Delhi District Court
Sh. Ram Kumar Gupta vs Sh. Narinder Kumar on 9 March, 2007
//1//
IN THE COURT OF SH. DAYA PRAKASH
ADDITIONAL DISTRICT JUDGE: DELHI
CS/405/03/84
Sh. Ram Kumar Gupta,
s/o. Late Sh. Rameshwar Das,
r/o. 3281, Gali Raja Wali,
Peepal Mahadev, Delhi,
at present residing at:
AN-25B, DDA Flats,
Shalimar Bagh, Delhi.
.....Plaintiff
VERSUS
Sh. Narinder Kumar,
s/o. Late Sh.Rameshwar Das,
r/o. House no.3281, Gali Raja Wali,
Peepal Mahadev,
Hauz Qazi, Delhi.
.... Defendant
JUDGMENT
1. By this judgment I shall dispose of the suit for partition filed by the plaintiff Sh.Ram Kumar Gupta against the defendant, his brother Sh.Narinder Kumar.
2. Plaintiff in the plaint submitted that the forefathers of Raja Debi Singh owned property bearing no.3281, Gali Raja Wali, Peepal Mahadev, Delhi. Kanwar Jawahar Singh who was only son of Raja Debi Singh, adopted Sh.Ram Sahai as 1/38 //2// his son. Sh.Ram Sahai had two sons namely Sh. Rameshwar Das and Sh.Onkar Nath. Sh.Rameshwar Das was married with Smt. Parkash Wati and they have two sons i.e. the plaintiff and the defendant.
Plaintiff further submitted that on the death of Raja Debi Singh the said property fell to his only son Kanwar Jawahar Singh and on whose death the said property devolved on his adopted son Sh.Ram Sahai. After his death in 1941 there was a partition between his two sons namely Sh.Rameshwar Das and Sh.Onkar Nath in 1962 and the property bearing no.3281, Gali Raja Wali, Delhi was alloted to Sh.Rameshwar Das. As such the property bearing no.3281 remained a joint Hindu Family property of Sh.Rameshwar Das and his two sons i.e. the plaintiff and the defendant. It is further submitted that the income derived out from monthly rents and pugree from tenanted shops and the income of HUF property was invested by Sh.Rameshwar Das partly in FDRs and partly in Saving Bank Account in his own name as well as benami in the name of defendant and his family; partly in ornaments and partly in household electric appliances and other furniture and fittings in the name of defendant and his family. 2/38
//3// Sh.Rameshwar Das was also having the Life Insurance Policies and he also got a telephone connection in his name. Sh.Rameshwar Das had invested the income derived out of HUF property as well as its accretions in three businesses run under the name of style of Narendra Enterprises, Narendra Industries and Virender Sales Corporation. All these three businesses were started by Sh.Rameshwar Das benami in the name of defendant and his family.
It is further submitted that at the time of death, Sh.Rameshwar Das left behind an amount of Rs.50,000/- and movable property acquired by Sh.Rameshwar Das out of the funds of HUF amounted to Rs.5 lakhs. Sh. Rameshwar Das at the time of his death also had valuable jewellery etc. worth of Rs.3 lakhs.
Plaintiff further submitted that Sh.Lal Chand who was maternal grandfather of plaintiff and the defendant owned a plot situated at Village Basai Darapur, Delhi and after his death this plot devolved on his wife Smt.Kamla Devi, his son Sh.Laxmi Chand and his daughter Smt.Parkash Wati (the mother of the plaintiff and the defendant) to the extent of 1/3rd share each. After the death of Smt.Kamla Devi the said plot 3/38 //4// devolved upon Sh.Laxmi Chand and Smt.Parkash Wati to the extent of one half share each. However a dispute arose between Sh.Laxmi Chand and Smt.Parkash Wati and a suit was filed in respect to said plot. It is further submitted that Smt.Prakash Wati died on 02.06.1972 and after her death the said plot devolved on her husband Sh.Rameshwar Das and her sons. After the death of Sh. Rameshwar Das, the plaintiff and the defendant became owner of the said one half share of the said plot.
Plaintiff further submitted that Smt.Kamla Devi the maternal grandmother of the plaintiff and the defendant had also left two houses situated in Gali Bille Wali, Bara Halwai Hatta, Sonepat and executed a Will in respect to these two houses in favour of Smt.Parkash Wati and after the death of Smt.Parkash Wati the said two houses devolved on Sh.Rameshwar Das and his two sons and after the death of Sh.Rameshwar Das the said two houses devolved upon the two sons of Sh.Rameshwar Das i.e. the plaintiff and the defendant to the extent of half share each.
It is further submitted that the plaintiff has asked the defendant to partition the said properties and the three HUF 4/38 //5// businesses but the defendant failed to do so. Hence this suit.
Plaintiff further submits that the cause of action arose in favour of the plaintiff and against the defendants; that this court has jurisdiction to try the present suit and that the suit has been properly valued for the purposes of jurisdiction and court fees.
Accordingly plaintiff seeks the following relief's:
i. that a Preliminary Decree for partition be passed in favour of the plaintiff against the defendant in respect of the movable and immovable properties which are mentioned in para-16 of the plaint and separate possession of the plaintiff's share therein be given to the plaintiff;
ii. that a Preliminary Decree for rendition of accounts be passed in favour of the plaintiff against the defendant;
iii.that a Local Commissioner be appointed to look into the accounts and to find out what amount is payable by the defendant to the plaintiff;
iv.that after taking into all the accounts, whatever amount is found due from the defendant to the plaintiff, a decree for the said amount be also passed in favour of the plaintiff against the defendant; v. that the J.H.F. business mentioned in para- 16 of the plaint be dissolved and all the assets of the said three firms be also divided half and half between the plaintiff and the defendant and accounts of those 5/38 //6// firms be gone into by a Local Commissioner to be appointed by this Hon'ble Court and for partitioning thereof between the plaintiff and the defendant half and half;
vi.......
vii........
3. Defendant duly served and filed W.S. wherein he denied that Sh.Rameshwar Das died intestate. It is submitted that Sh.Rameshwar Das made a Will dt.01.07.1983 which is a registered document. It is further submitted that the suit for partition filed by Sh.Onkar Nath in the year 1962 against his elder brother Sh.Rameshwar Das was decided on 06.11.1962 and according to the compromise effected between Sh.Rameshwar Das and Sh.Onkar Nath, it was settled that Sh.Rameshwar Das, defendant in that suit will have the first option to purchase the half share of Sh.Onkar Nath for a sum of Rs.8750/-. This amount was to be deposited in Court on or before 31.08.1963 and in case of failure plaintiff Sh.Onkar Nath was to have the right to purchase the half share of the defendant for the same amount which was to be deposited by 31.10.1963. It is further submitted that Sh.Rameshwar Das deposited the above said sum of Rs.8750/- by the due date 6/38 //7// and thus became absolute owner of half share belong to Sh.Onkar Nath. However, in the year 1963 Sh.Onkar Nath instituted a suit in the name of his minor children through their real maternal grandfather for setting aside the compromise deed and for declaration that the said compromise was invalid, void, illegal and ineffective against the minor plaintiffs. This suit was ultimately dismissed on 19.08.1966 and a subsequent appeal was filed on behalf of minor plaintiffs which was also dismissed by the Ld. ADJ on 09.01.1967.
It is further submitted that possession was obtained through Court in the year 1967 as the Sh.Onkar Nath did not vacate his half share purchased by Sh.Rameshwar Das. Hence, it is denied that the property bearing no.3281 was alloted to Sh.Rameshwar Das but Sh.Rameshwar Das purchased the half share belonging to Sh.Onkar Nath.
It is further submitted that property no. 3281 remained JHF property till 1962 thereafter one half portion of this property remained a JHF property of Sh.Rameshwar Das and his two sons and the remaining half portion became the absolute property of Sh.Rameshwar Das after its purchase by him.
7/38
//8// Defendant denied that the income of the JHF was invested by Sh.Rameshwar Das partly in FDR's and Saving Bank Account in his own name as well as benami in the names of defendant and his family. Defendant further denied that the said income was invested in ornaments, electrical household appliances etc. benami in the name of defendant and his family. It is submitted that the amount invested by Sh.Rameshwar Das in FDR's and in Saving Accounts belonged solely to Sh.Rameshwar Das.
It is further denied that Sh.Rameshwar Das invested the income of JHF property in the business of Narendra Enterprises and Virender Sales Corporation. It is submitted that these two firms solely belongs to the defendant and his wife respectively and they invested their own money in these businesses. It is submitted that there is no firm by the name of Narendra Industries.
It is further submitted that at the time of retirement Sh.Rameshwar Das received Provident Fund and Gratuity amounting of Rs.16,500/- and besides this he had Rs.40,000/- which he had in his house. It is further submitted that plaintiff left the house on 05.06.1974 and at his instance the Customs 8/38 //9// Authorities and Income Tax Authorities on 07.06.74 raided the house no.3281 and they seized the amount of Rs.40,000/- which found in possession of Sh. Rameshwar Das. The said authorities returned the major portion of the said amount and Sh.Rameshwar Das deposited Rs.20,400/- in FDR which was paid in the year 1980. Sh. Rameshwar Das also took a FDR of Rs.20,000/- in the year 1980 which has not been matured so far. It is further submitted that Sh.Rameshwar Das took two FDR'sof Rs.15,000/- and Rs.5,000/- in the joint names of himself and defendant's wife and these FDR's stand paid up.
It is submitted that Sh.Rameshwar Das was not in possession of and left no ornaments at the time of his death. Defendant admitted that after the death of Smt.Prakash Wati one half share of property of his maternal grandfather devolved on Sh.Rameshwar Das and his two sons. Defendant submitted that after the death of Sh.Rameshwar Das, the defendant is owner of 2/3rd share as Sh.Rameshwar Das has bequeathed his 1/3rd share to the defendant vide his Will dt.01.07.1983.
Defendant further denied that on the death of Sh.Rameshwar Das the two houses situated in Gali Bille Wali, 9/38 //10// Bara Halwai Hatta, Sonepat which were left by Smt.Kamla Devi, his maternal grandmother, the parties to the suit became owner of the said two houses in equal share. It is submitted that Sh.Rameshwar Das bequeathed his 1/3rd share in the said two houses to the defendant by his Will dt. 01.07.1983. Hence, the defendant is owner of two houses to the extent of 2/3rd share.
Defendant denied the value of the immovable properties mentioned in item 'A' of the schedule being high.
Defendant submitted that movable properties mentioned in item 'B' of the said schedule are false and denied the same. Defendant denied that cash in hand and ornaments and jewellery of value of Rs.50,000/- each were left by the Sh.Rameshwar Das. With respect to item no. (iii) under 'B' defendant denied that same has nothing to do with the Joint Family. The amount under item 'c' & 'd' under 'B' have been already paid to the respective beneficiary. The amount mentioned in items 'b'& 'e'are deposits in the name of Virender Kumar and Ruchi and the same have nothing to do with Sh.Rameshwar Das. The item 'iv' with respect to the Policy, it is submitted that the same was duly paid to 10/38 //11// Sh.Rameshwar Das in his life time. With respect to item 'v' defendant submitted that this account has only a balance of Rs.200/- only which is also a Joint Account of the deceased and the defendant. With respect to item 'vi'defendant submitted that an amount of about Rs.13,000/- stand in this account. With respect to items no. (vii) to (xiv) defendant submitted that these appliances have been purchased by the defendant with his own money. Defendant denied the items
(a) to ( c) mentioned in clause no. 'C'.
Defendant submitted that M/s. Narender Enterprises belongs to the defendant whereas M/s. Virender Sales Corporation is a partnership business of defendant's wife and another partier and there is no concern by the name of M/s. Narendra Industries.
Defendant further submitted that whatever cash Sh.Rameshwar Das had with him had been spent over his illness and a large amount was spend by the defendant on the funeral and other connected ceremonies.
Defendant denied that he is liable to render any account of any alleged movables. Defendant further denied that defendant ever refused to give the plaintiff'sshare in the 11/38 //12// immovable properties.
Accordingly, defendant prayed that the suit of the plaintiff be dismissed with heavy costs.
4. Subsequently, rejoinder to the W.S. of the defendant was filed wherein the plaintiff has denied the allegations made in the W.S. and reiterated the averments contained in the plaint.
5. After the completion of pleadings following issues were framed by the Hon'bleDelhi High Court vide order dt.23.04.1985:-
1. Whether the house in dispute is an ancestral property? If so to what effect?OPP
2. What were the properties and assets of the HUF left by Rameshwar Das at the time of his death?OPP
3. Whether Sh. Rameshwar Das executed any Will dt.01.07.1983? If so to what effect?OPD
4. What are the shares of the parties?OPParties
5. Is the defendant liable to render accounts?OPP 12/38 //13//
6. Whether the fixed deposits in the name of the defendant are benami in his name? If so to what effect?OPD
7. Relief.
6. On behalf of plaintiff, plaintiff himself deposed as PW1.
7. PW1 in evidence by way affidavit deposed on same lines as stated in his plaint.
In the cross PW1 deposed that a sum of Rs.3000/- per month was realised as rental income from the property at Delhi and about Rs.60lacs were recovered from the tenants as Pagri. PW1 stated it to be incorrect that defendant is exclusive owner of the suit property by virtue of the alleged registered Will alleged to be executed by Sh.Rameshwar Das. PW1 further stated it to be incorrect that Sh.Rameshwar Das during his lifetime on 22.01.83 had executed a registered Will. PW1 stated it to be incorrect that Sh.Rameshwar Das paid Rs.8750/- to Sh.Onkar Nath. He further stated it to be incorrect that Sh.Rameshwar Das has become thereafter exclusive owner. He stated it to be incorrect that exh.PW1/3 to PW1/14 13/38 //14// are not in the handwriting of Sh.Rameshwar Das. He deposed that the entire ground floor of the premises occupied by the commercial tenants. He stated it to be incorrect that defendant is in occupation of entire first floor and is residing there since time of his father Sh.Rameshwar Das.
8. On behalf of defendant, defendant himself deposed as DW1 and Sh. R.C. Gupta deposed as DW2.
9. DW1 in evidence by way of affidavit deposed that the property no.3281, Gali Raja Wali, Peepal Mahadev, Hauz Qazi, Delhi is the property of the defendant by virtue of registered Will executed by Sh.Rameshwar Das in his favour. DW1 further deposed that he is sole and absolute owner of the said property and the plaintiff has no right, title or interest over the said property. DW1 further deposed that Smt. Kamla Devi executed a registered Will in respect of two houses situated in Gali Bille Wali, Bara Halwai Hatta, Sonepat in favour of the defendant and hence, defendant is the sole and absolute owner of the said two houses. DW1 further deposed that Sh.Rameshwar Das executed the registered Will in his favour 14/38 //15// on 01.07.1983 and the same was witnessed by Sh. Rais Ahmed and Sh. Padam Chand. DW1 further deposed that the said Will was presented for registration on 01.07.1983 and the same was received from the Registrar Office in the month of October, 1983 against the receipt dt.01.07.1983.
DW1 in the cross examination deposed that Sh.Rameshwar Das handed over the Will to him at about 8 or 10 days before his death. He further deposed that Dr.Hari Krishan Sharma alongwith Sh.Padam Chand Gupta, Sh.R.C.Gupta and Sh. Rais Ahmed were present at the time of handing over of the Will to the defendant by Sh.Rameshwar Das. He further deposed that the Will had already been submitted by Sh.Rameshwar Das in the office of Sub-Registrar for registration but was collected by defendant after his death on the basis of receipt. DW1 agreed that the said property at Billewali, Sonepat has been inherited from their Nana Sh.Lal Chand. DW1 deposed that Sh. Lal Chand left behind a Will in favour of his wife Smt.Prakash Wati. DW1 agreed that Sh. Lal Chand did not leave behind any Will in his favour. It is submitted by DW1 that no physical partition of the property no. 3281 had taken place between his father and Sh.Onkar Nath 15/38 //16// and only his father paid off the share of his uncle which was otherwise partitioned. DW1 stated it be incorrect that plaintiff has 1/2 share in the properties set out with the plaint.
10. DW2 Sh.R.C. Gupta in the evidence deposed that Dr.Hari Shanker examined Sh.Rameshwar Das and certified that Sh.Rameshwar Das was in sound disposing mind and good health. DW2 further deposed that he alongwith Sh.Padam Chand Gupta and Rais Ahmed went to the office of the Sub-Registrar on 22.10.1983 for registration of the Will which was registered after the death of Testator.
In the cross examination DW2 deposed that the Will was executed in the evening hours. DW2 states that he has not deposed as a witness regarding the Will. DW2 stated it be incorrect that the Will was not signed by Sh.Rameshwar Das.
11. When advocate of plaintiff started arguments on behalf of plaintiff, he informed that the claim of plaintiff in the suit should be abandoned with respect to immovable properties mentioned in schedule A(ii), B and C. Thus the dispute remains with respect to house no.3281, Gali Raja Wali, 16/38 //17// Peepal Mahadev, Hauz Qazi, Delhi and two houses situated in Gali Bille Wali, Bara Halwai Hatta, Sonepat. Advocate of plaintiff mainly argued the claim with respect to these properties only.
Since, now the claim relief is only with respect to one house at 3281, Gali Raja Wali, Peepal Mahadev, Hauz Qazi, Delhi and two houses situated in Gali Bille Wali, Bara Halwai Hatta, Sonepat and abandoned with respect to other properties mentioned in schedule A(ii), B and C, the issue no. 6 become infructuous.
12. Arguments heard.
13. In the course of arguments advocate of plaintiff cited 111 (2004) DLT 411; 130(2006) DLT 214 and AIR 1958 Andhra Pradesh 647 (V 45 C 185).
14. In the course of arguments advocate of defendant cited AIR 1991 Delhi 48 and 2006 II AD (Delhi) 765.
15. My findings with respect to the issues are as 17/38 //18// follows:
REGARDING ISSUE NO.1 ''Whether the house in dispute is an ancestral property? If so to what effect?OPP'' Advocate of plaintiff argued that the house bearing municipal no. 3281, Gali Raja Wali, Peepal Mahadev, Hauz Qazi, Delhi is an ancestral property and plaintiff is entitled to 1/2 share after the death of Sh.Rameshwar Das, the father of the plaintiff and the defendant.
On the otherhand advocate of defendant argued that the entire house no.3281, Gali Raja Wali, Peepal Mahadev, Hauz Qazi, Delhi is not an ancestral property and only 1/2 share of this house is an ancestral property. Advocate of defendant further argued that there was litigation between Sh.Rameshwar Das and Sh.Onkar Nath, the brother of the Sh.Rameshwar Das. Sh.Onkar Nath filed a suit for partition against Sh.Rameshwar Das which was decreed and Sh.Rameshwar Das was given an opportunity to purchase the share of Sh.Onkar Nath for a specified sum. The specified sum was deposited by Sh.Rameshwar Das in the Court and 18/38 //19// after the litigation the possession was recovered. Hence, 1/2 share got from Sh.Onkar Nath was self-acquired property of Sh.Rameshwar Das for which Sh.Rameshwar Das has executed a Will and the other 1/2 portion the property is ancestral. After the death of Sh.Rameshwar Das, plaintiff is not entitled to anything as Sh.Rameshwar Das has executed a legal and valid Will through which Sh.Rameshwar Das has given of his 1/2 share to the defendant. Advocate of defendant further states that plaintiff has not filed any record of joint family nor of joint family property. Some letter were filed by the plaintiff without cover and these letters are not evidence as proved.
I have seen the entire record and feel that the 1/2 share of the disputed property is an ancestral property and 1/2 share of the property is self-acquired by Sh.Rameshwar Das on following grounds:-
Firstly, originally Raja Debi Singh was the owner of this property i.e. house no.3281, Gali Raja Wali, Peepal Mahadev, Hauz Qazi, Delhi which was later on devolved on to Kanwar Jawahar Singh. Kanwar Jawahar Singh had no issue 19/38 //20// and he adopted Sh.Ram Sahai as his son and after the death of Kanwar Jawahar Singh this property was devolved on to Sh.Ram Sahai. Sh.Ram Sahai had two sons i.e. Sh.Rameshwar Das and Sh.Onkar Nath. Sh.Ram Sahai died in the year 1941 and the property devolved upon the his two sons i.e. Sh.Rameshwar Das (who is father of plaintiff and the defendant) and Sh.Onkar Nath.
During the lifetime of Sh.Rameshwar Das, Sh.Onkar Nath filed a civil suit for partition in which Ld.Judge partitioned the property i.e. 3281, Gali Raja Wali, Peepal Mahadev, Hauz Qazi, Delhi into equal 1/2 share and given an option to Sh.Rameshwar Das to purchase the said property for Rs.8,750/- which was to be deposited within specified time. Sh.Rameshwar Das deposited the said sum within specified time and by depositing the said sum Sh.Rameshwar Das became the owner of 1/2 share of Sh.Onkar Nath.
Accordingly, Sh.Rameshwar Das held the suit property i.e. house no.3281, Gali Raja Wali, Peepal Mahadev, Hauz Qazi, Delhi as an ancestral property to the extent of 1/2 share and other 1/2 share which was purchased from Sh.Onkar Nath was held as exclusive self-acquired property. 20/38
//21// Secondly, the effect of above is that:- So far as 1/2 portion of the said property is concerned, no Will can be made by Sh.Rameshwar Das nor any alienation except for legal necessity can be made.
So far as 1/2 portion which was self acquired property (purchased from Sh.Onkar Nath) is concerned, Sh.Rameshwar Das was competent to make the Will or alienate the property as per his own free will.
Thirdly, whether Sh.Rameshwar Das executed any Will dt.01.07.1983 is to be decided in issue no.3 and also its effect.
In view of above, it is held that house no.3281, Gali Raja Wali, Peepal Mahadev, Hauz Qazi, Delhi was ancestral property held by Sh.Rameshwar Das to the extent of 1/2 share and remaining was self acquired property which was purchased/taken from Sh.Onkar Nath (the other co-sharer). The issue no.1 is accordingly disposed.
21/38
//22// REGARDING ISSUE NO.2 What were the properties and assets of the HUF left by Rameshwar Das at the time of his death?OPP Since the plaintiff has abandoned his relief except the property at Delhi i.e. house no.3281, Gali Raja Wali, Peepal Mahadev, Hauz Qazi and two houses situated in Gali Bille Wali, Bara Halwai Hatta, Sonepat, the finding on this issue will revolves around these properties.
Advocate of plaintiff argued that both properties i.e. House no.3281, Gali Raja Wali, Peepal Mahadev, Hauz Qazi, Delhi and two houses situated in Gali Bille Wali, Bara Halwai Hatta, Sonepat are HUF properties left by Sh.Rameshwar Das at the time of his death and plaintiff is entitled to equal 1/2 share of these properties.
On the otherhand advocate of defendant states that so far as property no.3281, Gali Raja Wali, Peepal Mahadev, Hauz Qazi, Delhi is concerned, Sh.Rameshwar Das was exclusive owner to the extent of 1/2 share which he bequeathed through Will dt.01.07.1983 in favour of defendant. So far as other 1/2 share of the said property is concerned, advocate of defendant argued that this said portion had three 22/38 //23// shares including of Sh.Rameshwar Das and his two sons and Sh.Rameshwar Das to the extent of his one share has bequeathed his share by Will dt.01.07.1983 in favour of the defendant. Hence, defendant is owner of property of self- acquired 1/2 portion to the extent of 1/2 share and 2/3rd share (1/3rd bequeathed by Sh.Rameshwar Das plus 1/3rd the share of the defendant himself). Hence, plaintiff is entitled only to the extent of 1/3rd share of 1/2 portion of HUF of Joint Family property.
I have seen the pleadings and documents on record and feel that Sh.Rameshwar Das at the time of his death left behind 1/2 share in property no.3281, Gali Raja Wali, Peepal Mahadev, Hauz Qazi, Delhi as HUF property and 1/3rd share in two houses situated in Gali Bille Wali, Bara Halwai Hatta, Sonepat on following grounds:-
Firstly, by issue no.1 it has already been held that with respect to property no.3281, Gali Raja Wali, Peepal Mahadev, Hauz Qazi, Delhi, Sh.Rameshwar Das had held this property to the extent of 1/2 share as HUF property and other 1/2 share as self-acquired or separate property. There is no 23/38 //24// factual dispute between the parties with respect to this legal preposition and fact.
Secondly, so far as two houses situated in Gali Bille Wali, Bara Halwai Hatta, Sonepat are concerned, plaintiff states that he is entitled to equal 1/2 share while defendant maintained that two houses at Sonepat are exclusively owned by the defendant.
I feel that Sh.Rameshwar Das had 1/3rd share in two houses situated in Gali Bille Wali, Bara Halwai Hatta, Sonepat. Originally Sh.Lal Chand, the maternal grandfather (Nana) of both plaintiff and defendant was exclusive owner of two houses at Sonepat. After the death of Sh.Lal Chand this property devolved on to his wife Smt.Kamla Devi.
Defendant had stated that Smt.Kamla Devi executed a Will by which she bequeathed two houses at Sonepat to the defendant but defendant has failed to prove this fact as the original Will has not been placed on record. The position taken by the defendant in the affidavit is contradictory to his statement in the W.S. as in W.S. he had stated that Smt.Prakash Wati the mother of the plaintiff and the defendant 24/38 //25// was the last legal owner of the two houses at Sonepat. Rather a fact has been emerged that there is Will by Smt.Kamla Devi bequeathed the two houses to Smt.Prakash Wati (the mother of the plaintiff and the defendant). This fact is proved as it is stated by the plaintiff in his averments and also came in documents. Whether this Will from Smt.Kamla Devi in favour of Smt.Prakash Wati or succession? The fact remains that the property was ultimately held by Smt.Prakash Wati after the death of Smt.Kamla Devi. After the death of Smt.Prakash Wati these two houses devolved on to her husband i.e. Sh.Rameshwar Das and her two sons i.e. plaintiff and the defendant in equal share i.e. to the extent of 1/3rd share each. Hence, at the time of his death Sh.Rameshwar Das had only 1/3rd share in two houses situated in Gali Bille Wali, Bara Halwai Hatta, Sonepat.
Accordingly, in the conclusion at the time of death of Sh.Rameshwar Das, Sh.Rameshwar Das had the following properties:-
i) HUF property to the extent of 1/2 share in house no.3281, Gali Raja Wali, Peepal Mahadev, Hauz Qazi, Delhi;
ii) separate self acquired property of other remaining 1/2 share in above mentioned property which 25/38 //26// Sh.Rameshwar Das was purchased from Sh.Onkar Nath;
iii)1/3rd undivided share in two houses situated in Gali Bille Wali, Bara Halwai Hatta, Sonepat.
This issue no.2 is disposed accordingly. REGARDING ISSUE NO.3 Whether Sh. Rameshwar Das executed any Will dt.01.07.1983? If so to what effect?OPD This issue was OPD i.e. the onus to prove this issue was on the defendant.
Regarding this issue, advocate of defendant states that the Will has been proved to have been executed by Sh.Rameshwar Das on 01.07.1983. There was evidence of DW1 Sh.Narinder Kumar/defendant, DW2 Sh.R.C.Gupta who was witness to the Will and affidavit of Dr.Hari Shanker Sharma and Sh.Rais Ahmed who were present at the time of execution of Will by Sh.Rameshwar Das. Accordingly advocate of defendant states that the Will has been proved. It is further proved that Will is witnessed by two persons which is a requirement and Will is a registered document.
On the otherhand advocate of plaintiff states that 26/38 //27// the Will has not been proved. The evidence of the DW1 and DW2 is contradictory on many particulars. The affidavits of Sh.Rais Ahmed and Dr.H.S.Sharma have no legal consequence as these witnesses were not brought in the witness box for cross examination.
I have seen the file and the documents and feel that the defendant has failed to prove that Sh.Rameshwar Das executed any Will dt.01.07.1983 on the following grounds:-
Firstly, a document can be proved u/s. 64 of Indian Evidence Act by placing original on record. The original Will has not been placed on record. If original is not available then the document can be proved by secondary evidence with the permission of the Court i.e. attested/certified copy thereof. Defendant has also not placed on record the attested/certified copy of the Will.
Secondly, there is contradiction in the deposition of DW1 & DW2 and affidavits of Sh.Rais Ahmed & Dr.H.S. Sharma as two persons who were present at the time of 27/38 //28// execution of alleged Will by Sh.Rameshwar Das. There is also contradiction as it was executed on the same date. There is also contradiction whether this was written in their presence.
Thirdly, DW2 who allegedly witnessed the Will dt.01.07.1983 states in his cross examination that his affidavit exh.DW2/A was not got prepared by him. The dates mentioned therein were put up by the defendant or his advocate. He further states that he do not remember whether Sh.Rameshwar Das was bed ridden or not at that time. He further states that the Will was already typed. He also cannot tell the exact hour when the Will was executed. He further states that he do not remember the day, date, month or year when the Will was executed. This witness has contradicted his affidavit and is a shaky witness and hence unreliable.
Fourthly, there is affidavit of Dr.Hari Shanker Sharma who was retired doctor on record. In the said affidavit Dr.Hari Shanker deposed that at the time of making of Will Sh.Rameshwar Das was in good health and sense.
Perusal of record shows that the same doctor in 28/38 //29// previous proceedings before Income Tax Authorities has mentioned and written to the Income Tax Authorities that Sh.Rameshwar Das is an old man of about 70 years and also a patient of Parkinson' s disease. This is reflected in order of Sh.R.C. Nagpal, Additional Income Tax Officer, H.Qrs. IV, New Delhi dated 08.01.1982.
Parkinson disease is a process by which a person slowly started loosing his memory. The order by the Income Tax which shows this fact was passed on 08.01.1982 and the alleged Will is stated to have been executed on 01.07.1983. This contradictory facts goes against the defendant.
Fifthly, DW1 in his affidavit in evidence deposed that Sh.Rameshwar Das executed a registered Will in his favour. DW1 further deposed that the Will was presented for registration on 01.07.1983 and the same was received from the Registrar Office in the month of October, 1983 against the receipt dt.01.07.1983.
In the cross examination DW1states that Will was already registered when it was given to him by his father Sh.Rameshwar Das. DW1 further states in the cross 29/38 //30// examination that Sh.Rameshwar Das handed over the Will to the defendant about 8 to 10 days before his death.
Perusal of file shows that these statements of DW1/ defendant are on the face of it false as on the date of alleged handing over of the Will, the Will was not a registered document.
Mark-A which is a photocopy of the Will shows that the Will was registered after the death of the testator.
Sixthly, perusal of file shows that while defendant has alleged that there was strained relationship between the plaintiff and the father Sh.Rameshwar Das but the letters on record shows that it is not a proved fact.
Advocate of defendant during the course of arguments stated that the envelopes of these letters have not been filed but the question is that whether these letters were denied by the defendant?
In view of above, it is held that the defendant has failed to prove that Sh.Rameshwar Das executed any Will dated 01.07.1983. The issue no.3 is decided against the defendant.
30/38
//31// REGARDING ISSUE NO.4 What are the shares of the parties?
OPParties.
Both plaintiff as well as defendant are only entitled legal heirs of Late Sh.Rameshwar Das, hence both plaintiff as well as defendant are entitled to following shares:-
SHARE OF THE PLAINTIFF
i) Plaintiff is entitled to 1/2 equal share of property (HUF/JF property plus self acquired interest) bearing no.3281, Gali Raja Wali, Peepal Mahadev, Hauz Qazi, Delhi as the defendant failed to prove the execution of Will dt.01.07.1983 by Late Sh.Rameshwar Das.
ii) Plaintiff is also entitled to 1/2 equal share in two houses situated in Gali Bille Wali, Bara Halwai Hatta, Sonepat. Calculation in the following manner:- after the death of Smt.Parkash Wati the property devolved on Sh.Rameshwar Das, plaintiff and defendant in equal 1/3rd share. After the death of Sh.Rameshwar Das his 1/3rd share is 31/38 //32// further divided into two equal shares making it equal 1/2 share as defendant has failed to prove the Will of Late Sh.Rameshwar Das.
SHARE OF THE DEFENDANT
i) Defendant is entitled to 1/2 equal share of property (HUF/JF property plus self acquired interest) bearing no. no.3281, Gali Raja Wali, Peepal Mahadev, Hauz Qazi, Delhi as the defendant failed to prove the execution of Will dt.01.07.1983 by Sh.Rameshwar Das.
ii) While in the W.S. defendant has taken a stand that Smt.Kamla Devi executed a Will in favour of Smt.Parkash Wati (the mother of the plaintiff and the defendant). However, in the affidavit filed in evidence defendant had stated on oath that Smt.Kamla Devi executed a Registered Will in respect of two houses situated in Gali Bille Wali, Bara Halwai Hatta, Sonepat in favour of defendant and accordingly defendant is sole and absolute 32/38 //33// owner of the two houses situated at Sonepat. However, no Will executed by Smt.Kamla Devi in favour of defendant has been placed on record. Hence, apparently defendant Sh.Narinder Kumar has given false statement on oath before this Court.
Accordingly, defendant is also entitled to 1/2 equal share in two houses situated in Gali Bille Wali, Bara Halwai Hatta, Sonepat. Calculation in the following manner:- after the death of Smt.Parkash Wati the property devolved on Sh.Rameshwar Das, plaintiff and defendant in equal 1/3rd share. After the death of Sh.Rameshwar Das his 1/3rd share is further divided into two equal shares making it equal 1/2 share as defendant has failed to prove the Will of Late Sh.Rameshwar Das.
The issue no.4 is disposed accordingly, REGARDING ISSUE NO.5 Is the defendant liable to render accounts?OPP 33/38 //34// I feel that the defendant is liable to render accounts of the properties on the following grounds:-
Firstly, vide issue no.1 it has been held that the 1/2 share of the disputed property is ancestral property and 1/2 share of the property is self-acquired by Sh.Rameshwar Das.
Secondly, vide issue no.2 it has already been held that Sh.Rameshwar Das at the time of his death left behind 1/2 share property no.3281, Gali Raja Wali, Peepal Mahadev, Hauz Qazi, Delhi as HUF property and 1/3rd share in two houses situated in Gali Bille Wali, Bara Halwai Hatta, Sonepat.
Thirdly, vide issue no.3 it has already been held that defendant has failed to prove that Sh.Rameshwar Das executed any Will dt.01.07.1983.
Fourthly, vide issue no.4 it has already been held that plaintiff is entitled to 1/2 equal share in the property no.3281, Gali Raja Wali, Peepal Mahadev, Hauz Qazi, Delhi and two houses situated in Gali Bille Wali, Bara Halwai Hatta, 34/38 //35// Sonepat.
Fifthly, both properties of Delhi and Sonepat were let out to the different tenants. It is a fact that the rent from the some of tenants was recovered by the defendant. It is further a fact the rent has not been paid in equal share to the plaintiff by the defendant.
Sixthly, being equally entitled to 1/2 share of the properties at Delhi and at Sonepat, plaintiff is also entitled to recover from the defendant 1/2 recovered rent from these properties.
The issue no.5 is decided in favour of the plaintiff and against the defendant and it is held that defendant is liable to render accounts. REGARDING ISSUE NO.6 Whether the fixed deposits in the name of the defendant are benami in his name? If so to what effect?OPD When advocate of plaintiff started arguments on behalf of plaintiff, he informed that the claim of plaintiff in the 35/38 //36// suit should be abandoned with respect to immovable properties mentioned in schedule A(ii), B and C. Thus the dispute remains with respect to house no.3281, Gali Raja Wali, Peepal Mahadev, Hauz Qazi, Delhi and two houses situated in Gali Bille Wali, Bara Halwai Hatta, Sonepat. Advocate of plaintiff mainly argued the claim with respect to these properties only.
Since, now the claim relief is only with respect to one house at 3281, Gali Raja Wali, Peepal Mahadev, Hauz Qazi, Delhi and two houses situated in Gali Bille Wali, Bara Halwai Hatta, Sonepat and abundant with respect to other properties mentioned in schedule A(ii), B and C, the issue no. 6 become infructuous.
Accordingly, the issue no.6 is disposed as infructuous.
R E L I E F'S:-
1. A preliminary decree of partition is passed in favour of the plaintiff and against the defendant holding that the plaintiff is entitled to 1/2 share in property no.3281, Gali 36/38 //37// Raja Wali, Peepal Mahadev, Hauz Qazi, Delhi and two houses situated in Gali Bille Wali, Bara Halwai Hatta, Sonepat.
2. Defendant was given all accounts from the date of death of Sh.Rameshwar Das till todate as to total rent amount recovered from the tenants as well as the property let out to any tenant after the death of Sh.Rameshwar Das and stating that how much pugree or premium has been recovered by the defendant.
3. Henceforth the tenants in property bearing no.3281, Gali Raja Wali, Peepal Mahadev, Hauz Qazi, Delhi and two houses situated in Gali Bille Wali, Bara Halwai Hatta, Sonepat shall give 1/2 equal rent to both plaintiff and defendant. If rent is due then the same shall be paid equally to plaintiff and defendant.
16. In view of above, the issues no.1, 2 and 4 stands disposed. Issue no.3 decided against the defendant. Issue no.5 decided in favour of the plaintiff and against the 37/38 //38// defendant. Issue no.6 disposed as infructuous. Accordingly, a preliminary decree is passed as mentioned above.
17. Preliminary decree sheet be prepared accordingly.
18. Put up for appointment of Local Commissioner and further proceedings on 28.03.2007.
Announced in open court DAYA PRAKASH today on dated 09.03.2007 ADDITIONAL DISTRICT JUDGE (typed 1+1) DELHI 38/38