Delhi High Court
Pamela Kumar vs Arun Mohan & Ors. on 27 February, 2012
Author: J.R. Midha
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Counter-Claim No.28/2009 in CS(OS)No.1919/1995
% Date of decision : 27th February, 2012
PAMELA KUMAR ..... Plaintiff
Through : None.
versus
ARUN MOHAN & ORS. ..... Defendants
Through : Defendant No.1 in person.
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
Counter-Claim No.28/2009 in CS(OS)No.1919/1995
1. The plaintiff filed suit bearing CS(OS) No. 1919/95 for
declaration and partition of 'Radhe Mohan Lal HUF' which was
dismissed in default as well as for non-prosecution on 15th
January, 2009. Defendant No. 1 herein had filed Counter-claim
along with written statement on 24th February, 1996 and the
plaintiff was proceeded ex-parte in the Counter-claim. There
has been no appearance on behalf of the plaintiff as well as
defendants No. 2 & 3 in the Counter-claim since 15th January,
2009.
2. The plaintiff is the daughter of late Radhe Mohan Lal, who
died on 12th June, 1977 and late Raj Rani, who died on 12th
September, 1993, leaving behind one son, Arun Mohan
(defendant No. 1) and three daughters, namely, Pamela Kumar
(plaintiff), Lalita Steinmetz (defendant No. 2) and Mala Goel
(defendant No. 3).
3. The case of defendant No. 1 in the Counter-claim is that
'Radhe Mohan Lal HUF' initially comprised of late Radhe Mohan
Lal as Karta, defendant No. 1 as coparcener and four members,
namely, late Raj Rani and three daughters, namely, plaintiff,
defendant No. 2 and defendant No. 3. The plaintiff and
defendant No. 2 were married during the lifetime of late Radhe
Mohan Lal whereupon they ceased to be the members of the
HUF. Defendant No. 3 separated from the family in 1971-72,
which has been accepted by her in paras 4 to 6 of her written
statement. After the death of late Radhe Mohan Lal on 12th
June, 1977, the HUF comprised of defendant No. 1 as its karta,
his mother late Raj Rani as a member and his son as a
coparcener. After the death of late Radhe Mohan Lal, the
name of the HUF was changed to 'Arun Mohan Radhe Mohan
HUF'. There was an oral family settlement on 25th December,
1977 which was reduced into writing on 28th December, 1977
by which, late Raj Rani surrendered her membership. The HUF
thereafter comprised of defendant No. 1 as karta and his son
as coparcener. The HUF owned five properties mentioned in
para-3 of the Counter-claim, including property bearing No.51,
Sunder Nagar, New Delhi and property bearing No.4/20, Asaf
Ali Road, New Delhi. Defendant No. 1 is seeking a declaration
that the plaintiff, defendant No. 2 and defendant No. 3 are not
members of the HUF and have no interest in the properties of
the HUF. Defendant No. 1 is also seeking declaration in respect
of his self-acquired properties mentioned in para-5 of the
Counter-claim to the effect that the plaintiff, defendant No.2
and defendant No. 3 have no interest in the self-acquired
properties of defendant No.1. Late Raj Rani, mother of the
plaintiff and defendants No.1 to 3 died on 12th September,
1993 leaving behind her Will dated 12th February, 1992 and
two codicils dated 7th May, 1993 and 25th June, 1993.
Defendant No.1 has sought succession to estate of Raj Rani in
the Counter-claim but at the time of the hearing, defendant
No. 1 has restricted the prayer only to the declaration that the
estate of Raj Rani has devolved as per her Will dated 12th
February, 1992 and two codicils dated 7th May, 1993 and 25th
June, 1993.
4. Defendant No. 1 examined four witnesses to prove the
Counter-claim. Defendant No. 1 himself appeared in the
witness box as DW-4 and tendered his affidavit by way of
evidence as Ex. DW4/A. DW-4 deposed that his father late
Radhe Mohan Lal purchased the property bearing No. 51,
Sunder Nagar, New Delhi benami in the name of his wife Raj
Rani and then threw this property in the HUF vide affidavit
Ex.D-1. Late Radhe Mohan Lal acquired the property bearing
No. 4/20, Asaf Ali Road, New Delhi in his own name and also
threw the same in the HUF vide affidavit Ex.D-1. DW-4 deposed
that properties bearing No. 51, Sunder Nagar, New Delhi and
4/20, Asaf Ali Road, New Delhi were assessed as properties of
HUF by Income Tax Authorities and the Income Tax Returns
have been placed on record as Ex.D-30 to Ex.D-69. Late Radhe
Mohan Lal died on 12th June, 1977 leaving behind his widow
late Raj Rani, one son (defendant No. 1) and three daughters
(plaintiff, defendant No.2 and defendant No.3). However, so far
as the HUF was concerned, plaintiff and defendant No. 2 had
ceased to be the members of the HUF upon marriage during
the lifetime of the father whereas defendant No. 3 had
separated from the family in 1971-72. The HUF after the death
of the father comprised of defendant No.1 as Karta, his mother
Raj Rani as member and his son as coparcener. The HUF was
renamed as 'Arun Mohan Radhe Mohan HUF'. Late Raj Rani
surrendered her membership on 25th December, 1977 vide
memo of settlement Ex.D-3, which was signed by late Raj Rani
as well as plaintiff, defendant No.1 and defendant No.3 on
each page. The HUF thereafter comprised of defendant No. 1
as Karta and his son as coparcener. Late Radhe Mohan Lal left
behind a Will dated 8th June, 1974, Ex. D-4 which was probated
in Probate Case No.36LA of 1978. DW-4 deposed that the
properties mentioned in para 5 of the Counter-claim are self-
acquired properties of defendant No.1 and that the plaintiff,
defendant No.2 and defendant No.3 have no interest
whatsoever in the said properties. DW-4 has proved the
relevant documents relating to the Counter-claim detailed in
para 14 of the affidavit by way of evidence as Ex.D-1 to Ex.D-9
and Ex.D-13 to Ex.D-96. DW-4 submitted the additional
evidence by way of affidavit, Ex.DW-4/B and has proved the
documents of title relating to all the properties including
property bearing Nos. 51, Sunder Nagar, New Delhi and 4/20,
Asaf Ali Road, New Delhi as Ex.D-97 to Ex.D-110.
5. Late Raj Rani died on 12th September, 1993 leaving
behind a registered Will dated 12th February, 1992 and two
Codicils dated 7th May, 1993 and 25th June, 1993. The Will
dated 12th February, 1992 was witnessed by Rattan Singh
Longia, who appeared in the witness box as DW-1 and proved
that the Will was executed in his presence and the presence of
defendant No.3 as second witness. The Will was exhibited as
Ex.DW1/1. The Codicil dated 7th May, 1993 was witnessed by
Ms. Chitra Mehendale, Advocate, who appeared in the witness
box as DW-2 and proved the execution of the Codicil in her
presence and in the presence of the second witness, Man
Singh Bhadauria. The Codicil dated 7th May, 1993 was
exhibited as Ex.DW2/1. The second Codicil dated 25th June,
1993 was witnessed by Dr. Ashok Kapoor, who appeared in the
witness box as DW-3 and proved the execution of the Codicil in
his presence and the presence of the second witness, Dinesh
Garg, Advocate. The Codicil dated 25th June, 1993 was
exhibited as Ex.DW3/1. It is submitted that estate of late Raj
Rani does not comprise of property bearing No.51, Sunder
Nagar, New Delhi or property bearing No.4/20, Asaf Ali Road,
New Delhi, which are owned by the HUF. Copy of the affidavit
dated 24th April, 1980 of Raj Rani has been proved as Ex.D-6 in
which she has deposed that she did not have any interest in
51, Sunder Nagar, New Delhi. The plaintiff and defendants
No.2 and 3 have also given similar affidavits in Probate Case
No.36LA/78 which have been proved as Ex.D-27, Ex.D-16 and
Ex.D-18 respectively. From the evidence on record, it is clear
that 51, Sunder Nagar, New Delhi is the property of the HUF.
6. Defendant No. 1 submits that Section 6 of Hindu
Succession Act as amended on 9th September, 2005 would not
have any effect on the present case because the amendment
in 2005 is prospective in nature. It is submitted that prior to 9th
September, 2005, the plaintiff and defendant No.2 ceased to
be the members of the HUF upon their marriage and defendant
No.3 ceased to be a member of the HUF upon separation from
the HUF in 1971-72. Late Raj Rani was a member of the HUF
at the time of the death of late Radhe Mohan Lal but she also
surrendered her membership by a settlement dated 25th
December, 1977, memo whereof was recorded on 28th
December, 1977 (Ex.D3). Defendant No. 1 refers to and relies
upon the judgment of the Supreme Court in Surjit Lal Chhabda
v. CIT, (1976) 3 SCC 142.
7. Defendant No.1 submits that he has proved by sufficient
evidence that 'Arun Mohan Radhe Mohan HUF' comprised of
two members, namely, defendant No.1 and his son. It is
submitted that the plaintiff and defendants No.2 and 3 are not
the members of the said HUF and have no interest in the
properties of the HUF. It is submitted that the HUF is in
possession of the properties of the HUF. It is further submitted
that late Raj Rani was not a member of the HUF and did not
have any right or interest in the properties of HUF bearing Nos.
51, Sunder Nagar, New Delhi and 4/20, Asaf Ali Road, New
Delhi at the time of her death on 12th September, 1993. It is
further submitted that defendant No.1 is the owner of self-
acquired properties mentioned in para 5 of the Counter-claim;
and the plaintiff, defendants No.2 and 3 have no interest in the
said properties. It is further submitted that defendant No. 1 is
in possession of his self-acquired properties. It is further
submitted that Late Raj Rani left behind Will, Ex.DW1/1 and
Codicils, Ex.DW2/1 and Ex.DW3/1 which have been proved with
sufficient evidence. Defendant No.1 seeks a declaration that
Ex.DW1/1, Ex.DW2/1 and Ex.DW3/1 are the last and valid Will
and Codicils of Late Raj Rani. It is further submitted that
probate is not necessary in the case of Will made by a Hindu in
Union Territory, Delhi. Defendant No.1 refers to and relies
upon the judgments of this Court in Arjan Dass v. Madan Lal, 6
(1970) DLT 260, Chander Bhan v. Hannath Singh, 20 (1981)
DLT 32 and Mrs. Vijaya Gursahaney v. DDA, 1994 (29) DRJ 457.
It is further submitted that the suit for declaration simplicitor is
maintainable. Defendant No.1 refers to and relies upon the
judgment of this Court in Dr. Mangal Dass Kapoor v. Kamla
Rani, MANU/DE/1821/2009 in which this Court held a suit for
declaration simplicitor to be maintainable following the
judgment of Punjab and Haryana High Court in Dr. Mrs.
Joginder Kaur Malik v. Malik Anup Singh, AIR 1966 P&H 385 as
well as two judgments of this Court in Sanjay Gupta v. Ved
Kanti Gupta, 1994 (31) DRJ 76 and Jugdish Chander v. Punjab
National Bank, 1998 RLR 254. Defendant No.1 also refers to
and relies upon the judgment of the Andhra Pradesh High
Court in Amara Venkata Subbaiah and Sons v. Shaik Hussain
Bi, 2008 (5) ALD 547.
8. On the basis of unrebutted testimonies of the witnesses,
this Court is satisfied that defendant No.1 has successfully
proved the Counter-claim. The Counter-claim is, therefore,
decreed declaring 'Arun Mohan Radhe Mohan HUF' to comprise
of two members, namely, defendant No.1 and his son; and that
the plaintiff, defendants No.2 and 3 are not the members of
the HUF and have no right in the properties of HUF detailed in
para 3 of the Counter-claim including 51, Sunder Nagar, New
Delhi and 4/20, Asaf Ali Road, New Delhi. Defendant No.1 is
declared to be the owner of his self-acquired properties
mentioned in para 5 of the Counter-claim and that the plaintiff,
defendant Nos.2 and 3 have no right in the said properties.
Following the judgment of this Court in Dr. Mangal Dass Kapoor
(Supra), the Counter-claim is also decreed declaring that Will,
Ex. DW1/1 and two codicils Ex. DW2/1 and DW3/1 of late Raj
Rani have been duly proved. Let a decree be drawn subject to
proper valuation of the properties of late Raj Rani and deposit
of the differential Court fees in this regard. No costs.
J.R. MIDHA, J
FEBRUARY 27, 2012/rs
