Delhi District Court
Madhu Bhandari vs Mr. Jag Mohan Bajaj on 20 December, 2019
IN THE COURT OF MR. SUNIL BENIWAL ,
ADDITIONAL DISTRICT JUDGE -02, ( CENTRAL), DELHI
CS No. 20257/16
Madhu Bhandari
R/o 253, Nebula Road,
Piscataway,
New Jersey, 08854, USA
........... Plaintiff
Versus
1. Mr. Jag Mohan Bajaj
S/o Late Sh. Roshan Lal Bajaj
R/o 121, Top of the World Way
Green Book, New Jersey 08812,
USA
[email protected],
2. Mr. Deepak Bajaj
S/o Late Sh. Roshan Lal Bajaj
R/o 224, Nebula Road,
Piscataway, New Jersey, 08854, USA
[email protected]
3. Ms. Madhu Bajaj
W/o Late Sh. Rupak Bajaj,
R/o R-758, New Rajinder Nagar,
New Delhi
4. Ms. Sonali Bajaj
D/o Late Sh. Rupak Bajaj
R/o R-758, New Rajinder Nagar,
Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 1 of 39
New Delhi
E-mail : [email protected], [email protected]
5. Ms. Sakshi Bajaj
D/o Lae Sh. Rupak Bajaj
R/o R-758,
New Rajinder Nagar,
New Delhi.
......... Defendants
Date of Institution of Suit : 16.04.2010
Date of pronouncement of judgment : 20.12.2019
SUIT FOR PARTITION AND PERMANENT INJUNCTION
JUDGMENT
1. Vide this judgment, I shall decide the suit of the plaintiff for partition and permanent injunction with respect to property bearing no. R-758, New Rajinder Nagar, New Delhi. Relevant facts as stated in the plaint for the determination of the present case are as follows:-
2. That the plaintiff and defendants are the family members of Late Sh. Roshan Lal Bajaj. The plaintiff is the daughter of the deceased and defendants nos. 1 and 2 are the sons of the deceased. The Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 2 of 39 defendant no. 3 is the daughter in law of the deceased and defendant nos. 4 and 5 are the grand children of the deceased. It is stated that a plot of land bearing no. R-758, New Rajinder Nagar, New Delhi with the super structure constructed thereon was granted unto the deceased Late Sh. Roshan Lal Bajaj by the President of India through Rehabilitation Department, Government of India Vide their Allotment No. I/RN-EA (50) dated 18.01.1954. The deed of conveyance of super structure and the perpetual lease deed of the plot underneath are duly registered with the office of the Sub-Registrar, New Delhi as document no. 4528 & 4527 on 21.06.1961. That the deceased died intestate in year 1989 leaving behind following legal heirs to inherit the estates including the said suit property owned by him.
Name Relation with Residence
deceased
Mrs. Pushpa Bajaj Wife (Since Deceased)
Ms. Madhu Bhandari Daughter 253, Nebula Road Piscataway,
New Jersey, 08854, USA
Mr. Jag Mohan Bajaj Son 121 Top of the World Way,
Green Brook, New Jersey
08812, USA
Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 3 of 39
Mr. Deepak Bajaj Son 224 B Nebula Road,
Piscataway,New Jersey,
08854, USA
Mr. Rupak Bajaj Son (Since Deceased)
3. Consequent to the death of Late Sh. Roshan Lal Bajaj, the suit property devolved equally upon the above-mentioned legal heirs in 1/5th share. The widow of the deceased also died intestate on 12.08.1996 and consequent upon her death the suit property devolved unto the then living heirs of the deceased namely, Ms. Madhu Bhandari, Mr. Jag Mohan Bajaj, Mr. Deepak Bajaj and Mr. Rupak Bajaj (each inheriting one-fourth share). The son of the deceased namely Mr. Rupak Bajaj also died on 09.08.1999 leaving behind a widow Smt. Madhu Bajaj and two daughters namely Sonali Bajaj and Sakshi Bajaj. Upon the death of Mr. Rupak Bajaj his 1/4th share in the suit property devolved onto his legal heirs in qual 1/3th share, each of his legal heirs thereby inheriting 1/12th share in the suit property. The suit property still stands in the name of the deceased Late Sh. Roshan Lal Bajaj in the records of Land and Development Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 4 of 39 Office, Ministry of Urban Development, Govt. of India and no mutation has been carried out. The parties of the suit are entitled to the respective shares mentioned hereunder in the said suit property.
a. Plaintiff 1/4th share b. Defendant No. 1 1/4th share c. Defendant No. 2 1/4th share d. Defendant No. 3 1/12th Share e. Defendant No. 4 1/12th Share f. Defendant no. 5 1/12th Share
4. Since the death of late Sh. Roshan Lal Bajaj, parties hereto have not entered into any settlement or no partition has been carried out among them. Plaintiff is presently situated at New Jersey, USA and the suit property is in the possession of defendant no. 3 to 5. Plaintiff is entitled to 1/4th share in the suit property. Plaintiff on various occasions has requested the defendants to execute the no objection affidavits and other legal requirements so as to get the suit property mutated in the records of the lessor. Plaintiff called upon all the aforementioned defendants to effect partition of the suit property Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 5 of 39 by metes and bounds and give her 1/4th share in the suit property and to that intent and object sent a legal notice by REGD. A.D./UPC dated 10.03.2010. However, all the defendants despite the service of notice failed to partition the property by metes and bounds. Copy of the legal notice dt. 10.03.2010 is annexed with the plaint. The cause of action arose in 1989 when Sh. Roshan Lal Bajaj died intestate. Cause of action further arose in 12.08.1996 when Smt Pushpa Bajaj wife of the deceased died intestate. Cause of action further arose in 09.08.1999 when Mr. Rupak Bajaj, the son of the deceased died intestate. Cause of action further arose again on 10.03.2010 when the plaintiff sent a legal notice to all the defendants and they failed to effect partition of the suit property. Hence, the present suit is filed with the following prayer:
a.) pass a preliminary decree for partition of the property bearing no. R-758, New Rajinder Nagar, New Delhi, determining the shares of the parties as under:
Plaintiff 1/4th share Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 6 of 39 Defendant No. 1 1/4th share Defendant No. 2 1/4th share Defendant No. 3 1/12th Share Defendant No. 4 1/12th Share Defendant no. 5 1/12th Share
b.) appoint a local commissioner for suggesting the way of effecting partition between the parties by metes and bounds; c.) Pass a final decree for partition of the property bearing no. R-758, New Rajinder Nagar, New Delhi by metes and bounds. d.) Pass a decree for permanent injunction restraining defendants and their agents, assignees , representative, etc. from transferring, parting, selling and alienating with the title and possession of property bearing no. R-758, New Rajinder Nagar, New Delhi and/or
e) in that behalf pass any other or further order/directions as may be deemed fit and proper, by this hon'ble Curt in the facts and circumstances of the present case.
5. In their written statement, defendant nos. 1 and 2 have taken preliminary objections stating that the present suit is devoid of any Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 7 of 39 cause of action. The plaintiff has no share in the suit property. The suit property belongs to the defendants. It is stated that Late Sh. Roshan Lal Bajaj has not died intestate and has left a registered Will dated 26.05.1989 in which the shares of the defendants are partitioned and demarcated. In view of the Will dated 26.05.1989, the suit property has already been partitioned. The ground floor of the suit property was given to Late Sh. Rupak Bajaj which now belongs to defendant nos. 3 to 5, the first and second floor belongs to defendant nos. 1 and 2. The present suit has been incorrectly valued. PARAGRAPH-WISE REPLY
6. The defendants have denied the averments made in the plaint and have denied that consequent upon the death of Smt. Pushpa Bajaj W/o Late Sh. Roshan Bajaj, the suit property devolved upon the plaintiff, Mr. Jagmohan Bajaj, Mr. Deepak Bajaj and Mr. Rupak Bajaj equally and with 1/4th share each as alleged or otherwise. Upon the death of Sh. Rupak Bajaj, his share of 1/3rd devolved upon his legal heirs. It is submitted that the defendants are in joint possession of the Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 8 of 39 suit property alongwith the defendant nos. 3 to 5. It is denied by the defendants that the plaintiff on various occasions has requested the defendants to execute no objection affidavits and other legal requirements to get the suit property mutated in the records of the lessor as alleged or otherwise. That the plaintiff does not have any share in the suit property and the question of plaintiff having made any request, does not arise. It is stated that the legal notice dated 10.03.2010 was not received by the defendants. The legal notice has no sanctity in the eyes of law. The contents of the legal notice are false and the same are denied by the defendants. There is no cause of action in favour of the plaintiff and against the defendant. It is submitted that the suit has not been valued properly and the plaintiff ought to have paid the court fee on the entire value of the suit property and not on the alleged share being claimed by the plaintiff in the suit property. Hence, it is prayed that the suit of the plaintiff be dismissed with exemplary costs in favour of the defendants and against the plaintiff. Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 9 of 39 WRITTEN STATEMENT ON BEHALF OF THE DEFENDANT NOS. 3 to 5
7. In their written statement, defendant nos. 3 to 5 have taken preliminary objections and have stated that the suit is without cause of action as the Will dated 25.05.1989 executed by deceased Rohan Lal (deceased father of the plaintiff) was within the knowledge of the plaintiff. The present suit is an abuse of process of law and has been filed with ulterior and malafide motives and intentions after passage of 21 years of death of late Sh. Roshan Lal Bajaj, when the will in question was acted upon by all the beneficiaries with oral consent of the plaintiff. The plaintiff has not approached the court with clean hands.
REPLY ON MERITS
8. Para nos. 1 and 2 are admitted by the defendant nos. 3 to 5 being matter of record. It is stated that Late Sh. Roshan Lal Bajaj who died on 27.05.89 had made four wills dt. 21.11.81, dt. 18.03.87, 27.03.87 and on 25.05.89. The last Will dated 25.05.89 was Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 10 of 39 registered as document Sr. No. 2485 Book No. 3, vol. No. 504 page No. 189 to 191 dt. 25.05.89, registered with Sub-Registrar, Asaf Ali Road, New Delhi, wherein the deceased, Late Sh. Roshan Lal Bajaj S/o Late Sh. Pratap Mal Bajaj bequeathed the property no. R-758, New Rajender Nagar, New Delhi in favour of Mr. Rupak Bajaj, Deepak Bajaj and Sh. Jag Mohan Bajaj in a floor wise manner. Mr. Rupak Bajaj was given ground floor, Mr. Deepak Bajaj was given first floor and Mr. Jag Mohan Bajaj was given second floor of the suit property as per the registered will dated 25.08.89. The plaintiff was not given any right or share in the suit property and hence, the plaintiff has no right to claim partition with respect to suit property. Defendant nos. 3 to 5 are in possession of the whole of the property comprising of three floors with their consent as other defendant nos. 1 and 2 are residing in USA. Smt. Puspha already died and hence, the property devolved as per Will dated 25.05.89 and same was acted upon after death of Late Sh. Roshan Lal Bajaj. No claim was ever raised by the plaintiff prior to filing of the present suit including any property or Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 11 of 39 bank account of the aforesaid executants of Will dated 25.05.89. In the aforesaid Will it has been clearly written that nothing is bequeathed in favour of Smt. Madhu Bhandari being married and who is well off as the executant had given sufficient dowry and further she will have no interest, title in the house after his death or the death of her mother and her brothers. Para no. 4 was denied by the defendants. The objection has been raised by the plaintiff at a belated stage after admitting the shares of the defendants in the suit property. The possession on behalf of all the defendants with their consent is with the defendant nos. 3 to 5, hence, it is denied that the property devolved equally upon the legal heirs stated in para no. 3 and their shares have been shown as 1/5th in the property in question. Smt. Pushpa died on 12.08.96, hence, the actual share of the answering defendants is 1/3rd as per last registered Will dt. 25.05.89 in favour of Rupak Bajaj, leaving behind the plaintiff who has not been given any share by late Sh. Roshan Lal Bajaj. It is not denied that Smt. Pushpa Bajaj died intestate on 12.08.1996. Para no. 6 of the plaint was admitted. Para Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 12 of 39 no. 7 was denied. It is stated that Mr. Rupak Bajaj was having 1/3rd share in the suit property that was confirmed by the testator with respect to the ground floor portion as per the said Will. The total share of defendant nos. 3 to 5 is 1/9th each. The suit property is under equitable mortgage with the Canara Bank that was created by Mr. Roshan Lal Bajaj, the testator. The obligation to pay the bank dues is still on the defendant nos. 1 to 5 jointly and severally. Para no. 9 and 10 were denied. The aforesaid Will was acted upon with the consent of the plaintiff as well as defendant nos. 1 to 5 and no claim was made against each other by any of the parties to the suit prior to the present suit. Para no. 11 was admitted. Para no. 12, 13 and 14 were denied. The present suit has been filed to harass the defendant nos. 3 to 5. The defendant no. 3 is an old lady and is being dragged in the court of law to face the present litigation. The service of legal notice is not denied. The defendant nos. 3 to 5 did not reply to the legal notice as the same was family dispute and was tried to be resolved amicably at the relevant time on the basis of copy of the Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 13 of 39 aforesaid Will. The present suit has been filed at a belated stage as 21 years have passed after the death of Mr. Roshan Lal Bajaj. Hence, it is prayed that the suit of the plaintiff may be dismissed with heavy cost in favour of the answering defendants and against the plaintiff.
9. Two separate replications to the written statement of defendant nos. 1 to 5 was filed by the plaintiff. It is submitted that father of plaintiff Mr. Roshan Lal Bajaj died intestate and had not executed any Will. It is stated that the Will dated 25.05.1989 is an unnatural Will as it totally deprives his daughter from share in his property. The alleged Will is forged and fabricated document and has not been executed in accordance with law. The witness of the Will had not visited the deceased on the day of its execution and not seen the deceased signing and executing the alleged will. The alleged Will is surrounded by suspicious circumstances. The father of the plaintiff was not possessed of sound mind at the time of execution of the Will. The plaintiff has denied execution of four wills by Mr. Roshan Lal Bajaj. The contents of the written statement have been Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 14 of 39 denied by the plaintiff and she has reiterated the contents of the plaint to be true.
10. After completion of pleadings, following issues were framed on 04.09.2012:
1. Whether the plaintiff is entitled to a preliminary decree for partition of the suit property bearing no. R-758, New Rajinder Nagar, New Delhi? OPP
2. Whether the plaintiff is entitled to a final decree for partition of the aforesaid suit property by metes and bounds? OPP
3. Whether the plaintiff is entitled to a decree of permanent injunction against the defendants with respect to the suit property? OPP
4. Whether the Will dated 26.05.1989 is the last and final Will of late Sh. Roshan Lal Bajaj? OPD
5. Whether the suit has not been properly valued and proper court fees has not been paid? OPD
6. Whether the suit is barred by limitation? OPD
7. To What relief, if any, is the plaintiff entitled? Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 15 of 39
11. In plaintiff's evidence, Ms. Madhu Bhandari was examined as PW1 who tendered her evidence affidavit as Ex. PW1/A and relied upon, legal notice as Ex. PW1/1 and postal receipts as Ex. PW1/2.
During her cross examination PW1 deposed that she graduated from Delhi but did not remember the year of passing graduation. She deposed that her evidence affidavit (Ex. PW1/A) was prepared in her presence and did not have any proof that she was in India at the time of preparation of Ex. PW1/A. She deposed that she is permanently resident of USA and whenever she visited India, she came through proper channel. She deposed that she came to India in March, 2010 but could not tell the exact period of her stay in India, but stated that it may be 2-3 weeks. She visited India in 2012 for mediation. That her father Mr. Roshan Lal Bajaj died in July or August 1989. After seeing the affidavit Ex. PW1/A, PW1 deposed that the said affidavit was sent by her lawyer to USA and the same was attested by Notary in USA. She denied that she carried the affidavit Ex. PW1/A to USA. She stated that when she visited India in 2010, her husband Mr. Ranjit Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 16 of 39 Kumar Bhandari accompanied her and remained with her till her stay. She deposed that her husband is also notary in USA. She stated that it is correct that there is no date of attestation on Ex. PW1/A. That Smt. Pushpa Bajaj died in the year 1996. She is settled in USA since 1971. She stated that she was having three brothers out of which two have passed away and one is residing in America. She deposed that she does not remember whether the affidavit was attested in her presence or not. She deposed that she got married in 1971 and her father was retired at that time. She deposed that her father was in private job but she was not aware of the nature of his job. She further deposed that the parents did whatever they could afford at the time of her marriage and there was no complaint from anybody. She further deposed that after one week of her marriage, she left for USA and firstly visited India after two years. After the death of her father, she used to stay at her parents' house with her mother while visiting India and her mother used to discuss and share everything with her. She deposed that when her father died, she Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 17 of 39 was in USA and could not come to India as her green card was not ready at that time. She denied that her mother had discussed regarding the execution of Will by his father. She deposed that she was not aware about the Will dt. 26.05.1989 at that time but came to know about the same on 20.03.2010 when she asked for partition of her father's property. She deposed that whatever is written in the Will dated 26.05.1989, she does not agree that the same was the wordings of her father. She admitted that no share was given to her as per will dated 26.05.1989. She deposed that the Will dated 25.05.1989 was never probated. She denied that she was having knowledge about the Will dated 25.05.1989 much prior to 2010. She deposed that she has taken steps after having knowledge about the Will in 2010. She stated that she has challenged the Will dated 25.05.1989. She further deposed that her brother Mr. Jagmohan Bajaj in 2015 has already stated in the hon'ble High Court Delhi through Mr. Shrivastava before the Registrar that he acknowledged his email in presence of defendant's counsels. She deposed that defendant nos. 1 Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 18 of 39 to 5 are not the owners of the suit property. She deposed that her mother often visited USA but does not remember how many times she visited USA after the death of his father. That her mother shared everything with all the children. She deposed that her father was sick and paralyzed and could not execute the Will one day before his death. She deposed that she visited India when her brother was hospitalised.
12. In defendants' evidence, Mr. Jagmohan Bajaj was examined as D1W1/A who tendered his evidence affidavit as Ex. D1W1/A and relied upon the documents Mark A and Ex. DW1/2. During his cross examination D1W1 deposed that Mr. Roshan Lal Bajaj might have left the Will, however, he again stated that he executed the Will. That prior to filing of the present suit the plaintiff talked to him but not filed any suit. He further stated that plaintiff was not aware of the Will. He stated that Ex. DW1/2 is the last Will of Sh. Roshan Lal Bajaj. D1W1 deposed that his father was the owner of the suit property and plaintiff is his real sister residing at USA. He deposed Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 19 of 39 that he and defendant no. 2 also residing at USA. That his mother was residing at the suit property alongwith his father during his lifetime. He deposed that his father was having cordial relations with his all children. At the time of death of his father he was residing at USA. That his father was not suffering from paralysis at the time of execution of the Will and his father was having certain problems in his legs. But he did not know the exact disease from which his father was suffering. He further stated that his father was able to move around in the year 1989 but not much. He deposed that he had not visited India in 1989 but visited India after the death of his father. He stated that he was not having knowledge that his father was heavily sedated and was not in his senses in the month of May 1989. D1W1 stated that he was not aware if any wills dated 21.11.1981, 18.03.1987, or 27.03.1987 were executed by his father. The defendant no. 2 was in USA on 25.05.1989. HE denied that the Will Ex. DW1/2 did not contain the signatures or thumb impression of his father. He stated that his father stood as bank Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 20 of 39 guarantor to the loan taken by his brother late Mr. Rupak Bajaj. He stated that he was not aware about the financial condition of plaintiff in the year 1989. He stated that he is not aware if dowry was given to the plaintiff at the time of her marriage. He deposed that when he visited India on 29.05.1989, his mother and middle brother told that his father had executed a will and at the time of death of his father, the will was in possession of his brother Rupak Bajaj and mother. He was in possession of the Will since June, 1989. He further deposed that he neither disclosed the fact of the Will to the plaintiff and defendant no. 2 nor filed the copy of the same with L &DO. He deposed that his mother died intestate and the property still exists in the name of his father in the government records.
13. Mr. Deepak Bajaj was examined as D2W1 who relied upon the evidence affidavit as Ex. D2W1/A and relied upon GPA as Ex. DW- 2/1 and Will as Ex. DW-2/2 (already exhibited as Ex. DW-1/2). During his cross examination D2W1 deposed that the attorney Ex. DW-2/1 was executed by him at USA. He deposed that at the time of Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 21 of 39 death of his father he was not in India. He further deposed that his father was not suffering from any paralytic attack but he is suffering from leg problems. He further deposed that his father was not able to walk even upto bathroom and used to seek help of the servant. He denied that due to heavy medication his father remained sedated during the month of May, 1989. He further denied that due to paralysis his father was not able to walk, move and write. He stated that he was not having knowledge of execution of wills dated 21.11.1981, 18.03.1987 or 27.03.1987 by his father. HE denied that Ex. DW1/2 neither contains the signatures or thumb impression of his father. He denied that the financial condition of the plaintiff in the month of May, 1989 was not good. He denied the suggestion that no dowry was given to the plaintiff at the time of marriage and further stated that his mother had given everything to the plaintiff at that time. He further deposed that he did not know if he had received legal notice mark A. He further deposed that he was not having knowledge if the will Ex. DW-1/2 has been used in any government office.
Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 22 of 39
14. Mr. Sevajit, Record Attendant, Department of Delhi Archives, 18-a Satsang Vihar Marg, Spl. Institutional Area, New Delhi was examined as D2W3 who proved the document bearing registration no. 2485, Addl. Book No. 3, Volume 504 on pages 189 to 191 dt. 25.05.1989 pertaining to the Will of Sh. Roshan Lal Bajaj S/o Sh. Pratap Mal, R/o 758, New Rajinder Nagar, New Delhi and marked as D2W-3/1. He deposed that Ex. DW1/23 and the record brought by him are not the same. He submitted that the signatures appended as Mark X on page 1 of the document Ex. DW1/2 and those on summoned record are not same. In his cross examination he deposed that he was posted in Archives department since 2015. He was not present at the time of execution of the Will. He joined the services of Govt. of NCT of Delhi in the year 1994.
15. Mrs Madhu Bajaj was examined as DW3 who tendered her evidence affidavit as Ex. DW3/A. During cross examination, she admitted that at the time of demise of her father in law, he was survived by a widow, three sons and a daughter. She admitted that the Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 23 of 39 plaintiff is the sister of her husband and is residing in USA. She admitted that her mother in law stayed in the suit property alongwith her father in law and they were having cordial relationship. Further, her father in law was having cordial relations with all his children. She further deposed that her mother in law died intestate. She admitted that the suit property still stood recorded in the name of her father in law in record of L & DO. She denied that DRT has passed an order of attachment in respect of suit property. She deposed that Ms. Sonali is her daughter. She further stated that she is not having knowledge of email [email protected] as her email id as she don't send emails to her daughter. She denied the suggest that her father in law died intestate and that her father in law did not execute a registered will. She denied that after demise of her father in law, his legal heirs inherited the property and the plaintiff got 1/5th share in the suit property. She deposed that the will was executed in her presence. She deposed that her husband, mother in law, sister in law Mrs. Anju Bajaj and her driver Kamal Singh were present at the time Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 24 of 39 of execution of will. She deposed that Smt. Champa Talwar alongwith her daughter Neelam was present at the time of execution of the Will. She admitted the suggestion that her father in law was of sound disposing mind at the time of execution of the Will. She further admitted the suggestion that the plaintiff was residing abroad and she was not visiting her parents often. She further deposed that plaintiff was not present at the time of death of her father.
16. Mr. Vinay Talwar was examined as D2W4 who submitted that the signatures on Ex. DW1/2 was of his mother i.e. Champa Talwar. He deposed that he was 31 years of age on 26.05.1989 and was practicing as a chartered accountant at Delhi. He deposed that he was not present at the time of execution of EX. DW1/2. He denied the suggestion that his mother had not attested Ex. DW1/2.
17. Ms. Neelam Mehndiratta was examined as D3-5 DW2 who tendered her evidence affidavit as Ex. D3-5/DW2 X. During her cross examination she deposed that she recognises the Will executed by Sh. Roshan Lal which is Ex. DW1/2 and identified the signatures of her Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 25 of 39 mother at point A and her uncle at point B and of Mr. Kamal Singh at point C. She deposed that her uncle signed the will first and thereafter, her mother Smt. Champa Talwar and then by Mr. Kamal Singh. She deposed that all the signatures were made in her presence. She stated that she has not received any summons from the court to appear and have appeared at the request of Mrs. Madhu Bajaj. She stated that she was doing nursery training and was teaching in different schools. She stated that she does not remember in which school she was teaching in 1989. She stated that she used to work till about 02:00 P.M. or 03:00 P.M. She deposed that she was not a divorcee but was residing separately with her parents. She admitted that the house of the testator and her mother were opposite to each other. She stated that she does not remember the day and date when Sh. Roshan Lal Baja signed the Will and further she does not remember the date of death of Mr. Roshan Lal Bajaj. She further stated that she does not remember the date of death of Mrs. Puspa Bajaj W/o Mr.Roshan Lal Bajaj. She deposed that at the time of Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 26 of 39 preparation of her evidence affidavit Ex. D3-5/DW2 X her friend Madhu and her daughter Sakshi or Sonali and one advocate were present. She deposed that she attended the wedding of all children of Mr. Roshan Lal Bajaj. She deposed that she does not remember the exact time but it was after lunch when her mother visited Bajaj's house for the alleged execution of the Will. She further deposed that the Will was read by Mr. Roshan Lal and her mother and then signed. She denied that the testator was bed ridden and paralysed on 25.05.1989. She further deposed that the testator used to walk slowly on or around 25.05.1989. She denied the suggestion that the testator was heavily sedated and not in his senses. She deposed that he was mentally alert and used to talk normally.
18. Now all the relevant pleadings and evidences brought on record by all the parties have already been discussed above. Now I shall proceed to determine the issues that were framed.
19. After conclusion of evidence, final arguments were heard. I have heard the arguments advanced by the parties and perused the material Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 27 of 39 available on record. My issuewise findings are as follows. After completion of pleadings, following issues were framed on 04.09.2012:
for the sake of convenience, issues no 1 to 4 are being decided together.
1. Whether the plaintiff is entitled to a preliminary decree for partition of the suit property bearing no. R-758, New Rajinder Nagar, New Delhi? OPP
2. Whether the plaintiff is entitled to a final decree for partition of the aforesaid suit property by metes and bounds? OPP
3. Whether the plaintiff is entitled to a decree of permanent injunction against the defendants with respect to the suit property?
OPP
4. Whether the Will dated 26.05.1989 is the last and final Will of late Sh. Roshan Lal Bajaj? OPD
20. The whole case of the plaintiff revolves around the fact whether the will exhibit DW 1/2 propounded by the defendants is genuine or forged. The whole case of the plaintiff is that the will exhibit DW 1/2 Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 28 of 39 is a forged and fabricated will and even if the court presumes or believes that the same is not a forged and fabricated document, then at best the said will cannot be relied upon being executed under suspicious circumstances. Plaintiff has challenged the will on various grounds. 1st of all, the plaintiff submits that the said will under challenge exhibit DW 1/ 2 is a forged and fabricated document propounded by the defendant to defeat the legitimate claims of the plaintiff. It is the case of the plaintiff that her father died intestate without executing or leaving behind any will. But the defendants claim that the will exhibit DW 1/ 2 dated 25 May 1989 is a genuine and valid document. Now the law relating to the will and the execution and proof in court is that the will has to be proved by attesting witnesses of the will as is contained in section 68 of the Indian evidence act. In the present case it is alleged by the defendants that the said will is attested by two witnesses namely Smt. Champa Talwar and Shri Kamal Singh. But as per the record, none of these alleged witnesses have been produced and examined by the defendants Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 29 of 39 to give evidence in terms of section 63 of the Indian succession act. In the absence of testimonies of these 2 attesting witnesses, the will cannot be said to have been proved by the defendants on the parameters of the Indian evidence act. Moreover, the defendants have produced two witnesses who are alleged to be legal heirs of Smt. Champa Talwar. Section 69 of the Indian evidence act says that where no attesting witnesses can be found,a will could be proved by proving the signatures of 1 of the attesting witnesses and that of the testator. But honourable Supreme Court of India in the case of Babu Singh and others versus Ram sahai (manu/SC/2456/2008) in para number 1314 and 16 has held that section 69 of the Indian evidence act would come into play when the attesting witness is either dead or out of jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Moreover, the fact of death of an attesting witness has to be specifically pleaded and proved before the court. Court cannot make any presumption regarding the death of an attesting witness. Honourable Chennai High Court in the matter of K Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 30 of 39 Jayarathnam versus K.G.Frederick has held the same. In the present case, the fact of death of either SMT Champa Talwar or Shri Kamal Singh has neither been pleaded Nor proved. Presuming that SMT Champa Talwar is dead, the defendant introduced the testimonies of persons claiming to be her children. Honourable Mumbai High Court's in the case of USHA Shrikant Rege versus Gauri Gajanan ( Manu/MH/1616/2014) in para number 26 has held that death of an attesting witness could only be proved by producing the death certificate. Summons were taken out for the service of Shri Kamal Singh on two dates. On both the occasions, report was received back that there is no person by this name. Honourable Mumbai High Court in the matter of Narayan Ganpat Bhosale versus Nalini Narayan Chavan has held that mere taking out of summons will not be enough to attract section 69 of the Indian evidence act unless all the methodology provided in the code of civil procedure is exhausted. Therefore in view of all the above mentioned, it can be said that the circumstances triggering section 69 of the Indian evidence act have Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 31 of 39 not been made out and therefore in the absence of production of the attesting witnesses, will exhibit DW-1/ 2 does not stand proved. Moreover the testimony of the witnesses produced and examined to prove the said will has to be discarded. Shri Vinay Talwar is not sure whether the signature on the impugned will belongs to his mother. Moreover, he did not testify anything regarding the signature of the testator. The other witness brought in to prove the said will i.e. Smt Neelam Mehndiratta identifies the signatures of the mother and that of the testator and claimed to be present at the time of execution of the alleged will, but her cross examination does not inspire confidence of the court as her memory fades selectively with regard to the subsequent flow of events on the alleged date of execution of the impugned will. Moreover there are thumb impressions on the alleged will but Smt. Neelam has not referred to any such thumb impressions on the alleged will. Moreover, Smt. Neelam Mehndiratta says that she knew the family of the testator for the last 60 years but in the following part of the cross examination, she pleads ignorance about Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 32 of 39 important dates and events of the family of the testator. Moreover, the fact that she was a close friend of defendant no. 3 raises doubt on her testimony as as she falls loosely in the category of interested witness suitably in place to favour defendant no. 3 who is one of the propounders of the alleged Will. It is also strange that Smt. Neelam Mehndiratta claims to know about the date of the execution of the Will but she does not remember the date of death of Sh. Rohan Lal Bajaj, the testator who died just two days after the execution of the alleged will. Therefore, her testimony also does not inspire confidence. Moreover, it is well settled law that mere registration of will itself is not sufficient to remove the circumstances of suspicion surrounding the execution of the will. Moreover, the fact that the existence of the will was kept silent from 1989 to 2010 for almost a period of 21 years also throws suspicion on the said will. More so, when the plaintiff has been ousted from the benefit of the alleged will without there being any proper and justifiable reason for the same. D1W1 Sh. Jagmohan Baja admitted having received the alleged Will in the year 1989 but Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 33 of 39 did not feel the need to share the same with the plaintiff and defendant no. 2 who are his own brother and sisters. This fact also appears to be unbelievable. Moreover, the alleged registered will was not filed with any of the legal authorities and the suit property still continues to be in the name of the testator and not mutated in the name of the defendant till the date of filing of the present case also appears to be very strange. Moreover, D1W1, Mr. Jagmohan Bajaj who is the brother of the plaintiff has admitted in his statement dated 17.04.2015 that he had sent an email dated 19.01.2010 to the plaintiff and in the said email, defendant no. 1 and D1W1 has acknowledged 1/4th share of the plaintiff in the suit property. Moreover, in para no. 1 of the alleged will, the testator states that he is suffering from paralysis but witness Mr. Deepak Bajaj in page one of his cross examination and witness Smt. Neelam Mehndiratta in reply to question no. 39 deny that the testator was suffering from paralysis. It is also relevant to point out that DW2 categorically stated that testator was unable to walk without the help of the servant. He further stated that the servants used to carry Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 34 of 39 his father to bathroom but Smt. Neelam Mehndiratta in her testimony deposed that the testator visited her house to invite her mother for attestation of the will. Witness Smt. Madhu Bajaj in her evidence affidavit deposed that the testator had difficulty in his legs at the time of execution of the will. Testator died within two days i.e. almost than 48 hours after the alleged execution of the will under challenge. Moreover, Will Ex. DW1/2 mentions the details of the scribe who also signed the same but none of the witness speak about his presence. Admittedly, the testator was incapable of walking and died within two days of execution of the will. Therefore, it becomes necessary to produce the scribe to indicate that the will contained the desire of the testator. It assumes all the more importance in view of the fact that one of the beneficiaries of the will was supposedly present at the time of its execution. Moreover, the defendants are confused about the date of the alleged execution of the will. In some places the date of the will has been mentioned as 25.05.1989 and in some other places the date of the will has been referred to as 26.05.1989. Even the court while Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 35 of 39 framing the issues has mentioned the date of the Will as 26.05.1989. Even this fact of the court framing the issues regarding the will dated 26.05.1989 has never been challenged by any of the defendants. It is on record that the so called will states that the testator Sh. Roshan Lal Bajaj was paralysed. Therefore, the testator executing this controversial will to the exclusion of the plaintiff only one or two days before his death in the condition of paralysis and decreased mobility becomes very suspicious and doubtful. Mental state of the testator was not sound him being paralysed. He was not in a fit state of mind to execute the alleged will. He was under a heavy medication and none of the defendants has produced any medical certificate to prove the mental state of the testator at the time of execution of the so called will. Even if for the sake of arguments, it is believed that the will was infact executed by the testator, he could not have been in a sound state of mind to execute the said will. Admittedly, one of the beneficiaries of the said will Mr. Rupak Bajaj, deceased husband of the defendant no. 3 and father of the defendant no. 4 and 5 was under a heavy debt Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 36 of 39 as he had obtained a loan from the bank. This factum of heavy loan upon the head of late Sh. Rupak Bajaj and the execution of this alleged will under such suspicious circumstances to the exclusion of the plaintiff are very suspicious circumstances. Therefore, in view of my above mentioned discussion, this court has come to the conclusion that defendants who are propounders of the alleged will Ex. DW1/2 have not proved the will on the preponderance of probabilities to the satisfaction of the court, that the alleged will was infact executed by the supposed testator late Sh. Roshan Lal Bajaj. There are many suspicious circumstances surrounding the alleged will. The defendants have not been able to prove the will as per the law prevalent and in view of Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act. None of the attesting witness have been examined to prove the authenticity of the will. There is no reasonable and satisfactory explanation as to why the two attesting witnesses were not produced and examined. There is no record of the death of the alleged witnesses and sufficient efforts have not been exhausted by Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 37 of 39 the defendants to procure the production of the attesting witnesses thereby failing the criteria of the Section 68 of the Indian Evidence Act and that of Section 69 of the Indian Evidence Act. Therefore, in opinion of the court, the alleged will Ex. DW1/2 cannot be relied upon as authentic and genuine and has o be discarded. In view of the discussions of the court that the will could not be proved by the defendants and has to be discarded by the court, plaintiff becomes entitled to 1/4th share in the suit property and is entitled to a preliminary decree for the same. In view of this fact, plaintiff is also entitled to permanent injunction against all the defendants with respect to the suit property till final adjudication of the rights and claim of the plaintiff to the exclusion of the plaintiff.
ISSUE NO. 5 : Whether the suit has not been properly valued and proper court fees has not been paid? OPD
21. Onus to prove this issue was upon the defendants. Defendants have not brought any evidence to prove both these issues. Therefore, this issue is decided against the defendants and in favour of the Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 38 of 39 plaintiff.
ISSUE No. 6 : Whether the suit is barred by limitation? OPD
22. In the opinion of the court, the suit is not barred by limitation. This is a suit for partition. The rights of the plaintiff in the suit property become crystalised after the death of her mother and there is no time period for asking for partition as laid down in the Indian Limitation Act and therefore, this issue is also decided against the defendants.
ISSUE NO. 7. : To What relief, if any, is the plaintiff entitled?
23. In vie of my above mentioned discussion in issue nos. 1 to 6, plaintiff is entitled to 1/4th share in the suit property. Preliminary decree sheet be prepared accordingly.
Digitally signed
SUNIL by SUNIL
BENIWAL
BENIWAL Date: 2019.12.21
16:50:15 +0530
Announced in the open Court on
20th day of December, 2019 (SUNIL BENIWAL)
ADJ-02, Central,THC/Delhi
Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 39 of 39