in the same locality where the suit property is located at the second floor. Thus, it is quite likely that the plaintiff would have been aware of the prevailing market rent in the area. The defendants have not challenged the testimony of the plaintiff regarding the prevailing market rent. I would hold that the plaintiff has been able to prove that the prevailing market rent for the suit property during 2013-2014 was Rs. 30,000/- per month.
93. I have already held that the plaintiff would be entitled to decree of possession. I have also held that will Ex.PW-1/N propounded by the plaintiff was the last and final will of late Smt. Kamla Khosla. I have also held that the will propounded by the defendants was a forged and fabricated document. I would hold the defendants liable to pay damages to the plaintiff for the use and occupation of the suit property.
CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.76 It would be reasonable to assess the damages by taking the prevailing rate of rent as Rs. 30,000/- per month in the year 2013-2014. I would also take judicial notice that the rates of rent in a metropolitan city like Delhi are annually increasing. The suit property is in one of the decent localities in Delhi in Vasant Kunj. Thus, I would also make provision for increase in the rate of user charges. In the result, I would hold that the plaintiff is entitled to damages against the defendants @ Rs. 30,000/- per month with 10% increase every two years from the date of filing of the suit till possession is handed over. The damages till the date of decree shall also carry interest @ 9% p.a. on monthly basis. The future damages from the date of decree till vacation of the suit property shall carry interest @ 9% p.a. on monthly basis.
Issue (vi) Whether the suit is not maintainable in view of preliminary objection No.1 in the written statement? OPD
94. The preliminary objection no.1 in the written statement was that the suit was not maintainable as the plaintiff had not sought the probate of the will dated 24/12/2009 Ex.PW-1/N. The learned counsel for the defendants has been unable to show how this preliminary objection is sustainable. It is well settled that no probate is required in respect of a will executed in Delhi in respect of property in Delhi. Thus, the Issue No.(vi) is decided against the defendants and in favour of the plaintiff.
Issue (viii) Whether the suit has not been properly valued for the purpose of Court Fee? OPD
95. In so far as this issue is concerned, the onus to prove this issue was upon the defendants. The plaintiff has valued the relief of possession at Rs. 41,81,000/- and has paid court fees accordingly. It was the CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.77 submission of the learned counsel for defendants that the value of the suit property was higher than what the plaintiff had contended in his plaint. The onus to prove this was upon the defendants. The defendants have not led any evidence to prove this issue. Accordingly, the Issue No.(viii) is decided against the defendants and in favour of the plaintiff.
Relief
96. In the result, the following decree is passed in favour of the plaintiff and against the defendants:
i) Decree of possession in respect of the suit property being Flat No.9138, Second Floor, Sector-C, Pocket-9, Vasant Kunj, New Delhi as shown in red colour in the site plan annexed to the plaint; and
ii) Decree of sum of Rs. 3,00,000/- towards compensation/damages for mental agony and harassment along with interest @ 9% p.a. from the date of the decree till actual realization; and
iii) Decree of damages @ Rs. 30,000/- per month with 10% increase every two years from the date of filing of the suit till possession is handed over. The damages from the date of filing of the suit till the date of decree shall carry interest @ 9% p.a. on monthly basis. The future damages from the date of decree till vacation of the suit property shall carry interest @ 9% p.a. on monthly basis.
iv) Decree of mandatory injunction directing the defendants to hand over all the articles and goods belonging to the plaintiff's late parents which were lying in the suit property to the plaintiff; and CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.78
v) Costs are decreed in favour of the plaintiff and against the defendants. Pleader's fees is computed as Rs. 50,000/-.
97. Let the decree-sheet be drawn up accordingly, upon payment of the balance requisite court fees towards the damages.
File be consigned to record room.
Judgment pronounced in open Court.
(SATYABRATA PANDA) Additional District Judge-04 Judge Code- DL01057 PHC/New Delhi/24.04.2023 CS NO.58860 OF 2016 Rajan Khosla vs. Simi Khosla page no.79