Karan Chopra & Ors. vs Meenakshi Khanna & Anr.
2015 Latest Caselaw 1198 Del

$~A-44
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                               Date of Decision: February 10, 2015


+     CS(OS) 1128/2013

      KARAN CHOPRA & ORS.                               ..... Plaintiffs
                  Through:              Mr.Madan Gera, Advocate.

                   versus

      MEENAKSHI KHANNA & ANR.                ..... Defendants
                  Through: Ms.Anjana Prabhakar, Mr.Harsh
                           Prabhakar and Mr.Naroj Kumar
                           Sahu, Advocates for D-1

CORAM:
HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (Oral)

IA No.9527/2013 Learned counsel appearing for the defendants submits that she has no objection in case the interim order dated 30.5.2013 is made absolute. Accordingly, the interim order directing the parties to maintain status quo qua title, possession and construction of the roof above the second floor of property No.D-2A/7, Vasant Vihar, New Delhi is made absolute.

Application stands disposed of.

IA No.18619/2013 This is an application under Order 39 Rule 1 and 2 CPC filed by the defendant. Learned counsel for the defendant seeks liberty to withdraw the present application.

Application is dismissed as withdrawn accordingly. IA No.17528/2014 This is an application under Order 39 Rule 1 and 2 CPC filed by

the plaintiff. Learned counsel for the plaintiff seeks liberty to withdraw the present application.

Application is dismissed as withdrawn accordingly. IA No.20845/2014 This is an application filed on behalf of defendant seeking to give direction to the plaintiff to remove the written board from the passage of the staircase leading to the second floor of the suit property in possession and ownership of the defendant.

Learned counsel appearing for the defendant states that after filing of this application the plaintiffs have removed the Board. Plaintiff No.3 is present in person and states that he has never put any board and will not put any such board disputing the rights of defendant pertaining to renting the said property in future. The plaintiff shall remain bound to his statement The application stands disposed of.

I.A.No. 17527/2014 (u/O 12 R 6 CPC)

1. This is an application filed by the plaintiff under Order XII Rule 6 CPC by the plaintiff.

2. The plaintiff has filed the accompanying suit seeking a decree of declaration for declaring that the plaintiffs are the rightful owners and entitled to 75% of the terrace rights over and above the second floor and equal rights in the land underneath property bearing Municipal No.D- 2A/7, Vasant Vihar, and New Delhi-110057. Other consequential reliefs are also prayed for.

3. It is averred in the plaint that the plot No.7, Street No. D-2/A, Vasant Vihar, New Delhi measuring 400 sq. yds was allotted to the father and the mother of plaintiff No. 1 and defendant No.1 i.e. Sh.O.P.Chopra and Smt. Prem Chopra in 1971. Their parents built the ground floor, first

floor and second floor, a garage on the ground floor and two servant quarters over and above the garage on the roof of the second floor. The parents were hence the owners of undivided 50% share. The mother executed a Will on 05.08.1990 whereby she bequeathed her 50% undivided share to plaintiff No.1 (son), plaintiff No.2 (daughter-in-law) and plaintiff No.3 (grandson) with a rider.

4. The mother died on 11.08.1990. The plaintiffs hence claim to have become the owners of 50% undivided share of the property. Thereafter the father filed a suit against the plaintiff. Subsequently it is urged that in October 1990 an oral settlement took place between the plaintiff and the father, Sh.O.P.Chopra whereby exclusive rights to the first floor and second floor of the property went to the share of the father and the ground floor went to the share of the plaintiffs. Thereafter the suit was compromised in terms of the earlier settlement. In terms of the settlement a decree for declaration dated 08.07.1992 was passed.

5. Sh.O.P. Chopra executed a Will dated 23.11.1998 whereby he bequeathed the entire first floor, garage and servant rooms over the garage on the roof of the second floor to the plaintiffs and the second floor of the property was bequeathed to the defendants No.1 (daughter) and defendant No. 2 (husband of defendant No. 1) with a rider.

6. Based on the above, after the death of the father, it is averred that now the plaintiffs are the absolute owners of the entire ground floor and entire first floor, one garage, two servant rooms over the garage on the roof of the second floor and 75% share of the roof above the second floor. The present suit pertains to the said 75% share of the roof above the second floor. It is claimed that on the basis of the Will of the mother dated 05.08.1990 the mother bequeathed her 50% undivided share in the full property to the plaintiffs. Hence it is claimed that by virtue of this Will the plaintiff has 50% undivided share on the terrance above 2nd floor.

Another 25% is claimed as the father, late Sh.O.P.Chopra had 50% undivided rights in the said roof. The Will executed by him dated 23.11.1998 does not deal with the roof rights. Hence, it is averred that being a Class-1 legal heir plaintiff No.1 will get half of the 50% undivided share of the father in respect of the roof rights i.e. 25% undivided share. Hence a total of 75% in the roof rights is claimed.

7. The defendants have admitted the Will of the father dated 23.11.1998. They however denied the Will dated 05.08.1990 of the mother stating that the same has been executed under suspicious circumstances merely six days prior to the death of the testator.

8. Learned counsel appearing for the plaintiffs has strenuously submitted that there are admissions which warrants passing of a decree in favour of the plaintiff. It is averred that as per the Will of the father he owns only the first and second floor, garage and servant rooms over the second floor. He has bequeathed the said two floors as elaborated above. He submits that this Will has been admitted even in admission/denial as Ex.P-2 by the defendants. He submits that from the admission of the Will of the father dated 23.11.1998, it is implicit that the defendants have also admitted the Will of the mother and the partition that has taken place between the plaintiffs and late Sh.O.P.Chopra, the father. He also relies upon an affidavit purportedly filed by defendant No.1 which was produced before MCD for purposes of carrying out mutation after the death of the mother. The said affidavit notes that the Will dated 05.08.1990 left behind by late Smt. Prem Chopra the mother is valid.

9. Learned counsel appearing for the defendants has vehemently submitted that the Will of the mother has been produced for the first time on filing of the suit. The defendants have not accepted the Will and have given various reasons as to why the same is invalid including the fact that it is executed only a few days prior to the death of the mother throwing

grave suspicion on the same. The other objections have also been pointed out. It is also averred that defendant No.1 never signed the said affidavit purportedly dated September 1990 and the same has been denied in the course of admission/denial of the documents.

10. The order XII Rule VI CPC reads follows:-

"6. Judgment on admissions.- (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of an party or of its own motion and without waiting for the determination of any other question between the parties, make such Order or give such judgment as It may think fit, having regard to such admissions.

(2) whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."

11. For the purpose of application of Order XII Rule 6 CPC, I may refer to the judgment of the Division Bench of this Court in the case of Vijay Mayne vs. Satya Bhushan Kumar, 142 (2007) DLT 483 (DB) where in paragraph 12 this Court held as under:-

"12. It is not necessary to burden this judgment by extracting from the aforesaid authoritative pronouncement as the learned Single Judge has accomplished this exercise with prudence and dexterity. Purpose would be served by summarizing the legal position which is that the purpose and objective in enacting the provision like Order 12 Rule 6 CPC is to enable the Court to pronounce the judgment on admission when the admissions are sufficient to entitle the plaintiff to get the decree, inasmuch as such a provision is enacted to render speedy judgments and save the parties from going through the rigmarole of a protracted trial. The admissions can be in the pleadings or otherwise, namely, in documents, correspondence etc. These can be oral or in writing. The admissions can even be constructive admissions and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement while answering specific pleas

raised by the plaintiff. The admissions can even be inferred from the facts and circumstances of the case. No doubt, for this purpose, the Court has to scrutinize the pleadings in their detail and has to come to the conclusion that the admissions are unequivocal, unqualified and unambiguous. In the process, the Court is also required to ignore vague, evasive and unspecific denials as well as inconsistent pleas taken in the written statement and replies. Even a contrary stand taken while arguing the matter would be required to be ignored."

12. The issue is whether the admissions relied upon by the plaintiffs are unequivocal, unqualified and unambiguous to warrant passing a decree. In my opinion the admissions relied upon by the plaintiffs are not unqualified, unequivocal and unambiguous.

13. There are two documents on which the plaintiffs rely to seek 75% share in the undivided share in the roof over the second floor. First is the Will of the mother dated 05.08.1990. There is clear denial of the said Will by the defendants who give detailed reasons as to why the Will has been allegedly executed under the suspicious circumstances. The suspicious circumstances are that the Will has been executed 6 days prior to the death of the testator when she was critically ill i.e. she died on 11.08.1990 whereas the Will is dated 05.08.1990; the Will has been registered after the death of the testator. It is further urged that the Will has given all the benefits to the profounder of the Will who have actively participated in its execution and registration. It is further urged that the Will has been suppressed for 23 years and defendant No. 1 was never aware of any such Will.

14. The next document on which the plaintiff rely is the affidavit of the defendant No.1. The affidavit is said to have been filed before MCD which is said to be executed in September 1990 (there is no complete date on the affidavit). The defendants in their written statement have denied having executed this affidavit. It is stated that on the insistence of

plaintiff No.1, defendant No.1 had signed on a blank stamp paper as she was leaving for UK and would not be available. The document was signed as plaintiff No.1 held out that the mutation was to be carried out in the joint name of the parties. Defendant No.1 trusted plaintiff No.1 who is her real brother and signed the documents in blank. No doubt, the affidavit as produced by the plaintiff has the effect of admitting the validity and legality of the Will dated 5.8.1990. However, defendant No.1 has denied the execution of the affidavit. It may be an admission which has been explained away by saying that the documents were got executed in blank from her in circumstances which have been explained.

15. In my opinion, this matter would require trial as to whether the said affidavit was duly executed by defendant No.1 voluntarily. There is no admission regarding the Will of the mother dated 05.08.1990. The Will of the mother would also have to be proved by the plaintiff before it can be said that he is the owner of 75% of undivided share of the terrace above second floor.

16. Merely because the Will dated 23.11.1998 of the father is admitted, it cannot lead to an inference of any unequivocal and unqualified admission. The Will of the father does not mentions any Will of the mother or about any right having devolved upon the plaintiffs pursuant to the Will of the mother.

17. In the light of the above, there is no merit in the application and the same is dismissed.

CS(OS) 1128/2013 List on 13th April, 2015 before the Joint Registrar.

JAYANT NATH, J

FEBRURARY 10, 2015 n/rb