Delhi District Court
Ranjana Arora vs Satish Kumar Arora (Since Deceased) on 5 October, 2024
IN THE COURT OF SH. SHIV KUMAR
DISTRICT JUDGE -02,
WEST DISTRICT: TIS HAZARI COURTS, DELHI.
Civ DJ no. 613211/16
CNR No. DLWT01-004890-2016
Smt. Ranjana Arora
D/o Late Sh. M. L. Arora
R/o 4606, Gali Shahtara,
Ajmeri Gate, Delhi-110006.
. . . Plaintiff
Versus
1. Late Sh. Satish Kumar Arora
(since deceased through Lrs)
(i) Smt. Ranjana Arora (plaintiff).
(ii) Sh. Surender Kumar Arora (defendant no. 2).
(since deceased represented by legal heirs).
(a) Sh.Vikas Arora (son)
(b) Smt Anamika Arora (daughter).
(iii) Sh. Ashok Kumar Arora (defendant no. 3)
(iv) Sh. Vinod Arora (defendant no. 4).
2. Sh. Surender Kumar Arora
S/o Late Sh. M.L. Arora
R/o 4606, First Floor,
Gali Shahtara, Ajmeri Gate,
Delhi-110006.
3. Sh. Ashok Kumar Arora
S/o Late Sh. M.L. Arora
R/o J-67, Kirti Nagar,
New Delhi-110015.
CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 1 of 49
Also at R/o J-8/67, First Floor,
Rajouri Garden, New Delhi-110027.
4. Sh. Vinod Arora,
S/o Late Sh. M.L. Arora
R/o 4606, Gali Shahtara,
Ajmeri Gate, Delhi-110006.
. . . Defendants
Date of institution of the case : 27.05.1997
Date on which reserved for judgment : 07.09.2024
Date of pronouncement of Judgment: : 05.10.2024
THE SUIT FOR PARTITION AND ACCOUNTS FILED BY
THE PLAINTIFF.
JUDGMENT
1) Vide this judgment, I shall decide the suit for partition and accounts filed by the plaintiff against the defendants.
CASE OF THE PLAINTIFF AS PER HER PLAINT:
2) According to the plaint, the case of the plaintiff in nutshell is that the plaintiff is the sister of all the defendants and all the parties except Sh. Ashok Kumar Arora, (defendant no. 3), reside in the same house 4606, Gali Shahtara, Ajmeri Gate, Delhi-110006 and this house is rented one.CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 2 of 49
3) It is averred in the plaint by the plaintiff that father of the plaintiff and the defendants was the owner of one-
half share in the property bearing no. 18A in Kirti Nagar Ware Housing Scheme (Area around 225 Sq. yards), New Delhi. It is further averred that Late Sh. Madan Lal Arora was a partner in the firm, M/s Madan Lal & Co. and he had 65% share in the said firm and the defendant no 4 had 35 % share. It is further averred in the plaint that the firm was dealing in the business of scrap (junk material).
4) It is further averred in the plaint by the plaintiff that Sh. Madan Lal Arora died at Delhi on 13.05.1995. It is further averred that during his life time, Late Sh. Madan Lal Arora (herein after referred to as 'the deceased') had executed his Will dated 05.04.1995, registered with the sub-registrar.
5) It is further averred in the plaint by the plaintiff that Late Sh. Madan Lal Arora bequeathed his entire property immovable and movable to the plaintiff and the defendant no. 1, 3 & 4 in equal shares. It is further averred in the plaint by the plaintiff that the defendant no. 2 has been excluded from the legacy by the deceased.
6) It is further averred in the plaint that the plaintiff has learnt that defendant no. 1, 3 & 4 have acquired assets, in the form of moveable properties like scooters, a Maruti van, Colour T.V. and V.C.R. and immovable properties like plots of land and shops in their names with the funds of the firm, M/s Madan Lal & Co.
CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 3 of 497) It is further averred in the plaint that the defendant no. 1 & 2 jointly and defendant no. 3 & 4 jointly acquired one plot each at Karawal Nagar, Delhi.
8) It is further averred in the plaint that the defendant no. 1floated a firm known as M/s Ashok Kumar & Co. showing the address of the firm at residence at 69 MM Road, Rani Jansi Road, Delhi ad measuring 125 yards.
9) It is further averred in the plaint that defendant no. 1, Sh. Satish Kumar Arora, floated a firm, M/s Satish Kumar Arora & Co. doing the business of scrap at 18A, Kirti Nagar ware housing scheme, New Delhi, the same premises where the firm, M/s Madan Lal & Co. was transacting the business; Satish Kumar Arora & Co. has also established branches at Okhla, Mayapuri and Motia Khan.
10) It is further averred in the plaint that defendant no. 4, Sh. Vinod Kumar Arora, acquired two shops at B-251, Naraina Industrial area, Delhi.
11) It is further averred in the plaint that the defendant no. 1, 3 & 4 acquired scooters- two wheelers and defendant no. 1 acquired one Maruti van.
12) It is further averred in the plaint that defendant no. 1 acquired one property at WZ-263, Uttam Nagar, Delhi.
13) It is further averred that the abovesaid properties have been acquired by the defendants with the funds of the CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 4 of 49 firm, M/s Madan Lal & Co. which have been syphoned off by the defendants to their own advantage and to the detriment of the plaintiff.
14) It is further averred in the plaint that the plaintiff requested all the defendants for partition of the properties and also rendition of accounts to give the ¼ th share to the plaintiff as per the bequest made by deceased. It is further averred that notice dated 12.09.1996 was sent by the plaintiff, which was duly received and replied by defendant no. 1, 3 and 4 through their lawyer dated 03.10.1996.
15) It is further averred in the plaint that the defendants have admitted in their reply regarding execution of Will by Late Sh. Madan Lal Arora and also regarding the bequest made by Late Sh. Madan Lal Arora in favour of the plaintiff and defendant no. 1, 3 & 4. It is further averred in the plaint that the defendants are liable to render the accounts of the firm, M/s Madan Lal & Co. and also to give true and faithful accounts of their respective firms, M/S Ashok Kumar & Co., M/S Satish Kumar Arora Co. and the business being carried on by Sh. Vinod Kumar. It is further averred that the said defendants are also liable to account for the profits as made out of the plots by all the defendants- the two shops at Naraina Industrial Area, Delhi, the amounts appropriated by them to their exclusive use in the form of scooters and Maruti van and other assets. It is further averred in the plaint that the defendants are also liable to give the share of the capital account of CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 5 of 49 the deceased, Sh. Madan Lal Arora, in the firm. It is further averred in the plaint that the defendants are also liable to give the share of the property 18A, Kirti Nagar Ware Housing Scheme, Delhi to the plaintiff by metes and bounds and if that is not practicable, by putting the said property to sale and giving ¼th share of the sale proceeds to the plaintiff. It is further averred in the plaint that the defendants have repudiated their obligations and therefore, the plaintiff has left the present suit for partition and accounts.
16) It is prayed by the plaintiff that to pass a preliminary decree determining the share of the plaintiff as ¼ th in the properties i.e. 18A, Kirti Nagar Ware Housing Scheme, Kirti Nagar, New Delhi and 69 M.M. Road (Rani Jhansi Road, also called as Motia Khan, New Delhi) and to appoint one or two local commissioners into the accounts of the firms, namely, M/S Ashok Kumar & Co. and M/S Satish Kumar Arora & Co and the business being carried on by Sh. Vinod Kumar and one Local commissioner to suggest ways and means of separating the share of the plaintiff from the property 18 A Kirti Nagar Ware House Scheme, Kirti Nagar Delhi and 69 M.M. Road (Rani Jhansi Road), Delhi.
CASE OF THE DEFENDANT No 1,3 & 4 AS PER
THEIR JOINT WRITTEN STATEMENT:
17) Initially, joint written statement was filed by
defendant no. 1 to 4 but thereafter, vide order dated 08.12.2005, the defendant no. 2 was allowed to file CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 6 of 49 separate written statement and he filed the separate written statement.
18) The defendant no. 1, 3 & 4 have admitted that execution of Will in question. They further submitted that they are always ready and willing to handover the share of the plaintiff in accordance with the wishes of the deceased as stated in the registered Will.
19) It is further contended by defendant no. 1, 3 & 4that the other properties mentioned in the plaint are self acquired properties of the respective parties acquired with their own funds.
20) On merits, contents of Para no. 1 & 2 are admitted by the defendants and contents of the Para no. 3 & 4 have not been denied by the defendants. The other paras of the plaint are stated to be false and frivolous and the defendants have prayed that the plaintiff is not entitled to any relief except to ¼th share in order to implement the direction in the registered Will dated 05.04.1995 of the deceased and the remaining prayer/ relief are liable to be rejected.
CASE OF THE DEFENDANT No 2 AS PER HIS WRITTEN STATEMENT:
21) It is contended by defendant no. 2 that contents of Para no. 2 of the plaint, in so far as it relates to the share of the father of the plaintiff in property no. 18A, W.H.S. Kirti Nagar, New Delhi are not denied and rest of the para CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 7 of 49 is a matter of record. The defendant no. 2 further contended that the business of M/s Madan Lal Arora was being carried out from the aforesaid property.
22) Defendant no. 2 has denied the contents of para no.
3 of the plaint except that late Sh. Madan Lal Arora died on 13.05.1995. It is contended by defendant no. 2 that no such Will was executed by the father of the parties, during his life time and none was to the knowledge of the answering defendant, who was residing with his father in the same house and his father was having all four meals with him till his death. It is further contended by defendant no. 2 that he was having cordial relations with his father, during his lifetime and it was only when in February, 2004, the answering defendant sought certain favours for his son, from the other defendants in the aforesaid property, objections were raised by defendant no. 4, who informed that answering defendant has no share in the property or in any property or assets of their Father as per his Will. It is further averred that he also gave a copy of the alleged Will to the answering defendant and it was then for the first time that defendant no. 2 came to know about the said Will. It is further contended by defendant no. 2 that on receipt of the copy of the alleged Will, the defendant no. 2 immediately contacted his elder brother i.e. defendant no. 1 to inquire about the genuineness of the said Will to which he could not give any satisfactory reply. It is further contended that there are several discrepancies vis-a-vis the maintainability of the said Will.
CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 8 of 4923) Defendant no. 2 has denied the contents of para no 4 of the plaint and further submitted that even after the expiry of Late Sh. Mandan Lal Arora on 13.05.1995, the defendant was asked to continue the business jointly by his elder brother i.e. defendant no. 1 and which continued even after eight years of the death of their father. It is further contended that it was only due to rash business style and policies of defendant no. 1 that clashes began to happen between the parties and it was then that he was threatened of exclusion from the property in question on the basis of the alleged Will in the year, 2004.
24) It is further contended by defendant no. 2 that before the death of Sh. Madan Lal Arora, he was admitted to Shyam Lal Nursing Home, Darya Ganj, due to the 7 th heart attack which he had and it may be then that the plaintiff and the other defendants had taken the signatures of their father, on the alleged Will, which are also to be verified by the Hon'ble court.
25) It is further contended by defendant no. 2 that since the father of the parties was not in good health and sense and in perfect state of his mind, the plaintiff and the other defendants have taken the benefit of the said time to get his signatures on the alleged Will. It is further contended that Sh. Madan Lal Arora did not know the English Language and Knew only Urdu language, it is apparent that late Sh. Madan Lal was not aware of the contents of this alleged Will, fraudulently prepared and got signed by the other parties. It is further contended by defendant no. 2 that CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 9 of 49 neither any reason for the exclusion of the answering defendant have been stated in the Will nor as to whether the contents of the Will had been explained to Late Sh. Madan Lal have been mentioned. It is further contended by defendant no. 2 that the alleged Will had not been executed by Late Sh. Madan Lal Arora in perfect state of mind. It is further contended that the sequence of typing differs in the alleged Will from which it is apparent that the signatures of Late Sh. Madan Lal Aora may have been obtained even prior to putting the contents thereon.
26) It is submitted that the plot of land at Karawal Nagar, Delhi has been got transferred by defendant no. 1 in his name from the plaintiff, during the pendency of this case, out of love and affection and as on date, nothing is in the name of the answering defendant.
27) It is further submitted by defendant no. 2 that even during his life time, the father of the parties used to financially help the other defendants and the plaintiff. It is further submitted by defendant no. 2 that the plaintiff is residing and using the whole second floor of the residence, which is a tenanted premises and since the beginning, the rent of the said portion is being paid from the funds of Madan Lal & Co. It is further submitted by defendant no. 2 that the plaintiff is a Government servant and had been allotted a Government flat for her residence in Minto Road area, but she had given the same on rent un-authorisedly from the last about 10 years.
28) It is further contended by defendant no. 2 that the CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 10 of 49 plaintiff does not have good relations with the other members of the family. It is further submitted by defendant no. 2 that she took divorce and is not on speaking terms with the other relatives and even with neighbours.
29) It is further submitted by defendant no.2 that defendant no. 1 had been living in the Braham Kumaris Ashram, Karol Bagh since 1990 as he was not on good terms with his father/Sh. Madan Lal Arora and there were persistent disputes between them. It is further submitted by defendant no. 2 that after the death of his father, defendant no. 1 started residing at A-18, W.H.S. Kirti Nagar, New Delhi. It is further submitted by defendant no. 2 that contents of para 11 of the plaint are not denied.
30) Plaintiff has also filed replication to the written statement, filed by defendants and reiterated the contents of her plaint and denied all the objections taken by defendant no. 2.
31) Vide order dated 24.08.2000 and order dated 05.04.2006 following issues have been framed.
1. Whether the properties mentioned in paragraph 5 of the plaint were owned and belonged to the parties in Suit ?
1A. Whether the Late Madan lal Arora executed a valid and legal Will dated 05.04.1995? OPP.
2. If issue no. 1 is proved in the affirmative, whether the properties cannot be divided by partition?
3. What is the share of the parties in the properties?
4. What was the amount lying to the credit of Late CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 11 of 49 Mr. Madan Lal in the capital account of M/s Madan Lal in the capital account of M/s Madan lal & Co. as on the date of his death?
5 . Relief.
EVIDENCE ON BEHALF OF THE PLAINTIFF:
32) To prove her case, the plaintiff has examined three witnesses i.e.
1. Ms Rajana Arora (Plaintiff) PW-1.
2. Sh. Shyam Sunder Arora/PW-2.
3. Sh. Ravinder Kumar/PW-3.
33) PW-1 has tendered her evidence by way of affidavit Ex PW-1/A. In her affidavit, the plaintiff has reiterated and reaffirmed the averments made in the plaint and relied upon following documents:-
(1) Ex PW-1/1: Will.
(2) Ex PW-1/2: Copy of letter, in which admission made by the defendant no. 1. (3) Ex PW-1/3: Copy of legal notice dated 03.10.1996.
(4) Ex PW-1/4 to Ex PW-1/11: Postal receipts.
(5) Ex PW-1/12: Reply to the legal notice. (6) Ex PW-1/13: attested copy of passbook showing the entry of withdrawing of Rs 30,000/-.
(7) Ex PW-1/14: attested copy of the cheques.
CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 12 of 49(8) Ex PW-1/15: Bank certificate with regard to the encashment of cheques of Rs. 70,000/-.
(9) Ex PW-1/16: Counterfoil of the cheque.
34) In her cross examination, PW-1 deposed that M/s Madan Lal and Co. was having two partners, one was Mr. Madan Lal Arora and another was Mr. Vinod Kumar Arora, his youngest brother. PW-1 further deposed that she got marriage on 05.05.1979 and in the year, 1983, her marriage was dissolved by divorce petition.
35) In her cross examination, PW-1 further deposed that her mother expired on 03.06.1976 and only defendant no. 2 was married till the death of her mother and defendant no. 1 is still unmarried and he is presently residing at A-18, Kirti Nagar, Delhi since the death of his father. PW-1 further deposed that defendant no. 3 is not residing at 4606, Gali Sahtara, Ajmeri Gate, Delhi since 1983-84. PW-1, voluntarily, deposed that he used to visit this address twice or thrice in a week. PW-1 further deposed that defendant no. 3 along with his family shifted to J-67, Kirti Nagar, Delhi. PW-1 admitted that she came back to his parental house during the divorce proceedings and started residing at 4606, Gali Sahtara, Ajmeri Gate, Delhi. PW-1 further deposed that defendant no. 1 was residing at 4606, Gali Sahtara, Ajmer.
36) Gate, Delhi, only three bedrooms, including drawing room were available in the year 1983-84 at first floor of 4606, Gali Sahtara, Ajmeri Gate, Delhi. The second floor of the same was taken into possession in the year 1986 from Lrs of Sh. Mohan Lal with the consent of CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 13 of 49 the landlord. PW-1, voluntarily, deposed that Sh. Mohan Lal was uncle of her father (chacha).
37) PW-1 admitted that after partition of 1947, her father and Late Sh. Mohan Lal shifted to India. Initially, both Sh. Mohan lal and Sh. Madan Lal started the work of Firewood on Commission basis. PW-1 admitted that one shop at MM Road (Rani Jhansi Road) was allotted to Late Sh. Madan Lal and Late Sh. Mohan Lal by the Government and she further admitted that the property bearing no. A-18, Kirti Nagar was allotted in lieu of the said shop, to Late Sh. Madan Lal and Sh. Amarnath. PW- 1 further admitted that A-18 was allotted in the end of the year, 1975 or 1976. PW-1 further deposed that his father Madan Lal started the business of Iron Scrap and Timber at A-18 with the name of M/s Madan Lal & Co.
38) PW-1 admitted that defendant no. 2 used to accompany and help his father in his business of Fire Wood. PW-1 could not tell up till when the business of firewood was continued after closing the business at MM Road. PW-1 could not say whether the business was started in the year, 1960 and was continued till 1974. PW- 1 do not remember whether defendant no. 2 joined the business of firewood and his father in the year 1966 and continued the same till 1974.
39) In her cross examination, PW-1 admitted that Sh. Mohan Lal and Sh. Madan Lal had done business jointly and he further admitted that besides Sh. Mohan Lal, Sh. Amar Nath, son of Sh. Mohan Lal had also done business with Sh. Madan Lal at 35 MM Road, Delhi. PW-1 further admitted that his father Sh. Madan Lal after establishing his business called his brother Sh. Kewal Krishan Arora CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 14 of 49 and Devraj Arora from Amritsar to Delhi. PW-1 further admitted that Shop bearing no. 35 MM Road, Rani Jhansi Road, Delhi was allotted under the scheme of allotment of land to displaced at the time of partition of the nation jointly in the names of Mr. Mohan Lal and Madan Lal Arora.
40) PW-1 further admitted that the said shop was acquired by the Government and she, voluntarily, deposed that in lieu of acquisition of said shop, a plot of land A-18, WHS, Kirti Nagar, Delhi was allotted jointly to Mr. Amar Nath andMr. Madan Lal Arora.
41) PW-1 further deposed that "it is correct that since 1991-1992, Mr. Surender Kumar is running the business of sale of Timber A-18, WHS, Kirti Nagar, Delhi.
42) PW-2: Sh. Shayam Sunder Arora has appeared before the court and deposed that he along with Sh. Vinod Kumar went near the delight cinema hall in some office and signed the Will Ex PW-1/1 at Point A to A and he further deposed that he had also signed before the sub- registrar at Points B to B. PW-2 further deposed that he can also identify the signatures of executant of the Will Late Sh. Madan Lal at Point C to C and he also identified the signatures of Late Mr. Madan Lal Arora at Point D to D and point E to E. It is further deposed by him that at the time of executing the Will, late Sh. Madan Lal Arora was in good state of health and of sound mind and he also identified the photograph of the executor Sh. Madan Lal Arora, affixed on the Will at Point F. CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 15 of 49
43) In his cross examination, PW-2 deposed that Sh. Madan Lal Arora is his uncle (tau) and the suit property was allotted in the year, 1975. PW-2 further deposed that the suit property was allotted in the joint name of his father Late Sh. Amarnath and Late Sh. Madan Lal. PW-2 further deposed that the suit property was allotted in lieu of another property situated at Motia Khan bearing no. 35, MM Road, Dump Area. PW-1 admitted that Late Sh. Madan Lal Arora was engaged in the business of sale of firewood and further admitted that after allotment of the suit property, Mr. Surender Kumar son of Mr. Madan Lal continued the business of firewood from the suit property. He, voluntarily, deposed that he does not know whether he was carrying the said business under his personal capacity or on behalf of his father. PW-1 admitted that Mr. Surender Kumar Arora was seen there till date but he was not sure as to what business, he is carrying on from there. PW-1 further deposed that after 1992, Late Sh. Madan Lal Arora started carrying on the business of timber from suit property. PW-1 further admitted that he was also seeing Mr. Surender Kumar sitting there.
44) PW-2 further deposed that he was taken in a white Maruti Van being driven by Mr. Satish Kumar. PW-2 further deposed that the Will was not typed in his presence and Mr. Satish Kumar had taken him from his shop i.e. remaining half portion of the suit property. PW2 further deposed that he was also dropped back in the same vehicle by Mr. Satish Kumar. It is admitted that Sh. Vinod Kumar had also accompanied in the same manner. PW-2, CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 16 of 49 voluntarily, deposed that he was taken on his asking. PW-2 further deposed that he had not read the Will in question before signing the same and Mr. Madan Arora might have put his signatures earlier. He had not signed in his presence.
45) PW-3: Sh. Ravinder Kumar has brought the summoned record. PW-3 further deposed that Ex PW-1/1 is the correct copy of the Will dated 05.04.1995, executed before Sub-registrar-III on 05.04.1995 which was duly registered vide document no. 1919, book no. III, Volume no. 850, Page no. 107 and 108 by Sh. Madan Lal Arora. PW-3 further deposed that he was posted in the office of Sub registrar II in November, 2007. The sub-registrar at the relevant point of time can only apprise about the procedure of registration of the Will. He cannot tell the name of the sub-registrar, who had registered the Will Ex PW-1/1. He cannot identify the stamping done on the backside of the document Ex PW-1/1 as he is not aware if the stamps were of 1995, when the will was registered. The thumb impressions of the attesting witness are put at the time of registration of the document as also the stamps and seals. PW-3 was duly cross examined by Ld counsel for D-2.
EVIDENCE ON BEHALF OF THE DEFENDANT NO. 246) On 17.05.2010, the defendant no. 2 examined himself as DW-2 and tendered his evidence by way of affidavit Ex DW-2W1/A and he also tendered the notice CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 17 of 49 dated 07.09.2009 Ex DW-1/1 (marked and read as D2W1/1), In the affidavit, DW2W1 has reiterated and reaffirmed the averments made in the written statement. DW-2 was cross examined on several dates by Ld counsel for the plaintiff thereafter, the defendant no. 2 did not tender himself for cross examination and closed his evidence by moving an application and his evidence stood closed vide order dated 24.08.2018. The court held in that order that admissions, which have come on record in cross examination of defendant no. 2, will be read against defendant no. 2.
EVIDENCE OF DEFENDANT NO. 447) D4W1: Sh. Vinod Kumar Arora has appeared before the court and tendered his evidence by way of affidavit as Ex DW-3W1/A.
48) In his cross examination, conducted by Ld counsel for the plaintiff, D4W1 deposed that they are four brothers and one sister. D4W1 admitted that his father's firm, M/s Madan Lal & Co. having one account in Syndicate bank at Rani Jansi Road, Delhi and this bank has now merged with Canara Bank and he further admitted that the account number of the firm is 90231010003965. D4W1 further deposed that he came to know the factum of execution of the Will by his father during his life time on the same day when the same was executed and got registered on 05.04.1995. D4W1 admitted that all the brothers and sisters having the knowledge of the said Will on the same day and his father disclosed the said Will to all family CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 18 of 49 members. D4W1 admitted that his father was having property bearing no. A-18, WHS, Kirti Nagar, Timber Market, New Delhi.
49) D4W1 further admitted that his brother, Sh. Surinder Kumar had filed various false complaints against him and his brother Satish Kumar. He admitted that on 07.09.2008, D4W1 and his brother Satish Kumar had filed a police complaint against Surinder Kumar at PS Kirti Nagar, Delhi and the said complaint was written in his brother' handwriting and he had put his signature at Point A on the said complaint.
50) D4W1 also admitted that his brother Sh. Surinder Kumar had filed various false complaints against him and his brother Satish Kumar. D4W1 further admitted that on 03.10.2007, his brother filed a complaint in PS Kirit Nagar in his own handwriting and the police officials of PS Kirti Nagar had recorded his statement as well as statement of his brother Satish Kumar upon complaints, on 04.08.2007.
51) D4W1 further deposed that the relation between his father and his brother Surinder Kumar were not cordial. D4W1 further deposed that on 05.04.1995, his father had disclosed the Will and at that time, his brother, Sh. Surinder Kumar, his wife, Shashi Arora, his son, Vikas Arora and her daughter, Ms. Anamika Arora were present there.
52) D4W1 further deposed that on 30-31 May, 1995 after obtaining the copy of the original Will from the Sub-
CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 19 of 49registrar office, a family meeting was held and in the said meeting, they all the brothers and sister along with their family members were present and the said will was read over by all family member. D4W1 further admitted that after sold out a plot at Krawl Nagar, Delhi, no sale consideration was given to the plaintiff.
53) During cross-examination, conducted on behalf of defendant no. 2, D4W1 deposed that the firm M/s Madan Lal & Co. was formed on 20.08.1979 and he has filed the registration certificate of the said firm on the judicial record. He admitted that the said certificate is not on record.
54) D-4W1 further deposed that he does not remember if he has filed partnership deed of M/s Madan Lal & Co. with his written statement. All the parties of the suit used to reside together at First Floor, 4606, Gali Shahtara, Ajmeri Gate, Delhi-6. He further deposed that his father had never filed any sort of litigation against his elder brother Sh. Surender Kumar Arora at any point of time. He admitted that after demise of Sh. Madan Lal, he and his elder brother, Sh. Surender Kumar continued to reside at the same address. His father had never separated the kitchen. He, voluntarily, stated that it always remained joint. He further stated that his father had separated the kitchen. He further deposed that he has not filed any document regarding separation of kitchen. He, voluntarily, deposed that his father had orally separated the kitchen, 8 months before his death. Ranjana has been residing on the second floor of the Ajamari Gate property since 1980.
55) D-4W1, voluntarily, deposed that the entire portion CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 20 of 49 of first floor and second floor were under tenancy of his father Late Sh. Madan Lal Arora. He admitted that his son does not reside in the Ajmeri Gate property. He, voluntarily, deposed that earlier, he used to reside with him, till his marriage. He further deposed that the Will in question was neither prepared nor executed nor registered in his presence.
56) D-4W1 further deposed that his elder brother, Sh. Satish Arora died intestate and bachelor and leaving behind his siblings as Class-II legal heirs. He further deposed that his father had got published public notice regarding debarring the defendant no. 2 from inheritance. He further deposed that he has not filed any such public notice on judicial record.
57) DW-4/W-2, Sh. Ajay Rathi has appeared before the court as summoned witness and he relied upon Ex D4W2/1 i.e. letter issued by Sh. Kamlesh Kumar, Income Tax Officer. He brought the photocopy of income tax returns filed by Sh. Vinod Kumar having PAN no. AAAPK 2551L for the assessment year, 2022-23, filed on 28.09.2022. He further deposed that the abovesaid PAN number is not issued in the name of Madan Lal & Company and photocopy of the same is Mark DW-4W2/A. He further deposed that in the year, 1995, PAN number was not in existence rather GIR number was used by the firm, for filing of ITR. He further deposed that documents Mark DW-4W2/B were used in the year, 1995, for filing ITR. He further deposed that GIR no. 0559 M is mentioned at Point A.
58) D-4W3: Sh. Manish Kharola has appeared before the court as summoned witness and he brought the CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 21 of 49 statement of account of Madan Lal & Company having account no. 90231010003965 from 01.01.2001 to 17.07.2024, however, the details of the transactions were available w.e.f. 19.08.2006 till 31.07.2009 when the account was closed with "nil" balance. The said statement is exhibited as Ex D4W3/1. The status report of said account is Ex D4W3/2.
59) No cross examination of the said witness has been done by Ld counsel for plaintiff and defendant no. 2 despite giving them opportunity.
FINAL ARGUMENTS
60) I have heard arguments from Ld. Counsel for the plaintiff and Ld. counsel for the defendant and have perused the entire record including pleadings, documents, and testimony of the witnesses examined in the court on behalf of both parties. Ld counsel for the defendant no. 2 and Ld counsel for defendant no. 4 have filed written submissions with judgments, which have been duly considered, while passing the judgment.
61) Arguments of the plaintiff and defendant no. 4.
1. The deceased has executed Will in question voluntarily and in sound deposing mind. Will has been duly proved by one of the attesting witnesses i.e. PW- 2/Sh. Shyam Sunder.
2. The Will in question is a registered Will, so there is presumption of genuineness of the Will.
CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 22 of 493. Earlier, defendant no. 2 has admitted the Will in question by filing joint written statement but when application under order 12 rule 6 CPC was filed then defendant no. 2 filed separate written statement objecting the Will in question.
4. No medical document has been placed on record by defendant no. 2 to prove that the deceased was not in sound disposing mind at the time of execution of the Will or he was hospitalized for 2 months before death.
5. Defendant no. 2 has failed to prove that Will is false and fabricated.
6. There were strained relation between the deceased and the defendant no. 2.
7. It is not required in law that Will should be prepared in presence of witnesses.
8. There is endorsement on the back of the Will regarding explaining the contents of the Will to the deceased and PW-2 before Sub-registrar. This proves the genuineness of the Will.
9. Defendant no. 2 has not examined hand writing expert to prove that signatures on the Will are not of deceased.
62) Arguments on behlaf of defendant no. 2.
1. Firstly, the issue no. IA (additional issue) is to be adjudged in this case. Section 63 of Indian Succession CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 23 of 49 Act, 1925 mandates execution of unprivileged Will by testator in presence of two or more attesting witnesses each of whom has seen the testator sign it and each such witness to sign it in presence of the testator. Further, Section 68 of Indian Evidence mandates calling the attesting witness to a Will.
2. He further argued that PW-2 did not say in examination-in-chief that the Will in question was signed by testator in his presence , so, the Will has not been proved as per mandate of law.
3. He further argued that a careful scrutiny of cross- examination of PW-2 discloses involvement of Mr. Satish Kumar Arora and Mr. Vinod Kumar Arora in the alleged execution of Will by their late father Mr. Madan Lal Arora which put the dark clouds of suspicion on the very execution of Will in question.
4. He further argued that a careful perusal of the language & phrases of the Will in question discloses that firstly, it is in ENGLISH language with which Mr. Madan Lal Arora was not conversant; secondly, it does not mention that Mr. Surender Kumar Arora is debarred; thirdly, it does not mention any reason as to why no share is being given to Mr. Surender Kumar Arora; fourthly, it does not mention any sort of grudges or dispute between the testator and Mr. Madan Lal Arora.
5. He further argued that the estate of Mr. Madan Lal CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 24 of 49 Arora deserves to be devolved as per law of succession i.c. 20 percent to each of the five children. However, since Mr. Satish Kumar Arora (the eldest son) died intestate leaving behind his four siblings as Class-II legal heirs, his share is to be devolved on his four siblings. Thus, the plaintiff is entitled for 25 percent share, the defendant no. 2 is entitled for 25 percent share, the defendant no. 3 is entitled for 25 percent share and the defendant no. 4 is entitled for 25 percent share in the estate left behind by Mr. Madan Lal Arora.
6. He further argued that Mr. Surender Kumar Arora died on 05.11.2023 leaving behind a son (Vikas Arora) and a daughter (Anamika Arora) as his legal heirs while executing a Will dated 16.01.2019 in favour of his son Mr. Vikas Arora which is not disputed by Ms. Anamika Arora (daughter) who has already given NOC in favour of Mr. Vikas Arora which is also taken note of in order dated 31.05.2024 in this suit, therefore, the entire share of deceased defendant No. 2 (Mr. Surender Kumar Arora) stands bequeathed to Mr. Vikas Arora.
ISSUE -WISE FINDING
63) My issue wise findings are as under: -
Issue no. 1A Issue 1A: Whether the Late Madan lal Arora executed a valid and legal Will CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 25 of 49 dated 05.04.1995? OPP
64) The onus to prove issue no. 1A is upon the plaintiff.
In order to prove the above-said issue, the plaintiff has examined three witnesses i.e. PW-1 i.e. Plaintiff/herself, PW-2: Mr. Shyam Sunder Arora (one of the attesting witnesses of the Will) and PW-3: Sh. Ravinder Kumar (LDC from the office of Sub-registrar).
65) STATUTORY PROVISIONS APPLICABLE FOR DECIDING THE PRESENT ISSUE:
(i) Before adjudicating the issues no 1A, I would like to discuss various relevant statutory provisions.
(ii) The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 to mean 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".
(iii) Section 59 of Indian Succession Act declares that every person(not being a minor) "of sound mind" may dispose of his property by Will.
(iv) The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads thus:-
"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 directions.
(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 acknowledgment of his signature CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 26 of 49 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".
(v) The provisions contained in Section 68 of the Indian Evidence Act, 1872 are also to be kept in mind in such type of matters.
(vi) "Section 68 of Indian Evidence Act states that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence.
(vii) Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of Indian Registration Act 1908 unless its execution by the person by whom it purported to have been executed is specifically denied.
66) In a case titled as H. Venkatachala Iyengar v. B.N. Thimmajamma [H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443, Hon'ble Apex Court has laid down the following propositions for determining the validity and legality of the Will.
(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. (2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
(3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed.
CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 27 of 49This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
(4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
(5) It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
(6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 28 of 4967) In a case titled as Meena Pradhan & Ors. vs Kamla Pradhan & Anr. In Civil Appeal No. 3351 of 2014, decided on 21 September 2023, the Hon'ble Apex Court has deduced the principles in order to prove the Will and the same are as under; -
i. This court has to consider two aspects:
firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him:
ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.
iii. A Will is required to fulfill all the formalities required under Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will:
(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary:
(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures:
(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;
iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;
v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of testator;
vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with;
CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 29 of 49vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence:
viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicious before it can be accepted as the testator's last Will. In such cases, the initial onus on the propounder becomes heavier.
ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will;
x. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.
xi. Suspicious circumstances must be 'real' germane and valid' and not merely 'the fantasy of the doubting mind'. Whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstances raising suspicion legitimate in nature would quality as a suspicious circumstances for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc.
68) It is settled proposition of law that onus is always on the propounder of the Will to prove the validity of the Will and to remove all the suspicious circumstances surrounding the execution of the Will.CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 30 of 49
69) PW-1 has deposed in her examination-in-chief on affidavit that her father Late Sh. Madan Lal Arora was the owner of the property bearing no. 18A, WHS, Kirti Nagar, New Delhi and was also partner of 65 % share in firm M/s Madan Lal & Company. She further deposed that defendant no. 4 had 35 % share in the said firm.
70) PW-1 further deposed that her father, during his life-
time, had executed a Will dated 05.04.1995, which is duly registered with sub-registrar.
71) PW-1 further deposed that her father has bequeathed his entire property to her and to defendant no. 1, 3 & 4, in equal share. PW-1 further deposed that defendant no. 2 has been excluded from the legacy by her father.
72) PW-2: Sh. Shyam Sunder Arora has deposed that at the time of execution of Will, he was called by Late Sh. Madan Lal Arora. He further deposed that he along with Sh. Vinod Kumar Arora went in some office near Delight Cinema Hall. He further deposed that he signed the Will Ex PW-1/1 at Point A to A and also signed the Will before sub-registrar at Point B to B. PW-2 has identified the signatures of Late Sh. Madan Lal Arora at point D to D and point E to E on the Will Ex PW-1/1. He further deposed that Late Madan Lal Arora was in state of health and of sound mind at that time and nobody pressurized Late Sh. Madan Lal Arora, in his presence, at the time of execution of the Will.
73) During cross examination, PW-2 has deposed that he CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 31 of 49 was taken in a white Maurti Van by Mr. Satish Kumar. He further deposed that he does not know when the Will in question was prepared and he does not have idea, as to when, it was prepared and he does not know, who had drafted the Will and he had not seen the advocate, who had drafted the Will. He further deposed that the Will in question might have prepared earlier and it was not typed in his presence.
74) From the above-said testimony of PW-2, it is evident that PW-2 did not know, who had drafted the Will and when it was drafted and the Will was not prepared, in his presence.
75) PW-2 further deposed, during cross-examination that he took 10 minutes to put his signatures and coming out and he further deposed that he was dropped back in the same vehicle by Mr. Satish Kumar. He further deposed that Sh. Vinod Kumar had also accompanied in the same manner. He, voluntarily, deposed that the Sh. Vinod Kumar had taken on his asking.
76) PW-2 further deposed that he had not read the Will in question before signing the same. He further deposed that Mr. Madan Lal Arora might have put signature earlier and he has not signed in his presence.
77) From the abvoesaid testimony of PW-2, it is proved that the deceased Sh. Madan Lal Arora had not signed the Will in his presence. PW-2 has also not deposed that Sh. Madan Lal Arora had acknowledged his signature on the CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 32 of 49 Will, in his presence. PW-2 had no knowledge about the contents of Will, at the time of execution of Will as he had not read the Will before signing the same. PW-2 has not deposed that the Will in question was read over to him, at the time of execution of Will. PW2 has also not deposed that the deceased Late Sh. Madan Lal Arora had read the Will, in his presence or that the said Will was read over to Sh. Madan Lal Arora by anyone, in his presence. PW-2 has failed to prove that the deceased Late Sh. Madan Lal Arora was aware about the contents of the Will.
78) PW-2 has not deposed that the Will in question was signed by second attesting witness, Sh. Vinod Kumar Mehra, in his presence. Even PW-2 has not identified the signatures of witness, Sh. Vinod Kumar Mehra on the Will in question. The entire testimony of PW2 is silent regarding signing the Will in question by Sh. Vinod Kumar Mehra, in his presence or in the presence of deceased, Sh. Madan Lal Arora.
79) The petitioner has not examined second attesting witness, Sh. Vinod Kumar Mehra, in the present case. She dropped the said witness by giving her statement in the court on 14.12.2009. Plaintiff has alleged that the said witness has demanded amount of Rs. 5 lakhs from her but there is no evidence on record to prove this fact. The plaintiff should have examined said witness and if the witness did not depose in her favour, then the plaintiff may have cross examined him by declaring him as a hostile witness. There are mere allegations against the witness, CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 33 of 49 which have not been proved and without proof, the allegations cannot be accepted as true allegations.
80) I have perused the Will in question, in which nothing is mentioned about defendant no. 2. Even, it is not mentioned that the deceased has excluded defendant no. 2 from getting share in his property. No reason has been mentioned in the Will for not giving any share in the properties to defendant no. 2.
81) It has already proved that the attesting witnesses were taken to the office, where the Will is alleged to be signed, by Late Sh. Satish Kumar Arora, the brother of the plaintiff and share has also been given in the Will to Late Sh. Satish Kumar Arora.
82) During her cross examination, PW-1 deposed that "it is correct that my father had a pleasing personality. He had no quarrels with his neighbours nor with his brothers and sisters".She further deposed that she does not know, if her father had given any notice in the newspaper for disowning any of his child from his properties. There is no evidence on record that the deceased had strained relation with the defendant no. 2 rather if "it has come on record that the defendant no. 2 used to sit with his father on the shop."
83) In a judgment titled Dhani Ram (D) Thr. Lrs. vs Shiv Singh on 6 October, 2023, 2023 Live Law (SC) 862, Hon'ble Apex court has relied upon its earlier judgements titled Janki Narayan Bhoir vs. Narayan Namdeo Kadam CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 34 of 49 ( supra )and in Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria and others, and again held that to prove that a Will has been executed, the requirements in clauses
(a), (b) and (c) of Section 63 of the Succession Act have to be complied with as fellows:
"16. In his cross-examination, Chaman Lal stated that his signatures in Ex. DW-2/A were made on the same day and at the same time. He stated that his signatures on the document were made on 03.11.1987 in the Tehsil. He, however, said that he did not go to the office of the Tehsildar but signed the document and came back from outside the Tehsil. He stated that he did not go inside the Tehsil. He denied that, after making Ex. DW-2/A Will, Leela Devi appeared before the Tehsildar (Sub-Registrar) with him and Lok Nath Attri. He further said that he did not know that Leela Devi signed Ex. DW-2/A in Lok Nath Attri's and his presence after admitting it as correct".
"We may also refer to Janki Narayan Bhoir vs. Narayan Namdeo Kadam, wherein this Court held that, to prove that a Will has been executed, the requirements in clauses (a), (b) and (c) of Section 63 of the Succession Act have to be complied with. It was pointed out that the most important point is that the Will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will or must have seen some other person sign the Will in the presence of and by the direction of the testator or must have received from the testator a personal acknowledgment of his signature or mark or of the signature or mark of such other person and each of the witnesses has to sign the Will in the presence of the testator. It was further held that, a person propounding a Will has got to prove that the Will was duly and validly executed and that cannot be done by simply proving that the signature on the Will was that of the testator, as the propounder must also prove that the attestations were made properly, as required by Section 63(c) of the Succession Act. These observations were affirmed and (2003) 2 SCC 91 quoted with approval by this Court in its later judgment in Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria and others 3. 23. Viewed in the context of the legal requirements and the law laid down by this Court, we find that neither of the attesting witnesses in this case fulfilled the mandate of Section 63(c) of the Act of 1925 to prove the Will.CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 35 of 49
Though Lok Nath Attri claimed that Leela Devi affixed her signatures in the Will in their presence, which was vehemently denied by the other attesting witness, Chaman Lal, the fact remains that Lok Nath Attri also did not state that he affixed his signatures in the Will in the presence of Leela Devi. This is one of the compulsory requisites of Section 63(c) of the Succession Act."
"27. On the above analysis, it is manifest that compliance with the essential legal requirements, in terms of Sections 68 and 71 of the Evidence Act and Section 63 of the Succession Act, was not established in order to prove the execution of Ex. DW-2/A Will. As Dhani Ram failed to prove the execution of the Will in terms of the mandatory legal requirements, Shiv Singh would be entitled to succeed to the properties by way of intestate succession under Section 15 of the Act of 1956, as rightly held by the Himachal Pradesh High Court".
84) The Will in question is a registered Will. Petitioner has examined one of the attesting witness i.e. Sh. Shyam Sunder Arora (PW-2) to prove the Will in question, as per section 68 of Indian Evidence Act.
85) As per section 68 of Indian evidence Act, one attesting witness is required to be examined to prove the due execution of the Will. In other words if one attesting witness proves the due execution of Will then there is no need to call second attesting witness of the Will. In this case the petitioner has examined only one attesting witness of the Will. Now the question is whether the said attesting witness has proved the due execution of the Will as per section 63 of Indian succession Act and 68 of Indian evidence act.
86) In a case titled Pratap Singh & Anr Vs the State & Anr., decided on 12.08.2010 passed by Hon'ble High court of Delhi.
CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 36 of 49"8. It is well settled, merely because the Will is a "registered Will", it is no assurance that the same is genuine and validly executed document with a sound disposition of mind and free Will".
87) In a case titled as Meena Pradhan & Ors. vs Kamla Pradhan & Anr (Supra), the Hon'ble Apex Court has deduced the following principles regarding proving the Will as per Section 63 of Indian Succession Act with the aid of Section 68 of Indian Evidence Act:
iii. A Will is required to fulfill all the formalities required under Section 63 of the Succession Act, that is to say:
(a)................
(b)................
(c) Each of the attesting witnesses must have 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 acknowledgment of such signatures:
(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;
iv...........................
v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of testator;
88) The Hon'ble Apex Court in a case titled as Janki Narayan Bhoir Vs Narayn Namdeo Kadam, JT 2002 (10) SC 340 has discussed the provisions of section 63 of Indian succession Act and Section 68 of Indian evidence act for proving due execution of Will by the testator and relevant para is as follows:-
" The one attesting witness examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 37 of 49 examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by other witness also it falls short of attestation of Will at least by two witnesses for the simple reason that the execution of the Will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the Will under Section 68 of the Evidence Act fails to prove the due execution of the Will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by the other witness there Will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."
" Where the attesting witness, who is called to prove the execution, is not in a position to prove the attestation of the Will by the second witness, the evidence of the witness called falls short to the mandatory requirements of Section 68."
89) In the present case, the evidence of PW2, by way of affidavit as well as cross examination, is totally silent about the attestation of Will in question by the second attesting witness, namely, Sh. Vinod Kumar Mehra. PW-2 has not deposed in his examination that the second attesting witness had signed the Will in his presence or in the presence of the deceased. PW-2 even has not identified the signature of second attesting witness on the Will. As per PW-2, the deceased had already signed the Will and the deceased had not signed the Will in his presence. PW-2 has not deposed that the deceased acknowledged his signatures on the Will, in his presence. PW-2 further deposed that he did not read the Will before putting his signatures on the Will. PW-2 also did not know, who had drafted the Will. It is also not proved that the deceased was aware about the contents of the Will or that the Will was read by the deceased or read over to the deceased.
CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 38 of 4990) In the light of above said judgments, it is held that the testimony of PW-1 and PW-2 falls short to fulfill the mandatory requirements of Section 63 of Indian succession Act and 68 of Indian Evidence Act. In view of the above- said discussion, it is held that petitioner has failed to prove the due execution of Will in question. Therefore, the Will in question is not a valid Will and it is unenforceable.
91) It has also been argued on behalf of defendant no. 2 that there are certain suspicious circumstances surrounding the execution of the Will. It is further argued that no reason has been given in the Will to exclude the defendant no. 2 from his inheritance by the deceased. He further argued that the deceased was hospitalized and not in sound mind at the time of execution of the Will.
92) Ld counsels for the plaintiff and defendant no. 4 have argued that there were strained relations between the deceased and defendant no. 2, due to which defendant no. 2 has been excluded from the inheritance by the deceased.
93) One of the main requirements for the validiy of the Will is that the testator must have signed the Will after understanding the contents of the Will. The attesting witness, PW-2 has not deposed in his testimony that the Will was read over and explained to the deceased before obtaining his signatures on the Will.
94) In the light of above testimony of PW-2, it is held that the plaintiff has failed to prove that the Will in question was read over and explained to the deceased CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 39 of 49 before obtaining his signatures on the Will. The deceased defendant no. 1 has played prominent role in the preparation of the Will as he took the attesting witness to the office for the purpose of signing the Will and this fact also creates doubt on the valid execution of the Will. It is also admitted fact that the deceased died after 22 days of execution of Will and the deceased was admitted in hospital before his death but no medical documents of the deceased has been placed on record by the plaintiff and defendant no. 4 and no doctor has been examined by the plaintiff and defendant no. 3 to prove that the deceased was in fit state of mind, on the day of execution of the will in question. The plaintiff has failed to dispel the above said suspicions, surrounding the execution of the Will.
95) Therefore, in view of the foregoing discussions and observations, issue no 1A is decided against the plaintiff and in favour of defendant no. 2.
96) Findings on Issue no. 1
Issue no. 1: Whether the properties mentioned in
paragraph 5 of the plaint were owned and belonged to the parties in Suit ?
97) The plaintiff has averred in para no. 5 of her plaint that the plaintiff has learned that defendant no. 1, 3 & 4 acquired assets and a Maruti van, Colour T.V. and V.C.R. and immovable properties like plots of land and shops in their names with the funds of the firm, M/s Madan Lal & Co. She further averred that the defendant no. 1 & 2 CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 40 of 49 jointly and defendant no. 3 & 4 jointly acquired one plot each at Karawal Nagar, Delhi. She further averred that the defendant no. 1 floated a firm known as M/s Ashok Kumar & Co. showing the address of the firm at residence at 69 MM Road, Rani Jansi Road, Delhi ad measuring 125 yards.
98) Plaintiff has averred in Para no. 5 of the plaint that defendant no. 1, Sh. Satish Kumar Arora, floated a firm, M/s Satish Kumar Arora & Co and doing the business of scrap at 18A, Kirti Nagar Ware Housing Scheme, New Delhi, the same premises where the firm, M/s Madan Lal & Co. was transacting the business; Satish Kumar Arora & Co. has also established branches at Okhla, Mayapuri and Motia Khan. She further averred in the said para of the plaint that defendant no. 4, Sh. Vinod Kumar Arora, acquired two shops at B-251, Naraina Industrial area, Delhi.
99) Plaintiff further averred in para no. 5 of the plaint that the defendant no. 1, 3 & 4 acquired scooters- two wheelers and defendant no. 1 acquired one Maruti van.
100) Plaintiff further averred in para no. 5 of the plaint that the defendant no. 1 acquired one property at WZ-263, Uttam Nagar, Delhi. She further averred that the abovesaid properties have been acquired by the defendants with the funds of the firm, M/s Madan Lal & Co., which have been syphoned off by the defendants to their own advantage and to the detriment of the plaintiff.
CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 41 of 49101) Plaintiff has deposed to the same lines in her affidavit in evidence Ex PW-1/A.
102) There is no other evidence on record regarding acquiring the above-said properties from the funds of M/s Madan Lal & Co. except the self-serving statement of Plaintiff. The plaintiff has not examined any other witness to prove the above-said fact.
103) It is not the case of the plaintiff that the deceased had share, in the firm, namely, M/s Ashok Kumar & co. and M/s Satish Kumar Arora & co and other above-said properties, at the time of his death.
104) No document has been filed by the plaintiff, on record regarding purchasing of Maruti Van, V.C.R., Colour T.V., two shops at B-251, Naraina Industrial area, Delhi and property no. WZ- 263, Uttam Nagar, Delhi by the defendants from the funds of the M/s Madan Lal & Company.
105) In view of the above-said facts, it is held that the plaintiff has failed to prove that the defendants have acquired above-said properties, as mentioned in para no. 5 of the plaint, from the funds of Madan Lal & Co. Accordingly, issue no. 3 is decided against the plaintiff and in favour of the defendants.
106) Findings on Issue no. 3 Issue no. 3 : What is the share of the parties in the properties?
CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 42 of 49107) In the present case, the plaintiff is seeking partition of two properties i.e.
(a) 18A, WHS Kirti Nagar, New Delhi
(b) 69MM, Road (Rani Jhansi Road) Motia Khan, New Delhi.
108) Plaintiff is also seeking share of the capital account of deceased in the firm M/s Madan Lal & Company.
109) The above-said property bearing no. 69MM, Road (Rani Jhansi Road) Motia Khan, New Delhi, is not mentioned in the Will of the deceased. In the plaint, the plaintiff has never averred that the abovesaid property belonged to the deceased and the only averment made in the plaint that the defendant no. 1 floated a firm known as M/s Ashok Kumar & Co showing the address at residence but the said firm is running at the property bearing no. 69MM, Road (Rani Jhansi Road) Motia Khan, New Delhi. Defendant no. 4 has also not mentioned regarding owning abovesaid property by the deceased.
110) DW-4W1 deposed during cross examination that "it is correct that his father did not own the property bearing no. 69MM, Road (Rani Jhansi Road) Motia Khan, New Delhi. He further deposed that his father owned property bearing no. 35 MM, Road (Rani Jhansi Road) Motia Khan, New Delhi. He further deposed that property bearing no. 69 MM was taken on rent and it is still in the possession of Sh. Ashok Kumar.
CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 43 of 49111) The plaintiff has not cross examined DW-4W1 on the abovesaid facts. There is no document on record that the property 69 MM Road (Rani Jhansi Road) Motia Khan, New Delhi was ever purchased or acquired by the deceased.
112) In view of the abovesaid facts, it is held that the parties are not entitled to obtain any share in the above- said property bearing 69MM Road (Rani Jhansi Road) Motia Khan, New Delhi.
113) Plaintiff/PW-1 has deposed in her evidence by way of affidavit that her father was a partner in the firm M/s Madan Lal & Co and he had 65 % share in the said firm. She further deposed that her brother, Sh. Vinod Kumar/Defendant no. 4 had 35 % share in the said firm.
114) Defendant no. 4/DW-4W1 has deposed in his evidence by way of affidavit that there were two partners in the firm M/s Madan Lal & Company i.e. the deceased having 65 % share and the defendant no. 4 having 35 % share in the said firm.
115) DW-4W1 deposed during cross examination that he has not distributed 65% share of his father in the firm M/s Madan Lal & Co. amongst his siblings after the demise of his father.
116) In view of the abovesaid fact, it is held that the parties are entitled to inherit share of the deceased in the abovesaid firm.
CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 44 of 49117) It is also proved that the deceased had ½ share in property bearing no. 18A WHS Kirti Nagar, New Delhi. The parties are entitled to inherit the share of the deceased in the above-said property.
118) The parties of the present suit are Hindu by religion and Hindu Succession Act is applicable on the parties. It has already held above in issue no. 1A that Will in question is not a legal & valid Will,so, now the abovesaid properties will be devolved to the parties, by way of intestate succession, as per Hindu Succession Act, 1956.
119) At the time of death of Late Sh. Madan Lal Arora, there were following five class-I legal heirs of the deceased and they are entitled to inherit the property of deceased in equal shares:
1. Smt. Ranjana Arora/plaintiff.
2. Mr. Satish Kumar Arora/Defendant no. 1 (died during trial).
3. Mr. Surender Kumar Arora/Defendant no. 2(died during trial).
4. Sh. Ashok Kumar Arora/Defendant no. 3.
5. Sh. Ashok Kumar Arora/Defendant no. 4.
120) Defendant no. 1 had died unmarried, during the trial of present case and he has left no legal heir except the plaintiff and defendants, who are his sister and brothers and are his Class-II Legal heirs and are entitled to inherit his share equally. So, after acquiring the share of defendant CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 45 of 49 no. 1, plaintiff and defendant no. 2 to defendant no. 4 have equal share of 1/4 each in properties of the deceased/Late Sh. Madan Lal Arora.
121) Defendant no. 2 has also died during trial leaving behind her son, Mr.Vikas Arora and Ms. Anamika Arora. The abovesaid son and daughter of deceased defendant no. 2 are entitled to inherit his 1/4th share in the properties of the deceased Late Sh. Madan Lal Arora.
122) Now, the parties have following shares in the properties of the deceased/Late Sh. Madan Lal Arora.
1. Smt Ranjana Arora (¼th share).
2. Legal heirs of Sh. Surender Kumar Arora:
(a) Sh. Vikas Arora &
(b) Ms. Anamika Arora (both having total ¼th share).
3. Sh. Ashok Kumar Arora. (¼th share).
4. Sh. Vinod Kumar Arora (¼th share).
123) Findings on Issue no. 4 Issue no. 4: What was the amount lying to the credit of Late Mr. Madan Lal in the capital account of M/s Madan Lal in the capital account of M/s Madan lal & Co. as on the date of his death?
124) No evidence has been led by the plaintiff or defendant no. 2 & defendant no. 3 to prove that what was the amount lying to the credit of late Sh. Madan Lal Arora in the capital account of M/s Madan Lal & Co. as on the date of his death.
CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 46 of 49125) No witness has been called by the plaintiff and defendants no. 2 & 3 to prove the amount of capital account of Late Sh. Madan Lal Arora in the above-said firm. Even no question regarding the said amount has been asked to defendant no. 4/DW-4W1, during his cross examination. The plaintiff , defendant no. 2 & 3 are failed to prove the abovesaid fact.
126) Defendant no. 4, who was the partner in the said firm has filed statement of the abovesaid firm i.e. Profit- Loss account and balance sheet of the above firm, in the testimony of DW-4W2 and the photocopies of the said documents have been marked as DW-4W2/B. The abovesaid documents are admitted documents of the defendant no. 4. So, these documents can be read against the defendant no. 4.
127) As per balance sheet of the abovesaid firm as on 31.03.1995, there is balance amount in the capital account of Late Sh. Madan Lal Arora i.e. Rs.52223.02/-.
128) PW-1 has deposed in her examination that she had given a sum of Rs. 1,00,000/- (one lac) as loan to M/s Madan Lal & Co. and the defendants are liable to pay interest @ 24 % per annum till realization.
129) No cross examination on the abovesaid aspect has been done on behlaf of defendant no. 4. So, the abovesaid facts regarding loan amount of Rs.1 lac not returned to the CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 47 of 49 plaintiff remained unrebutted and unchallenged, on behlaf of defendnt no. 4.
130) In view of abovesaid facts, it is proved that there was balance amount in the capital account of Late Sh. Madan Lal Arora i.e. Rs.52223.02/- and it is also proved that defendant no. 4 has not returned the loan amount of Rs. 1 lac to the plaintiff. Plaintiff has not filed any case for the recovery of said loan amount against the firm M/s Madan Lal & Co or against defendant no. 4. The limitation period for filing the suit for recovery of loan has expired and debt has become time barred. Therefore, the said amount is also remained with abovesaid firm and required to be utilized as surplus amount and liable to be refunded to the partners of the firm. So, the legal heirs of the deceased/Late Sh. Madan Lal Arora can take 65% share in the said loan amount and remaining 35% share in the said loan amount belongs to defendant no. 4. Therefore, the plaintiff, Lrs of defendant no. 2, defendant no. 3 & 4 are entitled to inherit the amount of Rs. 65,000/- equally along with amount of Rs. 52223.02/-. The defendant no. 4 should have distributed the above-said amount amongst the legal heirs of the deceased Late Madan Lal Arora at least one month after expiry from the date of death of Late Sh. Madan Lal Arora. So, the plaintiff, defendant no. 2, defendant no. 3 are entitled to receive interest @ 6 % per annum on the said amunt from the defendant no. 4.
RELIEF:
131) In view of the above-said findings and discussions, CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 48 of 49 the following reliefs have been given to the parties.
(a) A preliminary decree is passed and it is declared that the plaintiff, Lrs of deceased defendant no. 2, defendant no. 3 & defendant no. 4 are entitled for 1/4th share each in Property no. 18A, WHS, Kirti Nagar, New Delhi and they are also entitled for ¼ th share each along with interest @ 6 % per annum, in the amount of Rs. 1,17,223.02/-. Defendant no. 4 is directed to give amount of Rs. 87917.27/-
to plaintiff, Lrs of defendant no. 2 and defendant no. 3 along with interest @ 6 % per annum w.e.f. 13.06.1995 till its realization.
(b) Parties are directed to file court fee on their respective shares in the amount of Rs. 87917.27/-.
Preliminary decree-sheet be prepared accordingly and preliminary decree-sheet regarding amount of Rs. 87917.27/- will be enforceable after filing of court fee.
Digitally signed by SHIV SHIV KUMAR Date:
KUMAR 2024.10.05 17:50:11 +0530 Announced in open Court (SHIV KUMAR) today on 05.10.2024. DJ-02, West Distt.
Tis Hazari courts Delhi.CS No. 613211/16 Ranjana Arora Vs Satish Kumar Arora & Anr. Page 49 of 49