Harcharan Singh Hazooria vs Kulwant Singh Hazooria & Ors.
2013 Latest Caselaw 4544 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     IA 13091/2013 (O.XIV R.15 CPC) IN CS(OS) No.2244/2008

%                                         Reserved on: 27th September, 2013
                                          Decided on: 1st October, 2013
      HARCHARAN SINGH HAZOORIA                               ..... Plaintiff
                             Through:   Mr. Vikas Dhawan with Mr. S.P.
                                        Das, Advs.
                     Versus

    KULWANT SINGH HAZOORIA & ORS.             ..... Defendants
                  Through: Mr. Sanjeev Sindhwani, Sr. Adv. with
                           Ms. Shalini Kapoor, Ms. Promil Seth
                           and Ms. Kriti Arora, Advs. for D-1 &
                           3.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J.

1. By this application under Order XIV Rule 15 CPC the plaintiff seeks deletion of issue No.9 and amendment of issue No.10 framed by this Court on 25th May, 2012.

2. The main contention of learned counsel for the plaintiff is that the Will dated 5th January, 1996 of late Smt. Jaswant Kaur i.e. the mother of plaintiff and defendantNo.1is not specifically denied by defendant No.1 in his written statement and hence the same is deemed to be admitted. Further in view of the admission made, the plaintiff is not required to prove the validity of the Will and thus issue No.9 is redundant and issue No.10 is required to be modified accordingly. Reference is made to Order VIII Rule 3, 4 and 5 CPC and Sections 58 and 68 of the Evidence Act. Reliance is placed on

Balathandayutham and another v. Ezhilarasan, (2010) 5 SCC 770, Thayyullathil Kunhikannan and others v. Thayyullathil Kalliani and others, AIR 1990 Kerala 226, Rajan Suri and another v. State and another, AIR 2006 Delhi 148, R. Vellingiri and Gokila v. S R Kannaian and others (Appeal No.828 of 2007 decided by High Court of Madras on 5 th September, 2007) and Kanwarjitsingh R Chadha v. Sahebrao Gajanan Salve and others (Apeal No.826 of 2013 decided by Bombay High Court on 4th July, 2013).

3. Learned counsel for the defendants No.1 and 3 on the other hand contends that the defendants have not admitted the Will and have used the words „alleged Will‟ in the written statement. Thus, there is no admission by the defendants. Alternatively even if this Court holds that the defendants have not denied the Will specifically is thus deemed to be admitted, the same is not a proof of genuineness of the Will which is required to be proved as per Section 68 of the Indian Evidence Act. Execution of the Will and genuineness of the Will are different matters and to base his claim on the alleged Will of late Smt. Jaswant Kaur, the plaintiff is required to prove that a genuine and valid Will was executed by her. Reliance is placed on S.R. Srinivasa and others v. S. Padmavathamma, (2010) 5 SCC 274.

4. I have heard learned counsel for the parties. The issues sought to be deleted and modified are as under:-

"9. Whether Ms. Jaswant Kaur has validly executed the Will dated 5th January, 1996? OPP.

10. Whether the plaintiff is entitled to a decree of partition as prayed for? OPP"

5. In paras 4, 11 and 14 of the plaint, the plaintiff has pleaded that "In the year 1996, late Jaswant Kaur executed her last will and testament dated 5-1- 1996. As per the said will, the said premises bearing No.60, Ring Road, Lajpat Nagar III, New Delhi was to devolve upon the Plaintiff and DefendantNo.1 in two equal shares. Further, the Defendant No.3 was to receive a sum of Rs.10,00,000/- from the Plaintiff and Defendant No.1 in equal shares. Further the Will settled all her other movable assets and bank balances as well as ornaments between the parties herein. The Plaintiff states that the said will dated 5-1-1996 was the last will and testament of late Jaswant Kaur and was executed by her with sound and deposing mind. It is only some time on or about 2006 that the late Jaswant Kaur became very unwell and with advancing age was incapable of managing her own affairs and was also incapable of forming a judgment as to what was in her own interest". It is further pleaded that during the pendency of suit being CS(OS) No. 707/08 late Jaswant Kaur expired on 15-8-2008 and after her expiry, the plaintiff took up the matter with regard to partition of the premises as per the Will and defendant No.1 assured the plaintiff that wishes of their mother would be respected and requested the plaintiff to wait for a period of forty days. In para 14 of the plaint the plaintiff has stated, "the gift deeds dated 23rd May, 2007 and 2nd June, 2008 are not genuine and/or are void and no right, title or interest has been created in favor of defendants No.1 and 3 by virtue of the gift deeds. Late Jaswant Kaur had already executed a Will and testament bequeathing her entire property equally between the Plaintiff and Defendant No.1 and accordingly the gift deeds dated 23 rd May, 2007 and 2nd June, 2008 are void and have been created by defendants No.1 and 3 only to defeat the right of the plaintiff. The said gift deeds are alleged to have been

executed when late Jaswant Kaur was not in a fit state of mind to execute the said gift deeds or form a judgment as to what was in her own interest. The said gift deeds are doubtful, suspicious and ex facie bogus and it is therefore necessary to seek a declaration that the said gift deeds are void and/or of no legal effect and are not binding on the plaintiff".

6. In the written statement filed by defendants No.1 and 3 to the amended plaint in para 7 of the preliminary objections it is stated that "the plaintiff has placed reliance on the alleged Will of 1996 by the deceased respected mother. He claims share in the property on the basis thereof. It is a fundamental truism of law that execution of a testament does not preclude the testator or executants from alienating the property during his/her lifetime. This is exactly what late Smt. Jaswant Kaur, the respected mother had done. She alienated, on the showing of the plaintiff himself, the property in question during her lifetime. The plaintiff has no locus standi to challenge the said alienation by the mother for admittedly she was the absolute owner of the property and had absolute right to deal with the same. More so, when not only alienation was done by the deceased respected mother but the answering defendants as owners of the property exercised their rights as owner during her lifetime". In replies to paras 4, 11 and 14 of the plaint it is stated in the written statement, "paragraph No.4 of the plaint is wrong and denied. The alleged execution of the Will by deceased respected mother lost relevance during her lifetime itself when she alienated the property and registered documents vesting the property unto the answering defendants. The parents had spent money on the plaintiff for his education abroad and helped him even in settling in Germany. The plaintiff owns a palatial house

in Pulhen, Germany with swimming pool etc. In any event, the deceased respected mother being the absolute owner of the property in question was entitled to alienate the same and she did so in her lifetime in favour of defendants No.1 and 3. The property in question now vests in defendants No.1 and 3. Defendant No.1 is the owner of first floor and defendant No.3 for the remaining portion with proportionate right in the land underneath. The answering defendants being absolute owner of the suit property, the plaintiff cannot seek partition thereof or claim any right, title or interest therein. In fact, he is in unauthorized occupation of a room in the property. This Court would direct him to remove himself from the property besides paying mesne profit for unauthorized use and occupation. In reply to para 11, it is stated that paragraph No.11 of the plaint is correct to the extent that deceased mother of the parties died on 15th August, 2008. Rest of the paragraph was stated to be wrong and was denied. The plaintiff all along knew that the property stood vested unto the defendants No.1 and 3 absolutely. There was no occasion for partition of the same. There was no occasion to give any assurance to the plaintiff as alleged. The alleged Will as stated hereinbefore became irrelevant as the deceased had dealt with and alienated the property during her lifetime. It is a fundamental truism of law that a Will comes into operation only after the death of the testator. Once the corpus of the testament is dealt with by the testator before her death, then there is nothing further to be dealt with by any one after her death based on the alleged Will. The plaintiff admittedly is the brother of answering defendant No.1 and as a brother he was allowed to occupy a room. He taking advantage of the love and courtesy extended by defendant No.1 is illegally staking a claim in the property in suit notwithstanding the fact that

he shifted out of the country way back in 1961 and had no occasion to look after the deceased mother or the family". In reply to para 14 it is stated "the contents of para 14 of the plaint are stated to be wrong and denied. It is denied that the gift deeds dated 23rd May, 2007 and 2nd June, 2008 are not genuine and are void. Plea is denied of any substance. It is denied that no right, title or interest was created in favour of the answering defendants by virtue of gift deeds. The alleged Will dated 5th January, 1996 insofar as property in suit is concerned stood abrogated by virtue of the fact that the property was dissented. It is denied that gift deeds are illusory and are eyewash. The plaintiff never had any rights in the suit property, the question of they being defeated does not arise. The gift deeds were executed in accordance with law and registered in the presence of the Sub-Registrar".

7. A perusal of the written statement would thus show that wherever there is an averment regarding the Will, the defendants have used the term "alleged Will" and have in general denied the averments relating to the alleged Will. Undoubtedly there is no specific denial that the Will dated 5 th January, 1996 was never made. However, at the same time there is no admission about the genuineness or legality of the Will. In light of these facts, it is thus to be examined whether the plaintiff is required to prove the validity of the Will.

8. In S.R. Srinivasa and Others (supra) the Hon‟ble Supreme Court while dealing with a similar issue held that admission about making of a Will does not amount to admission of due execution and genuineness of the Will. The two stand on a different footing and parties who stakes claim on

the basis of Will is required to prove both the execution and genuineness of the Will. It was held -

"18. In the written statement Defendant 1 claimed that the entire movable and immovable property had been bequeathed to Indiramma in a will dated 18-6-1974. The first appellate court upon examination of the entire evidence accepts the submission made on behalf of the petitioners that the execution of the will is shrouded by suspicious circumstances. The first appellate court also negatived the submission made on behalf of the first defendant that the plaintiffs have admitted the execution of the will in the subsequent suit. Upon examination of the evidence, the first appellate court had come to the conclusion that PW 1 had not admitted the genuineness of the will anywhere. This witness had also stated that he had come to know about the will of Puttathayamma from the written statement filed by Defendant 1. It is, therefore, held that there can be no presumption with regard to the genuineness of the will on the basis of the alleged admission. Therefore the first appeal was allowed, judgment and decree of the trial court were set aside. The suit filed by the appellant-plaintiffs was decreed with costs declaring that the legal representatives of the plaintiffs are the owners of the suit property and they are entitled for possession of the suit schedule property.

41. The aforesaid observations are fully applicable in this case. Admittedly, none of the attesting witnesses have been examined. Here, the signature of the scribe cannot be taken as proof of attestation. Therefore, it becomes evident that the execution of a will can be held to have been proved when the statutory requirements for proving the will are satisfied. The High Court has however held that proof of the will was not necessary as the execution of the will has been admitted in the pleadings in OS No. 233 of 1998, and in the evidence of PW 1.

42. The contention that the execution of the will has been admitted by the appellants herein had been negated by the first appellate court in the following manner:

"What is admitted under Ext. 36 i.e. the plaint in OS No. 233 of 1998 at Para 7 is only about the will and not the genuineness of the will. During evidence of PW 1, it is elicited in the cross-examination that he came to know about the will of Puttathayamma as it was revealed in the written statement and that Puttathayamma might have written the will dated 4-7-1974. But PW 1 has not admitted the genuineness of the will anywhere in his evidence. Therefore the contention of the learned advocate for the first respondent that the execution of the will is admitted and therefore its genuineness is to be presumed cannot be accepted."

9. Dealing with the admissions, it was held -

"47. The aforesaid two judgments along with some other earlier judgments of this Court were considered by this Court in Gautam Sarup v. Leela Jetly [(2008) 7 SCC 85] , wherein it was observed as follows: (SCC pp. 90 & 94, paras 16 & 28)

"16. A thing admitted in view of Section 58 of the Evidence Act need not be proved. Order 8 Rule 5 of the Code of Civil Procedure provides that even a vague or evasive denial may be treated to be an admission in which event the court may pass a decree in favour of the plaintiff. Relying on or on the basis thereof a suit, having regard to the provisions of Order 12 Rule 6 of the Code of Civil Procedure may also be decreed on admission. It is one thing to say that without resiling from an admission, it would be permissible to explain under what circumstances the same had been made or it was made under a mistaken belief or to clarify one's stand inter alia in regard to the extent or effect of such admission, but it is another thing to say that a person can be permitted to totally resile therefrom. ...

***

28. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot

be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other."

48. Examined on the basis of the law stated above we are unable to agree with the High Court that there was no need for independent proof of the will, in view of the admissions made in OS No. 233 of 1998 and the evidence of PW 1. In fact there is no admission except that Puttathayamma had executed a will bequeathing only the immovable properties belonging to her in favour of Indiramma. The first appellate court, in our opinion, correctly observed that the aforesaid admission is only about the making of the will and not the genuineness of the will. Similarly, PW 1 only stated that he had come to know about the registration of the will of his grandmother favouring Indiramma through the written statement of the first defendant. The aforesaid statement is followed by the following statements "Other than that I did not know about the will. She was not signing in English. I have not seen her signing in Kannada. There was no reason for my grandmother to write a will favouring Indiramma." Even in the cross-examination he reiterated that "I know about the will written by Puttathayamma on 18-6-1974 bequeathing the properties to Indiramma only through the written statement of the first defendant".

10. In Balathandayutham and another (supra) relied upon by leaned counsel for the plaintiff, the execution of the Will asserted by one party was not denied by the other party. However, it was contended that the first Will dated 25th September, 1972 was not a genuine one and was revoked by the subsequent Will dated 25th April, 1980. However, the Court went on to note

that the execution of the first Will was not disputed whereas for the subsequent Will no attesting witnesses were brought to prove the same. Further the subsequent Will was an unregistered document and the attestators to the said Will were still alive even though the scribe was not alive. It was also admitted that the testator was not well for about four months before death thus at the time of execution of the second Will, the testator was unwell. Thus, the Court held that the subsequent Wills were not proved. It would be thus seen that to prove the Will the Trial Court, first Appellate Court and the High Court applied the principles laid down in Section 68 of the Evidence Act which was upheld by the Supreme Court. In light of this, the Hon‟ble Supreme Court held that the subsequent Wills were shrouded by various suspicious circumstances and thus the Appellant therein does not succeed having not discharged their onus.

11, Thus the Supreme Court also laid emphasis on the proof of genuineness of the Will. As noted above to base a claim on a Will, the parties are not only required to prove the existence of the Will but also the genuineness of the same. As noted above, the defendants themselves repeatedly noted the Will as alleged Will and have taken the alternative pleas. Further the Issue No.9 is with regard to validity of the Will and not the existence of the Will. In view thereof, issue No.9 cannot be deleted and issue No.10 cannot be accordingly directed to be modified as prayed for.

11. Application is dismissed.

(MUKTA GUPTA) JUDGE OCTOBER 01, 2013 VKM