Delhi District Court
Shri Dev Dutt Soni vs Shri Shiv Dutt Soni on 13 November, 2019
IN THE COURT OF SHRI GAJENDER SINGH NAGAR:
ADMINISTRATIVE CIVIL JUDGE CUM ADDITIONAL
RENT CONTROLLER (CENTRAL) : DELHI
Suit No. : 94092/16 & 99243/16
In the matter of:
Shri Dev Dutt Soni,
S/o Late Sh. Chiranji Lal Soni,
R/o 67, New Jawahar Nagar,
Jullundur City (Punjab). ....Plaintiff
Versus
1. Shri Shiv Dutt Soni,
S/o Late Sh. C.L. Soni,
1, Esplande Road,
Chandni Chowk, Delhi.
2. Shri G.D. Soni,
S/o Late Sh. C.L. Soni,
8, Rajpur Road, Delhi.
3. Shri Samir Paintal,
C437, Defence Colony,
New Delhi.
4. Mrs. Tara Kochhar Batra,
S/o Late Sh. C.L. Soni,
C437, Defence Colony,
New Delhi. .....Defendants
Date of Institution : 12.09.1997
Date of order when reserved : 08.11.2019
Date of order when announced : 13.11.2019
Suit No. 94092/16 & 99243/16 1/81
JUDGMENT
1. Vide this common judgment, the undersigned shall decide the present suit filed for declaration and perpetual injunction as well as counter claim filed by the defendant no.2 against the plaintiff and the defendant no.1.
2. It is to be noted that initially the present suit has been filed by the plaintiff against the defendants no.1 & 2 only, however during pendency of the present suit, an application Under Order 1 Rule 10 CPC was filed by the plaintiff for impleading the defendants no.3 and 4 which was allowed vide order dated 10.12.1997 and amendment qua same has been made in the suit respectively by filing application Under Order 6 Rule 17 CPC which was allowed vide order dated 10.12.1997 and amended plaint was filed by the plaintiff to which amended written statement was also filed by the defendant no.1, however on 09.10.1998 it is stated by the defendant no.2 that he has adopted his written statement originally filed. Written statements also filed by the defendants no.3 and 4. Thereafter, an application Under Order 6 Rule 17 CPC also filed on behalf of the plaintiff for amendment in injunction application Under Order 39 Rules 1 & 2 CPC which was allowed vide order dated 04.09.1998. An application Under Order 1 Rule 10 CPC also filed by the defendant no.2 for his transposition as coplaintiff which was dismissed vide order dated Suit No. 94092/16 & 99243/16 2/81 28.02.2000. Thereafter, an application Under Order 23 Rule 1A r/w Section 151 CPC filed on behalf of the defendant no.2 which was disposed of vide order dated 01.10.2003 and it was directed that this suit cannot be allowed to be withdrawn without the presence of contesting defendant no.2 or his representatives. Again, an application Under Order 6 Rule 17 CPC was filed by the plaintiff which was dismissed vide order dated 07.07.2004, however vide order dated 14.07.2006 it has been clarified that Hon'ble High Court has allowed CM (Main) petition of the parties thereby amendment application has been allowed. An application U/s 151 CPC for striking off the defence of the defendant no.2 was allowed vide order dated 03.10.2008 and the written statement of the defendant no.2 to the amended plaint was struck off. Thereafter, an application Under Order 6 Rule 17 CPC for amendment of written statement filed by the defendant no.2, vide order dated 07.03.2009 the amended written statement filed by the defendant no.2 was taken on record.
3. It is further to be noted that the application Under Order 39 Rules 1 & 2 CPC was allowed vide order dated 25.01.1999 and the defendants were restrained from alienating, transferring, parting with the possession or creating any third party interest in favour of any other person in the suit property comprising of C536, Defence Colony, New Delhi pending disposal of this suit.
Suit No. 94092/16 & 99243/16 3/814. The case of the plaintiff as per amended plaint dated 28.01.2004 is that the plaintiff as well as the defendants no.1 and 2 who are real brothers were members of Hindu Undivided Family (HUF) and were filing regular assessment with Income Tax Department. It is stated that they were also carrying on business of M/s C.L. Soni & Company which was an HUF concern of the plaintiff and the defendants no.1 and 2. It is stated that the property bearing no. C536, Defence Colony, New Delhi (hereinafter referred to as "suit property") was purchased by the said HUF with the funds of HUF as a joint property of all the three brothers and the mother Smt. Shakuntala Devi vide sale deed dated 18.08.1958 registered on 20.08.1958. It is stated that the property was registered in the name of their mother Smt. Shakuntala Devi. It is stated that the plaintiff was residing at Jullundur and as such the defendant no.1 was allowed to occupy a part of the suit property for residence of the defendant no.1 and their mother. It is stated that possession of all the members of HUF is joint in respect of the suit property and each one of the party is had an equal share of 33% in the suit property. It is stated that the plaintiff was also in possession of the property as whenever he used to visit Delhi he used to stay in the property. It is stated that the father of the parties namely C.L. Soni was carrying on business under the name and style of M/s C.L. Soni & Company having its registered office at Railway Road, Jullundur City and branch office at Mall Road, Lahore. After Suit No. 94092/16 & 99243/16 4/81 partition of the country and the death of Sh. C.L. Soni, the branch office was shifted to 1, Esplanade Road, Chandni Chowk, Delhi. It is stated that the parties were in cordial relations till 1995 when the said M/s C.L. Soni & Company was dissolved by a dissolution deed dated 31.03.1995. Thereafter, the defendant no.1 started acting fraudulently which has came into knowledge of the plaintiff recently in July, 1997 that the defendant no.1 had obtained signatures of the plaintiff in a suit filed by daughters of the defendant no.2 for declaration in the Ld. Trial Court and had made some false averments before the Court at that time and now intended to take advantage of the written statement filed before the Ld. Trial Court, although the suit has not been finally adjudicated. It is stated that the defendant no.1 had stated before Ld. Trial Court at that time that Smt. Shakuntala Devi was the sole proprietor of M/s C.L. Soni & Company till 31.03.1959 which is a false and fraudulent statement as M/s C.L. Soni & Company was always an HUF firm as apparent from the deed of partnership dated 07.03.1960 which is duly signed by the defendant no.1 and the mother of the parties. It is stated that after death of the mother of the parties in the year, 1979, the defendant no.1 continued his good relations with the plaintiff, however after dissolution of C.L. Soni & Company in 1995 the defendant no.1 changed his attitude towards the plaintiff. It is stated that in July 1997 the defendant no.1 asked the plaintiff to provide "No Objection Certificate" to him for transfer of the property as the same was required by him for submission to the Income Tax Suit No. 94092/16 & 99243/16 5/81 Authorities for seeking permission U/s 230A of the Income Tax Act. It is stated that the plaintiff protested to the sale of property, unless the property was divided. It is stated that on 25.07.1997 the plaintiff came to know that the defendant no.1 had applied for permission U/s 230A of the Income Tax Act in order to sell one of the floor of the property. It is stated that by that time property was not partitioned by metes and bounds. It is stated that the defendant no.1 has no right to sell or dispose off in any manner whatsoever any part of the suit property. It is stated that even the mother of the parties had no right to either make a Will or dispose of any part of the property as it was always a joint Hindu Family property and has been so recorded in the record of Income Tax Office even today. It is stated that the plaintiff has half share in the suit property and is entitled to declaration that the defendant no.1 had no right to sell the property unless it is partitioned by meets and bounds. It is stated that the mother of the parties could not have became owner of the suit property as the said property was purchased with the funds of HUF and she has no right to either transfer or make Will of the same, except her share in respect of which she had executed a registered Will dated 02.02.1963. It is stated that it was never in the knowledge of the plaintiff that she had made an illegal Will dated 08.12.1976 of the property subsequently. It is stated that the plaintiff had unknowingly signed the written statement of the suit bearing no. 115 of 1988 filed by the daughters of the defendant no.2 as fraud played upon by the defendant no.1. It is stated that the Suit No. 94092/16 & 99243/16 6/81 defendant no.1 has sold first floor of the property to the defendants no.3 and 4 for Rs. 1,04,00,000/ and he may be asked to deposit that amount in the Court. It is stated that the alleged sale by the defendants no.1 to the defendants no.3 and 4 namely Sh. Sameer Paintal and Mrs. Tara Kochar Batra is illegal and unwarranted. It is stated that the defendant no.1 has sold a floor on 10.02.1997 and has given possession on 10.06.1997 and got clearance under the Income Tax only on 14.08.1997, thus the sale was not valid.
5. It is prayed that a decree for declaring that the suit property is a joint family property of the HUF consisting of the plaintiff and the defendant no.1 in equal share and the defendant no.1 has no right in law to transfer by sale or otherwise any part of the suit property and he is not entitled to a "No Objection Certificate" U/s 230A of Income Tax Act; a decree of perpetual injunction restraining the defendant no.1 from selling, alienating or transferring the suit property in any manner to the third party and not to create any third party interest in the property; a decree of perpetual injunction restraining the defendants no.3 and 4 from alienating, transferring, parting with possession or creating any third party interest in the first floor of the suit property; a decree of declaration that the sale of the first floor of the suit property is without authority and void; the defendant no.1 be directed to deposit a sum of Rs. 1,04,00,000/ before this Court received by him as sale consideration and a decree of declaration Suit No. 94092/16 & 99243/16 7/81 declaring that the Will dated 08.12.1976 made by Late Smt. Shakuntala Devi is null and void and all proceedings in pursuance of the said Will are also null and void.
6. Summons of the suit were issued against the defendants no.1 and 2. The defendants no. 1 and 2 appeared and contested the suit by filing separate written statements. It is to be noted that during pendency of the present suit the defendants no.3 and 4 also made party and the plaint was amended and amended plaint was filed on 12.03.1998, accordingly to which amended written statement was filed by the defendant no.1, however it is stated by the defendant no.2 on 09.10.1999 that he has adopted his original written statement filed on 22.10.1997. The defendants no.3 and 4 have also filed written statement on 27.10.1998, however later on they were proceeded ex parte vide order dated 19.04.2016. Replications to the amended written statement of the defendant no.1, written statement of the defendant no.2 as well as written statement of the defendants no.3 and 4 filed on behalf of the plaintiff. Thereafter, the plaint was again amended and amended plaint was filed on record on 28.01.2004 to which amended written statement was filed by the defendant no.2 on 07.03.2009.
7. Amended written statement filed by the defendant no.1 in the year, 1999 denying all the allegations of the defendant no.1 and it Suit No. 94092/16 & 99243/16 8/81 is stated that the suit property was purchased by Smt. Shakuntala Devi, the mother of the parties from her own funds and as such it does not become part of the Hindu Undivided Family. It is stated that during her lifetime, Smt. Shakuntala Devi bequeathed the suit property to the defendant no.1 by a registered Will dated 08.12.1976 and the suit property now stands mutated in the name of the defendant no.1. It is claimed that since the suit property was purchased by Smt. Shakuntala Devi out of her own funds and has been bequeathed to him by a registered Will, he became owner thereof and has every right to deal with the suit property in any manner he likes.
8. Replication to the amended written statement of the defendant no.1 was filed by the plaintiff. The plaintiff has denied the allegations of the defendant no.1 and has reiterated the same facts as averred in the plaint.
9. Amended written statement dated 07.03.2009 filed by the defendant no.2 supporting the contention of the plaintiff that the suit property was purchased out of the funds of Hindu Undivided Family in the name of their mother Smt. Shakuntala Soni. It is stated that after the death of Smt. Shakuntala Soni, the mother of the parties, the plaintiff and the defendants no.1 and 2 have 1/3rd share each in the HUF property. It is stated that the status of the parties still continues to be joint and they still form the members of HUF. It is denied that Suit No. 94092/16 & 99243/16 9/81 the suit property is not a joint Hindu Family property of the plaintiff and the defendant no.1, rather the same is joint Hindu Family property of the plaintiff, the defendant no.1 and the defendant no.2 and they all are entitled for equal share in the suit property. It is stated that no member of HUF is entitled to transfer, sell or dispose of any part of the property without the consent of the others and before partition nobody can make a Will of her indefinite share in the property. It is stated that both the alleged Wills dated 02.02.1963 and 08.12.1976 alleged to be executed by the mother of the parties Smt. Shakuntala Devi are forged and fabricated. It is stated that the plaintiff and the defendant no.1 infact connived with each other and forged and fabricated the alleged Wills only to grab the suit property and deprive the legal 1/3rd share of the suit property to the defendant no.2. It is denied that the signatures of the plaintiff were obtained by fraud on the written statement in suit bearing no. 115/1988.
10. No replication to the amended written statement of the defendant no.2 was filed by the plaintiff.
11. The defendants no.3 and 4 who purchased the first floor of the suit property from the defendant no.1 have filed their separate written statement dated 27.10.1998 stating that it was represented to them that the defendant no.1 was the exclusive owner of the suit property and they have rightly purchased the first floor. They have Suit No. 94092/16 & 99243/16 10/81 supported the contention of the defendant no.1.
12. Replication to the written statement of the defendants no.3 and 4 was filed by the plaintiff. The plaintiff has denied the allegations of the defendants no.3 & 4 and has reiterated the same facts as averred in the plaint.
13. It is to be noted that the defendant no.2 also filed counter claim with the written statement to which separate written statements dated 26.06.2007 and 06.02.2010 were filed by the plaintiff and the defendant no.1, respectively. Replication to the written statement of the counterclaim of the plaintiff was filed by the defendant no.1 on 13.07.2007.
14. As per counter claim, the claim of the defendant no.2 is that there was no separation or division of Hindu Undivided Family till date. It is stated that the business of M/s C.L. Soni has been assessed as HUF concern in the Income Tax Return. It is stated that the property in question and a corpus were purchased out of the assets of the said business. In the counter claim, it is prayed that a decree of declaration may be passed in favour of the counter claimant and against the plaintiff and the defendant no.1 thereby declaring the share of counter claimant is intact in the HUF, further that no partition has been effected; no valid, equitable and lawful settlement has been Suit No. 94092/16 & 99243/16 11/81 arrived at till today; the sale of property no. C536, Defence Colony, New Delhi as contrary to law and not for the benefit of HUF. It is also sought that the Wills dated 07.02.1963 and 08.12.1976 may be declared as null and void. A decree of permanent injunction also sought thereby restraining the plaintiff and the defendant no.1 from using any of the funds, or siphoning off the same and further be restrained from transferring, alienating etc. the property in question. A decree of mandatory injunction be also sought thereby directing the defendant no.1 to deposit in Court all the moneys received by him from the sale of property in question and to return back the property and mutated and transferred the same in the name of the mother Smt. Shakuntala Devi.
15. Written statement to the counter claim filed by the plaintiff denying the allegations of the defendant no.2 and has reiterated the same facts as averred in the plaint.
16. Replication to the written statement to the counterclaim of the plaintiff was filed by the defendant no.2. The defendant no.2 has denied the allegations of the plaintiff and has reiterated the same facts as averred in the counter claim.
17. Written statement to the counter claim filed by the defendant no.1 denying the allegations of the defendant no.2 and has Suit No. 94092/16 & 99243/16 12/81 reiterated the same facts as averred in his written statement.
18. No replication to the written statement to the counter claim of the defendant no.1 was filed by the defendant no.2.
19. Vide order dated 28.10.2003, on the basis of pleadings of the parties the following issues were framed :
i) Whether the suit of the plaintiff is time barred? OPD1.
ii) Whether the suit of the plaintiff is not maintainable on account of valuation and jurisdiction? OPD1.
iii) Whether the suit of the plaintiff is barred as per Section 34 Specific Relief Act? OPD1.
iv) Whether the property bearing no. C536, Defence Colony, New Delhi is a Joint Hindu Family property of the plaintiff and the defendants no.1 and 2, if so its effect? OPP.
v) Whether the defendant no.1 obtained the signatures of the plaintiff in suit bearing no. 115 of 1988 by fraud, if so its effect? OPP.
vi) Whether the plaintiff has lost his right to claim 1/3rd share in property bearing no. C536, Defence Colony, New Delhi? OPD1.
vii) Whether Smt. Shakuntala Devi had a right to make a Will of the entire property bearing no. C536, Defence Colony, New Delhi and whether she made a valid Will? OPD1.
viii) Whether the defendant no.1 had a right to sell the first floor Suit No. 94092/16 & 99243/16 13/81 of the property to the defendants no.3 and 4? OPD1.
ix) Whether the plaintiff is entitled for a decree of perpetual injunction as prayed in para no. (i) of the prayer clause? OPP.
x) Whether the plaintiff is entitled for decree of declaration as prayed in para no. (ii)? OPP.
xi) Whether the plaintiff is entitled to the relief as prayed in para no. (iii)? OPP.
xii) Whether the plaintiff is entitled for decree of declaration as prayed in para no. (iv)? OPP.
xiii) Relief.
20. Thereafter, vide order dated 04.04.2009, on the basis of counter claim filed by the defendant no.2 following additional issues were framed :
xiv) Whether the Will dated 07.02.1963 and 08.12.1976 is null and void? OP on the plaintiff and the defendant no.2.
xv) Whether the suit property is HUF and the plaintiff and the defendants are entitled to equal share in this property? OPD. xvi) Whether the defendant no.2 is entitled to permanent injunction and mandatory injunction, as prayed for? OPD.
21. Vide order dated 04.04.2009 on the basis of amended plaint issue no.6 framed on 28.10.2003 was amended as follows : Suit No. 94092/16 & 99243/16 14/81 Whether the plaintiff is entitled to claim half share in the suit property.
22. In order to substantiate his case, the plaintiff examined himself as PW1.
23. In rebuttal, the defendant no.1 examined himself as D1W 1; Sh. Arun Khanna (i.e. attesting witness of the Will dated 08.12.1976) as D1W2; Smt. Mala Chhabra, W/o Sh. Deepak Chhabra, Superintendent L&DO Office, Nirman Bhawan, Delhi as D1W3; Sh. S.K. Sharma, LDC, Office of the SubRegistrarIII, Asaf Ali Road, Delhi also examined as D1W3; Sh. Naveen, Department of Delhi Archives 18A, Sang Vihar Marg, Special Institution Area, New Delhi as D1W5; Sh. Ashish Kumar, Contractual Office Assistant from Office of SubRegistrarIII, 4/7, Asaf Ali Road, New Delhi 110002 as D1W6 and Sh. AzizurRehman as D1W7. There is no D1W4.
24. In rebuttal, the defendant no.2 has examined himself as D2W1.
25. No evidence has been led on behalf of the defendants no.3 and 4.
Suit No. 94092/16 & 99243/16 15/8126. PW1/ plaintiff Sh. Dev Dutt Soni deposed almost on the same lines as averred in the plaint. It is stated that their father Late Sh. C.L. Soni had started an HUF in the name of C.L. Soni & Company who died before partition of country when the plaintiff and the defendants no.1 and 2 were minor, thus the mother of the plaintiff Smt. Shankuntala Devi who was a simple housewife had taken over the HUF business as Karta and used to file Income Tax Return. Income Tax Return for the year, 195859 filed by M/s C.L. Soni & Company which is Ex. PW1/A also shows that the same was an HUF. It is stated that income from house property besides income from complete business including share in M/s Krishna Theatre Jalandhar were also being treated as income of HUF. It is stated that the suit property was purchased by the said HUF with the funds of the HUF as a joint property of all the three brothers and the mother Smt. Shakuntala Soni by way of registered sale deed, though it was purchased in the name of their mother only. The sale deed is Ex. PW 1/2. It is stated that M/s C.L. Soni & Company was always an HUF firm even during the lifetime of Late Sh. C.L. Soni, the father of the parties which was apparent from the deed of partnership dated 07.03.1963 which was duly signed by the defendants no.1 and 2 and the mother of the parties. The said partnership deed is Ex. PW1/3. It is stated that the defendant no.2 wanted to withdraw from the said Suit No. 94092/16 & 99243/16 16/81 partnership and he ceased to be partner and a dissolution deed was signed on 30.06.1961 which is Ex. PW1/4. Thereafter, the plaintiff was inducted as a partner from 01.07.1961 and a new partnership deed dated 01.07.1961 was made which is Ex. PW1/5. It is stated that the new partnership continued with Smt. Shakuntala Devi, Sh. Shiv Dutt Soni (the defendant no.1) and Sh. Dev Dutt Soni (the plaintiff/ deponent). It is stated that the defendant no.2 executed a receipt dated 24.04.1962 for a sum of Rs. 25,000/ on account of releasing, extinguishing, abandoning and canceling his all rights, claims, demands or interest in any manner or to any extent in respect of his 1/4 share in the HUF properties. The receipt dated 24.04.1962 is Ex. PW1/6. It is stated that Smt. Shakuntala Devi had also executed a Will dated 02.02.1963 which was duly registered and certified copy of which is Ex. PW1/7. It is stated that possession of all the members of HUF in respect of property in question has always been joint and each one of the parties has an equal share of 33% in the property. It is stated that the plaintiff was also in possession of the property as whenever he used to visit Delhi he used to stay in the property. It is stated that the defendant no.1 started acting fraudulently which came into knowledge of the plaintiff in July, 1997 that the defendant no.1 had obtained signatures of the plaintiff in a suit filed by daughters of the defendant no.2 for declaration in the Ld. Trial Court and had made some false averments before the Court at that time and now intended Suit No. 94092/16 & 99243/16 17/81 to take advantage of the written statement filed before the Ld. Trial Court, although the suit has not been finally adjudicated. It is stated that after death of the mother of the parties in the year, 1979, the defendant no.1 continued his good relations with the plaintiff, however after dissolution of C.L. Soni & Company in 1995 the defendant no.1 changed his attitude towards the plaintiff. It is stated that in July 1997 the defendant no.1 asked the plaintiff to provide "No Objection Certificate" to him for transfer of the property as the same was required by him for submission to the Income Tax Authorities for seeking permission U/s 230A of the Income Tax Act. It is stated that the plaintiff protested to the sale of property, unless the property was divided. After coming to know about illegal designs of the defendant no.1, the plaintiff wrote letters dated 15.07.1997 to Commission Income Tax, ITO Ward 2 (2) Jalandhar and letter dated 21.07.1997 to Land and Development Office, Nirman Bhawan, New Delhi objecting to illegal designs of the defendant no.1, the said letters are Ex. PW1/8 to Ex. PW1/10. It is stated that on 25.07.1997 the plaintiff came to know that the defendant no.1 had applied for permission U/s 230A of the Income Tax Act in order to sell one of the floor of the property. It is stated that the property has not been partitioned by metes and bounds and the plaintiff and the defendant no.1 both are having equal shares in the same. It is stated that the defendant no.1 has no right to sell or dispose off in any manner whatsoever any part of the suit Suit No. 94092/16 & 99243/16 18/81 property. It is stated that even the mother of the parties could not have become owner of the suit property as the same was purchased with the funds of HUF and she had no right to either transfer or make Will of the property, except her 1/3rd share in respect of which she had executed a registered Will dated 02.02.1963. It is stated that the plaintiff had unknowingly signed the written statement of the suit bearing no. 115 of 1988 filed by the daughters of the defendant no.2 as fraud played upon by the defendant no.1. It is stated that the defendant no.1 has sold first floor of the property to the defendants no.3 and 4 for Rs. 1,04,00,000/ and he may be asked to deposit that amount in the Court. It is stated that the alleged sale by the defendants no.1 to the defendants no.3 and 4 namely Sh. Sameer Paintal and Mrs. Tara Kochar Batra is illegal and unwarranted. It is stated that the defendant no.1 has sold a plot on 10.02.1997 and has given possession on 10.06.1997 and got clearance under the Income Tax Act only on 14.08.1997, thus the sale was not valid. It is to be noted that during examinationinchief the documents mentioned as Ex. PW1/1 to Ex. PW1/10, except Ex. PW1/3 are marked as MarkPA to PE and MarkPX to PZ, however there is no document, Ex. PW1/1 in the affidavit, but there is a document Ex. PW1/A. In his cross examination on behalf of the defendant no.2, it is accepted by him that C.L. Soni & Company was an HUF firm. It is accepted by him that he alongwith his brothers i.e. the defendants no.1 and 2 were the Suit No. 94092/16 & 99243/16 19/81 beneficiaries of the said HUF firm. It is accepted by him that the suit property has not been partitioned. It is again stated that the suit property has been partly partitioned and the defendant no.2 has taken his 1/4th share and gave a receipt acknowledging such partition in the year, 1962. It is accepted by him that in the initial petition in para no.12 he has stated that the suit property was never partitioned by metes and bounds. It is stated that later on by amendment it has been added that the defendant no.2 took his 1/4th share in the suit property. It is denied by him that Will dated 02.02.1963 was forged and fabricated. It is accepted by him that no relinquishment deed was executed by the defendant no.2 in respect of the suit property, however it is voluntarily stated that there was only a receipt to that effect. It is accepted by him that his mother was not the sole owner of the suit property, however it is voluntarily stated that it was an Hindu Joint Family property. It is accepted by him that the Will dated 08.12.1976 was fabricated. It is denied by him that he has filed a joint written statement in suit bearing no. 115/88, however it is voluntarily stated that at that time, he was living in Jalandhar and has no quarrel with the defendant no.1. It is stated that the written statement, Ex. PW1/D2 contains his signatures at PointA. It is stated that the said written statement was given to him at the last moment without allowing him to pursue the written statement and the fact that he has signed the written statement does not mean that he admits the contents of the Suit No. 94092/16 & 99243/16 20/81 written statement. It is stated that he is matric pass and knows English very well. It is stated that generally he does not sign any document without reading it. It is accepted that letter dated 11.08.1980, Ex. PW1/D3 has been signed and sent by him to the defendant no.2. It is accepted by him that the document, Ex. PW1/D4 was also signed by him. It is stated that his mother passed away in the year, 1979. It is accepted by him that document, Ex. PW1/D5 bears his signatures. It is accepted by him that the suit property constructed in the year, 195859 under the supervision of the defendant no.1, defendant no.2 and their mother. It is accepted by him that the suit property has been assessed as HUF property for the purpose of Income Tax Return. It is stated that most probably the Will dated 02.02.1963 was made in Punjabi. It is stated that he was not there at the time of making of the Will. This witness could not tell who are the witnesses of the Will, though stated that none of the witnesses are alive. It is denied by him that he does not remember the name of the witnesses as the Will was fabricated. It is accepted that his mother could not read or write any language, except Hindi. It is stated that he is not aware whether he has mentioned about the Will dated 02.02.1963 in the unamended plaint or not. It is accepted by him that he has not placed on record the copy of Will dated 02.02.1963. He could not tell what was the market value of the suit property in the year, 1962. He could not tell what is the market value of suit property as on today. It is stated by him that the Suit No. 94092/16 & 99243/16 21/81 receipt dated 24.04.1962 is not registered. It is stated by him that the receipt dated 24.04.1962 was not executed in his presence. It is stated that he never took any legal action against the defendant no.1 in respect of the fraud played by the defendant no.1 in respect of the suit bearing no. 115/88. In his crossexamination on behalf of the defendant no.1, it is stated by him that his date of birth is 10.10.1934 or 1937. It is stated that he is not certain about the same. He could not tell the date of birth or even the year of birth of the defendants no.1 and 2). It is stated that he is not aware whether his father Late Sh. C.L. Soni expired in the year, 193738. It is accepted by him that after the death of his father the entire burden of business of M/s C.L. Soni & Company fell on the shoulder of his mother. It is denied by him that M/s C.L. Soni & Company was the sole proprietorship of his father. It is stated that as per the papers available with him he can say that M/s C.L. Soni & Company was formed in the year, 1923 with head office at Jalandhar and branch office at Lahore. Again said, it was not M/s C.L. Soni & Company at that time, but M/s K.L. Soni & Company. It is stated that M/s C.L. Soni & Company was an HUF Family concern. It is stated that the HUF constituents were their father, uncle namely Sh. K.L. Soni and their grandfather namely Sh. Ishwar Dass Soni. It is stated that he has not placed on record any document to show this. It is accepted by him that he had no participation or contribution in the business of M/s C.L. Soni & Suit No. 94092/16 & 99243/16 22/81 Company. It is stated that even his brother did not contribute. It is accepted by him that he stayed in London (England), Germany and Belgium in the period 1956 to 1960 approximately. It is stated by him that at a certain point it would be correct to say that neither he, nor his two elder brothers had any stake in M/s C.L. Soni & Company, but later on all of them joined. It is stated that the suit property was purchased in the year, 1958 and was a vacant plot and not built up property. It is denied by him that only his mother through her funds had purchased the plot as well as built the structure thereon which today constitutes the suit property. He could not tell what was the sale consideration of the purchase of the suit plot. He could not tell whether the sale consideration was paid by cheque or cash. It is stated that part consideration amount was taken from the account of M/s C.L. Soni & Company by way of cheque. It is stated that he is also having passbook of that account. It is stated that he had applied for the certified copy of the statement of account from National Bank of Lahore which was later on merged with State Bank of India, but the bank has not made him available that statement of account. It is stated that he could not comment on document dated 07.11.1967 certified by National Bank of Lahore Ltd. exhibited as Ex. PW1/DA. He could not comment whether the said bank account pertains to the very bank account through which payment was made for the purpose of purchase of the suit property in 1958 or that cheque of Rs. 2,000/ paid towards Suit No. 94092/16 & 99243/16 23/81 the part payment of the sale consideration of the suit property also came through this bank account. It is denied by him that the said bank account establishes that M/s C.L. Soni & Company was a sole proprietorship of their mother. It is stated that all the bank account pertaining to the period till 07.03.1960 were that of HUF. It is stated that he is not aware about the exact number of the bank accounts. It is stated that he could not tell in which bank the HUF had its accounts. It is stated that he has not placed any document to show Smt. Shakuntala Devi was Karta of HUF. It is stated that in the year, 1960 he returned from England and he was inducted as a partner in M/s C.L. Soni & Company in the year, 1961. It is denied by him that M/s C.L. Soni & Company was a sole proprietorship of Smt. Shakuntala Devi till 1959. It is accepted by him that partnership between him and his brother Sh. S.D. Soni was dissolved on 31.03.1995 by way of a written dissolution deed which is Ex. PW1/DB. After seeing the document it is denied by him that portion (a) to portion (b) suggests that M/s C.L. Soni & Company as a partnership firm was first formed on 01.04.1959. It is accepted by him that HUF cannot be equated with a partnership firm. It is stated that he set up his case and filed affidavit stating M/s C.L. Soni & Company to be an HUF firm because the money (for buying property in question) was coming from their ancestors and it was not their efforts which created M/s C.L. Soni & Company, thus it was established from ancestral funds. It is accepted Suit No. 94092/16 & 99243/16 24/81 by him that he is not in possession of any document to show that the HUF funds were being diverted to M/s C.L. Soni & Company. It is stated that he was part of HUF, although it is true that he was not a part of M/s C.L. Soni & Company in 1960. It is stated that prior to 07.03.1960 M/s C.L. Soni & Company was an HUF firm, however it was converted into partnership firm. It is denied by him that there was no bank account of the said HUF. It is stated that he has not placed on record any document relating to bank account to show that there was a bank account of the said HUF. It is denied by him that only source of income of HUF was M/s C.L. Soni & Company, however it is voluntarily stated that M/s C.L. Soni & Company was HUF concern. It is denied by him that the said HUF and M/s C.L. Soni & Company were independent identities and they had nothing to do with each other in financial matters. It is stated that he has not placed on record any document to show that funds from the account of his grandfather or his ancestors were diverted to M/s C.L. Soni & Company. It is accepted by him that he is not having personal knowledge of the fact regarding diversion of the funds of his ancestors in M/s C.L. Soni & Company, though it is stated that this fact was told to him by his late mother and eldest brother Sh. G.D. Soni. It is accepted by him that when their family migrated from Pakistan somewhere in 1947, they had to face financial crises. It is accepted by him that in order to make the family stand on its own legs financially their mother made huge sacrifices. It is voluntarily stated by him that they had a Manager for Suit No. 94092/16 & 99243/16 25/81 35 years at that time who was looking after all the finances and that Manager of M/s C.L. Soni & Company and his mother were only singing authority. This witness shown his ignorance to the fact that his mother had sold her stridhan in the year 195354 in order to generate funds to run M/s C.L. Soni & Company. This witness has shown his ignorance to the fact whether profits coming from Krishna Theatre were diverted by his mother in M/s C.L. Soni & Company, or not. It is stated that everything was HUF property before 01.04.1959. The document marked as MarkPC was shown to this witness and it is asked to him that in this document his stand was that the suit property was in the sole ownership of his mother Smt. Shakuntala Devi and she put the property into common pool of HUF to which it is replied by this witness that his mother was head of the family and the property was put in her name out of love and affection and all the deals were done in that way. This witness has shown portion marked as X and Y in document, Ex. PW1/3 and was asked whether as per this document HUF had ceased to exist as on 07.03.1960 to which it is replied that it was only in relation to business and not in respect of other properties of HUF. A question was put to him whether as per document Ex. PW 1/3 all his brothers and mother as on 07.03.1960 were part of M/s C.L. Soni & Company (partnership firm) to which it is replied by him that he has no concern with this document as the same was executed by Sh. G.D. Soni, Sh. C.L. Soni and his mother only, however he has exhibited and relied upon the said document as this document exist. It Suit No. 94092/16 & 99243/16 26/81 is accepted by him that in his plaint or amended plaints he has not set up any challenge to the sale deed dated 18.08.1958 (Ex. PW1/2). It is denied by him that induction of his two brothers as partners in C.L. Soni & Company in March 1960 and his induction as partner to the said company in July 1961 shows that C.L. Soni & Company was the sole proprietorship concern of their mother till the year 1960. It is stated that he has seen letter dated 18.07.1980 which was issued by his elder brother Sh. G.D. Soni is Ex. PW1/DB1. It is stated that letter dated 24.07.1980 marked as 'B' for identification purpose; letter dated 27.07.1980 issued by Sh. G.D. Soni marked as 'C' and letter dated 06.08.1980 marked as 'D'. It is stated that his letter dated 11.08.1980 is marked as Ex. PW/D3. It is stated that abovesaid correspondence were part of one series of correspondence. It is admitted by him that the suit property was mutated in record of L&DO in February, 1980. It is stated that he officially came to know about the said mutation only in the year 1995. It is stated by him that he does not stand by the contents of the affidavit, Ex. PW1/D4 as the same is a proforma affidavit. It is denied by him that the Will marked in red in Ex. PW 1/D4 refers to the Will dated 08.12.1976. It is accepted by him that he has never challenged the mutation of the suit property in favour of Sh. S.D. Soni. It is accepted by him that application, Ex. PW1/D1A was filed by him. He admitted his signatures at PointX in Ex. PW 1/D1A. It is stated that he has also filed an affidavit which is Ex.
Suit No. 94092/16 & 99243/16 27/81PW1/D1B bearing his signatures at PointY and Z. It is voluntarily stated by him that his mother had made two Wills. The first one was in 1963 and the second one was somewhere in 1976. It is denied by him that his brother Sh. S.D. Soni had sent him the documents relating to mutation of suit property or pursuant to that he had signed and attested the affidavit at Jullundar. It is stated that document marked as MarkX1/D1 does not contain his signature as shown to him at PointA & B. It is accepted by him that he used to sign all the documents after reading and understanding them during the course of handling his business in Jullundar. It is accepted that previously a suit was filed before Ld. Civil Judge by children of Sh. G.D. Soni. It is stated that the said suit was also in respect of suit property. He cannot recollect whether the said suit was filed for declaring the second Will of his mother as null and void. The plaint of the said suit is admitted and exhibited as Ex. PW1/D1C. It is accepted by him that in that suit joint written statement, Ex. PW1/D2 was filed by him and his brother, Sh. S.D. Soni, however it is voluntarily stated that he was made to sign, Ex. PW1/D2. It is denied by him that he signed, Ex. PW1/D2 after reading, understanding and applying his mind. It is stated that after filing, Ex. PW1/D2 till filing of the present suit he never made any representation to anyone stating that he was made to sign, Ex. PW1/D2. It is voluntarily stated that he came to know about contents of written statement in the previous suit only at the Suit No. 94092/16 & 99243/16 28/81 time of filing of the present suit. It is stated that he did not file any application in suit bearing no. 115/93 stating these facts. It is stated that being the youngest he had no choice at that time. It is accepted by him that there was an old structure of single storey in plot where the suit property exists. It is accepted by him that in 1996 after demolishing that old structure the present suit property was constructed. It is voluntarily stated that after dissolution of partnership in 1995 he was not aware about the developments of the suit property. It is accepted by him that during 199596 he had visited Delhi. It is accepted by him that partnership with his brother was dissolved in March 1995. It is accepted by him that he never opposed for demolition of old structure and reconstruction. It is voluntarily stated that he never knew about demolition and reconstruction at that time. It is accepted by him that Ex. PW1/DB does not contain description of suit property for the reason that the same did not form part of partnership assets. It is voluntarily stated that the suit property was property of HUF and it had no concern with partnership.
27. No other plaintiff's witness was examined and plaintiff's evidence was closed.
28. In rebuttal on behalf of the defendant no.1; D1W1/ defendant no.1 Sh. Shiv Dutt Soni deposed almost on the same lines as averred in the written statement and has proved on record original Suit No. 94092/16 & 99243/16 29/81 form of order of assessment by the Sales Tax Officer, Assessing Authority, Ward No. 1 which is Ex. D1W1/X1; original policy of insurance dated 17.01.1947 executed by London and Lancashire Insurance Company Ltd. is Ex. D1W1/X2; the bill of insurance company in favour of their mother as sole proprietor of M/s C.L. Soni & Company is Ex. D1W1/X3; the original certificate dated 07.11.1967 issued by National Bank of Lahore Ltd. has already been exhibited as Ex. PW1/DA; copy of Form ST I issued by the Assessing Authority, Delhi Ward in October, 1951 is marked as MarkXY. It is stated that the plaintiff was inducted as a partner only on 01.07.1961 vide Ex. D1W1/X5. He also proved on record dissolution deed dated 30.06.1961 which is Ex. D1W1/X6; receipt dated 24.04.1962 which is marked as MarkAX; letter dated 01.02.1961 is Ex. D1W1/X7; partnership deed executed between his mother and one Sh. Sohan Lal for running Motion Picture Talkies House is Ex. D1W1/X8. He has also relied upon affidavits which are already exhibited as Ex. PW1/D4. He exhibited on record affidavit of his brother Sh. G.D. Soni and identify signature of Sh. G.D. Soni on this affdavit which is Ex. D1W1/X9. This witness identify his own signatures in the affidavit Ex. D1W1/X10 (already marked as MarkX1/D1). He exhibited on record letter whereby L&DO mutated the said property on 13.02.1980 which is Ex. D1W Suit No. 94092/16 & 99243/16 30/81 1/X11; letter dated 29.04.2010 is Ex. D1W1/X12; conveyance with respect to the suit property executed by L&DO on 27.07.1995 in his favour is Ex. DW1/X13; letter dated 18.07.1980 is Ex. PW1/DB1; carbon copy of reply dated 24.07.1980 is Ex. D1W1/X14; letter dated 27.07.1980 is Ex. D1W1/X15; carbon copy of his letter dated 06.08.1980 sent to the defendant no.1 is Ex. D1W1/X16 and acknowledgment qua sending of this letter to the defendant no.2 through registered A.D. is Ex. D1W1/X17; reply dated 11.08.1980 of the plaintiff to the letter dated 27.07.1980 of the defendant no.2 is already Ex. PW1/D3; dissolution deed dated 31.03.1995 is Ex. PW 1/DB and the Agreement to Sell dated 10.02.1997 executed by him in favour of the defendants no.3 and 4 is Ex. D1W1/X18. (The documents Ex. D1W1/X12; Ex. D1W1/X16 and Ex. D1W1/X18 objected as to mode of proof). It was clarified vide order dated 29.09.2012 that due to typographical error no document bearing Ex. D1W1/X4 is mentioned in the affidavit and there is no such document filed by the defendant no.1. In his crossexamination on behalf of the plaintiff, it is accepted by him that with the investment of their grandfather Sh. Ishwar Lal Soni, his two sons namely Sh. Kundan Lal Soni and Sh. C.L. Soni had started the business under the name and style of M/s K.L. Soni & Company. It is voluntarily stated that it is incorrect that the business of M/s K.L. Soni & Company received investment from his grandfather. It is stated that they used to Suit No. 94092/16 & 99243/16 31/81 do business together. It is accepted by him that after division of M/s K.L. Soni & Company, another company in the name of their father Sh. C.L. Soni was floated as M/s C.L. Soni & Company. It is accepted by him that at the time of death of his father all three brothers were minors. It is denied by him that after death of his father the business of M/s C.L. Soni & Company was under in overall control of their mother Smt. Shakuntala Devi. It is voluntarily stated that his mother was the sole proprietor of M/s C.L. Soni & Compnay after the death of Sh. C.L. Soni. It is stated that after the death of their father, their Manager Sh. Bir Chand and Dr. Tek Chand Sondhi, elder brother of their mother were looking after day to day affairs of M/s C.L. Soni & Company. It is denied by him that after the death of Sh. C.L. Soni, a Joint Hindu Family was constituted by all three brothers and their mother. It is accepted by him that the partnership deed was executed between Sh. G.D. Soni, Sh. S.D. Soni and Smt. Shakuntala Devi on 07.03.1960. It is stated by him that the partnership firm constituted between Sh. S.D. Soni, Sh. D.D. Soni and Smt. Shakuntala Devi was dissolved on the death of Smt. Shakuntala Devi. It is accepted by him that Sh. G.D. Soni had taken his 1/4th share from Sh. S.D. Soni, Sh. D.D. Soni and Smt. Shakuntala Devi on 24.04.1962. It is accepted by him that a receipt was also executed by Sh. G.D. Soni on 24.04.1962 confirming to receive his 1/4th share from Sh. S.D. Soni, Sh. D.D. Soni and Smt. Shakuntala Devi. It is stated that there is a reference of Will dated 02.02.1963 in the Will of his mother executed in 1976, Suit No. 94092/16 & 99243/16 32/81 however this witness has not seen that Will, nor has anyone produced it so, therefore he cannot comment on the bequest made in the same. This witness stated that Ex. D1W1/P2 is receipt executed by Sh. G.D. Soni on 24.04.1962. It is stated that only the property mentioned in ClauseD of Ex. D1W1/P2 is Joint Hindu Family property and the rest of the properties mentioned in ClauseA to ClauseC are acquired by Smt. Shakuntala Devi. It is voluntarily stated by him that there was no Joint Hindu Family property. It is stated that the property at ClauseD was an ancestral property. It is accepted by him that in the year, 1997 he had sought a certificate U/s 230A of Income Tax Act n respect of property bearing no. C536, Defence Colony, Delhi. The application for seeking that certificate is Ex. D1W1/P3. It is denied by him that he has declared in form, Ex. D1W1/P3 that the property was not acquired by him on distribution of any assets on partition of HUF or under a Gift, or Will. It is stated that it is mentioned in Clause10 of Ex. D1W1/P3 of the application. It is denied by him that the written statement in previous suit bearing no. 115/88 was got signed by him from Sh. D.D. Soni just outside the Court room on the day when the said matter was listed for hearing. It is stated by him that he is not aware whether the suit property was being assessed as HUF or individual in the ITR and WTR. It is denied by him that the alleged Will dated 10.12.1976 is forged and fabricated. It is accepted by him that no probate has been obtained in respect of Will dated Suit No. 94092/16 & 99243/16 33/81 10.12.1976. In his crossexamination on behalf of the defendant no.2, it is stated by him that when they migrated to Delhi from Pakistan their mother Smt. Shakuntala Devi was the head of the family. It is stated that Smt. Shakuntala Devi was the only earning member of the family at that time. It is stated that Smt. Shakuntala Devi was proprietor of C.L. Soni & Company and the earnings used to come from this business. It is denied by him that the said business was originally started by their father Late Sh. C.L. Soni, however it is voluntarily stated that originally the business was in the name and style of K.L. Soni & Company, on the death of their father Sh. K.L. Soni i.e. the elder brother of their father became dishonest and opened a new business under the same name of K.L. Soni & Company, therefore their mother continued the earlier business under the name and style of M/s C.L. Soni & Company. It is stated by him that out of attesting witnesses of the Will namely Sh. Arun Khanna and Sh. K.C. Sondhi, Sh. K.C. Sondhi has expired and only Sh. Arun Khanna is alive. It is stated by him that he became owner of branch at Delhi and shut down the business of branch at Delhi sometime in the year 1998. It is stated by him that Sh. G.D. Soni was employed as a Manager of Delhi branch who worked in the said branch for 67 years. It is denied by him that Sh. G.D. Soni had 1/3rd share in the business of Delhi branch. It is stated by him that no property was owned by the firm namely M/s C.L. Soni & Company. It is stated that in all there were Suit No. 94092/16 & 99243/16 34/81 four properties owned by Smt. Shakuntala Devi, out of which three were purchased by Smt. Shakuntala Devi between the period 194959 and one property at Jalandhar i.e. Khingrawala Gate was ancestral property. It is denied by him that the said three properties were purchased by Smt. Shakuntala Devi out of the joint family income (ancestral fund) and not from her personal income. It is voluntarily stated that there was no joint family income. It is accepted by him that the business of photo goods being run by their father was taken over by their mother after death of their father. It is accepted by him that the said photo goods business was shifted to Delhi after partition. It is stated by him that they three brothers i.e. the plaintiff and the defendants no.1 and 2 did not join the said photo goods business when it was shifted to Delhi upon attaining majority. It is stated by him that in the dissolution deed, Ex. PW1/4 the share given to Sh. G.D. Soni must have been mentioned. He could not tell where the original dissolution deed dated 30.06.1961 is. It is stated by him that all the four properties were in possession of Smt. Shakuntala Devi at the time of dissolution of firm in the year 1961. It is stated by him that the property at Jalandhar was sold prior to death of Smt. Shakuntala Devi by the plaintiff, Sh. D.D. Soni in order to buy a residential plot at Model Town, Jalandhar. It is stated by him that the property at Ram Nagar Colony was gifted by Smt. Shakuntala Devi to her sister; the property at Ranjeet Nagar was acquired by the Government and fourth property i.e. property no. C536, Defence Colony was bequeathed by Suit No. 94092/16 & 99243/16 35/81 Smt. Shakuntala Devi to this witness by way of Will of year 1976. He could not tell whether any of them three brothers were party to the sale of the property at Jalandhar. This witness could not remember if any release deed as per Ex. PW1/6 i.e. receipt was executed by the defendant no.2. It is stated by him that he remained a partner in C.L. Soni & Company from the year 1960 till the year 1995. It is stated by him that the defendant no.2 started demanding his 1/3rd share in the assets of Smt. Shakuntala Devi in the year 1980 and the plaintiff only filed the present suit in the year 1997. It is stated by him that it was only in the year 1980 after the death of Smt. Shakuntala Devi that the defendant no.2 had served a notice on this witness and the plaintiff demanding 1/3rd share in the assets of Smt. Shakuntala Devi. This witness could not remember if either he or the defendant no.2 had given anything in writing in favour of the plaintiff at the time of sale of aforesaid property at Jalandhar. It is voluntarily stated by him that the defendant no.2 had nothing to do with the same since he had already taken his share in the year 1961. It is accepted by him that his mother used to be referred as "Biji". It is accepted by him that Ex. D1W1/X17 is the carbon copy of document, Ex. D1W1/X9. It is stated by him that original of document Ex. D1W1/X9 was deposited with the L&DO. It is accepted by him that the blanks in document Ex. D1W1/X9 were filled in by him. It is stated by him that the Will referred to in the Affidavit Ex. D1W1/X9 is the Will of the year 1976. It is stated by him that original Will (Urdu Will) has been filed Suit No. 94092/16 & 99243/16 36/81 on Court record. It is stated that certified copy of Will dated 08.12.1976 was submitted with the Office of L&DO. It is accepted by him that he has filed English translation of the said Will i.e. Mark D1W1/D2A (Colly). It is stated by him that the translated copy of Will which is marked as MarkD1W1/D2A (Colly) is the correct translation of the original Will. It is stated by him that he obtained possession of the original Will after the death of his mother since it was in her documents.
29. D1W2 Sh. Arun Khanna (i.e. attesting witness of the Will dated 08.12.1976) has exhibited on record Will dated 08.12.1976 as Ex. D1W2/1. He identified his signature on the same at PointA. It is stated that he signed the Will as an attesting witness. He identified signatures of Smt. Shakuntala Soni at the points encircled in red and marked as X1, X2 and X3 on the said Will Ex. D1W2/1. He also identified that thumb impressions encircled in red and marked as Y1, Y2 and Y3 on the said Will also belongs to Smt. Shakuntala Devi. It is stated that there were two attesting witnesses of the Will i.e. he and Sh. K.C. Sondhi, the brother of Smt. Shakuntala Soni. It is stated that Smt. Shakuntala Soni had signed on the Will Ex. D1W2/1 in his presence and in present of Sh. K.C. Sondhi. It is stated that he also signed on the said Will in presence of Smt. Shakuntala Soni and Sh. K.C. Sondhi. It is stated that Sh. K.C. Sondhi also signed on the said Suit No. 94092/16 & 99243/16 37/81 Will in his presence and in presence of Smt. Shakuntala Devi. It is stated that Sh. K.C. Sondhi signed on the Will at point encircled in red and marked as Z. It is stated that the handwriting appearing at portion encircled in red both immediately above and below the point Z is of Sh. K.C. Sondhi. It is stated by him that he knew Smt. Shakuntala Soni since he was working at her firm namely M/s C.L. Soni & Company, 1 Chandni Chowk, Delhi110006. It is stated that he used to do both official as well as personal work of Smt. Shakuntala Soni. It is stated that a day before the execution of the Will Ex. D1W2/1 Smt. Shakuntala Soni contacted him telephonically and inquired him regarding draftsmen of the Wills since she stated that she wanted to draw up a Will. It is stated that he spoke to a scribe who used to sit near the Gurdwara Sisganjh who agreed to come to the house of Smt. Shakuntala Soni on the next day. It is stated that the date fixed for the purpose of drawing up of Will was 08.12.1976. It is stated that he reached the house of Smt. Shakuntala Soni on 08.12.1976 at about 10:00 am in the morning. It is stated that the scribe also reached on that day at the designated time of 10:00 am. It is stated that Smt. Shakuntala Devi and Sh. K.C. Sondhi were already present at the house of Smt. Shakuntala Soni. It is stated that first of all, Smt. Shakuntala Soni instructed the scribe regarding the contents that she wanted to be incorporated in the Will. Thereafter, the scribe drafted the Will in Urdu. Then, he read over the contents of the Will to Smt. Shakuntala Soni in presence of both the witnesses of the Will. It is Suit No. 94092/16 & 99243/16 38/81 stated that Smt. Shakuntala Soni understood the contents of the Will. It is stated that Smt. Shakuntala Soni knew a bit of Urdu and could also read Urdu. It is stated that Smt. Shakuntala Soni read the Will before signing the same. It is stated that the said Will was got registered on 10.12.1976 at the SubRegistrars Office at Asaf Ali Road. It is stated that Smt. Shakuntala Soni, Sh. K.C. Sondhi and he went to the SubRegistrar's Office for getting the Will registered. It is stated that they all signed in the Register maintained by the Sub Registrar. In his crossexamination on behalf of the plaintiff, this witness was shown certified copy of Will dated 08.12.1976 forming part of Ex. D1W3/1 (Colly). It is stated by him that his signatures appear at the point encircled in red and marked as X on the said certified copy of Will which forms part of Ex. D1W3/1 (Colly). It is stated by him that he could not see the thumb impressions of Smt. Shakuntala Soni on page no.02 of the said certified copy of Will. It is stated by him that Will Ex. D1W2/1 and certified copy of Will forming part of Ex. D1W3/1 (Colly) appear to be the same. It is stated that he signed only on one Will on 08.12.1976. It is accepted by him that there appears to be difference in his signatures appearing at PointA on page no.02 of Ex. D1W2/1 and at PointX on page no.02 of the certified copy of the Will forming part of Ex. D1W3/1 (Colly). He could not recollect if he had signed at PointA on page no.02 of Ex. D1W2/1 and PointX of page no.02 of certified copy of the Will Suit No. 94092/16 & 99243/16 39/81 at different times, however it is voluntarily stated by him that both the signatures are belonging to him. It is stated by him that Smt. Shakuntala Devi had signed only on one Will on 08.12.1976. It is accepted by him that apart from the income of the business of M/s C.L. Soni & Company, Smt. Shakuntala Soni had no other source of income in the year 1976. It is denied by him that due to ill health of Smt. Shakuntala Soni, SubRegistrar called at house of Smt. Shakuntala Soni for registration of Will. It is stated by him that he does not know Urdu language. It is stated by him that though he does not know Urdu language, however whatever was dictated was got incorporated in the said Will. It is stated that he knew what was written in the said Will. It is stated by him that no changes were made to the said Will after Smt. Shakuntala Soni dictated the same to the scribe. It is accepted by him that in front of him no cutting or alteration was made in the Will dated 08.12.1976. In his cross examination on behalf of the defendant no.2, it is stated by him that he was not aware about the qualifications of Smt. Shakuntala Soni. It is stated that Smt. Shakuntala Soni did not show any such earlier Will to the draftsman.
30. D1W3 Smt. Mala Chhabra, W/o Sh. Deepak Chhabra, Superintendent L&DO Office, Nirman Bhawan, Delhi brought the summoned record i.e. the original file pertaining to the property bearing no. C536, Defence Colony as maintained with L&DO Suit No. 94092/16 & 99243/16 40/81 Department. The copies of the documents i.e. the affidavit of Sh. Shiv Dutt Soni; letter dated 13.02.1980 addressed to Sh. Shiv Dutt Soni, Indemnity Bond, affidavits of Sh. Shiv Dutt Soni, Sh. Dev Dutt Soni and Sh. G.D. Soni; Will of Smt. Shakuntala Soni (English translation as filed in their records); photocopy of certified copy of Urdu Will and death certificate of Smt. Shakuntala Soni are collectively exhibited as Ex. D1W3/1 (all original seen and return, except the Urdu Will which is a certified copy in the records of L&DO) (comprising 13 pages). In her crossexamination on behalf of the plaintiff, this witness was shown original Will Ex. D1W2/1 and it was accepted by her that the certified copy of the said Will as furnished to their department by the defendant no.1 does not bear the thumb impression of Smt. Shakuntala Soni which is appearing on the original Will Ex. D1W2/1. It is accepted by her that there is a difference in the writing at the points already marked as X2 and X3 on the original Will as compared to the certified copy thereof as furnished to their department. It is accepted by him that the address i.e. B1, Maharani College, Staff Quarter which appears on the left hand side of the original Will appears on the right hand side of the certified copy of the Will which has been furnished to their department. It is accepted by her that the word "witness" which appears on the 2 nd page of the certified copy of the Will below the name of Smt. Shakuntala Soni does not appear in the original Will Ex. D1W2/1. It is accepted by Suit No. 94092/16 & 99243/16 41/81 her that the signatures of the attesting witness encircled in the original Will at points Z and A differ from the signatures of the attesting witness shown in the certified copy. It is accepted by her that there is a cutting on the 2nd page of the certified copy of the Will furnished to L&DO which is not there in Ex. D1W2/1. When the witness was shown the affidavit of the plaintiff Ex. PW1/D4, it is accepted by her that while in the original affidavit Ex. PW1/D4 the signatures of the plaintiff alongwith the date are there, however the date is not shown in the copy furnished to L&DO Office (photocopy of which has been exhibited as part of Ex. D1W3/1 (Colly)). It is accepted by her that while in the copy of affidavit with L&DO the affidavit is on Rs. 2/ stamp paper, however in the copy Ex. PW1/D4 the same is not on stamp paper. The crossexamination on behalf of the defendant no.2 has been recorded as nil, opportunity given.
31. D1W3; Sh. S.K. Sharma, LDC, Office of the Sub RegistrarIII, Asaf Ali Road, Delhi has stated that the record of Will has been transferred to the Delhi Archives at 18A, Satsang Vihar Marg, Special Institutional Area, near Qutub Hotel, New Delhi 110067, Katwaria Sarai.
32. D1W5 Sh. Naveen, Department of Delhi Archives 18A, Sang Vihar Marg, Special Institution Area, New Delhi brought the summoned record i.e. registered Will dated 10.12.1976 bearing no.
Suit No. 94092/16 & 99243/16 42/81793, Book No. 3, Volume No. 96 on pages 24 to 25, copy of which is Ex. D1W5/1 (OSR) (running into two pages).
33. D1W6 Sh. Ashish Kumar, Contractual Office Assistant from Office of SubRegistrarIII, 4/7, Asaf Ali Road, New Delhi 110002 has brought letter no. F.SRIII/RTI/2016/487 dated 21.04.2016 which is marked as MarkX. It is stated that the said letter was issued from the Office of SubRegistrarIII. On next date of hearing i.e. 17.02.2017 this witness has brought on record original office copy of MarkX and same is Ex. D1W6/1.
34. D1W7 Sh. AzizurRehman deposed that he is a translator of Urdu, Arabic and Persian languages of Government of NCT of Delhi. He exhibited copy of letter dated 10.04.2013 bearing reference number F.2(7) 201213/ACL/160 vide which he was empaneled as Ex. D1W7/1. It is stated that the defendant no.1 approached him and sought translation of Will dated 08.12.1976 Ex. D1W2/1 and certified copy of Will dated 08.12.1976 Ex. D1W3/1 (Colly) as available in the records of L&DO. It is stated that he has translated the contents of Will dated 08.12.1976 Ex. D1W2/1 and certified copy of Will dated 08.12.1976 as available in the records of L&DO from Urdu to Hindi. He exhibited translated copy of Will dated 08.12.1976 Ex. D1W2/1 as Ex. D1W7/2 (already Ex. D1W2/1) and translated copy of Suit No. 94092/16 & 99243/16 43/81 certified copy of Will dated 08.12.1976 Ex. D1W3/1 (Colly) as available in the records of L&DO as Ex. D1W7/3 (already Ex. D1W3/1). It is stated that contents of Will dated 08.12.1976 and certified copy of the Will dated 08.12.1976 are same. It is stated that the translation of Will dated 08.12.1976 done by him is true and correct translation. In his crossexamination on behalf of the plaintiff, it is accepted by him that there is a cutting on second page of Will dated 08.12.1976 Ex. D1W2/1. It is accepted by him that the said cutting is not there on the second page of certified copy of Will dated 08.12.1976 Ex. D1W3/1 (Colly). It is denied by him that the signature of Smt. Shakuntala Soni on Ex. D1W2/1 and Ex. D1W3/1 (Colly) are different. It is accepted by him that Ex. D1W3/1 (Colly) bears the thumb impression of Smt. Shakuntala Soni on page no.02, whereas Ex. D1W2/1 does not bears the thumb impression of Smt. Shakuntala Soni on page no.02. It is accepted by him that the word "witness" is not written on the second page of Ex. D1W3/1 (Colly), however it is voluntarily stated that the said word "witness" is written on the second page of Ex. D1W3/1 in Urdu at points A and B. It is accepted by him that there is difference in both the Wills Ex. D1W2/1 and Ex. D1W3/1 (Colly).
35. No other witness was examined on behalf of the defendant no.1 and evidence on behalf of the defendant no.1 was closed.
Suit No. 94092/16 & 99243/16 44/8136. In rebuttal on behalf of the defendant no.2; D2W1/ defendant no.2 Sh. Guru Dutt Soni deposed almost on the same lines as averred in the written statement as well as counter claim and has proved on record copy of rent receipt which is Ex. D2W1/X and copy of inland letter in Hindi which is Ex. D2W1/Y (mode of proof of both the documents are objected to being photocopies). In his cross examination on behalf of the plaintiff, it is stated by him that the finance of said M/s C.L. Soni & Company was under over all control of their mother Smt. Shakuntala Devi Soni. It is stated by him that a Joint Hindu Family was constituted since inception by their forefathers. It is stated that their mother Smt. Shakuntala Devi was the head of said Joint Hindu Family after death of their father Sh. C.L. Soni. It is accepted by him that the above Joint Hindu Family started running the business under the name and style of M/s C.L. Soni & Company after death of their father Sh. C.L. Soni. It is accepted by him that Joint Hindu Family business under the name and style of M/s C.L. Soni & Company was converted into partnership business on 07.03.1960. It is denied by him that he had taken his 1/4th share in the undivided Joint Hindu Family property on 24.04.1962. In his cross examination on behalf of the defendant no.1, it is accepted by him that the concern by the name of M/s C.L. Soni & Company was being run by his father alone. After confronting this witness with the Suit No. 94092/16 & 99243/16 45/81 document Ex. D1W1/X he was asked that he himself represented his mother as the sole proprietor of M/s C.L. Soni & Company to the Tax Authority to which it is replied by him that before the Tax Authority he made such statement for the tax purposes. This witness was again confronted with document Ex. D1W1/X3 and asked that if the stock in trade of M/s C.L. Soni & Company was insured by the London & Lancashire Insurance Company Ltd. which is accepted by this witness, however it is voluntarily stated that in Lahore. It is stated that it is possible that even before this Insurance Company Smt. Shakuntala Devi to be sole proprietor of M/s C.L. Soni & Company. It is stated that their mother was an illiterate lady and knew only Hindi and studied upto 4th Class. It is accepted by him that Smt. Shakuntala Devi could read and write only in Hindi. It is accepted by him that she could sign in Hindi. A document dated 08.12.1976 was shown to this witness on which he identified the signature of his mama (maternal) uncle namely Sh. K.C. Sondhi at PointZ and signatures of his mother at PointX3. The said document is Ex. D2W1/D1A. It is stated that he has no knowledge of the execution of this document Ex D2W1/D 1A by his mother. It is stated by him that he may have received letter dated 06.08.1980, Ex. D1W1/X16. It is stated that his mamaji informed him that he had signed as a witness on the Will upon being compelled under pressure and otherwise for him all the three children of Smt. Shakuntala Devi were equal. It is stated by him that he was supposed to be given Rs. 1,00,000/, but only Rs. 25,000/ was given Suit No. 94092/16 & 99243/16 46/81 for his retirement. It is stated that the total assets at that time were valued around Rs. 6,00,000/ and he was not given his full share. It is stated that he does not file any suit or action in any Court in this regard. It is denied by him that he had fully and finally settled all his claims with his mother and his brothers in the year 1960. The document Ex. D1W1/X17 was shown to this witness and asked whether the signatures at points X and Y is his signatures to which he denied, however it is voluntarily stated that he denied the same due to reason that the date, month and year mentioned at PointA of this document are not in his hand. It is stated that had he signed on this document, than the date, month and place would have been entered into in his hand. It is denied by him that he intentionally disowning his own signatures on Ex. D1W1/X17 in order to set up a false defence/ counter claim. It is accepted by him that the suit property had been mutated in the name of his brother Sh. S.D. Soni, however it is voluntarily stated that the same was done by him by submitting bogus documents. It is stated by him that he has not lodged any complaint or instituted any suit against Sh. S.D. Soni in this regard till date. He could not say whether or not the Will dated 08.12.1976 was executed by his mother. It is accepted by him that his three daughters had filed a suit bearing no. 115/1988 i.e. Ex. PW1/D1C. It is stated that the said suit was not prosecuted by him. He could not tell what was the final outcome of the said suit.
Suit No. 94092/16 & 99243/16 47/8137. No other witness was examined on behalf of the defendant no.2 and evidence on behalf of the defendant no.2 was closed.
38. The Court has heard arguments on behalf of all the parties and has perused the record. The case mainly relied upon by the parties are as follows :
(i) Ld. Counsel for the plaintiff relied upon two cases titled as Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria, 2009 AIR (SC) 1389 and Kavita Kanwar Vs. State (N.C.T. Delhi) & Ors., 2014 (2) RLR 636 which are regarding proof of Will and suspicious circumstances surrounding execution of Will.
(ii) Ld. Counsel for the defendant no.2 relied upon a case titled as Sita Ram Bhama Vs. Ramvatar Bhama, AIR 2018 Supreme Court 3057 wherein it was held that even a family settlement required registration. Further, the document relinquishing rights of a person in the property required to be registered.
(iii) Ld. Counsel for the defendant no.1 relied upon 37 cases titled as (1) Rai Shadi Lal Vs. Lal Bahadur @ Jagadamba Sahai & Ors., AIR 1933 PC 85; (2) Babu Nisar Ahmad Khan Vs. Babu Raja Mohan Manucha & Ors., AIR 19040 PC 204; (3) Appalaswami Vs. Suit No. 94092/16 & 99243/16 48/81 Suryanarayanamurti, AIR 1947 PC 189; (4) Srinivas Krishnarao Kango Vs. Narayan Devi Kango & Ors., AIR 1954 SC 379; (5) Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda Sankh, 1969 (1) SCC 386; (6) D.S. Lakshmaiah & Anr. Vs. L. Balasubramanyam & Anr., (2003) 10 SCC 310; (7) V.M.N. Radha Ammal Vs. The Commissioner of Income Tax, Madras (1951) ILR Mad 56; (8) Maguni Padhano Vs. Lokamanidhi Lingaraj, AIR 1956 Ori 1; (9) Sushila Devi Vs. Income Tax Officer, AIR 1959 Cal 697, (1960) 38 ITR 316; (10) Commissioner of Wealth Tax Vs. P.S. Swaminathan, (1999) 240 ITR 163; (11) Santosh Kumar Jain Vs. Mehtab Singh Jain, CS (OS) No. 3139/1991 decided on 13.04.2018; (12) Mallesappa Bandeppa Desai Vs. Desai Mallappa, (1961) 3 SCR 779; (13) Lakkireddi Chinna Venkata Reddi Vs. Lakkireddi Lakshmama, (1964) 2 SCR 172 : AIR 1963 SC 1601; (14) Pushpa Devi Vs. CIT, New Delhi, (1977) 4 SCC 184; (15) Marabasappa Vs. Ningappa, (2011) 9 SCC 451; (16) Sagar Gambhir Vs. Sukhdev Singh Gambhir, (2017) 241 DLT 98 (DB); (17) Mukesh Kumar Vs. Pavitra & Anr., 2016 (8) AD (Delhi) 44; (18) Surender Kumar Vs. Dhani Ram, (2016) 1 High Court Cases (Del) 17; (19) Sunny Minor Vs. Raj Singh, (2015) 225 DLT 211; (20) Prem Singh & Ors. Vs. Birbal & Ors., (2006) 5 SCC 353; (21) Satyender Singh Vs. Gulab Singh, 2012 (129) DRJ 128; (22) Achyut Kumar Sharma Vs. JVG Suit No. 94092/16 & 99243/16 49/81 Finance Ltd., 2016 (232) DLT 3; (23) Kishan Chand Sharma Vs. Chet Ram Sharma, 2016 (8) AD (Delhi) 308; (24) Md. Noorul Hooda Vs. Bibi Raifunnisa, (1996) 7 SCC 767; (25) Suresh Shrivastava Vs. Subodh Shrivastava, 2013 (196) DLT 45; (26) Sh. Hari Ram Vs. Smt. Shanti Devi & Ors., 2015 (225) DLT 73; (27) Razia Begum Vs. Delhi Development Authority & Ors., 2014 (215) DLT 290; (28) Lynette Fernandes Vs. Gertie Mathias, (2018) 1 SCC 271; (29) Rao Saheb Vs. Rangnath Gopalrao Kawathekar, (1972) 4 SCC 181; (30) B.L. Sreedhar Vs. K.M. Munireddy, (2003) 2 SCC 355; (31) Dadu Dayalu Mahasabha, Jaipur (Trust) Vs. Mahant Ram Niwas, (2008) 11 SCC 753; (32) Mohinder Kaur Vs. Sardar Sarwan Singh Banda, ILR (2009) II Delhi 631; (33) Manan Singh Vs. Mostt. Lal Badan, AIR 2006 Pat 87; (34) Bachhaj Nahar Vs. Nilima Mandal, (2008) 17 SCC 491; (35) Rampur Engineering Company Ltd. Vs. United Construction Company, AIR 2002 Del 170; (36) Prakash Vs. Phulavati, (2016) 2 SCC 36 and (37) Danamma Vs. Amar, (2018) 3 SCC 343.
The judgments from serial no. 1 to 6 are in respect of existence of joint family cannot lead to a presumption of there being Joint Family Property there has to be affirmative evidence of Joint Family Property; from serial no. 7 to 9 are in respect of female cannot be karta of the Joint Family (prior to 2005 amendment); at serial no.
Suit No. 94092/16 & 99243/16 50/8110 and 11 are in respect of HUF cannot be a partnership firm; at serial no. 12 and 13 are in respect of blending of selfacquired property with the Joint Family Property; at serial no. 14 and 15 are in respect of female member cannot blend her separate property with the Joint Family Property; from serial no. 16 to 19 are in respect of onus to prove existence of HUF prior to 1956 is on the person claim rights under the HUF; from serial no. 20 to 23 are in respect of cancellation of document abrogating title of a person is mandatory; from serial no. 24 to 26 are in respect of Article 59 of Limitation Act applies for seeking cancellation of documents; at serial no. 27 is in respect of relief of declaration without consequential relief of cancellation is not maintainable; at serial no. 28 and 29 are in respect of particulars of fraud and forgery must be specifically pleaded; from serial no. 30 to 32 are in respect of estoppel; at serial no. 33 is in respect of relief inconsistent with the pleadings cannot be granted; at serial no. 34 is in respect of no relief can be granted on the basis of evidence alone; at serial no. 35 is in respect of replication does not form part of pleadings and at serial no. 36 and 37 are in respect of amendment to Section 14 Hindu Succession Act not retrospective.
39. Findings of the Court : The two important aspects required to be determined to resolve the dispute involved in the present suit are (i) whether the Suit No. 94092/16 & 99243/16 51/81 property in question is the separate property of deceased Smt. Shakuntala Devi, or the same is/ was Joint Hindu Family property and
(ii) whether the Will dated 08.12.1976 executed by Smt. Shakuntala Devi is genuine, or not.
Whether the property in question is the separate property of deceased Smt. Shakuntala Devi, or the same was Joint Hindu Family property
40. Following important facts and legal preposition would decide whether the property in question bearing no. C536, Defence Colony, New Delhi is the Joint Hindu Family property or not :
(a) The property was purchased vide sale deed 18.08.1958 registered on 20.08.1958 which is Ex. PW1/2 in which Smt. Shakuntala Devi is the vendee in her personal capacity and not as Manager or Karta of M/s C.L. Soni & Company.
(b) The plaintiff as well as the defendant no.2 who were claiming that the property though purchased in the name of their mother Smt. Shakuntala Devi was the joint family property have not placed on record any document whatsoever to show from which joint family property the nucleus to purchase the property in question had came i.e. they could not show by selling which Joint Hindu Family Suit No. 94092/16 & 99243/16 52/81 property funds were received to purchase the property in question. Though, it is claimed that Smt. Shakuntala Devi had no other business or source of income, except the earning of M/s C.L. Soni & Company which was a joint family venture, thus any property purchased by Smt. Shakuntala Devi would be property of the joint family, however this proposition could not hold true in view of the fact that apart from M/s C.L. Soni & Company, Smt. Shakuntala Dvi in her personal capacity was a partner in her personal capacity of Motion Picture Talkies House/ M/s Krishna Theatre Jalandhar as proved by partnership deed dated 16.04.1955 Ex. D1W1/X8, thus it is apparent that she was having her separate personal income as well apart from income from M/s C.L. Soni & Company.
(c) Neither the plaintiff, nor the defendant no.2 could prove the source from which consideration amount to purchase the property in question came. Per contra, the defendant no.1 has stated that out of the total sale consideration amount of Rs. 12,000/ of the property in question, Rs. 10,000/ were paid in cash and Rs. 2,000/ were paid from the personal account of the deceased mother existence of that personal account has been proved by document, Ex. PW1/DA, while it was the duty of the plaintiff to show that property in question was purchased from HUF funds which he miserably failed to prove, per contra the defendant no.1 was able to show the personal income of their mother Smt. Shakuntala Devi from partnership business as well Suit No. 94092/16 & 99243/16 53/81 as raised a probable defence that a sum of Rs. 2,000/ was paid by way of cheque from the personal account of their mother to purchase the property in question. The plaintiff could not even tell whether the sale consideration of property in question was paid by cheque or cash, though it is stated that part consideration amount was taken from the account of M/s C.L. Soni & Company by way of cheque. He could not show passbook of the same, though it is stated that he had applied for the certified copy of the statement of account from National Bank of Lahore which was later on merged with State Bank of India, but the same was not made available by the bank. Though he could not comment on document dated 07.11.1967 certified by National Bank of Lahore Ltd. exhibited as Ex. PW1/DA, further he could not specifically and categorically denied if a sum of Rs. 2,000/ was paid from this personal account of Smt. Shakuntala Devi maintained with National Bank of Lahore. The plaintiff failed to tell how many accounts HUF had and in which banks the same were maintained.
(d) From the evidences led, it appears that earlier father of the present plaintiff and the defendants no.1 and 2 used to have a business in the name of M/s K.L. Soni & Company alongwith his brother, however thereafter, he started his separate business firm under the name of M/s C.L. Soni & Company and after his death around 1937 38 their mother carried the business with the help of a Manager. It is claimed by the defendant no.1 that the business of their father was sole Suit No. 94092/16 & 99243/16 54/81 proprietorship concern and their mother also run it as sole proprietorship concern and it was only on 07.03.1960 when a partnership firm was created qua business w.e.f. 01.04.1959. Per contra, it is claimed by the plaintiff and the defendant no.2 that even in that deed of partnership which is Ex. PW1/D3 it is mentioned that erstwhile Sh. G.D. Soni, Sh. D.D. Soni, Sh. S.D. Soni and Smt. Shakuntala Devi used to run Joint Hindu Family business, though, it is accepted during crossexamination by the plaintiff that at a certain point it would be correct to say that neither he, nor his two elder brothers had any stake in M/s C.L. Soni & Company, but later on all of them joined. It is to be noted that a member of joint family have right in the same from birth, however in the present matter it is himself admitted by the plaintiff that at a certain point of time he and his brothers had no stake in M/s C.L. Soni & Company and they joined the same later on. This fact hints towards the fact that M/s C.L. Soni & Company though mentioned as joint family business in the partnership deed (Ex. PW1/D3) was infact sole proprietorship concern wherein they later on joined and made it a partnership firm. It is also to be noted that the defendant no.1 has filed on record an order of assessment of Income Tax department dated 30.10.1954 for the assessment year 195354 which is Ex. D1W1/X1 as well as insurance policy document qua business of M/s C.L. Soni & Company which were exhibited as Ex. D1W1/X2 and Ex. D1W1/X3. In all of these documents Smt. Shakuntala Devi has been shown as Suit No. 94092/16 & 99243/16 55/81 proprietor of M/s C.L. Soni & Company. Though it is otherwise mentioned in the partnership deed dated 07.03.1960, Ex. PW1/3, however presence of these income tax assessment order as well as insurance policy probablized the fact that business of M/s C.L. Soni & Company at one stage was proprietorship concern.
(e) The plaintiff could not place on record any document to show that Smt. Shakuntala Devi was Karta of HUF M/s C.L. Soni & Company, though it is stated by the plaintiff that he has called M/s C.L. Soni & Company as HUF firm because money for buying the same was coming from their ancestors, however he failed to show any document which proves that HUF funds were being diverted to M/s C.L. Soni & Company, though it is accepted by him that when their family migrated from Pakistan somewhere in 1947, they had to face financial crises and in order to make the family stand on its own legs financially their mother made huge sacrifices. It is also to be noted that even document i.e. partnership deed, Ex. PW1/3 contains a stipulation that the profits and loss accounts and balance sheets of the business of Joint Hindu Family was prepared on 31.03.1959 and the capital was divided amongst the members of the Joint Hindu Family and Smt. Shakuntala Devi, their mother and thereafter each member had a full control over his capital account. It is to be noted that as per stipulation of that partnership deed Sh. D.D. Soni (i.e. the plaintiff) who was also member of Joint Hindu Family has also taken over his Suit No. 94092/16 & 99243/16 56/81 capital and infact he was not made a party in that upcoming partnership which was started by Sh. Guru Dutt (i.e. the defendant no.2), Sh. Shiv Dutt (i.e. the defendant no.1) and Smt. Shakuntala Devi as the defendants no.1 and 2 and Smt. Shakuntala Devi were partners in the same, thus eve if, there was any joint family property or business existing prior to 1959 it was divided and each member had taken control over his share/ capital.
(f) It is a legal preposition that only a male coparcenar of a Joint Hindu Family can become its Karta prior to amendment of 2005 and a female though she may be a member of Joint Hindu Family is not treated as coparcenar, hence she cannot become a Karta. Thus, mother of the plaintiff and the defendants no.1 and 2 could not have become Karta of HUF, if any. Though, a widow mother can protect right of his minor sons who are coparcenar in HUF, however in the present matter, when the property in question was purchased none of the son of Smt. Shakuntala Devi i.e. the plaintiff and the defendants no.1 and 2 was minor.
(g) At some places, it was also contended on behalf of the plaintiff and the defendant no.2 that though the property was purchased by their mother, however it was treated as property of joint family to which it is to be noted that a person who is not a coparcenar cannot blend his property in the hotch potch of joint family without Suit No. 94092/16 & 99243/16 57/81 executing a registered gift deed, if the property is immovable property. Reliance being placed upon judgment delivered in a case titled as Pushpa Devi Vs. Commissioner of Income Tax, New Delhi, (1977) 4 SCC 184 wherein it was held that a female member cannot "blend" her separate property, limited or absolute, with Joint Family Property. It was further held that a Hindu coparcenary is a much narrower body than the joint family and it includes only those persons who acquire by birth an interest of the joint or coparcenary property. There are three generations next to the holder in an unbroken male descent in a coparcenary. A Hindu female, therefore, is not a coparcener. Even the right to reunite is limited under the Hindu Law to males. It does not, therefore, militate against the fundamental notions governing the Hindu Joint Family that a female member of such family cannot blend her separate property, even if she is an absolute owner thereof, with the joint family property. If a Hindu female who is a member of the undivided family, impresses her absolute, exclusive property with the character of joint family property, she creates new claimants to her property to the exclusion of herself, because, not being a coparcener, she has no right to demand a share in the joint family property by asking for a partition. She has no right of survivorship and is entitled only to be maintained out of the joint family property. Her right to demand a share in the joint family property is contingent on a partition taking place between her husband and his sons. Under the Hindu Women's Right to Property Suit No. 94092/16 & 99243/16 58/81 Act, 1937, her right to demand partition in the joint family property of the Mitakshara joint family accrued on the death of her husband. Thus the expression "blending" is inapposite in the case of a Hindu female who puts her separate property, be it her absolute property or limited estate, in the joint family stock. Therefore, the income of the appellant from the cinema was not assessable in the hands of the Hindu undivided family on the basis of blending.
(h) The property in question was purchased in the personal name of Smt. Shakuntala Devi. The plaintiff and the defendant no.2 failed to prove from where funds were arranged to purchase the property in question, they only tried to raise a presumption that since their mother had no other source of income apart from M/s C.L. Soni & Company, hence any property purchased by their mother is joint family property, however this preposition has been shattered by the fact that their mother in her personal capacity was a partner of M/s Motion Picture Talkies House/ M/s Krishna Theatre Jalandhar as proved by Ex. D1W1/X8. It is to be noted that after proving the sale deed in question the burden on the plaintiff and the defendant no.2 was very heavy to show that the property purchased in the personal name of a lady at a time when her children were major was not her personal property, but the property of HUF, however except raising presumption the plaintiff and the defendant no.2 failed to show any concrete proof that it was the property of joint family, though Suit No. 94092/16 & 99243/16 59/81 purchased in the name of Smt. Shakuntala Devi. It is accepted by the plaintiff that he has no personal knowledge of the fact that funds of his ancestors were diverted in M/s C.L. Soni & Company. The plaintiff could not specifically denied the fact that his mother had sold her stridhan in the year 195354 in order to generate funds to run M/s C.L. Soni & Company. He has also shown his ignorance to the fact whether profits coming from M/s Motion Picture Talkies House/ Krishna Theatre were diverted by his mother in M/s C.L. Soni & Company, or not.
(i) The plaintiff Sh. D.D. Soni in the present case had filed joint written statement alongwith the defendant no.1 Sh. S.D. Soni in a Civil Suit bearing no. 115 of 1988 filed by the daughters of the defendant no.2 Sh. G.D. Soni. In that written statement it was categorically admitted/ stated by the plaintiff that the suit property is/ was a separate property of their mother. Though, it is contended by the plaintiff that the said written statement was got signed by the defendant no.1 from him by playing fraud, however it is not explained how the fraud was played upon him. The written statement containing this fact in clear language. The plaintiff being an educated person is expected to sign any document after reading the same, hence at this stage the plaintiff cannot shy away from his admission in the previous suit having the same subject matter between the same parties (or parties claiming under the present party). This admission on the part Suit No. 94092/16 & 99243/16 60/81 of the plaintiff categorically proves that the property in question is/ was a separate property of the mother of the parties Smt. Shakuntala Devi. The present plaintiff never filed any application in previous suit alleging that the written statement has been got signed by him under some misrepresentation or fraud. It is also accepted by him that till date he has not made any complaint against the defendant no.1 for playing any such imaginary fraud.
(j) It is to be noted that the property in question was an old structure of single storey which was demolished and reconstructed in 1996 and no objection was raised either by the plaintiff or the defendant no.2 qua demolishing and rebuilding that property by the defendant no.1 which only shows that they were aware of the fact and had admitted this fact that the property in question was the separate property of their mother who had made Will in favour of the defendant no.1 and that is why they have not interfered in the rights of the defendant no.1.
(k) There is a document, Ex. D1W1/P2 which is a receipt issued by the defendant no.2 Sh. G.D. Soni on 24.04.1962 wherein it is written that he is releasing, extinguishing, abandoning and cancelling all his rights, claims, demands or interest in any manner or to any extent in respect of his 1/4th share in the undivided Joint Hindu Family properties on receipt of a sum of Rs. 25,000/ and would Suit No. 94092/16 & 99243/16 61/81 execute a regular deed of release as and when desired by the other party. In that receipt property in question is also mentioned as Joint Hindu Family property. It is to be noted that this document is not signed either by the defendant no.1 or his mother. Just that the defendant no.2 himself out of his own accord mentioned the property in question as joint family property in the present matter will not change the nature of the property as it has been shown by abovestated facts that the plaintiff and the defendant no.2 have failed to prove that the property was purchased from the funds of HUF. Further, as per law a widow mother who is not a coparcenary cannot blend her property in hotch potch of joint family property without executing a registered gift deed qua immovable property. Thus, even if the property is so mentioned in the receipt it will not change the nature of the separate property of Smt. Shakuntala Devi.
(l) It is claimed by the plaintiff that their mother Smt. Shakuntala Devi had executed a Will dated 02.02.1963 which was written in Gurmukhi. It is claimed that in the said Will, the property in question was mentioned as joint family property. It is to be noted that the original of the said Will has not brought on record. Further, name of its attesting witnesses neither mentioned before the Court, nor any of attesting witness has been examined before the Court. Thus, the said Will has not been proved as per law, hence cannot be read in evidence for any purpose (reliance placed on Section 68 of Indian Suit No. 94092/16 & 99243/16 62/81 Evidence Act).
41. On the basis of abovestated discussion, it can be safely held that the property in question appears to a separate personal property of Smt. Shakuntala Devi, thus she was competent to dispose off the property as per her own volition, therefore she was entitled to execute a Will qua the said property.
Whether the Will dated 08.12.1976 executed by Smt. Shakuntala Devi is genuine, or not
42. The relevant provisions of law qua execution of a Will as well as qua proving the same on record are as follows :
(i) As per Section 63 (c) of Indian Succession Act, 1925, a 'Will' is required to be attested by two or more witnesses, each of whom interalia has seen the Testator signing or affixing his thumb mark to the 'Will' and that each of the witnesses signed on the 'Will' in the presence of the Testator, or has received from the Testator a personal acknowledgment of his signatures and each of the witness shall sign the 'Will' in presence of the Testator, however, it is not necessary that more than one witness be present at the same time.
(ii) As per Section 68 of Indian Evidence Act, 1972, if a Suit No. 94092/16 & 99243/16 63/81 document is required by law to be attested (for example a Will), it should not be used in evidence unless one of the attesting witness has been examined to prove the same i.e. the Will. Section 68 of Indian Evidence Act is reproduced verbatim herein below : "Section 68. Proof of execution of document required by law to be attested. 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:
[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 the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]"
(iii) From perusal of Section 68 of Indian Evidence Act, it is amply clear that even admission of a Will by the other party is of no Suit No. 94092/16 & 99243/16 64/81 help as a Will cannot be used in evidence, unless one of the attesting witness has been examined for the purpose of proving its execution.
(iv) From perusal of Section 68 of Indian Evidence Act, it is apparent that even if the Will is registered, still it is necessary to call atleast one of the attesting witness to prove the same.
43. Following important facts and legal preposition would decide whether the Will dated 08.12.1976 executed by Smt. Shakuntala Devi is genuine, or not :
(a) In the present matter, Sh. Arun Khanna i.e. D1W2 who is one of the attesting witness of the Will dated 08.12.1976 has been examined before the Court who has stated that he had arranged a scribe for scribing the Will. The terms of the Will were dictated by the testatrix Smt. Shakuntala Devi in presence of this witness as well as in presence of Sh. K.C. Sondhi (i.e. other attesting witness). It was signed by deceased testatrix Smt. Shakuntala Devi in his as well as in presence of other attesting witness. He as well as other attesting witness signed the Will in the presence of Smt. Shakuntala Devi and each other at the same place. It is stated that after two days i.e. on 10.12.1976 they went to Registrar Office to get the Will registered. He as well as other attesting witness and Smt. Shakuntala Devi were present at the Registrar Office. Thus, the testimony of one of the Suit No. 94092/16 & 99243/16 65/81 attesting witness of the Will Sh. Arun Khanna has been recorded before the Court to duly comply with the provisions of law required to prove a Will before Court of law. It is to be noted that signatures of Smt. Shakuntala Devi on the Will are not disputed either by the plaintiff or by defendant no.2. Further, the Will is registered one which also give strength to its credibility and genuinessness, however the plaintiff and the defendant no.2 have tried to raise a number of suspicion surrounding the Will which have been considered by the undersigned as follows :
(i) The main objection qua Will is that the officials from L&DO Office produced a copy of Will which was submitted to them by the defendant no.1 for mutation of property in his name, the said copy of Will is on record as Ex. D1W3/1 (collectively with other documents). It is accepted by the witness from L&DO (D1W3) after perusing the two Wills that the certified copy of the said Will as furnished to their department by the defendant no.1 does not bear the thumb impression of Smt. Shakuntala Soni which is appearing on the original Will Ex. D1W2/1. It is accepted that there is a difference in the writing at the points marked as X2 and X3 on the original Will as compared to the certified copy thereof as furnished to their department. It is accepted that the address i.e. B1, Maharani College, Staff Quarter which appears on the left hand side of the original Will appears on the right hand side of the certified copy of the Will which Suit No. 94092/16 & 99243/16 66/81 has been furnished to their department. It is accepted that the word "witness" which appears on the 2nd page of the certified copy of the Will below the name of Smt. Shakuntala Soni does not appear in the original Will Ex. D1W2/1. It is accepted that the signatures of the attesting witness encircled in the original Will at points Z and A differ from the signatures of the attesting witness shown in the certified copy. It is accepted that there is a cutting on the 2 nd page of the certified copy of the Will furnished to L&DO which is not there in Ex. D1W2/1. Ld. Counsel for the plaintiff has also raised discrepancies between the original Will as well as certified copy of Will dated 08.12.1976 that there is a cutting on second page of Will dated 08.12.1976 Ex. D1W2/1, however the said cutting is not there on the second page of certified copy of Will dated 08.12.1976 Ex. D1W3/1 (Colly); further the signature of Smt. Shakuntala Soni on Ex. D1W2/1 and Ex. D1W3/1 (Colly) are different; further Ex. D1W3/1 (Colly) bears the thumb impression of Smt. Shakuntala Soni on page no.02, whereas Ex. D1W2/1 does not bears the thumb impression of Smt. Shakuntala Soni on page no.02. It is stated that the word "witness" is not written on the second page of Ex. D1W3/1 (Colly). It is also claimed that Sh. Arun Khanna had admitted his signatures on the original Will in question as well as copy of the Will produced by L&DO Office which shows that multiple Wills were prepared, thus the Will in question dated 08.12.1976 is not reliable and is surrounded by suspicion circumstances.
Suit No. 94092/16 & 99243/16 67/81Per contra, it is contended by Ld. Counsel for the defendant no.1 that copy of Will deposited with L&DO was prepared by Nakal Naviz i.e. this copy was not prepared by way of xerox machine or any other process which takes a picture of the original document, rather it was handwritten by Nakal Naviz as used to be done prior to advancement of technology to make the copy almost identical with the original. The Nakal Naviz used to write the names of testator and witnesses. Since the copy was by hand prepared by Nakal Naviz that is why there were certain discrepancies. It is also pointed out that copy of the original Will produced from the Office of SubRegistrar by D1W6 which is a photostate copy shows that correct original Will has been filed on record as the same are identical.
(ii) The undersigned has carefully perused the record on this aspect. From perusal of the file and study of both the Wills, it appears that Will, Ex. D1W2/1 is the original Will executed on 08.12.1976. Ex. D1W3/1 (Colly) are the documents produced by Smt. Mala Chhabra, official from L&DO Office which contain copy of Urdu Will. From perusal of the copy it appears that the same is the copy prepared by Nakal Naviz as after 2 nd page of the Will, there is a stamp with filled columns showing pratilipi shulk i.e. copy fees; shulk nishedh tithi i.e. date on which cost to prepare the certified copy was paid; pratilipi tayari tithi i.e. date when copy was prepared; pratilipi paridan tithi i.e. date when copy was delivered, thereafter there is a Suit No. 94092/16 & 99243/16 68/81 column for person to whom the copy was handed over, at the end words "parimanit sahi pratilipi" i.e. true copy are written. Furthermore, at every place where there are signatures of someone i.e. of testatrix, witnesses or SubRegistrar, sd name of that person is written in the said copy, for e.g. at the place where there are signatures of Smt. Shakuntala Devi on the original Will, sd Shakuntala Soni is written in the copy. Similarly, at the place where there are signatures of SubRegistrar on the original Will, sd A.K. Jain is written in the copy. Similarly, at the place where there are signatures of Sh. Arun Khanna on the original Will, sd Arun Khanna is written in the copy of Will. It is also to be noted that this copy was prepared in the month of August, 1979 i.e. after death of Smt. Shakuntala Devi who had died on 07.04.1979 as apparent from death certificate.
(iii) A translator has been examined as D1W7 who has stated that terms of the original Will as well as its copy deposited with L&DO are absolutely same, though he admitted cutting and other things, however from the fact that the terms of the Will ae absolutely same, there was no reason for the defendant no.1 to prepare multiple copies of the Will.
(iv) It is also to be noted that Sh. S.D. Soni had applied for mutation in his name on 02.02.1980 i.e. after getting the death certificate and certified copy of Will of his mother. Thus, it is crystal Suit No. 94092/16 & 99243/16 69/81 clear that copy with L&DO is the hand prepared copy of original Will prepared by Nakal Naviz in 1979.
Apparently, D1W2 Sh. Arun Khanna admitted his signature at PointX on this copy of the Will in the state of confusion before the Court as generally public witness got confused during crossexamination, however even after admitting his signature at PointX on this Nakal Naviz copy of Will, it was categorically stated by Sh. Arun Khanna in his evidence that only a single Will was executed and he had signed only on single Will on 08.12.1976. From all these facts, the confusion amongst two Wills i.e. in the original Will and copy of Will (as submitted to L&DO Office) stands explained.
(b) It is also to be noted that at the time of mutation of the property in the name of the defendant no.1 affidavits were also given by the plaintiff and the defendant no.2 wherein they have mentioned about registered Will. These affidavits have been objected to by both the plaintiff and the defendant no.2, however it is to be noted that the affidavit of Sh. D.D. Soni i.e. the plaintiff was attested before Executing Magistrate at Jullundur as Sh. D.D. Soni was residing at Jalandhar and the affidavit of Sh. G.D. Soni i.e. the defendant no.2 was attested by Executing Magistrate at Delhi as Sh. G.D. Soni was residingd at Delhi. The fact that these two affidavits were not attested Suit No. 94092/16 & 99243/16 70/81 by Notary Public, rather attested by Executing Magistrate lend extra credibility to these affidavits. Further, if the defendant no.1 has to forge the said affidavits he could have stamped both the affidavits with a single stamp i.e. he should not have forged the stamps of two Executive Magistrate. It is also to be noted that till date mutation in the name of the defendant no.1 has not been challenged. It is also objected that copies of these two affidavits in the record of L&DO are on stamp paper of Rs. 2/, however originals of the same produced by the defendant no.1 i.e. Ex. PW1/D4 and Ex. D1W1/X9 are not on stamp paper which categorically shows that it is forged documents. This contention is also not tenable as from the record produced from L&DO Office it appears that L&DO used to take the document copied on stamp paper of Rs. 2/ as even the Nakal Naviz copy of the Will in Urdu is on Rs. 2/ stamp paper alongwith the affidavits. Thus, it apparent that the affidavits are genuine and the objection of the plaintiff and the defendant no.2 qua same is after thought and same only shows their malafide intention to grab the property of their brother. It is also to be noted that neither the plaintiff, nor the defendant no.2 got examined any handwriting expert to show that these affidavits are not bearing their signatures.
(c) The defendant no.2 brought on record photostate copy of a letter (Ex. D2W1/Y) allegedly written by wife of the defendant no.1 to the Mami of the plaintiff and the defendants no.1 and 2. An Suit No. 94092/16 & 99243/16 71/81 application also filed for taking this secondary evidence on record which is left to be decided in this judgment only. It is stated by Ld. Counsel for the defendant no.2 that this inland letter shows that testatrix Smt. Shakuntala Devi was not aware about the contents of the Will as this fact was conveyed by letter. It is to be noted that wife of the defendant no.1 was not called in evidence to prove this letter that is why its secondary copy cannot be read in evidence. The application is hereby dismissed with the observation that it was the responsibility of the defendant no.2 to call wife of the defendant no.1 to prove this letter and on her denial qua writing this letter she could have been crossexamined and help of handwriting expert could have been taken to prove this letter, however nothing like that was done by the defendant no.2. Furthermore, even for the sake of arguments, if the letter Ex. D2W1/Y may be read, still from reading of this letter it appears that the person writing the letter is conveying that Biji has got written a Will, however scribe of the letter is not completely aware about the Will, though it was registered on 08.12.1976. This letter nowhere states that testatrix Smt. Shakuntala Devi was not aware about the Will or its terms. This frivolous document produced on record simply shows intentions of the plaintiff and the defendant no.2 to delay the matter.
(d) The value of receipt, Ex. D1W1/P2 executed by the defendant no.2 Sh. S.D. Soni wherein on taking a sum of Rs. 25,000/ Suit No. 94092/16 & 99243/16 72/81 he relinquished his rights in the Joint Hindu Family property is the document which falls within Section 17 (2) (v) of the Registration Act, 1908 which provides that a document which not itself creating, declaring, assigning , limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest. Thus, this document was not required to be registered. The effected party may on the basis of this document seek execution of a release deed from the defendant no.2 qua property mentioned in the same. It is to be noted that there is no mention of any promise of receiving any further sum apart from Rs. 25,000/ already received under that document by the defendant no.2.
(e) The defendant no.2 had admittedly taken a sum of Rs. 25,000/ on 24.04.1962 with promise to execute a release deed for releasing his rights in the property. The plaintiff had taken a property at Jullundur belonging to mother. Consequently, the property at Delhi which was purchased in 1958 for Rs. 12,000/ was bequeathed by testatrix in favour of the defendant no.1 to whom neither cash, nor any other property was given. Thus, the said Will dated 08.12.1976 does not appears to be unreasonable.
44. From the abovestated facts, it can be safely held that Will Suit No. 94092/16 & 99243/16 73/81 dated 08.12.1976 is the last duly executed duly proved Will of the deceased Smt. Shakuntala Devi whereby she had lawfully bequeathed her separate property in favour of the defendant no.1.
45. In view of the abovestated observations, the issue wise findings are as follows: ISSUE NO. 4 (framed on 28.10.2003): Whether the property bearing no. C536, Defence Colony, New Delhi is a Joint Hindu Family property of the plaintiff and the defendants no.1 and 2, if so its effect? OPP.
46. In view of the abovestated discussions, it is hereby held that the suit property i.e. C536, Defence Colony, New Delhi was a separate property of deceased Smt. Shakuntala Devi and not joint family property. Thus, this issue is decided against the plaintiff and the defendant no.2 and in favour of the defendant no.1.
ISSUE NO. 5 (framed on 28.10.2003): Whether the defendant no.1 obtained the signatures of the plaintiff in suit bearing no. 115 of 1988 by fraud, if so its effect? OPP.
Suit No. 94092/16 & 99243/16 74/8147. In view of the aforesaid findings, it is held that no fraud was played upon the plaintiff by the defendant no.1 in obtaining the signatures of the plaintiff on written statement filed in suit bearing no. 115 of 1988, thus this issue is decided against the plaintiff and in favour of the defendant no.1.
ISSUE NO. 6 (framed on 28.10.2003) AND AMENDED ISSUE (framed on 04.04.2009): Whether the plaintiff has lost his right to claim 1/3rd share in property bearing no. C536, Defence Colony, New Delhi? OPD1.
Whether the plaintiff is entitled to claim half share in the suit property.
48. In view of the aforesaid findings it has already been held that the property in question was separate property of Smt. Shakuntala Devi which was duly bequeathed by her in favour of the defendant no.1 vide Will dated 08.12.1976. Since the plaintiff has no right in the property in question, thus there is no question of loosing any right. Accordingly, these issues are decided against the plaintiff and in favour of the defendant no.1.
Suit No. 94092/16 & 99243/16 75/81ISSUE NO. 7 (framed on 28.10.2003): Whether Smt. Shakuntala Devi had a right to make a Will of the entire property bearing no. C536, Defence Colony, New Delhi and whether she made a valid Will? OPD1.
49. In view of the aforesaid discussions, it has already been held that it was separate property of deceased Smt. Shakuntala Devi and she was well within her right to execute a Will qua suit property. Further, it has already been held that the Will dated 08.12.1976 is the last valid Will of the deceased Smt. Shakuntala Devi. Accordingly, this issue is decided against the plaintiff and the defendant no.2 and in favour of the defendant no.1.
ISSUE NO. 8 (framed on 28.10.2003): Whether the defendant no.1 had a right to sell the first floor of the property to the defendants no.3 and 4? OPD1.
50. In view of the aforesaid findings, it has already been held that the suit property was a separate property of Smt. Shakuntala Devi. She duly executed a Will qua same and bequeathed her personal property in favour of the defendant no.1 who got the property mutated in his name, thus he has every right qua every portion of the property and to sell any portion of the suit property. Accordingly, this issue is Suit No. 94092/16 & 99243/16 76/81 decided against the plaintiff and the defendant no.2 and in favour of the defendant no.1.
ISSUES NO. 9 to 12 (framed on 28.10.2003): Whether the plaintiff is entitled for a decree of perpetual injunction as prayed in para no. (i) of the prayer clause? OPP.
Whether the plaintiff is entitled for decree of declaration as prayed in para no. (ii)? OPP.
Whether the plaintiff is entitled to the relief as prayed in para no. (iii)? OPP.
Whether the plaintiff is entitled for decree of declaration as prayed in para no. (iv)? OPP.
51. Since, it has already been held that the plaintiff has no right in the suit property, thus there is no question arise to grant any injunction, or declaration to the plaintiff qua suit property. Accordingly, these issues are decided against the plaintiff and in favour of the defendant no.1.
ISSUE NO. 14 (framed on 04.04.2009 on the basis of counterclaim filed by the defendant no.2): Whether the Will dated 07.02.1963 and 08.12.1976 is null and void? OP on the plaintiff and the defendant no.2.
Suit No. 94092/16 & 99243/16 77/8152. The Will dated 07.02.1963 set up by the plaintiff has not been brought in original or proved on record as per law. Per contra, the Will dated 08.12.1976 has been duly proved on record and declared to be last valid and genuine Will of Smt. Shakuntala Devi. The said issue is decided, accordingly.
ISSUE NO. 15 (framed on 04.04.2009 on the basis of counterclaim filed by the defendant no.2): Whether the suit property is HUF and the plaintiff and the defendants are entitled to equal share in this property? OPD.
53. In view of the aforesaid findings, it has already been held that the suit property was a separate property of Smt. Shakuntala Devi which was bequeathed by her in favour of defendant no.1 vide Will dated 08.12.1976, thus the plaintiff and the defendant no.2 have no right in the suit property. Accordingly, this issue is decided against the plaintiff and the defendant no.2 and in favour of the defendant no.1.
ISSUE NO. 16 (framed on 04.04.2009 on the basis of counterclaim filed by the defendant no.2): Whether the defendant no.2 is entitled to permanent Suit No. 94092/16 & 99243/16 78/81 injunction and mandatory injunction, as prayed for? OPD.
54. Since, it has already been held that the defendant no.2 has no right in the suit property, thus there is no question arise to grant any injunction to the defendant no.2 qua suit property. Accordingly, this issue is decided against the defendant no.2 and in favour of the defendant no.1.
ISSUES NO. 1 to 3 (framed on 28.10.2003)
(i) Whether the suit of the plaintiff is time barred? OPD1.
(ii) Whether the suit of the plaintiff is not maintainable on account of valuation and jurisdiction? OPD1.
(iii) Whether the suit of the plaintiff is barred as per Section 34 Specific Relief Act? OPD1.
55. The property was reconstructed in the year, 1996. First floor of the property was sold on 10.02.1997, however the present suit has been filed on 12.09.1997, thus it can be held that the present suit is within limitation. Therefore, the issue no.1 is decided in favour of the plaintiff and against the defendant no.1.
56. This Court has territorial jurisdiction as the suit property is within the jurisdiction of this Court. Further, as per plaint valuation is Suit No. 94092/16 & 99243/16 79/81 correct, however the plaintiff was supposed to seek possession and partition as well qua which valuation has not been done. The issue no.2 is decided, accordingly.
57. The plaintiff has only sought declaration of his ownership, however he has not sought possession, partition or cancellation of Will, mutation, thus the present suit is not maintainable in the present form and is also hit by Section 34 of Specific Relief Act. Reliance being placed upon judgment delivered in a case titled as Razia Begum Vs. Delhi Development Authority & Ors., 2014 (215) DLT 290. Thus, the issue no.3 is decided against the plaintiff and in favour of the defendant no.1.
ISSUE NO. 13 (framed on 28.10.2003) Relief.
58. In view of the findings recorded on the abovementioned issues, no relief can be granted to the plaintiff and the defendant no.2. The suit of the plaintiff as well as counterclaim of the defendant no.2 are hereby dismissed.
Since the suit and counterclaim have been dismissed, all the pending applications also stand dismissed.
Parties to bear their own costs. Decree sheet be drawn Suit No. 94092/16 & 99243/16 80/81 accordingly.
File be consigned to Record Room.
Digitally signed by GAJENDER GAJENDER SINGH
SINGH NAGAR
Date: 2019.11.13
NAGAR 17:35:28 +0530
Announced in the open court (GAJENDER SINGH NAGAR)
on 13.11.2019 Administrative Civil Judgecum
Additional Rent Controller (Central)
Delhi/13.11.2019
(This judgment contains 81 pages in total)
Suit No. 94092/16 & 99243/16 81/81
CS94092/16 & 99243/16
13.11.2019
Present : None.
Vide separate judgment of even date, the suit of the plaintiff as well as counterclaim of the defendant no.2 are hereby dismissed.
Since the suit and counterclaim have been dismissed, all the pending applications also stand dismissed.
Parties to bear their own costs. Decree sheet be drawn accordingly.
File be consigned to Record Room.
(Gajender Singh Nagar) ACJ/ARC (Central) Delhi/13.11.2019 Suit No. 94092/16 & 99243/16 82/81