Sugeeta Chhabra vs Harish Nayar
2014 Latest Caselaw 44 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+    IA 5013/2012 in CS(OS) 1342/2011

%                                         Reserved on: 22nd October, 2013
                                          Decided on: 3rd January, 2014


      SUGEETA CHHABRA                                  ..... Plaintiff
                  Through             Mr. Sanjeev Sindhwani, Sr. Adv. with
                                      Mr. Sanjay Dua, Adv.
                         versus

      HARISH NAYAR                                     ..... Defendant
                         Through      Mr. R.P. Sharma, Adv.

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
IA 5013/2012 (O.XII R.6 CPC by plaintiff)


1.

By this application the plaintiff seeks judgment on admission. Learned counsel for the plaintiff in support of the application contends that the defence set up by the defendant not being plausible, a decree under Order XII Rule 6 CPC is required to be passed in favour of the plaintiff. The plaintiff has sought the relief of partition of the property bearing No. 41 Prithvi Raj Road, New Delhi (hereinafter referred to as the 'suit property') by meets and bounds and further a decree of partition being the owner of 50% share in the movable assets owned by late Shri Ram Gopal Nayar, rendition of accounts and permanent injunction. The defendant who is the brother of the plaintiff has set up a defence that the deceased father left a Will and thus the plaintiff is not entitled to the reliefs claimed. The Will

allegedly left behind by the deceased father is neither signed nor executed by the deceased, nor witnessed. Further even as per the correspondence relied by the defendant the draft Will was sent by the counsel of the deceased father on 9th February, 2001, the deceased father survived till 29th October, 2009 and had not executed the Will. It is, thus, apparent that he had no intention to execute the Will. Relying upon Section 63 of the Indian Succession Act, 1925 it is stated that a Will has to be executed by the testator by signing it and by attestation of two witnesses who have seen the testator sign the document. Unless the mandatory requirements are fulfilled, the document does not qualify to be a Will. Further, under Section 68 of the Evidence Act, a document which is required to be attested can be proved only if it is attested. The defence of the defendant thus holds no legs and it would be deemed that the deceased father died intestate. Thus the plaintiff is entitled to partition of the suit property. Reliance is placed on P.P.A. Impex Pvt. Ltd. Vs. Mangal Sain Mittal 166 (2010) DLT 84 and Grammy Communications Pvt. Ltd. Vs. EMAAR MGF Land Ltd. 202 (2013) DLT 756.

2. Learned counsel for the defendant on the other hand contends that whether the document filed by the defendant is a Will or not in the eyes of law is required to be proved during trial and merely because the Will is neither signed nor attested, the defendant cannot be non-suited at this stage. The deceased father of the parties has left various amendments sought to be made in the Will in his own handwriting which the defendant would prove during trial. Besides the defendant has taken preliminary objections regarding Court fees etc., and without deciding the same the suit of the plaintiff cannot be decreed. For invoking Order XII Rule 6 CPC the plaintiff

is required to show unambiguous admissions. The judgments relied upon by the plaintiff relate to landlord tenant disputes and have no application to the facts of the present case.

3. Heard learned counsel for the parties and perused the pleadings. The plaintiff has filed the present suit for partition, permanent injunction and rendition of accounts as noted above. The plaintiff and defendant are sister and brother being daughter and son of late Shri Ram Gopal Nayar and Smt. Sharda Nayar. Late Shri Ram Gopal Nayar, deceased father of the plaintiff and defendant passed away on 29th October, 2009. It is thus the claim of the plaintiff that the plaintiff and defendant being the only class-I legal heirs of the deceased are entitled to 50% of the immovable and movable assets left behind by the deceased, as the mother Smt. Sharda Nayar pre-deceased the father on 27th December, 1976. The deceased owned and possessed a number of properties and movable assets as noted in Schedule A with the plaint. The deceased was co-owner of the suit property with his wife late Smt. Sharda Nayar, the deceased mother of the plaintiff and defendant. The plaintiff is entitled to 50% share in the suit property consequent upon the death of the deceased father, however with a view to keep harmony and good relations in the family, the plaintiff is not pressing and claiming the share which the defendant claims to have succeeded on the basis of the alleged Will of the mother. The plaintiff is, however, claiming 25% in the suit property being half the share inherited from the estate of the deceased father. The defence set up by the defendant in the written statement is that the plaintiff is fully aware that the deceased father left a Will written in his own hand. He had instructed his lawyer to prepare his Will who vide letter dated

9th February, 2001 sent a draft Will duly prepared by him as instructed by the deceased. The said Will was corrected by the deceased father in his own hand at different places and slips written in his own hands were attached by him wherever he wanted to make the changes. Thus, a valid and legally executed Will was left behind by the deceased which decides the rights of the parties. As per the Will left by the deceased 50% share in the suit property belonged to the defendant and the remaining 50% share which was held by the deceased was bequeathed by him in favour of his grandson Shri Raghav Nayar and thus the grandson is the owner of the 50% share left behind by the deceased and not the plaintiff. The contention that the deceased died intestate is wholly incorrect.

4. Thus, the parties do not dispute that the suit property was owned both by the deceased father and the mother. The plaintiff does not in the present suit claim 50% of the share in the suit property which has fallen to the defendant pursuant to the Will of the deceased mother, however seeks half the share in the 50% share of the deceased father. Thus, she seeks 1/4 th share in the suit property.

5. A perusal of the alleged Will filed by the defendant shows that on a draft the deceased has purportedly made corrections, however it is admitted fact that after the said corrections the deceased had neither signed and executed the Will nor the same is attested by the witnesses. The case of the defendant is that the factum of execution of the Will is required to be proved during the trial.

6. It is an admitted fact that the Will is neither signed by the testator nor thumb-marked which would show that he intended to give effect to the

writing as a Will. Further, a Will is required to be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to the Will. Section 68 of the Evidence Act provides as under:

"68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908 ), unless its execution by the person by whom it purports to have been executed is specifically denied.]

7. Thus, in view of the legal position even if the defendant is permitted to lead evidence he cannot demonstrate that the purported Will was signed and executed by the testator or attested by the witnesses and thus cannot prove the Will as per Section 68 of the Evidence Act. Moreover, the defendant has placed on record a letter dated 9th February, 2001 sent by Shri V. Kumeria, Advocate to the deceased father enclosing along with it a Will which was to be signed by the testator and the witnesses simultaneously on all the pages. The deceased passed away on 29th October, 2009 and in the meantime even as per the case of the defendant he only made the alleged corrections in the Will. It is, thus, apparent that the deceased had no intention to execute the Will for the period of over more than 8 years and it continued to be in the draft form. Since the defendant even if permitted to lead evidence will not be able to prove the execution of a legal and valid Will, it would be thus deemed that the deceased father passed away intestate. In view thereof, the

plea of the plaintiff that she is entitled to 1/4th share in the suit property and half the share in the movable assets of the deceased father is required to be allowed.

8. This Court in P.P.A. Impex Pvt. Ltd. (supra) held that as regards Order XII Rule 6 CPC is concerned, the Supreme Court has recommended resort to this provision to bring a quick end wherever a vexatious and false defence has been presented. The approach to be taken under Order XII Rule 6 is akin to what has been enunciated by the Supreme Court in Mechalac Engineers & Manufacturers Vs. Basic Equipment Corporation (1976) 4 SCC 687 in the context of Order XXXVII of CPC with regard to granting leave to defend in a summary suit. If the defence amounts to moonshine, it should be summarily dismissed by not granting leave to defend and by decreeing the suit forthwith. This legal position was further reiterated in Grammy Communications Pvt. Ltd. (supra) wherein this Court held that if the defence is found to be moonshine, the Court shall be justified in passing a decree on admission on the ground that the defendant has not disclosed a triable defence. Learned counsel for the defendant has also contended that the defendant has taken the preliminary objection of the suit being not properly valued for the purposes of Court fees and jurisdiction. However, it may be noted that the claim of the plaintiff to the suit property is as a co-owner being the legal heir of the deceased father and would be thus deemed to be in constructive possession of the suit property.

9. Consequently, the application is disposed of passing a preliminary

decree in favour of the plaintiff and against the defendant holding that the

plaintiff is entitled to the partition of the suit property to the extent of 1/4 th

share in the suit property and half the share in the movable assets left behind

by the deceased father as mentioned in the Schedule A.

(MUKTA GUPTA) JUDGE JANUARY 03, 2014 'ga'