Delhi High Court
Parul Gupta vs Sidhartha Sareen & Ors on 20 October, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 06.10.2015
Pronounced on: 20.10.2015
+ CS(OS) 2365/2015
PARUL GUPTA ..... Plaintiff
Through: Mr. Parag P. Tripathi, Senior
Advocate with Mr. Sunil Magon, Dr.
Saif Mahmood & Mr. Vivek
Aggarwal, Advocates
versus
SIDHARTHA SAREEN & ORS. ..... Defendants
Through: Mr. Kapil Sibal, Senior Advocate, Mr.
Harish Malhotra, Senior Advocate
with Mr. N.S. Bajwa & Mr. Anil
Sharma, Advocates for defendant
No.1
Mr. Pinaki Mishra, Senior Advocate,
Mr. Kirti Uppal, Senior Advocate
with Mr. Pramod Saigal, Advocate for
defendant No.2
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
IA Nos. 16210/2015, 17920/2015
1.
In IA No.16210/2015, this Court on 10.08.2015, had granted an ex
parte ad interim injunction in favour of the plaintiff, directing the
defendants to maintain status quo apropos the suit properties which
formed the estate of the testator, Late Mr. Sudhir Sareen. The present
application seeks vacation of the aforesaid order.
2. Mr. Parag P. Tripathi, the learned Senior Advocate for the plaintiff-
daughter, submits that the relations between the testator and his
daughters were cordial and that there is no reason why he should have
excluded them through the disputed Will. According to the learned
counsel, the fact that the Will bequeaths nearly the entire estate of the
testator to the son, i.e., Defendant No.1 only, to the exclusion of his
two daughters, casts suspicion on the veracity of the Will and shows
that the Will was prepared and executed under the overbearing
influence of Defendant No. 1. He submits that the testator was
suffering from certain medical infirmities when the Will was executed
especially as an Income Tax raid had been conducted on the testator's
residential premises in 2007 and in 2009 by the Enforcement
Directorate. He contends that the testator was depressed and therefore
was vulnerable to persuasion and undue influence to the detriment of
the interests of the plaintiff.
3. The learned Senior Advocate would contend that the stated reason in
the disputed Will for the testator to have excluded his daughters from
his estate is that he had already "given sufficient" to both his
daughters and that this raises suspicion, because during his lifetime,
the testator had gifted the plaintiff only one movable property in
Okhla worth around Rs. 11 crores along with the shares of M/s. Oriole
Exports Private Limited, which constitutes a negligible share of the
testators estate; that the claim of defendant No.1, that the testator was
living an active life till December, 2012, is belied by the testator's
own supporting affidavit to an application to the Income Tax Tribunal
dated 13th November, 2013 seeking condonation of delay of 855 days
in filing cross-objection, which states that the Late Mr. Sudhir Sareen,
since July, 2011, had reduced his foreign visits due to ill-health.
4. The learned Senior Advocate would emphasize that if Defendant No.1
is not restrained from gradually frittering away or disposing off the
estate of Late Mr. Sudhir Sareen, perhaps nothing would be left of the
estate by the time these proceedings conclude, which would cause
irreparable prejudice to the interests of the plaintiff. In this regard, he
refers to the sale of property bearing No.8, Claridge House, 32,
Davies Street, Mayfair, London. The learned Senior Advocate further
contends that although defendant No.2 has been given the right to
enjoy the rental and lifetime interests in the property bearing No.B-
101, Greater Kailash-I, New Delhi, according to the Will itself,
defendant No.1 has wrongly got the same mutated in his name; that in
March, 2013, the plaintiff was informed by defendant No.1 that there
is a Will by their father by which the estate devolved primarily upon
him and lifetime interests in favour of the mother. Defendant No.1
refused to give her a copy of the same and she had to procure it
through the Office of Sub-Registrar with difficulty. He argues that this
would show that defendant No.1 had much to conceal.
5. The learned counsel further disputes the veracity of the Will because
both the witnesses to the Will, i.e. Mr. Jayant Kumar Singh and Mr.
Anmol Kumar Saxena, were close friends of defendant No. 1 and that
they cannot, therefore, be considered to be independent witnesses; that
the choice of witnesses shows the undue influence, coercion and
importunity exerted by defendant No. 1 in the preparation and
execution of the Will.
6. Mr Pinaki Misra, the learned Senior Advocate for Defendant No.2-
widow of the testator, refutes the plaintiff's contentions. He submits
that the testator was a strong willed person and was not suffering from
any medical infirmity at the time the Will was executed; the testator
consciously excluded his daughters from his estate because he
believed that his two sons-in-law had wrongfully and fraudulently
excluded his son-defendant No.1 from his rightful share in M/s.
Emaar MGF venture. It is submitted that the testator was in fine
mental and physical health right upto three weeks before his untimely
death.
7. Mr. Kapil Sibal, the learned Senior Advocate for defendant No. 1,
would submit that the testator had clearly averred in the Will that he
was excluding his daughters voluntarily and without compulsion,
pressure or coercion; that the testator was suffering from no infirmity
at the time of the preparation and execution of the registered Will; that
the Income Tax raid and the raid by the Enforcement Directorate were
conducted many years before the date on which the Will was written
and executed and the testator had nothing to hide from the statutory
authorities; that the testator had conducted various other transactions
just before and after that date. He refers to the Will itself which
clearly records his reason, though not necessarily required in law, for
the exclusion of his daughters from inheritance of his estate, page 4 of
the Will records that:
"Both my daughters are married and are well placed in
life. I have already given sufficient to both my daughters.
My son-in-laws Mr. Shravan Gupta and Mr. Siddharth
Gupta are very wealthy in their own right. I have gifted
my daughter Mrs. Parul Gupta, 2499 shares in the
Private Limited Company Oriole Exports Pvt. Ltd.
Therefore, I am not bequeathing anything to my said two
daughters Mrs. Parul Gupta w/o Siddharth Gupta and
Mrs. Shilpa Gupta w/o Mr. Shravan Gupta."
8. Mr. Sibal refers to certain acts of the testator around the time of the
execution of the will, to show his medical fitness and competence and
to emphasise that the testator was actively controlling and managing
his expansive business affairs at that time. Some of the transactions
include:
"14. That there are several other acts enumerated herein below
which would clearly rebut the allegations about the ill health of
Late Mr. Sudhir Sareen:
(a). That there are several acts such as Late Sh. Sudhir
Sareen being an NRI frequently travelling to India and
abroad alone, it can be clearly seen from his passport and
the records of the immigration department till December
2012. The frequency of his visits was almost twice a month.
(b). That Late Sh. Sudhir Sareen paid huge amounts to
companies managed by the plaintiff from in the F.Y. 2010-11
and 2011-12 as well as amounts paid individually to Mr.
Siddharth Gupta and the plaintiff as gift and loan.
(c). The induction of M/s. SSP Developers Pvt. Ltd. in June
2012 as partner to M/s. MGF Mall Management & MGF
Event Management has been signed by Late Sh. Sudhir
Sareen.
(d). Subjecting himself to cross examination in Civil Suit
before the Hon'ble Delhi High Court in matters instituted
against his family members (the judicial record are
sacrosanct), as well as appearing before Sub Registrar for
execution of documents.
(g). Signing of Balance Sheets of the companies to be
submitted before ROC (Registrar of Companies) along with
Mr. Siddharth Gupta, the husband of the plaintiff.
(h). Operation of various bank accounts lq his individual
name and in the name of group companies as authorized
signatory till 6 February 2013.
(i). Appearing before Additional Director of Income Tax
(Intelligence)-1 in respect of queries and statement in the
April 2011.
(j). Signing various resolutions on behalf of group
companies to institute Civil Suit in Delhi & Gurgaon for
"Metropolis Mall" Gurgaon.
(k). Filing Memorandum of Appeal against the Order of CIT
before ITAT in year 2012.
(l). Making Application for sanction of plans in respect of 1,
Jorbagh New Delhi & including completion of the Property
with Chief Architect NDMC."
9. It is contended that by a Public Notice published in the Times of India
on 2nd October, 2014 stated that defendant No.2 and defendant No.3
have accepted and given their no-objection in respect of the aforesaid
Will out of love and affection for defendant No.3. Therefore, the
public at large was informed that anyone dealing with the plaintiff,
daughter of the Late Mr. Sudhir Sareen, who claims a share in the
latter's estate, would be doing so at their own risk and costs. What
was given to the plaintiff is clearly recorded in the Will and is not
disputed by the defendants. The two suits were compromised.
Subsequently, another suit was filed by the Late Mr. Sudhir Sareen,
claiming his share in the Metropolis Mall, Gurgaon. Both the suits
were subsequently settled in the larger interests of the allottees by a
Compromise Decree passed in February, 2013 in CS(OS)
No.297/2011 and in March 2014 in the matter pending before the
Gurgaon Court. Corollary, paper work to the Compromise Decree
was carried out in the months thereafter including execution of no-
objection regarding the Will and carrying out the details of
implementation of the Compromise itself. It is the
defendants'/applicants' case that the Late Mr. Sudhir Sareen fell ill
only in December, 2012 and not prior to that and there is nothing on
record to support the plaintiff's claim of the testator's illness at the
time of execution of the Will.
10.The learned counsel refers para 14 of the application enumerates
various acts of Late Mr. Sudhir Sareen to show that he clearly was in
good health and in full control and was aware of his business affairs;
that this refutes the plaintiff's allegation that he was physically or
mentally unwell. It is stated that (a) Late Mr. Sudhir Sareen, being an
NRI, frequently travelled abroad almost twice a month till December,
2012 and this is clearly borne out from a perusal of the endorsements
on his passport by the Bureau of Immigration and (b) he paid huge
amounts of money to the companies being managed by the plaintiff in
the financial year 2010-11 and 2011-12 and to Mr. Sidharth Gupta as
gifts and loans, including payments through cheques of Rs.10,00,000/-
on 18th February, 2012; Rs.6,50,000/- on 5th November, 2011,
Rs.3,50,000/- on 31st October, 2011 to the plaintiff by her father, Late
Mr. Sudhir Sareen. All these transactions show that the father was in
full control of his business affairs and was not suffering from any
apparent physical or mental incapacity.
11.In support of continuous conscious management of his business
affairs the learned counsel would refer to the following illustrative
transactions:-
"(b) That Late Sh. Sudhir Sareen paid huge amounts to companies
managed by the plaintiff from in the F.Y. 2010-11 and 2011-12 as well
as amounts paid individually to Mr.Siddharth Gupta and the plaintiff
as gift and loan.
(c) The induction of M/s. SSP Developers Pvt. Ltd. in June 2012 as
partner to M/s. MGF Mall Management & MGF Event Management
has been signed by Late Sh.Sudhir Sareen.
(d) Subjecting himself to cross examination in Civil Suit before the
Hon'ble Delhi High Court in matters instituted against his family
members (the judicial record are sacrosanct), as well as appearing
before Sub Registrar for execution of documents.
(g) Signing of Balance Sheets of the companies to be submitted before
ROC (Registrar of Companies) alongwith Mr. Siddharth Gupta, the
husband of the plaintiff.
(h) Operation of various bank accounts in his individual name and in
the name of group companies as authorized signatory till 6th February
2013.
(i). Appearing before Additional Director of Income Tax
(Intelligence)-1 in respect of queries and statement in the April 2011.
(j). Signing various resolutions on behalf of group companies to
institute Civil Suit in Delhi & Gurgaon for "Metropolis Mall"
Gurgaon.
(k). Filing Memorandum of Appeal against the Order of CIT before
ITAT in year 2012.
(l). Making Application for sanction of plans in respect of 1, Jorbagh
New Delhi & including completion of the Property with Chief
Architect NDMC."
12.The applicant has shown the numerous arrivals in and departures from
India of the Late Mr. Sudhir Sareen between 4th June 2010 and 20th
March 2011. The details of some of these trips are incorporated in a
tabular form as under:
Arrival in India Departure from India
4.6.2010 7.6.2010
18.6.2010 23.6.2010
2.2.2010 6.2.2010
25.2.2010 28.2.2010
28.3.2010 31.3.2010
10.4.2010 16.4.2010
21.4.2010 24.4.2010
30.4.2010 3.5.2010
5.5.2010 9.5.2010
15.5.2010 22.5.2010
26.5.2010 17.6.2010
5.7.2010 21.7.2010
27.7.2010 6.8.2010
17.8.2010 27.8.2010
5.9.2010 15.9.2010
19.9.2010 26.9.2010
4.10.2010 6.10.2010
17.10.2010 27.10.2010
4.11.2010 12.11.2010
17.11.2010 24.11.2010
2.12.2010 6.12.2010
11.12.2010 18.12.2010
3.1.2011 7.1.2011
16.1.2011 24.1.2011
1.2.2011 5.2.2011
10.2.2011 12.2.2011
16.2.2011 16.2.2011
8.3.2011 9.3.2011
19.3.2011 20.3.2011
Apart from these dates, photocopies of the passport of Late Mr.
Sudhir Sareen annexed to the pleadings show that he had made
multiple trips outside India as late as 31st January, 2013.
Endorsements made on his passport by the Bureau of Immigration
show that he had entered into/exited from India on 16/05/2012,
04/10/2012, 22/11/2012, 17/12/2012 and 31/01/2013, amongst several
other dates.
13.At this interlocutory stage the Court does not find anything on record
which would show that Late Mr. Sudhir Sareen was mentally
incapable or physically debilitated from executing the Will which was
registered before the Sub-Registrar in the presence of two witnesses.
There is nothing on record to show him being under the undue
influence of defendant No.1, nor is there any document to suggest any
history of his illness. His frequent travels outside India, on almost a
fortnightly basis, would prima facie show that the Late Mr. Sudhir
Sareen was in good health. His wife, i.e. defendant No.2, not only
supports the Will but also states that her husband was in good health
before he passed away suddenly. The financial and corporate
transactions before registration of the Will, and consistently thereafter,
would show that the Late Mr. Sudhir Sareen was in good health and
was not suffering from any incapacitative medical infirmity. His
correspondence with the Income Tax Department on 4 th April, 2011,
2nd May, 2011, participation in the Board Meeting on 16 th May 2011,
20th October, 2011, Shareholder Agreement dated 22nd February, 2012
as duly authorized representative of M/s. Columbia Holdings (Pvt.)
Ltd., the payment of monies to the plaintiff through cheques in 2010,
2011, 2012 and managing of his fairly extensive business affairs
would prove that he was in good health and in control of his affairs
without being under any undue influence.
14.It is in connection with Wills, the execution of which are surrounded
by suspicious circumstances, that the test of satisfaction of the judicial
conscience has been evolved. The Court is of the view that, it being a
registered Will, the onus would be on the party alleging undue
influence or fraud to satisfy the judicial conscience of the court that
the Will was not validly executed. "The general rule is that the onus
probandi l ies in every case upon the party propounding a Will and he
must satisfy the conscience of the court that the instrument so
propounded is the last will of a free and capable testator. ..... if a Will
is rational on the face of it, and appears to be duly executed, it is
presumed, in the absence of evidence to the contrary, to be valid." 1
15.Mere suspicion of the daughter (plaintiff) that her father was unduly
influenced by her brother, (defendant No.1) and that her family
members along with her mother and sister i.e. defendant Nos. 2 and
1 th
Jarman on "Wills"- Vol. 1. 8 Ed., P.50
3, have conspired to oust her from her father's estate would not be
sufficient to suspect the veracity or validity of registered Will. In the
present case, the only aspect that has to be considered in determining
whether the Will is valid is whether the testator was in such a position
of medical infirmity that he was capable of being unduly influenced or
coerced into signing a Will against his wishes. In the opinion of the
court, the plaintiff has prima facie failed to discharge this burden and
the fact that the testator was able to travel around on his own, as
evidenced by his passport, and also that he was in active control of his
business affairs at that time show that he was a free and capable
testator and that the Will was therefore valid.
16.The pursuit of the litigation before this Court as well as in the
Gurgaon Court and the settlement of the same through a Compromise
Deed by Late Mr. Sudhir Sareen as late as February and March, 2014
and the cross-examination on behalf of the plaintiff's husband would
show that the testator was in absolute control of his mental faculties
and under no coercive influence of his own son, defendant No.1. The
anguish of an aggrieved daughter of being denied of her share in the
estate of her father is something that she may have to bear with, if
there is anything to show that such denial was consciously made by
the father.
17.In the present case, the testator has given his reasons for exclusion of
the plaintiff-daughter from his estate. He has provided for a lifetime
financial and residential security of his wife, defendant No.2 and
largely bequeathed his remaining estate to his son. He has specified
the reasons, as aforesaid for the exclusion of his daughter, who is
stated to be well-settled, from inheritance.
18.In view of the aforesaid, there is no prima facie reason to doubt the
veracity of the registered Will. There is no reason for grant of an ad
interim injunction against the defendants apropos the implementation
of the Will or management of the affairs by the defendants, in terms of
the registered Will. The balance of convenience also lies in favour of
defendant Nos.1 and 2 because depriving them from managing and
enjoying their rights in terms of the Will would be irreparably
detrimental to their rights and interests.
19.Under the circumstances, the ex-parte ad-interim order of status quo
granted on 10th August 2015 in IA No.16210 of 2015 in the above
captioned suit is vacated. The rights of the parties to prove their
respective case in the trial would always be open to them,
uninfluenced by this order.
20.IA Nos. 16210/2015 and 17920/2015 stand disposed off.
NAJMI WAZIRI, J
OCTOBER 20, 2015/acm+tp
