Delhi District Court
R.D.Vohra vs Dalbir Singh Vohra on 5 December, 2024
IN THE COURT OF DISTRICT JUDGE -04,
(PRESIDED OVER BY: ANIL CHANDHEL)
WEST DISTRICT, THC, DELHI
CNR No. DLWT01-000002-1992
Civil DJ No.609146/2016
&
DLWT01-010358-2024
Counter-Claim No.52/2024
R.D. Vohra
S/o Late Avtar Singh Vohra
R/o 263/5, Near Dandekar Bridge,
Parvati Poona (Maharashtra)
& R/o 5-C/2,
New Rohtak Road, New Delhi. ...Plaintiff.
Versus
1 Dalbir Singh Vohra
S/o Late Avtar Singh Vohra,
R/o 5-C/2, New Rohtak Road, Delhi.
2. Jagdeep Singh Vohra
S/o Late Avtar Singh Vohra,
R/o 5-C/2, New Rohtak Road, Delhi.
3. Jag Mohan Singh Vohra
S/o Late Avtar Singh Vohra,
R/o 5-C/2, New Rohtak Road, Delhi
4. Harcharan Kaur
W/o Late Avtar Singh Vohra,
R/o 5-C/2, New Rohtak Road, Delhi.
5. Manmohan Kaur
D/o Late Avtar Singh Vohra,
R/o 5-C/2, Rohtak Road (New) Delhi.
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh
Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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6. Harmeet Kaur @ Bhuvnesh Kaur
W/o K.S. Sodhi
D/o Late Avtar Singh Vohra
Darien USA IL- 60559 ...Defendants
SUIT FOR DECLARATION AND
PERMANENT INJUNCTION.
&
COUNTER-CLAIM ON BEHALF OF THE
DEFENDANT NO.1 & 2 FOR
DECLARATION.
AND
CNR No. DLWT01-000004-1996
Civil DJ No.607994/2016
&
DLWT01-010359-2024
Counter-claim No.53/2024
1. Manmohan Kaur
D/o Late Avtar Singh Vohra
R/o 5-C/2, New Rohtak Road,
New Delhi.
2. Harmeet Kaur Sodhi
Alias Bhunesh Karu Vohra
W/o K.S. Sodhi
D/o Late Avtar Singh Vohra
R/o 7821, Stratford PLC
Darien, U.S.A. - IL-68559 ...Plaintiff.
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh
Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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Versus
1 Dalbir Singh Vohra
S/o Shri Avatar Singh Vohra
R/o S-C/2, New Rohtak Road,
New Delhi
2. Jagdeep Singh Vohra
S/o Late Avtar Singh Vohra
R/o S-C/2, New Rohtak Road,
New Delhi
3. Jagmohan Singh Vohra
S/o Late Avtar Singh Vohra
R/o S-C/2, New Rohtak Road,
New Delhi.
4. R.D. Vohra
S/o Late Avtar Singh Vohra
R/o 263/5, Near Dandekar Bridge,
Parvati Poona (Maharashtra). ...Defendants
SUIT FOR PARTITION AND PERMANENT
INJUNCTION.
&
COUNTER-CLAIM ON BEHALF OF THE
DEFENDANT NO.1 & 2 FOR DECLARATION
& POSSESSION.
CIVIL SUIT NO. 609146/2016 INSTITUTED ON :14.07.1992
COUNTER-CLAIM NO. 52/2024 INSTITUTED ON :16.11.1994
CIVIL SUIT NO.607994/2016 INSTITUTED ON :08.07.1996
COUNTER-CLAIM NO. 53/2024 INSTITUTED ON :19.02.1997
JUDGMENT RESERVED ON :26.11.2024
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh
Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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JUDGMENT PRONOUNCED ON :05.12.2024
Counsels for the Parties:
1. Mr. Rajeev Chaudhary, Ld. Counsel for Plaintiff in Civ DJ No.
609146/2016 and for Defendant No. 4 in Civ DJ No.607994/2016
and for Counter-Respondent in Counter-Claim No.52/2024.
2. Mr. Varun Bedi, Ld. Counsel for Defendant No.1 in Civ DJ No.
609146/2016 & Civ DJ No. 607994/2016 and for Counter
Claimant in Counter-Claim No.52/2024 and 53/2024.
3. Mr. Rahul Kumar & Ms. Rashika Ved, Ld. Counsels for Defendant
No.2 in 609146/2016 & Civ DJ No. 607994/2016 and for Counter
Claimant in Counter-Claim No.52/2024 and 53/2024.
4. Mr. H. S. Arora along with Mr. Rajinder Kumar, Ld. Counsels for
Defendant No.3 in Civ DJ No. 609146/2016 & Civ DJ No.
607994/2016.
5. Dr. Arun Kumar, Ld. Counsel for Plaintiff in Civ DJ No.
607994/2016 and for Defendant No. 6 in Civ DJ No. 609146/2016
and for Counter-Respondent in Counter-Claim No. 53/2024.
INDEX
1. Introduction 7-10
2. The pleadings and the facts, averred
by the parties, in Civ Suit No. 10-14
609146/2016 & Counter-claim No.
52/2024.
3. The pleadings and the facts, averred
by the parties, in Civ DJ No. 14-18
607994/2016 & Counter-claim No.
53/2024.
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh
Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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4. Issues. 18-21
5. Evidence of the parties: 22-36
i. The Plaintiff's Evidence in Civ DJ
22-23
No.607994/2016.
ii. The Defendant's Evidence in Civ
23-36
DJ No.607994/2016:
6. Submissions of the Parties. 36-39
7. Discussion and Evaluation of the
Will dated 30.03.1990, the Will dated 39-115
19.12.1991 and the Will dated
16.05.1994.
7.1. Scope of proof of a Will in terms of
Section 63 of Indian Succession Act, 39-46
1925.
7.2. The Will dated 19.12.1991: Scope,
interpretation and proof: 36-85
7.2.6.Whether the Defendant No.1
and 2 have to prove the factum
51-59
of loss of Original Will dated
19.12.1991 in order to prove
the same by secondary
evidence or such loss is implicit
in the order granting permission
to lead secondary evidence?
7.2.7.Whether the testimony of the
59-65
Defendant No.2 is to be relied
upon or discarded completely?
7.2.8.Whether the Defendant No.1
and 2 have proved that the
65-76
Original Will dated 19.12.1991
was lost?
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh
Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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7.2.9.Whether the Defendant No.
1and 2 have proved the Will 76 -81
dated 19.12.1991 by secondary
evidence?
7.2.10. Suspicious circumstances
surrounding the Will dated 81-85
19.12.1991.
7.3. The Will dated 30.03.1990: Sope,
Interpretation & Proof: 86-114
7.3.7. Whether any permission is
required to lead secondary 89 - 92
evidence?
7.3.8. Whether the conditions of
Section 65 of the Indian 92-95
Evidence Act, 1872 have been
fulfilled, on behalf of the
Plaintiffs, the Defendant No.3
and the Defendant No.4?
7.3.9. Whether the Will dated
30.03.1990 has been proved 96-105
by the PW-2 or by Secondary
Evidence?
7.3.10.The nature and interpretation
of the Will dated 30.03.1990.
105-112
7.3.11. Suspicious circumstances
surrounding the Will dated
30.03.1990. 112-114
7.3.12.Whether the Will dated 114
30.03.1990 is forged?
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh
Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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7.4. The proof of the Will dated 115
116.05.1994.
8. Conclusions on Issues in the partition
suit, i.e., Civ DJ No. 607994/2016, in 116-127
terms of discussion and reasons
stated in Para No. 7.
9. Conclusions on Issues in Civ DJ No 127-131
609146/2016 and Counter Claim No.
52/2024.
10. Final Decision: Relief. 131-132
JUDGMENT
1. Introduction:
1.1. Perhaps the soul of the testator also remains on trial along with the parties and is not set free, while the dispute of his estate, in terms of his Wills, is being adjudicated upon in the legal realm. Late Mr. Avatar Singh Vohra was termed to be an anti-feminist by one of the parties and an authoritarian like a dictator by another. The God only knows whether he was the One, as has been termed by his progeny, however the parties certainly agree that he was undisputed owner of the property bearing No. 5-C/2, New Rohtak Road, New Delhi - 110005, which is all that matters to the controversy, being subject matter of cases under consideration. For a period of more than last 31 years, the parties have been R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 7 of 132 Digitally signed by ANIL
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agitating their rights in the afore-mentioned suit property in terms of different Wills of late Avtar Singh Vohra and this Court has to decide as to which one of the aforesaid Wills is a good Will and which one suffers from ill-will.
1.2. In terms of this common judgment, the following two suits and two counter-claims, filed by the parties against each-
other, are being decided:
i. Civil DJ No. 609146/2016 and the Counter-
claim No. 52/2024.
ii. Civil DJ No. 607994/2016 and the Counter-
claim No.53/2024.
The parties to the above mentioned two suits and two counter-claims are legal heirs of late Avtar Singh Vohra, who was admitted owner of the property bearing No. 5-C/2, New Rohtak Road, New Delhi-110005, (hereinafter referred to as 'suit property').
1.3. The Civil DJ No.609146/2016 is the first suit, which has been filed by the son of Late Avtar Singh Vohra against the other legal heirs. The Plaintiff in this suit has sought the main prayer for declaration of nullity with regard to the Will dated 19.12.1991. The Plaintiff has also sought the prayer of injunction against the Defendant No.1 and 2. The Defendant No.1 and 2 have filed Counter-claim No.52/2024 in the aforesaid Civil DJ No. 609146/2016, whereby the R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 8 of 132 Digitally signed by ANIL
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aforesaid Defendants have sought declaration of nullity against the Will dated 30.03.1990.
1.4. Subsequently both the daughters of Late Avtar Singh Vohra filed Civ DJ No.607994/2016 for partition of the suit property, i.e., 5C/2, New Rohtak Road, New Delhi-110005. The Plaintiffs in this suit have relied upon the Will dated 30.03.1990, stated to be executed by Late Avtar Singh Vohra and upon a Will dated 16.05.1994 stated to be executed by wife of late Avtar Singh Vohra. The Defendant No.1 and 2 have filed Counter-claim No.53/2024 in the aforesaid Civil DJ No.607994/2016, whereby the aforesaid Defendants have sought declaration about the Will dated 19.12.1991 for the aforesaid Will to be declared as the last Will of Late Avtar Singh Vohra. The Defendant No.1 and 2 have also sought the prayer of possession against the Plaintiff No.1, i.e., Late Manmohan Kaur.
1.5. Thus, in terms of the abovementioned suits and Counter-
claims, the parties have been agitating their rights in the estate of late Avtar Singh Vohra, on the basis of different Wills propounded by them. The evidence in the Civil Suits and the Counter-claims have been led in a consolidated manner only in the Civil DJ No.607994/2016. The facts and evidence to be considered for adjudication of the suits & counter-claims are common and overlapping. Therefore, this Court deems it appropriate and expedient to decide R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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both the suits and the counter-claims by way of this one common judgment.
2. The pleadings and the facts, averred by the parties, in Civ Suit No. 609146/2016 & Counter-claim No. 52/2024.
2.1. The Civ DJ No. 609146/2016 was the first suit between the parties. The Plaintiff in this suit is one of the sons of Late Avtar Singh Vohra. The Defendant No. 1 to 3 are the other three sons of Late Avtar Singh Vohra. The Defendant No. 4 was the wife of Late Avtar Singh Vohra. The Defendant No. 5 and 6 are daughters of late Avtar Singh Vohra. The Plaintiff has filed this suit for the prayers of declaration for declaring the Will dated 19.12.1991 as null and void. The Plaintiff has stated that the Will dated 19.12.1991 has been forged and fabricated by the Defendant No.1 and 2, subsequent to the death of late Avtar Singh Vohra. The Plaintiff has also sought a prayer of permanent injunction for restraining the Defendant No.1 and 2 from creating any third-party rights in the suit property, i.e., the property No.5-C/2, New Rohtak Road, New Delhi -110005 or from interfering with the possession of the Plaintiff in the same.
2.2. It is the case of Plaintiff that the suit property, i.e., 5-C/2, New Rohtak Road, New Delhi-110005, was owned by late Avtar Singh Vohra and the Plaintiff has inherited the same along with the wife and other children of late Avtar Singh R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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Vohra. It is stated that late Avtar Singh Vohra executed his last and final Will dated 30.03.1990, which was discovered in the search subsequent to the death of late Avtar Singh Vohra. It is stated that the parties to the suit have also acknowledged and accepted the Will dated 30.03.1990, however subsequently, the Defendant No.1 and 2 dishonestly have set up a forged and fabricated Will dated 19.12.1991. The Plaintiff has accordingly sought declaration of nullity against the Will dated 19.12.1991. The Plaintiff has also stated that he is in possession of a part of the suit property and the Defendant No.1 and 2 are trying to interfere with his possession and therefore, they be restrained from inferring with his possession or from creating any third-party rights in the suit property.
2.3. The Defendant No.1 and 2 have filed a joint written statement/Counter-claim, whereby they have disputed the Will dated 30.03.1990 and have propounded a Will dated 19.12.1991. The Defendant No.1 and 2 have stated that the Will dated 19.12.1991 is the last and final Will of Late Avtar Singh Vohra. It is stated that the Will dated 19.12.1991 was prepared by Late Avtar Singh Vohra, after he himself distributed the rooms in the suit property in September, 1991. It is stated that the Plaintiff is staying away at Pune and is not in possession of the suit property in any manner and therefore, the suit for simpliciter declaration and injunction is not maintainable. It is stated R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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that the Plaintiff did not share good family relations with the late father as he had cut his hair against the wishes of the late father and therefore, the late father never intended to give him anything. It is stated that the Will dated 19.12.1991 was found in May, 1992 in the search carried out after the death of late Avtar Singh Vohra. It is stated that no original Will dated 30.03.1990 was ever found in any search. It is stated that a carbon copy of Will dated 30.03.1990 and the document dated 05.11.1991 were found in the first search and thereafter, in October, 1992, only second page of the Will dated 30.03.1990 was found. The Defendant No.1 and 2 have also raised a counter-claim in the written statement, i.e., the Counter-Claim No.52 of 2024, whereby the declaration of nullity with regard to the Will dated 30.03.1990 has been sought. The Defendant No.1 and 2 have also sought a declaration of validity of the Will dated 19.12.1991 in the Counter-claim.
2.4. The Defendant No.3 has filed a separate written statement.
The Defendant No.3 has supported the Will dated 30.03.1990 and challenged the Will dated 19.12.1991. It is stated in the written statement of the Defendant No.3 that in the search after the death of Late Avtar Singh Vohra, two Wills, i.e., one Will dated 29/30.07.1988 and another dated 30.03.1990 were found. It is stated that the Will dated 29/30.07.1988 was a handwritten Will by late Avtar Singh Vohra. It is stated that in terms of Will dated 30.03.1990, R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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the suit property has devolved only upon the Defendant No.3, whereas the interest of the Plaintiff is not to be ignored. It is stated that except the Defendant No.3 and the Plaintiff, the other legal heirs of late Avtar Singh Vohra did not have any right, interest or share in the suit property, in terms of the Will dated 30.03.1990.
2.5. The Defendant No.4, i.e., the wife of late Avtar Singh Vohra had filed a separate written statement and had substantively supported the case of the Plaintiff. It was stated by her that the title deeds of the suit property, alongwith the Will dated 29/30.07.1988 and the Will dated 30.03.1990 were in the custody of the Defendant No.2.
2.6. The Defendant No.1, 2, 5 and 6 have earlier filed a joint written statement alongwith Counter-claim, however subsequently the Defendant No.5 and 6 have filed an application for amendment of the written statement. It is stated by the Defendant No.5 and 6 that the joint written statement-cum-counter-claim was not filed by the Defendant No.2 in accordance with their instructions and does not contain the correct facts. It is stated by the Defendant No.5 and 6 that the signatures of the Defendant No.5 and 6 were procured on account of misrepresentation of facts and by playing a fraud upon them. In terms of an order dated 30.03.2010, this Court has permitted that the Defendant No.5 and 6 to file a separate written statement, R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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which they have accordingly filed. Therefore, the earlier written statement, along with the counter-claim, have been treated and prosecuted only on behalf of the Defendant No.1 and 2. In their separate brief written statement, the Defendant No. 5 and 6 have relied upon the Will dated 30.03.1991 and have disputed the Will dated 19.12.1991.
2.7. The Plaintiff has filed the replication-cum-written statement to the written statement-cum-counter-claim of the Defendant No.1 and 2, whereby the Plaintiff has disputed the Will dated 19.12.1991 and reiterated the Will dated 30.03.1990. The Plaintiff has also filed replications to the written statement of the remaining Defendants. The Plaintiff has reiterated the contentions of the plaint in the aforesaid replications.
3. The pleadings and the facts, averred by the parties, in Civ DJ No. 607994/2016 & Counter-claim No. 53/2024 :
3.1. The Civ DJ No.607994/2016 has been filed by both the daughters of late Avtar Singh Vohra for partition of the suit property, i.e., 5-C/2, New Rohtak Road, New Delhi-110005. The wife of late Avtar Singh had passed away prior to filing of the suit for partition and therefore, the Defendants in this suit are the sons of the Late Avtar Singh Vohra and the brothers of the Plaintiffs. The Plaintiffs in this suit are Defendant No.5 and 6 in the Civil DJ R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 14 of 132 Digitally signed by ANIL
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No.609146/2016. The Defendant No.4 in the present suit is the Plaintiff in the Civil DJ No.609146/2016, whereas the Defendant No.1 to 3 are also the Defendant No.1 to 3 in the Civil DJ No.609146/2016.
3.2. The Plaintiffs in this suit have sought the partition of the suit property in accordance with the Wills dated 30.03.1990 and dated 16.05.1994. The Plaintiffs have stated that late Avtar Singh Vohra was owner of the suit property and has executed his last Will dated 30.03.1990, whereby the suit property is to be shared only by the Plaintiffs, Defendant No.3 and mother of the Plaintiffs. It is stated that in terms of the aforementioned Wills, the two Plaintiffs, the Defendant No.3 and late mother of the Plaintiffs have acquired 25% share each in the suit property. It is further stated that the mother of the Plaintiffs, i.e., late Harcharan Kaur Vohra, executed her last and final Will dated 16.05.1994 in favour of the Plaintiff No.1 and in terms of the aforesaid Will, the Plaintiff No.1 has become owner of the share of her late mother in the suit property and consequentially the share of the Plaintiff No.1 in the suit property is 50%, whereas the Defendant No. 3 and the Plaintiff No.2 have become owners in 25% share each. It is stated that the remaining Defendants do not have any share in the suit property. It is further stated that the Defendant No.1 and 2 have propounded a forged and fabricated Will dated 19.12.1991, however the Will dated 30.03.1991 is the R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 15 of 132
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2024.12.05 18:26:05 last and final Will of late Avtar Singh Vohra and the Plaintiffs are entitled to the partition of the suit property in accordance with the Will dated 30.03.1990 and the Will dated 16.05.1994.
3.3. The Defendant No.1 and 2 have filed a joint written statement in the suit. The Defendant Nos. 1 and 2 have refuted the averments in the plaint as well as the case of the Plaintiff. The Defendant No.1 and 2 have disputed the Will dated 30.03.1990 and have propounded a Will dated 19.12.1991, stated to be executed by late Avtar Singh Vohra. It is submitted by the Defendant No.1 and 2 that the aforesaid Will dated 19.12.1991 has already acted upon and the suit property stood divided in terms of the same. It is further stated that the parties are in their respective possession of the suit property in terms of the aforesaid Will dated 19.12.1991. It is further stated that the wife of late Avtar Singh Vohra, i.e., late Harcharan Kaur, also executed a Will dated 21.07.1992, which is a registered Will and the Will dated 16.05.1994 is an incomplete document. The written statement of the Defendant No.1 and 2 also contains the counter-claim, i.e., the Counter-Claim No.53 of 2024. In terms of the Counter-claim, the Defendant No.1 and 2 have sought declaration for declaring the Will dated 19.12.1991 as last and final Will of late Avtar Singh Vohra. The Defendant No.1 and 2 have also sought declaration about disentitlement of the Plaintiffs from the R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 16 of 132 Digitally signed by ANIL
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estate of the late father as they have challenged the aforesaid Will dated 19.12.1991. A further prayer for possession has been made for seeking possession of the part of the suit property in possession of the Plaintiff No.1.
3.4. The Defendant No. 3 has admitted the Will dated 30.03.1990 and has disputed the Will dated 19.12.1991. The Defendant No.3 has also disputed the interpretation of the Will dated 30.03.1990, as stated in the plaint. It is stated by the Defendant No.3 in his written statement that the Plaintiffs or the mother of the parties were not entitled to any share in terms of Will dated 30.03.1990 as late Avtar Singh Vohra was anti-feminist, who did not want to give his properties to the female members of the family, i.e., his daughters and his wife. It is stated by the Defendant No.3 that he is entitled to the majority share in the suit property, in terms of the Will dated 30.03.1990 and the Defendant No.4 is only not to be ignored. The Defendant No. 3 has disputed the Will dated 16.05.1994. It is further stated that the mother did not have right in the suit property and therefore could not have executed any Will with regard to the same.
3.5. The Defendant No. 4 has also filed his written statement and has relied upon the Will dated 30.03.1990. The Defendant No.4 has disputed the Will dated 19.12.1991. The Defendant No.4 has also disputed the interpretation of the Will dated R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 17 of 132
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2024.12.05 18:26:16 +0530 30.03.1990, as stated in the plaint. The Defendant No. 4 has stated that he is entitled to an equal share in the suit property along with the two Plaintiffs and the Defendant No.3, in terms of the Will dated 30.03.1990. It is stated by the Defendant No.4 that the mother of the parties died intestate and has not executed any Will dated 16.05.1994. It is stated by the Defendant No.4 that the Defendant No.1 and 2 did not have any share in the suit property, in terms of Will dated 30.03.1990.
3.6. The Plaintiffs have filed replication-cum-written statement to the written statement-cum-counter claim of the Defendants No.1 and 2 and denied the averments of the same and reiterated the averments of the plaint. The Plaintiffs have also filed the replications to the written statement of the Defendant No. 3 and 4 and reiterated the averments of the plaint.
4. Issues.
4.1. On the basis of the pleadings of the parties, the following issues were framed in the Civ DJ No.609146/2016 and the Counter-claim No.52/2024 on 16.11.2013:
i. Whether the Plaintiff is entitled for the relief of declaration to the effect that document dated 19.12.1991 is a forged and fabricated document?
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
Page No. 18 of 132 Digitally signed by ANIL CHANDHEL ANIL Date: CHANDHEL 2024.12.05 18:26:25 +0530 OPP. ii. Whether the Plaintiff is entitled for the relief of
permanent injunction, as prayed for? OPP iii. Whether the suit of the Plaintiff is barred u/S 34 of the Specific Relief Act, as the Plaintiff has not approached the Court with clean hands?
OPD-1& 2.
iv. Whether the Will dated 30.03.1990 is a forged and fabricated document? OPD-1 & 2.
v. Whether the suit is bad for mis-joinder of parties?
OPD-1 & 2.
vi. Whether the defendants/ counter-claimants are entitled for the relief of declaration as prayed for? OPD-1 & 2.
vii. Relief.
4.2. In the Civ DJ No.607994/2016 and Counter Claim No. 53/2024, the Issues were firstly framed on 19.05.1997 and thereafter amended on 07.09.1999, however subsequently the Issues were finally re-casted on 23.12.2000. The Issues thus framed on 23.12.2000 are the Issues, upon which the parties have led their evidence in the suit and the aforesaid R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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Issues, as framed on 23.12.2000, are being reproduced hereinbelow:
i. To what share, if any, are the parties entitled in house No.5-C/2, New Rohtak Road, New Delhi?
ii. Whether Shri Avtar Singh Vohra executed a Will dated 30.03.1990? If so, its effect?
iii. Whether Shri Avtar Singh Vohra executed a Will on 19.12.1991? If so, its effect?
iv. If issue No.3 is answered in affirmative, whether the Will dated 19.12.1991 was acted upon by the heir of Avtar Singh Vohra? If so, its effect.
v. Whether Smt. Harcharan Kaur executed a Will on 16.05.1994? If so, its effect?
vi. If issue No.5 is answered in affirmative, whether the Will dated 16.05.1994 of Smt. Harcharan Kaur can be acted upon in view of the WS filed by her in suit No.401/93?
vii. Whether the suit as laid is maintainable?
viii. Whether the suit is bad for partial partition?
ix. Whether the plaint has been signed and verified by a competent and duly authorized person on R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
Page No. 20 of 132 Digitally signed by ANIL CHANDHEL ANIL Date: CHANDHEL 2024.12.05 18:26:35 +0530 behalf of Plaintiff No.2? x. Whether the suit has been properly valued for the
purpose of court fee and jurisdiction?
xi. Relief.
5. Evidence of the parties:
5.1. In terms of an order dated 06.04.2017, passed in Civ DJ No. 607994/2016, this Court has observed that the parties are claiming their rights in the suits, i.e., Civil DJ No. 607994/2016 and Civ DJ No. 609146/2016, as per the different Wills of Late Avtar Singh Vohra. It is noticed that all the Issues pertaining to the controversy between the parties of both the suits have already been framed vide Order dated 23.12.2000, and only a specific order of consolidation of the suits has not been passed. Accordingly, this Court directed that the parties shall lead consolidated evidence in both the suits on the Issues framed in Civ DJ No.607994/2016 on 23.12.2000 and the aforesaid case will be treated as the main case. The aforesaid Order is also squarely applicable to the counter-claims as well. In-fact the Issues framed in the present suit widely cover the scope of both the suits as well as of the counter-claims. The parties to the suits and counter-claims have led their evidence only in the Civ DJ No.607994/2016.
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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5.2. The Plaintiff's Evidence in Civ DJ No.607994/2016:
5.2.1. The Plaintiff has led her evidence and has examined two witnesses in support of her case. The Plaintiff No.1 has examined herself as PW-1. The PW-1 has reiterated the contentions of the plaint in her examination-in-chief. She has exhibited and relied upon the following documents in her examination-in-chief:
i. Ex.PW1/1: The GPA, executed by the Plaintiff No.2 in favour of Plaintiff No.1.
ii. Ex.PW1/2: Second Page of original Will dated 30.03.1990.
iii. Ex.PW1/3: The original site plan.
iv. Mark-A: Photocopy of the application under Order 22 Rule 3 read with Section 151 of CPC in RFA No.290/93 along with copy of the order. v. Mark-B (colly): The application for self security, i.e., police complaint.
vi. Ex.PW1/6: Bank Slip.
vii. Ex.PW1/7: Original ration card.
viii. Mark-C: Copy of postal receipts.
The PW-1 was extensively cross-examined by Ld. Counsels for the Defendants and was discharged upon conclusion of her cross-examination.
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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5.2.2. The Plaintiffs have examined the attesting witness of the Will dated 30.03.1990, namely Mr. Paramjeet Singh, as the PW-2. The PW-2 has relied upon the Exhibit PW-1/2 in his examination in chief. The PW-2 was confronted with two documents by the Defendant No.3 in the cross-examination, i.e., Exhibit PW1/D-3/P-7 (copy of Will dated 30.03.1990) and Exhibit PW1/d-3/P-6 (copy of Will dated 30.07.1988). The PW-2 was cross-examined by Ld. Counsels for the Defendants and was discharged upon conclusion of his cross-examination.
5.3. The Defendant's Evidence in Civ DJ No.607994/2016:
5.3.1. The Defendant No.1 has led his evidence and has examined five witnesses in the matter. The Defendant No.1 has himself appeared as D1W1 and has reiterated the contentions of the written statement and Counter-Claim in his examination in chief. The D1W1 has relied upon the following documents in his examination-in-chief:
i. Exhibit D1W1/A: Will dated 19.12.1991. ii. Exhibit D1W1/B: Certified copy of the written statement.
iii. Exhibit D1W1/C: The letter dated 13.08.1992. iv. Exhibit D1W1/D: Reply dated 14.08.1992 v. Exhibit D1W1/E1 to D1W1/E4: Four Deposit slips (Already exhibited as Exhibit PW-1/D1/A during the R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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cross-examination of the PW-1.).
vi. Marked D1W1/F: Site plan (Already exhibited as
Exhibit PW2/D2/D during the cross-examination of the PW-2.).
vii. Exhibit D1W1/G & H: Draft copies of Will dated 01.10.1991 and Will dated 05.11.1991. viii. Exhibit DW1/I: Second Page of original Will dated 30.03.1990 (Already exhibited as Exhibit PW1/2 during the examination-in-chief of the PW-1.).
ix. Exhibit D1W1/J: Photocopy of Special Power of Attorney of Ms. Manmohan Kaur and Smt. Bhuvnesh Kaur.
x. Exhibit D1W1/L: The Will dated 16.05.1994.
The D1W1 was cross-examined by Ld. Counsel for the Plaintiff. He has also been cross-examined by Ld. Counsels for the Defendant No.3 and the Defendant No. 4. The D1W1 was discharged upon conclusion of his cross-examination.
5.3.2. The Defendant No.1 has examined Mr. Gurmeet Singh as the DW-2. The DW-2 is son of late Harbhajan Singh, one of the attesting witnesses to the Will dated 19.12.1991. The DW-2 has stated in his examination in chief that Will dated 19.12.1991 was signed by late Avtar Singh Vohra and by his late father, namely late Harbhajan Singh, in his presence. He has further stated that Surinder Kumar, Advocate, Notary Public, has also signed the Will dated 19.12.1991 in his R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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presence and affixed the notarial stamps and notary seal on the aforesaid Will in his presence. In the entire examination in chief, the witness has not relied upon, referred to or identified any specific document and thus the DW-2 does not identify the copy of the Will dated 19.12.1991 in his examination chief. The DW-2 was cross-examined by Ld. Counsel for the Plaintiff and by Ld. Counsel for Defendant No.3. During the cross-examination, the Defendant No.2 made a request that he be allowed to show the Will dated 19.12.1991 to the witness and the aforesaid request was objected to by the Ld. Counsels for the Plaintiff and for the Defendant No.3. However, this Court permitted the same and the objections of the Plaintiff and the Defendant No.3 were directed to be decided at the time of final arguments. The DW-2 was thus confronted by the Defendant No.2 with the copy of the Will dated 19.12.1991, which is Mark-D2. The DW-2 has identified the signatures of late Avtar Singh Vohra, late Harbhajan Singh and Surinder Kumar on Mark-D2. Thereafter the DW-2 was again cross-examined by the Defendant No.3 and was discharged upon conclusion of his cross-examination.
5.3.3. The Defendant No.1 has examined Mr. Gulabinder Singh as D1W2. The D1W2 is son-in-law of the Defendant No.1. The D1W2 has not relied upon any document in his examination in chief. The aforesaid witness has stated in the examination in chief that he was informed in October, 1991 by late Avtar R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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Singh Vohra about the partition of the suit property by him. The witness has also stated that the Will dated 19.12.1991 was implemented by the children of late Avtar Singh Vohra. The D1W2 was cross-examined by Ld. Counsel for the Plaintiff. He has also been cross-examined by Ld. Counsels for the Defendant No.3 and the Defendant No. 4. The D1W2 was discharged upon conclusion of his cross-examination.
5.3.4. The Defendant No.1 has examined Mr. Taranjeet Singh as D1W3. The D1W3 is a friend and classmate of the Defendant No.1's son. He has also stated in his examination in chief that late Avtar Singh Vohra told him in October, 1991 that he had partitioned the suit property. He has also stated that the parties are in possession of the suit property in terms of the aforesaid partition. The D1W3 has not relied upon any document in his examination in chief. The D1W3 was cross-examined by Ld. Counsel for the Plaintiff. He has also been cross-examined by Ld. Counsels for the Defendant No.3 and the Defendant No. 4. The D1W3 was discharged upon conclusion of his cross-examination.
5.3.5. The Defendant No. 1 has examined Mr. Kuldeep Singh as D1W4 and he is stated to be an attesting witness to the Will dated 19.12.1991. The D1W4 has stated in the examination in chief that on 19.12.1991 at 2:00 to 2:30 pm, late Avtar Singh Vohra came to the State Bank of India, New Rohtak R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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Road and told him that he has made his last Will, which was already signed by late Avtar Singh Vohra and two witnesses namely Harbhajan Singh and Surinder Kumar, Notary Public. It is stated in the examination in chief that Notary Public had advised late Avtar Singh Vohra to get the Will witnessed by a third witness. The D1W4 has relied upon the document, i.e., photocopy of the Will dated 19.12.1991. The D1W4 has identified his signatures on the aforesaid document. The D1W4 was cross-examined by Ld. Counsel for the Plaintiff and Ld. Counsel for the Defendant No.3 and was discharged upon conclusion of his cross-examination.
5.3.6. The Defendant No.1 has also filed the affidavit of examination in chief of Mr. Dharampal. It is stated in the aforesaid affidavit that Surinder Kumar, Advocate, Notary Public made a Will of Avtar Singh Vohra and he had typed the aforesaid Will on 19.12.1991 at about 11:00am. It is further stated that after typing of the Will, late Avtar Singh Vohra, late Harbhajan Singh and Surinder Kumar signed the aforesaid Will in his presence.
5.3.7. The Defendant No.2 has also led his evidence and examined three witnesses in support of his case. The Defendant No.2 has himself appeared as the D2W1. The Defendant No. 2 has filed his affidavit of evidence and has relied upon following documents in his examination-in-chief:
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
Page No. 27 of 132 Digitally signed by ANIL ANIL CHANDHEL CHANDHEL Date: 2024.12.05 18:27:10 +0530 i. Exhibit D2W1/1: Special Power of Attorney dated 27.10.1992. ii. Exhibit D2W1/2: Draft Will dated 02.10.1991. iii. Exhibit D2W1/3: Draft Will dated 05.11.1991. iv. Exhibit D2W1/4:Photocopy of Will dated 19.12.1991. v. Exhibit D2W1/5: Documents relating to Medical &
Death Expenses incurred by the Defendant No.2. vi. Exhibit D2W1/6: Documents relating to medical and death expenses by Smt. Harcharan Kaur incurred by the Defendant No.2 vii. Exhibit D2W1/7:Documents in the form of slip along with the envelope showing possession of Defendant No.2 in Shop N. 1468, Chandni Chowk, Delhi mentioned as Exhibit D1W2/JI to J in the file of R. D. Vohra vs. Dalbir Singh.
viii. Exhibit D2W1/8:Photocopy of Eviction Order by Ld. ARC, Delhi.
ix. Mark D2W1/9A and Mark D2W1/9B: Photocopy of Orders dated 20.07.1994 of the Hon'ble High Court in CM (M) No. 262/2002 and another Order dated 22.05.2006 passed in CM ( M) No. 132/2002.
The D2W1 was cross-examined by Ld. Counsel for the Plaintiff. The D2W1 was cross-examined by the Plaintiff. Thereafter, the D2W1 was being cross-examined by Ld. Counsel for the Defendant No.3, however, the D2W1 R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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unfortunately passed away, before conclusion of his cross- examination on behalf of the Defendant No.3 and Defendant No.4.
5.3.8. The Defendant No.2 has also examined the official witness from the office of Zonal Revenue Office, Delhi Jal Board, Central-II, Tibia Karol Bagh, Delhi-110005 as the D2W2. The D2W2 has produced the photocopy of the relevant page dated 20.05.1998 from Allotment Register, in the name of Mr. Jagmohan Singh Vohra, R/o 5C/2, New Rohtak Road, Delhi, regarding allotment of water connection No.28184, which was allotted on 20.05.1998. The aforesaid document is Exhibit-D2W2/1. The D2W2 was not cross-examined by Ld. Counsels for the Plaintiff, for the Defendant No.3 and for the Defendant No.4, despite opportunity being given to them and was accordingly discharged.
5.3.9. The Defendant No.2 has examined the official witness from the office of Trade and Taxes Department, Vyapar Bhawan, New Delhi as the D2W3. The D2W3 has produced the following documents in his examination-in-chief:
i. Exhibit D2W3/A (running into five pages) (colly):The copy of application accompanied by affidavit of Sh. Jagmohan Singh Vohra regarding registration of Shop No. 1468, Delhi-110006.
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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ii. Exhibit D2W3/B (two pages) (OSR): The copy of
registration certificate.
The D2W3 was not cross-examined by Ld. Counsel for the Plaintiff and the Ld. Counsel for the Defendant No.4. The D2W3 was cross-examined by Ld. Counsel for the Defendant No.3. The D2W3 was confronted with the following documents by the Ld. Counsel for the Defendant No.3 in the cross-examination:
i. Exhibit D2W3/D3-1 (three pages) (OSR): Details of capital invested by Sh. Jagmohan Singh up to 15.09.1990.
ii. Ex D2W3/D3-2 (OSR): Sales of M/s President Opticals from 04.10.982 to 31.03.1990.
iii. Exhibit D2W3/D3-3 (OSR): List of items purchased by President Opticals upto 17.09.1990.
iv. Exhibit D2W3/D3-4 (OSR): Nature, amount, source of investments of capital.
v. Exhibit D2W3/D3-5 (OSR): Local and Central item of manufacturing and re-sale.
vi. Exhibit D2W3/D3-6 (OSR): Local and Central items for packaging.
vii. The Photocopy of Sale Deed dated 07.06.1978.
The D2W3 was discharged upon conclusion of his cross- examination.
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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5.3.10. The Defendant No. 3 has led his evidence and has examined only one witness, namely Mr. Bhavneet Singh, as D3W1. The Defendant No.3 has passed away during the pendency of the present cases and the D3D1 is son of the Defendant No.3. The D3W1 has relied upon the following documents in his examination in chief:
i. Exhibit D3W1/1: The original dairy entry dated 22.02.1990 (Already exhibited as Exhibit D2W1/D3-
10.).
ii. Exhibit D3W1/2: The original letter dated 09.08.1992 written by Sh. Dalbir Singh.
iii. Exhibit D3W1/3:The original envelope in which the above letter dated 09.08.1992 was sent.
iv. Exhibit D3W1/4: The certified copy of the letter dated 01.10.1992 sent by Sh. Jagdeep Singh (Already exhibited as Exhibit D1W1/D3-A.).
v. Exhibit D3W1/5:The certified copy of the envelope sent by Sh. Jagdeep Singh. The same has already been exhibited as Exhibit D1W2/D3-3.
vi. Exhibit D3W1/6: The certified copy of the written statement of Smt. Harcharan Kaur in the case titled as R.D. Vohra Vs Dalbir Singh Vohra & Ors (Already exhibited as Exhibit PW1/D4/1.).
vii. Exhibit D3W1/7:The original Pass Book of Sh. Avtar Singh Vohra regarding his bank account in State Bank R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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of India, New Rohtak Road, New Delhi.
viii. Exhibit D3W1/8 (Colly): The six photographs
(Already exhibited as Exhibit DW1/W2/D3-1, Exhibit D1W2/D3-2, Exhibit D1W1/D3-3, Exhibit D1W1/D- 3-D to Exhibit D1W1/D-3-F.).
ix. Exhibit D3W1/8:The seventh photograph. x. Exhibit D3W1/9:The certified copy of the Driving License of Sh. Avtar Singh (Already exhibited as Exhibit PW1/D3P3.).
xi. Exhibit D3W1/10: The certified copy of the hand written note of Smt. Harcharan Kaur (Already exhibited as Ex. PW1/D3P4.).
xii. Exhibit D3W1/11 (colly): The certified copy of the order of the Hon'ble High Court in RFA No. 290/81. xiii. Exhibit D3W1/12: The certified copy of judgment dated 12.10.2001 passed by the Court of Ld. ARCT, Delhi.
The D3W1 has been cross-examined on behalf of the Defendant No.1 and the Defendant No.2 and was discharged upon conclusion of his cross-examination.
5.3.11. The Defendant No.4 has led his evidence and has examined one witness in support of his case. The Defendant No.4 has himself appeared as D4W1 and has reiterated the contentions of the plaint in Civ DJ No.609146/2016 and written statement in Civ DJ No. 607994/2016 in his examination in R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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chief. The D4W1 has relied upon the following documents in his examination-in-chief:
i. Exhibit D4W1/1: Site Plan.
ii. Exhibit D4W1/2: The Will dated 30.03.1990
executed by late Sh. Avtar Singh Vohra ( Already exhibited as Exhibit PW-1/2 in the examination of PW-1.).
iii. Exhibit D4W1/3:The Driving License of late Sh.
Avtar Singh Vohra (Already exhibited as Exhibit D1W1/D4.).
iv. Exhibit D4W1/4:The Letter dated 12.06.1991. v. Exhibit D4W1/5:The Copy of Will dated 19.12.1991 executed by late Avtar Singh (Already exhibited as Exhibit D1W1/A.).
vi. Exhibit D4W1/6:The Order dated 07.08.1999. vii. Exhibit D4W1/7:The Agreement dated 04.07.1992 executed between Defendant No.4 and late mother Harcharan Kaur (Already exhibited as Exhibit D1W1/D4.).
viii. Exhibit-D4W1/8, Exhibit-D4W1/8A and Exhibit D4W1/8B: The passports of the Defendant No.4. ix. Mark D4-A: Copy of statement dated 13.10.1993 of Defendant No.2 recorded in Police Station D.B. Gupta Road.
x. Exhibit-D4W1/10: The admit card of Defendant No.4 (Already exhibited as Exhibit D1W1/D4K.).
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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xi. Exhibit D4W1/11: Certified copy of the plaint in Suit
No.416/1994 tilted as "Jagdeep Singh Vohra vs. Ripu Daman Vohra".
xii. Exhibit D4W1/12: Certified copy of the order dated 15.03.2001 in Suit No.416/1994 tilted as "Jagdeep Singh Vohra vs. Ripu Daman Vohra".
xiii. Mark-D4B: Copy of report dated 29.04.1994 of Local Commissioner, Sh. N. S. Negi, Advocate.
xiv. Exhibit D4W1/14: Order dated 14.07.1992 passed and placed in suit bearing Civ DJ No.609146/2016 tilted as 'R. D. Vohra vs. Dalbir Singh Vohra'. xv. Exhibit D4W1/15: Order dated 16.08.1996 passed and placed in suit bearing Civ DJ No.609146/2016 tilted as 'R. D. Vohra vs. Dalbir Singh Vohra'. xvi. Exhibit D4W1/16: Order dated 30.09.2013 passed and placed in suit bearing Civ DJ No.609146/2016 tilted as 'R. D. Vohra vs. Dalbir Singh Vohra'. xvii. Exhibit D4W1/17: Amended written statement filed by late Manmohan Kaur filed and placed in suit bearing Civ DJ No.609146/2016 tilted as 'R. D. Vohra vs. Dalbir Singh Vohra'.
xviii. Exhibit D4W1/18: Written statement filed by late Manmohan Kaur in placed in suit bearing Civ DJ No.609146/2016 tilted as 'R. D. Vohra vs. Dalbir Singh Vohra' (Already exhibited as Exhibit D1W1/D4D.).
xix. Exhibit D4W1/19: Three photographs along with R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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negatives (Already exhibited as Exhibit D1W1/D4J, Exhibit D1W1/D4K and Exhibit D1W1/D4JL.). xx. Exhibit D4W1/20: The document is not on record and the same is de-exhibited from the affidavit. xxi. Exhibit D4W1/21: Letter dated 19.08.1969 (Already been exhibited as Exhibit D1W1/D4B.).
xxii. Exhibit D4W1/22: Letter dated 23.12.1982 written by the Defendant No.2 to the Defendant No.4.
xxiii. Exhibit D4W1/23: Letter dated 17.08.1988 written by the Plaintiff No.1, Late Ms. Manmohan Kaur Vohra to the Defendant No.4 (Already exhibited as Exhibit D1W1/D4F.).
xxiv. Exhibit D4W1/24: Letter dated 16.08.1991 written by the Plaintiff No.1 to the Defendant No.4 (Already been exhibited as Exhibit D1W1/D4G.).
xxv. Exhibit D4W1/2: Letter dated 10.12.1991 written by late Avtar Singh Vohra to the Defendant No.4 (Already exhibited as Exhibit D1W1/D4E.).
xxvi. Exhibit D4W1/26: Letter dated 23.07.1993 written by the Plaintiff No.1 Manmohan Kaur to the Defendant No.4 (Already exhibited as Exhibit D1W1/D4H.). xxvii. Exhibit D4W1/27: Joint photographs of wife of the Defendant No.1, namely Kailsah Kaur, Late Avtar Singh Vohar, Harcharan Kaur Vohra, Bhagat Singh (Nana), Chanderlekha (wife of the Defendant No.4) and Defendant No.2 (Already exhibited as Exhibit D1W1/D4M.).
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
Page No. 35 of 132 Digitally signed by ANIL CHANDHEL ANIL Date: CHANDHEL 2024.12.05 18:27:51 +0530 xxviii. Exhibit D4W1/28: Letter dated 08.10.1993 written by
late Ms. Harcharan Kaur Vohra (mother) (Already exhibited as Exhibit D1W1/D4C.).
The D4W1 was cross-examined by Ld. Counsel for the Plaintiff and the Ld. Counsels for the Defendant No.1, 2 and 3 and was discharged upon conclusion of his cross- examination.
6. Submissions of the Parties.
6.1. After conclusion of the evidence, Ld. Counsels for the parties have addressed their arguments. Ld. Counsel for the Plaintiff in Civil DJ No.607994/2016 (for the Defendant No.6 in Civil DJ No. 609146/2016) has submitted that the Defendant No.1 and 2 have failed to prove the Will dated 19.12.1991 and the Plaintiff has proved the Will dated 30.03.1991 through the PW-2 and therefore, the suit property be partitioned in terms of the aforesaid Will.
6.2. Ld. Counsels for the Defendant No.1 and the Defendant No.2 have submitted that the Will dated 30.03.1990 has not been proved and the Plaintiff has also failed to prove the Will of the mother of parties. It is further submitted that the Will dated 30.03.1990 does not qualify to be termed as a Will on account being vague and in-definitive. It is submitted that the testimony of the PW-2 does not prove the attestation and execution of the Will dated 30.03.1990, in accordance with Section 63 of the Indian Evidence Act, 1872. It is submitted R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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that the Will dated 19.12.1991 has been proved to be the last Will of the late father of the parties, in terms of the secondary evidence permitted by this Court and led by the Defendant No.1 and 2 in the case. It is further submitted that the present suit has been filed only for one of the properties of the late father and therefore, is not maintainable for such partial partition. Ld. Counsel for the Defendant No. 1 has also submitted that the testimony of the Defendant No.2 can be relied upon, even though his cross-examination has not been concluded. He has relied upon the judgment passed by the Hon'ble High Court of Delhi in "Krishan Dayal Vs. Chandu Ram: ILR1969Delhi1090", in support of his aforementioned contention.
6.3. Ld. Counsel for the Defendant No. 3 has submitted that the Will dated 19.12.1991 is a forged and fabricated document. It is submitted that the Defendant No.1 and 2 have to establish the loss of the document, before the same is proved by secondary evidence. It is submitted that loss as alleged is completely incredulous and the plea of loss is liable to be disbelieved. It is submitted that the cross-examination of the Defendant No.2 has not been concluded on behalf of the Defendant No.3 and 4 and therefore, his testimony can-not be relied upon in any manner and should be completely discarded. Ld. Counsel for the Defendant No.3 has submitted that the Plaintiffs have not proved the mother of the Will and in terms of the Will dated 30.03.1990, the Plaintiffs are not R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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entitled to any share in the suit property. It is submitted that late Avatar Singh Vohra was anti-feminist and did not intend to bequeath anything to the Plaintiffs or his wife and therefore, the Will dated 30.03.1990 has to be accordingly construed in favour of the Defendant No.3 and the Defendant No.4. Ld. Counsel for the Defendant No.3 has relied upon the following judgments:
i. Babu Anand Bihari Lal Vs. Messrs, Dinshaw & Co:
AIR 1946 PC 24.
ii. Bobba Suramma Vs. Peddireddi Chandramma: AIR 1959AP568.
iii. Rakesh Mohindra Vs. Anita Bero & Ors.: 2015 AIR(SCW)6271.
6.4. Ld. Counsel for the Defendant No.4 in Civ DJ No.607994/2016 (for the Plaintiff in Civ DJ No.609146/2016) has supported the arguments, in so far as the challenge to the Will dated 19.12.1991 is concerned. Ld. Counsel has relied upon the Will dated 30.03.1990 as well as the proof of the same through the PW-2. Ld. Counsel for Defendant No.4 in Civ DJ No.607994/2016 (for the Plaintiff in Civ DJ No.609146/2016) has further submitted that the Defendant No.4 is entitled to an equal share in the suit property, along with the Plaintiff and the Defendant No.3. It is further submitted that the Civ DJ No.609146/2016 is maintainable and the objection of the Defendant No.1 and 2 about the possession not being sought is not sustainable. Ld. R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 38 of 132 Digitally signed
by ANIL ANIL CHANDHEL CHANDHEL Date: 2024.12.05 18:28:16 +0530 Counsel for the Defendant No.4 has further supported the Plaintiff in contending that there is no bar to seek partial partition and the facts of the case justify the same. In support of his aforementioned contention, he has relied upon the judgment passed by the Hon'ble High Court of Delhi in, "Ajit Singh Vs. Adarsh Kuar Gill: 2024: DHC:8281."
7. Discussion and Evaluation of the Will dated 30.03.1990, the Will dated 19.12.1991 and the Will dated 16.05.1994, The principal dispute to be adjudicated in all the cases and Issues framed in the matters revolves around the genuineness of three Wills, i.e., the Will dated 30.03.1991, the Will dated 19.12.1991 and the Will dated 16.05.1994. Though the parties have also referred to other Wills, however have not placed any substantive reliance on the same and confined their rights and challenges to the aforementioned three Wills. Therefore, this Court is proceeding to evaluate the aforementioned three Will, before recording separate findings on Issues. The scope, interpretation and proof, of the aforementioned three Wills, along with the law applicable, is being discussed in the paras hereinafter.
7.1. Scope of proof of a Will in terms of Section 63 of Indian Succession Act, 1925:
i. The Wills in question are unprivileged Wills and the scope of proof of such Wills is governed principally by Section 63 of R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 39 of 132 Digitally signed by ANIL
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Indian Succession Act, 1925. Section 63 of the Indian Succession Act, 1925 is being reproduced hereinbelow:
"63. Execution of unprivileged Wills.
Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:
a. The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. b. The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. c. The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
Thus Section 63 of Act has provided the manner in which an unprivileged Will is required to be executed and attested. Therefore, the Wills in question have to assessed accordingly in order to determine their validity and it has to be seen, whether they fulfil the requirements prescribed by the R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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aforesaid provision.
ii. The Hon'ble Supreme Court of India has enunciated the
scope of proof of Wills and circumstances to be considered in greater detail in a Full Bench judgment passed in, "H. Venkatachala Iyengar vs. B.N. Thimmajamma and Ors. (13.11.1958 - SC): AIR1959SC443." The relevant observations of the Hon'ble Full Bench in the aforementioned judgment are being reproduced hereinbelow:
"19. 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 R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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must be satisfied by the party who relies on a document in a court of law. Similarly, sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the 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.
20. 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 R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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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.
21. 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 R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 43 of 132
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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.
22. 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 conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills;
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 44 of 132 Digitally signed by ANIL
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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.
23. 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 C.W.N. 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."
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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The aforementioned observations of the Hon'ble Supreme Court have guided the subject as a beacon of law and have withstood the test of time. The aforementioned observations have been followed in the subsequent judgments, which are not being reproduced herein to avoid repetition. What follows from the aforementioned discussion is that since a Will is a document speaking from the death of the testator, therefore, in order to prove the document, a propounder must remove all suspicious circumstances around such Will, besides proving the signature and valid attestation. The afore-mentioned Wills and surrounding circumstances are to be examined in view of the aforementioned position of law.
7.2. The Will dated 19.12.1991: Scope, Interpretation & Proof:
7.2.1. Since the Will dated 19.12.1991 is the later Will of late Avtar Singh Vohra in comparison to the Will dated 30.03.1990;
therefore, the same is taken for discussion first. The Will dated 19.12.1991 has been propounded by the Defendant No.1 and 2 and therefore, the onus to prove the aforesaid Will rests upon the Defendant No.1 and 2. The Will dated 19.12.1991 is being reproduced hereinbelow:
"WILL I, Avtar Singh Vohra, s/o late S. Chanda Singh Vohra, in my life and full senses, declare that after my R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 46 of 132 Digitally signed by ANIL
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death my properties shall be divided as under:-
My shop President Optical Co.1468, Fountain, Delhi shall belong to my son Jagmohan Singh, but he shall let out 1/5 area on its back at monthly rent upto 500/-to Balbir Singh or he may give his half share in my house no. 5c/2, Rohtak Road, to Dalbir, in writing deed.
My shop no.72, Khanna market, Tis Hazari, Delhi shall belong to my son Jagdeep Singh, Advocate, who is conducting suits against tenant Sher Singh and others as per my promise.
Myson Ripu Daman separated from me 30 years ago. But at my wife's instance I give him 10% share in ownership with Jagmohan's 20%, Dalbir's 33%, and share of Jagdeep 37% in the ownership of my house no.5c/2, New Rohtak Road, New Delhi. But Ripu Daman's share is on the condition that he settles in Delhi and permanently resides in this house after selling all his house and business at Poona, then he shall take 2 rooms set on western side G.F. behind office of Jagdeep. If he does not settle permanently within one year of my death, his share shall go to Dalbir and Jagdeep equally and his 2 rooms set with kitchen, bath shall go to Jagdeep.
Jagmohan Singh is having 3 rooms set of G.F. east side. Jagdeep is having front office and full second floor, Dalbir Singh is having 5 rooms set on F. front side with kitchen bath on eastern side. My daughter Manmohan Kaur shall take F.F. back room with kitchen bath on western side. Back room on eastern F.F. shall go to Jagdeep, but if Ripu Daman Singh does not live in Delhi, that room shall go to Dalbir Singh. If my wife is living, she shall have back room G.F. in my possession, otherwise, that room may go to Bhavnesh or Jagdeep as they mutually settle.
The shares of my sons in ownership shall be divisible only if this house is sold in full and which can be sold only if by percentage, majority shareholders agree in writing. No person shall object to vacate the house then. No part of this house shall be saleable to R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 47 of 132 Digitally signed by ANIL
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outsider, except between my sons. All the sons residing in this house shall bear the house tax and maintenance equally.
My holdings of shares and debentures in companies in joint names shall be taken by those who are second or third holder, in preference of holding. All my other movable assets, cash, bonds, deposits and my individual holding in companiee shall go to my wife and sons equally. All my legal cases shall be for benefit or loss of Jagdeep Singh Advocate, except sales tax which shall be for Jagmohan Singh. Liabilities, if any shall be paid by all sons residing in my house equally.
All of my sons shall keep and respect my wife and Manmohan as they desire. If any of my children disobeys this will or fights over this will, that child shall not get anything from my property, and if already got, shall be returnable to others.
I have made this will for the benefit of my children to avoid controversies and to avoid any litigation. All my previous wills shall stand cancelled, as null and void. This will be executed by my son Jagdeep Singh Advocate, as required, and he may have the custody of this Will. The witnesses also have signed this Will with me.
Identify the deponent/executant who has signed in my Presence AVTAR SINGH VOHRA 5c/ 2, New Rohtak road, Karol Bagh, New Delhi-5 Witnesses.
1. Harbhjan Singh S/o Sohan Singh
279.... N. Delhi-18
2. Kuldeep Singh S/o Sh.Swaran Singh SBI, New Rohtak Rd R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 48 of 132 Digitally signed by ANIL
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New Delhi
ATTESTED
NOTARY PUBLIC DELHI
19/DEC 1991"
7.2.2. The Defendant No.1 and 2 have stated in the written statements/Counter-claims that the Will dated 19.12.1991 is the last and final Will of late Avtar Singh Vohra. The Defendant No.1 and 2 have stated that the suit property has already been partitioned in accordance with the Will dated 19.12.1991. The Defendant No.1 and 2 have further stated that late Avtar Singh Vohra was in the habit of making Wills and he had previously made a Will dated 30.07.1988 and also made the draft Wills dated 20.10.1991 and dated 05.11.1991, however the Will dated 19.12.1991 was the last and final Will of Late Avtar Singh Vohra. The Plaintiff has stated in the replication that the Will dated 19.12.1991 has been forged by the Defendant No. 1 and 2, after the death of Late Avtar Singh Vohra.
7.2.3. The original Will dated 19.12.1991 has not been produced and the copy of the same has been filed on record. The Defendant No.2 has filed an Application for seeking permission to lead secondary evidence with regard to the Will dated 19.12.1991, which was allowed in terms of an Order dated 11.07.2006. In order to prove the copy of the Will dated 19.12.1991, the Defendant No.1 has examined R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 49 of 132 Digitally signed by ANIL
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two witnesses, i.e., Mr. Kuldeep Singh, i.e., one of the attesting witnesses of the Will dated 19.12.1991 as D1W4 and Mr. Gurmeet Singh as DW-2, who is son of the other attesting witness.
7.2.4. Ld. counsels for the Plaintiff, the Defendant No.3 and the Defendant No.4 have submitted that the Defendant No.1 and 2, in order to rely upon the secondary evidence with regard to the Will dated 19.12.1991 have to first establish the loss of the original Will dated 19.12.1991. It is submitted that the Defendant No.2 had propounded the theory of loss only subsequent to the directions to the Defendant No.1 and 2 by this Court to produce the original Will dated 19.12.1991 and therefore, the plea of loss is an afterthought.
7.2.5. Ld. Counsels for the Defendant No.1 and 2 have submitted that the Defendant No.2 was granted permission to lead secondary evidence by this Court in terms of an Order dated 11.07.2006. It is submitted that the aforesaid Order was challenged and the challenge was rejected by the Hon'ble High Court as well as by the Hon'ble Supreme Court of India and therefore, the aforesaid order has attained finality. It is thus stated that the Defendant No.1 and 2 are entitled to prove the Will dated 19.12.1991 by secondary evidence, without proving the loss. It is submitted that the loss of the Will dated 19.12.1991 is implicit and affirmed in the Order dated 11.07.2006 and even if such loss is required to be R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 50 of 132 Digitally signed
by ANIL ANIL CHANDHEL CHANDHEL Date: 2024.12.05 18:30:04 +0530 proved, the same has been proved in terms of the testimony of the Defendant No.2. Ld. Counsel for the Defendant No.3 has submitted that the testimony of the Defendant No.3 cannot be relied upon at all as his cross-examination was not concluded. The aforesaid contentions raised by the Counsels are being discussed and decided in the paras hereinafter.
7.2.6. Whether the Defendant No.1 and 2 have to prove the factum of loss of Original Will dated 19.12.1991 in order to prove the same by secondary evidence or such loss is implicit in the order granting permission to lead secondary evidence?
i. Section 64 of the Indian Evidence Act, 1872 mandates the proof of documents through primary evidence. In the absence of primary evidence, the documents can also be proved by secondary evidence under certain circumstances, in terms of Section 65 of the Indian Evidence Act, 1872. Section 65 the Indian Evidence Act, 1872 is being reproduced hereinbelow:
"65. Cases in which secondary evidence relating to document may be given.
Secondary evidence may be given of the existence, condition or contents of a document in the following cases:
(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 51 of 132 Digitally signed by ANIL CHANDHEL
ANIL Date: CHANDHEL 2024.12.05 18:30:08 +0530 proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) When the original is of such a nature as not to be easily movable;
(e) When the original is a public document within the meaning of section 74;
(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;
(g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible.
In case (b), the written admission is admissible. In case (e) or (f), a certified copy of document, but no other kind of secondary evidence, is admissible.
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."
ii. Thus, a party seeking to produce the secondary evidence is obligated to prove the foundational facts or pre-conditions of Section 65 of the Act, as enumerated hereinabove. Besides Section 65 of the Act, the aforesaid proposition can be traced to the judgment of the Hon'ble Supreme Court passed in, "H. Siddiqui (Dead) by L.Rs. Vs. A. Ramalingam:
(2016)16SCC483)." The relevant observations of the Hon'ble Court in the aforementioned judgment are being reproduced hereinbelow:
"10. Provisions of Section 65 of the Act 1872 provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide:
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 53 of 132
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The Roman Catholilc Mission and Anr. v. The State of Madras and Anr. MANU/SC/0253/1966 : AIR 1966 SC 1457; State of Rajasthan and Ors. v. Khemraj and Ors. MANU/SC/0857/2000 : AIR 2000 SC 1759; Life Insurance Corporation of India and Anr. v. Ram Pal Singh Bisen MANU/SC/0170/2010 : (2010) 4 SCC 491; and M. Chandra v. M. Thangamuthu and Anr. MANU/SC/0721/2010 : (2010) 9 SCC 712."
iii. The aforesaid proposition has further been reiterated by the Hon'ble Supreme Court in, "Rakesh Mohindra Vs. Anita Beri and Ors.: (2016)16SCC483", and relevant observations of the Hon'ble Court are being reproduced hereinbelow:
"17. The pre-conditions for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted."
"22. It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 54 of 132 Digitally signed by ANIL
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a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law.
23. In the case of M. Chandra v. M. Thangamuthu MANU/SC/0721/2010 : (2010) 9 SCC 712, this Court considered the requirement of Section 65 of the Evidence Act and held as under:
47. We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original.
It should be emphasised that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party."
iv. Therefore, the Defendant No.1 and 2, in order to prove the Will dated 19.12.1991 by secondary evidence, has to first establish the pre-condition of loss of the original Will. The factum of such loss along with the copy of the Will dated 19.12.1991 could be proved simultaneously during the trial and if the factum of loss is not proved, the secondary R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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evidence led by the Defendant No.2 would not become admissible.
v. This Court is in disagreement with the argument of Ld. Counsels for the Defendant No.1 and 2 that loss of the document has been certified in terms of Order 11.07.2006, whereby the Defendant No.2 was permitted to lead secondary evidence. The contention of the Ld. Counsel for the Defendant No.1 and 2 is based upon the misinterpretation of the Order dated 11.07.2006. The relevant part of aforesaid order dated 11.07.2006 is being reproduced hereinbelow:
"I have assessed the contentions of both sides in the light of material on record, statutory provisions and case law. It is fact that Defendant Nos. 1 and 2 were directed by order dated 07.08.1999 to produce original Will dated 17.12.1991 in the Court, but they failed to produce the same. However, Defendant's defence cannot straight way be strike off for want of filing of record, since Rule 21 of Order XI CPC mandates to hear bot the sides. Since Defendant NO. 2 had filed application under Section 151 CPC, being explanation for want of filing of record as well as permission to lead secondary evidence, let us assess it.
The contentions of the Plaintiff and the Defendant No. 4 are that the applicant/Defendant No.2 shall satisfy the requirement of Section 63 or 65 of Evidence Act before they are permitted to lead secondary evidence, or there should be an inquiry whether Defendant No. 2 is entitled to lead secondary evidence. However, I am of view that these contentions are not sustainable at the juncture of granting permission, but they will become relevant, after permission to prove that evidence led satisfies the R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 56 of 132
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requirement of Section 63 and 65 of Evidence Act of secondary evidence. Otherwise, it would to held trial into a trial. Hence, Defendant No.2's application under Section 151 CPC is allowed to prove Will dated 19.12.1991 by secondary evidence subject to (a) satisfying the requirement of law inclusive of Section 63/65 of Evidence Act, (b)payment of cost of Rs.1,000/- payable equally to the Plaintiff & Defendant No. 3 as application was preferred after long time from the date of order. Since Defendant No. 2's application has been allowed, which was containing explanation for want of filing of original Will, therefore, Defendant No.3's application under Order 11 Rule 21 CPC is dismissed. However, any observation/expression given would not tantamount to be final opinion on the merits of the case."
The above-mentioned Order does not conclude the factum of loss and leaves it open to be decided after adjudication. Therefore, mere grant of the permission to the Defendant No.2 to lead secondary evidence is not conclusive of the fact that the document has been lost. Moreover no permission is required to lead secondary evidence in terms of law enunciated by the Hon'ble High Court of Delhi in, "Prem Chandra Jain and Ors. Vs. Sri Ram and Ors.:
(2009)ILR7Delhi605." It has been also held in the aforementioned judgment by the Hon'ble High Court that a party seeking to lead secondary evidence has to prove simultaneously the preconditions for entitlement to lead secondary evidence as well as the secondary evidence, during the course of the trial and such secondary evidence would become admissible only when the pre-conditions of Section 65 of the Act, i.e., the loss, is proved by the party.
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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vii. It has also been held by the Hon'ble High Court of Delhi in, "Satyam Kumar Sah and Ors. Vs. Narcotic Control Bureau: 2019:DHC:2473", that even if an application for leading secondary evidence is allowed by the Court and permission to lead secondary evidence is granted, the same does not by itself amount to proof of the fact of existence of conditions under Section 65 of the Indian Evidence Act, 1872. The relevant observations of the Hon'ble Court are being reproduced hereinbelow:
"6. Section 65, Indian Evidence Act, permits secondary evidence to be led in the contingencies mentioned therein. Section 65 does not contemplate filing of any application or seeking prior permission of the court for leading secondary evidence.
7. A party producing secondary evidence before a court has to satisfy the conditions mentioned in Section 65 of the Indian Evidence Act and only when the conditions of Section 65, Indian Evidence Act are satisfied, secondary evidence would be admissible.
8. While adducing secondary evidence, a party shall have to lead evidence firstly to show the existence of the contingency or situation stipulated in section 65 and 65B, as the case may be and Secondly lead evidence in proof of the said document.
9. Only after the evidence is led before the court, would the court be in a position to form an opinion as to whether circumstances/situation, as stipulated under section 65 Indian Evidence Act, R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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making secondary evidence admissible, exist or not.
10. Thus, merely because an application under Section 65, Indian Evidence Act was filed and allowed, would not ipso facto make secondary evidence admissible, which is otherwise inadmissible."
viii. Therefore, in view of the above-discussed position of the law, the Defendant No.1 and 2 have to prove the loss of the Will dated 19.12.1991 and if the same is established, then only the secondary evidence of the Will dated 19.12.1991 will be considered or will become admissible.
7.2.7. Whether the testimony of the Defendant No.2 is to be relied upon or to be discarded completely?
i. The Defendant No.2 has appeared as a witness in the matter and has filed his examination in chief by way of affidavit. The cross-examination of the Defendant No.2 on behalf of the Plaintiff was concluded and thereafter the Defendant No.2 was partly cross-examined by the Defendant No.3, however he unfortunately passed away, before his cross- examination could be concluded on behalf of Defendant No.3 and Defendant No.4.
ii. Ld. Counsel for the Defendant No.3 has submitted that the testimony of the Defendant No.2 cannot be read in evidence at all since his cross-examination has not been concluded. It is submitted that reading his evidence would prejudice the R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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case of the Defendant No.3, who was cross-examining him and could not complete the same, more importantly in view of the fact that the allegations of the theft have been made by the Defendant No.2 against the Defendant No.3 and he will not have an opportunity to defend the aforesaid allegations in the event of such evidence being read. Ld. Counsels for the Defendant No.1 and 2 have submitted that the Plaintiffs have concluded the cross-examination of the Defendant No.2 and he was substantively cross-examined by the Defendant No.3. It is submitted that the Defendant No.3 intentionally prolonged the cross-examination of the Defendant No.2, instead of expeditiously concluding the same and therefore the evidence of the Defendant No.2 cannot be completely ignored and should be read against the Plaintiff as well as against the Defendants No.3 & 4 as well.
iii. It is not an absolute rule that the evidence of a witness should not be relied upon in any manner, when his cross- examination has not been concluded, on account of his death. It has been held by Hon'ble High Court of Delhi in, "Krishan Dayal Vs. Chandu Ram MANU/DE/0078/1969:
ILR 1969 Delhi 1090", that where the cross-examination has not completed on account of death of a witness, such evidence can still be read by Court by applying a rule of caution while appreciating its evidentiary value. The relevant observations of the Hon'ble Court are being reproduced hereinbelow:
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 60 of 132
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"(11) Wigmore has laid down the following principle in dealing with the statement of a witness who dies before his cross-examination :-
"BUT, where the death or illness prevents cross-examination under such circumstances that no responsibility of any sort can be attributed to either the witness or his party, it seems a harsh measure to strike out all that has been obtained on the direct examination. Principle requires in strictness nothing less. But the true solution would be to avoid any inflexible rule, and to leave it to the trial Judge, to admit the direct examination so far as the loss of cross-examination can be shown to him to be not in that instance a.
material loss. Courts differ in their treatment of this difficult situation; except that, by general concession, a cross-examination begun, but unfinished, suffices if its purposes have been substantially accomplished." (see page 765 of Woodroffe and Ameer Ali's Law of Evidence, 11th Edition.) (12) I have given the matter my consideration and am of the view that the statement of a witness in examination-in-chief, which was admissible at the time it was recorded, cannot become inadmissible by reason of the subsequent death of the witness before cross-examination. The absence of cross-examination would undoubtedly affect the value and weight to be attached to the statement of the witness, but it would not render the statement inadmissible or result in its effacement. So far as the question is concerned as to what weight should be attached to such statement made in examination-in-chief the Court has to keep in view the facts and circumstances of each individual case. Some of the factors which may be borne in mind are the nature of the testimony, its probative value, the R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 61 of 132 Digitally signed by ANIL
ANIL CHANDHEL CHANDHEL Date: 2024.12.05 18:31:03 +0530 status of the witness, his relationship or connection with the parties to the case, a likely animus which may colour his statement and any other factor touching the credibility of the witness which may emerge on the record. Regard must also be had to the fact that the witness has not been subjected to cross-examination. The Court should see whether there are indications on the record that as a result of cross-examination his testimony was likely to be seriously shaken or his good faith or credit to be successfully impeached. The Court may also adopt a rule not to act upon such testimony unless it is materially corroborated or is supported by the surrounding circumstances. If after applying that rule of caution, the Court decides to rely upon the statement of a witness who was examined in chief, but who died before cross-examination, the decision of the Court in this respect would not suffer from any infirmity."
Thus it has been held by the Court that a statement of a witness, being admissible at the time of recording, does not become inadmissible by reason of subsequent death of the witness before cross-examination. Though the absence of cross examination would certainly affect the questions as to what value and weightage such a statement would carry.
iv. The Defendant No.2's cross-examination was concluded by the Plaintiff. The Defendant No.2 has been cross-examined at length for good number of days on behalf of the Plaintiffs and the Defendant No.3. During his life time, he remained available for the cross-examination. He was being cross- examined on behalf of the Defendant No.3, while he passed away. The cross-examination of the Defendant No.2 was R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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conducted on behalf of the Plaintiffs on 08.02.2019, 14.02.2019, 20.02.2019, 26.03.2019, 08.04.2019, 15.04.2019, 15.05.2019, 30.05.2019, 01.06.2019 and 17.07.2019. The Plaintiffs have asked total 190 questions from the Defendant No.2 and the aforesaid cross- examination is recorded in 106 pages. Thereafter, the Defendant No. 3 took his turn to cross-examine the Defendant No.2. The Defendant No.2 was cross-examined on behalf of the Defendant No.3, on 22.07.2019, 26.07.2019, 17.09.2019, 18.09.2019, 11.10.2019, 19.10.2019 and 31.10.2019. The Defendant No.3 has asked total 139 questions from the Defendant No.2 and the aforesaid cross- examination is recorded in 95 pages.
v. The cross-examination of the Defendant No.2 was being recorded by the Ld. Local Commissioner and matter was to be listed on 16.11.2019, however no cross-examination was conducted subsequent to 31.10.2019. Though it is submitted by the Ld. Counsel for the Defendant No.3 that the cross- examination was stopped before the Ld. Local Commissioner as the Defendant No.2 refused to share fees of the proceedings after 31.10.2019, however no such reason is evident from the record and it is not clear from the report of Ld. Local Commissioner as to why did the cross- examination not concluded or conducted subsequent to 31.10.2019. During the same time, the evidence of other witnesses was also being recorded before the Court. The R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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aspect of inconclusive cross-examination was not pointed out before the Court by anyone and therefore, no cross- examination of the Defendant No.2 has taken place before the Court, though the Defendant No.2 has been participating in the matter between 31.10.2019 till his death, i.e., till 02.05.2021.
vi. Neither the Ld. Counsel for the Defendant No.3 nor the Ld. Counsel for the Defendant No. 4 informed the Court about the inconclusive cross-examination of the Defendant No.2 and did not seek to further cross-examine him, while the other witnesses were being examined, till his death. The Defendant No.2 was thus available for his cross-examination during his life time and it was also the duty of the Defendant No.3 and the Defendant No.4 to conclude the cross- examination expeditiously.
vii. If a witness is cross-examined in extenso to the end of the world and he passes away on account of his age, before conclusion of such cross examination, it would be completely unfair to discard his entire testimony, even on the aspects upon which he has been cross-examined at length. Moreover, the Defendant No. 3 and 4 have supported the case of the Plaintiff to a certain extent and there is unanimity amongst them, in so far as the challenge to the Will dated 19.12.1991 is concerned. Ideally, if the Defendant No.3 and 4 were so keen to cross-examine the R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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Defendant No.2, they should have pointed out the factum of incomplete cross-examination and should have taken opportunity to conclude the same, however nothing was done between 31.10.2019 till 02.05.2021, i.e., till death of the Defendant No.2. in so far as the Defendant No.4 is concerned, he has only briefly cross-examined many witness and did not cross-examine few others and placed his reliance upon the cross-examination conducted by the Plaintiffs and the Defendant No.3.
viii. Therefore, this Court is of the view that the testimony of the Defendant No.2 can-not be ignored in a blanket manner, however the same should be read cautiously. The weightage and evidentiary value of the aforesaid testimony will have to be considered by balancing the interests and keeping in view of the factum of prejudice, which may cause to the Defendant No.3 and 4 by non-examination of the Defendant No.2, on the parts he could have been cross- examined. Thus the aspects, on which the Defendant No.2 had not been cross-examined, would not readily be read as admissions or treated unchallenged on the part of the Defendant No.3 and 4.
7.2.8. Whether the Defendant No.1 and 2 have proved that the Original Will dated 19.12.1991 was lost?
i. It is the case of the Defendant No. 1 and 2 that the original R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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Will dated 19.12.1991 was in the custody of Defendant No.2. The Defendant No.2 has stated that the Will was lost from his chamber. The aforesaid loss has been stated firstly in the reply to the application under Order XI Rule 21 of Code of Civil Procedure, 1908, secondly in the application under Section 151 of Code of Civil Procedure, 1908 for seeking permission to lead secondary evidence and thirdly in the examination in chief of the Defendant No.2. Ld. Counsels for the Defendant No.1 and 2 have submitted that the loss of the original Will dated 19.12.1991 has been made out in terms of the permission granted by this Court to lead secondary evidence and secondly has also been proved in the testimony of the Defendant No.2. The first contention has already been rejected in discussion, hereinabove (para 7.2.6).
ii. The loss of Will is pleaded in para 20 of the examination in chief of the Defendant No.2 and the relevant part of the same is being reproduced hereinbelow:
"......That in 1995-1996, in a state of drugging, the present suit was filed by Manmohan Kaur under influence of husband of Harmeet Kaur, Defendant No.3 and 4, without any power of attorney by Harmeet Kaur, which she gave later on under the influence of her husband. At that time the Defendant No.3 and 4, under a plan asked Manmohan Kaur to remove the original Will dated 19.12.1991 from my chamber no. 171, Western Wing, Tis Hazari Courts, Delhi where the files of the suit were kept. In 1999, when the original Will dt. 19.12.1991 was not available in R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 66 of 132 Digitally signed by
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my case files (which original I was to produce in court case), I came to know that the original Will has been stolen by Manmohan Kaur on advice of Jagmohan Singh Vohra and his lawyer at or about the time of filing of this suit and therefore, I filed application and affidavit in the suit in the Court of Ld. ADJ, who allowed me to produce photocopy of the Will dated 19.12.1991 as secondary evidence......."
iii. In order to evaluate the aforementioned contentions, this Court intends to recapitulate the proceedings as to how the aforesaid plea surfaced or came to be made in the present suits. The loss of Original Will dated 19.12.1991 was not stated in any communication prior to the institution of the suits or counter-claims. The plea of loss has also not been raised in the written statement or the counter-claims, filed by the Defendant No.1 and 2.
iv. The Defendant No.3 has filed an application under Order XI Rule 14 of the Code of Civil Procedure, 1908 for directions to the Defendant No.1 & 2 to produce the original of the Wills dated 30.03.1990 and 19.12.1991. The Defendant No.1 and 2 have filed a common reply to the aforesaid application and it is stated in the aforesaid reply that the Will dated 19.12.1991 shall be produced at the appropriate stage. Even in the aforesaid reply, it has not been stated that the Original Will dated 19.12.1991 was lost or was not available. In terms of the Order dated 07.08.1999, this Court directed the Defendant No.1 and 2 to produce the original Will dated R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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19.12.1991. Even thereafter the Defendant No.1 or 2 have not immediately stated that the Original Will dated 19.12.1991 was lost.
v. Thereafter the Defendant No.3 has filed another application under Order XI Rule 21 of Code of Civil Procedure, 1908 on 29.01.2001 for striking off the defence of the Defendant No.1 and 2 for non-production of the original of the Wills dated 30.03.1990 and 19.12.1991. The Defendant No.1 and 2 have filed separate replies to the aforesaid application. It is stated by the Defendant No. 1 in his reply dated 24.05.2001 that the documents, sought by the Defendant No.3, are not in possession of Defendant No.1 and the same were handed over to the Defendant No.2. The Defendant No.2 also filed a reply dated 24.05.2001, wherein it was stated that he had filed an application for leading secondary evidence, which was prepared on 17.11.1999 but did not file the same to gain time to search for the original Will dated 19.12.1991, which he was unable to trace subsequently and he would file the original in the Court, whenever found.
vi. Simultaneously, the Defendant No. 2 also filed an application for seeking permission to lead secondary evidence with regard to Will dated 19.12.1991. It is stated in the aforesaid application that after getting the certified copy of the Order dated 07.08.1999 in the month of September and October, 1999, the Defendant No.2 discovered the Will R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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dated 19.12.1991 to be missing from the document's file in his chamber. It is stated that even on search of all the files, relating to late Avtar Singh Vohra, the white envelope containing the Will dated 19.12.1991 was not found. The Defendant No.2 has further stated in the Application that it now seemed that the Plaintiff No.1, the Defendant No.3 and the Defendant No.4 had conspired to steal the original Will dated 19.12.1991 from the files of the Applicant at about time of filing of the suit. The plea of loss till this stage is more in the nature of a wild guess than a reasonable allegation.
vii. It may be convenient to make an allegation of theft against the adversary in interest, however such an allegation is not to be readily concluded and is required to be established by credible evidence by the one, who makes such an allegation. The theory of loss was propounded belatedly, after the Defendant No.1 and 2 were directed to produce the Will dated 19.12.1991. The plea of loss has not been consistent and has been improved with the stages of the suit. There is compete silence about the plea in the written statement or counter-claim. Nothing about the theft has been stated in the reply to the Application under Order XI Rule 14 of the Code, where aforesaid fact would have been much relevant. It follows from reply of the Application under Order XI Rule 14 of the Code that the original Will dated 19.12.1991 was available with the Defendant No.2. The plea of theft has also R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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not been stated in the reply to the Application under XI Rule 21 of Code. The theft was anticipated for the first time in the application under Section 151 of the Code and thereafter pleaded only in the examination in chief of the Defendant No.2, with improvements. The plea of loss, as stated in the application under Section 151 of Code for seeking leave to lead secondary evidence, is more in nature of bare suspicion. The plea of loss is pleaded in the examination with variation and improvements by stating it as a fact. The allegation in the examination in chief has further been extended to lawyer of the opposite party.
viii. This allegations of the Defendant No. 2, about theft of the Will dated 19.12.1991, are not in accordance with ordinary course of life and therefore, are required to be proved by credible evidence. The loss or theft as stated is also not supported by the prudent expected action. The loss has not been pointed at the very first instance or even when there were opportunity in the proceedings to state the same, i.e., at the time of filing reply to the Application under Order XI Rule 14 of the Code. The Plaintiff and the Defendant No.3 filed applications for production of the original Wills and it was averred on behalf of the Defendant No.1 and 2 that the same would be produced at the appropriate stage. Thereafter the Court passed an Order for production of the same and the loss of the document has been pleaded for the first time, after a period about two years from the date of Order of R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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production, when another application for striking off the defence for non-compliance was filed.
ix. The Defendant No.2 was not an ordinary illiterate novice and was an Advocate by profession and therefore, is presumed to be well aware of the importance of the Will dated 19.12.1991. The Will dated 1912.1991 is not any ordinary document, but the document to establish title of the suit property. How the aforesaid document should have been kept by an Advocate, this Court does not need to even discuss. The parties were hotly contesting against each-other since 1992 and to say that the Defendant No.2 discovered only in the year of 1999 or 2001 that the same seemed to have been stolen by the adversary in interest in the year 1995, is not a reasonable explanation. Such an explanation, in order to be believed, is required to be established by credible evidence. Mere oral averments about the aforesaid loss/theft is only a lip service, which does not aid or by itself prove the contentions of theft or loss of the Will dated 19.12.1991. The parties were hotly contesting the cases between them between 1991 to 1999 and it is hard to believe that if the document was stolen in the year 1995, the Defendant No.2 would not come to know about the same, till the time he was asked by the Court to produce the document. There is not even a single complaint filed by the Defendant No.2, besides making the belated oral allegations of theft against the Plaintiffs and the Defendant No.3 and 4 and against the R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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Counsels. Therefore, even if the evidence led by the Defendant No.1 and 2, on record, has to be considered, the same does not effectively prove that the Will dated 19.12.1991 was lost or stolen.
x. Moreover the allegations of theft, as stated in the para 20 of the examination-in-chief of the Defendant No.2 are also beyond the pleadings of the Defendant No.1 and 2. It is cardinal rule of evidence that the evidence can not be permitted in civil cases beyond pleadings. The Hon'ble Supreme Court in, "Bacchaj Nahar v Nilima Mandal and Anr., MANU/SC/8199/2008 : 2008:INSC:1072 : (2008) 17 SCC 491", has held that any evidence to support a plea, not taken up in the pleadings, can-not permitted or looked into. The relevant observations of the Hon'ble Court in the aforementioned judgment are being reproduced hereinbelow:
"12. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take.
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 72 of 132 Digitally signed by ANIL
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13. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can begranted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief."
xi. It has been held by Hon'ble High Court of Delhi in "Prakash Rattan Lal v Mankey Ram, MANU/DE/0107/2010 : 2010 DHC 266" that the objective of the pleadings is to bind the parties to a specific stand and the same would be frustrated if the Court permitted evidence beyond pleadings of the parties. The relevant observations of the Hon'ble Court are being reproduced hereinbelow:
"4. The sole purpose of pleadings is to bind the parties to R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 73 of 132 Digitally signed by ANIL
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a stand. When the plaintiff makes certain allegations, the defendant is supposed to disclose his defence to each and every allegation specifically and state true facts to the court and once the facts are stated by both the parties, the court has to frame issues and ask the parties to lead evidence. It is settled law that the parties can lead evidence limited to their pleadings and parties while leading evidence cannot travel beyond pleadings. If the parties are allowed to lead evidence beyond pleadings then the sacrosancy of pleadings comes to an end and the entire purpose of filing pleadings also stand defeated. The other purpose behind this is that no party can be taken by surprise and new facts cannot be brought through evidence which have not been stated by the defendant in the written statement. The law provides a procedure for amendment of the pleadings and if there are any new facts which the party wanted to bring on record, the party can amend pleadings, but without amendment of pleadings, a party cannot be allowed to lead evidence beyond pleadings."
xii. Therefore, the allegations of theft were such material contentions, which should have been introduced in the written statement/counter-claim, so that the adversary in interest had an opportunity to respond to the same. Such contentions introduced for the first time in the examination in chief are beyond pleadings and cannot be permitted to be allowed by raising a surprise to which the other party cannot afford any defence. The Defendant No.1 and 2 had ample opportunities to amend the pleadings, however no steps were taken for the same and therefore, introduction of such averments for the first time in the examination in chief can- not be permitted.
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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xiii. The production of the original Will dated 19.12.1991 or the
proof of loss of the same by credible evidence also becomes crucial the same is shrouded in the unexplained suspicious circumstances, which are discussed in subsequent paras hereinafter. Moreover, in the cases of Will the production of the original becomes important, as a Will can be revoked by burning, tearing or otherwise destroying the same by the testator, in terms of Section 70 of Indian Succession Act, 1925. Section 70 of Section 70 of Indian Succession Act, 1925 is being reproduced hereinbelow:
"70. Revocation of unprivileged will or codicil:
No unprivileged will or codicil, nor any part thereof, shall be trevoked otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is herein before required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same."
Since the original is not before the Court and therefore, the possibility of same being revoked physically by the burning, tearing, or otherwise destroying should also be ruled out. The Defendant No.1 and 2 have themselves stated that the father was in habit of making and cancelling the Will. Therefore, if a Will has to be proved by secondary evidence, the pre- condition should be proved by clear and credible evidence so R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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that the Court may conclude the original was never intended to be destroyed or burned or revoked by the testator and has not been revoked.
xiv. The Defendant No.1 and 2 have failed to prove the loss of the document with the aid of any trustworthy evidence. Since the pre-condition of Section 65 of Indian Evidence Act, 1872 has not proved as the loss of the aforesaid document has not been proved; therefore, the proof of the Will dated 19.12.1991 by secondary evidence is not admissible.
7.2.9. Whether the Defendant No.1 and 2 have proved the Will dated 19.12.1991 by secondary evidence?
i. Though the defendant No.1 and 2 have not proved the loss of the document by credible evidence, however have examined two witnesses to prove the copy of the Will dated 19.12.1991. In order to complete the discussion, it is therefore being examined, whether the aforesaid witnesses prove the copy of the aforesaid Will or not.
ii. The Will dated 19.12.1991 was stated to be found in a search subsequent to the death of late father and therefore, the testimony of the Defendant No.1 and 2 is wholly immaterial to examine the scope of valid attestation and execution of the same. The Defendant No.1 has examined two witnesses to prove the Will. One of the attesting witnesses of the Will R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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dated 19.12.1991, namely Kuldeep Singh, has been examined as D1W4. The D1W4 has stated in the examination in chief that late Avtar Singh Vohra came to his office with the prepared Will dated 19.12.1991 at 2:00pm to 2:30pm. It is stated by him that the aforesaid Will was already signed by witnesses Harbhajan Singh and Surinder Kumar, Notary Public and it was informed to late Avtar Singh Vohra by the Notary Public that he should get the Will signed from a third witness. He has stated that the copy on record is the copy of the Will dated 19.12.1991 and he has signed the original of the same as a witness.
iii. The D1W4 has stated in the cross-examination that he had not read the complete Will before signing upon it as a witness. He has further stated that he has not compared the photocopy of the Will on record with its original. He has also stated that neither the testator nor the other attesting witnesses have signed in his presence. The witness does not establish in the affirmative or otherwise that he had read the original Will dated 19.12.1991. If that be so, the witness cannot prove the copy of the Original Will dated 19.12.1991. The witness has not read the original nor compared the copy with the original ever and had come to testify after 26 years from the date of creation of the aforesaid document. Therefore, the testimony of D1W4 cannot be made basis to conclude that the copy identified by him is the copy of the Original Will dated 19.12.1991. The R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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witness in the first place has not read the original ever and therefore cannot prove the copy of the Will dated 19.12.1991.
iv. The second attesting witness namely Mr. Harbhajan Singh is stated to have passed away and his son is examined as DW-
2. The DW-2 has stated that the Will dated 19.12.1991 was signed by late Avtar Singh Vohra, late Harbhajan Singh and by Mr. Surinder Singh in his presence. He has further stated that the Will was thereafter notarized in his presence. The DW-2 has not identified or referred to any document in his examination in chief. He has not relied upon any document at all in his examination in chief and does not even refer to the copy of the Will dated 19.12.1991.
v. Thereafter the DW-2 was cross-examined by Ld. Counsel for the Plaintiff and by Ld. Counsel for Defendant No.3. During cross-examination of the DW-2, the Defendant No.2 made a request that he be allowed to show the copy of the Will dated 19.12.1991 to the witness and the aforesaid request was objected to by the Ld. Counsels for the Plaintiff and for the Defendant No.3. However this Court permitted the same and the objections of the Plaintiff and the Defendant No.3 were directed to be decided at the time of final arguments. The DW-2 was thus confronted by the Defendant No.2 with the copy of the Will dated 19.12.1991, which is Mark-D2. The DW-2 has identified the signatures of late Avtar Singh Vohra, R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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late Harbhajan Singh and Surinder Kumar on Mark-D2. Thereafter the DW-2 was again cross-examined by the Defendant No.3 and was discharged upon conclusion of his cross-examination.
vi. Though the subsequent examination of the DW-2 was in the nature of re-examination, however the DW-2 has only identified the signatures of late Avtar Singh Vohra, late Harbhajan Singh and Surinder Kumar. He does not further add on to say that the copy identified by him is the copy of the original Will dated 19.12.1991. He also does not say that the document referred to in his examination in chief is the document which has been identified by him in his re- examination. Even if the aforesaid technicality is ignored, then also the entire testimony of the DW-2 does not add up to proving the copy of the Will dated 19.12.1991. The document sought to be proved is a Will dated 19.12.1991, executed 26 years before the statement of the witness. The witness has not said in the entire testimony as to whether he has read the Original Will dated 19.12.1991 ever. The witness was only accompanying the attesting witness and was not supposed to be the part of the transaction. The Will has also not been prepared or typed in his presence and as per his version, the same was already ready and his father signed the same. The witness says that he had not seen late Avtar Singh Vohra ever signing or writing. Therefore, it becomes hard to believe that a witness, who has seen the R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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signature of testator only once in life about 26 years ago, would readily identify the same on the copy of the Will, when there is nothing on record to show as to whether the witness had read the original ever in first place.
vii. The DW2 has stated that after the signatures of his father and Mr. Surinder Singh (Notary Public), the testator was advised by the Notary Public to get the same signed by another witness. It remains to be explained as to why would a legally aware testator, guided by a lawyer as the scribe, get the Will notarized first before getting the document legally completed. The Surinder Kumar, Notary Public was stated to be scribe of the Will. The Defendant No.1 had filed the affidavit of evidence of Mr. Dharam Pal, who was not examined, however it was stated in the same that the Will was prepared by Mr. Surinder Kumar, Notary Public and was typed by Mr. Dharam Pal. Thus the Notary Public is stated to be a scribe in the affidavit of Mr. Dharampal and referred to as a witness of the Will in the examination in chief of DW-2 and D1W4. Assuming if the Notary Public was not scribe, but a witness, there was no reason for him to advise the testator to get it signed from another witness. On the contrary, if he was only a scribe and the Will remained to be attested by another witness, then there was no reason as to why would he go ahead with the notarization of the document, without the document being legally completed.
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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viii. Further postponing the process to be signed by another witness remains to be explained. It is not the case that none else other than D1W4 could have signed as a witness. If the intention to execute the Will on that day was so certain that one of the witnesses had been called, the other witness could also have been called or someone else available could have been chosen a witness, who was readily available.
ix. Therefore, there is a serious question mark about the valid attestation of the Will dated 19.12.1991. The testimony of the DW-2 and D1W4 is wholly insufficient for the proof of the copy of the Will dated 19.12.1991 as well as to conclude the factum of valid attestation and execution of the Will dated 19.12.1991. The Will dated 19.12.1991 further suffers from other unexplained suspicious circumstances, discussed in detail hereinafter and therefore, the Defendant No.1 and 2 have failed to prove the Will dated 19.12.991 even by secondary evidence.
7.2.10. Suspicious circumstances surrounding the Will dated 19.12.1991:
i. The discovery of the Will dated 19.12.1991 is shrouded in mystery. In terms of the recital of the Will dated 19.12.1991, it was mentioned that the Will dated 19.12.1991 would be kept in the custody of the Defendant No.2. It is stated in written statement of the Defendant No.1 and 2 that the Will dated 19.12.1991 was discovered in the second round of R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 81 of 132 Digitally signed by ANIL
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searches carried out after the death of late Avtar Singh Vohra. The Plaintiffs, the Defendant No.3 and 4 have disputed that any such Will was ever found in any of the searches.
ii. It is the case of the Defendant No.1 and 2 that the Will dated 19.12.1991 has been acted upon by the parties. It has been stated in September, 1991 late Avtar Singh Vohra has himself effected the partition of the suit property. If the property was already divided in September, 1991 by the testator himself, there would be no occasion for execution of the Will.
Further even if such a Will is executed in furtherance of a previous partition, the factum of previous partition would have been incorporated in the document itself. Even still assuming that such a division has already been effected and the Will was executed to make the same more certain, then also it becomes completely incomprehensible as to why would the testator keep the Will dated 19.12.1991 a secret and hidden in his files, so as to be found only after his death and would not even disclose it to the family. Further if the suit property was already partitioned or the Will dated 19.12.1991 was given effect to, where was any occasion for the parties to carry out searches for the Wills. The aforesaid contradictions have remained unexplained on the part of the Defendant No.1 and the Defendant No.2.
iii. It is stated in the written statement of the Defendant No.1 and 2 that late Avtar Singh Vohra was fond of making Wills R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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and has made a previous Will 30.07.1988. It is also stated that he had made draft Wills dated 02.10.1991 and 05.11.1991. If there are multiple Wills and draft of Wills executed by the Testator, then his last and final Will should be proved with cogent and clear evidence. The Will dated 30.07.1988 is a holographic Will. Though the original of the aforesaid Will has also not been placed on record and the Will is signed by only one attesting witness and the Will may not be valid under Section 63 of the Indian Succession Act, 1925, however the execution of the same is not disputed. The nature of bequest in the aforesaid Will dated 30.07.1988 is completely different in comparison to the Will dated 19.12.1991. It remains to be explained as to what was the change in the circumstances, which could compel the testator to execute a completely different bequest instead approving the earlier one, when the Wills are relatively of the same period.
iv. It is the admitted case of the parties that Late Avtar Singh Vohra was a person well versed in terms of legal knowledge. It is stated by the Defendant No.1 and 2 that he was handling more than 100 cases. It if further stated that late Avtar Singh Vohra used to create several drafts of Will in order to practice to become a master drafter of the Wills. If that be so, the manner in which the Will dated 19.12.1991 has been stated to be executed, does not inspire confidence. The notarization of the Will, prior to the same being legally R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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completed and signed by other attesting witnesses, as discussed above, is also beyond any explanation. The Will is stated to have been drafted with the assistance of a lawyer and therefore, it does not make any sense to seek notarization of the document prior to execution of the same is legally complete. If the necessity to seek notarization of the document was so compelling, it could have been signed by the second attesting witness in the Court itself, before notarization of the same.
v. The Defendant No.1, during his cross-examination has admitted that the Defendant No.3 was the recorded owner of the shop No. 1468, Fountain Chandni Chowk, Delhi-110006, in terms of sale deed dated 07.06.1978. During the lifetime of the father the aforesaid sale deed has also not been challenged. Though the Defendant No.1 has filed a separate suit with regard to the aforesaid property, however, nothing has been established on record to show that the aforesaid shop was treated by the testator as his shop, so as to be made part of the bequest by the testator.
vi. Further, the recitals in the Will about the Defendant No.4 is completely unreasonable. The condition that Defendant No.4 would sell and wind up everything at Pune and come to Delhi, in order to get his share, appears to be completely against the order of ordinary father-son relationship. The aforesaid condition is in the nature of penalty for acquisition R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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of the estate. It does not make any sense as to why would a father imposed such a stringent, impracticable and burdensome condition. Though a testator can place a burdensome condition in a Will and the Will does not become void only on account of such condition, however any such condition would definitely warrant the strict proof of the document to be the last Will of the testator. The Defendant No.1 and 2 had to show and establish that there was occasion for such a condition to be imposed in the Will. It is the case of the Defendant No.1 and 2 that the Defendant No.4 was not favoured by the father of the parties and he has cut his hair against the wishes of the father and was not residing at Delhi. However, the aforesaid contentions are mere oral averments and there is no evidence on record about the alleged acrimony between the testator and the Defendant No.4.
7.2.11. In view of discussion, as stated in the paras hereinabove, the Defendant No.1 and 2 have not proved the loss of the original Will dated 19.12.1991 and therefore are not entitled to lead secondary evidence about the same. Further, the secondary evidence led by the Defendant No.1 and 2 does not prove the valid execution and attestation of the Will dated 19.12.1991, accordance with Section 63 of the Indian Succession Act, 1925. The Will dated 19.12.1991 is shrouded in the suspicious circumstances, which have not been explained or removed by the propounders and R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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therefore, this Court disbelieves the Will dated 19.12.1991.
7.3. The Will dated 30.03.1990: Scope, Interpretation & Proof.
7.3.1 The Plaintiffs have sought partition in terms of the Will dated 30.03.1990. The Defendant No.1 and 2 have challenged the aforesaid Will and propounded a Will dated 19.12.1991. Though there is disagreement between the Plaintiffs, the Defendant No.3 and the Defendant No.4 about the interpretation of the Will dated 30.03.1990, however, the Plaintiffs, the Defendant No.3 and the Defendant No.4 have relied upon the Will dated 30.03.1990. Therefore, the onus to prove the Will dated 30.03.1990 is upon the Plaintiffs as well as upon the Defendant No. 3 and 4.
7.3.2. The Plaintiffs have examined two witnesses to prove the Will dated 30.03.1990. The Plaintiff No.1 has herself appeared as the PW-1, whereas one of the attesting witnesses of the Will dated 30.03.1990 has been examined as PW-2. The son of the Defendant No.3 has been examined as a witness and the Defendant No.4 has appeared himself as a witness. However the Will dated 30.03.1990 was not made in presence either of the Plaintiff No.1 or the Defendant No.3's son or in presence of the Defendant No.4; therefore, their testimony does not throw any light on the aspects of execution and attestation of R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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the Will dated 30.03.1990.
7.3.3. The Plaintiffs in the present suit have not stated as to how the Will dated 30.03.1990 was discovered, however the Defendant No.4, (Plaintiff in Civ DJ No.609146/2016) has stated in the plaint of the aforesaid suit that the Will dated 30.03.1990 was discovered in a search, after the death of late Avtar Singh Vohra. The Plaintiff and the Defendant No.3 have admitted the same.
7.3.4. The Defendant No. 1 and 2 have disputed that the original Will dated 30.03.1990 was ever discovered in the search after death of late Avtar Singh Vohra. It is stated in their pleadings in the suits and counter-claims that only carbon copy of Will dated 30.03.1990 was discovered initially and subsequently the second original page of the Will dated 30.03.1990 was discovered and the aforesaid documents were kept in the custody of the mother of the parties. It is stated that the carbon copy of the Will dated 30.03.1990 was thereafter taken by the Defendant No.3. The mother of parties had passed away prior to filing of the suit for partition, however she was a party to the suit, filed by the Defendant No.4, i.e., Civil DJ No.609146/2016 and has filed her written statement in the same. In her written statement, she has admitted that the Will dated 30.03.1990 was discovered, subsequent to the death of her husband. It was further stated by her in the aforesaid written statement that R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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the custody of the Will dated 30.03.1990 was taken by the Defendant No.2.
7.3.5. The complete original Will dated 30.03.1990 has never been produced on record and only the second original page of the Will dated 30.03.1990 has been filed on the record. The same has been produced by the Defendant No.2, on 24.05.2001. It is submitted by the Ld. Counsels for the Plaintiff and for Defendant No.3 & 4 that the custody of the Will dated 30.03.1990 was with the Defendant No. 2, who has taken false stand that only second page of the Will dated 30.03.1990 was available and has intentionally not produced the first page. It is submitted that the aforesaid Will takes away the rights of the Defendant No.1 and 2 in the suit property, therefore, it was in their interest to not produce the same. It is submitted that since the Defendant No.1 and 2 have chosen not to produce the first page of the Will dated 30.03.1990, therefore, first page of the aforesaid Will can be proved by way of secondary evidence. It is submitted that original second page of the Will dated 30.03.1990, i.e., Exhibit PW-1/2 and copy of first page of the Will dated 30.03.1990, i.e., Exhibit PW-1/D3/P-7 have been proved in the testimony of PW-2, who was an attesting witness to the Will dated 30.03.1990.
7.3.6. Ld. Counsels for the Defendant No.1 and 2 have submitted that the Plaintiffs have failed to prove that original Will R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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dated 30.03.1990 containing two pages was found in the search conducted by the parties, after the death of late Avtar Singh Vohra. It is submitted that there is nothing on record to conclude that the Defendant No. 2 had taken custody of a two pages document. It is stated that the mother of parties had decided to side with the Defendant No.4 and therefore, her statement alone in the written statement is insufficient to conclude that the Will dated 30.03.1990, containing tow pages, was found in the search. It is further submitted that no permission for leading secondary evidence has been sought and further if the secondary evidence is to be considered, the same is insufficient to conclude the proof of the Will dated 30.03.1990. It is further submitted that the document dated 30.03.1990 does not qualify to be a Will and is void for its uncertain terms and vagueness. The aforementioned contentions of the Ld. Counsels are being dealt in the paras hereinafter.
7.3.7. Whether any permission is required to lead secondary evidence?
In so far as the contention of permission for leading secondary evidence is concerned, this Court is in disagreement with the contentions of the Ld. Counsels for the Defendant No.1 and 2 that no secondary evidence can be led without first seeking permission to lead secondary evidence. It has been held by the Hon'ble High Court of R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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Delhi in, "Prem Chandra Jain and Ors. Vs. Sri Ram and Ors.: (2009)ILR7Delhi605", that no permission for leading secondary evidence is necessary in law. It has been held that a party seeking to prove document by secondary evidence is to lead evidence of the existence of circumstances/situations in which secondary evidence is permissible, during leading its evidence in the suit and it will be decided at the stage of disposal of suit only, whether case for leading secondary evidence has been made out or not and if so, whether document stands proved by secondary evidence. The relevant observations of Hon'ble Court are being reproduced hereinbelow:
"2. A practice appears to have developed in the Trial Courts of moving an application under Section 65 of the Evidence Act seeking permission of the courts to adduce secondary evidence. There does not appear to be any sanction therefore in law. Neither the Evidence Act nor the CPC nor any other rules & regulations or statute requires the filing of such an application.
3. Section 61 of the Evidence Act provides for proof of documents either by primary or by secondary evidence. Section 64 provides that documents must be proved by primary evidence, except in cases "hereinafter mentioned" i.e. in Section 65 & Section 65A and Section 65B. Section 65 permits secondary evidence to be led in the contingencies mentioned therein. Thus a litigant without seeking any permission from the court if satisfies the ingredients of Section 65 of the Evidence Act i.e. of the existence of the contingency or situation when secondary evidence is permitted to be led is entitled R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 90 of 132 Digitally signed by ANIL
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to lead such evidence. Such evidence will have to be two-fold. Firstly, as to the existence of the contingency or situation in which secondary evidence is permissible, viz. that the original document is in possession or power of the person against whom it is sought to be proved etc. or that the existence, condition or contents of original have been proved to be admitted by person against whom it is sought to be proved or that the original has been lost or destroyed or when original is not moveable etc. i.e. of the various situations mentioned in Clause (a) to (g) of Section 65. Secondly, such evidence will have to be in proof of document as also prescribed in Section 65 r/w Section 63.
4. It is only after such evidence has been led can the court form an opinion whether the circumstances/situation in which it is permissible to lead secondary evidence exist or not. For instance, whether a document has been lost or destroyed is a question of fact. It is only after the person claiming so has been cross examined, can a decision be taken as to the existence and loss or destruction of the original. 5. The court, on an application seeking permission to lead secondary evidence, even if setting out reasons as contained in either of the Clauses of Section 65, cannot take a decision on the correctness of the reasons. The application thus serves no purpose except delaying the proceedings. It is however often found that the courts allow or disallow the applications, without giving an opportunity to the parties for laying a foundation for reception or rejection of secondary evidence. Such procedure is impermissible in law. Factual controversies cannot be adjudicated on applications. That is however not to be understood as allowing a mini-trial on this aspect. The party seeking to prove document by secondary evidence is to lead evidence of the existence of R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 91 of 132 Digitally signed by ANIL
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circumstances/situations in which secondary evidence is permissible, during leading its evidence, whether by way of examination of witnesses or cross examination of opponents witnesses, in the suit/other proceeding itself. It will be decided at the stage of disposal of suit only, whether case for leading secondary evidence has been made out or not and if so, whether document stands proved by secondary evidence."
The Hon'ble High Court of Delhi has taken a similar view in, "Satyam Kumar Sah and Ors. Vs. Narcotic Control Bureau: 2019:DHC:2473", that no such application is required to be filed for leading secondary evidence. Therefore, the Plaintiff, the Defendant No.3 and the Defendant No.4 did not need any permission of the Court for leading secondary evidence. They have to simultaneously prove the existence of conditions under Section 65 of the Indian Evidence Act, 1872 as well as the prove the document by secondary evidence. Such secondary evidence would be considered and would become admissible, only if the pre- conditions under Section 65 are proved/made out.
7.3.8. Whether the conditions of Section 65 of the Indian Evidence Act, 1872 have been fulfilled, on behalf of the Plaintiffs, the Defendant No.3 and the Defendant No.4?
i. The Plaintiffs have not stated anything about the discovery of Will dated 30.03.1990, however the Defendant No.4 has stated in the plaint of Civ DJ No.609146/2016 that the Will R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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dated 30.03.1990 was discovered in a search subsequent to the death of late Avtar Singh Vohra. The Defendant No.1 and 2 have disputed the aforesaid fact and stated in the written statement/Counter-Claim that no original Will dated 30.03.1990 was ever found in any search. It is stated that carbon copy of the Will dated 30.03.1990 was found in the first search, which has been taken away by the Defendant No.3, cunningly from the mother of the parties. It is stated that in October, 1992, second original page of Will dated 30.03.1990 was discovered. The Plaintiffs and the Defendant No. 3 have admitted the contentions of the Defendant No. 4 that the Will dated 30.03.1990 was found in the search after the death of late Avtar Singh Vohra. The mother of the parties has also filed her written statement in the suit filed by the Defendant No.4 and she has also admitted about the discovery of the Will dated 30.03.1990, in a search subsequent to death of her husband. It is stated by her in the written statement that the custody of the Will dated 30.03.1990 was taken by the Defendant No.2.
ii. The evidence about the search and discovery of the Will is substantively oral and parties have refuted the contentions of each other. Ld. Counsel for the Defendant No.3 has submitted that the Will dated 30.03.1990 was in custody of the Defendant No.2 and he has intentionally not produced the same. Ld. Counsel for the Defendant No. 3 has further submitted that the Defendant No.1 has written a letter dated R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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09.08.1992, i.e., Exhibit-D1W1/P-3, to the Defendant No.3 and in the aforesaid letter, the Defendant No.1 has referred to the original Will dated 30.03.1990. It is submitted that in the aforesaid letter, the Defendant No. 1 has nowhere stated that only original second page of the Will dated 30.03.1990 was ever found. The aforesaid letter Exhibit-D1W1/P-3 has been confronted to the Defendant No.1 during his cross- examination and he has admitted the aforesaid letter. The Will dated 30.03.1990 is described in the following manner in the aforesaid letter:
"....original copy of Will dated 30.03.1990 was used by our father as 'rough sheet of paper' on its back side redistribution plan was drawn and names of would be allottees written by our father himself (this paper is in custody of our brother Jagdeep Singh Vohra and he had shown to you) and we are left with the carbon copy of the Will dated 30.03.90. This proves beyond any doubt that the 'Will of 30.03.90' was discarded by our father himself and hence, 'the Will dated 30.03.90' should be called 'DISCARDED WILL' henceforth and it has no legal value......"
iii. The Defendant No.1 was given a suggestion in the cross-examination that he has not mentioned anything, about discovery of only one original page of Will dated 30.03.1990, in Exhibit D1W1/P-3. The witness has stated the same to be correct. The aforesaid letter dated 09.08.1992 was prior in point of time to the filing of the written statement by the Defendant No.1 and 2. In the aforesaid letter, the Defendant No.1 has R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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challenged the Will dated 30.03.1990 on other grounds, however has not stated that only one original page of Will dated 30.03.1990 was found. Taking into consideration the fact that the letter Exhibit D1W1/P-3 is a detailed one, the omission of aforesaid contention is a material one and a suspicion is raised about the truthfulness of the version of the Defendant No.1 and 2, as stated subsequently in the written statement. The aforesaid contention was not such, which would have been withheld in such an important communication. The aforesaid omission tilts the scale of probability in favour of the Plaintiff, the Defendant No.3 and Defendant No.4, in so far as the factum of discovery of original Will dated 30.03.1990 is concerned. This Court also intends to note here that there was a greater reluctance, on behalf of the Defendant No. 1 and 2 to file the original Will dated 30.03.1990 or its second page even in the Court. The aforesaid document was not produced before the Court unless the Court passed an Order for the production.
iv. The Will dated 30.03.1990 was a document against the interest of the Defendant No.1 and 2 and the Plaintiffs, along with Defendant No.3 and 4, have sought to prove the same against the Defendant No.1 and 2. The Defendant No.1 and 2 have stated that custody of the mother was given to the mother, whereas the mother R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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had stated that the original Will dated 30.03.1990 was in custody of the Defendant No.2. The Defendant No.2 ultimately filed the second page of the Will dated 30.03.1990, in pursuance of directions of this Court. On the basis of preponderance of probabilities, it cannot be ruled out that the original Will dated 30.03.1990 was in fact discovered. The aforesaid fact is strengthened by the Exhibit D1W1/P-3, where nothing about the Will being one page document has been mentioned. The Defendant No.3 has filed an application for production of the original Will and the complete document was not produced.
v. Therefore, in the in the overall scheme of facts on record, it has been made out that the Original Will dated 30.03.1990 was never in possession of the Plaintiffs, the Defendant No.3 and the Defendant No.4. The second page of the Will dated 30.03.1990 was produced on record by the Defendant No.2 and it cannot be completely ruled out that the first page of the Will dated 30.03.1991 was also in his possession. The Defendant No.3 has filed application for production of the document and the complete document has still not been produced. The ingredients or pre-condition under Section 65(1) of the Indian Evidence Act, 1872 have been made out on record, in so far as the first page of the Will dated 30.03.1990 is R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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concerned.
7.3.9. Whether the Will dated 30.03.1990 has been proved by the PW-2 or by Secondary Evidence?
i. The original of Will dated 30.03.1990 has not been produced. The original second page of the Will dated 30.03.1990 was produced by the Defendant No.2 and was exhibited in the examination in chief of PW-1 as Exhibit PW-1/2. It is admitted case of the parties that the aforesaid Will dated 30.03.1990 was not made in their presence and was found in a search subsequent to the death of late Avtar Singh Vohra. Though there is a dispute amongst parties as to whether the Original Will was discovered or carbon copy and a second original page of Will dated 30.03.1990 was discovered, however it is admitted by all of them that the same was discovered only after the death of late Avtar Singh Vohra. Therefore, none of parties can prove the factum of execution, creation or valid attestation of the Will dated 30.03.1990 and accordingly, the testimony of PW-2 assumes importance. Moreover, the PW-2 is attesting witness and no one can prove a Will better than attesting witness, when he is available.
ii. The PW-2 has relied upon the Exhibit PW-1/2, i.e., the second original page of the Will dated 30.03.1990, in his examination in chief. The examination in chief of the PW-2 R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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(dated 04.01.2014) is being reproduced hereinbelow:
"In the year 1990, I was living at 22 again said 5C-2, New Rohtak Road, Karol Bagh, near Liberty Cinema. I was living as my family members. The name of my mother is Jasbir Kaur. I was given house on rent by Sh. Jagdip Singh Vohra. Again said Avtar Singh Vohra (the witness has stated the name of Sh. Avtar Sing Vohra on prompting by Counsel for the Plaintiff). Avatar Singh Vohar was father of Sh. Jagdip Singh Vohra. Sh. Avtar Singh was having four sons and two daughters. Sh. Avtar Singh Vohra had asked me to become a witness to a WILL prepared by him in the year 1989-1990. (At this stage, one sealed envelop containing second page of the WILL already exhibited as Ex.PW-1/2 has been opened and the second page of the WILL is taken out which is on the letter head of the President Optical Co.). The page is shown to the witness who identifies his signatures at point A. The witness also identifies the signatures of his mother at point B and Sh. Avtar Singh at point C. I had signed this page in the room of Sh. Avatar situated on the first floor of property No. 5C, New Rohtak Road, Karol Bagh, New Delhi. I had put my signatures at point A about 9/9.30 am. The page was first signed by Sh. Avtar Singh, thereafter, it was signed by her mother and lastly I signed on the page. All the signatures were put at the same time in the same room (objected to by the Counsel for the Defendant no. 1 and 2 being leading question)."
In the above referred examination in chief, the witness does not speak anything about the first page of the Will dated 30.03.1990. The witness does not even refer to the copy of R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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first page of the Will dated 30.03.1990.
iii. In the cross-examination, the Defendant No. 3 has tried to make good the omission with regard to the first page of the Will and confronted the witness with the copy of first page of Will dated 30.03.1990, i.e., Exhibit PW-1/D3/P7. The witness has stated that the Exhibit PW-1/D-3/P7 was the first page of the Will dated 30.03.1990. The witness further identifies the signatures of testator on the same, however the witness does not state anything about the process of execution and attestation of Exhibit PW-1/D-3/P7. The cross-examination of the PW-2 by the Defendant No.3 and the Defendant No.4 is being reproduced hereinbelow:
"XXXX By Sh. H.S. Arora, Counsel for the Defendant no. 3.
It is correct that Ex.PW1/D3/P7 is the first of the Will of which the second page is Ex.PW1/2. Ex.PW1/D3/P7 bears the signatures of Sh. Avtar Singh at point A. It is correct that the Will consisted of two pages. It is correct that as per the Will Ex. PW1/D3/P7 and Ex.PW1/2, Sh. Avtar Singh had not bequeathed my portion of his estate of Sh. Jagdeep Singh and Sh. Dalbir Singh. The second page of Will Ex.PW1/D3/P7 bears my signatures at point C and the signatures of my mother at point D and that of Sh. Avtar Singh Vohra at point B. It is incorrect to suggest that Sh. Avtar Singh Vohra did not wish to give any portion to his estates to the Plaintiff or that he was anti-feminist.
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 99 of 132 Digitally signed by ANIL
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The Will Ex.PW-1/D-3/P-6 bears the signatures of my mother my Jasbir Kaur at point B and signatures of Sh. Avtar Singh Vohra at point A. It is correct that Sh. Avtar Singh was an educated and intelligent person. It is correct that he was having a type-writer and was capable of typing himself. It is correct that Sh. Avtar Singh Vohra was the owner of the H.No.5C-2, New Rohtak Road, Karol Bagh, New Delhi.
XXXXX By Sh. Rajiv Kumar, Counsel for the Defendant No.4.
Sh. Avtar Singh Vohra did not discuss with me regarding the preparation of the Will. I had only read the Will prepared by him before signing it. I had no discussion with Sh. Avtar Singh Vohra regarding the contents of the Will after signing it. I had not seen the wife of Sh. Avtar Singh signing."
However even if the above-referred cross-examination is to be read alongwith the examination in chief, the same falls short of requirement of Section 63 of Indian Succession Act, 1925, in so far the first page of the Will dated 30.03.1990 is concerned.
iv. The PW-2 though says that the Will was of two pages, however he does not say as to how, when or in what manner the first page has been signed by the testator. He also does not say that the aforesaid first page was also signed along with the second page of the Will dated 30.03.1990, at the R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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same time or in presence of the attesting witnesses. The aforesaid fact assumes importance in view of the evidence on record that the testator was in the habit of making Wills. It is the admitted the case of the Plaintiffs and the Defendant No. 3 and 4 that the testator has executed a holographic Will in the year 1988, which is Exhibit PW-1/D-3/P-6. The aforesaid document was also confronted by the Defendant No.3 to the PW-2. Though there was only one attesting witness to the Exhibit PW-1/D-3/P-6 and the same does not qualify to be a Will in terms of Section 63 of the Act, however, in view of admitted previous Will, the proof of subsequent Will in terms of the valid attestation and execution was required to be established without any doubt. In the absence of the original of the first page, the test of Section 63 of Indian Succession Act, 1925 has to be established, in reference to the copy of the same, with clear evidence. However, the PW-2 has failed to prove the first page of the Will dated 30.03.1990 in accordance with Section 63 of the Indian Succession Act, 1925.
v. The Witness has mentioned a vague time frame of the Will dated 30.03.1990. He has stated that the Will was prepared in 1989-1990. From the collective reading of chief and cross- examination of the PW-2, his own confusion about the process of execution of Will dated 30.03.1990 becomes visible. The relevant part of the cross-examination is being reproduced hereinbelow:
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 101 of 132 Digitally signed by ANIL
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"XXXX By Sh. Jagdeep Singh, Defendant No. 2 in
person.
I know Smt. Maninder Kaur @ Dimpy, wife of Sh. Jagmohan Singh. I call her by the name of Dimpy since 1984 when I had come to live in the property. It is correct that she is my sister (Dharam Behen). I have met all he relatives. As per my knowledge, all her brothers except Sh. Jagdeep Singh were in the business of Opticals. Jagmohan Singh was siting in the shop at Chandni Chowk. I am not aware if the letter head on which the second page of the Will Ex.PW-1/2 is typed belongs to the shop of Sh. Jagmohan Singh or not. I am also not aware if the telephone number mentioned on the letter head was of Jagmohan Singh or not. Sh. Avtar Singh used to go from his home but I cannot say if he used to go to the shop or not. I never had any necessity to know as to what occupation/vocation/business was being followed by Sh. Avtar Singh.
I never asked any rent receipt from Sh. Avtar Singh. I do not have any document to show that I was a tenant under Sh. Avtar Singh in the year 1990. there was no written agreement to show as to whether I or my mother was the tenant but I used to pay the rent. I do not have any bank record with me regarding the payment of rent. [Vol. I used to pay in cash]. Initially, the rent was Rs. 750/- per month and the last paid rent was about Rs.1200/1300/- per month. Again said, it was Rs.1200/- per month. I was working as a Custom Clearance Agent at that time. It is incorrect to suggest that I was never a tenant in property bearing H. NO. 5C-2, New Rohtak Road, Karol Bagh, New Delhi. The tenancy was of the ground floor having two rooms. I cannot tell the directions whether rooms were in East or West but the rooms were on the left hand side as we enter the lobby of the house. I was not paying the electricity and water bill. [Vol. The rent was inclusive R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 102 of 132 Digitally signed by ANIL
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of all other changes].
Sh. Jagomohan Singh and Smt. Maninder Kaur were living on the ground floor in two room situated on the right hand side. The last room on the left hand side was occupied by the sister of Sh. Jagmohan Singh. The front room on the left hand side used to remain locked. Sh. Jagomohan Singh was using the third room on the back side on the right hand side. I had lastly visited the aforesaid property bout 4-5 years ago and Sh. Jagomohan Singh was in occupation of three rooms. I had not seen the room on the ground floor in possession of Plaintiff No.1. I had no concern as to who was in occupation of front two rooms on the left hands side. I am living in the present house since 2002. From 1991 to 2002, I was living in H.No. 5C-22, New Rohtak Road, Karol Bagh, New Delhi. It is incorrect to suggest that I never lived in H. No. 5C-2, New Rohtak Road, Karol Bagh, New Delhi or that I have been living only in H. No. 5C-22, New Rohtak Road, Karol Bagh, New Delhi.
I was with my mother when I had signed on Ex.PW1/2. I do not remember if I had signed on both the pages of the Will or not. I can only tell after seeing the document. There were two sets of the Will but I can tell only after seeing the document. I cannot say if the writing on the back of Ex.PW1/2 is of Avtar Singh or not. I do not remember if I had seen the back portion of Ex. PW1/2 at the time of signing it. I had not seen the photocopies of the documents before entering the witnesses box. I had not seen Sh. Avtar Singh writing and signing as there was not necessity. Ex.PW1/D3/P-7 bears my original signatures at point C. The document Ex.PW1/D-3/P-7 is an original document and not a photocopy. The signatures of my mother on the said document at point D also appear to be original. I do not remember if the document was bearing the seal and stamp of Notary when I signed it. The signatures of my mother at point B on document R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 103 of 132 Digitally signed by ANIL
ANIL CHANDHEL
CHANDHEL Date:
2024.12.05
18:35:51 +0530
Ex.PW1/D-3/P-6 are original signatures. My mother had not put the signatures in my presence on Ex.PW1/D-3/P-6......."
vi. The PW-2 thus states in the cross-examination that he had signed the Exhibit PW-1/2 with his mother and he did not remember as to whether he had signed on both the pages of the Will or not. He further states that there were two sets of the Will but he could tell only after seeing the document. The fact that there were two sets of Wills, signed or executed creates darker shadow of doubt. The witness was unable to say or explain whether the writing on the back of Ex.PW1/2 is of the testator or not and he did not remember if he had seen the back portion of Ex. PW1/2 at the time of signing it. He had further stated that he had not seen the photocopies of the documents before entering the witnesses box.
vii. On the basis of testimony of the PW-2, an uncertainty has been added to the process of execution and attestation of the Will dated 30.03.1990 as he himself is unable to explain whether he had signed a two pages document or only one page. Therefore, even if the PW-2 proves the second page of the Will dated 30.03.1990, his testimony is wholly insufficient, in so far the proof of valid execution and attestation of first page is concerned. Except the testimony of PW-2, there is no other evidence, which throws light on the process of execution and attestation of the Will. Therefore even if the secondary evidence of the Will dated 30.03.1990 R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
Page No. 104 of 132 Digitally signed by ANIL ANIL CHANDHEL CHANDHEL Date: 2024.12.05 18:36:08 +0530
is to be considered, the same falls short in proving the fact that the Will has been executed in in terms of Section 63 of the Indian Succession Act, 1925. Accordingly, the Plaintiff, the Defendant No.3 and the Defendant no.4 have failed to prove that the Will dated 30.03.1990 is validly executed.
7.3.10. The nature and interpretation of the Will dated 30.03.1990:
i. The Will dated 30.03.1990 is being reproduced hereinbelow:
Local ST No.4 ESTD.1935 Phone: 2511076
CST .....1441/II DT. 1-7-57
PRESIDENT OPTICAL CO.
IMPORTERS WHOLESALE OPTICIANS - MANUFACTURERS FOUNTAIN, DELHI-110006 OUR REF. NO. DATED:
WILL Of Avtar Singh Vohra s/o Late Sh. S. Chanda Singh Vohra of Sayyad Kasran, Distt RAWALPINDI (now in Pakistan).:-
I, the above named, make myWill, in my full & NORMAL senses as below:-
1. That I am about 73 years old now and have undergone several heard attacks besides inherited Diabetes and an under treatment. My both eyes are oprated for CATARACT an d a third Operation of one eye is fixed for end of April 1990 . My fifth child;
Jagdeep Singh, Advocate, although lives free in a decent furnished flat of my house, is unable to attend to my cases. I have to attend to my cases myself, or R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
Page No. 105 of 132 Digitally signed by ANIL ANIL CHANDHEL
CHANDHEL Date:
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have engaed another Lawyer. He has not executed an easily executable case, orders of the exection were passed in mid-1989. He was using / driving my RAJDOOT Motor Cycle for 3 years; as I became very weak and unable to drive. He owns a MARUTI CAR since 1989. He has build up a BIG HOUSE near perhaps Tikri Border which iI/we have never seen He has two daughters only.
2. My eldest son, Dalbir Singh M.Sc. has a separate Optical Industry & Retail Show-room and is doing very xx well. He has an Ambassador Car & a Scooter. He was married 23 years back; and his selfish wife was given Gold Ornaments ( worh Lakhs NOW) some of the gold was purchased by me at RAWALPINDI ___ Rs.33/- per TOLA in 1940-41 for my marriage; which actually was very Solumn affair- ony 5 members in the marriage party; and my wife, a Graduate, clad in pure KHADI-Gandhian Fabrics. So, I did not use gold-ornaments for her. No gold was used in any other marriage, except some used in the marriage of younger daughter, whose father-in-law happened to be a VERY GREEDY PROFESSOR. The girl is M.A, (English) and well settled in U.S.A--- DALBIR SINGH is occupying 3 rooms in my house; but 'HAS NO TIME' for even a PETTY JOB for depositing electric bill or HOUSE tax or any other work. All payments are to be MADE BY ME......
contd..page 2
Local ST No.4 ESTD.1935 Phone: 2511076
CST .....1441/II DT. 1-7-57
PRESIDENT OPTICAL CO.
IMPORTERS WHOLESALE OPTICIANS - MANUFACTURERS FOUNTAIN, DELHI-110006 OUR REF. NO. DATED:
.......page 2.........
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 106 of 132 Digitally signed by ANIL
ANIL CHANDHEL
CHANDHEL Date:
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contd.
3. An explained/discussed in pares 1 & 2 above, I am/have to Will, that after my death, my sons- DALBIR SINGH & JAGDEED SINGH Advocate, shall have NO RIGHTS in my property No. 5C/2, New Rohtak Road, opp.
LIBERTY CINEMA, Karol Bagh, N. Delhi-5 and my other assets, consisting of S.Bank a/cs, F. Deposit a/cs, Post Office S.B.s., N.S.C.a/cs, U.T.I. investments, investments in Limited Companies & Stocks & Shares/Debentures etc. etc.
4. The above said properyy, stated in para-3 is my SELF-AQUIRED property and have full right to dispose it off according to my WILL.
5. My second son, Ripdaman Singh Vohra, who is clean-shven, who is now settled at PUNE, and and is on his feet on his own' and has got little or no help from me, is not to be ignored.
I make this 'LATEST WILL' in full/normal senses on this 30th day of March, 1990. All previous Wills if any be demeemed null & void.
Avtar Singh Vohra 5C-2, New Rohtak Rd. N. Delhi-5 Witnesses:-
1. Mrs. Jasbir Kaur Widow of S. Pritpal Singh r/o _____ C-2, New Rohtak Rd. New Delhi-5
2. S. Paramjit Singh S/o S. Prit Pal Singh.....
of SUNRISE AIR SERVICE, r/o 5C-2, New Rohtak RD., N. Delhi-5"
ii. The Will dated 30.03.1990 has been created on the letter head of President Optical Co. It is has argued by the Ld. Counsel R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 107 of 132 Digitally signed by ANIL CHANDHEL
ANIL CHANDHEL Date:
2024.12.05 18:36:30 +0530 for the Defendant No.1 and 2 that the aforesaid document does not qualify to be termed as a Will. It is submitted that the document is not intended to confer any right on anyone and has been worded negatively. The definition of a Will is provided in Section 2(h) of the Indian Succession Act, 1925 and the same is being reproduced hereinbelow:
"Will means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death."
If the afore-mentioned definition is examined, the Will dated 30.03.1990 is a declaration with regard to property of the testator and thus may technically falls within the definition of a Will. Merely because a document takes away the rights to be otherwise conferred by way of succession, that does not by itself make the Will any lesser Will. The very objective of a Will is to cause disruption in normal line of succession.
iii. However the Will dated 30.03.1990 has certain other challenges to meet in order to be declared as a valid Will. The document, if read completely, does not appear to be a document, which could be said to be executed by a person in the rational state of mind. It has been stated by the parties that late Avtar Singh Vohra was an intelligent being and was well versed in law. First of all, the Will dated 30.03.1990 does not grant any right, benefit or interest in the suit property to anyone. The Will declares that the Defendant R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
Page No. 108 of 132Digitally signed by ANIL CHANDHEL ANIL CHANDHEL Date:
2024.12.05 18:36:35 +0530 No.1 and 2 will not be entitled to the suit property and the Defendant No.4 is not to be ignored. However the Will does not specify as to whom the property will given, besides the Defendant No.4 and what would be share of the Defendant No.4 in the same.
iv. Ld. Counsel for the Plaintiffs has submitted that the property was given to the Plaintiffs, the Defendant No.3 and the mother of parties in terms of the aforesaid Will. It further submitted that the Defendant No.1, 2 and 4 are not entitled to any share in the suit property in terms of the Will. Ld. Counsel for the Defendant No.3 has submitted that the Plaintiffs are not entitled to any share in terms of the Will dated 30.03.1990, as Late Avtar Singh Vohra was anti-feminist and did not want to bequeath any share to female members of the family. It is further submitted by him that the Defendant No.3 has a majority share in the suit property and the Defendant No.4 has a minority share in the same, in term of the Will dated 30.03.1990. However what those majority and minority shares are, even the ld. Counsel for the Defendant No.3 was unable to specify nor any such specification is inferable from the Will. Ld. Counsel for the Defendant No.4 has submitted that the rights of the Defendant No.1 and 2 have taken away, in terms of the Will dated 30.03.1990 and the Will grants rights in the suit property to the remaining legal heirs of the late Avtar Singh Vohra in equal share.
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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v. However this Court is unable to concur with any of the afore-
mentioned submissions or interpretations of the Will dated 30.03.1990. A document can-not state more than what it states and the document in question does not state anything as has been submitted by the Ld. Counsels for the Plaintiffs, the Defendant No.3 and the Defendant No.4. There is nothing on record to show that late Avtar Singh Vohra was anti-feminist.
vi. The recitals or clauses of the Will do not permit any evidence, as the same are deficient on the face of it. It is provided in Section 81 of the Indian Succession Act, 1925 that in case ambiguity or deficiency on the face of the Will, no extrinsic evidence with regard to intention of the testator is to be admitted. Section 81 of the Act of 1925 is being reproduced hereinbelow:
"81. Extrinsic evidence inadmissible in case of patent ambiguity or deficiency:
Where there is an ambiguity or deficiency on the face of a will, no extrinsic evidence as to the intentions of the testator shall be admitted.
Illustrations:
(i) A man has an aunt, Caroline, and a cousin, Mary, and has no aunt of the name of Mary. By his Will he bequeaths 1,000 rupees to "my aunt, Caroline" and 1,000 rupees to "my cousin, Mary" and afterwards bequeaths 2,000 rupees to "my before-mentioned aunt, Mary". There is no person to whom the description given in the Will can apply, and evidence is not admissible to show who was meant by "my before-mentioned aunt, Mary". The bequest is, R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 110 of 132 Digitally signed by ANIL CHANDHEL
ANIL CHANDHEL Date:
2024.12.05 18:36:46 +0530 therefore, void for uncertainty under section 89.
(ii) A bequeaths 1,000 rupees to............leaving a blank for the name of the legatee. Evidence is not admissible to show what name the testator intended to insert.
(iii) A bequeaths to B .......................rupees, or "my estate of........................" Evidence is not admissible to show what sum or what estate the testator intended to insert."
vii. The above-mentioned provision, along with its Illustration (more particularly illustration No.(ii)} squarely covers the situation of Will in question. The names, details and rights of the Plaintiffs and the Defendant No.3 are expressly absent and cannot even be remotely inferred from the terms of the same. It remains to be explained if the testator intended to confer any rights on the Plaintiffs or the Defendant No.3, then why would he not specifically mention the names, alongside the Defendant No.4. The interpretation given by the Plaintiffs and the Defendant No.3 and 4 require evidence, which cannot be admitted in the present case. Moreover there is no evidence in support of the aforementioned interpretation.
viii. There is strange clause about the Defendant No.4 not to be ignored. It becomes completely uncertain to infer as to what extent and what share, the Defendant No.4 becomes entitled to. This Court finds the recitals of the Will uncertain and it would be relevant to refer to Section 89 of the Indian Succession Act, 1925, which is being reproduced R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
Page No. 111 of 132 Digitally signed by ANIL ANIL CHANDHEL
CHANDHEL Date:
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hereinbelow:
"89. Will or bequest void for uncertainty.
A will or bequest not expressive of any definite intention is void for uncertainty.
Illustration:
If a testator says "I bequeath goods to A," or "I bequeath to A," or "I leave to A all the goods mentioned in the Schedule" and no Schedule is found, or "I bequeath 'money,' 'wheat,' 'oil,' or the like, without saying how much, this is void."
In terms of Section 89 of the Act and its illustration, the non- defining of share makes a Will uncertain and such a bequest will be void for uncertainty. From the Will no useful bequest can be inferred and the collective reading of the Will does not permit the interpretations, as offered by the Plaintiffs or the Defendant No.3 or the Defendant No.4. Therefore, the Will dated 30.03.1990 is declared to be void for its uncertain terms and vagueness of disposition.
7.3.11. Suspicious Circumstances surrounding the Will dated 30.03.1990:
i. The Will dated 30.03.1990 has been executed on the letter head of a business concern. The aforesaid business concern, in terms of the admitted case of the Plaintiffs and the Defendant No.3, was not a part of the estate of Late Avtar Singh Vohra. Moreover, the aforesaid business concern is not R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 112 of 132
Digitally signed by ANIL CHANDHEL ANIL CHANDHEL Date:
2024.12.05 18:37:51 +0530 even the subject-matter of the bequest in the Will dated 30.03.1990. The reason for creating a Will upon the aforesaid letter head remains to be explained.
ii. The signature of the testator on the first page of the Will dated 30.03.1990 is not at the usual place. The aforesaid signatures are on the middle left hand side of the page, whereas usually it should have at the bottom, if a person familiar in law and worldly wisdom executes the same. There is no gap in the typed material and for signatures on the second page.
iii. The recital of the Will are unusual and appears to be out of context at some places. Any ordinary person would not address the father-in-law of his daughter to be a very greedy person. The aforesaid expression is without any context as the aforesaid daughter was neither being given any share nor held to be dis-entitled. The randomness of the expressions and the terms in the Will makes it doubtful to conclude, whether the same has been executed by rational person, in a clear disposing state of mind.
iv. The reason for not giving any share to the Defendant No.1 are two; firstly his wife was given gold ornaments at the time of marriage and secondly, he does not deposit electricity, house tax and the testator was the only one paying the same. If that be so, the Plaintiffs, the Defendant No.3 and the Defendant No.4 are in no better position than the Defendant R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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CHANDHEL Date:
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No.1. It is not the case of the either of the parties that any help was being offered by them either.
v. The Defendant No.3 has confronted the PW-2 with another Will dated 29/30.07.1988, i.e., Exhibit PW1/D3/P7, which is stated to be a holographic Will of the late father. The aforesaid Will had only one witness and therefore, does not qualify to be a Will under Section 63 of the Indian Succession Act, 1925. However, the aforesaid Will is of the same time period and there is a substantive difference in the nature of bequest in both the Wills. Therefore, it remains to be explained as to what were the circumstances so material, which would compel the father to execute a completely different Will.
7.3.12. Whether the Will dated 30.03.1990 is forged?
The Defendant No.1 and 2 have stated that the Will dated 30.03.1990 is forged and fabricated. The Defendant No.1 and 2 have also sought declaration in the Counter-claim for declaring the Will dated 30.03.1990 as forged and fabricated. Though the Will dated 30.03.1990 has not been proved, however that by itself is not conclusive of the fact that the Will dated 30.03.1990 was forged and fabricated. The original first page of the Will dated 30.03.1990 is not produced on record. No evidence has been led by the Defendant No.1 and 2 to prove that the signatures of the R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
Page No. 114 of 132 Digitally signed by ANIL CHANDHEL ANIL Date: CHANDHEL 2024.12.05 18:39:19 +0530
testator are forged on the Will. No comparison of signatures of the testator on the Will, with his admitted signatures has been established on record. Moreover, even the original first page is not available for any comparison by the Court. Therefore, the forgery and fabrication of the Will dated 30.03.1990 has not established by any affirmative evidence on behalf of the Defendant No.1 and 2.
7.3.14. Therefore, in terms of the discussion hereinabove, the Will dated 30.03.1990 has not been proved in accordance with Section 63 of Indian Succession Act, 1925. The Will dated 30.03.1990 is void for uncertainty. The suspicious circumstances around the Will dated 30.03.1990 have not explained or removed by the propounders of the Will.
7.4. The proof of Will dated 16.05.1994:
The Plaintiff has stated that late Harcharan Kaur has executed a Will dated 16.05.1994, whereby she has bequeathed her share in the suit property, in favour of the Plaintiff No.1. Therefore, the onus to prove the Issue No. 5 as well as the Will dated 16.05.1994 is upon the Plaintiffs. The Plaintiff No.1 has not relied upon the aforesaid Will in her examination in chief. The Plaintiff has not proved the Will, in terms of Section 63 of the Indian Succession Act, 1925. No attesting witness was summoned to prove the factum of execution and valid attestation of the aforesaid R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 115 of 132 Digitally signed by ANIL
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document, in terms of Section 63 of the Indian Succession At, 1925. Accordingly, the Will dated 16.05.1994 has not been proved.
8. Conclusions on Issues in the partition suit, i.e., Civ DJ No. 607994/2016, in terms of discussion and reasons stated in Para No. 7:
8.1. Issue No.1: To what share, if any, are the parties entitled in house No.5-C/2, New Rohtak Road, New Delhi?
8.1.1. It is admitted by the all the parties that late Avtar Singh Vohra was the owner of the suit property, i.e., property No.5-
C/2, New Rohtak Road, New Delhi-110005. The parties have not led any evidence with regard to the ownership of the late Avtar Singh Vohra. After conclusion of the evidence, the Defendant No.4 has filed the copy of the sale deed dated 17.09.1953, along with the official translation, in favour of late Avtar Singh Vohra. Ld. Counsels for other parties have admitted the aforesaid document and submitted that late Avtar Singh Vohra was the owner of the suit property, in terms of the aforesaid sale deed.
8.1.2. The parties have failed to prove the Wills dated 30.03.1990, 19.12.1991 and 16.05.1994, as discussed, in terms of para 7 hereinabove. Consequently, upon death of late Avtar Singh Vohra, his legal heirs have become entitled to the suit R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
Page No. 116 of 132 Digitally signed by ANIL ANIL CHANDHEL
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property in equal share. During the pendency of the Civ DJ No.609146/2016 and prior to filing of Civ DJ No.607994/2016, the wife of late Avtar Singh Vohra, namely late Harcharan Kaur, both dying intestate, has also passed away and her share in the suit property has also devolved upon the parties to the Civ DJ No.607994/2016. During the pendency of the Civ DJ No.607994/2016, the Plaintiff No.1 has also passed away and the aforesaid fact was communicated to this Court on 02.12.2016. It is submitted by Ld. Counsels for the parties that the Plaintiff No.1 was unmarried and did not have any first line legal heirs and she is survived by the Plaintiff No.2 and the Defendants, who are her second line legal heirs. As a consequence of death of the Plaintiff No.1 and the mother of the parties, their share have also fallen to the share of the Plaintiff No.2, the Defendant No.1, the Defendant No.2 (upon his branch, which is represented by LRs on record), the Defendant No.3 (upon his branch, which is represented by LRs on record) and the Defendant No.4. Therefore, the Plaintiff No.2, the Defendant No.1, the Defendant No.2 (his branch/ legal heirs), the Defendant No.3 (his branch/ legal heirs) and the Defendant No.4 have become co-owners of the suit property in 1/5th share each.
8.1.3. Accordingly, the Plaintiff No.2, the Defendant No.1, the Defendant No.2 (his branch represented through legal heirs on record), the Defendant No.3 (his branch represented R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
Page No. 117 of 132 Digitally signed by ANIL ANIL CHANDHEL CHANDHEL Date: 2024.12.05 18:39:36 +0530
through legal heirs on record) and the Defendant No.4 have become co-owners of the suit property, i.e., the Property No. 5-C/2, New Rohtak Road, New Delhi-110005, in 1/5th share each.
8.2. Issue No.2: Whether Shri Avtar Singh Vohra executed a Will dated 30.03.1990?
In terms of the detailed discussion under para 7.3, hereinabove, it has been concluded that the Plaintiffs, the Defendant No.3 and the Defendant No.4 have failed to prove the Will dated 30.03.1990. Accordingly, the Issue No.2 is decided in the negative.
8.3. Issue No.3: Whether Shri Avtar Singh Vohra executed a Will on 19.12.1991? If so, its effect?
In terms of the detailed discussion under para 7.2, hereinabove, it has been concluded that the Plaintiffs, the Defendant No.3 and the Defendant No.4 have failed to prove the Will dated 19.12.1991. Accordingly, the Issue No.3 is decided in the negative.
8.4. Issue No.4: If issue No.3 is answered in affirmative, whether the Will dated 19.12.1991 was acted upon by the heir of Avtar Singh Vohra?
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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The Issue No. 4 is dependent upon the Issue No.3. Since this Court has disbelieved the Will dated 19.12.1991 and the Issue No. 3 has been answered in the negative, therefore, the Issue No.4 has become infructuous and no findings are required to be given on the same.
8.5. Issue No.5: Whether Smt. Harcharan Kaur executed a Will on 16.05.1994? If so, its effect?
In terms of the detailed discussion under para 7.4, hereinabove, it has been concluded that the Plaintiffs, have failed to prove the Will dated 19.12.1991. Accordingly, the Issue No.3 is decided in the negative.
8.6. Issue No.6: If issue No.5 is answered in affirmative,
whether the Will dated 16.05.1994 of
Smt. Harcharan Kaur can be acted
upon in view of the WS filed by her in
suit No.401/93?
The Issue No. 6 is dependent upon the Issue No.5. The findings on this Issue are warranted only if the Issue No.5 had been decided in affirmative. Since the Will dated 16.05.1994 has not been proved and the Issue No. 5 has been answered in the negative, therefore, the Issue No.6 has become infructuous and no findings are required to be given on the same.
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
Page No. 119 of 132 Digitally signed by ANIL ANIL CHANDHEL CHANDHEL Date: 2024.12.05 18:39:47 +0530 8.7. Issue No.7: Whether the suit as laid is maintainable?
No specific arguments have been addressed by the Defendants on the aforesaid Issue. The specific ground of bar of maintainability is discussed in terms of the Issue No.8 and no other bar of maintainability has been pointed out or addressed. Therefore, this Issue is accordingly decided in favour of the Plaintiff and against the Defendants.
8.8. Issue No.8: Whether the suit is bad for partial partition?
8.8.1. The Defendant No.1 and 2 have raised an objection that the present suit is for partial partition of the estate of Late Avtar Singh Vohra and such a suit is not maintainable for one of the properties. It has been submitted by Ld. Counsels for Defendant No.1 and 2 that Late Avtar Singh Vohra was the owner of the the following three properties:
i. The suit property, i.e., 5-C/2, New Rohtak Road, New Delhi-110005.
ii. The Shop No. 1468, Fountain, Chandani Chowk, Delhi-110006.
iii. The Shop No.72, Khanna Market, Tis Hazari, Delhi.
8.8.2. Ld. Counsel for the Defendant No. 3 has submitted that the R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 120 of 132 Digitally signed by ANIL
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Defendant No.3 is the recorded owner of the shop no. 1468, in terms of a registered sale deed dated 07.06.1978. The copy of the aforesaid sale deed was filed on record. The aforesaid sale deed has executed by Ms. Brijkishori Devi, Radhey Shyam Jain and Vinod Kumar Jain, in favour of the Defendant No.3 in the year 1978. Ld. Counsel for the Defendant No.1 has submitted that the aforesaid shop belonged to the father and he had filed a separate suit, which is pending in the Court of Ld. District Judge, Central District, THC, Delhi, for challenging the aforesaid sale deed.
There is nothing on record in the present suit to conclude that the shop no. 1468 was owned by the father or he had any kind of rights in the same.
8.8.3. The D1W1 had admitted in the cross-examination that the sale deed of the shop no.1468 is in the name of the Defendant No.3. The question number 21 to 25 in the cross- examination of the Defendant No.1 dated 05.05.2017 lead to the conclusion that the Defendant No.1 had the knowledge about the sale deed of the aforesaid shop being in the name of the Defendant No.3. The Defendant No.1 has stated that the factum of sale deed has been communicated by the later father to the Defendant No.1 after 3-4 years from the date of execution of the sale deed.
8.8.4. No evidence on record has been produced by the Defendant No.1 and 2 to show that the shop no.1468 belonged to the R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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father or was part of the estate of the father. The Defendant No.1 has filed his case with regard to the challenge to the aforesaid sale deed in a different Court and is at liberty to explore his remedies in the aforesaid suit. However, till the time, the sale deed in the name of the Defendant No.3 is not cancelled, the aforesaid property cannot be assumed or made part of the estate of late father.
8.8.5. Though it is not mentioned in the pleadings, however, the parties have stated that late Avtar Singh Vohra was owner of shop no. 72, Khanna Market, Tis Hazari, Delhi-110054. The Defendant No.1 has contended in the cross-examination that the aforesaid was orally been given to the Defendant No.2 by the late father of the parties. Ld. Counsel for the Defendant No.3 has stated that late Avtar Singh Vohra was owner of the aforesaid shop. It is submitted by him that the aforesaid shop is not in possession of any of the parties. It is submitted that the aforesaid shop is in possession of a tenant and the litigation is going on with the tenant since the life time of the father. It is further submitted that it is difficult to anticipate, as to whether the aforesaid litigation would result in favour of the legal heirs of the late Avtar Singh Vohra. It is further submitted that it can also not be anticipated as to how much further time it would take to recover the possession of the aforesaid shop. The factum of the shop not being in possession of the parties is not disputed by any of the parties. The factum of ongoing litigation with the tenant for recovery R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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of possession is also not disputed by the parties.
8.8.6. It has been held by the Hon'ble Supreme Court of India in, "B.R. Patil Vs. Tulsa Y. Sawkar and Ors.:
2022(4)SCALE122", that the bar of partial partition is not absolute one and a suit can-not be dismissed on the ground of partial partition for omission of the properties, not in possession of coparceners or family members. The relevant observations of the Hon'ble Court are being reproduced hereinbelow:
"10. This is the state of the pleading and evidence in support of the existence of the property other than what has been scheduled by the Plaintiffs and for which partition is sought. It is true that the law looks with disfavor upon properties being partitioned partially. The principle that there cannot be a partial partition is not an absolute one. It admits of exceptions. In Mayne's 'Treatise on Hindu Law & Usage' 17th Edition, Paragraph 487, reads as follows:
487. Partition suit should embrace all property -
Every suit for a partition should ordinarily embrace all joint properties. But this is not an inelastic Rule which admits circumstances of a particular case or the interests of justice so require. Such a suit, however, may be confined to a division of property which is available at the time for an actual division and not merely for a division of status. Ordinarily a suit for partial partition does not lie. But, a suit for partial partition will lie when the portion omitted is not in the possession of coparceners and may R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 123 of 132 Digitally signed by ANIL
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consequently be deemed not to be really available for partition, as for instance, where part of the family property is in the possession of a mortgagee or lessee, or is an impartible Zamindari, or held jointly with strangers to the family who have no interest in the family partition. So also, partial partition by suit is allowed where different portions of property lie in different jurisdictions, or are out of British India. When an item of property is not admitted by all the parties to the suit to be their joint property and it is contended by some of them that it belongs to an outsider, then a suit for partition of joint property excluding such item does not become legally incompetent of any Rule against partial partition.
11. In the facts of this case having noticed the state of the pleadings and the evidence, we are of the view that the interest of justice lies in rejecting the Appellant's contention. The Appellant has not been able to clearly establish the exact extent or identity of the property available by way of ancestral property. Despite claiming to having documents relating to the properties and admitting to having no difficulty to produce them, he does not produce them. He is unable to even give the boundaries. It is obvious that he does not claim to be in possession of the said properties even if it be as a co-owner on the basis that it is ancestral property. His evidence discloses that in reality and on the ground these properties could not be said to be actually available for the parties to the present suit to lay claims over them. Properties not in the possession of co sharers/coparceners being omitted cannot result in a suit for the partition of the properties which are in their possession being rejected."
Since the Defendant No.1 and 2 have themselves claimed the R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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shop No. 72 to be owned by Defendant No.2, therefore, the objection of partial partition, based on omission of the aforesaid shop, on their behalf is self-contradictory. Though as a matter of fact, besides oral submissions, no documents have filed or established on record to infer the ownership or nature of rights of the late father of the parties with regard to the Shop No.72, Khanna Market, Tis Hazari, Delhi-110054.
8.8.6. In view of the above-mentioned legal position, the bar of partial partition is not attracted to the present suit, as the shop No.72 is not in possession of the parties to the suit. Moreover, this Court finds it to be completely unjustified to dismiss the suit only on the basis of unsubstantiated plea of partial partition, after three decades of adjudication in the suit. Accordingly, this Issue is decided in favour of the Plaintiffs and against the Defendant No.1 and 2.
8.9. Issue No.9: Whether the plaint has been signed and verified by a competent and duly authorized person on behalf of Plaintiff No.2?
The Defendant No.1 and 2 have raised a plea that the present suit has been filed without the authority of the Plaintiff No.2. However, the PW-1 has filed the original General Power of Attorney on behalf of the Plaintiff No.1 and the same has been exhibited in examination in chief as Exhibit PW-1/1. The Plaintiff No.1 has passed away during the pendency of R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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the present suit, without leaving any first line legal heirs and is survived by the Plaintiff No.2 and the Defendants. No arguments have been addressed on behalf of the Defendant No.1 and 2 as to how the suit has not been filed by the authorized person. The present suit is a suit for partition and all the parties are the Plaintiffs and the Defendants in the same. Therefore, the aforesaid objection does not hold any ground. Accordingly, the Issue No. 9 is decided in the affirmative and in favour of the Plaintiff.
8.10. Issue No.10: Whether the suit has been properly valued for the purpose of court fee and jurisdiction?
The suit was instituted in the year 1996. The suit was valued for the purposes of jurisdiction for Rs.4,00,000/-. The Plaintiffs have stated that they are in actual physical possession of the part of the suit property and accordingly have paid the fix Court fees. It is not disputed that the Plaintiff No.1 was in possession of the part of the suit property, at the time of the institution of the present suit, therefore, the Plaintiffs were entitled to pay the fix Court fees. No arguments have been addressed on behalf of the Defendant No.1 and 2 to point out any infirmity in the valuation and accordingly, this Issue is decided in favour of the Plaintiff and against the Defendant No.1 and 2.
9. Conclusions on Issues in Civ DJ No 609146/2016 and R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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Counter Claim No. 52/2024 and reasons for such conclusions:
9.1. Issue No.1: Whether the Plaintiff is entitled for the relief of declaration to the effect that document dated 19.12.1991 is a forged and fabricated document? OPP.
The onus to prove this Issue is upon the Plaintiff. In terms of discussion and reasons stated in Para No.7.2 and under the Issue No.3 of Civ DJ No.607994/2016, it has been held that the Defendant No.1 and 2 have failed to prove the Will dated 19.12.1991. Though the Will dated 19.12.1991 has not been proved, however the same by itself does not prove that the Will dated 19.12.1991 is forged and fabricated. The contention of forgery or fabrication are required to be proved by a party, who alleges the same. No comparison of the admitted original signatures of late Avtar Singh Vohra with the signatures on the Will dated 19.12.1991 has been established on record. Ideally the aforesaid comparison lies in the domain of handwriting expert. No expert evidence has been produced. The present case was a contentious one and the original of the Will dated 19.12.1991 has not even been produced. The parties have disputed the signatures of Avtar Singh Vohra as relied upon by the other. There is no affirmative evidence on record to conclude the factum of forgery. Therefore, the Plaintiff has failed to prove that the Will dated 19.12.1991 is forged and fabricated. Accordingly, R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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this Issue is decided against the Plaintiff.
9.2. Issue No.2. Whether the Plaintiff is entitled for the relief of permanent injunction, as prayed for? OPP The Plaintiff has sought permanent injunction against the Defendant No.1 and 2 for dispossessing him from the suit property or restraining them from creating any third party right in the suit property. The Plaintiff has himself stated that during the pendency of the suit, he has been dispossessed and thereafter he has filed an application under Order VI Rule 17 of CPC for amendment in the plaint for the prayers of restoration of his possession of the suit property. However, the aforesaid application was dismissed and this Court noted that the substantiative relief of partition has been claimed in the other suit. The Plaintiff himself states that he is not in possession and therefore, his prayer with regard to restraining the Defendant No.1 and 2 from interfering with his possession does not survive. Once the preliminary decree for partition is being passed with regard to suit property in the Civ DJ No.607994/2016, the question of possession or injunction in favour of the Plaintiff has been rendered infructuous. In so far as the permanent injunction for not creating third party right is concerned, the same has also been taken care of the decree passed in the Civ DJ No.607994/2016. The Issue is answered accordingly in the negative.
R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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9.3. Issue No.3. Whether the suit of the Plaintiff is
barred u/S 34 of the Specific Relief Act, as the Plaintiff has not approached the Court with clean hands?
OPD-1& 2.
The onus to prove this Issue is upon the Defendant No.1 and
2. The Defendant No.1 and 2 have stated that the Plaintiff has not sought possession and in terms of Section 34 of the Specific Relief Act, 1963, the Plaintiff is not entitled to prayer of declaration alone. Though the consequential prayer, for a co-owner against another co-owner would not be the prayer of possession, but will be the prayer of partition. Since the suit for partition has been filed, subsequent to the filing of the present suit, the objection of the Defendant No.2, with regard to the consequential prayer does not survive. Though the objection raised by the Defendant No.1 and 2 is misconceived, however as the preliminary decree for partition of the suit property is being passed in the Civ DJ No.607994/2016 and therefore, the discussion on the present Issue is rendered purely academic.
9.4. Issue No.4: Whether the Will dated 30.03.1990 is a
forged and fabricated document?
OPD-1 & 2.
It has been held in the discussion and reasons stated in Para 7.3.12 that the Defendant No.1 and 2 have failed to establish R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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the factum of forgery with regard to the Will dated 30.03.1990. Accordingly, this Issue is decided in the negative and against the Defendant No.1 and 2.
9.5. Issue No.5: Whether the suit is bad for mis-joinder of parties? OPD-1 & 2.
The onus to prove this Issue is upon the Defendant No.1 and
2. No arguments have been addressed on the same. The suit pertains to the property left behind by the late father of the parties. The suit was filed by a son against his mother, brothers and sisters, who have become co-owners upon the death of the father. Therefore, the objection of mis-joinder is completely misconceived and is deiced against the Defendant No.1 and 2.
9.6. Issue No.6: Whether the defendants / counter-
-claimants are entitled for the relief of declaration as prayed for? OPD-1 & 2.
The Defendant No.1 and 2 has sought declaration in terms of their Counter-Claim for declaring the Will dated 30.03.1990 forged, fabricated, null and void and for declaring the Will dated 19.12.1991 as last Will of Late Avtar Singh Vohra. The prayers of declaration in the counter-claim have not been valued and no Court fees have paid on the same. Though the Will dated 30.03.1990 has not been proved by the Plaintiff, however the Defendant No.1 and 2 have also not proved the contention of forgery and fabrication with R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).
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regard to the Will dated 30.03.1990 and therefore they are not entitled to declaration as sought by them. The Defendant No.1 and 2 have also failed to prove the Will dated 19.12.1991. Therefore, they are also not entitled to the declaration of the Will dated 19.12.1991 being the final Will of the testator. This Issue is accordingly decided against the Defendant No.1 and 2.
10. Final Decision:Relief:
i. The Civil Suit No.609146/2016, titled as, " R. D. Vohra vs. Dalbir Singh Vohra" is dismissed. The decree sheet be drawn accordingly.
ii. The Counter Claim No.52/2024, titled as, "Dalbir Singh Vohra vs. R. D. Vohra is dismissed. The decree sheet be drawn accordingly.
iii. In the Civil Suit No.607994/2016, titled as Manmohan Kaur vs. Dalbir Singh Vohra", a preliminary decree for partition of the suit property bearing No. 5-C/2, New Rohtak Road, New Delhi is passed and it is determined that the Plaintiff No.2, the Defendant No.1, the Defendant No.2 (his branch/ legal heirs), the Defendant No.3 (his branch/ legal heirs) and the Defendant No.4 are entitled to 1/5th share each in the suit property. The decree for permanent injunction is also passed, whereby the parties are restrained from R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 131 of 132 Digitally signed by ANIL
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parting with the possession or from creating any third party rights in the suit property, till the partition of the same is finally effected, in terms of the final decree of partition. The decree sheet be drawn accordingly.
iv. The Counter-claim No.53/2024, titled as "Dalbir Singh Vohra vs. Manmohan Kaur", has been filed by the Defendant Nos. 1 and 2, for the prayer of possession in addition to the prayer of declaration with regard to Will dated 19.12.1991. The aforesaid prayers have not been valued and no court-fees has been paid on the same. In terms of the discussion, on the issues in Civ DJ No. 607994/2016, the Defendant Nos. 1 and 2 are not entitled to any declaration with regard to Will dated 19.12.1991. Further, the Defendant Nos. 1 and 2 are also not entitled to prayers of possession, in view of the preliminary decree of partition, passed hereinabove. Accordingly, the Counter Claim No.53/2024 is dismissed. The Decree sheet be drawn Digitally signed accordingly. ANIL by ANIL CHANDHEL CHANDHEL Date:
2024.12.05 18:41:05 +0530 Announced in the open Court (ANIL CHANDHEL) today on 5th of December, 2024 DISTRICT JUDGE-04 WEST DISTRICT THC/DELHI/05.12.2024 R.D. Vohra Vs. Dalbir Singh Vohra (CIV DJ NO. 609146/2016 & Counter-claim No. 52/2024) & Manmohan Kaur Vs. Dalbir Singh Vohra (CIV DJ No.607994/2016 & Counter-claim No. 53/2024).Page No. 132 of 132