Mrs. Shanti Gupta vs Murari Lal Gupta And Ors.
2002 Latest Caselaw 761 Del

JUDGMENT

R.C. Jain, J.

1. Learned counsel for the appellant was heard on admission of the appeal and we have also gone through the record.

2. The appellant was defendant No.5 in S.No.1206/92 filed by her sister Pushpa. She has challenged the judgment and decree passed on 10.8.2001 by the learned Single Judge by which the suit filed by Smt. Pushpa was dismissed.

3. Plaintiff and defendants 2 to 6 are the daughters and Shri Mohan Lal and defendant No.1 - respondent, Murari Lal Gupta is the son of Shri Mohan Lal. Wife of Shri Mohan Lal - the mother of the parties Smt. Kaushalya died on 3.4.1982. Shri Mohan Lal, the father of the parties died on 5.6.1990. Suit was filed by Pushpa imp leading her brother Murari Lal as defendant No.1 and her other sisters as defendants 2 to 6 claiming decree for partition and rendition of accounts alleging that the parents of the parties left their estate consisting of immovable and movable properties and as per the law of succession the parties, who are children are entitled to 1/7th share in all immovable and movable properties. It was alleged that Murari Lal alone had been enjoying the properties left by the parents and was not sharing the profits with his sisters. Suit was contested by Murari Lal, defendant alleging that the plaintiff had no right, title or interest in the property. Property No. 111, Jor Bagh, New Delhi was in the name of the mother of the parties. She on 10.1.1981 had made a Will bequeathing her properties in three equal shares in favor of Mohan Lal, her husband, Murari Lal, her son and Alok Gupta, her grandson. There was another property GI-33, Lawrence Road Industrial Area which was in the name of Shri Mohan Lal the father of the parties who died on 5.6.1990. He had also on 30.3.1989 executed a Will with respect to his property GI-33, Lawrence Road Industrial Area bequeathing it in the name of his grandson Alok Gupta. For the 1/3rd share which Mohan Lal got on the basis of Will of his wife dated 10.1.1980 separate Will dated 11.5.1989 was executed by which Mohan Lal bequeathed the said 1/3rd share in favor of his grandson Alok Gupta. On the basis of these pleadings following issues were framed:-

1. Whether Smt. Kaushaya Devi and Mohan Lal Gupta left behind moveable properties as detailed in annexure "A" filed along with the plaint?

2. Whether the suit has not been properly valued for the purposes of jurisdiction and payment of court fees?

3. Whether the suit is barred by time?

4. Whether the plaint does not disclose any cause of action as alleged?

5. Whether Smt. Kaushaya Devi executed Will dated 10th January,1981 bequeathing property No.111, Jor Bagh, New Delhi in favor of Mohan Lal, Murari Lal and Alok Gupta in equal shares, as alleged?

6. Whether Mohan Lal Gupta left behind Will dated 30th March, 1989 bequeathing propertyNo.GI-33, Lawrence Road, Industrial Area, New Delhi in favor of Alok Gupta, as alleged?

7. Whether Mohan Lal Gupta also bequeathed his 1/3rd share in property No.111, Jor Bagh, New Delhi under the Will dated 11th May, 1980 in favor of Alok Gupta, as alleged?

At this stage it may be pointed out that the plaintiff herself did not step into the witness box. The only witness examined was her sister, the appellant herein. Defendant No.1 appeared his own witness and examined Shri L.S. Rawat, an official from the office of Sub Registrar, Raj Kumar, Ahlmad who produced the record of the Court of Additional Rent Controller, Dr. S.K. Gupta, one of the attesting witnesses of the Will dated 10.1.1981; Shri Suresh Kumar Gupta, another attesting witnesses of the two Wills executed by Shri Mohan Lal. On appreciation of the evidence learned Single Judge concluded that defendantNo.1 has been successful in proving the three Wills and that there was no suspicious circumstance attending the due execution of the three Wills and thus proceeded to dismiss the suit of the plaintiff. The plaintiff has not filed the appeal. Defendant No.5 has filed the appeal.

4. Learned counsel for the appellant urged that the very fact that Mohan Lal executed two separate Wills for two separate properties, one for the property situate on Lawrence Road Industrial Area and other with respect to the share which he is stated to have got on the basis of the Will of his wife itself is a suspicious circumstance since in the first Will there is no reference made with respect to his having inherited 1/3rdshare in the property of his wife on the basis of Will. Had his wife executed a Will, as a man of ordinary prudence a mention would have been made in the Will with respect to the said fact that he had got 1/3rd share in the property at Jor Bagh.

5. Learned Single Judge duly considered the points raised before him and negatived the objections raised on behalf of the plaintiff that there were suspicious circumstances attending the due execution of the Will of Kaushalya, which had not been satisfactorily explained. Learned Single Judge duly appreciated the statement of Dr. S.K. Gupta who appeared as D.W.3 and stated that on 10.1.1981 at 10.00 A.M. S.K. Bansal brought a Will which was written on the instructions of Kaushalya Devi which was read over in his presence to Smt. Kaushalya Devi. Shri Shyam Lal, younger brother of Mohal Lal was present besides the three daughters of Mohan Lal, namely, Madhu, Shanti and Asha. After the Will had been read over in their presence to Kaushalya Devi she admitted the contents thereof and put her thumb impression on the same. It was later on signed by Shri Shyam Lal and the other witnesses in the presence of Kaushalya Devi and in presence of each other. This witness was not subjected to cross examination and as such his testimony will be deemed to have been accepted in full.

6. The appellant has also filed an application under Order 41 Rule 27 CPC seeking leave to lead additional evidence i.e. a blank paper bearing the alleged thumb impression of Kaushalya Devi in support to her case that Murari Lal - respondent, her brother was not having cordial relations with his parents. Her mother was not feeling well. She was removed to All India Institute of Medical Sciences when her father and uncle made her mother to sit and her thumb impressions were obtained on blank papers. This testimony of the appellant made in the suit which she appeared as a witness on behalf of the plaintiff was disbelieved by the learned Single Judge more especially for the reason that such a plea had not been raised in the written statement. We are also not inclined to allow the appellant to lead additional evidence since this version was not at all put to the attesting witness of the Will, namely, D.W.3 nor to the defendant. The mere fact that no mention was made in the first Will executed by Mohan Lal with respect to the fact that he had got 1/3rd share in the property at Jor Bagh will not be a suspicious circumstance attending the due execution of Will, which Kaushalya Devi had executed more than 9 years ago on 10.1.1981.The learned Single Judge has taken due pains in critically analysing the entire evidence and there is hardly any scope to interfere with the findings of fact recorded. It may also be mentioned here that despite the fact that defendant had set up the Wills, the plaintiff even failed to implead the person who has succeeded to property of Mohan Lal on the basis of the two Wills. The appeal has no force and is dismissed in liming.