Munish Sharma & Ors vs Lalit Sharma & Ors
2015 Latest Caselaw 4675 Del

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*IN THE HIGH COURT OF DELHI AT NEW DELHI
                                            Date of Reserve: April 09, 2015
                                            Date of Decision: July 03, 2015
+      IA 15473/2013 in CS(OS) 1857/2013

       MUNISH SHARMA & ORS                                ..... Plaintiffs
                   Through               Mr.Rajeshwar Kr. Gupta Advocate

                           versus

       LALIT SHARMA & ORS                            ..... Defendants
                    Through              Mr.Sudhanshu Batra, Sr. Advocate
                                         with Mr. Shailesh Rana, Advocate
                                         for D-1.
                                         Mr. Abhishek Kr. Singh, Advocate
                                         for Mr.Kunal Sharma, Advocates
                                         for D-4.
                                         Mr.M.K. Vashish, Advocate for D-
                                         5.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.

I.A. 15473/2013

1. The present application is filed by the plaintiffs seeking an injunction to restrain the defendants from selling, transferring or alienating the suit property.

2. The plaintiff has filed the accompanying suit for a decree declaring the relinquishment deed dated 27.02.2004 and the Will dated 11.12.2008 in respect of the suit property i.e. House No.93, Surya Niketan, Vikas Marg, New Delhi, as void and also to declare that the plaintiffs are the owner of ¼ share of the suit property.

3. It is the case of the plaintiffs that the plaintiffs are the legal heirs of late Sh. Ishwari Datt Sharma S/o late Sh. Hari Datt Sharma. Defendants No.1 to 3 are the brothers of late Sh. Ishwari Datt Sharma. The said late Sh. Hari Datt Sharma had five sons namely, defendants No.1 to 3, late Sh.Ishwari Datt Sharma who is now represented by his legal heirs i.e. the plaintiffs and Sh. Sunil Sharma who expired in 2007 without any children or spouse. Shri Hari Datt Sharma was a member and shareholder of defendant No.5 - a Cooperative House Building Society. The suit property being a land, was allotted to Sh. Hari Datt Sharma consequent to draw of lots. The plot was thereafter constructed upon. It is urged that Sh. Hari Datt Sharma had a joint Hindu Family and the said plot was constructed as coparcenary property. Sh. Hari Dutt Sharma died on 30.01.1997.

4. All the sons of late Sh. Hari Dutt Sharma namely late Sh. Ishwari Dutt Sharma, defendants no.1 to 3 and late Sh. Sunil Sharma executed a relinquishment deed dated 27.02.2004 in favour of their mother Smt. Kamla Sharma, which was duly registered. The said Smt. Kamla Sharma on the basis of the said relinquishment deed got lease hold rights of property mutated in her name. The plaintiffs challenge the relinquishment deed arguing that being coparceners of Hindu Undivided Family, late Sh. Ishwari Dutt Sharma and his brother could not execute relinquishment deed in favour of Smt. Kamla Sharma.

5. It is further stated that under the influence and under coercion from the defendant no.1, late Smt. Kamla Sharma executed a Will dated 11.12.2008 which was duly registered in favour of defendant no.1 whereby the rights of the suit property were allegedly bequeathed to

defendant no.1. The plaintiffs challenged the Will stating it to be a sham document and also submitting that defendant no.1 influenced and took advantage of his old mother and got the Will executed. It is urged that the Will was executed under the influence, duress. Other discrepancies are also said to exist. Hence the present suit was filed.

6. The above application came up for hearing on 25.09.2013. This Court had prima facie held that the contention of the plaintiff that the suit property is an HUF property, is untenable in view of the judgment of this Court dated 30.01.2013 in CS(OS)823/2010. However, in view of the fact that the plaintiff had challenged the Will of late Smt. Kamla Sharma, this Court passed an ex parte ad interim injunction restraining defendant no.1 from selling alienating or transferring the suit property till further orders.

7. Learned senior counsel for the defendant no.1 vehemently argued that the present case is entirely without any merits and unwarranted. He strongly submits that the suit is frivolous one and no prima facie case is made out. He urges that the stay order be vacated to permit defendant no.1 to enjoy the suit property.

8. It is firstly urged that as far as the challenge to the relinquishment deed dated 27.02.2004 is concerned, the challenge is absolutely without any merits. It is urged that the ground of challenge to the said relinquishment deed namely that the property is an HUF property, is legally untenable. It is further urged that as far as the challenge to the Will is concerned the plaint is vague and the challenge is misplaced. He stated that the execution of the Will by late Smt. Kamla Sharma the testator is not denied in the plaint. The only ground for challenge allegedly is that it is a procured document under the influence of

defendant no.1. He urges that the Will was made in 2008 and the present suit seeking to lay a challenge to the Will is filed in 2013. The challenge it is urged is belated and completely without merits.

9. In my opinion, as far as the challenge to the relinquishment deed dated 27.02.2004 is concerned the same is prima facie without merits. It has already been held by this Court that prima facie no HUF can be said to exist in view of the judgment of this Court dated 31.01.2013 in CS(OS)823/2010 titled Neelam & Anr. vs. Sada Ram & Ors.

10. However, the challenge to the Will cannot be completely brushed aside. The mother, the testator passed away on 30.11.2011. The present suit is filed on 17.09.2013. Hence the challenge to the Will has been made within a short period after the demise of the testator. The time to challenge a Will normally arises only on the death of the testator.

11. A perusal of the plaint shows that the Will is sought to be challenged on the following grounds. The details of the challenge are elaborated in para 23 of the plaint which reads as follows:-

"23. That the beneficiary in the Will is the defendant No.1 who influenced and took undue advantage of himself to get the said WILL prepared, signed and registered in the office of Sub-Registrar, Delhi which is contrary to the provisions of the Indian Succession Act. Thus the intention of the testator even to bequeath her limited rights was not free from influence and/or duress but the defendant No.1 clearly influenced his mother i.e. the testator of the Will. Moreover, the particulars as given in the WILL with respect to the Lease Deed dated 05.06.1989 are wrong and it appears that said WILL was prepared in haste. The presence of the beneficiary in the WILL is very much recorded in the office of the Sub- Registrar, Sub-District-VIII, New Delhi on 11.11.2008 when the said WILL was registered."

12. No doubt the challenge to the Will is not very happily drafted. But the surrounding circumstances to the execution of the Will cannot be ignored. The beneficiary was said to be present at the time when the Will was executed. It also appears that at the time when the Will was executed, it is only defendant no.1 and his family who were residing with the testator. In para 20 of the plaint, an averment is made that defendant no.1 in April 2008 shifted from his own house in Tagore Garden Extension to the suit property on the pretext of health problem and started residing with the testator Smt. Kamla Sharma. The will is executed in December 2008 itself after the shifting of residence by defendant No.1. I also cannot help but notice that Smt. Kamla Sharma was survived by three sons and the grand children of one deceased son. Despite this the said Will bequeaths the suit property only to defendant no.1 ousting the other children completely. No cogent explanation is given for this.

13. Reference may be had to the judgment of the Supreme Court in the case of Meenakshiammal Vs. Chandrasekaran and Anr. AIR 2005 SC 52 (MANU/SC/0953/2004) relevant portion of which reads as follows:

"16. We do not find any merit in this civil appeal. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and proof of the signature of the testator, as required by law, is sufficient to discharge the onus. Where, however, there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before it accepts the will as genuine. Even where the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of

the Court. The suspicious circumstances may be regarding the genuineness of the signature of the testator, the condition of the testator's mind, the disposition made in the will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the will to show that the testator's mind was not free. In such a case, the Court would normally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator.

17.......

18.......

19. In the case of Sm. Chinmoyee Saha vs. Debendra Lal Saha and Ors. MANU/WB/0079/1985 : AIR 1985 Cal349, it has been held that if the propounder takes a prominent part in the execution of the will, which confers a substantial benefit on him, the propounder is required to remove the doubts by clear and satisfactory evidence. Once the propounder proves that the will was signed by the testator, that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the disposition and put his signature out of his own free will, and that he signed it in presence of the witnesses who attested it in his presence, the onus, which rests on the propounder, is discharged and when allegation of undue influence, fraud and coercion is made by the caveator, the onus is on the caveator to prove the same."

14. In case the ex parte injunction is vacated and the defendant no.1 sells alienates or transfers the suit property it would create irreparable injury and loss to the plaintiffs. The plaintiffs have made out a prima facie case. Balance of convenience is also in favour of the plaintiffs and against the defendant no.1. Accordingly, I confirm the interim order passed by this Court on 25.09.2013 i.e. defendant no.1 is restrained from selling, alienating or transferring the title of the suit property till the pendency of the accompanying suit.

15. The application is disposed of.

CS(OS) 1857/2013 List on 24th July, 2015 before Joint Registrar.

(JAYANT NATH) JUDGE July 03, 2015 'raj'