Dr Pradnya Nagar & Anr vs Sh.Rohit Nagar & Ors
2015 Latest Caselaw 6783 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment pronounced on: 10th September, 2015

+                          CS(OS) No.2022/2009

       DR PRADNYA NAGAR & ANR                 ..... Plaintiffs
                   Through Ms.Deepika V. Marwaha, Adv.
                            Mr.Romaan Muneeb, Adv.

                           versus

       SH.ROHIT NAGAR & ORS               ..... Defendants
                    Through Mr.Manish Shekhar, Adv.

       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The plaintiffs have filed a suit for partition, permanent injunction and damages/mense profits against the defendants.

2. Brief facts of the case as per plaint are that the husband of plaintiff No.1 Dr.Mohit Nagar had purchased a flat bearing No.89-A, Ground Floor, Pocket-A, Sukhdev Vihar, New DeIhi-110025 (hereinafter referred to as the 'suit property') in September 1995. Dr.Mohit Nagar expired on 12th July, 2006.

2.1 At the time of his death, his class-l legal heirs were the plaintiffs and his mother Smt. Saroj Nagar, who later died on 23rd June, 2007.

2.2 The defendants are the Class-II legal heirs, being the brother and sisters of Late Dr.Mohit Nagar, and are claiming interest in the

suit property. The plaintiff No.2 is the daughter of Late Sh.Mohit Nagar.

2.3 The suit property as per the documents and records of DDA, was initially allotted to Sh.Harsh Verma in January 1986. The possession of the same was physically handed over to him in June 1986. Sh.Harsh Verma sold the suit property to Late Dr.Mohit Nagar by executing a General Power of Attorney and an Agreement to Sell dated 26th September, 1995. The plaintiff No.1 is the witness. Execution of the documents is undisputed.

2.4 The payment for the suit property was made from the joint account held by Late Dr.Mohit Nagar and plaintiff No.1. Both plaintiff No.1 and her husband being doctors had worked in Iran and had savings from which Late Dr.Mohit Nagar had purchased the aforesaid flat, a car and some furniture for the house, including an expensive dining table.

2.5 In the month of December 1996, the plaintiff No.1 returned to Mumbai and with mutual consent of Late Dr.Mohit Nagar, plaintiff No.2 first got admitted in a nursery and then in Bombay Scottish School in 1998. Thus, the plaintiff No.1 was residing in Mumbai since 1996 along with her daughter because of her job and her daughter's education. Late Dr.Mohit Nagar used to visit his family in Mumbai 2-3 times in a year.

2.6 In 2005, Late Dr.Mohit Nagar was diagnosed with cancer and died in July, 2006.

2.7 It is alleged that initially plaintiff No.1 had paid some amount to her husband for his treatment but as she was earning a small amount and there were no savings left, after the purchase of the flat, Late Dr.Mohit Nagar's sister i.e. defendant No.3, Mr.Sanjay Agarwal, his Chartered Accountant, Dr.Sharat Jauhary and Dr.Anil Tara (Late Dr.Mohit Nagar's friends) paid for his treatment, to the tune of Rs.4,02,790/- out of which the plaintiff No.1 had repaid an amount of Rs.25,000/- to Mr.Sanjay Agarwal from the sale proceeds of the car owned by the deceased.

2.8 The deceased due to his illness and paucity of finances could not get the suit property free hold during his lifetime, but was residing in the suit property till his death in 2006. After the death of Late Dr.Mohit Nagar, the plaintiff No.1 locked the suit property and the master bedroom specifically, which had some electronic goods, and gave one set of spare keys to defendant No.1 for the flat's maintenance and cleanliness.

2.9 The defendant No.1 at that time was staying in Janakpuri, New Delhi along with his mother, his wife and his daughter. Earlier before the plaintiff No.1 shifted to Mumbai, for some time, the defendant No.1 and the deceased mother-in-law of plaintiff No.1 had also lived with the plaintiff and her husband in the suit property.

2.10 When plaintiff No.1 visited Delhi in 2007, on her husband's 'Barsi', she realized that defendant No.1 and his family along with plaintiff No.1's mother-in-law had shifted in the suit property, without the knowledge of plaintiff No.1.

2.11 The plaintiff No.1, as the wife of deceased Dr.Mohit Nagar and his surviving legal heir has cleared all his loans by arranging and borrowing the money, as her father and brother have borne all her and plaintiff No.2's expenses.

2.12 After clearing a few EMIs (equal monthly installments) of the bank, plaintiff No.1 sold the car and partly repaid the debt of Late Dr.Mohit Nagar which he owed to his Chartered Accountant, Mr.Sanjay Agarwal and after putting some more amount cleared the loan of ABN Amro Bank that was towards the car. The loan amount that was cleared was for Rs.2,11,486/- by cheque on 27th September, 2006, and Rs.6,519/- by cash on 3rd November, 2006 and the car was sold for a sum of Rs.2,90,000/- (cheques for Rs.1,40,000/-, Rs.20,000/-, Rs.25,000/-, Rs.25,000/- and Rs. 15,000/- dated 6th September, 2006, 7th September, 2006, 9th September, 2006, 13th September, 2006 and 14th September, 2006 respectively received by the plaintiff No.1 from the buyer. The amount of Rs.25,000/- was kept by Mr.Sanjay Agarwal. The amount of Rs.6,995/- was used for repayment of the loan to Bank of India.

2.13 The Bank of India's outstanding loan amount of the deceased of Rs.1,89,467.99/- for the equipment was prepaid by a total amount of Rs.1,55,444/-, thus the saving of interest of Rs.34,023.99/- was made. The equipment was sold with great difficulty in the month of March, 2007 for an amount of Rs.1,40,000/- only, as the models had become old and companies were not producing those models

anymore. The balance of Rs.14,444/- was paid by plaintiff No.1 from her own pocket.

2.14 The loan for equipment of Bank of India, New Friends Colony Branch, New Delhi in February 2007, to the tune of Rs.1,55,444/-, and the Bank as such released the flat agreement papers which they had, to the plaintiff No.1.

2.15 When the plaintiffs had applied to the DDA for mutation and conversion of the property in their names in December 2008 and deposited an amount of Rs.1,15,600/- with the DDA as conversion charges. In response to that, the plaintiff No.1 received information on 28th April, 2009 from DDA that a legal notice had been received at DDA's office on behalf of the defendants claiming 25% rights in the property on the basis of Will executed by the deceased in favour of the defendant No.1.

2.16 The plaintiff No.1 received the copy of the said notice and other documents, after she filed an application in the DDA Office under RTI Act, including the copy of the Will, which is signed by the husband of the plaintiff No.1 and witnessed by Sh.Sanjay Agarwal, his Chartered Accountant and Sh.P.K.Dave who was a cousin of Late Mohit Nagar.

2.17 The said fact which was not in the knowledge of the plaintiff No.1 earlier, that her husband had executed a legally valid Will dated 20th December, 2005 during his lifetime.

2.18 As per the said Will, the husband of plaintiff No.1 had desired the following:

(i) That his Maruti Car bearing Registration No.DL-6-CK-2576 should be sold in the market after his death and the sale proceed of the same should be utilized to pay off the outstanding dues of ABN Amro Bank;

(ii) That his laptop computer and surgical instruments should be sold in the market after his death and the sale proceed of the same should be utilized to pay off the outstanding dues of Bank of India, New Friends Colony, New Delhi;

(iii) That DDA Flat bearing No.89-A, Sukhdev Vihar, New Delhi should be sold in the market after his death and the sale proceed of which should be distributed to his daughter Ms. Nitika M. Nagar and his mother Mrs.Saroj Nagar in the ratio of 75% and 25% respectively after paying off the liability of financial institutions.

(iv) All of his remaining assets, including the balance in his savings bank account No.43328 with Bank of India, New Friends Colony, New Delhi, cash and other movables lying in the flat at Sukhdev Vihar, New Delhi, shall go to his daughter Ms. Nitika M. Nagar who shall be the sole and exclusive owner in respect thereof.

(v) He directs that any amount in addition to the amount specified above that may be determined as payable by him by way of debts, loans, dues and liabilities including direct and other taxes, charges, fees, medical expenses etc. (including his funeral and related expenses) and probate and court fee be paid out of the sale proceeds of his afore mentioned flat at Sukhdev Vihar and the

balance only be distributed to his legal heirs as mentioned in clause

(iii) above.

2.19 As per the said Will, plaintiff No.1 was appointed by Late Mohit Nagar as executor of the Will, and after the death of Late Mohit Nagar, his mother had also expired as such all her three children and plaintiffs became entitled to 1/4th share of her 25% share in the flat, which as per the Will of Late Dr.Nagar has to be sold and sale proceeds had to be divided. Therefore, the share of each one of the parties in the sale proceeds of the flat would be as follows, after the repayment of the amount which plaintiff No.1 had paid for the repayment of loans, conversion charges, court fees, and the amount paid by Mrs.Priti Yagnik, Sanjay Agarwal and Sharat Jauhary and Anil Tara for the treatment of Late Mohit Nagar:

      (i)      Plaintiff No.1      3.125%

      (ii)     Plaintiff No.2      78.125%

      (iii)    Defendant No.1      6.25%
      (iv)     Defendant No.2      6.25%

      (v)      Defendant No.3      6.25%

2.20 It is mentioned in the plaint that the plaintiff No.1 from her own funds had repaid two loans of the deceased testator, totalling as under, and as per the last Will produced by the defendants before the DDA, she is entitled to receive the refund of the same from the sale proceeds of the flat sold. The plaintiff No.1 is also entitled to the

reimbursement of court fees for the present suit, and conversion charges which have already been paid by the plaintiff No.1.

a) Balance amount for the repayment of equipment loan paid by Plaintiff No.1 Rs.14,444/-

b) Conversion charges paid by Plaintiff No.1 Rs.1,15,600/-

c) Requisite Court Fees Paid Rs. 54,073/-

2.21 In the month of May, 2009 when the plaintiff No.1 was in Delhi had approached the defendants through common friends for settlement and had requested for her daughter's share to be paid, but they had refused the same rather, threatened to transfer the possession of the property to a third party, to defeat the rights of the plaintiffs.

2.22 The plaintiffs are also claiming the damages for use and occupation of the property by defendant No.1, to the exclusion of the plaintiffs. The market rate of rent in the vicinity of the demised property is approximately around Rs.25,000/- per month.

3. The plaintiffs have claimed in the suit partition of the suit property as per the Will of Late Mohit Nagar, seeking sale of the property after repayment of the money due to the plaintiff No.1. The said money which she is entitled to is refund of the conversion charges and the balance amount for the repayment of the equipment loan repaid by her and the requisite court fees. The plaintiffs also prayed in the suit, the decree for permanent injunction in favour of the plaintiffs and against the defendants, from restraining them from transferring the possession or title of the suit property. The plaintiffs

have also prayed a decree for mesne profits for illegal use and occupation by the defendant No.1 solely.

4. On 28th October, 2009, an ad-interim order was passed restraining the defendants from creating any third party interest in the suit property.

5. The written statement was filed by the defendants in May, 2010. The main defence was raised that the suit property were bought by late mother of the defendants. It was alleged, that the suit property was bought in the name of Late Mohit Nagar as he was acting as Karta being the eldest male member of the family and that the property was bought from the ancestral money. It was contended that sign board outside the property states 'Nagars'. The alleged Will which Late Mohit Nagar is stated to have executed could not have been executed to the detriment of other co-parceners of the property, as the suit premises were not bought from the separate income of Late Mohit Nagar. It is also alleged that the suit property had acquired the status of a joint family property and therefore the same requires to be partitioned by metes and bounds. It is the admitted case that the defendants have not filed any document in support of their contentions.

6. During the pendency of the suit, the plaintiffs filed an application dated 11th January, 2011 under Order XI Rule 12 and 14 CPC seeking directions to the defendants to discover and produce the Original Will dated 29th December, 2005, which was obviously in power and possession of the defendants as they had filed the copy

along with a letter and legal notice in the DDA office. On 17th January, 2011, notice on the said application was issued and the application under Order XI Rule 12 and 14 CPC was disposed of on 9th February, 2011. It was stated on behalf of the defendants that they are not in power and possession of the original Will. Directions were given to the defendants to file a specific affidavit in that regard within a week. Admission/denial was done on behalf of the defendants on the plaintiffs' documents on the same day. The signatures on the power of attorney of defendant No.1 were admitted and the letter written to the DDA by the defendants was also admitted.

7. On 19th July, 2011, from the pleadings of the parties, the following issues were framed :

(1) Whether the Will dated 29.12.2005 left behind by Late Dr.Mohit Nagar is not a genuine Will? OPD (2) Whether the property bearing No.89A, Ground Floor, Pocket A, Sukhdev Vihar, New Delhi was a self acquired property of Late Dr.Mohit Nagar? OPD (3) Whether the suit is without any cause of action? OPD (4) Whether the plaintiffs are entitled to 81.25% share in flat No.89A, Ground Floor, Pocket A, Sukhdev Vihar, New Delhi? OPP (5) Whether the plaintiffs are entitled to decree of partition, as prayed for? OPP (6) Whether the plaintiffs are entitled to decree for mesne profit against defendant no.1. If so, to what amount and for what period? OPP (7) Relief.

8. As issues No.1 to 4 are connected with each other, they are taken up together.

9. In the plaintiff's application being I.A. No.4883/2011 dated 18th March, 2011 under Section 65 of Indian Evidence Act, filed by the plaintiff seeking permission to lead secondary evidence of the Will and to prove and exhibit the photocopy of the Will of Late Dr.Mohit Nagar. The said application was allowed by the Court on 22nd September, 2011, in view of the fact that the copy of Will was filed by the defendants themselves before the DDA.

10. Another application that was I.A. No.6185/2013 filed by plaintiff No.2 under Order XXXII Rule 12 CPC, which was filed by her after attaining majority during the pendency of the proceedings. In the said application she confirmed all the proceedings done by her mother till then and requested the Court for plaintiff No.1 be discharged as her guardian. The said application was allowed on 21st May, 2013.

Plaintiffs' Evidence

11. The plaintiff No.1 had filed her affidavit in evidence dated 19th August, 2011 as PW1. The averments in her affidavit are on the similar lines as per plaint.

12. The documents exhibited in the statement of PW1 are as under:

Serial No. Exhibit No. Description of documents

1. Ex.PW1/1 GPA dated 26.09.1995 executed by Harsh Verma in favour of Dr.Mohit Nagar

2. Ex.PW1/2 GPA dated 18.10.1995 executed by

Geeta Verma in favour of Dr.Mohit Nagar

3. Ex.PW1/3 Agreement to Sell dated 26.09.1995 signed by Harsh Verma in favour of Dr.Mohit Nagar

4. Ex.PW1/4 Indemnity Bond dated 26.09.1995 executed by Harsh Verma in favour of Dr.Mohit Nagar

5. Ex.PW1/5 Death Certificate dated 15.07.2006 of Mohit Nagar

6. Ex.PW1/6 Death Certificate dated 07.08.2007 of Saroj Nagar

7. Ex.PW1/7 Deposit slip for loan issued by ABN AMRO Bank for deposit of Rs.6519 by Plaintiff No.1 dated 17.08.2006 wrt Loan No.9156865

8. Ex.PW1/8 Receipt issued in favour of PW1 on deposit of cheque for Rs.2,11,486/-

dated 27.09.2006 wrt Loan No.9156865 of Late Dr.Mohit Nagar

9. Ex.PW1/9 Letter dated 26.02.2007 to the Manager, Bank of India written by PW1

10. Ex.PW1/10 NOC issued by Bank of India wrt to clearance of Loan No.TLN734

11. Ex.PW1/11 Passbook of Bank of India of PW-1to show statement of bank account from Sep 2006 to Feb 2009, which has entries towards payment of loan of ABN Amro Bank and Dr.Mohit Nagar's other loan account

12. Ex.PW1/12 Receipt issued by the DDA towards the deposit of the conversion charges dated 17.12.2008 for Rs.1,15,800/-

deposited by PW1.

13. Ex.PW1/13 Letter dated 12.02.2009 to DDA alongwith acknowledgement receipt wrt mutation of the property by Dr Pradnya Nagar

14. Ex.PW1/14 Original acknowledgement of BSES with respect to change of name for billing from Harish Verma to Dr Pradnya Nagar and Ms. Nikita M.

Nagar dated 09.02.2009

15. Ex.PW1/15 Information dated 28.04.2009 from

DDA wrt the conversion of the flat to Dr Pradnya Nagar informing her that legal notice has been received from Rekha Dave, Priti Yagnik and Rohit Nagar that 75% share vests with the daughter of Mohit Nagar and rest 25% in favour of the deceased mother.

16. Ex.PW1/16 Application for information under RTl dated 30.04.2009 for obtaining the copy of the Will, whether the original Will was verified and status of the mutation.

17. Ex.PW1/17 Letter dated 01.05.2009 from the DDA to Dr Pradnya Nagar wrt to the RTl filed by her

18. Ex.PW1/18 Letter dated 28.01.2009 of DDA

19. Ex.PW1/18(A) Legal Notice dated 27.01.2009 issued on behalf of defendant No.1 by his Advocate. The contents of the said document admit that the demised property was purchased by Late Mohit Nagar and the exclusive possession is with Defendant No.1. The Will was executed by Mohit Nagar and 25% of the mother, who died intestate devolves upon her legal heirs. This is an admitted document in cross.

20. Ex.PW1/19 Letter sent by Defendants to DDA which reproduces the contents of the Will dated 29.12.2005 and request the DDA not to do mutation in favour of Plaintiffs alone, the signatures on which have been admitted by them and which had been marked as P-2. The copy of Will was filed alongwith said letter and each and every Defendant admitted their signature on it during cross examination.

21. Ex.PW1/20 Will dated 29.12.2005 executed by Late Mohit Nagar, copy supplied by DDA under RTI

22. Ex.PW1/21 Receipt of ground charges dated 30.01.2006

13. PW2 is Sh.Jaipal Singh, working as Assistant in DDA, who was summoned with the record of the suit property. He proved the documents Ex.PW1/15 to 1/20 being the genuine copies of the original issued by DDA. The letter dated 17th December, 2008 addressed to DDA by plaintiff No.1 was exhibited in the cross examination of the said witness.

14. PW3 was the summoned witness, Mr.Sanjay Aggarwal, who was the attesting witness to the Will of Late Dr.Mohit Nagar. Documents exhibited in his statement were Ex.PW3/X1 his original summons issued by Court and Ex.PW3/X2 - photocopy of his election card. He admitted to have signed the Will Ex.PW1/20 at point 'A' and identified the signatures of Dr.Mohit Nagar at each page. He also stated that he drafted the Will on instruction of Dr.Mohit Nagar.

In his cross-examination, he stated that the persons present at the time of execution of the Will were the Testator, himself, and Testator's sister. He stated that the signatures of the other attesting witness, Mr.P.K. Dave were not taken in his presence.

Plaintiffs' counsel at that stage had sought permission of the Court to cross-examine her own witness, as the witness had turned hostile. On being granted the same, cross-examination was done. And the witness PW 3 then admitted that the portion X1 to X2 on the Will was there even at the time of signing of the Will. (The said portion states that both the witnesses have signed in presence of each other and in presence of the executant). PW3 admitted that Rekha Dave, defendant No.2 has been his client since the death of

Dr.Mohit Nagar. He denied the suggestion that he has deposed falsely to the extent that he, Dr.Mohit Nagar and Sh.P.K.Dave did sign the Will in presence of each other. He admitted that he had read the Will before he signed as witness.

15. PW-4 Dr.P.K. Dave was the second attesting witness to the Will. He stated in his chief his qualifications and the fact that Dr.Mohit Nagar was son of his mother's cousin sister. He stated before the Court having seen the Will EX.PW1/20 and his signatures at Point C on each page. He identified the signatures of Dr.Mohit Nagar at Point 'B' on each page, as he signed in his presence. He admitted that portion X1 to X2 of the Will was there when he signed. There was no cross examination done of the said witness, on opportunity being given.

Defendants' Evidence

16. DW-1 Rohit Nagar filed his affidavit in evidence i.e. Ex.DWI/X. His evidence is on the same lines as his Written Statement, with contradictory statements of the property being Benami, Coparcenary, Joint Family and that Mohit Nagar could not have executed the Will. No piece of documentary evidence was exhibited in his testimony. The affidavits of both the sisters who appeared as DW-2 and DW-3 were also on the same lines.

17. DW-2 - Rekha Vitthal Dave tendered her affidavit in evidence as EX.DW2/X. Her evidence is also on the same lines as DW1. She admitted in her cross-examination that plaintiff No.1 was the lawful wife of Dr.Mohit Nagar and that her father retired from service in

1980's. She admitted that she has not contributed to the upbringing of plaintiff No.2. She admitted that her father never had carried out any joint business with Dr.Mohit Nagar nor owned any property in Delhi. The suggestion was also given to the witness that the suit property was purchased out of joint funds of plaintiff No.1 and Dr.Late Mohit Nagar. She denied the said suggestion.

18. DW-3 - Priti Navneetam Yagnik tendered her affidavit in evidence as Ex.DW3/X. The affidavit is oral testimony in support of the case of DW1. She admitted that Dr.Mohit Nagar was a medical doctor and Rohit Nagar is a management graduate and her deceased father was a retired government servant. She admitted that her father was never engaged in any business neither with Rohit nor Mohit. She admitted that her father and her brothers never worked together. She admitted that her mother was a housewife who never filed income tax returns. She also admitted that her mother never contributed financially to the purchase of the suit property. The witness was given a suggestion that in many paras she had made vague statement in her affidavit which she denied.

19. DW-4 - Sh.Gopendra Nath Sharma made the statement in his affidavit that he knew Nagar family but without any proof or document, he stated that he was the branch manager in Federal Bank in Noida in the year 1995 and he was Banker to Dr.Mohit Nagar and used to keep track of his receipts and payments and he prepared two bank drafts for the purchase of this property and one draft was from the account of Mrs.Saroj Nagar and one draft was from the

account of Mohit Nagar and the total amount of these drafts were Rs.3.50 lac.

20. DW-5 - Manish Pandya never appeared in Court. His affidavit was not tendered and his evidence was disallowed vide order dated 23rd August, 2012. The Court had also noted that the chief affidavit of the said witness which is confined to some sale deed, neither such document was on record, nor was any such pleading there by defendants.

21. Both parties have made their rival submissions. They have also filed the written submissions. On suggestion at due stage, the counsel for the defendants upon instruction had informed the Court that defendant No.1 who is present in the Court is agreeable to partition as per Will, however, the plaintiff is pressing for relief of mense profits as well as their remaining share from 25% which was bequeathed in favour of defendant No.1. The said suggestion is not agreeable to the defendants who are only agreeable to partition of the suit property strictly as per Will and they are not prepared to adjust the amount about the mense profit or to give any share fallen which is allegedly from share of 25% as well as costs.

22. On behalf of the plaintiffs, the submissions are that plaintiffs have proved the Will of her deceased husband through the attesting witness testimony and the fact that the execution of which is admitted by the defendants themselves having filed the same before the DDA. Dr.Mohit Nagar was the recorded owner of the property which is an undisputed fact. Plaintiff No.1 was not cross-examined specifically on

her contentions with respect to defendants violating her trust and trespassing in her husband's property and plaintiffs being entitled to damages for use and occupation of the suit property by defendant No.1 illegally, to the exclusion of plaintiffs who have 81.2% share in the property as per the Will of late Dr.Mohit Nagar.

23. It is argued by the learned counsel for the defendants in his first submission that Dr.Mohit Nagar acquired a title over the suit property vide the General Power of Attorney and the Agreement to Sell dated 26th September, 1995. The said two documents are inadmissible in evidence and same are under-stamped and thus liable to be impounded under Section 33 and Section 35 of the Indian Stamp Act, 1899. Counsel has referred the following judgments:-

i) Ram Rattan v. Bajrang Lal and Ors, AIR 1978 SC 1393.

ii) Government of Andhra Pradesh and Others v. P.

Laxmi Devi, (2008) 4 SCC 720.

iii) SMS Tea Estates Pvt. Ltd. v. Chandmari Tea Co.

Pvt. Ltd., (2011) 14 SCC 66.

24. With regard to above submission of defendants, the case of Ram Rattan (supra) has been referred. On the other hand, the plaintiffs' counsel has relied upon the judgment of Suraj Lamp and Industries Pvt. Ltd. through Director v. State of Haryana & Anr., (2012) 1 SCC 656 wherein the Supreme Court laid down that the transactions which happened by execution of contemporaneous documents like Sale Agreement/GPA/ living Will prior to the passing of the said judgment, could be the basis of suits for specific

performance or to defend possession or to apply for regularization or free hold to development authorities.

25. The present suit for partition and possession is not for performance of the said agreement to sell, but for partition of the self acquired property of Late Dr.Mohit Nagar. These documents only were referred by the defendants in EX.PW1/18A and Ex.PW1/19 i.e. in their correspondence to DDA. Thus, the argument of defendants' counsel at this stage that the Agreement to Sell is not stamped or registered and was liable to be impounded is not tenable. There was no objection to the admissibility of the said document i.e. Ex.PW1/3, when the same was tendered and exhibited in the evidence. Neither any issue was framed in this regard nor any evidence was adduced. Even there is no pleading on behalf of the defendants. The documents were executed in the year 1995.The cause of action arose in the present suit in July, 2006. The objection was first time raised in 2015 at the time of final argument without pleadings and evidence even after the expiry of 20 years.

26. In the case of Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao and others, reported in (1971) 1 SCC 545, in para 14, the Supreme Court held as under:-

"14. If Section 35 only deals with original instruments and not copies Section 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit. The words "an instrument" in Section 36 must have the same meaning as that in Section 35. The legislature only relented from the strict provisions of Section 35 in cases where the original instrument was admitted in evidence without

objection at the initial stage of a suit or proceeding. In other words, although the objection is based on the insufficiency of the stamp affixed to the document, a party who has a right to object to the reception of it must do so when the document is first tendered. Once the time for raising objection to the admission of the documentary evidence is passed, no objection based on the same ground can be raised at a later stage. But this in no way extends the applicability of Section 36 to secondary evidence adduced or sought to be adduced in proof of the contents of a document which is unstamped or insufficiently stamped."

27. Next submission of the counsel for the defendants is that the Will relied upon by the plaintiff is a genuine Will or not and thus no rights or liabilities can accrue through it. The Will in question is neither registered nor probated. As per the law as established by the Supreme Court, the onus of proving a Will is on the propounder of the Will. In this regard, counsel has referred the judgment of the Supreme Court in the case of Guro vs. Atma Singh, (1992) 2 SCC 507, wherein the Court had held that "With regard to proof of a will, the law is well-settled that the mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement prescribed in the case of a will by Section 63 of the Indian Succession Act. 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 signature of the testator as required by law is sufficient to discharge the onus. Where, however there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the Will could be accepted as

genuine. Such suspicious circumstances may be a shaky signature, a feeble mind and unfair and unjust disposal of property or the propounder himself taking a leader part in the making of the will under which he receives a substantial benefit. The presence of suspicious circumstances makes the initial onus heavier and the propounder must remove all legitimate suspicion before the document can be accepted as the last will of the testator".

28. In support of the same submission, he referred another decision of Supreme Court in the case of Jaswant Kaur vs. Amrit Kaur and Ors., (1977) 1 SCC 369, wherein the Court held that "it is ununderstandable that a document by which property worth lakhs of rupees was disposed of should have remained a closely guarded secret from the whole world of intimate friends and relatives, nay, from the sole legatee himself, for over 2.5 years after the testator's death." The Court further held that "normally, executors are not appointed without their consent or at least without a prior consultation with them. Respondent No.1, the defendant's widow, is the daughter of the executor Ranjit Singh. The marriage was performed during the testator's lifetime and we find it hard to believe that he would not disclose even to Ranjit Singh that he had made a will appointing him as one of the executors..."

29. The counsel submits that the contradictory nature of the statements given by PW3-Mr.Sanjay Aggarwal and PW4-Dr.P.K. Dave raises suspicions regarding the validity of the will. The plaintiff No.1 who is the executor of the will claims that she did not know

about its existence and only came to know about it in 2009. This is in spite of the fact that she admits at para 7 of the plaint that she was in regular contact with Mr.Sanjay Aggarwal after Dr.Mohit Nagar's death. The will in question was drafted by Mr.Sanjay Aggarwal and he was also one of the witnesses of the will, besides the Chartered Accountant of Dr.Mohit Nagar. It cannot be believed that in those circumstances, he did not inform plaintiffs No.1 about the will for four years. Therefore, in view of the facts and circumstances of the case and the law as laid down by the Supreme Court, it is submitted that Will exhibited in the instant case is not genuine and hence cannot be used to decide the rights and liabilities of the parties.

30. On behalf of the defendants, other submission was made that the suit property is not the self-acquired property of Dr.Mohit Nagar. Counsel has referred the decision of Supreme Court in the case of Surendra Kumar v. Phoolchand, (1996) 2 SCC 491, wherein it was held that "there is no presumption that a family because it is joint, possessed joint property and therefore the person alleging the property to be joint has to establish that the family was possessed of some property with the income of which the property could have been acquired. But such a presumption is a presumption of fact which can be rebutted. But where it is established or admitted that the family which possessed joint property which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was the joint property and the burden shifts to the party alleging self-

acquisition to establish affirmatively that the property was acquired without the aid of the joint family."

31. It is argued that the suit property was joint family property and the deceased acted as a Karta of the Hindu Undivided Family. At the time of the purchase of the suit property, the family possessed joint property which from its nature and relative value may have formed sufficient nucleus from which the suit property may have been acquired. Therefore, in view of settled law as laid down by the Supreme Court the burden of proof is on the plaintiff to prove that the properties in question were self-acquired properties.

32. The consideration amount for the purchase of the property was given by the deceased mother. The deceased was merely a name lender to the transaction and not the absolute owner of the suit property as stated in the written statement. The defendants in their respective affidavits and cross examination had stated that he was posted as branch manager of Federal Bank Noida in 1995 when the suit property was purchased. He had also stated that he prepared two bank drafts towards the purchase of the suit property. One was from the bank account of the deceased and the other from the bank account of the Late Smt. Saroj Nagar. The total amount of the two drafts was approximately Rs.3,50,000/-. The plaintiff No.1 in her cross-examination had stated that her husband had given the seller of the suit property two pay orders issued by Federal Bank. The plaintiff No.1 in her cross examination further stated that the consideration of the suit property was Rs.12,50,000/- whereas the

agreement to sell (Ex PW 1/3 ) mentioned the amount of consideration as Rs.3,50,000/-. The defendants submitted that the suit property is a joint family property, consideration for which was partly paid by Smt. Saroj Nagar. Therefore, the property cannot be partitioned on the basis of the alleged Will left behind by Dr.Mohit Nagar.

33. The last argument addressed on behalf of defendants is that Dr.Mohit Nagar had acquired a valid title in the property. It was stated that the deceased had no valid title in the suit property conveyed to him and in the absence thereof the deceased was not entitled to execute the Will. The prerequisite for such transfer was his entitlement to the property within the meaning of Section 7 of the Transfer of Property Act, 1882. It is the case of the plaintiffs that the suit property has been allegedly purchased on the basis of General Power of Attorney and an Agreement to Sell. Both these instruments do not confer any valid title on the deceased. It is admitted that the suit property in question could not be executed in the name of the deceased. The deceased husband could not even have the suit property converted into a freehold property. The plaintiff No.1 in her cross-examination had admitted that the Ex PW 1/2 (General Power of Attorney), Ex PW 1/3 (Agreement to Sell), and Ex PW 1/4 (Indemnity Bond) does not bear the signature of the deceased. PW-1 admits that Ex PW-1/3 (Agreement to Sell) was not executed in Delhi.

34. The plaintiffs have referred the following judgements :

i) In Suraj Lamp and Industries Private Limited (2) Through Director Vs. State of Haryana and Another, (2012) 1 SCC 656 it was held that sale of property though GPA and attorney is not valid but had also held that protection was granted to SA/GPA/Living Will transaction entered into prior to the date of present judgment.

ii) The case of P.E. Lyall Vs. Balwant Singh, 2012(128) DRJ 545 is being referred because defendants have taken a false defence that property in question was benami in name of late Mohit Nagar. But under Benami Transaction Prohibition Act 1988 there is bar on taking of such defence. The law was laid down in R. Rajagopal Reddy Vs. P. Chandrasekharan AIR 1996 SC 238. In view of Section 4 of the Act the said defence of defendants is not tenable.

iii) In Marshall Sons &Co. (I) Ltd. Vs. Sahi Oretrans (P) Ltd. and Another, (1999) 2 SCC 325 it was held that mesne profits are awarded to make up for losses incurred as a result of delay in court proceedings.

iv) In Roger Enterprises Private Ltd. Vs. Smt. Renu Vaish, 71 (1998) DLT 617(DB) it was held that where no evidence was led by the party to rebut the evidence led by plaintiff/respondent regarding the rate of damages/mense profits. There is no cross examination of the plaintiffs witness on the point of rate of damages/mense profits. This shows that the defendant/appellant never challenged the damages/mense profits as stated by the

plaintiff in her evidence before the Court. When there is no rebuttal to the rate of damages/mense profits suggested by the plaintiff, the defendant cannot make an issue about it at this stage.

v) In Valluri Jaganmohini Seetharama Lakshmi and another, Vs. Kopparthi Ramachandra Rao and Others., AIR 1994 A.P. 284 it was held that an admission in pleadings as to execution of document dispenses with the necessity of proof of execution even though such document was one required by law to be in certain form or proved in a certain way. As the Will is a document required by law to be attested, it shall not be used as evidence until at least one attesting witness is examined.

vi) In Afzal-Ur-Rehman Khan Vs. State &Anr., 150 (2008) DLT 185 it was held that under Section 63 of Indian Succession Act, no requirement in law that both witnesses of the will have to be present in company of each other and both have to see, in presence of other witness, the execution of the Will by the testator. It is sufficient for the two attesting witnesses to see or be told by testator of execution of Will in absence of each other. In the present case both the attesting witnesses have admitted i.e. Sanjay Agarwal and Dr.P.K. Dubey that executor signed the Will in their presence. But above all three defendants admit to the execution of Will having filed it before DDA themselves.

vii) In Sita Kashyap & Another Vs. Harbans Kashyap &Ors., 183 (2011) DLT 47 it was a suit for partition amongst co-owners and

it was held that - "In my view, since it is the bounden duty of the Court to direct appropriate division/apportionment not only of the common immovable property but also of the profits earned/mesne profits which accrues from that immovable property, even if no application for grant of profits is pending at the time when the final decree is passed, would not be material when suit continues to be pending before Court for one reason or the other."

35. The evidence of PW-1 was concluded on 22nd September, 2011. There was no cross-examination of the witness on the point of damages claimed by her. There was also no cross-examination done on her positive statement that she repaid the loans of her husband. She was also not cross-examined to the effect that she had handed over a set of keys of her husband's flat to defendant No.1 when she went back to Mumbai. It was not suggested to her, that defendant No.1 had not trespassed into the flat or that she had got the property papers released from Bank of India. In the absence of cross- examination of PW-1's testimony the statement of PW-1 goes unchallenged.

36. PW-1 was asked in cross-examination as to who had paid the consideration for the flat, to which she had replied that the total consideration was of Rs.12.50 lac and was paid from the joint account of herself and her husband. The cross-examination was mainly on the aspect that the Agreement to Sell and Power of Attorney do not bear signature of Late Mohit Nagar. However, the

defendants have not denied the title of Mohit Nagar. The Agreement to Sell has to be signed by the vendor only. Plaintiff No.1 denied the suggestion that defendant No.1 also started living with Dr.Mohit Nagar and plaintiff No.1 when they shifted to the suit property after 4-5 months of its purchase.

37. In his cross-examination DW-1 admitted to being a signatory to the GPA dated 18th October, 1995 in favour of Dr.Mohit Nagar. He admitted that Ex.PW1/18, the legal notice issued to DDA was issued on his instructions. He admitted that Ex.PW1/19 was written by the defendants to DDA. DW1 also admitted that when his deceased brother was in hospital in 2005 for 13 days, he did not stay with him and was specifically denied that it was plaintiff No.1 who stayed with him. He admitted that till his death Dr.Mohit Nagar was the lawful husband of plaintiff No.1. He admitted that his father who retired in 1982 and did part time work in 1991 but did not remember that his salary was only Rs.4,500/- per month. He admitted that his deceased brother worked as a doctor in National Iran Oil Company for 9 years and after marriage plaintiff No.1 also joined him. DW-1 admitted that he was initially living on rent with his mother in Sukhdev Vihar. He admitted that "two months before his marriage he had shifted to Janakpuri on rent.

He denied the suggestion that for 5 years from 1998 he was unemployed. He admitted that before his brother's death he had changed rented houses 4 times. There was no documentary evidence to show that between 1995 and 2006 he had lived in the

demised property (a case theory which was propounded during the cross examination of PW1 was proved wrong).

38. DW-1 admitted that he had not spent any money on the treatment of Dr.Mohit Nagar or in the purchase of the house. DW-1 admitted that his father, brother and he himself had no joint business or that his father owned any property in Delhi. He admitted that they never paid any HUF Tax or owned any property in Delhi. He denied the suggestion that the market rent of the property would be Rs.40-45 thousand per month, but stated that it would be Rs.25,000/-. He admitted that his mother had never gainfully worked but denied the suggestion that when the property was purchased the only person occupying were only Dr.Mohit Nagar and his wife and Late Smt. Saroj Nagar.

39. In the present case, an application being l.A. No.4883/2011 under Section 65 of Indian Evidence Act was filed for leading secondary evidence. The said application was disposed of on 22nd September, 2011 as unopposed and it was also noted in the said order that defendants had themselves filed copy of Will before DDA.

40. There are many admissions in pleading, in correspondence with DDA and in cross-examination. The defendants are estopped to challenge the Will in final arguments, when no shred of evidence of statement has been made to that effect in their Chief Examinations. The judgments relied by the defendants' counsel is also not applicable to the present case.

41. Thus, the judgment referred on behalf of defendants i.e. Guro (supra) has no application to the facts because there is no dispute with respect to the law laid down in the said judgment. But with regard to present suit, it is submitted, that exhibit PW1/20 i.e. Will of the late Dr.Mohit Nagar was filed by the defendants themselves before the statutory body i.e. DDA. The said defendants had also got a legal notice issued on their behalf, i.e. Ex.PW1/18A, and Ex.PW1/19 duly signed by all defendants was also addressed by them to DDA on 20th January, 2009. In their cross examination all 3 defendants admitted to these documents including filing of the Will before DDA. The contents of these documents i.e. Ex.PW1/18A & Ex.PW1/19 are that the property in question, belonged to Mohit Nagar and he had left the Will dated 29th December, 2005 bequeathing 75% of the property to his daughter and 25% to his mother. As mother Mrs.Saroj Nagar had died after Dr.Mohit Nagar, these 3 defendants claim 1/4th share each from the deceased mother's share.

42. As per the issues framed on 19th July, 2011, the onus of Issue No.1 was on the defendants i.e. as to whether the Will of Dr.Mohit Nagar was genuine or not. The defendants themselves had propounded the Will, they did not cross examine on opportunity being given one of the attesting witnesses of the Will i.e. Dr.P.K. Dave i.e. PW4. The attesting witness PW3, Sh.Sanjay Aggarwal had also stated in his cross examination that Rekha Dave, one of the defendants was also present at the time of execution of the Will. The

said fact was also not challenged or cross-examined by the defendants.

43. The arguments addressed on behalf of the defendants' are beyond pleadings, evidence and documentary evidence on record. In chief examination of DW-1, DW-2 and DW-3 there is not a single line, challenging the execution of the Will or casting suspicion on the Will. Therefore, the judgment of Guro (supra) has no bearing in the present suit.

Similarly, the judgment of Smt. Jaswant Kaur (supra) is not applicable to the present case as person who drafted the Will was the Chartered Accountant of the deceased Testator and he was also one of the witness to the Will. The second attesting Witness is a renowned, Doctor who is a respected person in the Society and happens to be one of the cousins of the deceased Testator and defendants. Further, the Will is quite descriptive giving details about the loan, assets of the deceased, and also laying down that the property be sold and the sale proceeds be divided as per shares. The defendants are beneficiaries of the Will. Therefore, the decision is not applicable at all to the facts of the case.

44. The entire defence of suit property being Coparcenary or joint falls apart. DW-2 admitted that Dr.Mohit Nagar had left behind the Will bequeathing 75% to plaintiff No.2 and 25% to his mother. DW-2 admitted that till his death Dr.Mohit Nagar paid all the bills with respect to the property. She admitted that the Will was relied by her before the DDA, but denied the suggestion that the property was purchased jointly by Dr.Mohit Nagar and plaintiff No.1.

45. DW-4 in his cross examination admitted that he had not attended the funeral or Barsi of Dr.Mohit Nagar. He admitted that he never visited him in the hospital but denied the suggestion that Dr.Mohit Nagar had stopped talking to him during his lifetime. He denied the suggestion that Dr.Mohit Nagar had accused him of fraud. He admitted that he was not a personal Chartered Accountant of Dr.Mohit Nagar or the fact that he was aware that the property was purchased for Rs.12.50 lac. He admitted that he was not present during the negotiations or transaction pertaining to the purchase of the suit property. He admitted that he had no documentary evidence to prove his affidavit. He was given suggestion that no such Bank draft were prepared as mentioned in para no.5 or for that matter from the account of Saroj Nagar and he denied the same.

46. The plaintiffs as per the Will are claiming through the partition decree, sale of the property and distribution of the sale proceeds proportionately between plaintiffs and defendants as per their shares, after repaying the expenses incurred by the plaintiff No.1 in repayment of loans of Late Mohit Nagar and court fees paid herein. It is also prayed, that the share of the defendants be kept in the Court so that the decree for mesne profits can be executed from the said amount.

47. The defendants failed to prove that the subject property is a joint family property or co-parcenary property.

48. The Full Bench of Madras High Court in B. Basavayya V. B. Guravayya Vs. B. Guravayya, AIR 1951 Madras 938 in this regard, inter-alia observed as under:

"A tenant-in-common who files a suit for partition seeks a partition not only of his share of the properties forming the subject matter of the suit, but also of his share of the profits accruing from these properties during the pendency of the suit till he is put in possession of his share"

The court had granted payment to be made to the parties out of the sale proceeds of the common properties. In view of the facts and circumstances of the present case and the statement made by the learned counsel for the plaintiffs with regard to the relief of mense profit, the final decree of partition is passed as there is no further inquiry required to be done, for division of shares of the parties by metes and bounds, as per Order 20 Rule 18 CPC. The property has to be sold as per the last Will of the deceased Testator Sh.Mohit Nagar and sale proceeds have to be divided between the beneficiaries or their successors.

49. The case of plaintiffs is that late Dr.Nagar had executed Will during his lifetime as per which 75% share was bequeathed to plaintiff No.2 his only child and 25% to his mother who died after him. As such after the death of Smt. Saroj Nagar mother of late Dr.Mohit Nagar and the defendants herein, her 25% share devolved upon her three children and plaintiffs who were legal heirs of her pre-deceased son.

50. The Will in question is an admitted document. The contemporaneous documents of purchase in favour of Dr.Mohit Nagar are also not disputed by defendants.

51. It is evident that a frivolous defence of the suit property being a Benami purchase, a Coparcenary Property, a joint family property

were taken by defendants without any piece of documentary evidence. There was no issue to that effect framed.

52. It is also stated in the plaint, that the mother of the deceased Testator died on 17th July, 2006, after the death of the Dr.Late Mohit Nagar. Thus, her 25% share devolved upon her four children as per the Hindu Law and the share of Late Dr.Mohit Nagar of 6.25% devolves upon plaintiff Nos.1 and 2 equally. The maximum share is of plaintiff No.2 of 78.125% (75% + 3.125%).

53. Accordingly, a preliminary decree for partition is passed as per the last Will of Dr.Mohit Nagar, in favour of the plaintiffs and against the defendants with respect to the flat bearing 89-A, Ground Floor, Pocket- A, Sukhdev Vihar, New Dethi-110025, in which the plaintiffs have an undivided share of 81.25% and for the remaining 18.75% of the defendants.

54. Accordingly, Ms.Ayushi Kiran, Advocate (Mobile No.7838824766/23383672) is appointed as Local Commissioner with the direction to meet the parties and to visit the suit property situated at House No.89-A, Ground Floor, Pocket-A, Sukhdev Vihar, New DeIhi-110025 with regard to division of the shares by metes and bound. The fee of the Local Commissioner is fixed at Rs.60,000/- which shall be shared by the plaintiff No.1 and defendants in equal proportion and in case it is found by local commissioner that the suit property cannot be divided by metes and bound, an appropriate order for sale of the property and division of the sale proceeds as per the share of the parties would be passed on receipt of report and after the repayment/adjustment of amount of all the money due to the

plaintiff No.1 and other relatives and friends of the deceased Dr.Mohit Nagar and sale proceeds have to be divided between the beneficiaries or their successors.

55. With regard to the relief sought by the plaintiffs for mesne profits for use and occupation of the property by the defendant No.1 from the date of filing of the suit till the vacation of the property by him, learned counsel for the plaintiffs has agreed that there is no need for any enquiry on the basis of claim made by the plaintiffs as her clients are agreeable to accept the figures given by the DW-1 in his testimony of Rs.20,000/- per month.

56. A decree of permanent injunction is passed in favour of the plaintiffs and against the defendants, their servants, representatives restraining them from transferring the possession or title of the property bearing Flat No.89-A, Ground Floor, Pocket-A, Sukhdev Vihar, New Delhi-110025 or dealing with the property in any manner. CS (OS) No.2022/2009

57. List before Court on 12th October, 2015 for awaiting the report of the Local Commissioner.

(MANMOHAN SINGH) JUDGE SEPTEMBER 10, 2015