Delhi District Court
Prabha Mehra & Ors. vs . Ashok Kumar Mehra & Ors. 1/27 on 15 October, 2014
Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02, (NE)
KARKARDOOMA COURTS, DELHI
CS No. 26/14
Unique ID No.: 02402C0115542009
In the matter of:
(1) Smt. Prabha Mehra,
W/o Late Sh. Vijay Kumar Mehra
R/o WZ235, Guru Nanak Nagar,
Tilak Nagar, New Delhi 110018.
(2) Smt. Poonam
W/o Sh. Surender Pal,
D/o Late Sh. Vijay Kumar Mehra
R/o 1/210/2A, Sadar Bazar,
Delhi Cantt, New Delhi110018.
(3) Smt. Praveen,
W/o Sh. Vijay Kumar,
D/o Late Sh. Vijay Kumar Mehra,
R/o 245, Guru Nanak Nagar,
Tilak Nagar, New Delhi110018.
(4) Ms. Kavita,
D/o Late Sh. Vijhay Kumar Mehra,
R/o 235, Guru Nanak Nagar,
Tilak Nagar, New Delhi110018.
(5) Ms. Deepika,
D/o Late Sh. Vijay Kumar Mehra,
R/o 235, Guru Nanak Nagar,
CS No. 26/14
Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 1/27
Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
Tilak Nagar, New Delhi 110018.
(6) Master Lucky,
S/o Late Sh. Vijay Kumar Mehra,
Minor, Age 15 years
( Date of Birth 08.11.1993)
R/o 235, Guru Nanak Nagar,
Tilak Nagar, New Delhi 110018
( Through his mother and
natural guardian plaintiff No.1) ......... Plaintiffs
Versus
(1) Sh. Ashok Kumar Mehra
S/o Late Sh. Des Raj,
B1/303, Nand Nagri,
Delhi 110093.
(2) Sh. Sushil Kumar Mehra,
Late Sh. Des Raj,
B1/303, Nand Nagri,
Delhi110093.
(3) Smt. Moni Devi,
W/o Sh. Mahinder Singh
B1/303, Nand Nagri,
Delhi 110093.
(4) Smt. Tara,
W/o Sh. Rajinder Kumar,
B1/303, Nand Nagri,
Delhi110093.
(5) Smt. Neelam,
CS No. 26/14
Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 2/27
Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
W/o Sh. Ram Nath,
R/o 16/4, Second Floor,
Jangpura Lane, Bhogal,
New Delhi. ........Defendants
Date of Institution : 15.04.2009
Received in this Court : 20.01.2014
Arguments heard on : 07.10.2014
Date of Judgment : 15.10.2014
Decision : Suit Decreed
Suit for partition & rendition of accounts
J U D G M E N T
1. This is suit for partition and rendition of accounts filed by plaintiffs against the defendants. As stated Sh. Des Raj, fatherinlaw of plaintiff No. 1and grand father of plaintiff No. 2 to 6 was the owner of shops bearing No. 11 and 12, DDA Market, B1 near DTC Bus Stand No. 212, Nand Nagri, Delhi93. The defendant No. 1 and 2 are sons and defendant No. 3 to 5 are daughters of late Sh. Des Raj who died intestate on 06.05.01. Vijay Kumar Mehra i.e. husband of the plaintiff No. 1 and father of defendant No. 2 to 6 was running Dhaba at above two shops in partnership with defendant No. 1 and 2 and have 1/3rd share in the partnership business. Sh. Vijay Kumar Mehra was expired on 31.10.2006 and the plaintiffs are his LRs. The plaintiffs were given share of profits by the defendant No. 1 and 2 till 28.02.2007. The defendants No. 1 and 2 CS No. 26/14 Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 3/27 Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. refused to share the profit. Smt. Krishna Wati W/o Late Sh. Desh Raj was not the owner of the property bearing No. B1/103, Nand Nagri, Delhi10093 built on a plot of land 25 sq. yards who also died intestate on 10.11.2005 and thereafter the plaintiffs have 1/6 th share in the property left by Desh Raj as well as Smt. Krishna Wati. The plaintiffs demanded their shares in the above said two shops as well as the above said house along with share of the partnership business but the defendants refused the same. Legal notice dated 06.09.2007 was also issued to defendant No. 1 and 2 through registered AD demanding partition of the above said parties and asking for the share in the profits of Dhaba but of no avail. Therefore this suit is filed by the plaintiff against the defendants praying for decree of partition of the joint properties i.e. Shops No. 11 and 12, DDA market, B1 near DTC Bus Stand No. 212, Nand Nagri, Delhi 110093 and H. No. B1/303, Nand, Nagri, Delhi110093 as shown in red color in the site plan attached ( hereinafter called the suit property) and for directing the defendant No. 1 and 2 1/6 th shares in the profits of the Dhaba run at the above said two shops.
2. The WS has been filed by the defendant No. 2 to 4 wherein the preliminary objections are taken to the affect that plaintiff have no locus standi to file this suit and no right, title or interest in the suit property. It is mentioned that shops No. 11 and 12, DDA Market, B1 near DTC Bus Stand, Nand Nagri, Delhi belong to Sh. Desh Raj who bequeathed the said two shops to defendant No. 1 and 2 by virtue of will dated 10.01.2001. As further contended the property bearing H. No. B1/303, Nand, Nagri, CS No. 26/14 Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 4/27 Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. Delhi110093 belongs to Smt. Krishna Wati was also bequeathed by her in favour of defendant No. 1 and 2 by virtue of Will dated 10.01.2001. It is mentioned that there is no cause of action to file this suit and Sh. Vijay Kumar Mehra was never partner in the Dhaba business of defendant No. 1 and 2. Late Sh. Vijay Kumar Mehra was working in a Factory at Wazir Pur, Industrial Area. As contended late Sh. Vijay Kumar Mehra never participated in the family affairs. It is objected that value of the the suit property is more than Rs. 30 lakhs and therefore this court has no pecuniary jurisdiction to entertain this suit.
Defendant No. 1 and 2 contended that they are absolute owner of the suit property and shop No. 12 above said have been sold and o objection was raised by the plaintiff at all. While denying the rest of material contentions of the plaintiff in the plaint, the defendants No. 1 to 4 prayed to dismiss this suit with cost.
3. WS was filed on behalf of defendant No. 5 who supported the case of the plaintiffs while admitting the contentions in the plaint in toto.
4. To the written statement of the defendant No. 1 to 4, a rejoinder was filed on behalf of the plaintiff wherein the defence taken by the defendants in the written statement are traversed and the averments made in the plaint are reiterated.
5. In view of the pleading of the parties, following issues were settled vide order dt.
11.10.2010:
(i) Whether the suit has been properly valued for the court fee and
CS No. 26/14
Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 5/27
Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. jurisdiction ? OPP
(ii) Whether this Court has pecuniary jurisdiction to entertain and try the present suit ? OPP
(iii) Whether Sh. Desh Raj died intestate ? OPP
(iv) Whether Smt. Krishna Wati died intestate ? OPP
(v) Whether Sh. Desh Raj executed the will dated 10.01.2001 ? ( OPD 1 to 4)
(vi) Whether Smt. Krishna Wati executed the will dated 10.01.2001 ? ( OPD 1 to
4).
(vii) Whether the plaintiffs are entitled to partition of the suit property ? OPP
(viii) Whether the plaintiffs are entitled to rendition of account ? If so, for what period ? ( OPP)
(ix) Relief.
And the case was fixed for plaintiff's evidence.
6. The plaintiff No. 1 filed her affidavit by way of evidence Ex. PW 1/ A and examined herself as PW 1 in support of the case. She deposed as per averments made in the plaint and tendered in evidence the following documents :
(a) Site plan of Shop No. 11 and 12 Ex.PW1/3.
(b) Death Certificate of Vijay Kumar Mehra Ex. PW1/4.
(c) Site plan of property No. B1/303, Nand Nagri Ex. PW1/7.
(d) Water bill in the name of Smt. Krishna Ex.PW1/8.
CS No. 26/14
Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 6/27 Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
(e) Legal Notice dated 06.09.07 Ex.PW1/9.
(f)Original postal receipts Ex.PW1/10 and Ex.PW1/11.
(g) Registered AD envelops returned as unclaimed Ex.PW1/12 and Ex. PW1/13.
Nothing was deposed by PW2 Om Prakash, Record Keeper from Union Bank of India.
As no other witness was examined by the plaintiff, the PE was closed and case was fixed for DE.
7. The defendant No. 2 Sushil Kumar Mehra filed his affidavit by way of evidence Ex. DW 1/ A and examined himself as DW1. His evidence was also as per his written statement filed by him. The DW 1 reiterated that shop No. 11 and 12, DDA Market, Nand Nagri was owned by his father late Desh Raj and property B1/303, Nand Nagri, Delhi93 was owned by late Smt. Krishna Wati and the above said property have been bequeathed in his favour and favour of Ashok Kumar Mehra i.e. defendant No. 1 vide bill dated 10.01.2001. The defendant thereafter examined other witness Mr. Praveen as DW2 who deposed/identified the signature of his father on the will dated 10.01.2001 on Ex. DW2/1 and Ex. DW2/2.
No other witness was examined by the defendant and hence the DE was closed.
8. I have heard the Ld. counsel for the parties and have gone through the relevant materials on record. I have also considered the written submissions filed on behalf of CS No. 26/14 Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 7/27 Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. the plaintiffs along with relevant provisions of law.
9. Having drawn my attention to the pleadings of the parties, testimony of witnesses and materials on records, it is submitted by counsel for the plaintiffs that from the evidence led by the plaintiffs as well as from the cross examination of DW1 and DW 2, it has been proved that the plaintiffs are the cosharer of the suit property having share and prayed to pass decree in favour of plaintiffs and against the defendants. It is further argued that the defendants failed to prove the alleged will dated 10.01.2001 executed by Late Sh. Desh Raj and Late Smt. Krishna Wati and discharge the onus. Written arguments was also filed by the plaintiff in support of contentions.
10. On the other hand, having drawn my attention to the testimony of the witnesses and documents on records, it is submitted by counsel for the defendants that the plaintiffs have failed to prove the case and discharge the onus. It is also submitted by Ld. counsel for the defendants that the plaintiffs have no right, title or interest in the suit property and plaintiffs have no locus standi to file this suit and plaintiffs have concealed the material facts and therefore, the suit is liable to be dismissed. It is further submitted by counsel for the defendants that this suit is false and there is no ground for passing decree against the defendants therefore, the suit be dismissed.
11. I have given my thoughtful consideration to the submissions made on behalf of the parties. My findings issuewise are as under : CS No. 26/14 Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 8/27 Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. ISSUE No. i & ii
(i) Whether the suit has been properly valued for the court fee and jurisdiction ? OPP
(ii) Whether this Court has pecuniary jurisdiction to entertain and try the present suit ? OPP
12. The onus to prove these issues was upon the plaintiff though these issues were framed in view of the objections of the defendants No. 1 to 4 in the WS. The defendant has mentioned that the suit property is valued more than Rs. 30 lakh and accordingly this court has no pecuniary jurisdiction and the plaintiff has not paid the appropriate court fees. The plaintiffs have valued this suit for Rs. 17 lakh and have paid the appropriate court fees accordingly for their share and relief as prayed in the suit. Except the bald averments in the WS regarding these contentions, nothing is placed on record by the defendants regarding the valuation of the suit property. Even the testimony of the PW1 regarding the valuation and payment of court fees remained unimpeached and no suggestion was also given in this respect during the crossexamination of the witness. There is no reason to disbelieve the testimony of the PW1. The defendants on the other hand failed to produce any evidence or bring on record any material to the contrary. These issues are accordingly decided in favour of the plaintiff and against the defendants.
CS No. 26/14
Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 9/27 Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. Issue No. iii to viii
(iii) Whether Sh. Desh Raj died intestate ? OPP
(iv) Whether Smt. Krishna Wati died intestate ? OPP
(v) Whether Sh. Desh Raj executed the will dated 10.01.2001 ? ( OPD 1 to
4)
(vi) Whether Smt. Krishna Wati executed the will dated 10.01.2001 ? ( OPD 1 to 4).
(vii) Whether the plaintiffs are entitled to partition of the suit property ? OPP
(viii) Whether the plaintiffs are entitled to rendition of account ? If so, for what period ? ( OPP)
13. The onus to prove the issue No. iii, iv, vii and viii i.e. regarding Late Sh. Desh Raj and Late Smt. Krishna Wati dying intestate and the plaintiffs entitlement regarding the decree of possession/rendition of accounts was upon the plaintiffs whereas the onus to prove the issue No. v and vii regarding the execution of the will dated 10.01.2001 by Late Sh. Desh Raj and Late Smt. Krishna Wati was upon the defendants No. 1 to 4. The defendant No. 5 did not contest the suit and is ex parte. As all of these issues are interconnected and the findings of each other is dependent upon common facts, they have been taken up together for examination and adjudication.
14. It is well settled that a suit has to be tried on the basis of the pleadings of the CS No. 26/14 Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 10/27 Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit for partition, this suit is to be decided on the basis of preponderance of probabilities. In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to observe as under: "A civil case is decided on balance of probabilities.
The balance of probabilities in the present case shows that the Power of Attorney Ex. PW3/1 and the Will Ex. P1 were duly executed by the deceased Sh. Sohan Singh.
The Power of Attorney is after all a registered Power of Attorney, and more importantly, the original title documents of the subject property are in the possession of the respondent No. 1 and which would not have been, if there was not to be any transfer of title in the suit property. Merely because two views are possible, this court would not interfere with one possible and plausible view which is taken by the court below, unless such view causes grave injustice. In my opinion, in fact, grave injustice will be caused not to the objectors/appellants but to the CS No. 26/14 Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 11/27 Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
respondent No. 1 her fatherinlaw Sh. Sewa Singh, if the impugned judgment is set aside."
In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree".
In the cases of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729 and Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, it has been held that a civil case is to be decided on balance of probabilities.
15. Section 101 of the Evidence Act, 1872 defines " burden of proof" and laid down CS No. 26/14 Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 12/27 Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings. As mentioned, there is no admission in the written statement regarding the case of the plaintiffs and their claim is denied by defendants No. 1 to 4. In view of the legal position of the Evidence Act mentioned above, it is for the defendants No. 1 to 4 to prove that Late Sh. Desh Raj and Late Smt. Krishna Wati executed the wills dated 10.01.01 whereby they bequeathed the suit properties in favour of defendant No. 1 and 2 and the plaintiffs have no right, title or interest in the same. It is also for the defendants to prove that the plaintiffs are not entitled for the relief of partition and rendition of accounts as prayed for though the onus to prove the case was upon the plaintiffs regarding their entitlement.
16. The brief and relevant facts for filing of this suit and the defence of the defendant has been mentioned at the outset. Admittedly, Late Sh. Desh Raj was the owner of the aforesaid two shops and Late Smt. Krishna Wati was the owner of the CS No. 26/14 Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 13/27 Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. aforesaid house. It is also admitted that the defendants are their sons and daughters and plaintiffs are wife and children of one of their sons namely Mr. Vijay Kumar Mehra who also expired. The plaintiffs have claimed 1/6th share in the aforesaid properties and denied that Late Sh. Desh Raj and Late Smt. Krishna Wati executed any will contending that they died intestate. The defendant No. 1 to 4 on the other hand denied the claims of the plaintiffs on the basis of wills dated 10.01.01, one executed by Late Smt. Krishna Wati and other by Late Sh. Desh Raj whereby the aforesaid properties were bequeathed to the defendant No. 1 and 2. Both of the wills are on record. It appears that the outcome of this suit is dependent only upon the two above said wills. On the basis of pleadings and arguments of counsel for the parties, the only question which falls for determination is regarding the wills dated 10.01.01 ( though the execution of the same has been denied by the plaintiffs)?
17. Section 63 of the Indian Succession Act lays down the mode and manner of execution of an unprivileged Will. Section 68 of the Indian Evidence Act postulates the mode and manner of proof of execution of documents which is required by law to be attested. The relevant provisions are reproduced below for reference: Section 63 of Indian Succession Act1925 Execution of unprivileged wills Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged or a mariner at sea, shall execute his will CS No. 26/14 Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 14/27 Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
according to the following rules:
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark or the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature or such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
Section 68 of the Indian Evidence Act, 1872 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 CS No. 26/14 Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 15/27 Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
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 provision 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.)
18. The aforesaid provisions in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the Court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Indian Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.
19. For proving the Will, the propounder has to show that the Will was signed by CS No. 26/14 Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 16/27 Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. the testator; that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But there my be cases in which the execution of the Will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator of the feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the Will are not the result of the testator's free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the Will is accepted. Again in cases where the propounder has himself taken a prominent part in the execution of the Will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the Court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain. Reliance is placed on H. Venkatachala Lyengar V. B. N. Thimmajamma, CS No. 26/14 Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 17/27 Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. (959) Supp. 1 SCR 246 and Rani Purnima Devi v. Kumar Khagendra Narayan Dev, (1962) 3 SCR 195.
20. The law is well settled that the conscience of the Court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of free volition of the executants who had voluntarily executed the same after noting and accepting the contents of the Will. Execution of Will is a solemn act of the executants who must own up the recitals in the instrument and there must be clear, evidence that he puts his signature in a document after knowing fully its contents. The executant of a document must, after fully understanding the contents and tenor of the document put his signature or affix his thumb impression. In other words, the execution of the document does not mean merely signing but signing by way of assent to the terms of contract of alienation embodied in the document.
21. It is well settled that when genuineness of the will in question, apart from execution and attestation, it is also the duty of the person seeking declaration of the validity of the will to dispel suspicious circumstances existing, if any. ( Babu Singh & Ors. V. Ram Sahai @ Ram Singh, AIR 2008 SC 2485). As held in IV (1998) SLT 263, the propounder of the Will has to show that the Will was the product of free volition of executant who had voluntarily executed the same after knowing and understanding the contents of the Will.
CS No. 26/14
Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 18/27 Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
22. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharge. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on caveator. Reference is made Benga Behera and Anr. V. Braja Kisore Nanda and Ors., VI ( 2007) SLT 252= III (2007) CLT 65 (SC)= MANU/SC/7673/2007, Madhukar D. Shende V. Tarabai Shedage, I (2002) SLT 137 = I (2002) CLT 81 (SC)= MANU /SC/0016/2002: and Sridevi and Ors. v. Jayaraja Shetty and Ors., II (2005) SLT 38 = I (2005) CLT 162 (SC) = (2005) 8 SCC
784.
23. The parties led their evidence on the lines as mentioned in the pleading. Plaintiff No. 1/PW1 filed her affidavit by way evidence in support of their case who deposed regarding the facts as mentioned in the plaint and also proved the relevant documents. The PW1 has reiterated her deposition during crossexamination too. The PW1 categorically deposed that no will was executed by Late Sh. Desh Raj and Late CS No. 26/14 Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 19/27 Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. Smt. Krishna Wati and the plaintiffs have 1/6th share in the suit property. She deposed further that the wills relied by the defendant No. 1 to 4 is forged and fabricated. It appears that the testimony of the PW1 remained uncontroverted and unimpeached. The witness categorically deposed that she can identify the signatures of Desh Raj and Smt. Krishna Wati and the wills relied by the defendants do not bears their signatures. In fact the testimony of the PW1 regarding non execution, authenticity and the wills being forged and fabricated as deposed by the witness remained uncontroverted and the witness was not crossexamined at all on this aspect.
24. The defendant No. 1 and 2 in the written statement contended that the deceased husband of the plaintiff NO. 1 was not a partner in the Dhaba business but no partnership deed or anything contrary is placed or proved on record by the defendants in this respect. The PW1 was even not crossexamined in this respect that late husband of the plaintiff has no right in the business of Dhaba though the PW1 reiterated that he was working in the Dhaba along with the other defendants. The other defence of the defedants remained that Late Sh. Desh Raj and Krishna Wati spent huge amount of money after taking loan on the marriage of daughter of plaintiff No. 1 i.e. plaintiff No. 2 and therefore the plaintiffs have no right or share in the properties. This contention and defence is also not acceptable because the plaintiff cannot be denied their share on this ground. Moreover, this contention regarding loan from Virender Singh taken by Late Sh. Desh Raj is also not corroborated in view of the CS No. 26/14 Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 20/27 Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. evidence and amount of dispute between Virender Singh and Late Sh. Desh Raj. The defence of the defendant is further falsified as the will was stated to be executed on 10.01.2001 and the suit was filed by Sh. Virender Singh was in the year, 2003 regarding Rs. 1,50,000/ . Therefore the contention of loan of Rs. 2,50,000/ do not stand. Nothing is produced by the defendants regarding any monetary help or amount given to the plaintiffs.
25. Defendant No. 2 examined himself as DW1 who deposed regarding the defence as mentioned in the WS and identified the wills dated 10.01.2001 of Late Sh. Desh Raj and Late Smt. Krishna Wati and identified the signature and thumb impression respectively. Sh. Bal Dev Raj and Virender Singh are the witnesses to the wills and both the attesting witnesses are deceased. The wills are unregistered. I have seen the said wills and none of the attesting witnesses are produced. It is also interesting to note that though the wills were executed on 20.01.2001, they came to light and notice of others only after filing of this suit by the plaintiff and this could not be answered by the defendants at all. Admittedly, the defendants have not filed any probate petition in respect of the wills nor produced before any authority or court and even the defendant No. 2/DW1 came to know about the wills six months after dispute took placed among the brothers regarding division of the properties and the fact was disclosed by eldest sister Smt. Usha Rani. The testimony of the defendant No. 1/DW2 is also not helpful. Admittedly, the DW1 never seen Baldev Raj and Virender Singh singing any documents CS No. 26/14 Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 21/27 Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. and therefore his testimony is not of much help to prove this question. The will said to be executed by Late Smt. Krishna Wati bears thumb impression but it is not mentioned, whether it is of right hand or left hand. Further, the DW1 failed to prove the thumb impression also. The license of the Dhaba was in the name of Late Sh. Desh Raj and therefore claim that the Dhaba was run by defendant No. 1 and 2 in partnership excluding husband of the plaintiff No. 1 is also not acceptable. Late Sh. Desh Raj expired in the year, 2001 i.e. year when the will was executed and the same itself causes suspicion regarding the execution of the will. The DW1 further failed to prove and depose regarding any loan taken by Late Sh. Desh Raj from Virender Singh and the testimony of the DW1 in nut shell appears to be merely in the nature of hearsay evidence. The defendant No. 1 is the beneficiary of the will and therefore his testimony is not sufficient to prove the same.
26. The DW2 appeared and was examined being son of one of the attesting witness of the will Sh. Bal Dev Raj and his testimony was merely based upon the photocopy of the said will which was shown to him by the defendants six months ago before his deposition in the case. The testimony of the DW2 is therefore not relevant as the witness not seen either the execution or the attestation of the wills. The witness has not even deposed on the basis of original will. The witness was not present even at the time of execution of the will. The attesting witness did not disclose to the DW2 regarding the will which was disclosed to him only by the defendants six month prior to CS No. 26/14 Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 22/27 Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. his deposition. Despite the will being in existence from 2001 till 2009, the wills remained secret which itself is sufficient to cast shadow on the defence of the defendants. There are many suspicious circumstances which creates doubts about the wills like being un registered, none of the attesting witnesses being produced, none of the other relevant witness attached with execution of the will being produced or examined etc. Even none of the person who was present at the time of execution of the wills are produced or examined due to the reasons best known to the defendants.
27. As held by Hon'ble Allahabad High Court in re Inder v. Gujrati Widown of Budhu Yadav decided on 28.02.2008, in case of attesting witnesses having already died, any person who was present at the time of execution of the will shall be produced to prove the will. It appears that the wills dated 10.01.2001 relied by the defendants is not proved in accordance with the provisions of law and Indian Evidence Act. The defendants accordingly failed to prove that Late Sh. Desh Raj and Late Smt. Kirshna Wati executed the wills dated 10.01.01 and bequeathed the suit property to the defendant No. 1 and 2.
28. Indisputedly, a will is to be attested by two witnesses in terms Section 68 of the Indian Evidence Act. Section 68 mandates proof by attesting witnesses of not merely of execution but also attestation by two witnesses. That is to say, not only the execution of the will must be proved but actual execution must be attested by at least two witnesses. It is noted that in this case the defendants not merely failed in proving the execution of CS No. 26/14 Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 23/27 Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. the wills, they also failed in proving the attestation of the same. Moreover, there is no evidence on record to explain the suspicious circumstances of excluding the plaintiffs from bequeathed of the suit properties. The suspicious circumstances as discussed above remained unexplained. The wills accordingly relied by the defendants cannot be held to be proved in view of Section 68 of the Indian Evidence Act. The ratio of the judgment reported as 211 (2014) DLT 448 is squarely applicable in the facts and circumstances of this case.
29. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of "
proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand CS No. 26/14 Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 24/27 Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
discharged so as to amount to proof of the plaintiff's title ( Para 28,29 and 33).
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this court the plaintiff had succeeded in shifting the onus on the defendant and, therefore, the burden of proof which lay on the plaintiff had stood discharged.
The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
30. In view of the aforesaid discussions and referred law, this Court is of the considered view that the defendants failed to prove the execution of the Wills in view of Section 68 of the Indian Evidence Act. The plaintiffs on the other hand succeeded in proving that Late Sh. Desh Raj and Krishna Wati died intestate and the plaintiffs are accordingly entitled to the decree of partition of the suit property and rendition of account as prayed in the suit. The defendants cannot be considered having right, title or interest in the suit property better than the plaintiffs and the Wills relied by the CS No. 26/14 Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 25/27 Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. defendants are neither helpful nor sufficient to deny the claim of the plaintiffs. There is no merit or substance in the defence raised by the defendants. The suit of the plaintiffs is therefore entitled to be decreed.
31. Since the plaintiffs have been found to be joint owner of the suit property, they are entitled for the partition of 1/6th share in the suit property i.e Shop No. 11 and 12, DDA Market, B1 Near DTC Bus Stand No. 212, Nand Nagri, Delhi93 and House No. B1/303, Nand Nagri, Delhi93 as shown in red color in the site plan Ex. PW1/3 and Ex. PW1/7 along with possession of their share as prayed in this suit. Further, the defendant No. 1 and 2 are directed to render the account and share the profits of the Dhaba business run in shop No. 11 and 12, DDA Market, B1 Near DTC Bus Stand, Nand Nagri Delhi after 01.03.2007 till the filing of this suit. Issue No. iii, iv, vii and viii are accordingly decided in favour of the plaintiffs and against the defendants whereas issue No. v and vi are decided against the defendants.
(4) RELIEF For the reasons recorded above, the plaintiff is found to be entitled to the following reliefs:
(a) the plaintiffs is held to be joint owner of the suit property i.e Shop No. 11 and 12, DDA Market, B1 Near DTC Bus Stand No. 212, Nand Nagri, Delhi93 and House No. B1/303, Nand Nagri, Delhi93 as shown in red color in the site plan Ex. PW1/3 and Ex. PW1/7 along with possession of their share as prayed in this suit CS No. 26/14 Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 26/27 Sh. G. N. Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
(b) the defendant No. 1 and 2 are directed to render the account and share the profits of the Dhaba business run in shop No. 11 and 12, DDA Market, B1 Near DTC Bus Stand, Nand Nagri Delhi after 01.03.2007 till the filing of this suit.
32. Preliminary decree be drawn accordingly for passing final decree of partition along with decree of possession for the share of plaintiff. Announced in open Court on this 15th day of October, 2014 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
CS No. 26/14
Prabha Mehra & Ors. Vs. Ashok Kumar Mehra & Ors. 27/27