Ajay Gupta & Anr. vs State
2012 Latest Caselaw 3891 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI


+      (1)    TEST CAS. 33/1999


AJAY GUPTA & ANR.                               ..... Petitioners
             Through:              Mr. Tarun Sharma, Advocate.

              versus


STATE                                              ..... Respondent
                       Through:    None.


+      (2)    CS(OS) 694/2005

AJAY GUPTA AND ANR.                             ..... Plaintiffs
             Through:              Mr. Tarun Sharma, Advocate.

              versus


PRABHAKAR GUPTA AND ANR.                           ..... Defendants
            Through: None.


+      (3)    CS(OS) 695/2005

AJAY GUPTA AND ANR.                             ..... Plaintiffs
             Through:              Mr. Tarun Sharma, Advocate.

              versus

PRABHAKAR GUPTA AND ORS.       ..... Defendants
                Through: None.


Test Case No.33/1999 and CS(OS) Nos.694/2005 and 695/2005     Page 1 of 41
 %                           Date of Decision : July 05, 2012


CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL


                            JUDGMENT

: REVA KHETRAPAL, J.

1. The aforementioned Test. Case No.33/1999 and two suits

bearing Nos.CS(OS) 694/2005 and CS(OS) 695/2005 are being

decided by this common judgment in view of the commonality of

facts and issues involved in all the three legal proceedings.

2. The petitioners/plaintiffs are brothers who claim to be absolute

owners and in peaceful possession of property bearing No.C-328,

Kotla Mubarakpur, New Delhi since July, 1996. It is the case of the

petitioners/plaintiffs that the aforesaid property was the self-acquired

property of their maternal grandfather-Shri Ram Nath Gupta, before

the title of the same was passed over to the plaintiffs on 1st July, 1996,

when Shri Ram Nath Gupta proposed to sell the aforesaid property on

account of his strained financial circumstances and the plaintiffs along

with their father jointly decided to purchase the property for a sale

consideration of ` 3,00,000/- (Rupees Three Lacs Only). Allegedly,

on 1st July, 1996, Shri Ram Nath Gupta executed various documents

being Agreement to Sell, General Power of Attorney, Possession

Letter, Receipt for the consideration amount, an affidavit in favour of

the plaintiffs and a Will which is the subject matter of the

Testamentary Case, being Test. Case No.33/1999. Allegedly also, all

the aforesaid documents were executed on the same day, that is, on

01.07.1996 and were either registered or notarized as per the

requirement of law on the said date.

3. It is further the case of the plaintiffs that on 01.02.1999, Shri

Ram Nath Gupta passed away and on his demise his two daughters,

namely, Smt. Sudesh Gupta and Smt. Prabha Gupta, who had come to

participate in the last rites of their father with their respective

husbands, were offered a room to stay on the first floor of the property

in question on license basis, "as a matter of courtesy". When all the

death ceremonies were over, the plaintiffs with their parents requested

the aforesaid daughters of Shri Ram Nath Gupta to vacate the portion

of the property in their possession, who sought some more time for

vacating the same on the pretext of sight-seeing in Delhi. Finally, on

05.03.1999, the plaintiffs asked both the defendants (the husbands of

the aforesaid two daughters of Shri Ram Nath Gupta) to leave the

room in their possession as the same was required by the plaintiff

No.2 and his family. On their refusal to do so, and on the defendant

No.1 extending a threat to kill both the plaintiffs with his revolver,

the plaintiffs served a legal notice dated 06.03.1999 upon the

defendants. The defendants No.1 and 2 responded to the said legal

notice vide their reply dated 03.04.1999, claiming that they were in

occupation of two rooms in the suit property as tenants of late Shri

Ram Nath Gupta for the last over twenty years. The defendants No.1

and 2 thereafter continuously started harassing and threatening the

plaintiffs with dire consequences.

4. A spate of litigation ensued between the parties.

(i) First, the plaintiffs on 01.05.1999 filed Suit No.151/1999 before

the Additional District Judge, inter alia, praying for a decree of

possession and mesne profits in favour of the plaintiffs and

against the defendants in respect of the one room portion on the

first floor of the suit property and a decree of permanent

injunction restraining the defendants from interfering with the

possession of the plaintiffs. The said suit was subsequently

transferred to the file of this Court and came to be registered as

CS(OS) 694/2005.

(ii) Next, a testamentary case bearing Probate Case No.145 of 1999

was filed by Prabha Devi Gupta, Sudesh Gupta and Rakesh

Gupta on 04.06.1999 before the District Judge, Delhi. The

prayer made in the said Probate Case was for the issuance of

Letters of Administration/Probate in respect of the property in

question on the strength of a Registered Will dated 10.09.1998

and another document titled as "Cancellation of Will" also

registered on 10.09.1998 to cancel the Registered Will executed

by the deceased-testator in support of the sale transaction

undertaken on 01.07.1996. The petitioners preferred an

application on 23.05.2000 under Order I, Rule 10 read with

Section 151 of the Code of Civil procedure, 1908 for

impleadment in the said Probate Case along with their

objections to the relief prayed for in the said Probate Case. The

near relation, Usha Gupta, mother of the petitioners, also

preferred her objections on 13.11.2000. The said Probate Case

came to be registered as Testamentary Case No.20 of 2005 by

the Registry of this Court after its transfer from the Court of the

District Judge on 27.09.2004 and has since been dismissed in

default.

(iii) Shortly thereafter, that is, on 26.07.1999, Testamentary Case

No.33 of 1999 was filed on behalf of the petitioners before this

Court under Section 276 of the Indian Succession Act, 1925 for

the grant of Probate/Letters of Administration in terms of the

Registered Will dated 01.07.1996, executed by the deceased-

testator in support of a sale transaction confirmed by the

deceased-testator in favour of the petitioners on the same day,

i.e., on 01.07.1996 pertaining to the property in question. Near

relations, Prabha Devi Gupta and Sudesh Gupta filed their

objections on 12.11.1999. The petitioners submitted their reply

to the said objections on 23.07.2001. The other near relation,

Usha Gupta, also filed an affidavit on 23.07.2001 in support of

the sale transaction and the Will dated 01.07.1996.

(iv) The petitioners on 01.10.1999 preferred another suit before the

Original Side of this Court, being CS(OS) No.588/1999

(subsequently re-numbered as CS(OS) 695/2005) against the

defendants, praying for a decree of declaration in their favour to

the effect that they (the plaintiffs) were the exclusive lawful

owners of the entire suit property and a decree of cancellation

of the Written Instrument/Will dated 10.09.1998. A decree of

permanent injunction was also prayed for.

5. It may be mentioned at this juncture that an application under

Order VI Rule 17 read with Section 151 of the Code of Civil

Procedure was filed on behalf of the petitioners/plaintiffs to amend the

plaint of CS(OS) 694/2005 on the ground that after receiving notice of

the said suit on 27.05.1999, the defendants had taken forcible

possession of another room on the first floor on 28.05.1999.

Accordingly, the relief in the said suit also stood amended to the

extent of seeking possession of two rooms and mesne profits @ `

5,000/- per month for each of the two rooms in question. The said

amendment was allowed by the Additional District Judge vide order

dated 29.03.2001. The amended plaint dated 05.06.1999 along with

the site plan were taken on record by the Court on 19.04.2001.

6. An application under Order I Rule 10 read with Section 151 of

the Code of Civil Procedure was also preferred in the aforesaid suit on

behalf of Smt. Prabha Devi Gupta, Smt. Sudesh Gupta and Shri

Rakesh Gupta on the ground of their being the owners of the property

in question, their ownership being predicated on the Will dated

10.09.1998. The said application was allowed by the Additional

District Judge by order dated 13.03.2002 and the applicants were

added as party-defendants to the suit.

7. Thereafter, the order of status quo in terms of possession only

(passed by the Additional District Judge on 03.06.1999) was made

absolute on 21.03.2003 by an order passed by the Civil Judge, the suit

having been transferred to the Civil Judge by reason of an amendment

in the pecuniary jurisdiction of the Courts in the National Capital

Territory of Delhi.

8. By an order dated 27.05.2004 passed in Test. Case No.33/1999

on an application filed under Section 24 of the Code of Civil

Procedure, 1908, the aforesaid Civil Suit (Civil Suit No.151 of 1999)

was transferred on 13.08.2004 to this Court and, as stated above,

registered as Civil Suit (Original Side) No.694/2005. CS(OS) No.588

of 1999 filed by the petitioners was also ordered to be consolidated

with CS(OS) No.694/2005 along with both the testamentary cases,

one filed by the petitioners and the other by the objectors. CS(OS)

No.588 of 1999 came to be re-numbered as CS9OS) No.695/2005 and

Test. Case No.145 of 1999 as Test. Case No.20 of 1999. The said

order reads as follows:-

"Present: Mr. Tarun Sharma for the petitioner.

Mr. Jai Kumar for the respondent.

IA No.3603/2004 in Test Case No.33/1999

This is an application filed by the petitioners praying for transfer of the Probate petition and the two suits which are pending before the Civil Judge and Additional District Judge, Tis Hazari Courts, Delhi to this Court as all these three suits pertain to the same property, namely, C-328, Kotla Mubarakpur, Nanak Chand Basti, Gali Sardhanand, New Delhi. The present petition is a probate petition relating to the same property at C-328, Kotla Mubarakpur, Nanak Chand Basti, Gali Sardhanand, New Delhi whereas the objectors herein have also filed a probate petition which is pending before the District Judge for recording evidence. There are two other suits which are filed and one of the said suits is pending before the Civil Judge, Tis Hazari Courts which is filed by the petitioners herein for possession, mesne profits and other suit is

filed by the petitioners for declaration, permanent injunction and cancellation.

As the subject-matter of all the three suits are same, therefore, in my considered opinion, all the four proceedings are required to be tried by the same Court after consolidating the said four cases. Ordered accordingly. The aforesaid proceedings as mentioned in paragraphs 2 and 3 of the application shall be transferred to this Court and shall be listed on 18th August, 2004 for directions.

A copy of this order be given DASTI to the counsel appearing for the parties.

-sd/-

(DR. MUKUNDAKAM SHARMA) JUDGE"

9. By a subsequent order dated 24.11.2004, all the four cases

which had been clubbed together by order dated 27th May, 2004 were

sent to the Local Commissioner for the recording of evidence.

10. Issues were framed in both the probate petitions as also in both

the suits, which are reproduced hereunder:-

TEST. CASE No.33/1999

"1. Whether the „Will‟ dated 1st July, 1996 is valid/genuine „Will‟ or not? OPP

2. Whether the Testator was empowered to cancel the „Will‟ dated 1st July, 1996 and executed a fresh „Will‟ dated 10th July, 1996 after the Testator had sold the property in question to the Petitioner on 1st July, 1996 for valid consideration? OPD

3. Relief."

TEST. CASE No.20/2005

"1. Whether the testator was empowered to make the will dated 10-9-1998 after he had sold the property in question on 1-7- 96 for a valid consideration to the objectors Ajay Gupta and Manish Gupta? OPP

2. Whether the will dated 10-9-98 is valid, genuine and binding one? OPP

3. Relief."

CS(OS) No.694/2005

"1. Whether the defendants are living in the suit property in the capacity of co- sharer/co-owner? OPD.

2. Whether the plaintiff is entitled for decree of possession as prayed? OPP.

3. Whether the plaintiff is entitled for recovery of possession as prayed? OPP.

4. Whether plaintiff is entitled for mesne profits from 1.2.1999, if yes at what rate? OPP.

5. Relief."

CS(OS) No.695/2005

"1. Whether the plaintiffs have become absolute owner of the suit property by virtue of the documents executed in their favour by deceased Ram Nath Gupta? OPP

2. Whether late Ram Nath Gupta was empowered to cancel the Will dated 1.7.1996 executed in favour of the

plaintiffs with regard to suit property, if so its effect? OPD

3. Whether the second Will dated 10.9.1998 executed by late Ram Nath Gupta is invalid and inoperative? OPP

4. Whether the defendants are owners of the suit property by operation of law or by virtue of Will dated 10.9.1998? OPD

5. To what relief the plaintiffs are entitled to."

11. A look now at the evidence adduced by the petitioners/plaintiffs

who sought to substantiate their case by examining six witnesses. The

first witness examined by the petitioners was PW1 Shri Ajay Gupta

(the petitioner No.1), who testified that the testator was his maternal

grandfather, who died on 1st February, 1999. The death certificate of

the testator was Ex.PW1/1. The financial position of the testator was

not so good in the year 1996, therefore, he wanted to dispose of his

property bearing No.C-328, Kotla Mubarakpur, Nanak Chand Basti,

Gali Sardhanand, New Delhi. He (PW1) proposed to his maternal

grandfather that since he intended to sell the property to strangers, it

would be better that he sold the same to him. The sale consideration

of ` 3 Lacs was proposed by his maternal grandfather; the sale

transaction was formally completed on 1st July, 1996 by his

grandfather executing various documents in his favour and in favour

of his brother. The documents executed were Will dated 1st July, 1996

(Ex.PW1/2), which was executed before the Sub-Registrar, Vikas

Sadan, INA in his presence and he identified the signatures of his

grandfather at Point „A‟ on the said Will. The Will was signed in the

presence of the attesting witnesses, Mr. Lalit Kumar Malik and Dr.

B.S. Tanwar Verma. The said witnesses along with the testator had

also signed in his presence. The signatures of Dr. B.S. Tanwar Verma

and Mr. Lalit Kumar Malik as witnesses to the Will were at Point „B‟

and „C‟ respectively. The thumb impression on the Will had also been

put on this document by the testator in his presence at the time of the

execution of the Will. The testator was in perfect mental condition

when he executed the Will and the other documents including the

Agreement to Sell, General Power of Attorney, Possession Letter,

Receipt and an Affidavit (Ex.PW1/3 to Ex.PW1/7). The signatures of

the testator were at Point „D‟, „E‟ and „F‟ respectively in the General

Power of Attorney, which document had also been signed by the

testator in the presence of the witnesses, Dr. B.S. Tanwar Verma and

Mr. Lalit Kumar Malik, whose signatures were at Point „G‟ and „H‟.

The rest of the sale transaction documents were also duly witnessed

by Dr. B.S. Tanwar Verma and notarized by Mr. S.P. Singh, Advocate

as Notary. The possession letter was signed by the testator at Point

„I‟; and while taking over the possession, they (the petitioners) had

also signed in the presence of each other at Point „J‟. The

consideration amount had been duly paid by him and his brother in

cash to the testator and the receipt signed by the testator at Point „K‟

in the presence of Dr. B.S. Tanwar Verma and Mr. S.P. Singh,

Advocate. The Agreement to Sell had been signed by the testator in

favour of the petitioners at Point „L‟ and in the presence of Dr. B.S.

Tanwar Verma and Mr. S.P. Singh. The consideration amount paid to

the testator had been duly reflected in the Agreement to Sell at Point

„N‟.

12. PW1 Shri Ajay Gupta further deposed that the sale transaction

had been reflected by him and his brother in their Income-Tax

Returns. The list of near relations was exhibited by him as Ex.PW1/8,

the details of the immovable properties forming the subject matter of

the Will left behind by the testator as Ex.PW1/9, the Declaration and

Affidavit of Dr. B.S. Tanwar Verma in support of the will as

Ex.PW1/10 and Ex.PW1/11, and the Declaration and Affidavit of Mr.

Lalit Kumar Malik as Ex.PW1/12 and Ex.PW1/13. In support of the

sale transaction, the testator had executed an Affidavit which was

exhibited by the witness as Ex.PW1/7 and the signatures of the

testator on the said affidavit identified by the witness at Points „O‟ and

„P‟. Finally, the witness deposed that Will Ex.PW1/2 along with other

documents had not been cancelled by the testator to his knowledge.

13. PW4 Shri Manish Gupta (the petitioner No.2) deposed on

similar lines as PW1 Shri Ajay Gupta and testified that he along with

his brother Shri Ajay Gupta had purchased the immovable property

belonging to his grandfather with respect to which various documents

including Will Ex.PW1/2, Irrevocable General Power of Attorney

Ex.PW1/4, Agreement to Sell Ex.PW1/3, Possession Letter

Ex.PW1/5, Receipt Ex.PW1/6 and Affidavit Ex.PW1/7 were executed

by late Shri Ram Nath Gupta in their favour for a consideration

amount of ` 3 Lacs. He stated that the said sale transaction had been

duly reflected by him and his brother in their respective Income-Tax

Returns which he had brought to the Court. The aforesaid documents

witnessing the sale transaction had not been cancelled by the testator

to his knowledge. He identified the signatures of the testator and

those of the attesting witnesses on all the aforesaid documents and his

own signatures on the Agreement to Sell Ex.PW1/3 at Point „M‟ and

the Possession Letter Ex.PW1/5 at Point „J‟. He stated that the

possession of the said property had been handed over to them on the

same day and they were still residing in the same property as its

absolute owners.

14. In the course of the extensive cross-examination of PW1 Shri

Ajay Gupta and the cross-examination of PW4 Shri Manish Gupta,

nothing worthwhile could be elicited from the said witnesses so as to

detract in any manner from the case set up by them. A suggestion was

put to PW1 Shri Ajay Gupta that he had taken the testator to the office

of the Sub-Registrar "forcibly" for the purpose of executing the Will

dated 01.07.1996 in his favour. A suggestion was also put to him that

the Testator had executed the said Will "without understanding its

contents". A further suggestion was put that Will Ex.PW1/2 was not

signed and executed by late Mr. Ram Nath Gupta "of his own free

will, volition, accord and knowledge". All the aforesaid suggestions

were denied by the witness as also the suggestion that Will Ex.PW1/2

stood cancelled and the alleged Will dated 10.09.1998 had overriding

effect.

15. PW4 Shri Manish Gupta, as stated above, was also subjected to

extensive cross-examination. A number of suggestions were put to

the witness, including the suggestion that late Shri Ram Nath Gupta

was taken by him on 01.07.1996 to the office of the Sub-Registrar

under the pretext of standing witness to a document and was made to

sign Will Ex.PW1/2 "on misrepresentation". A query was also put to

the witness that the alleged Will when it was got signed from late Shri

Ram Nath Gupta, it was not read to him nor he had read the same. A

suggestion was also put to the witness that the original draft of the

Will had already been prepared and it was got signed from late Shri

Ram Nath Gupta at his residence, that is, C-328, Kotla Mubarakpur,

New Delhi on 01.07.1996. All the aforesaid suggestions and queries

were categorically rebutted by the witness and his testimony emerged

unscathed after cross-examination.

16. Apart from examining themselves as witnesses, the petitioners

produced in the witness-box both the attesting witnesses to the Will

propounded by them, namely, PW2 Mr. Lalit Kumar Malik and PW3

Dr. B.S. Tanwar Verma. Both the said witnesses in one voice deposed

that they had signed as attesting witnesses on the Will dated

01.07.1996 (Ex.PW1/2) and identified their respective signatures on

the said Will as also the signatures of each other and the signatures of

the testator. Both stated that they had signed in the presence of each

other and in the presence of the testator before the Sub-Registrar and

that apart from the Will Ex.PW1/2, General Power of Attorney

Ex.PW1/4 was also signed by them. They stated that the object of

executing the Will Ex.PW1/2, Agreement to Sell Ex.PW1/3, General

Power of Attorney Ex.PW1/4, Possession Letter Ex.PW1/5, Receipt

Ex.PW1/6 and Affidavit Ex.PW1/7, which also bear their signatures,

was to affect and witness the sale transaction of the property bearing

No.C-328, Kotla Mubarakpur, New Delhi.

17. Significantly, PW2 Mr. Lalit Kumar Malik stated the testator

was in a sound disposing mind at the time of the execution of the

aforesaid documents and that documents Ex.PW1/12 and Ex.PW1/13

also bear his name and seal. PW3 Dr. B.S. Tanwar Verma reiterated

that the testator was in a sound disposing mind and deposed that an

amount of ` 3 lacs in cash was also given to the testator in his

presence at the time of the execution of the receipt. He identified his

signatures on Ex.PW1/10 and Ex.PW12. Most importantly, PW3 Dr.

B.S. Tanwar Verma categorically stated that he had no knowledge

about the execution of any other Will by late Shri Ram Nath

Gupta except Will Ex.PW1/2 nor he was an attesting witness to

any other Will or any other document with regard to property

bearing No.C-328, Kotla Mubarakpur, New Delhi.

18. PW2 and PW3 though cross-examined by the counsel for the

respondents at length withstood the test of the cross-examination.

PW2 Shri Lalit Kumar Malik in the course of his cross-examination

identified his seal on the Will Ex.PW1/2 at Point „C1‟; and PW3 in the

course of his cross-examination stated that he was known to the

testator for the last about ten years. On a query put to him by the

counsel for the Objectors, PW3 categorically stated that late Shri

Ram Nath Gupta had not come to him for cancellation of any

document or execution of any further document on 10th

September, 1998 and that the photocopy of the alleged Will and

alleged cancellation of Will dated 10th September, 1998 did not

bear his signatures. To be noted at this juncture that an objection

was raised by the counsel for the plaintiff to putting the aforesaid

documents to the witness on the ground that these were photocopies

and not the originals. Notwithstanding, the originals were not put to

the witness for identification of his signatures by the counsel for the

respondents/Objectors.

19. PW5 Smt. Usha Gupta, the mother of the petitioners and

daughter of late Shri Ram Nath Gupta appeared next in the witness-

box to identify the signatures of her father on Will Ex.PW1/2 at Point

„A‟ and to testify that late Shri Ram Nath Gupta had told her that he

had executed the Will along with other documents, which also

included Irrevocable General Power of Attorney in favour of Shri

Ajay Gupta and Shri Manish Gupta, and all the said documents had

been shown to her by her father as sale transaction of the property

bearing No.C-328, Kotla Mubarakpur, New Delhi. She further

testified that her father late Shri Ram Nath Gupta had also told her

that the Will along with the GPA were irrevocable and that he had not

executed any other Will or document except those executed by him on

1st July, 1996. She stated that at the time of the execution of the

aforesaid documents, her father was in sound disposing mind. PW5

was also extensively cross-examined but to no avail and her testimony

also withstood the test of cross-examination.

20. Mr. Ramesh Chand from the office of Sub-Registrar V, Vikas

Sadan, INA was next examined as PW6, who proved on record the

registration of the Will in the records of the Sub-Registrar at

Registration No.8829, Volume 622, Page Nos.125-126, Additional

Book No.III, dated 01.07.1996 and the registration of the General

Power of Attorney executed by late Shri Ram Nath Gupta at

Registration No.9714, Additional Book No.-IV, Volume 724, Page

Nos.162-164 dated 01.07.1996. He testified that the copy of the Will

and the copy of the GPA were maintained by the Sub-Registrar‟s

Office in due course of business and both were intact and in order. He

had compared the original Will Ex.PW1/2 with the Will retained in

the Sub-Registrar‟s office and the original Power of Attorney

Ex.PW1/4 with the retained copy of the GPA and both the said

documents were the same as those maintained by the Sub-Registrar.

21. After examining the aforesaid witnesses, the

petitioners/plaintiffs closed their evidence.

22. On behalf of the defendants, DW1 Smt. Sudesh Gupta appeared

in the witness box to tender in evidence her examination-in-chief in

the form of an affidavit dated 17.05.2003 while DW2 Shri Rakesh

Gupta too tendered in evidence his affidavit dated 17.05.2003. The

sum and substance of the contents of the affidavit by way of evidence

dated 17.05.2003 of DW1 Smt. Sudesh Gupta is as follows.

23. Late Shri Ram Nath Gupta had firstly executed the registered

Will dated 01.07.1996, "which was executed under force, pressure

and coercion from Ajay Gupta, Manish Gupta and Smt. Usha Gupta."

The said registered Will dated 01.07.1996 had been cancelled by the

executant late Shri Ram Nath Gupta by the cancellation of Will dated

10.09.1998, which was also registered in the office of the Sub-

Registrar, New Delhi on 10.09.1998. After the cancellation of the

said Will, late Shri Ram Nath Gupta executed his last and final Will

dated 10.09.1998, which was also duly registered in the office of the

Sub-Registrar, New Delhi; and the said Will had been signed by two

witnesses, namely, Shri Bijender and Dr. B.S. Tanwar, Advocate.

According to the Will dated 10.09.1998, the immovable and movable

properties of late Shri Ram Nath Gupta had devolved upon the

objectors viz., Smt. Prabha Devi Gupta, Shri Rakesh Gupta and

herself in equal shares. Late Shri Ram Nath Gupta debarred his

daughter Smt. Usha Gupta and her aforesaid sons, that is, Shri Ajay

Gupta and Shri Manish Gupta from the aforesaid property in the said

Will. The alleged documents, viz., Agreement to Sell, Receipt,

General Power of Attorney were "absolutely forged and fabricated

documents which have been manipulated by Shri Ajay Gupta and

Manish Gupta - both sons of Smt. Usha Gupta, after the death of late

Shri Ram Nath Gupta, with an intention to grab the entire immovable

property aforementioned in their favour."

24. DW1 Smt. Sudesh Gupta in her cross-examination stated that

she was married to the defendant No.1, Shri Prabhakar Gupta on 22nd

February, 1976 and had never left her husband‟s house at Ferozabad

except for occasional visits to her near and dear ones. She stated that

Shri Rakesh Gupta was not her real brother but was her cousin

(Chacha‟s son). She further stated that Shri Ajay Gupta and Shri

Manish Gupta had obtained the documents exhibited as Ex.PW1/2,

Ex.PW1/3, Ex.PW1/4, Ex.PW1/5, Ex.PW1/6 and Ex.PW1/7

"forcibly". She further stated that during her visit to Delhi on one

occasion her father had told her that Shri Ajay Gupta and Shri Manish

Gupta had got his signatures on three or four "blank papers", but she

did not remember whether this fact was told to her by her father in the

year 1996 or 1997 or 1998 or 1999. On further cross-examination, she

stated that Shri Rakesh Gupta had never told her about the forcible

execution of any document by her late father in favour of Shri Ajay

Gupta and Shri Manish Gupta on 1st July, 1996 or thereafter; and she

did not know whether her father had told Shri Rakesh Gupta about the

forcible execution of documents on 1st July, 1996. She could not say

whether her father had informed anyone else about the forcible

execution of documents dated 1st July, 1996.

25. DW2 Shri Rakesh Gupta in his affidavit by way of evidence,

tendered by him as his examination-in-chief, stated that late Shri Ram

Nath Gupta had cancelled the previous Will dated 01.07.1996 as per

the Cancellation of Will dated 10.09.1998 and on the same date had

executed his last and final Will dated 10.09.1998 duly registered by

the Sub-Registrar, INA, New Delhi and bequeathed the immovable

property bearing No.C-328, Kotla Mubarakpur, New Delhi in his

favour and in favour of Smt. Prabha Devi Gupta and Smt. Sudesh

Gupta. The Will dated 10.09.1998 was duly witnessed by two

attesting witnesses. The Will dated 01.07.1996 and the Agreement to

Sell, General Power of Attorney and Receipt were "manufactured,

forged and fabricated documents and manipulated by the petitioners

with an illegal design to grab the property of late Shri Ram Nath

Gupta..................... Shri Ram Nath Gupta had never received any

consideration amount in respect of the said immovable property nor

had executed any documents of sale in respect of the said property."

26. In his cross-examination, DW2 Shri Rakesh Gupta stated that

the three sisters, namely, Smt. Usha Gupta (PW5), Smt. Sudesh Gupta

(DW1) and Smt. Prabha Gupta were his cousins. He stated that

Ex.PW1/2 had been "forcibly" executed by Shri Ram Nath and this

was told to him by late Shri Ram Nath on the wedding of his daughter

on 27th January, 1999. He categorically denied the suggestion that all

the original documents pertaining to the sale transaction dated 1st July,

1996 had been executed by late Shri Ram Nath Gupta.

27. The only other witness examined by the defendants was Shri R.

Seshadri from the office of the Sub-Registrar VII, INA, Vikas Sadan,

New Delhi, who proved on record the registration of Will dated 10th

September, 1998 vide Registration No.7039, Volume 96, Pages 155 to

157 dated 10.09.1998. The said witness further deposed that he had

seen the photocopy of cancellation of Will dated 10.09.1998 Mark B

and that it tallied with the document registered by the Sub-Registrar

vide Registration No.7038, Volume 96, Page 154.

28. It may be noted at this juncture that after the recording of the

evidence both the civil suits bearing CS(OS) 694/2005 and CS(OS)

695/2005 along with testamentary cases registered at Nos.33/1999 and

20/2005 were dismissed by this Court by an order dated 21.11.2011

for default of appearance of the parties. Thereafter, the

plaintiffs/petitioners having applied for the restoration of the two suits

and the testamentary case instituted by them, in terms of an order

dated 12.04.2012 the said three cases were after service of notice on

the counsel for the defendants/objectors restored to their original

numbers for being heard and finally decided. No application was,

however, moved by the defendants/objectors for the restoration of

Testamentary Case No.22/2005 nor they appeared before the Court at

the time of hearing of the aforesaid matters. Accordingly, this Court

had no option except to hear the counsel for the plaintiffs/petitioners

and to scrutinize the evidence of both the parties.

29. From the conspectus of facts and circumstances emerging from

the evidence of the parties, certain glaring facts need to be noted at the

outset. The first is that the execution of the Will dated 01.07.1996

has been proved to the hilt. Both the attesting witnesses to the said

Will, namely, PW2 Mr. Lalit Kumar Malik and PW3 Dr. B.S. Tanwar

Verma have stated in their sworn testimonies that Will Ex.PW1/2 was

executed by late Shri Ram Nath Gupta in their presence and that they

had signed as attesting witnesses to the said Will in the presence of the

testator. Both the attesting witnesses have also affirmed that the

testator was in a sound disposing mind at the time of the execution of

the Will. The Will is a registered document duly executed and

registered before the Sub-Registrar, Vikas Sadan, INA; and no

suspicious circumstance has either been pleaded or proved by the

objectors/defendants to cast any shadow of cloud on the execution of

the Will, except to state that a subsequent Will was executed by the

testator on 10.09.1998 duly registered before the Sub-Registrar after

the cancellation of the Will dated 01.07.1996. The

objectors/defendants have, however, failed to prove the execution of

the Will dated 10th September, 1998. The said Will purports to be

signed by two attesting witnesses, namely, Shri Bijender and Dr. B.S.

Tanwar Verma (PW3). PW Bijender was not summoned in the

witness-box to depose about the execution of the Will by the testator

and no ostensible reason has been cited as to why the said witness was

not brought into the witness-box to testify about the execution of the

Will by late Shri Ram Nath Gupta. As regards PW3 - Dr. B.S.

Tanwar Verma, the said witness was not produced as a witness of the

objectors. He appeared in the witness-box to depose about the Will

dated 01.07.1996 and the other documents relating to the sale

transaction effected in favour of the petitioners by late Shri Ram Nath

Gupta. In his examination-in-chief itself, he clearly stated:-

"I have no knowledge as to the execution of any other Will by Shri Ram Nath Gupta except the (sic.) Ex.PW1/2 nor I am attesting witness to any other Will or any other document in regard to property bearing No.C-328, Kotla Mubarakpur, New Delhi."

30. On being cross-examined by the learned counsel for the

objectors, he stuck to the stand adopted by him in his examination-in-

chief and nothing could be elicited from him to cast any doubt on the

veracity of his statement made on oath in his examination-in-chief.

The relevant extract of his cross-examination is as follows:-

"After the execution of the documents, Mr. Ram Nath Gupta did not come to me for cancellation of any document or execution of further document. Shri Ram Nath Gupta did not come to me on 10th September, 1998 for cancellation of the will Ex.PW1/2 and execution of fresh will dated 10th September, 1998. The photocopy of the alleged will and alleged cancellation of will dated 10th September, 1998 at Point encircled A does not bear my signatures. (The ld. counsel for the plaintiff has also objected for putting up of the documents to the witness on the ground that these are the photocopies and not the original. The objection is taken on record.) I was not paid any fees for standing as an attesting witness to the documents executed by Shri Ram Nath Gupta on 1st July, 1996. No document was seen by me for knowing the identity of Shri Ram Nath Gupta. Volunteered:- as he was already known to me for the last about ten years. It is wrong to suggest that the will Ex.PW1/2 was executed by someone else impersonating as Mr. Ram Nath Gupta and that it was not executed by Mr. Ram Nath Gupta. I know Mr. Lalit Kumar Malik, the other attesting witness to the will, Ex.PW1/2. Ex.PW1/2 was signed by Shri Ram Nath Gupta before the Sub- Registrar in my presence and in the presence of other attesting witness. I always sign in the format given at Point B of Ex.PW1/2 and not in any other format........................."

31. It is trite that if a person owning a property executes an

Agreement to Sell and executes an Irrevocable Power of Attorney in

respect of the same property in favour of the same person and/or his

near relative, then he cannot cancel or revoke the Power of Attorney

on account of interest or right created in the subject matter so as to

prejudice the said interest. It was so laid down by a Division Bench of

this Court in Harbans Singh vs. Shanti Devi, 1977 Rajdhani Law

Reporter 487. In the said case, Hon‟ble Mr. Justice V.S. Deshpande

(as His Lordship then was) was dealing with a question as to whether

both the General and Special Power of Attorney or either of them

which had been executed by the appellant in favour of the husband of

the respondent were or was cancelled validly by the appellant. An

Agreement to Sell of immovable property had been executed in favour

of the respondent by the appellant, who had also executed a General

Power of Attorney and a Special Power of Attorney in favour of the

respondent‟s husband. The Court held that the answer to this question

depends upon the construction of Section 202 of the Contract Act,

particularly on the meaning of the word "interest" used therein. The

following extract from the judgment is apposite and is accordingly

reproduced hereunder:-

"9. In jurisprudence, the word "interest" simply means an advantage or a benefit. "Interests" are things which are to a man's advantage, he has an interest in his freedom or his reputation. His rights to these, if he has such rights, protect the interests, which accordingly form the subject of his rights but are different from them. To say he has an interest in his reputation means that it is to his advantage to enjoy a good name. "However, every interest of a person may not become a right. It is only those interests which are legally recognised and/or are legally protected or enforced which amount to legal rights. (Salmond on Jurisprudence, 12th Ed., P.217). German Jurist Jhering viewed law as a reconciler of conflicting interests. Roscoe Pound regards human disorders and claims as interests which exist independently of the law and which are constantly "pressing for recognition and security" (Philosophy of Law, revised Edition, 1954). In the American Restatement of the Law of Torts (Second Edition, 1965) the word "interest" is used to denote the object of any human desire.

10. For the purposes of the Law of Contract, therefore, it would not be useful to restrict the meaning of the word "interest" by the narrow compass in which this world is used at times in relation to immovable property. For instance, the last sentence of section 54 of the Transfer of Property Act states that a contract for sale of itself does not create any interest in or charge on immovable property. Similarly, section

17(1)(b) of the Registration Act makes only those documents compulsorily registerable which create, declare, assign, limit or extinguish any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immovable property. Since an agreement for sale does not create such a right, title or interest, it may not be compulsorily registerable. But in the context of the Contract Act, it cannot be said that a person who is the beneficiary of an agreement of sale has no right or interest in the subject-matter of the sale. He has a legally enforceable right and interest in enforcing the contract of sale by the execution of a sale deed and in getting possession of the property agreed to be sold under the provisions of the Specific Relief Act. In the English Common Law, the specific performance of contracts was a part of the law of contract. This is why Chapter IV of the Contract Act deals with the performance of contracts which includes the performance of contracts relating to immovable property also. In fact, section 4 of the Transfer of Property Act says that the chapters and sections of that Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872. Therefore, the respondent in whose favor the appellant had executed an agreement for the sale of an immovable property had an interest in the subject-matter of the contract, namely, the shop, turn the purposes of section 202 of the Contract Act if not for the purposes of the Transfer of Property and the Registration Act.

11. In Loonkaran Sethiya v. State Bank of Jaipur, (1969) 1 S.C.R. 122, the respondent bank was given an irrevocable power of

attorney by the appellant. For, the appellant had borrowed money from the bank. He had empowered the bank to recover money due to him from his debtor by executing a decree in which he was the decree-holder. The word "interest" under section 202 of the Contract Act was construed as follows at page 126 of the report:-

"There is hardly any doubt that the power given by the appellant in favor of the Bank is a power coupled with interest. That is clear both from the tenor of the documents as well as from its terms. It is settled law that where the agency is created for valuable consideration and authority is given to effectuate a security or to secure interest of the agent, the authority cannot be revoked."

12. The statement of law reproduces the English Common Law as would be evident from a reference to Article 135 in Bowstead or agency, Fourteenth Edition, the relevant part of which is as follows:

"Where the authority of an agent is given by deed, or for valuable consideration, for the purpose of effectuating any security, or of protecting or securing any interest of the agent, it is irrevocable during the subsistence of such security or interest. But it is not irrevocable merely because the agent has an interest in the exercise of it, or has a special property in, or lien for advances upon, the subject- matter of it, the authority not being given expressly for the purpose of securing such interest or advances. (2)Where a power of attorney, whenever created is

expressed to be irrevocable and is given to secure a proprietary interest of the donee of the power, or the performance of an obligation owed to the donee, then, so long as the donee has that interest, or the obligation remains undischarged, the power is irrevocable."

13. All the conditions of irrevocability are satisfied in the present case. The authority to the agent was given for valuable consideration which proceeded from the .respondent. It was given for the purpose of effectuating security or protecting or securing the interest of the agent. For, the only purpose of the agency was to ensure and secure the performance of the contract by the appellant in favor of the respondent for whom Shri Gulati was acting as the husband and the nominee and, therefore, a representative or an agent. Where the performance of the agency is not to secure the interest or the benefit of the agent then the agency is not irrevocable merely because the agent has an interest in the exercise of it or has a special property in or lieu for advances upon the subject-matter of it."

32. The aforesaid dicta laid down in the case of Harbans Singh

(supra) that where the Power of Attorney has been conferred not for

the benefit of the principal but for the benefit of the agent representing

a third party and not representing the principal, the power becomes

irrevocable, irrespective of the fact whether the General Power of

Attorney was expressly made irrevocable or not was followed in a

subsequent judgment of this Court rendered in the case of Prem Raj

vs. Babu Ram reported in 1991 Rajdhani Law Reporter 458. Thus, it

stands established that under Section 202 of the Contract Act where

the agent himself has an interest in the property which forms the

subject matter of the agency, the agency cannot, in the absence of an

express contract to the contrary, be terminated so as to cause prejudice

to such interest. The present case is on a better footing in that it is

specifically mentioned in the Power of Attorney issued in favour

of the petitioners that the Power of Attorney is irrevocable in

nature. It is also established on record that the Power of Attorney

was executed by late Shri Ram Nath Gupta for consideration and the

objectors/defendants must, therefore, show some strong ground for

revocation of the said Power of Attorney. In the present case, the

objectors/defendants though allege that the earlier Will was revoked

by late Shri Ram Nath Gupta, there is nothing on record to show that

the Power of Attorney which was irrevocable was revoked by the

testator.

33. There is also nothing on record to suggest that the Will

Ex.PW1/2 and the other documents relating to the sale transaction,

viz., Agreement to Sell Ex.PW1/3, Irrevocable Power of Attorney

Ex.PW1/4, Possession Letter Ex.PW1/5, Receipt Ex.PW1/6 and

Affidavit Ex.PW1/7 were got executed from the testator "forcibly" as

alleged by the objectors/defendants. There is also not an iota of

evidence on record to bear out the contention of the

objectors/defendants that the testator had execute the said documents

under force, pressure and coercion from the petitioners and/or their

mother Smt. Usha Gupta. The testator in fact lived for about two and

a half years subsequent to the execution of the Will Ex.PW1/2 and the

related documents. The evidence on record noticed hereinabove

clearly demonstrates that he complained to none about any force,

pressure or coercion from the side of the petitioners or that he was

made to sign any documents forcibly and against his wishes. The

affidavit duly sworn by the testator Ex.PW1/7 also lends credence to

the version of the petitioners that a sale transaction had been effected

between the petitioners and their grandfather, who at that age was in

need of finances. The fact that the immovable property C-328, Kotla

Mubarakpur is shown in the income-tax returns of both the petitioners

further fortifies the case of the petitioners. Most importantly, the

objectors/defendants failed to carry out the admission/denial of

documents filed by the plaintiffs as enjoined upon them in accordance

with the Code of Civil Procedure. The plaintiffs filed and relied upon

the same documents in all the three cases. In the circumstances, by an

order dated 13.01.2003, it was ordered that the documents filed by the

plaintiffs are deemed to have been admitted by the objectors under

Order XII Rule 2A CPC. The objectors/defendants at no point of time

sought recall or review of the said order for reasons best known to

them and, thus, as on date all documents filed by the plaintiffs must be

taken to be true and genuine documents.

34. Adverting to the Will set up by the objectors/defendants dated

10.09.1998 and the Cancellation Deed of the same date, suffice it to

state that the registration of the said documents alone cannot help to

further the case of the objectors. Not a single independent witness has

been examined by the objectors to substantiate their case that a

subsequent Will was executed by the testator towards the fag end of

his life. On the contrary, there is evidence on record to show that the

testator who had all along lived with the petitioners and/or their

mother Smt. Usha Gupta was taken away by the objectors/defendants

to Ferozabad for a period of about three months immediately before

his demise. The petitioners allege that the Will dated 10.09.1998 and

the Cancellation Deed bearing the same date were executed during

this period. Be that as it may, the mere registration of the said

documents without any proof of their execution by the testator in the

presence of any attesting witnesses is of no avail to the objectors.

Accordingly, this Court is of the opinion that the Will dated 1st July,

1996 is the valid/genuine Will of the testator and the testator did not

cancel the Will dated 1st July, 1996 nor executed a fresh Will dated

10th September, 1998 nor in fact the testator could have done so on

account of the fact that the testator had already sold and bequeathed

the property in question to the petitioners on 1st July, 1996 for valid

consideration. Issue Nos.1 to 3 in Testamentary Case No.33/1999 are

decided accordingly.

35. Insofar as the issues framed in CS(OS) No.694/2005 are

concerned, Issue Nos.2 and 3 are decided by holding that the plaintiffs

are entitled to a decree of possession as prayed for by them. The

necessary corollary is that Issue No.1 is decided against the

defendants by holding that the defendants are not living in the suit

property in the capacity of co-sharers/co-owners. However, no

evidence having been adduced by the plaintiffs with regard to mesne

profits claimed by them, no finding is being returned on Issue No.4.

36. As regards the issues framed in CS(OS) No.695/2005, Issue

No.1 is decided by holding that the plaintiffs have become absolute

owners of the suit property by virtue of the documents executed in

their favour by deceased Ram Nath Gupta. The onus of proving Issue

Nos.2, 3 and 4 was upon the defendants and it is held that the

defendants have miserably failed to discharge the said onus. Issue

Nos.2, 3 and 4 are accordingly decided against the defendants by

holding that late Shri Ram Nath Gupta was not empowered to cancel

the Will dated 01.07.1996 executed in favour of the plaintiffs with

regard to the suit property and the second Will dated 10.09.1998

executed by late Shri Ram Nath Gupta is, therefore, invalid and

inoperative and no ownership rights have devolved upon the

defendants either by operation of law or by virtue of the said Will.

37. As regards Testamentary Case No.20/2005 filed by the

objectors/defendants, as noted above, the said case was dismissed in

default on 21.11.2011 when Testamentary Case No.33/1999, CS(OS)

No.694/2005 and CS(OS) No.695/2005 also instituted by the

plaintiffs/petitioners were also dismissed in default. The objectors did

not file any application for restoration of the Testamentary Case

instituted by them, but the remaining three cases instituted by the

plaintiffs were restored by the Court on the application filed by the

plaintiffs after issuance of notice to the objectors/defendants

through their counsel. Be that as it may, it deserves to be noted that

the issues in the said case, which have been reproduced hereinabove,

are overlapping with the issues in Testamentary Case No.33/1999 and

CS(OS) No.695/2005 and the same no longer survive for

consideration.

38. In the result, in Probate Case No.33/1999, Letters of

Administration of the Will dated 1st July, 1996 of the estate of late

Shri Ram Nath Gupta are issued in favour of the petitioners No.1 and

2. In CS(OS) No.694/2005, a decree of possession is passed in favour

of the plaintiffs and against the defendants in respect of the two rooms

portion on the First Floor of the Suit Property, i.e., C-328,

Shradhanand Gali, Kotla Mubarakpur, New Delhi, which have been

more particularly shown in red colour in the site plan attached with the

suit. The defendants, their associates, agents, representatives, etc. are

also restrained by a decree of permanent injunction from disposing of,

transferring, selling, alienating, sub-letting, assigning or otherwise

parting with the possession of the said two rooms portion on the First

Floor of the Suit Property. In CS(OS) No.695/2005, a decree of

declaration is passed in favour of the plaintiffs and against the

defendants declaring that the plaintiffs are the exclusive lawful owners

of the entire Suit Property bearing No. C-328, Shradhanand Gali,

Kotla Mubarakpur, New Delhi as per the site plan attached with the

plaint with a direction to the Sub-Registrar, INA, Vikas Sadan, New

Delhi to cancel the written instrument/Will dated 10.09.1998,

registered on 10.09.1998 vide registration No.7039, Volume 96, Book

III on Pages 155 to 157. The petitioners/plaintiffs are also held

entitled to costs in all the aforesaid legal proceedings.

39. Probate Case No.33/1999, CS(OS) No.694/2005 and CS(OS)

No.695/2005 stand disposed of in the above terms.

REVA KHETRAPAL JUDGE JULY 05, 2012 km