Shri Rajendra Parshad & Another vs Shri Sukh Dev & Another
2008 Latest Caselaw 1469 Del

F-12
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+    CS (OS) No. 1429/2000

     SHRI RAJENDRA PARSHAD & ANR. ..... Plaintiffs
                 Through Mr. Sameer Dewan, Advocate along with
                 plaintiff No. 1 in person.

                 versus

     SHRI SUKH DEV & ANR.                     ..... Defendants
                  Through Nemo.

     CORAM:
     HON'BLE MR. JUSTICE SANJIV KHANNA

               ORDER

% 28.08.2008

1. This suit for partition and rendition of accounts was filed on 5th July,

2000 by Mr. Rajendra Parshad and Mrs. Sarupi Devi, plaintiff Nos. 1 and 2

in respect of property No. 9/6602, situated in Gali No. 3, Dev Nagar, Karol

Bagh, New Delhi-110005 (hereinafter referred to as the property, for short).

2. This property was originally owned by one Mr. Nathu Lal, who expired

in the year 1955 and was survived by his two sons viz. Mr. Hira Lal and Mr.

Sukh Dev. Mr. Sukh Dev is defendant No. 1. Mr. Hira Lal expired on 3rd

January, 1976 and the plaintiff no.2-Mrs.Sarupi Devi was his wife. Plaintiff

No. 1, Mr. Rajendra parshad is son of late Mr. Hira Lal and Mrs. Sarupi

Devi. Mr. Gopan Singh Nim, defendant No. 2 is the other son of late Mr.

CS(OS) No. 1429/2000 Page 1 Hira Lal and Mrs. Sarupi Devi.

3. Mrs. Sarupi Devi, plaintiff No. 2 expired on 2nd March, 2003 and

thereafter daughters of late Mr. Hira Lal and Mrs. Sarupi Devi were

impleaded as defendant Nos. 3, 4 and 5. However, the said defendants

have not filed their written statement and are ex parte.

4. Mr. Rajendra Parshad, Plaintiff No. 1 has propounded Will dated 16th

June, 2000 stated to have been executed by Mrs. Sarupi Devi bequeathing

her share in the property in favour of plaintiff No. 1.

5. On the basis of pleadings of the parties, the following issues were

framed on 25th August, 2006:-

(1) Whether the plaintiff is entitled to one-third share from the one-half

share of the suit property on the basis of a Will executed in his favour

by his mother dated 16.6.2000? OPP

(2) Whether the plaintiff and defendant No. 1 are in joint possession of

the suit property? OPP

(3) Whether there was any family settlement between deceased Hira Lal

and plaintiff No. 1 and in terms of the said settlement the deceased

had given his share of first floor to defendant No. 1? OPD

(4) Whether the plaintiff is entitled to claim partition in the suit property?

        OPP


CS(OS) No. 1429/2000                   Page 2

(5) Whether defendant No. 1 is liable to render account of the rent

received from the tenant, if so for what amount and for what period?

OPP

(6) Whether the plaintiff is entitled to a decree of rendition of account, if

so to what amount? OPP

(7) Relief.

6. The first issue relates to plaintiff No. 1, defendant Nos. 2, 3, 4 and 5.

It is admitted case of the said parties that they are legal representatives of

late Mrs. Sarupi Devi and late Mr. Hira Lal, being their sons and

daughters. It is also admitted case that under the law of succession, each

one of them is entitled to equal share in the property along with their

mother Mrs. Sarupi Devi, upon death of Mr. Hira Lal on 3rd January, 1976,

who was a joint owner along with defendant No. 1 having inherited the

property from late Mr. Nathu Lal. The plaintiff No. 1 claims 1/3rd share in

the property on the basis of Will dated 16th June, 2000 exhibit PW1/6

purportedly executed by Mrs. Sarupi Devi in his favour. This will is

disputed by defendant No. 2.

7. Learned counsel for the plaintiff no.1 has drawn my attention to the

averments made in the plaint wherein it is stated that defendant No. 2 has

CS(OS) No. 1429/2000 Page 3 1/6th share in the property out of one-half share, of Mr. Hira Lal, but he

had refused to join the plaintiffs including late Mrs. Sarupi Devi in filing of

the suit. It is also stated in the plaint that defendant No. 2 was not having

cordial relations with the plaintiffs and he was siding with the defendant

No. 1. In addition, learned counsel for the plaintiff No. 1 has drawn my

attention to the evidence of Mr. Bir Singh, PW- 3, one of the witnesses to

the Will exhibit PW-1/6.

8. Mr. Rajendra Parshad has appeared as PW-1 and has stated in his

examination-in-chief that late Mrs. Sarupi Devi had executed Will dated

16th June, 2000 exhibit PW-1/6 in his favour and on the said date he had

taken her mother to the Parliament Street where the Will was typed on her

instructions. He has also stated that the Will was attested by two

witnesses viz. Mr. Bir Singh and Mr. Sumanta Chakraborty, who were

examined as PW-3 and PW-2. The Will is also claimed to be attested by a

notary public but the notary public has not been produced and the serial

number of the register required to be maintained by a notary public is not

mentioned. The Will has photographs of Mrs. Sarupi Devi and plaintiff No.

1.

9. Mr. Rajendra Parshad, PW-1 was cross-examined at length by

counsel for the defendant No. 1 in respect of the Will. In his cross-

CS(OS) No. 1429/2000 Page 4 examination plaintiff no.1 has stated that the Will was typed by a typist on

dictation given by mother i.e. Mrs. Sarupi Devi. However, he has stated

that he does not know educational qualification of the mother but she

could sign in Hindi. He could not answer the question whether the Will

was written in Hindi. He has admitted that his mother did not know

English. The Will Ex.PW-1/6 is in English and not in Hindi. It is a typed

Will. The Will PW-1/6 does not have signatures of Mrs. Sarupi Devi, but

bears her alleged thumb impressions. Typist has not been produced.

10. The plaintiff no.1, PW-1 has admitted that he had written name of

Mrs.Sarupi Devi on the Will (Exhb.PW-1/6) in his own handwriting. He

has also admitted that the correction made in the Will by adding words

"share in" at point „C‟ on the Will exhibit PW-1/6 is in his hand writing.

11. PW-1 has admitted that the mother had cordial relations with her

daughters. On the question whether the mother had cordial relations with

defendant No. 2, Mr. Gopal Singh Nim, Mr. Rajendra Parshad (PW-1) in

his cross-examination has stated that she did not have cordial relations

with him. He has however admitted in his cross-examination that his

mother was admitted in GTB Hospital in the year 1996 after she had

suffered a fracture and the brother-in-law of defendant No. 2, Dr. M.P.

Singh, Arthopaedic Surgeon had operated upon her.

CS(OS) No. 1429/2000 Page 5

12. Mr. Bir Singh, PW-3 has filed an affidavit stating that he and Mr.

Sumanta Chakraborty, had attested the Will (Exhb.PW-1/6). He has

stated that he knew Mr. Rajendra Parshad since 1998, as his wife was a

teacher in DPS, Rohini and he had worked as a driver in the said school.

He has stated that Mrs. Sarupi Devi had put her thumb impression on the

Will and at that time she was in perfect health and sound disposing mind.

However, in respect of the hand written words "share in" at point „C‟ on the

Will dated 16th June, 2000 exhibit PW-1/6, it was stated by Mr. Bir Singh

that these words were written by Mr. Sumanta Chakraborty in his

presence. Mr. Sumanta Chakraborty, PW-2 has filed almost an identical

affidavit by way of chief and has, inter alia, stated that the words "share in"

encircled „C‟ in Will exhibited as PW-1/6 were written by him. As already

stated above, the words "share in" as admitted by the PW-1, Mr. Rajendra

Parshad were written by him on the Will exhibit PW-1/6. Thus there is a

contradiction on who had written words "share in" at point C on the Will

(Exhb.PW-1/6)

13. Mr. Sumanta Chakraborty, PW-2 in his cross-examination has

stated that on 16th June, 2000 he had visited the house of the plaintiff no.1

and on that day was asked to sign some papers, which was a Will. He has

further stated that Mr. Bir Singh had already signed the papers before he

CS(OS) No. 1429/2000 Page 6 had signed the same. Mrs. Sarupi Devi‟s signatures were already there

and he was asked by Mrs. Sarupi Devi to sign the Will. Thus, Mr.

Sumanta Chakraborty, PW-2, in his cross-examination, has not accepted

the statement of PW-1 and PW-2 that Mrs.Sarupi Devi and they had gone

to Parliament Street on 16th June, 2000 and the Will was typed and

attested there. On the other hand, PW-2 has stated that the Will was

executed at the house of the plaintiff No. 1. He has also stated that Mrs.

Sarupi Devi had already put her thumb impressions on the Will. Mr. Bir

Singh, who was produced as PW-3, in his cross-examination , on the other

hand, had stated that on 16th June, 2000, he had gone to the house of Mr.

Rajendra Parshad at about 8.00 or 8.30 a.m. and thereafter along with his

mother and Mr. Sumanta Chakraborty, they had gone to Parliament Street

where mother of Mr. Rajendra Parshad narrated facts to a typist and the

Will was typed. He, however, had admitted that mother of Mr. Rajendra

Parshad did not know English but the contents of the Will was read over

by Mr. Sumanta Chakraborty, PW-2. I may note here that PW-2, Mr.

Sumanta Chakraborty, in his examination-in-chief has made no such

statement. It is not stated by PW-2, Mr.Sumanta Chakraborty that he had

read over and explained the Will to Mrs. Sarupi Devi before she had put

her thumb impression. On the other hand, PW-2, Mr. Sumanta

CS(OS) No. 1429/2000 Page 7 Chakraborty has stated that when he had reached the house of plaintiff

No. 1on 16th June, 2000. Mrs. Sarupi Devi had already put her thumb

impression on the Will and she asked him to sign the same.

14. On the basis of evidence led by the plaintiff including the two so-

called attesting witnesses to the Will, PW-2 Mr. Sumanta Chakraborty and

PW-3, Mr. Bir Singh, the following facts are apparent:-

(i) Late Mrs. Sarupi Devi did not know English. The Will is in English.

(ii) As per PW-3, Mr. Bir Singh, PW-2 , Mr. Sumanta Chakraborty had

read over and explained the Will in English to late Mrs. Sarupi

Devi. However, PW-2, Mr. Sumanta Chakraborty has made no

such claim. He has stated that when he reached house of the

plaintiff no.1 the Will (Exhb.PW-1/6) already had thumb

impression.

(iii) Mrs. Sarupi Devi knew how to sign in Hindi. Will is not signed by

her. Only thumb impression of Mrs. Sarupi Devi exist on the Will.

(iv) Mr. Rajendra Parshad, PW-1, the plaintiff No. 1 had stated in his

affidavit that the words "share in" at point „C‟ in the Will exhibit

PW-1/6 were written by Mr. Sumanta Chakraborty, PW-2.

However, in his cross-examination he has admitted that the said

words "share in" point „C‟ on the Will exhibit PW-1/6 were in

CS(OS) No. 1429/2000 Page 8 his hand writing. He has also admitted that the name of Mrs.

Sarupi Devi below her thumb impression on the Will PW-1/6 has

been written by him.

(v) Mr. Sumanta Chakraborty, PW-2 does not support the version of

the plaintiff, PW-1 and Mr. Bir Singh, PW-3 about the place and

the manner in which the Will was executed. PW-2, Mr. Sumanta

Chakraborty has stated that the Will was signed on 16th June,

2000 at the residence of the plaintiff no.1 and they did not go to

Parliament Street and the Will was not typed out at Parliament

Street.

(vi) PW-2, Mr. Sumanta Chakraborty and PW-3, Mr. Bir Singh are

closely connected with the plaintiff No. 1, Mr. Rajendra Parshad

and were working in the same school where wife of the plaintiff

was working.

(vii) It is admitted case of the parties and is clear from the evidence of

Mr. Rajendra Parshad, PW-1 that the mother had cordial relations

with the daughters. As per Will exhibit PW-1/6, daughters have

also been disinherited.

15. Learned counsel for the plaintiffs has drawn my attention to the

averments made in the plaint wherein it is stated that the mother, who

CS(OS) No. 1429/2000 Page 9 was plaintiff No. 2 did not enjoy cordial relation with defendant No. 2 as

the said defendant had not joined the plaintiffs in filing the suit.

Averment made in the plaint have to be read with some suspicion and

doubt as the plaint is in English and late Mrs. Sarupi Devi had merely

put her thumb impression on the plaint. Every page of the plaint does

not bear her thumb impression. Mrs. Sarupi Devi did not come to the

witness box and was not cross-examined. She was staying with the

plaintiff no.1. Preponderance predicates that the plaint was prepared at

the behest of plaintiff No. 1 and on instructions given by him. The Will

in question exhibit PW-1/6 is purported to have been signed and

executed just twenty days before the plaint was filed. There are number

of suspicious circumstances about execution of the Will, which have

been explained and set out above. It is doubtful whether late Mrs.

Sarupi Devi knew about the contents of the Will, the document she was

executing and whether she was in sound health and disposing mind

and the Will correctly records her intention.

16. Keeping all these aspects in mind and in view of the above

discussion, it is not possible to accept that Will dated 16th June, 2000

exhibit PW-1/6 has been proved and established. It is accordingly held

that the plaintiff No. 1, defendant Nos. 2, 3, 4 and 5 have jointly inherited

CS(OS) No. 1429/2000 Page 10 share of late Mrs. Sarupi Devi in the property. The issue is accordingly

decided.

17. It has come on record that plaintiff No. 1 and defendant No. 1

are residing in the property. Plaintiff No. 1 in his affidavit has clearly

stated that he is residing in the property and earlier his mother Mrs.

Sarupi Devi was also residing in the property. He has further stated that

the house comprises of ground floor, mezzanine floor, first floor and the

second floor and plaintiff No. 1, PW-1 is residing on the first floor. He

has also produced on record water and electricity bills, which have been

marked Exhibit PW-1/4 and PW-1/5. PW-1, Mr. Rajendra Parshad has

not been cross-examined in this respect by the defendants. On the

other hand, the line of cross-examination by the defendant No. 1 shows

that he has accepted that the plaintiff, PW-1 was/is residing on the first

floor of the property. Issue No. 2 is accordingly decided in favour of the

plaintiff and against defendant No. 1 holding that the plaintiff No.1 had

enjoyed possession of the property along with defendant No. 1.

18. Defendant No. 1 had originally pleaded family settlement

between late Mr. Hira Lal and and defendant No. 1 to claim inter se

CS(OS) No. 1429/2000 Page 11 partition. I may note here that in the written statement filed by the

defendant No. 1 to the amended plaint, the said defendant has admitted

that the defendant No. 1 is entitled to half share in the property and

other half belongs to legal heirs of late Mr. Hira Lal. Defendant No. 1 did

not enter the witness box and has not proved and established any oral

family settlement about partition of the property or late Mr. Hira Lal had

given up his share in the property. PW-1, Mr. Rajendra Parshad was

cross-examined by defendant No. 1 and it was suggested that late Mr.

Hira Lal had taken loan of Rs.30,000/- from defendant No. 1 for

marriage of his elder daughter and that late Mr. Hira Lal, who was a

mason/mistry by profession did not have sufficient means. Mere cross-

examination to this extent without any further evidence does not

establish and prove the claim of the defendant No. 1, which was made in

the original written statement.

19. In view of the above, issue No. 3 is decided in favour of the

plaintiff no. 1 and it is held that defendant No. 1 has not been able to

establish any family settlement or division/partition of the property. It is

accordingly held that defendant No. 1 is entitled to 50% in the share in

the property and the balance 50% share in the property belongs to the

legal representatives of late Mr. Hira Lal, viz. plaintiff, defendant Nos. 2,

CS(OS) No. 1429/2000 Page 12 3, 4 and 5, who are entitled to one-tenth share in the property.

20. In view of the findings given above, a preliminary decree of

partition is passed holding that defendant No. 1 has 50% or 5/10th share

in the property and plaintiff No.1 and defendant Nos. 2-5, each have

1/10th share in the property.

21. For the sake of convenience, both these issues pertaining to

rendition of accounts and are being discussed together. Ground floor of

the property was rented out to one Mr. Niranjan Das in the year 1969 on

monthly rent of Rs.150/-. Defendant No. 1 had filed an eviction petition

against him and eviction order was passed by the Rent Controller on

26th June, 1997. Mr. Niranjan Das thereafter filed an appeal but the

matter was compromised and the said tenant gave vacant possession of

the property to defendant No. 1 on 31st May, 2000. At the time of

hearing, learned counsel for the plaintiff states that keeping in view the

small amount and the tedious exercise, which will have to be

undertaken, he gives up the claim for rendition of accounts. I may note

here that defendant No. 2 is not claiming rendition of accounts from

defendant No. 1.

CS(OS) No. 1429/2000              Page 13
      RELIEF

22. In view of the findings given above, a preliminary decree of

partition is passed in respect of property No. 9/6602, situated in Gali No.

3, Dev Nagar, Karol Bagh, New Delhi-110005 holding that the defendant

No. 1 is entitled to 50% or 5/10th share in the property and the plaintiff

and defendant Nos. 2, 3, 4 and 5 each are entitled to 1/10th share in the

property. The property will be partitioned by metes and bounds.

23. Learned counsel for the plaintiff prays for some time so that

parties can examine the matter and reach inter se settlement. It is also

stated that the plaintiff is interested in retaining possession of the

property as he does not have any other residential property in Delhi.

24. In these circumstances, I am not passing any order for

appointment of a Local Commissioner to suggest mode of partition at

this stage. Let the parties examine the matter. Parties will also appear

in person on the next date of hearing. Court notice will be sent to the

parties.

Re-list on 11th November, 2008.

SANJIV KHANNA, J.

     AUGUST 28, 2008
     VKR/P


CS(OS) No. 1429/2000              Page 14