Sh. Prem Prakash vs Smt. Champa Devi & Ors.
2012 Latest Caselaw 4427 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           CS(OS) No.2153/1989

%                                                        26th JULY, 2012

SH. PREM PRAKASH                                    ...... Plaintiff
                            Through:     Mr. Ravi Varma, Adv.


                            VERSUS

SMT. CHAMPA DEVI & ORS.                                  ...... Defendants.
                  Through:                   Mr. Ankit Jain, Adv. for D-2 to 8.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.

The present suit for partition, rendition of accounts and

permanent injunction has been filed by Sh.Prem Prakash son of late Lala

Gobind Sahai against his mother/defendant no.1/Smt. Champa Devi,

defendants no.2 to 8 who are the legal heirs of Sh.Om Prakash deceased

brother of the plaintiff, and, defendants no. 9 to 12 who are the sisters of

the plaintiff (and the deceased Sh.Om Prakash) and daughters of Lala

Gobind Sahai and the defendant no.1/Smt. Champa Devi.

2. The dispute in the present suit concerns the property bearing

no.1729, Naya Bazar, Delhi-6 admeasuring approximately 310 sq.yds

(hereinafter the 'suit property').

3. The case of the plaintiff in the suit is that the suit property

was originally owned by Lala Gobind Sahai. Lala Gobind Sahai died

intestate on 24.6.1959 leaving behind his widow Smt. Champa

Devi/defendant no.1, the plaintiff-Sh.Prem Prakash (son) and another

son-Sh.Om Prakash, and four daughters namely Smt.Sumitra Devi, Smt.

Maya Devi, Smt. Sharda Devi and Smt Pushpa Devi-defendants no.9 to

12.

4. It is alleged in the plaint that on the death of Lala Gobind

Sahai, his widow Smt. Champa Devi and his children being two sons and

four daughters, as stated above, became equal co-owners of the suit

property. It is further pleaded in the plaint that thereafter three daughters,

except one daughter i.e. defendant no.11-Smt. Sharda Devi, executed

relinquishment deeds dated 4.7.1986 relinquishing their shares in the suit

property in favour of the plaintiff, defendant no.1 and Smt. Godavari

Devi, widow of late Sh. Om Prakash. The plaintiff also in the plaint

pleaded that the defendant no.11- Smt. Sharda Devi by an oral settlement

had relinquished her rights in favour of her two brothers and the mother -

a position agreed to by the defendants no. 2 to 8 in their written

statement. Plaintiff hence seeks partition of the suit property by claiming

that the plaintiff had 1/3rd share in the same, 1/3rd share was to belong to

the defendant no.1-Smt. Champa Devi, and, 1/3rd share was said to be

jointly belonging to defendants no.2 to 8 and who are the legal heirs of

the deceased Sh.Om Prakash. I may state, since the defendants no.2 to 8

agree that the defendant no.11 agreed orally to relinquish her share in

favour of plaintiff and branch of the other deceased brother Sh. Om

Prakash and the mother, I would be allocating no share to the said Smt.

Sharda Devi inasmuch as she has not appeared in these proceedings

except for filing a written statement, and therefore, I am accepting the

common case of the plaintiff and defendants no. 2 to 8 that the defendant

no.11 will inherit no share in the suit property.

5. It is at this stage necessary to mention an important aspect

that, Smt. Champa Devi who appeared as defendant no.1 in the suit; filed

her written statement supporting the plaintiff; died during the pendency

of the suit. The plaintiff set up a Will dated 8.10.1987 of the mother Smt.

Champa Devi, and as per which Will, the 1/3rd share of the mother Smt.

Champa Devi was said to have been bequeathed in favour of the plaintiff.

The plaintiff as on today thus claims 2/3rd share in the suit property.

6. The defendants no. 2 to 8 are the contesting defendants. As

per their case, there was an oral family settlement on 31.5.1972, and as

per which family settlement, their predecessor-in-interest namely Sh.Om

Prakash became the sole and exclusive owner of the suit property. There

is no other case existing in the pleadings of the defendants no. 2 to 8

except the plea of oral settlement dated 31.5.1972, and, even at the stage

of final arguments no other plea was raised on behalf of the defendants

no. 2 to 8.

7. Issues were framed in this case on 28.2.1994 and 24.1.1996.

These issues read as under:-

28.2.1994

1. Whether the plaintiff is entitled to 1/3rd share of the property in dispute.

2. Relief.

24.1.1996

1. Whether the plaintiff is the heir of deceased Gobind Sahai?

2. What are the properties left by late Sh.Gobind Sahai?

3. Who are the heirs of deceased Gobind Sahai and what is the share, if any, of the heirs?

4. Whether defendants 2 to 8 are liable to render accounts to the plaintiff? If yes, from which date?

5. Whether the plaintiff and/or defendant/defendants are entitled to the share in the properties left by deceased Gobind Sahai?

6. To what relief, if any, the plaintiff/defendants is/are entitled to?

7. What order and decree?"

8. Issue no.1 framed on 28.2.1994 and issues no. 1, 3 and 5

framed on 24.1.1996 can be dealt with together inasmuch as the aspect is

as to what is the share of the plaintiff and of the defendants no. 2 to 8 in

the suit property. I now take up the same for disposal. Before doing so I

dispose of issue no. 2 dated 24.1.96 by observing and holding that the suit

property is admitted by the parties to be the only property which is to be

dealt with in the present suit.

Issue Nos.1,3 and 5 dated 24.1.1996

9. Once it is admitted that Lala Gobind Sahai; husband of the

defendant no.1-Smt. Champa Devi and father of the plaintiff-Sh.Prem

Prakash and deceased Sh. Om Prakash; was the owner of the suit property

and who died intestate, then naturally all the legal heirs of Sh. Lala

Gobind Sahai, i.e. his widow/defendant no.1, his two sons Sh. Prem

Prakash and Sh. Om Prakash, and his four daughters-defendants no. 9 to

12 would be equal 1/7th owner of the suit property. As already stated

above that there is however no dispute between the parties that the three

daughters of Lala Gobind Sahai namely defendants no.9, 10 and 12 had

executed relinquishment deeds in favour of plaintiff, defendant no.1 and

defendant no.8 thereby relinquishing their 1/7th share each in the suit

property in favour of the aforesaid three persons. The 1/7th share of each

of these three daughters namely defendants No.9, 10 and 12 therefore

would stand vested jointly in the plaintiff, defendant no.1 and defendant

no.8. I take on record that defendant Nos.2 to 8 agree that defendant

No.8 took this relinquishment on behalf of all the defendant Nos.2 to 8.

Defendant no. 11 also would have no share as I have already

stated that the contesting parties namely the plaintiff and the defendants

no.2 to 8 also agree that defendant no. 11 by an oral settlement

relinquished her 1/7th share similarly in favour of the plaintiff, defendant

no.1 and defendant no.8. In view of the provision of Section 9 of the

Transfer of Property Act, 1882, since law does not require a written

relinquishment deed, I agree with the submissions of the counsel for the

parties that the defendant no.11 has relinquished her 1/7 th share in favour

of plaintiff, defendant no.1 and defendant no.8. If at all any reference is

required, then the same can be made to the judgment of this Court in the

case of Lieutenant Col. Gaj Singh Yadav vs. Satish Chander Yadav &

Ors., 1999 (51) DRJ 240. I may also additionally state that a family

settlement can always be an oral one and relinquishment by a family

member is really in the nature of oral family settlement which is

permissible in law. A family settlement if it is in writing or is in the

nature of partition deed, then only it would be required to be stamped and

registered.

Thus the plaintiff, defendant no.1 and defendants no.2 to 8

would be the three equal co-owners of the suit property at the time when

the defendant no.1/Champa Devi/mother was alive.

10. The onus to prove that there was a family settlement dated

31.5.1972 by which all the legal heirs of late Lala Gobind Sahai agreed

that the deceased Om Prakash would be sole and exclusive owner of the

property, is squarely upon the defendants no. 2 to 8. This onus, the

defendants no.2 to 8, in my opinion have miserably failed to discharge.

For the following reasons I hold that there is no family

settlement/arrangement dated 31.5.1972 and the same is not proved:-

i) Admittedly there is no document whatsoever evidencing the

family settlement dated 31.5.1972.

      ii)       There     was no     reason why there         should not be a

      written    document     of     the    stated    family settlement      dated

      31.5.1972 inasmuch       as    on the       same date parties being        the

plaintiff, defendant no.1 and late Sh. Om Prakash entered into a

written dissolution deed with respect to their partnership-M/s.

Prakash Oil Marketing Company in which they were partners. It

does not stand to reason that if for a dissolution of partnership a

written document could be entered why there is no written document

evidencing an extremely important fact of exclusive ownership in

the suit property being vested with late Sh.Om Prakash under an

alleged family arrangement.

iii) Another important fact is that if there was an oral family

settlement of the year 1972 whereby late Sh. Om Prakash was to be

the exclusive owner of the suit property then there was no reason

why the suit property even thereafter continued to be shown in the

municipal records in the joint names of both the plaintiff-Sh.Prem

Prakash and deceased Sh. Om Prakash (during the lifetime of Sh.

Om Prakash and even after the death of Sh. Om Prakash).

I may note that the plaintiff has proved and exhibited the

property tax receipts, Ex.PW1/10 to Ex. PW1/13, and which house

tax bills/receipts show that the suit property continued to be in the

joint names of the plaintiff and the deceased Sh. Om Prakash. The

property tax bills filed in this case and exhibited on behalf of the

plaintiff are from the year 1979 to 1985, i.e for the period after 1972.

There was no question of Sh.Om. Prakash allowing the property to

remain in the joint name with the plaintiff Sh.Prem Prakash if really

there was a family settlement in the year 1972.

iv) The three sisters namely the defendants 9, 10 and 12

executed relinquishment deeds, Ex.PW1/2 to Ex. PW1/4, on

4.7.1986 i.e. 14 years after 1972 when the alleged family

arrangement took place. In these relinquishment deeds the sisters

have relinquished their shares in favour of not only the plaintiff and

defendant no.1 herein but also in favour of late Smt. Godavari Devi,

widow of late Sh.Om Prakash and defendant No. 8 in this suit. If

really Sh.Om Prakash would have become owner by means of the

oral family arrangement of the year 1972 then much later in the year

1986 neither the sisters would have claimed ownership in the suit

property and executed the relinquishment deeds qua their shares, and

nor would Smt. Godavari Devi have admitted and accepted these

relinquishment deeds whereby the three sisters relinquished their

shares in the suit property.

v) No doubt there may not be proof of oral family settlement in

the form of written document, however, surely there could have

been evidence of acting upon on this family settlement. Acting upon

of the family settlement can be by various ways by Sh. Om Prakash

or the defendants no. 2 to 8 showing this property owned by them in

their income tax record or applying for and seeking mutation done in

the Municipal Records or applying to any public authority claiming

ownership of the suit property on the basis of the family

arrangement. Admittedly, there is no evidence which could be

placed on record by defendants no. 2 to 8 with respect to acting upon

of the alleged family settlement/arrangement of the year 1972

whereby allegedly late Sh.Om Prakash became exclusive owner of

the suit property.

11. In view of the aforesaid reasons I am constrained to hold that

the plea of family arrangement of the year 1972 as urged on behalf of the

defendants no. 2 to 8 has no substance whatsoever and I accordingly

reject the same.

12. One of the principal arguments which was urged on behalf

of the defendants no. 2 to 8 to plead existence of the family arrangement

was that firstly Sh.Om Prakash and thereafter the defendants no. 2 to 8

have exclusively enjoyed the suit property i.e. they have let out the same,

received rents, and maintained the same, and therefore, according to

defendants no. 2 to 8 it should be held that they have become owners of

the suit property by means of the family arrangement in the year 1972.

This argument though may appear to be attractive at the first blush,

however, this argument is really of no substance because it is not

unknown that out of many co-owners one co-owner remains in exclusive

possession and enjoyment of a jointly owned property. Merely because

one co-owner remains in exclusive possession and enjoyment of a jointly

owned property cannot mean that automatically on this very basis of

enjoyment and possession, the joint owner should be held as an exclusive

owner allegedly because of a family arrangement. There is a difference

between other co-owners not in possession, not exercising their

ownership rights in an immovable property and their giving up of rights

over the suit property. Merely because a person may not have claimed

enjoyment and possession of a jointly owned property, (and which can be

for myriad reasons) cannot mean that he will loose his co-ownership

interest in the jointly owned property unless of course the other

defendants/co-owners who are in possession of the jointly owned

property claim and prove ouster of the person who is not in possession

and enjoyment of the jointly owned property. In this case, ouster has not

even been pleaded, much less proved, and what is only pleaded and

proved is exclusive enjoyment and taking benefit of the suit property by

Sh.Om Prakash and the defendants no.2 to 8. I must also keep in mind,

that if I accept the argument of extinguishing of rights of a co-owner in an

admittedly joint property, merely because other persons have enjoyed the

possession and benefits of the property, then it would mean that I would

extinguish valuable rights in an immovable property of a co-owner

merely because such co-owners may have chosen to keep quite. I do not

think that such position should be countenanced otherwise many co-

owners will lose their ownership rights in a property. I note that it has

already come on record that the rental from this property was not much

(being less than rupees two thousand), and therefore, this could be one of

the reason for lack of interest of the plaintiff in seeking partitioning of

this property which was yielding no return. Also merely because

defendants no. 2 to 8 have spent money on the maintenance of the

property, cannot mean that they have (or their predecessor-in-interest

/Sh.Om Prakash) have become exclusive owners inasmuch as since they

were enjoying benefits of the property, and thus they also incurred

maintenance charges qua the property. In fact it is for the reason that the

maintenance of the suit property was done by the defendants 2 to 8 (and

before them by their predecessor-in- interest/Sh.Om Prakash) that the

plaintiff did not seek rendition of accounts with respect to the rentals

being received from the property during the relevant years because the

revenue was squared off from the maintenance of the property. I may

also state that counsel for the plaintiff also agrees for not pressing for the

rendition of accounts with respect to the suit property against defendants

no.2 to 8 and thus issue No.4 is decided against the plaintiff as not

pressed.

13. In view of the above, issue No. 1 dated 28.2.1994 and issues

no. 1, 3 & 5 dated 24.1.1996 are decided by holding that at the stage of

death of Lala Gobind Sahai, and due to subsequent events thereafter;

however before the death of the defendant no.1-Smt. Champa Devi; the

suit property would vest in 1/3rd share each of the plaintiff, defendant

no.1 and late Sh.Om Prakash who is now represented by legal heirs being

the defendants no. 2 to 8.

14. In a suit for partition it is the law that even after passing of a

preliminary decree if the shares are to be changed a fresh preliminary

decree has to be passed and Courts are duty bound to pass the same. This

is now settled law in view of the judgment of the Supreme Court in the

case of Phool Chand & Anr. vs. Gopal Lal AIR 1967 SC 1470. I am

making this observation of my having to change the 1/3 rd share of the

plaintiff inasmuch as the mother/defendant no.1/Smt. Champa Devi has

died during pendency of the suit, and the plaintiff claims her share in

terms of her registered Will dated 8.10.1987. If shares can be changed

post passing of a preliminary decree, aforetiorari the same can be done

before passing of the preliminary decree. Let us now examine therefore

that whether Smt. Champa Devi/defendant no.1 left behind a validly

executed Will dated 8.10.1987.

15. In my opinion, this Will has been proved to have been duly

executed by Smt. Champa Devi who has been found to be in a sound

disposing mind on the date of execution of the Will. This I say so

because one attesting witness in this Will is a doctor, namely, Smt. Rita

Vohra and this doctor Smt. Rita Vohra has appeared in this Court and

deposed with respect to due execution and attestation of the Will. The

evidence of Dr. Rita Vohra has been recorded before this Court as PW3.

This witness has deposed that the deceased Smt. Champa Devi signed in

her presence and all the attesting witnesses also signed in the presence of

the testator. The fact that this witness Dr. Rita Vohra being a doctor in

my opinion is a strong factor to prove the due execution and attestation of

the Will of Smt. Champa Devi inasmuch as a doctor is in a better position

than an ordinary person to depose with respect to the soundness of the

mind of the deceased testator. Dr. Rita Vohra was not a stranger to the

family because she was treating not only the plaintiff but also late Smt.

Champa Devi. Though Smt. Champa Devi was said to have gum

problems and she died of cancer however this would not mean that Smt.

Champa Devi was not of sound disposing mind when she executed her

Will as these diseases are not such that they automatically will lead to

lack of soundness of mind. I may note an additional fact that Will has

also been registered.

16. One of the ways to prove the validity of the Will is the

contents of the Will and the relationship of the parties. In this case, the

admitted fact is that the mother/defendant No.1 Smt. Champa Devi only

lived with the plaintiff and never with Sh. Om Parkash or the other

defendants No.2 to 8. That being the position there is nothing strange in

the mother /defendant No.1/Smt. Champa Devi disinheriting Sh. Om

Parkash and the defendant Nos.2 to 8 of her share in the suit property and

bequeathing the same to the plaintiff who always lived with her and took

care of her. It is perfectly natural for the mother therefore to give her

share to a son whom she knew took care of her in her lifetime and

especially in her old age.

17. Another reason for me to believe the Will is that the mother

appeared and filed her written statement as defendant No.1 in the present

suit. In this suit, she supported the plaintiff and took up the stand against

the defendant Nos. 2 to 8. She denied claim of the defendant Nos.2 to 8

to the suit property. Therefore even in the lifetime of the mother there is

categorical evidence of the mother/defendant No.1 taking up stand with

the plaintiff and against Sh. Om Parkash and his legal heirs being

defendant Nos.2 to 8. In my opinion, therefore, there were sufficient

reasons for the mother to disinherit her son Sh. Om Parkash and his

branch and execute the Will in question.

18. With respect to the validity of the Will, counsel appearing

for defendant Nos.2 to 8 argued the following points:-

(i) The testimony of Dr. Rita Vohra ought not to be believed

inasmuch as her cross-examination shows lack of her credibility

inasmuch as she did not remember the Will which she signed as

being the one which has been proved and exhibited in this case.

There is also the argument that whereas in her examination-in-chief

she talked of four attesting witnesses, but in her cross-examination

she mentioned that there were only three attesting witnesses. A

reference to the relevant portion of the cross-examination of Dr. Rita

Vohra on 21.1.2008 shows that since many years had passed so she

exactly did not remember the Will but she has stated that the Will

shown to her was the one she executed because that Will had her

signatures. As regards the argument of lack of credibility, I may

state that when an attesting witness after many years appears in the

witness box, there is always a chance of the said attesting witness

making some contradictions or statements which may be found to be

exactly not true, however, such minor contradictions or any

statements which are found to be untrue have to be read in the

context of the entire testimony of the witness i.e. the examination -

in-chief and the cross examination. After all, if importance has to be

put to certain contradictions/lack of credibility in cross-examination,

but equally weight will also have to be placed upon other affirmative

evidence and that part of cross examination where the witness has

stood the test of cross-examination. In my opinion, in the facts of

the present case when we read the testimony as a whole, and

considering that the doctrine Falsus in Uno Falsus in Omnibus does

not apply in India, I am of the view that the testimony of Dr. Rita

Vohra cannot be discarded for the reasons as urged on behalf of the

defendant Nos.2 to 8.

(ii) One another aspect which was urged on behalf of the

defendant Nos.2 to 8 to dispute the validity of the Will was that

whereas in the cross examination of PW-1/plaintiff, he states that he

was not present at the time of execution of the Will however Dr.

Rita Vohra admitted that he was present. Once again, in my

opinion, I would put this deposition of PW-1 to the apprehension

which some lawyers have and which then translates into evidence,

and which has to do with the fact that a propounder should not be

seen to be part of the process of execution and attestation of Will.

Of course, a propounder in his own interest should not be seen to be

part of execution and attestation of the Will, but in my opinion

merely because a propounder would be a part of execution and

attestation of the Will that in itself cannot mean that Will should be

disbelieved on this count itself/alone. Various factors go into

proving or disbelieving of a Will, and stand of a propounder in the

facts of certain cases may lead to lack of due execution and

attestation of the Will, but in the facts of the present case, I am of the

opinion that merely because the plaintiff was present when the Will

was executed cannot and ought not to mean that Will should not be

believed because the Will has otherwise been proved to be validly

executed and attested.

19. One argument urged on behalf of defendants no. 2 to 8 is

with respect to the fact that the Will dated 8.10.1987 bears only thumb

impression of Smt. Champa Devi instead of her signatures and hence

there is no validly executed Will. Once again, in my opinion, on this

ground only it cannot be said that the Will should not be believed

inasmuch as the deceased Smt. Champa Devi was about 75 years when

she made the Will and possibly for that reason she would have been

advised that she should put her thumb impression instead of signatures

inasmuch as she had been executing documents not only with signatures

but even with her thumb impression. In my opinion, there can be no

doubt that the defendant No.1 used to execute documents containing her

thumb impression inasmuch as admittedly the written statement filed by

her in this Court does not bear her signatures but only bears her thumb

impression. Thumb impression also appears on the Vakalatnama of the

defendant No.1 filed in this Court. A learned Single Judge of this Court

had sent the thumb impression appearing on the Vakalatnama and the

written statement for being compared with the thumb impressions

appearing on the Will Ex.PW1/9 to the CFSL, but the CFSL through its

Senior Scientific Officer, Sh.A.D.Sah opined that no opinion can be given

one way or the other in view of lack of clear characteristics for

comparison, however that issue is not disputed that the written statement

and Vakalatnama filed in this Court do contain the thumb impression of

the defendant no.1.

20. Finally, I must mention solely for the purpose of rejection a

point raised on behalf of the defendant Nos.2 to 8 that the deceased Smt.

Champa Devi did not know English language but since the Will is made

in English, therefore, the Will should be disbelieved. All I can say is that

if this argument is accepted then almost all the Wills which come to this

Court will have to be rejected inasmuch as majority of the Wills are in

English inasmuch as that language is preferred by lawyers who are

trained in the same and who accordingly make the Will in English

language. There is proper deposition of the Will having been executed

and attested besides the fact that PW3 Dr. Rita Vohra has deposed that

defendant no.1 had told her of the contents of the Will. I therefore reject

this argument that the Will dated 8.10.1987 is not a valid Will inasmuch

as defendant No.1/Smt. Champa Devi did not understand English

language.

21. I therefore hold that the defendant No.1 executed a valid

Will Ex.PW1/9 dated 8.10.1987 thereby bequeathing her 1/3rd share in

the suit property to the plaintiff, and who will therefore become 2/3rd

owner of the suit property, and I hold accordingly.

Issue nos. 2 & 4

22. I have already observed that plaintiff is not pressing issue

No.4 which was framed on 24.1.1996. Also as stated above, so far as

issue No.2 is concerned, counsel for the plaintiff confines his relief with

respect to only the suit property i.e. 1729 Naya Bazar, Delhi-6.

Relief:-

23. In view of the above, suit of the plaintiff for partition is

decreed by passing a preliminary decree declaring that plaintiff will be

2/3rd owner of the property bearing No. 1729 Naya Bazar, Delhi-6

admeasuring 310 sq. yds. The defendant Nos.2 to 8 will be joint owners

of remaining 1/3rd share of this property. Parties are left to bear their own

costs. Decree sheet be prepared.

24. List this suit on 19.9.2012 for taking proceedings with

respect to passing of a final decree.

VALMIKI J. MEHTA, J JULY 26, 2012 ak