Shri Sanjeev Sarin vs Smt. Rita Wadhwa & Anr
2012 Latest Caselaw 6743 Del

       *          IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of Decision: 26.11.2012

+      CS(OS) 140/2008
       SHRI SANJEEV SARIN                                                 ..... Plaintiff
                               Through :   Mr Yakesh Anand, Adv.
                      versus
       SMT. RITA WADHWA & ANR                                      ..... Defendants
                               Through :   Mr. S.K.Gandhi, Adv. for D-1
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                               JUDGMENT

V.K.JAIN, J. (ORAL)

IAs 1008/2008(O.39 R.10 CPC) & 16647/2011(O.39 R.10 CPC)

1. There is dispute between the parties with respect to the ownership of the

property No.B-1/23, Vasant Vihar, New Delhi. The abovereferred property

admittedly was owned by Smt. Madhurekha Sarin, the mother of the parties to the

suit. The case of the plaintiff and defendant No.2 is that Smt. Madhurekha Sarin

died intestate and accordingly the parties are entitled to one-third share each in the

aforesaid property. The case of defendant No.1, on the other hand, is that vide Will

dated 1st March, 1999, the aforesaid property along with other assets was

bequeathed solely to her by Smt. Madhurekha Sarin.

2. In IA No. 1008/2008, the case of the plaintiff is that the ground floor which

defendant No. 1 is illegally occupying since 09.05.1999 when Smt. Madhurekha

Sarin expired can fetch rent of about Rs 2,10,000/- per month and the quantum of

rent/damages/mesne profits calculated at the said rate for the period from

09.05.1999 to 09.01.2008 comes to Rs 2,18,40,000/-. He is seeking a direction to

defendant No. 1 to pay 1/3rd of the total amount, i.e., 72,80,000/- to him. He is also

seeking a further direction to defendant No. 1 to pay future rent/mesne

profit/damages at the rate of Rs 2,10,000/- per month, for use of the aforesaid

portion. The application has been opposed by defendant No. 1 on the ground that

in terms of the Will executed by late Smt. Madhurekha Sarin, she is the owner of

the whole of the aforesaid property and therefore is occupying the ground floor of

the said property in her own right. It is also alleged in the reply that Smt.

Madhurekha Sarin was totally neglected by the plaintiff and defendant No. 2 in her

old age and it was left to defendant No. 1 to shoulder her entire responsibility.

Thereafter, according to defendant No. 1, Smt. Madhurekha Sarin executed the

Will dated 01.03.1994, bequeathing all her assets to her. It is also alleged in the

reply that defendant No. 2 had illegally misappropriated Rs 3 lakh from the pension

account and Rs 7 lakh from the PPF account of Smt. Madhurekha Sarin, whereas

he as well as the plaintiff had illegally taken away important documents, including

share certificates valued at Rs 60 lakh and having current market value of more

than Rs 1 lakh. It is also alleged that they had sold Batala and Mussoorie properties

without knowledge of defendant No. 1 though she was also entitled to equal shares

in those properties.

In IA No. 16447/2011, defendant No. 2, who is the brother of the plaintiff

and defendant No. 1, has made a prayer similar to that made by the plaintiff in IA

No. 1008/2008, except to the extent that he wants defendant No. 1 to pay future

rent/damages/mesne profit at the rate of Rs 2.5 lakh per month. This application

has been opposed by defendant No. 1 on the same grounds on which IA No.

1008/2008 has been opposed.

3. At present, the ground floor of the aforesaid property is occupied solely by

defendant No.1 whereas the first floor is under lock and keys are with the Court

Receiver appointed in OMP No. 247/2006. As far as the first floor portion is

concerned, all the parties want the same to be let out to an appropriate tenant. I

therefore, grant opportunity to all the three parties to the suit to find out a suitable

tenant, who is ready to take the aforesaid portion of rent on as is where is basis and

furnish an undertaking to vacate the same within such time as this Court may

stipulate for the purpose. This would ensure that on final disposal of the suit, the

aforesaid portion may be handed over to defendant No.1 in case the Will set up by

her is proved or the aforesaid portion is available for partition amongst the parties

to the suit in case the Will set up by defendant No.1 is not proved. The learned

counsel for the plaintiff states that the original Will has not been produced by

defendant No.1. The learned counsel for defendant No.1 states that the original

Will could not be produced since it was taken away by the plaintiff as well as

defendant No.2. At this stage, I need not express any opinion on this aspect since

any firm view in this regard can be taken only after evidence of the parties has been

recorded. Non-production of the original Will, by defendant No. 1 would certainly

be a relevant factor, but it cannot be said that no case can a Will be proved without

production of the original. Section 65 of Evidence Act, to the extent it is relevant,

provides that secondary evidence may be given of the existence, condition or

contents of a document when the original is shown or appears to be in possession

or power of the person against whom the document is sought to be proved and

when after notice mentioned in Section 66, such person does not produce it. Such

secondary evidence can also be given when the original has been destroyed or lost

or when the party offering evidence of its contents cannot for any reason not

arising from his own default or neglect, produce it in reasonable time. Therefore, if

defendant No. 1 is able to prove that the original Will executed by her mother was

taken away by the plaintiff and/or defendant No. 2, she would be permitted to lead

secondary evidence to prove its execution as well as its contents. Of course, the

execution of the Will would have to be proved in the manner laid down in Section

68 and 69 of Evidence Act by examining at least one attesting witness of the Will,

if alive, and subject to the process of the Court and capable of giving evidence. In

case no such attesting witness can be found, the attestation of the Will can be

proved in the manner laid down in Section 69 of the said Act.

4. As regards ground floor which is occupied by defendant No.1, the request of

the learned counsel for the plaintiff is that two-third of the market rent of the

aforesaid portion should be deposited by defendant No.1 in the Court. Considering

the fact that defendant No.1 is setting up a Will in her favour and no finding with

respect to execution or otherwise of the said Will can be returned without recording

evidence, it would not be appropriate to pass any such order at this stage, but it is

made clear that in the event of the suit being decreed, the Court would take into

consideration the fact that the ground floor has been in sole possession of defendant

No.1 since the time of death of her mother and shall consider making appropriate

adjustments or account imposing suitable conditions of such occupation by

defendant No.1. To demonstrate how it would be done, if the Court holds that no

Will was executed by Smt. Madhurekha Sarin in favour of defendant No.1 and

consequently, she is entitled only to one-third share of this property, the Court may,

direct that she would be entitled to one-third share in the aforesaid property only on

payment of such amount as the Court may deem it appropriate to the plaintiff and

defendant No.2 on account of their being deprived of the ground floor portion of

the property, since the time of death of their mother, till the date the occupation

continues.

IAs 1008/2008 & 16647/2011 stand disposed of in terms of this order. The

observations made in this order being tentative and prima facie would not affect the

decision of the suit on merits.

IA No. 16242/2012(u/S.151 CPC filed by D-1 to condone the absence of D-1)

No order needs to be passed in this application, whereby some reasons for

absence of defendant No. 1 on 20.07.2012 were given.

The application stands disposed of.

IA 14159/2011(O.12 R.6 CPC)

Dismissed as not pressed.

IA 14159/2011 stands disposed of accordingly.

CS(OS) 140/2008

The matter is coming up before the Local Commissioner on 17 th December,

2012. The defendant No.1 has already filed her affidavit by way of evidence. She

is directed to file, by 17th December, 2012, the affidavits of the remaining

witnesses which she would bring with her. If any witness is sought to be

summoned through process of the Court, defendant No.1 shall take dasti process

for such a witness for the date which the Local Commissioner shall fix for

recording his statement and shall get such a witness served at her own

responsibility. The evidence of defendant No.2 would begin immediately after

closure of the evidence of defendant No.1. The learned counsel for defendant No.1

assures the Court that defendant No.1 is not interested in protecting the trial and

would examine only those witnesses who are absolutely relevant to the controversy

involved in the suit.

List before the Court for directions on 22nd February, 2013.

It is expected that the Local Commissioner shall conclude recording of the

evidence by that date.

V.K. JAIN, J

NOVEMBER 26, 2012 'sn'/bg