Devinder Kaur & Anr. vs Surjit Singh & Ors.
2014 Latest Caselaw 127 Del

                IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Reserved on: December 18, 2013
                                      Date of decision: January 08, 2014

                                CS (OS) No. 82 of 2005

        DEVINDER KAUR & ANR.                              ..... Plaintiffs
                       Through: Mr. Manish Vashisht with Mr. Sameer
                                Vashisht, Mr. Abhinav Sharma and
                                Mr. Dhruv Rohatgi, Advocates for
                                Plaintiff No. 1.
                                Mr. Rohit Puri, Advocate for Plaintiff No.
                                2.
                versus

        SURJIT SINGH & ORS.                            ......Defendants
                      Through: Mr. V.P. Vaze and Mr. Samdarshi Sanjay,
                      Advocates for Defendant No.1.
                      Mr. Atul Nigam, Advocate for Defendant No.2.
                      Mr. Meet Malhotra, Senior Advocate with Mr. Ravi
                      S.S.Chauhan, Advocate for Defendant No.3.
                      Mr. Jeevesh Nagrath with
                      Ms. Avsi Malik, Advocates for Defendant No.4.


        CORAM: JUSTICE S. MURALIDHAR

                              JUDGMENT

08.01.2014

1. Smt. Devinder Kaur and her sister Smt. Gursharan Kaur Mehta have filed the present suit against their brothers Shri S. Surjit Singh, Shri S. Ravinder Singh, Shri S. Gurcharan Singh, Defendants 1, 2 and 3 respectively and their sister Smt. Kanwal Bhalla, Defendant No.4 seeking declaration of the 1/6th share each of the parties and partition of the estate of their father late Shri Mohinder Singh.

2. The case of the Plaintiffs is that they and the Defendants are the Class-I legal heirs of their father late Shri Mohinder Singh who died intestate on 24th December 2003. Their mother Smt. Inder Kaur predeceased the father. She died intestate on 1st July 1987. Plaintiff No.1 was married to Shri Birender Singh Maini in 1962 and started living in her matrimonial home. She has two sons and a daughter. According to Plaintiff No.1, since the financial condition of her husband and son Shri Pawan Bir Singh was not sound they along with her daughter-in-law (wife of Shri Pawan Bir Singh) started harassing Plaintiff No.1 to get money from her father Shri Mohinder Singh. Plaintiff No.1 states that they beat her up brutally, locked her up without food and on 14th November 1998 attempted to kill her by pouring kerosene oil and setting her on fire. She states that she escaped and lodged a police complaint. She came to Delhi where again she was threatened and for which she lodged another police complaint on 18th December 1998. On seeing the plight of his daughter, Shri Mohinder Singh asked Plaintiff No.1 to live in his property at 14, Chelmsford Country Club Farms, Ghitorni, New Delhi (hereafter 'the Chelmsford Club property') where Plaintiff No.1 has been residing. Plaintiff No. 1 states that she has no independent source of income and was supported by her father till his death.

3. The Plaintiffs state that their father Shri Mohinder Singh made a Will on 19th September 1996 but revoked it on 29th June 1999. According to the Plaintiffs, he did not leave any Will thereafter. The Plaintiffs contend that since he died intestate on 24th December 2003 all the parties have equal share in his estate comprising immovable and movable properties as set out in Schedules I and II of the plaint. The details of the assets/properties of M/s.

Mohinder Singh & Co. in which late Shri Mohinder Singh had 1/3rd share have been set out in Schedule III of the plaint. Plaintiff No. 1 states that after the death of the father Defendants 1, 2 and 3 took control of his entire estate except the Chelmsford Club property and the house at Putlighar Gali No.3, Amritsar (hereafter 'the Amritsar property') which are stated to be in the possession of the Plaintiffs. It is stated that all other immovable properties have been taken over by the Defendants 1, 2 and 3. Despite numerous request attempts, they are said to have refused to give the Plaintiffs their respective shares. They are also stated to be illegally appropriating the profits and assets of the partnership firm M/s. Mohinder & Co. In the above circumstances, the suit was filed.

4. While directing summons in the suit and notice in the application IA No. 540 of 2005 (under Order XXXIX Rules 1 & 2 CPC) the Court directed the parties to maintain status quo in relation to the properties mentioned in Schedules-I, II and III of the plaint.

5. Defendant No.1 filed written statement on 17th December 2005 inter alia stating that late Shri Mohinder Singh along with Defendants 1 to 3 and their respective wives executed a family settlement ('FS') on 29th July 1997. It is stated that Defendant No.2 was alone in possession of the said FS which he was filing along with his written statement. After the execution of the said FS, late Shri Mohinder Singh was left with the ownership of the business and properties, movable and immovable as mentioned in Schedule B to the FS. There were four partners in the firm M/s. Mohinder Singh & Co. comprising late Shri Mohinder Singh and his three sons Defendants 1, 2 and 3. Defendant No.1 withdrew from the partnership with mutual consent and concurrence of

all partners. A deed of dissolution was executed on 23rd April 1998 after which the firm continued with the remaining partners. Defendant No.1 stated that the estate of late Shri Mohinder Singh in terms of the FS was liable to be partitioned and divided between his six legal heirs equally. Defendant No.1 owned the business of Mohinder Singh & Co. Pvt. Ltd. which was running a medical hospital and research centre at C-5, Green Park Extension, New Delhi. He states that he was not aware of the FS. He states that all Directors of the company, excluding Defendant No.1, resigned as Directors and at the end of 2001, the company was wound up. Defendant No.1 started his business as sole proprietor of M/s. Mohinder Hospital at C-5, Green Park Extension, New Delhi. He states that it now transpires that the above steps were as a follow up of the FS. He states that the property at C-5, Green Park Extension, New Delhi was jointly owned by Smt. Ajit Kaur wife of Defendant No.1 and Smt. Amita Gandok wife of Defendant No.2. He states that the property was given on rent to Mohinder Singh & Co. Pvt. Ltd. with effect from 1st April 1995 and the lease deed was mutually terminated with effect from 31st January 2001.

6. Defendant No.1 states that although Defendant No. 2 was aware of the FS. He did not disclose the said fact even to Defendant No.1. He accordingly states that Smt. Ajit Kaur and Smt. Amita Gandok, the recorded owners of the property at C-5, Green Park Extension, New Delhi executed another lease agreement with Defendant No.1 on 2nd February 2001 for a period of 20 years at a monthly rent of Rs.30,000. Defendant No.1 states that he has been depositing Rs.15,000 (less TDS) in the bank account of Smt. Ajit Kaur and handing over the rent of Rs.15,000 (less TDS) in cash to Smt. Amita Gandok

every month since February 2001. He states that no receipt was demanded or issued. He further states that he has been running the medical hospital in the tenanted premises; has paid the entire house tax for the said premises till date as well as the electricity and water charges. Defendant No.1 states that Smt. Amita Gandok by a legal notice dated 15th March 2005 served upon him a notice of termination of the tenancy. He states that at that time he did not know of the FS. Therefore, on 22nd March 2005 a reply was sent. He nevertheless now asserts exclusive ownership of the property at C-5, Green Park Extension, New Delhi and reserves his right to claim back the entire rent paid to Smt. Amita Gandok from 29th July 1997 till date. However, Defendant No.1 states that he has been advised to continue paying the rent to the lessors till final adjudication of the suit to avoid any legal complication and litigation and without prejudice to his legal rights. Defendant No.1 states that as a result of his withdrawing from Mohinder Singh & Co. as partner by the dissolution deed dated 23rd April 1998 effective from 1st April 1998, Defendants 2 and 3 were to pay him his capital investment including profit up to 31st March 1998 in the sum of Rs.2,72,17,840 by the end of December 2004. He sent them a legal notice on 22nd March 2005 calling upon them to pay the said sum with interest @ 18% per annum and also rendering the accounts. He reserves his right to claim back the said amount from Defendants 2 and 3.

7. Defendant No.1 further states that his father late Shri Mohinder Singh was the owner of the Chelmsford Club property and had been residing there since 1999 along with Defendant No.1 and Plaintiff No.1. He further admits that the Amritsar property is in possession of Plaintiff No.1. Defendant No.1 further

states that late Shri Mohinder Singh was not keeping well from 1982 onwards. He was fitted with a pace maker at the National Institute of Heart, East of Kailash, New Delhi in 1982 and thereafter was mostly confined to bed. He went to United States of America for a bypass surgery in January 1986 and underwent another operation in 2002. Thereafter, he remained confined to bed and was physically unable to lift even a pen or to interact with any person. He was throughout under the care of Defendant No.1 and Plaintiff No.1 till he died. Defendant No.1 states that late Shri Mohinder Singh "ceased to have sound disposing mind from 2002 onwards till his death on 24th December 2003".

8. Defendant No.1 states that after the Bhog Ceremony on 4th January 2004, eight to ten meetings amongst family members took place between February and March 2004. Defendant No.1 states that he asked if anybody had any knowledge of any Will left by late Shri Mohinder Singh and that nobody had any information in that regard. He also states that he made enquiries from the advocates of his father at Amritsar, Bombay and Delhi. Searches were undertaken in the offices of the Sub-Registrars in these cities. Ultimately it was orally conveyed by Defendants 2 and 3 that there was no Will left by late Shri Mohinder Singh. Defendant No.1 states that in the facts and circumstances he was of the view that the estate of late Shri Mohinder Singh ought to be divided equally amongst all the legal heirs. While the three sisters agreed, Defendants 2 and 3 did not. The attempted mediation through Sardar Iqbal Singh Kohli and his younger brother Shri S.S. Kohli took place in the first week of October 2004. The meeting ended in a quarrel amongst the parties with Defendants 2 and 3 not agreeing to the solution suggested. It is

stated that even at this meeting it had been declined by Defendants 2 and 3 that late Shri Mohinder Singh had not left behind any Will. Defendant No.1 in his written statement admitted the prayer clause in the plaint and prayed that the estate of late Shri Mohinder Singh should be partitioned as prayed for.

9. In the written statement filed by Defendant No.2 on 14th September 2005 a preliminary objection was taken as regards the proper valuation of the suit for the purposes of court fee and jurisdiction. It is further stated in para (c) that the suit had been filed on the basic premise that late Shri Mohinder Singh had died intestate. This was stated to be wrong and incorrect. It was stated that the property of late Shri Mohinder Singh as well as that of Mohinder Singh & Co. was divided during his life time by the FS. It is further stated that while Plaintiffs and Defendant No.4 were not parties to the FS, late Shri Mohinder Singh and the other Defendants were party to the FS. It is stated in para (d) that late Shri Mohinder Singh left a Will dated 23rd September 2003 wherein he had provided for all his legal heirs. It was further asserted that the Plaintiffs were aware of the Will and were beneficiaries under the Will. A copy of the Will was filed with the written statement of Defendant No.2. It is stated that as a result of the said Will, Plaintiff No.1 was given a bequest of Rs.30 lakhs by fixed deposit No. 205059 in Punjab National Bank as well as lifetime living rights in the rear portion of the Amritsar property. Plaintiff No.2 and Smt. Kanwaljit Kaur had been bequeathed a sum of Rs.30 lakhs each in the form of fixed deposit Nos. 205060 and 205058 respectively in Punjab & Sind Bank. It is stated that the fact that Plaintiff No.1 was actually living in the Amritsar property showed that she was aware of the Will.

10. Defendant No.3 filed a written statement on 15th September 2005. It was contended that all the properties in respect of which the suit was filed were subject matter of the FS which was to the knowledge of the Plaintiffs and which FS had been duly acted upon. Defendant No.3 admitted to the execution of the Will dated 19th September 1996 and its subsequent revocation by late Shri Mohinder Singh on 29th September 1999. Defendant No.3 pleaded that Plaintiffs had deliberately not disclosed the fact of execution of another Will dated 21st May 2001 by late Shri Mohinder Singh which was in possession of Defendant No.2 Shri S. Ravinder Singh. It was claimed that under the FS the residential premises at 303 Sion Trombay Road (hereafter 'the Bombay property') vested exclusively with Defendant No.3. The fact that the FS was acted upon was borne out by the Power of Attorney ('PoA') executed by late Shri Mohinder Singh in favour of Defendant No.3 on 17th June 2002. A copy of the said PoA was filed with the written statement of Defendant No.3. It is stated that in the Will dated 21st May 2001, Shri Mohinder Singh gave 50% share in the Bombay property to Defendant No.3 as a bequest merely to facilitate transfer of the property to him at a lower rate of stamp duty.

11. In the replication filed by the Plaintiffs to the written statement of Defendant No.3, it was asserted that there was no FS and that the estate of late Shri Mohinder Singh was liable to be partitioned amongst the legal heirs equally. It was stated that FS was a forged and fabricated document and contradictory stands in relation thereto were taken by the different Defendants. The existence of any Will after the revocation of the earlier Will by late Shri Mohinder Singh on 29th June 1999 was denied. The Plaintiffs also

denied that there was another Will dated 21st May 2001. No such Will was produced by Defendant No.2 or 3. The PoA dated 17th June 2002 in favour of Defendant No.3 was also denied. In the replication filed to the written statement of Defendant No.2, the Plaintiffs specifically alleged that the Will dated 27th November 2003 was fabricated and could not be relied upon. In the replication to the written statement of Defendant No.1, the same stand was taken by the Plaintiffs denying the FS.

12. Defendant No.4 filed a written statement on 16th December 2006 supporting the Plaintiffs.

13. On 10th March 2006, the Court framed the following issues:

(1) Whether the Plaintiff and Defendant No.1 are in possession of the farm house at Chelmsford Country Club Farms in pursuance to the terms of the family settlement dated 29th July 1997? OPD (2) Whether the deceased late Sardar Mohinder Singh died intestate? OPP (3) Whether the deceased left behind Will dated 27th November 2003? OPD-2 (4) Whether the deceased left behind Will dated 21st May 2001? OPD-3 (5) Whether there is a valid, legal and enforceable Deed of Family Settlement dated 29th July 1997? If so its effect? OPD (6) Whether the suit is liable to be partitioned in respect of the estate of late Sardar Mohinder Singh as per preliminary submission No. 1 sub para (e) of the written statement of Defendant No.1? OPD

(7) Whether the Plaintiff is entitled to rendition of accounts of Mohinder Singh & Co?

(8) Relief.

14. As regards the interim reliefs, a detailed order was passed by the Court on 12th October 2006 with the consent of the parties as under:

"(i) Relating to various fixed deposits, referred to in Schedule-II to the plaint, ex-parte ad-interim order dated 24th January 2005 be vacated permitting encashment of any one or more FDRs so that a sum of Rs.1.8 crore is available.

(ii) Sum of Rs.1.8 crores aforesaid would be distributed equally amongst the 3 daughters and 3 sons of late S. Mohinder Singh.

(iii) Aforesaid distribution would be without to prejudice to the respective stands, rights and contentions of the parties.

(iv) Defendants 2 and 3 are appointed as joint receivers of the estate of late S. Mohinder Singh. They are also appointed as receiver to wind up the affairs of the partnership business Mohinder Singh & Company in which late S. Mohinder Singh had 1/3rd share/interest.

(v) Amounts which have to be realized and money spent for realisation would be accounted for by Defendants 2 and 3 in relation to the affairs to wind up the business of Mohinder Singh & Company.

(vi) Tax liabilities of the deceased or of the partnership firm would be met by Defendants 2 and 3 from out of the amounts realised by them from third parties pertaining to the business carried on by Mohinder Singh & Company.

(vii) It is clarified that the money realised and lying in the account of Mohinder Singh & Company would be utilized by Defendants 2 and 3 as aforesaid.

(viii) Accounts up to 30th June 2006 would be rendered by Defendants 2 and 3 pertaining to the affairs of Mohinder Singh & Company by 30th November 2006. For future, six monthly accounts would be rendered by filing the same under cover of an affidavit. Accounts would be rendered as of 30th June and 31st December of each calendar year. Necessary affidavits would be filed by 31st July and 31st January respectively.

(ix) Copies of the affidavits and accounts filed would be supplied to the Plaintiffs, Defendant No.1 and Defendant No.4.

(x) After utilizing the FDR(s) to distribute Rs.1.8 crores to the Plaintiffs and Defendants, remaining FDR(s) as per Schedule-II would be renewed for a further period of two years.

(xi) Parties will maintain status quo in respect of movable properties referred to in Schedule-I.

(xii) It is clearly understood that if it is ultimately found that Defendant No.1 is not entitled to any amount and has received his share under the family settlement relied upon by Defendants 2 and 3, sum of Rs.30 lacs received by Defendant No.1 would have to be refunded by him together with interest @12% per annum."

15. Certain other directions were issued in respect of the FDRs by the Court on 30th May 2007. On that date a Court Commissioner was appointed for recording the evidence. However, since the parties did not cooperate, the

Court by a subsequent order dated 27th July 2007 placed the matter before the Joint Registrar ('JR') for recording of the evidence.

16. On behalf of the Plaintiffs, Plaintiff No.1 was examined as PW-1. She filed her affidavit of evidence on 2nd September 2006 and was cross-examined on several dates till 16th July 2007 whereupon the evidence of the Plaintiffs was closed. Defendant No.1 filed his affidavit of evidence on 20th November 2007. The affidavits of evidence of Defendant No.2 Shri S. Ravinder Singh (DW-2) as well as of Shri Ashok Malhotra (DW-3) were filed on 23rd January 2008. The affidavit of evidence of Defendant No.3 Shri Gurcharan Singh (DW-3) was filed on 12th May 2008. DW-1 was cross-examined till 13th April 2009 when his evidence was closed. The affidavit of evidence of Defendant No.2 Shri Ravinder Singh (DW-2) was tendered on 16th April 2009 and he was cross-examined till 19th January 2010. Shri Ashok Malhotra (DW-2) tendered his affidavit of evidence on 27th January 2010 and was cross- examined till 13th January 2011. Shri Gurcharan Singh (DW-3) tendered his affidavit of evidence on 13th January 2011 and was cross-examined till 15th July 2011. Defendant No.4 informed the Court on 29th August 2011 that she was not inclined to adduce any evidence. The evidence was thereafter closed.

17. On 23rd January 2012, the Court directed that the applications filed by Defendants 1 and 2 under Section 340 Cr PC would be taken up at the time of final hearing of the suit. With the consent of the parties, on the same date i.e. 23rd January 2012, IA No. 13818 of 2011 was disposed of with directions for disposing of the plant and machinery lying at Panvel Store Yard. The LRs of deceased Defendant No.1 were also brought on record. IA No. 13819 of 2011

by Defendant No.3 was directed to be taken up at the time of final disposal of the suit.

18. The submissions of Mr. Manish Vashisht, learned counsel for the Plaintiffs, Mr. Jeevesh Nagrath learned counsel for Defendant No.4, Mr. V.P. Vaze and Mr. Samdarshi Sanjay, learned counsel for LRs of Defendant No.1, Mr. Meet Malhotra, Senior Advocate with Mr. Ravi S.S. Chauhan, Advocate for Defendant No.3 and Mr. Atul Nigam, learned counsel for Defendant No.2 have been heard.

19. It may be mentioned here that IA No. 19792 of 2013 was filed by Defendant No.4 towards the end of the hearing to bring on record the death certificate of the husband of Plaintiff No.2 and notice was issued in the application on 6th December 2013. No objection has been expressed to the said application. It is accordingly allowed and the death certificate of the husband of Plaintiff No.2 is taken on record.

20. There are certain facts which are not in dispute. The fact that late Shri Mohinder Singh made a Will on 19th September 1996 and subsequently revoked it on 29th June 1999 is not denied by any of the parties. However, on the existence of the FS and the Will dated 27th November 2003, there are different stands taken by the parties. The Plaintiffs and Defendant No.4 i.e. the daughters of late Shri Mohinder Singh deny the existence of either document. As far as Defendant No.1 is concerned, he relies on the FS but states that late Shri Mohinder Singh died intestate. In other words, he denies that late Shri Mohinder Singh left behind any Will. Defendant No.2 in his

written statement did not deny the FS but has propounded the Will dated 27th November 2003 which he exhibited as Ex.DW-2/B-1. Defendant No.3 relied on the FS and another Will dated 21st May 2001 which he failed to prove or produce.

21. Of the seven issues framed by the order dated 10th March 2006, the issues (3) to (6) were to be proved by the Defendants. Of the above issues, Issue No.4 can straightway be decided since the Will dated 21st May 2001 has not been produced by anyone. Therefore, issue (3) has not been proved and is accordingly decided against Defendant No.3.

22. Consequently, there are two main documents required to be proved by the Defendants. The first is the FS which Defendants 1 and 3 have relied upon and, as will be noticed hereafter, Defendant No.2 has given up at the trial. The second document is the Will dated 27th November 2003 which has been propounded only by Defendant No.2 and, therefore, is required to be proved by him.

23. Taking up the question of the FS, it requires to be noticed that the said document although termed as a 'family' settlement is purportedly only between late Shri Mohinder Singh, his three sons i.e. Defendants 1, 2 and 3 and their respective wives. The word 'family' is, therefore, a misnomer since it does not include the Plaintiffs and Defendant No.4 who are very much part of the family. Admittedly, they were not party to the FS.

24. The preamble to the FS states that there were disputes between the parties which are required to be resolved without mentioning what those disputes were. There are contradictory statements made by Defendants 1, 2 and 3 in this regard. According to Defendant No.3 negotiations for the FS started 6 to 8 months prior to its execution. Its terms and conditions were not settled prior to 29th July 1997, the date of execution. The drafts of the FS were not exchanged. However, according to Defendant No.1 the terms and conditions of the FS were agreed to during the earlier negotiations as well as the date of the signing. He, however, states that he does not know who drafted the FS. It was typed by Defendants 2 and 3. He states that it was only after the FS was drafted and shown to Defendant No.1 that discussions took place and it was only at the time of signing that he saw it. He states that he was not present when the decision was taken to execute the FS. It may be recalled that in his written statement, Defendant No.1 claimed that he knew of the FS only when Defendant No.2 produced it with his written statement and not earlier and he offered this as an explanation as to why he continued paying rent for the property at C-5, Green Park Extension, New Delhi.

25. Defendant No.2 has taken a completely different stand during trial. Although in his written statement he adverted to the FS, he seems to have given it up in its entirety in the trial. In his cross-examination on 22nd April 2009 he stated as under:

"Q. Kindly see your affidavit accompanying the written statement and para 2 thereof where you have sworn that written statement has been drafted under your instructions and contents are true and correct to your knowledge. Kindly tell us is your affidavit false?

A. The written statement was drafted by my lawyer as per documents given by me. The contents of the written statement are true to my knowledge. My affidavit filed along with written statement is wrong.

Q. Have you ever raised any protest regarding the family settlement?

A. I have never protested against the family settlement as it was never acted upon.

Q. What do you mean by never acted upon?

A. None of the conditions mentioned in the family settlement have been acted upon."

26. During his cross-examination on 15th December 2009 he gave the following answers:

"Q. On what basis have you sworn your affidavit? (Witness is shown last 5-6 lines of paragraph 5 of his affidavit Ext. DW2/A wherein it is written "the alleged family settlement dated 29th July 1997 is not registered in sufficiently stamped, obtained without consent, illegal and void")

A. It was on the basis of advice of my counsel. I told my lawyer at the time of filing written statement that the family settlement was not acted upon as none of the properties were transferred in anybody's name.

Q. In your cross-examination dated 22nd April 2009 by Mr. Bindra, counsel for the Defendant No.1, you had stated that you came to know that the family settlement was not acted upon before the trial stage. Now you have just said that you knew this and had informed your counsel even at the stage of filing written statement, how do you reconcile these two statements?

A. Both the statements are correct. (vol. I had put all the facts before my lawyer at the time of preparation of my written statement. I do not know how he incorporated the fact. But later on at the time when trial had started I came to know that none of the terms of family settlement had been complied with.)

Before that even I was not sure whether family settlement had been acted upon or not."

27. During his cross-examination on 18th January 2010 Defendant No. 2 stated that the FS was "created" by late Shri Mohinder Singh and when asked to explain stated that the FS was made by late Shri Mohinder Singh "on his own and he asked us to sign". He stated that "me and my wife signed the document as my father ordered us to sign. Even though we had not understood the contents of the same". He gave the following answers in response to questions regarding the FS:

"Q. Is it correct that the statement made by you in respect of the division of the properties by way of the family settlement is incorrect?

A. Yes, the statement is incorrect. The property was not divided by the family settlement. The averments made in the written statement have been made by mistake.

Q. When did you become aware of this mistake committed by you?

A. I became aware of this mistake for the first time just now."

28. In view of the above stand of Defendant No.2, it has fallen to the lot of Defendants 1 and 3 to prove the FS. However, as is noticed earlier there are

contradictions in the submissions made by Defendants 1 and 3 as regards the FS. Learned counsel for Defendant No.1 relied on the decisions in Ganga Saran v. Firm Ram Charan Ram Gopal AIR (39) 1952 SC 9, Biswanath Prasad v. Dwarka Prasad AIR 1974 SC 117, Ultramatix Systems Pvt. Ltd. v. State Bank of India 2007 (6) ALL MR 327 and Michael Herisuasai Joseph v. Miss. Carmal 2006 (2) ALL MR 639 to urge that admissions were binding on the parties making them and in the present case there were admissions both by the Plaintiffs and Defendant No.2 in the pleadings and proceedings in relation to the FS which were binding on them and which could not be resiled from. Further Defendant No.3 has contended that only he had taken a consistent stand on the FS and the parties cannot be allowed to resile from their respective admissions in regard thereto. Reliance is placed on the decision in Kale v. Deputy Director of Consolidation (1976) 3 SCR 202.

29. The submission of Defendants 1 and 3 is untenable inasmuch as there is no admission by the Plaintiffs as to the existence of the FS. The burden was on Defendants 1 and 3 to show that the FS was known to the Plaintiffs or accepted by the Plaintiffs and was actually acted upon by the parties. That burden cannot be shifted to the Plaintiffs. Plaintiff No.1 has been consistent in her stand that she was not aware of the FS. She stated in her cross- examination in response to the question as to when she first saw the FS that it was shown to her by her counsel "after it was filed in the present case". Defendant No.3 in his cross-examination (at page 319) on 14th January 2011 stated that it was wrong to suggest that "my sisters were not aware about the said family settlement, however, it is correct that they were not a party to the family settlement. It is correct that they were not physically present when the

said family settlement was executed." Defendant No.3 also admitted that "there was no litigation amongst family members during the lifetime of our father late Shri Mohinder Singh qua the properties mentioned at Serial Nos.

(b) to (f) mentioned in Schedule-E of the FS." He also admitted that "there is no reference of specific dispute amongst the LRs of Sardar Mohinder Singh during his lifetime as mentioned in the FS except as referred to in para 3 of the FS". The decision in Kale is unhelpful to Defendant No.3 since according to the said decision it must first be shown that the FS was bonafide "so as to resolve the family dispute". When three members of the family i.e. the three daughters of late Shri Mohinder Singh, are not even the parties to the FS and were not even shown the FS or made aware of it, it cannot be called a FS in the first place. Kale was not a case where some members of the family were not even parties to the FS. Even in Biswanath Prasad, the facts were different from those in the present case. In the present case even in the written statements of the parties there is no clear stand as to whether the FS has been ever acted upon. As already noticed, Defendant No.2 does not agree with Defendants 1 and 3 in this regard.

30. There are numerous other difficulties in accepting the FS. One of the terms of the FS is that Shri Mohinder Singh was to be paid Rs.50,000 per month by Defendant No.1 and Rs.15,000 per month by Defendant No.3. Both these Defendants have admitted in their cross-examinations that they never paid him the said sums. Defendant No.3 tried to say that what he had paid to Shri Mohinder Singh was far more than the aforementioned sum. However, the fact remains that pursuant to the FS, the amount as agreed to be paid was not paid. Secondly, as per the FS, Shri Mohinder Singh had to resign from

the partnership firm. That was never done. Defendants 2 and 3 and the wife of Defendant No.2 had to transfer their shares in the Mohinder Singh & Co. Pvt. Ltd. to Defendant No.1. There is nothing to show that this was done.

31. Importantly, if in terms of the FS, Defendant No. 1 was to get the property at C-5, Green Park Extension, New Delhi, it is inconceivable that he would continue to pay the rent for that very property to the Defendant No.2, who admittedly owned 50% share in the said property. The long-winded explanation that Defendant No.1 gave in his written statement for this inconsistency is unconvincing. He continued paying rent for the said property not only to his own wife but also to the wife of Defendant No.2. In the reply dated 22nd March 2005 sent by his lawyer under his instructions to the legal notice sent by Smt. Amita Gandok, he makes no mention of the FS and admits that she is the owner of 50% of the property. He never made an attempt to get the property at C-5, Green Park Extension, New Delhi transferred in his name on the basis of the FS. Further, in terms of the FS, the property at E-8, Greater Kailash-I, New Delhi was to go to the share of Defendant No.1. It continues to remain in the name of his son.

32. In the deed of revocation dated 29th June 1999 rejecting the earlier Will dated 19th September 1996 there is no mention of the FS at all. Also the Will dated 27th November 2003 makes no mention of the FS. The deed of revocation states that all powers and rights given till that date to Defendants 1 and 3 were withdrawn and revoked "forever". This would include the rights purportedly given to them under the FS. It has come in the evidence of the parties that none of them ever presented the FS to any statutory authority to

get the properties mutated in their respective names in terms of the FS. The terms of the FS were not communicated to any other party.

33. All the above factors persuade the Court to hold that the FS was in fact never acted upon between the parties and cannot be, therefore, a valid FS so as to deprive the Plaintiffs as well as Defendant No.4 of their respective shares in the estate of late Shri Mohinder Singh. The above conclusion is independent of the other contentions of the Plaintiffs that the FS, inasmuch as it purports to be a deed of partition in terms of Section 2(15) of the Stamp Act, had to be properly stamped as per Article 45 of the Delhi Stamp Duty Act and was liable to be impounded under Section 33 of the Stamps Act. Further under Section 17(1) (b) of the Registration Act, 1908 the FS was required to be registered mandatorily in view of rights created and the value of immovable property being more than Rs.100.

34. The conclusion of the Court that the FS was not acted upon by the parties and was perhaps not intended to be acted upon, would remain unchanged even if the FS was properly stamped and registered. Consequently, the Court refrains from impounding of the FS requiring the parties there to pay the requisite duty and registration charges thereon.

35. In that view of the matter, the Court answers Issue No.5 against the Defendants and in favour of the Plaintiffs by holding that the FS was not a valid, legal and enforceable document.

36. Issue No. 6 is answered by holding that the estate of late Shri Mohinder Singh now comprises the properties which also comprise the FS and the plea of Defendant No.1 that the properties that stood divided in terms of the FS should be excluded from the estate of late Shri Mohinder Singh as mentioned in preliminary submission No. 1 sub para (e) of the written statement of Defendant No.1 is hereby negatived. Issue No. 6 is answered against Defendant No.1.

37. Issue No.1 is answered in favour of the Plaintiffs and against the Defendants 1 to 3 by holding that the Plaintiff No.1 and Defendant No.1 are in possession of the Chelmsford Club property but not pursuant to the FS.

38. The other issue that requires to be considered is the validity of the Will dated 27th November 2003. The above Will is propounded only by Defendant No.2. Even Defendant No.3 does not mention anything about the said Will in his written statement and he too does not rely upon it. Defendant No.1 makes no reference of it. The suspicious circumstances pointed out by the Plaintiffs and Defendant No.4 as regards the Will dated 27th November 2003 are hereafter discussed.

39. In the recitals to the Will, it is stated that Plaintiff No.1 was not living in her matrimonial home but Plaintiff No.2 and Defendant No.4 were happily married. Admittedly, at the time of execution of the Will Defendant No.4 was a widow. It is not possible to imagine that late Shri Mohinder Singh would have made such a glaring error in the Will. The statement made appears to be "unnatural and improbable" and to the Plaintiffs' case that it was perhaps not

as a result of the sound state of mind of the Testator merits acceptance. In fact, the revocation of the Will dated 19th September 1996 was only to accommodate Plaintiff No.1.

40. As regards the state of mind of the Testator, Defendant No.1 has stated that his father had been fitted a pace maker in 2002 and he was critically ill six months prior to his death. The father was bed-ridden and the Will was dated one month prior to his death. Although physical infirmity may not per se lead to an inference of absence of a proper frame of mind, the fact that he was seriously ill gives rise to a reasonable doubt whether he was in a frame frame of mind to execute a Will at all.

41. The third suspicious circumstance is that the Testator was residing with Plaintiff No.1 and Defendant No.1 and not with Defendant No.2. There is nothing to show that the Testator was regularly attending the office even one month prior to his death except the statement of Shri Ashok Malhotra the witness who states that he attested it in the office of late Shri Mohinder Singh. This has to be contrasted with the statement of Defendant No.3 that from 1997 onwards late Shri Mohinder Singh stopped attending the Connaught Place office and was carrying on operation only from C-5, Green Park Extension, New Delhi whereas Defendants 2 and 3 used to be in the Connaught Place office.

42. The alleged 'discovery' of the Will dated 27th November 2003 has itself created a suspicion. It is seen that during the mediation that took place following the death of late Shri Mohinder Singh, Defendants 2 and 3

maintained that there was no Will. Defendant No.2 admits that the Will was not mentioned when all of them met at Sardar Iqbal Singh Kohli's house in October 2004. He states that copies of the Will were given to all the brothers and sisters on 25th December 2003. However, none of the others has supported this contention. Defendant No.3 on the other hand states that he saw the Will for the first time in 2004 when it was shown to him by Defendant No.2 but he did not ask for the copy of the Will. It is all the more strange that Shri Ashok Malhotra was known to the Defendant No.2, that is, unlikely that Defendant No.2 did not have knowledge of the Will contemporaneous to its attestation. The statement made by Defendant No.2 in his cross-examination that after dinner on the date of their father's death they searched the house for the Will, does not appear to be convincing.

43. The next suspicious circumstance is regarding the other attesting witness to the Will. Mr. Mayank Anand was not produced by Defendant No.2 as a witness. No one knew who Mr. Mayank Anand was.

44. It is strange that till the filing of the suit, Defendant No.2 never attempted to get the Will probated. He has no convincing explanation as to why he kept holding on the Will without getting it probated even though it is plain that the parties bitterly argued during the mediation proceedings in the presence of Sardar Iqbal Singh Kohli in October 2004. He admits that he had asserted his rights during mediation and his brothers and sisters did not agree. Yet he did not file any suit. In his cross-examination on 29th April 2009 Defendant No.2 stated: "I have not filed any proceedings seeking probate of the Will dated 29th November 2003 as I have been advised by my counsel that the said

question would be decided in the present suit. I have not filed any proceeding seeking ownership of the property falling to my share since the present suit is pending". The answers given by Defendant No.2 for not obtaining probate of the Will dated 27th November 2003 are not at all convincing. Despite knowing that there was a bitter disagreement between the siblings on the division of the estate of late Shri Mohinder Singh and despite knowing that the Will dated 27th November 2003 was in his favour, if indeed such a document existed, it is unlikely that he did not disclose it to his siblings and even if he did that he did not seek to probate it.

45. The burden is on Defendant No.2, as propounder of the Will dated 27th November 2003, to remove the suspicious circumstances surrounding it. This is clear from the law explained by the Supreme Court in H. Venkatachala Iyengar v. B.N.Thimmajamma AIR 1959 SC 443 and all the subsequent decisions including Ramchandra Rambux v. Champabai AIR 1965 SC 354, Bharpur Singh v. Shamsher Singh (2009) 3 SCC 687 and Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao (2006) 13 SCC 433. The Court finds that Defendant No.2 has not been able to displace the suspicious circumstances surrounding the Will dated 27th November 2003.

46. In that view of the matter the Court does not consider it necessary to examine the contention of learned counsel for the Plaintiffs as well as Defendant No.4 that this Court as a Civil Court has no jurisdiction to adjudicate the validity of the Will dated 27th November 2003 and the burden was on Defendant No.2 to get the Will probated in the appropriate Court.

47. Consequently, Issue No.3 is decided against Defendant No.2 and in favour of Plaintiffs and Defendant No.4.

48. Issue No.2 is answered in favour of the Plaintiffs and against the Defendants by holding that late Shri Mohinder Singh died intestate.

49. As regards Issue No.7, considering that late Shri Mohinder Singh had a 1/3rd share in the firm M/s. Mohinder Singh & Co., the Plaintiffs would be entitled to rendition of accounts of the said firm. Issue No. 7 is answered accordingly and a direction is issued to Defendants 1 to 3 to file in Court within a period of twelve weeks, with an advance copy to counsel for the other parties, the full audited accounts of the said firm for the last three years of its existence along with the relevant books of accounts and records.

50. The court hereby declares the 1/6th share each of the Plaintiffs and Defendants 1 to 4 in the estate of late Shri Mohinder Singh comprising all his movable and immovable properties as set out in Schedules I to III to the plaint. A preliminary decree of partition to that effect is hereby passed. The decree sheet be drawn up accordingly.

51. The parties will now file their respective written notes of submissions regarding division of the estate of late Shri Mohinder Singh by metes and bounds, including reports of valuation of the immoveable properties by approved valuers, within a period of twelve weeks from today.

52. List on 7th May 2014 in the 'Short Cause' before the Regular Bench for further hearing as well as consideration of the pending applications.

53. Not to be treated as part-heard.

S. MURALIDHAR, J JANUARY 8, 2014 dn