Delhi District Court
All Residents Of vs Sh. N.K. Rajpal on 17 January, 2023
DLND010000041997
IN THE COURT OF ADDITIONAL DISTRICT JUDGE- 01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Presided over by :- MS. VIJETA SINGH RAWAT (DHJS)
CS No.57367/2016
K.K. Rajpal (Since deceased)
Through his legal representatives
(i) Ms. Madhu Rajpal
(ii) Sh. Sumit Rajpal
(iii) Sh. Amit Rajpal
(iv) Sh. Sarit Rajpal
All residents of :
R/o 701, Dharma Apartment,
Patparganj, Delhi - 110092
......... Plaintiffs
Versus
1. Sh. N.K. Rajpal
S/o Late Sh. M.L. Rajpal
R/o EC-14, Inderpuri,
New Delhi 110 012
2. Sh. B.K. Rajpal
S/o Late Sh. M.L. Rajpal
R/o 52, Meyer Road,
Equatorial Apts.
Singapore-1543
CS No. 57367/2016
K.K. Rajpal vs. N.K. Rajpal Pages 1 of 50
3. Sh. L.R. Rajpal
S/o Late Sh. M.L. Rajpal
R/o 20/15, Indra Nagar,
(Ring Road), Lucknow,
U.P.
........ Defendants
Suit presented On : 29.01.1997
Arguments Concluded On : 22.12.2022
Judgment Pronounced On : 17.01.2023
JUDGMENT
1. The present suit for partition, possession and damages qua property no. EC 14, Inderpuri, New Delhi (hereinafter, referred to as 'the suit property') was filed by Sh. K.K. Rajpal (hereinafter, referred to as 'the plaintiff') against his brothers Sh. N.K. Rajpal, Sh. B.K. Rajpal and Sh. L.R. Rajpal (hereinafter, referred to as 'defendants no. 1, 2 and 3, respectively'), on the premise that they are the only legal heirs of Late Sh. M.L. Rajpal, registered owner the suit property who died intestate on 06.01.1997. However, during the pendency of the matter, vide order dated 25.08.2000, amendment of the plaint was allowed to also seek declaration that Wills dated 20.01.1985 and 28.10.1996 of the testator Late Sh. M.L. Rajpal were not duly executed.
PLEADINGS
2. As per the plaint, the parties are the sons of Late Sh. M.L. Rajpal (hereinafter, referred to as "the testator") who had CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 2 of 50 purchased the suit property (then a plot ad measuring 500 sq. yds) in 1958 for a consideration of Rs.8,500/- and in the year 1966-1967, constructed a dwelling unit ad measuring 2450 sq. feet upon it. It is stated that the suit property was purchased by the testator with contribution of Rs.2000/- from the plaintiff (since deceased through LRs) and Rs.3000/- received by him under the Will of his father Late Sh. P.L. Rajpal. The plaintiff (since deceased through LRs) has also asserted that he made substantial financial contribution to the construction of the dwelling unit because at the relevant time (1966-1967), the testator had retired from service. The plaintiff (since deceased through LRs) has stated that the testator died intestate and as such has an equal right in the estate of his father apart from the other parties. He has also stated that on account of his contribution to the purchase and construction of the suit property, even by way of equity, he has a right in the suit property. It is his case that defendant no.1 has sought to exclude the plaintiff (since deceased through LRs) from the assets of the testator on the basis of Wills dated 20.01.1985 and 28.10.1996, the execution of which has been doubted averring that in September, 1994, the testator had suffered severe paralytic attack and was on medication, thereafter. It is stated that on account of his old age and medical condition, the testator was not in a position to follow any implication of documents. It has been alleged that the testator was also given alcohol by defendant no.1 against medical advice which further incapacitated the testator from free thinking. The CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 3 of 50 tenor of the plaint is directed against defendant no.1 for having taken advantage of the old age, medical condition and loss of memory to influence and dominate upon the testator to execute Wills in his favour as he was the only person looking after the testator at the relevant times. Will dated 26.10.1996 has also been assailed on account of having been executed just 20 days after the death of wife of the testator. Genuineness of Will dated 28.10.1996 has also been questioned for having unusual features. Further, it has been demanded that as defendant no.1 was enjoying the exclusive possession of the suit property and as the plaintiff (since deceased through LRs) was entitled to 1/4th share in the suit property, a sum of Rs. 10,000/- (1/4th of Rs.40,000/- [possible market rent that the suit property could fetch]) is due and payable to the plaintiff (since deceased through LRs) since 11.02.1998.
3. Defendant no.1 in his written statement has taken preliminary objections that the plaintiff (since deceased through LRs) has concealed material facts, has under-valued the suit for pecuniary jurisdiction as well as Court fees and that the suit is an abuse of process of the Court. On merits, it has been stated that the suit property has been a self acquired property of the father of the parties with no contribution from the plaintiff or from any estate left by the father of the testator. It has been explained that defendant no.1 had been chosen over and above the other children to inherit the estate of the testator as the other children CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 4 of 50 were well settled and as defendant no.1, being a bachelor took care of his old aged parents and met their needs. Relying upon Wills dated 20.01.1985 and communications dated 06.01.1984 and 24.08.1983 to M/s Industrial Investment Trust Ltd, letter dated 24.08.1983 to M/s Share Consultancy Services and letter dated 27.02.1982 to M/s Fibreglass Parlkington Ltd., it has been stated that the intention of the testator was consistent over years and in favour of defendant no.1. It has been denied that the testator was suffering from medical ailment, unsoundness of mind or that he was unduly influenced or coerced by defendant no.1 to execute Wills dated dated 20.01.1985 and 28.10.1996. Placing reliance upon various bank slips, photographs of family functions and social events and various handwritten letters by the testator between 17.10.1992 to 18.11.1994 ,it has been stated that the testator till the fag end of his life was active and had a sound mental state. It has been denied that the plaintiff (since deceased through LRs) also continuously resided in the suit property. Also, it has been stated that defendants no. 2 and 3 did not question the authenticity of the Wills. It has been stated that the plaintiff (since deceased through LRs) had been aware about the Wills before filing of the suit and also that Will dated 28.10.1996 was read to all the legal heirs including the plaintiff (since deceased through LRs) on conclusion of last rites of the testator.
4. Defendants no. 2 and 3 by way of their written statements CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 5 of 50 have asserted that the suit property was a self acquired property of their father and that no contribution to its purchase or construction was made by the plaintiff (since deceased through LRs). They have also denied that a sum of Rs.3,000/- was received by the testator under the Will of his father which he used for the purchase of the property. They have stated that Will dated 28.10.1996 was read over to the legal heirs and all had consented to its authenticity and genuineness. It has been denied that the testator was of unsound mind or medically unfit or had been incapacitated due to consumption of alcohol to understand the consequences of his acts. They have stated that it was out of natural love and affection, as defendant no.1 was only son serving his parents that entire estate was bequeathed to him. They have also denied that Will dated 28.10.1996 did not bear the signature of the testator.
5. Plaintiff filed replication to the written statements wherein the contents of the written statements are denied and averments made in the plaint are reiterated and affirmed.
ISSUES
6. Vide order dated 09.03.2005 following issues were framed :
i) Whether the suit has been properly verified and instituted? OPD CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 6 of 50
ii) Whether the suit has been properly valued and proper Court fee has been paid? OPP
iii) Whether the Wills dated 20.01.1985 and 28.10.1996 were not duly and validly executed by the deceased father of the plaintiff? If so to what effect? OPD
iv) Whether the plaintiff is entitled to a decree of partition and damages / compensation as prayed? OPP
v) Relief.
PLAINTIFF EVIDENCE
7. In order to prove its case, the plaintiff examined himself as PW-1. He tendered evidence by way of affidavit Ex. PW1/A and tendered the following documents:
Sr. Documents Exhibited No. as 1 Copy of passport dated 17.12.1959 Ex. PW1/1 2 Copy of letter dated 16.06.1979 written to Mark A
Personnel Manager, HPC(VMJ) Bombay General Office 3 Copy of letter dated 18.07.1977 written by Ex. PW1/3 LIC 4 Copy of letter dated 27.07.1978 written by Ex. PW1/4 LIC 5 Passbook of account no. 25335 issued by Ex. PW1/5 National and Grindlays Bank Limited 6 Passbook of Ms. Madhu Rajpal with State Ex. PW1/6 Bank of India 7 Passbook of plaintiff of account no. 5719 Ex. PW1/7 issued by State Bank of India 8 Passbook of Account no. 4102 of plaintiff with Ex. PW1/8 State Bank of India CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 7 of 50 9 Letter dated 28.03.1980 written by Nirlon Ex. PW1/9 Synthetic Fibers and Chemicals Limited 10 Original dividend warrant dated 07.08.1981 Ex. PW1/10 issued by Alfred Heber (India) to plaintiff 11 Original dividend warrant dated 07.05.1980 Ex. PW1/11 issued by Alfred Heber (India) Limited to wife of the plaintiff 12 Original dividend warrant dated 07.08.1981 Ex. PW1/12 issued by Alfred Heber (India) Limited to wife (not on of the plaintiff record) 13 Original interest warrant dated 30.09.1980 Ex. PW1/13 issued by Nirlon Synthetic Firess & Chemicals (not on Ltd record) 7.1 During midway of cross-examination, the plaintiff / PW1 expired and his wife Smt. Madhu Rajpal and his three sons were substituted as plaintiffs vide order dated 02.03.2009.
8. Thereafter, Smt. Madhu Rajpal examined herself as PW-2. She tendered evidence by way of affidavit Ex. PW2/A and tendered the documents as relied upon by Sh. K.K. Rajpal (PW1 / the plaintiff, since deceased).
9. Sh. Sumit Rajpal, son of the deceased plaintiff stepped in the witness box and examined himself as PW-3. He tendered evidence by way of affidavit Ex. PW3/A and relied upon the documents tendered by PW1/ the plaintiff.
CS No. 57367/2016K.K. Rajpal vs. N.K. Rajpal Pages 8 of 50
10. The witnesses were extensively cross-examined by Ld. Counsel for the defendant thereafter, vide a separate statement plaintiff evidence was closed.
DEFENCE EVIDENCE
11. In defence, the defendant no.1 examined himself as DW1. He tendered his evidence by way of affidavit as Ex. DW-1/A and relied upon the following documents :
Sr. Documents Exhibit No.
1. Receipts no. 2010 dated 08.09.1958, no. Ex. DW-1/1 2012 dated 15.09.1998, No. 2016 dated (colly) 26.09.1958, No. 2019 dated 03.10.1958 (objected to and No. 2023 dated 06.10.1958 issued by exhibition of the Engineering Industrial Corporation in documents on the favour of M.L. Rajpal ground of mode of proof and admissibility of documents) (objection overruled as it is not denied that the documents are not genuine and even otherwise, the plaintiff's case is that the father had purchased the suit property) CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 9 of 50 Sr. Documents Exhibit No.
2. Sale deed dated 09.03.1958 executed by Ex. DW-1/2 Engineering Industrial Corporation in (objected to favour of M.L. Rajpal exhibition of the documents on the ground of mode of proof and admissibility of documents)
3. Letter dated 17.02.1997 issued by Ex. DW-1/3 Engineering and Industrial Corp Ltd (objected to addressed to Sh. N.K. Rajpal exhibition of the documents on the ground of mode of proof and admissibility of documents) (Objection will be decided later)
4. Will dated 20.01.1985 of the testator Ex. DW1/4 also Ex. DW1/56 (objected to exhibition of the documents on the ground of mode of proof and admissibility of documents) (Objection will be decided later) CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 10 of 50 Sr. Documents Exhibit No.
5. Another Will of the testator dated Ex. DW2/1 also 28.10.1996 Ex. DW1/57 (objected to exhibition of the documents on the ground of mode of proof and admissibility of documents) (Objection will be decided later)
6. Payment deposit slips (31 number) Ex.DW1/5 (colly) (objected to exhibition of the documents on the ground of mode of proof and admissibility of documents)
7. Video Tape Disc pertaining to Ex. DW1/6 engagement ring ceremony of Sh. (objected to Samir Rajpal held at Dehradun dated exhibition of the 09.12.1988 documents on the ground of mode of proof and admissibility of documents) (objection sustained because it had to be proved as per IT Act.) CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 11 of 50 Sr. Documents Exhibit No.
8. Handwritten letters of Late Sh.M.L. Ex. PW1/D5 to Rajpal dated 03.02.1994, 11.10.1994, PW1/D10 and Ex. 18.11.1994, 29.04.1994, 21.02.1994, PW1/D4 06.10.1993 and 17.10.1992 respectively (objected to exhibition of the documents on the ground of mode of proof and admissibility of documents) (objection overruled as it is not disputed that the documents are in the handwriting and signature of the testator)
9. Certified copy of judgment dated Ex. DW1/8 30.04.1985 in suit bearing no. 813/83 (objected to titled Sh. Rattan Lal Vs. M.L. Rajpal exhibition of the documents on the ground of mode of proof and admissibility of documents) (objection overruled as it is a public document and genuineness is not assailed) CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 12 of 50 Sr. Documents Exhibit No.
10. Letter dated 09.07.1985 addressed to Ex. DW1/9 Postmaster IARI, Pusa, New Delhi by (objected to the testator exhibition of the documents on the ground of mode of proof and admissibility of documents) (objection overruled as it is not disputed that the documents are in the handwriting and signature of the testator)
11. Letter dated 15.11.1985, 30.09.1985, bill Ex.DW1/10 no. SB/0985/008, AB/0985/009, (colly) PR/0985/010, SB/0985/011, letter dated (objected to 18.09.1985, letter of Hindu dt. exhibition of 26.09.1985, letter of CIMMCO dated the documents 04.07.1985, Press estimate dated on the ground 16.09.1985 of mode of proof and admissibility of documents) CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 13 of 50 Sr. Documents Exhibit No.
12. Bank statement of current account no. Ex. DW1/12 1123 with The Bank of Rajasthan Ltd. (objected to for the period 25.05.1985 to 23.11.1985 exhibition of the documents on the ground of mode of proof and admissibility of documents) (objection sustained as none from the bank came to prove it.)
13. Declarations / undertaking and affidavit Ex. DW1/13 of Sh. B.K. Rajpal dated 05.05.1997 (colly)
14. Declarations / undertaking and affidavit Ex. DW1/14 of Sh. L.R. Rajpal dated 13.05.1997 (colly)
15. Affidavit of Smt Satya Nagpal dated Ex. DW1/15 04.03.2003
16. Affidavit of Mrs.Premlata Bidani dated Ex. DW1/16 28.08.1998
17. Affidavit of Sh Som Datt Rajpal dated Ex. DW1/17 16.12.1999
18. Death certificate of Late Sh. Som Datt Ex. DW1/18 Rajpal dated 29.04.2015
19. Letter dated 19/21.02.1959 addressed to Ex. DW1/19 Sh.M.L. Rajpal by LIC
20. Letter dated 25.02.1959 addressed to Ex. DW1/20 LIC, Zonal Manager by Sh. M.L. Rajpal CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 14 of 50 Sr. Documents Exhibit No.
21. Letter dated 01.10.1958 issued by LIC to Ex. DW1/21 Sh. M.L. Rajpal
22. Letter dated 13.08.1966 written by Sh. Ex. DW1/22 M.L. Rajpal to Assistant Housing Commissioner, IP Estate, New Delhi
23. Application having Serial no. 20314 filed Ex. DW1/23 by Sh. M.L. Rajpal for grant of loan to Delhi Administration
24. Letter dated 30.01.1967 issued by Sh. Ex. DW1/24 Ramesh Seth, Assistant Housing Commissioner to Sh. M.L. Rajpal
25. Letter dated 01.02.1967 written by Sh. Ex. DW1/25 M.L. Rajpal to Sh. Ramesh Seth, Assistant Housing Commissioner
26. Letter dated 07.02.1986 written by Sh. Ex. DW1/26 M.L. Rajpal to the Asstt. Housing Commissioner
27. Receipt no. 1300 dated 07.02.1986 Ex. DW1/27 issued by Assistant Housing Commission to Sh.M.L. Rajpal
28. Proposal for an annuity issued by LIC Ex. DW1/28
29. Letter dated 28.06.1966 issued by LIC to Ex. DW1/29 Sh. M.L. Rajpal
30. Letter dated 29.03.1967 written by Sh Ex. DW1/30 ML Rajpal to Officer Incharge LIC
31. Letter dated 29.03.1967 issued by LIC Ex. DW1/31 and CC to Sh. ML Rajpal
32. Loan bond issued by LIC dated Ex. DW1/32 25.04.1962 CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 15 of 50 Sr. Documents Exhibit No.
33. Letter dated 21.03.1967 written by Sh. Ex. DW1/33 M.L. Rajpal to officer incharge LIC
34. Letter dated 05.04.1967 issued by LIC to Ex. DW1/34 Sh. M.L. Rajpal
35. Letter dated 12.05.1967 issued by LIC to Ex. DW1/35 Sh. M.L. Rajpal
36. Letter dated 10.09.1996 issued by Ex. DW1/36 Sh.J.K. Goel,MD of Jai Kishan Chitfund (colly) Pvt. Ltd. to Sh.M.L. Rajpal and affidavit of Sh. Anil Goel, Director of Jai Kishan Chit Fund Pvt. Ltd. dated 18.10.2003
37. Certified copy of plaint and written Ex. DW1/37 statement of CS no. 967/93 (old suit no. (colly) 514/89) titled SBI Vs. Sh. K.K. Rajpal
38. Copy of letter dated 20.01.1997 issued Mark XI by Tamil Nadu Jai Bharat Mill Ltd. to (Colly) Mrs. Asha Rani Jain, letter dated (Ex. DW1/38 22.01.1997 addressed to Mrs. Asha Rani (colly) de- Jain by Clutch Auto Ltd., the terms and exhibited conditions for advance against securities being between Sh. K.K. Rajpal and Mrs. Asha photocopies) Rani Jain, the promissory note and receipts for Rs.50,000/-, four cheque no. 802230, 802231, 802231 and 802229
39. Document dated 06.02.1997 from MCD Ex. DW1/39 to Sh. N.K. Rajpal intimating mutation CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 16 of 50 Sr. Documents Exhibit No.
40. Letter dated 06.01.1984 written by Sh. Ex. DW1/40 M.L. Rajpal to Industrial Investment (objected to Trust Ltd exhibition of the documents on the ground of mode of proof and admissibility of documents) (objection overruled as it is not disputed that the documents are in the handwriting and signature of the testator)
41. Letter dated 24.08.1983 written by Ex. DW1/41 M.L. Rajpal to M/s Industrial (objected to Investment Trust Ltd exhibition of the documents on the ground of mode of proof and admissibility of documents) (objection overruled as it is not disputed that the documents are in the handwriting and signature of the testator) CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 17 of 50 Sr. Documents Exhibit No.
42. Letter dated 24.08.1983 written by Ex. DW1/42 M.L. Rajpal to Shares Consultancy (objected to Services Pvt Ltd exhibition of the documents on the ground of mode of proof and admissibility of documents) (objection overruled as it is not disputed that the documents are in the handwriting and signature of the testator)
43. Letter dated 27.02.1982 written by Ex. DW1/43 M.L. Rajpal to Fibreglass Palkington (objected to Ltd exhibition of the documents on the ground of mode of proof and admissibility of documents) (objection overruled as it is not disputed that the documents are in the handwriting and signature of the testator) CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 18 of 50 Sr. Documents Exhibit No.
44. Letter dated 27.02.1982 written by Ex. DW1/44 M.L. Rajpal to Siemens India Ltd (objected to exhibition of the documents on the ground of mode of proof and admissibility of documents) (objection overruled as it is not disputed that the documents are in the handwriting and signature of the testator)
45. Application form for additional shares Ex. DW1/45 bearing no. 0109312 of FGP Limited (objected to signed by Sh. M.L. Rajpal and exhibition of the defendant no.1 documents on the ground of mode of proof and admissibility of documents) (objection overruled as it is not disputed that the documents are in the handwriting and signature of the testator) CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 19 of 50 Sr. Documents Exhibit No.
46. Payment deposit slip dated Ex. DW1/46 28.11.1989 signed by Sh. M.L. Rajpal (objected to for Rs. 50/- exhibition of the documents on the ground of mode of proof and admissibility of documents) (objection overruled as it is not disputed that the documents are in the handwriting and signature of the testator)
47. Allotment advice dated 25.01.1985 Ex. DW1/47 issued by Allwyn Nissan Limited in (objected to favour of Sh. M.L. Rajpal exhibition of the documents on the ground of mode of proof and admissibility of documents) CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 20 of 50 Sr. Documents Exhibit No.
48. Letter dated 09.09.1994 written by Ex. DW1/48 Sh. KK Rajpal to Sh. M.L. Rajpal (colly) alongwith envelope, letter dated (objected to exhibition of 02.03.2001 issued by Dagger the documents on the Forst Tools Ltd in favour Sh. N.K. ground of mode of proof Rajpal with xerox copy of shares and admissibility of transfer forms documents) (objection overruled as the handwriting and signature of the deceased plaintiff is not denied and it has not been shown that the witness was not acquainted with the handwriting and signature of his father)
49. Letter dated 23.09.1987 written by Ex. DW1/49 Sh.M.L. Rajpal to Municipal (colly) Engineer (Water), letter dated (objected to exhibition 09.12.1986 written by M.L. of the documents on the Rajpal to Asstt. Revenue Officer ground of mode of proof (Water) containing original and admissibility of receiving, copy of letter dated documents) 31.01.1994 written by M.L. (objection overruled as Rajpal to Director (EDP), copy of it is not disputed that letter dated 29.03.1993 written by the documents are in Sh. M.L. Rajpal to Asst. Finance the handwriting and Officer (DESU), copy of letter signature of the dated 18.03.1993 written by Sh. testator) Kalka Dass to Sh. R.K. Kachroo, copy of letter dated 18.03.1993 written by Sh.M.L. Rajpal to Sh.
Kalka Dass, letter dated 29.03.1993 written by M.L. Rajpal to Asstt.
Finance officer (DESU) and
notings of Sh.M.L. Rajpal dated
30.04.1992
CS No. 57367/2016
K.K. Rajpal vs. N.K. Rajpal Pages 21 of 50
Sr. Documents Exhibit
No.
50. Letter dated 19.08.1992 written by Sh. Ex.DW1/50 M.L. Rajpal to the Chairman MTNL, (colly) letter dated 10.07.1991 written by Sh. (objected to M.L. Rajpal to Divisional Engineer exhibition of the MTNL, letter dated 04.09.1986 written documents on by Sh. M.L. Rajpal to SDO Delhi the ground of Telephone, letter dated 18.04.1983 mode of proof written by Sh. M.L. Rajpal to Sh. A.S. and admissibility Wakhle of documents) (objection overruled as it is not disputed that the documents are in the handwriting and signature of the testator)
51. Gas refill book issued by Westend Gas Ex. DW1/52 Services in favour of Sh. M.L. Rajpal (objected to exhibition of the documents on the ground of mode of proof and admissibility of documents) (objection sustained as none from the gas service was examined) CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 22 of 50 Sr. Documents Exhibit No.
52. Letter written by Sh. M.L. Rajpal to Ex. DW1/53 Assistant Assessor and Collector, (objected to MCD containing receiving dated exhibition of the 04.09.1991 documents on the ground of mode of proof and admissibility of documents) (objection overruled as it is not disputed that the documents are in the handwriting and signature of the testator)
53. True copy of entries on letter written to Ex. DW1/54 his sons defendants no.2&3 and (have already important events in the diary of years been exhibited 1982, 1983, 1984, 1987, 1988 and as 1993 maintain by Sh. M.L. Rajpal Ex. PW1/D21 to D26) (objected to exhibition of the documents on the ground of mode of proof and admissibility of documents) CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 23 of 50 Sr.No. Documents Exhibit
54. Letter dated 28.01.1997 written by Ex. DW1/55 Sh. B.K. Rajpal to Sh. N.K. Rajpal (objected to alongwith envelope exhibition of the documents on the ground of mode of proof and admissibility of documents) (objection overruled as the handwriting and signature of the deceased plaintiff is not denied and it has not been shown that the witness was not acquainted with the handwriting and signature of his brother)
55. Original Will dated 20.01.1985 Ex. DW1/56
56. Original Will dated 28.10.1996 Ex. DW1/57
57. Original death certificate of Sh. Mark X Chetan Dasm. Bhagchandani one of (objection raised the attesting witness to Will dated by Ld counsel 28.10.1996 for the plaintiffs to taking on record the death certificate of witness Sh.
Chetan Dasm.
Bhagchandani
12. Sh. G. Gehani was examined as DW2. He tendered his CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 24 of 50 affidavit Ex. DW2/A. He deposed that on 28.10.1996 Sh. M.L. Rajpal requested him to accompany him to the Office of Sub- Registrar, Janakpuri, Community Centre, New Delhi to act as witness to the Will which he intended to execute on the same day. He further deposed that on the same day, Will dated 28.10.1996 was presented before the Sub-Registrar for registration in which DW2 signed at point B and put his thumb impression at point H.
13. DW3 Sh. Vijay Kumar working as Civil Defence Volunteer, office of Sub-Registrar II, Basai Darapur to prove registration of Will dated 28.10.1996 and tendering the same as Ex. DW3/1 in evidence.
14. DW4 Sh. Hira Lal working as Preservation Assistant, Department Delhi Archives tendered a copy of Will dated 20.01.1985 as Ex DW4/1.
15. All the witnesses were duly cross-examined by Ld. Counsel for LRs of the plaintiff.
FINAL ARGUMENTS
16. Final arguments have been advanced by Sh. J.K. Sharma, Ld. Counsel on behalf of the LRs of the plaintiff and Sh. Pulkit Deora, Ld. Counsel on behalf of defendant no. 1.
CS No. 57367/2016K.K. Rajpal vs. N.K. Rajpal Pages 25 of 50 REASONING AND APPRECIATION OF MATERIAL ON RECORD
17. The Court has gone through the entire record of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during trial.
ISSUEWISE FINDINGS ISSUE NO 1.
i) Whether the suit has been properly verified and instituted? OPD
18. The onus to prove this issue was upon the defendant. However, in written submissions filed by defendant no.1, the issue has not been pressed upon. Neither parties have also argued on the same. Be that as it may, the plaint has been signed and verified by the plaintiff (since deceased) himself wherein, he has stated that contents of paragraphs no.1 to 9 are true to his knowledge and paragraphs no. 10 to 13 are believed to be correct on information received. There appears to be no lacuna on the verification brought to the notice of the Court. Also, as regards institution, the suit has been instituted by the plaintiff (since deceased) himself on his own behalf and once again, it has not been shown how he was not competent to institute it. Therefore, the issue is decided against the defendant and in favour of the plaintiff.
CS No. 57367/2016K.K. Rajpal vs. N.K. Rajpal Pages 26 of 50 ISSUE NO. 2
ii) Whether the suit has been properly valued and proper Court fee has been paid? OPP
19. The onus to prove this issue was upon the plaintiff.
19.1 It has been argued on behalf of the LRs of plaintiff that they are ready and willing to pay the Court fees as directed by the Court.
19.2 Per contra, it has been argued on behalf of defendant no. 1 that the plaintiff had undervalued the suit and had not paid the appropriate Court fees. As per defendant no.1, the plaintiff (since deceased) had clearly and categorically admitted that he is not in possession of the suit property and had also sought possession of his purported share, therefore, in view of ratio decidendi in Neelam Batra Vs. Rakesh Bhatia 2014 SCC Online Delhi 332, the suit should have been valued as per Section 7 (iv) (b) of The Court Fees Act, 1870 implying thereby, that the plaintiff should have paid ad valorem Court fees on the market value of his share. Reliance has also been placed upon Chintamani Devi Vs. Vijay Kumar CM(M) No. 117 of 2013 decided by Delhi High Court on 11.08.2014. Drawing the attention of the Court to the cross examination of the plaintiff / PW1 on 04.11.2006, it has been argued that even though the witness initially stated that he had no idea qua the market value of the suit property then, admitted that CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 27 of 50 at the time of filing of the suit, the value of the suit property was above Rs. 25 lacs. However, the source of information was not disclosed. He thereafter, also stated that he could not comment whether the market value of the property at the time of filing of the suit was more than Rs.2 crores. It has been argued that the plaintiff / PW1 therefore had admitted to the value of suit property being Rs.2 crores and accordingly, he should have valued the suit at Rs. 50 lacs and paid appropriate court fees on the same.
19.3 It has been held in Anita Anand Vs. Gargi Kapur and Ors. CS(OS) 3489/2014 & IA Nos.22638/2014, 6761/2016, 3778/2018 decided on 19th September, 2018 as under :
40. A meaningful reading of averments in the plaint shows the plaintiff admits her ouster by the defendants and the ouster is premised on the plaintiff right, title or interest in the property being denied, the plaintiff has to pay advalorem Court fee. In para no.14D of the plaint she has averred the defendant no.2 was conducting commercial business of tuition centre at the suit property.
41. Clever nature of pleadings in the plaint which is of ambiguous nature will not save the plaintiff from her liability to pay Court fee if the exclusion from possession is being established from the pleadings.
42. All the above facts, clearly establishes complete ouster of the plaintiff from the suit property. Moreover as per Section 8 of the Suit Valuation Act, 1887, the value of the suit for the purpose of jurisdiction and Court fee has to be same. The plaintiff has not paid advalorem Court fee on the relief of partition on her share. The plaintiff is liable to pay the same.
19.4 Also, as per Neelam Batra vs. Rakesh Bhatia (Supra), it CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 28 of 50 has been held as under :
Saroj Salkan Vs. Capt. Sanjeev Singh 155 (2008) Delhi Law Times 300 -
"11. In para 13, it was observed as under :
13. It is settled law that in a suit for partition, the court fees to be paid if joint possession is pleaded by the plaintiff on the basis that he is the co-owner of the property sought to be partitioned, fixed court fees would be payable under Article 17 (vi) of Schedule II of the Court Fees Act presuming the joint possession of the plaintiff even if the plaintiff is not in actual possession. It is because of the reason that in the case of co-owners, the possession of one is in law possession of all, unless from the averments in the plaint read as a whole, a clear case of ouster is made and in that situation the plaintiff is liable to pay ad-valorem court fees on the market value of this share as provided under Section 7(iv)(b) of the Court Fees Act notwithstanding the fact that it is also pleaded that the plaintiff was in constructive possession.
12. In Nisheet Bhalla v. Malind Raj Bhalla AIR 1997 Delhi 60, the learned single Judge in para Nos. 9 & 10 had observed as under :
9. Following principles can be culled out from the aforesaid judgment : (a) in order to decide the question of Court-fee, averments made in the plaint are to be seen and decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits; (b) the general principle of law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved;
and (c) to continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. It is also not necessary that he should be getting a share or some income from the property so long as his right to a share and his nature of the property as joint is not disputed, the law presumes that he is in joint possession unless he is excluded from such possession.
19.5 The Court also takes note of Rule 8, Part C, Chapter 3 of the Instructions to Civil Courts in Delhi, Vol. I, Delhi High Court Rules and Orders which has laid down that in a suit for partition, CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 29 of 50 the value of the suit for the purpose of jurisdiction has to be the value of the whole of the property to be partitioned as determined by Sections 3, 8 and 9 of The Suit Valuation Act, 1887 and for the purpose of Court fees as determined by The Court Fees Act, 1870. Hence, if the plaintiff is in possession of his share in the joint family property and seeks to enforce the right then as per Section 7(iv) of The Court Fees Act, 1870, fixed court fees is to be paid or else, if not in possession, ad valorem court fees as per his / her share in the property sought to be partitioned is to be paid.
19.6 As already mentioned above, the Court has to give a meaningful reading to the plaint. In the present plaint, the plaintiff has also sought the relief of possession qua his share in the suit property as well as demanded damages / compensation from defendant no.1 with effect from 11.02.1998 @ Rs.10,000/- per month till possession is handed over. Thus, there is an unequivocal averment that the plaintiff at the time of institution of the suit was not in possession of the suit property and for court fees was required to be paid on the suit at the market value of his share.
19.7 As regards the valuation for the purposes of jurisdiction, it is stated in the plaint in paragraph no. 12 that the market value of the suit is Rs. 24 lacs but during cross examination, PW1 failed to substantiate the source of such valuation of his suit. During CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 30 of 50 cross examination on 04.11.2006, the deceased plaintiff / PW1 stated as under :
" I have not idea about the present market value of the suit property. At the time of filing of the present suit, the market value of the property was about 25 las. I cannot tell specifically about the source of my information about the market value of the property at the time of filing the case. The suit property is built upon a plot ad measuring 500 sq. yds. I cannot tell the value of the plot which existed at the time of filing the suit. I cannot say that the value of the plot at the time of filing of the suit was Rs.10,000/- per sq. yds. I cannot say about the value of super structure at the time of filing of the suit. I can't say that the market value of the suit property at the time of filing of the suit was Rs.2 crores."
19.8 But, there is no affirmative evidence qua the exact value of the suit property led by the defendant no.1. Thus, in view of preponderance of probabilities, it can be safely concluded that the market value of the suit property was beyond Rs. 24 lacs as claimed by the plaintiff (since deceased) in his plaint and appropriate Court fees has also not been paid. The issue is decided against the plaintiff.
ISSUE NO. 3iii) Whether the Wills dated 20.01.1985 and 28.10.1996 were not duly and validly executed by the deceased father of the plaintiff? If so to what effect? OPD
20. The onus to prove this issue was upon the defendants.
20.1 It has been argued on behalf of the defendant no.1 that the authenticity of Wills dated 20.01.1985 (Ex. DW1/56) and CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 31 of 50 28.10.1996 (Ex. DW1/57) have been duly proved. It is submitted that DW2 Sh. G. Gehani has been examined as a witness of Will dated 28.101996 Ex. DW1/57 and from his cross examination, it is apparent that the Will has been executed by the testator in a sound and disposing state of mind out of his own free will and love for defendant no.1. It has been submitted that both Wills were duly registered which is a circumstance suggesting due execution by the testator. Much reliance has been placed on written statements of defendants no. 2 and 3 who have supported the case of defendant no.1 and accepted the due execution of the Will. Drawing the attention of the Court to exhibits DW1/13 and Ex. DW1/14, which are affidavits dated 05.05.1997 and 13.05.1997, respectively of the remaining defendants, it has been submitted that the genuineness of the Will is endorsed by other sons of the testator, as well. It has been argued that not only DW1 and DW2 but even plaintiff's own witnesses have proved that the testator was highly active till the end of his life and did not suffer from any mental incapacity. It has been argued that even though intention / capacity of the testator was questioned by the plaintiff, the same could not be substantiated by way of any cogent evidence. Leading the Court through the evidence of PW2 Smt. Madhu Rajpal / wife of the deceased plaintiff, it has been sought to be shown that the plaintiff had knowledge of the existence of the Wills even prior to filing of the suit but concealed the same. Relying upon cross examination of plaintiff witnesses, it has been argued that defendant no.1 has been able to show that the only CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 32 of 50 reason that the plaintiff was excluded from inheritance was because of his spendthrift attitude. It has been urged that that reason why defendant no.1 had been chosen by the testator to inherit the suit property is because he was the only son who took care of his parents till their end. To show that the testator was of sound mental state and possessed cognitive abilities, reliance has been placed upon Ex. PW1/D1 (entries in his personal diary in his own hand between February-March 1985), Ex.DW1/D4 to Ex. DW1/D10 (handwritten letters of the testator to defendant no.2 between 1992-1999), Ex. PW1/D11-D19 (correspondence of the testator with his friend Sh. V.R. Mohan Roy from 1986 to 1994), Ex. PW1/D20 (share transfer form signed by the testator on 07.10.1996), Ex. DW1/5 (bank deposit slips between 1985 to 1996 written by the testator himself), Mark DW1/6 (video recording of engagement ceremony of grandson Sh. Samir Rajpal on 09.12.1988 at Dehradun), Ex. DW1/12 (diary no. 2 of the testator, DW1/9, DW1/40 to DW1/44, DW1/49 (colly), and DW1/50 (colly) (various letters written by the testator between 1982 to 1985).
20.2 Per contra, the authenticity of Will Ex. DW1/57 has been sought to be questioned by suggesting that unlike the previous Will Ex. PW1/56, it does not have the date typed. It has also been argued that since Will Ex. DW1/57, does not mention the previous Will, it is doubtful that Will Ex. DW1/57 is genuine. To suggest the same, reliance has also been placed upon cross CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 33 of 50 examination of DW3 Sh. Vijay Kumar who stated that the photograph of the testator therein was not clear and so, whether the testator was the person actually taken to the Sub-Registrar's Office is shrouded in doubt. Also, it has been argued on behalf of LRs of the plaintiff that it is abnormal that at the relevant time when the testator was 87 years old, defendant no.1 did not accompany him to the Sub-Registrar's office and only the witnesses took him there. To prove that Will Ex. DW1/57 as admitted by DW2 Sh. G. Gehani, was already typed suggests that the testator may not have been aware of its contents owing to his frail physical and mental condition. Also, leading the Court through the cross examination of defendant no.1 as DW1, it has been shown that in 1994, a mild paralytic attack had been suffered by the testator who had also been hospitalized for two months.
20.3 Before the Court delves into the facts of this case, it deems it appropriate at this stage to recapitulate the law on how a Will is to be examined when it is propounded before the Court.
20.4 In Kavita Kanwar v Pamela Mehta Civil Appeal No. 3688 OF 2017 decided on 19 May, 2020 as under :
24.1. In the case of H. Venkatachala Iyengar (supra), a 3-
Judge Bench of this Court traversed through the vistas of the issues related with execution and proof of Will and enunciated a few fundamental guiding principles that have consistently been followed and applied in almost all the cases involving such issues. The synthesis and exposition by this Court in paragraphs 18 to 22 of the CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 34 of 50 said decision could be usefully reproduced as under:-
"18. What is the true legal position in the matter of proof of wills? It is well known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. S. 67 and 68, Evidence Act are relevant for this purpose. Under S. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 35 of 50 testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained?
Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 36 of 50 justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which we have just referred in some cases the wills CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 37 of 50 propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 38 of 50 parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson, 50 Cal W N 895 : (AIR 1946 PC 156), "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect."
(emphasis supplied) 20.5 As per Babu Singh Vs. Ram Sahai AIR 2008 SC 2485 and Kavita Kanwar (supra), where a plea of undue influence is taken, the onus lies upon the objector (plaintiff, herein) to prove the same.
20.6 Further, the Delhi High Court in Ashok Bauri Vs. State 2021, SCC Online Delhi 1248 has held that :
"12. The common course of natural events and human conduct is of soundness of mind and unsoundness of mind in aberration. If a testator / testatrix has led a normal life, performed day to day functions in the normal course of human conduct, the presumption under Section 114 would be of soundness rather than unsoundness of mind."
20.7 The plaintiff (since deceased through LRs) has questioned the authenticity and due execution of the Will on the following grounds :
(a) That in the month of September, 1994, the testator (then aged about 87 years) suffered a paralytic attack and continued to CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 39 of 50 be under medical treatment and amnesia therefore, was not able to understand the implications of any documents. This is stated to be coupled with the fact that despite medical advice, defendant no.1 who was living with the testator continued to give alcohol to the testator causing further loss of memory. It is also the case of the plaintiff (since deceased through LRs) that a second paralytic attack occurred on 05.11.1996 after which, the testator was in coma and died on 06.01.1997.
(b) That Will Ex.DW1/57 was purportedly executed only 20 days after the death of wife of the testator (then aged about 89 years) and therefore, the testator could not be in the mental condition to understand the consequence thereof.
(c) That the testator was under the influence of defendant no.1 and taking advantage of the same, defendant no.1 got executed the Wills in question.
(d) That no prudent person would execute a Will in favour of a son who is unmarried and has no children who could succeed the ancestral property as well as, the Wills in question do not explain why the other sons had been excluded therefrom.
(e) That Will Ex. DW1/57 was executed one day after the departure of Smt. Santosh Rajpal wife of defendant no. 2 and still does not mention her as an attesting witness. Also, defendants no. 2 and 3 were also not made to sign the Will despite their presence in New Delhi around that time on account of death of wife of testator.
(f) That the Wills do not bear the signatures of the testator.CS No. 57367/2016
K.K. Rajpal vs. N.K. Rajpal Pages 40 of 50 20.8 The onus to prove the Wills and their due execution was upon defendant no.1 and it was for the plaintiff (since deceased through LRs) to prove that the Wills were vitiated for forgery, coercion, undue influence and unsoundness of mind of the testator. A Will is required to be proved like any other document coupled with the mandate of Section 68 of the Indian Evidence Act, 1872 (hereinafter, referred to as the "The Evidence Act."). At the outset, it is worth noting that the attesting witness of first Will Ex. PW1/56 was not examined. Therefore, Ex. PW1/56 remained unproved and cannot be admitted in evidence. Registration of Wills which is not mandatory is only a circumstance that may be proved to show authenticity of its execution but would not amount to its proof. Now, Will Ex. PW1/57 has been sought to be proved through its attesting witness Sh. G. Gehani examined as DW2. He affirmed that the Will was executed by the testator in his presence and that the testator was conscious of the implications of its recitals. He has denied all suggestions of the testator being mentally unsound.
20.9 In his affidavit Ex. PW1/A, affirmations were made by the plaintiff (since deceased through LRs) that his father was suffering from ailments pursuant to September, 1994 till his death during which he continued to be on medication and was provided alcohol by defendant no.1 against medical advice. However, unfortunately, he did not survive affording an CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 41 of 50 opportunity to defendant no.1 to cross examine him. Thereafter, son of the plaintiff, Sh. Sumit Rajpal was as examined and in his cross examination he has admitted that his grand parents lived a long and active life. He pleaded ignorance whether the testator continued his regular walks and yoga. He testified that in December, 1988, the testator had actively participated in the marriage of grandson Sh. Sameer Rajpal and had also been an active participant in the celebration of birth of great grandson Saif in 1994. He further accepted that on 07.01.1996, the testator had actively participated in the marriage of another grandson Sh. Sandeep Rajpal and that the last rites of his wife were performed by the testator himself around 01.10.1996. On further clarification, during cross examination on 08.09.2014, all that has emerged is that pursuant to the death of his wife, the testator was unable to walk without assistance of a house member. The witness pleaded ignorance whether the testator was leading an active life till 05.11.1996. The witness also admitted to photographs Ex. PW2/D1/8-9 to Ex. PW2/D15 showing the active social life of the testator. As regards the ailments of the testator, the witness stated that the same were told to him by the testator, himself. He stated that the testator suffered from amnesia was as told to the witness by the plaintiff. Therefore, from the evidence of PW3 Sh. Sumit Rajpal, it can be concluded that the testator was not suffering from any such medical condition that would incapacitate him of sound reasoning or that he was in a debilitating mental condition and the evidence qua plaintiff CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 42 of 50 suffering from amnesia, is hearsay. Rather, it can be concluded that the testator has been active till the fag end of his life. Similarly, from the cross examination of PW2 it can be culled out on her admission of photographs Ex. PW2/D1/1 to Ex. PW2/D1/7-16 that even around the years 1991 to 1996 the testator was an active member in his social circle. She has also corroborated the testimony of PW3 that it was the testator who performed the last rites of his deceased wife. There is a clear admission by her on 27.07.2011 that "the testator almost remained active throughout his life prior to paralytic attack in November, 1996."
20.10 Here it is also relevant to observe that PW1 on 27.04.2007 during cross-examination also admitted that he had not made any enquiry in respect of the Wills from any source, hence, as admitted by the PW1 / plaintiff. The testimony of defendant no. 1 as DW1 is to the effect that the testator was not seriously ill when Will Ex. DW1/57 was got executed. He has denied suggestions that on account of various diseases, the testator was not in a fit state of mind. He has stated that pursuant to paralytic attack on 05.11.1996 which was mild, there was speech impairment suffered by the testator but the same was cured by treatment. The testimony of the witness that the testator was merely a social drinker has also not been countered on behalf of the plaintiff (since deceased through LRs). There is no iota of material on record to show that the intellectual capacities of the testator were CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 43 of 50 impaired due to alcohol consumption. Apart from the above, it is also worth noting that there are overwhelming documents in the hand of the testator himself like communications of testator with his friend Sh. V.R. Mohan Roy vide documents Ex. PW1/D11 to Ex. PW1/D19 as well as with defendant no.2 as evidenced by documents Ex.DW1/D4 to Ex. DW1/D10 which show that the medical condition of the testator was not such that it impacted his cognitive facilities. Also, it is imperative to note that there are affidavits Ex. DW1/13 (colly) and Ex. DW1/14 (colly) by the remaining defendants / son of the testators which affirm that the Wills in dispute were executed by the testator in his sound mental state. PW1 when cross examined on those did not identify the signatures claiming that he had poor eye sight and per contra, the testimony of defendant no. 1 identifying the signature of his brothers remained unrebutted leading credence to the defence that Will was executed duly by the father of the parties conscious of his acts. Further, this Court also is persuaded qua the genuineness of the Will as the intention of the testator to bequeath his assets to defendant no.1 also finds consistency from documents Ex. PW1/40 - Ex. PW1/44. Further, registration of Will is not compulsorily required and is only a circumstance to further establish the credibility of the Will therefore, the doubt sought to be raised that the testator was not taken for registration of the Will is not germane to the controversy in the factual CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 44 of 50 matrix of this case. The suspicion, is further belied once due registration was proved by witnesses DW3 and DW4 and PW3 also admitted that the photograph on the Will was of the testator himself. The argument that the Will Ex. DW1/57 is forged is also belied by the testimony of its witness Sh. G. Gehani examined as DW2 who has withstood the cross examination qua due execution of the the Will and mental capacity of the testator. Merely because the plaintiff (since deceased through LRs) was excluded from inheriting the suit property, in the facts of this case, does not convince this Court that Will Ex. PW1/57 has been executed under undue influence of defendant no.1. Reliance is placed upon Rabindra Nath Mukherjee and And. v. Panchanan Banerjee (through LRs.) AIR 1995 SC 1684. The other legal heirs have also accepted the genuineness of the Will and have been ready to honour the intention of their father. Therefore, to create suspicion on the ground that the family members were not made attesting witnesses also is not of much importance, herein. Finally, as regards forgery, no affirmative evidence was led by the plaintiff (since deceased through LRs) and the attesting witness DW2's testimony qua the execution of the Will by the testator is unrebutted. Thus, the plaintiff (since deceased through LRs) failed to discharge the onus and there is overwhelming evidence on record which refutes the grounds of suspicion alleged in the plaint.
20.11 Additionally, it is also pertinent to note that the plaintiff CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 45 of 50 concealed being aware of the Will Ex. PW1/57 when the suit was filed as it is established by the cross-examination of PW2 Smt Madhu Rajpal that the Will dated 28.0.1996 was read over to all the sons after the death of the testator. It can therefore be concluded that the plaintiff did not approach the Court with clean hands to seek a discretionary relief.
20.12 From cross-examination of PW1 as well as his wife PW2 it has also been shown that the plaintiff (since deceased through LRs) had his own DDA flat but sold it on account of financial crises (due to losses suffered by him in the share market). This in view of the concealment of awareness of Will Ex. PW1/57, prior to filing of a suit, only attributes the motive why will Ex. PW1/57 came to be challenged when even though defendant no. 2 and defendant no.3 also had accepted its genuineness.
20.13 Therefore, the issue is decided against the plaintiff.
ISSUE NO. 4iv) Whether the plaintiff is entitled to a decree of partition and damages / compensation as prayed? OPP
21. It is the case of the plaintiff (since deceased through LRs) that he contributed to the purchase of the suit property by availing loan of Rs.2000/- from Caltex Co-operative and Thrift Society where he was employed then. It is also his case that he made substantial financial contribution for the construction of the CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 46 of 50 suit property in 1966-67 as the father of the parties / the testator had retired from service and did not have funds available with him.
21.1 No substantial arguments on this aspect were advanced on behalf of the LRs of the plaintiff.
21.2 On behalf of defendant no.1, Ld. Counsel has argued that it has been proved that the suit property was a self acquired property of the testator way of payment receipts Ex. DW1/1 (colly), sale deed Ex. DW1/2, confirmation letter dated 17.02.1997 issued by Engineering and Industrial Corporation Ltd. Ex. DW1/3, recitals of Wills Ex. DW1/56 and Ex. DW1/57 and application by the testator for grant of loan for building house Ex. DW1/23, Ex. DW1/24, Ex. DW1/25 and Ex. DW1/26. Further, it has been argued that the plaintiff when examined as PW1 was unable to prove that any contribution towards the purchase amount was received from the grand father of the parties because, PW1 admitted that he owned no immovable property in Kolkata during his lifetime and contradicted himself when he claimed that evacuee property allotted to the grand father was at Moti Nagar Delhi and then again at Subhash Nagar. It is has therefore, been submitted that the witness had no knowledge of any estate being left behind by the grand father of the parties. Also relying upon testimony of PW2 Smt. Madhu Rajpal that she could not furnish any document that grandfathers CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 47 of 50 of the party left any Will or estate in favour of the testator, it has been submitted that the case of the plaintiff had fallen flat. Referring to the admission of PW3 Sh. Sumit Rajpal that the suit property is self acquired property of of the testator, it has further been urged that the case of the plaintiff (since deceased through LRs) has not been established. Much reliance has also been placed upon the admission of the plaintiff when cross examined as PW1, that he had no proof of any contribution towards the purchase of the plot and construction raised on it.
21.3 Even though, the plaintiff as PW1 affirmed that he had contributed to the purchase of the plot by availing a loan of Rs. 2,000/- from its then employer Caltex Co-operative and Thrift Society with terms of repayment @Rs.50/- per month, he also admitted during cross examination that he has no document to show the accounts aforementioned even though, the creditor maintained an account. No steps were taken for summoning of any such record. He also admitted that salary slip would reflect the reduction from his salary but once again no such salary slip was adduced in evidence. It has also been admitted by PW1 that the loan was given to him by way of cheque which was encashed and advanced to his father Late Sh. M.L. Nagpal/the testator by way of cash and was also reflected in the Income Tax return. However, no ITR were sought to be proved. In view of his clear admissions that he did not have any document of any loan taken from from Caltex Co-operative and Thrift Society, the assertion CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 48 of 50 remained bald. On 04.011.2006, during cross-examination of PW1 there is a clear admission that he had no proof of contribution made in purchase of plot and construction raised on it. Even though, he claimed that post his retirement, the testator was not doing any work, he pleaded ignorance when he was questioned about 'Premier Advertising Agency', sole proprietorship of the testator since 1985. On the contrary, the witness has admitted to document in PW-1/D21 to D35 which only go on to show the personal efforts of the testator to arrange for loan for the suit property by pledging his Life Insurance Policy No.506859. This is coupled with the fact that around the relevant time, he has also admitted that the salary of the testator was around Rs. 900/- showing his father had the means to buy the property. As regards, the grandfather of the parties leaving behind an estate and a Will vide which Rs. 3000/- was received by the testator and used in purchase of suit property, it is pertinent to observe that it has also not been established as the plaintiff himself, was unable to substantiate the claim as he was not aware as to where the evacuee property was allotted to the grandfather of the parties. The remaining plaintiff witnesses also could not depose on the aforesaid aspects. Also, documents Ex. DW1/1 (colly) to Ex. DW1/3 only suggest that the suit property was acquired by the testator from his own resources and was a self acquired property which he could bequeath by way of a Will.
21.4 Hence, the issue is decided against the plaintiff.
CS No. 57367/2016K.K. Rajpal vs. N.K. Rajpal Pages 49 of 50 RELIEF
22. In view of the findings and observations herein above, the suit of the plaintiff stands dismissed. No order as to cost.
23. Decree Sheet be prepared accordingly.
24. File be consigned to records.
Pronounced in open Court (Vijeta Singh Rawat) on 17.01.2023 Additional District Judge-01, New Delhi District, Patiala House Courts, New Delhi CS No. 57367/2016 K.K. Rajpal vs. N.K. Rajpal Pages 50 of 50