Rajinder Tandon vs Master Prince
2016 Latest Caselaw 3393 Del

*                HIGH COURT OF DELHI AT NEW DELHI

+      RFA 260/2008

                                            Pronounced on: 9th May, 2016

       RAJINDER TANDON                               ..... Appellant
                    Through:        Mr. M.G. Vachar, Advocate
                           versus
       MASTER PRINCE                                 ..... Respondent
                    Through:        Mr. Vivek Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This is an appeal filed by the appellant against the judgment dated

9th May, 2008, by virtue of which the learned trial Court has passed a

preliminary decree, holding that the respondent herein is having ½ share

in property bearing No.7/544, Indira Park, Jawala Nagar, Shahdara, Delhi

('suit property'), while as the other ½ share belongs to the appellant.

2. Briefly stated, the facts of the case are that, the

respondent/plaintiff, being a minor, filed a suit for partition through his

mother and natural guardian, Ms. Asha Tandon, claiming that property

bearing No. 7/544, Indira Park, Jawala Nagar, Shahdara, Delhi was the

property belonging to Nirmala Devi, the grandmother of the

respondent/plaintiff. Nirmala Devi expired on 27th July, 2004, leaving

behind two sons, namely, Raj Kumar Tandon and Pradeep Kumar

Tandon. The respondent/plaintiff is the son of Pradeep Tandon, who

unfortunately died on 20th October, 2004. Apart from the

respondent/plaintiff, Pradeep Kumar Tandon was survived by his widow,

Asha Tandon and two minor daughters, namely, Priyanka and Simran. It

was stated by the respondent/plaintiff that, since Nirmala Devi had died

on 27th July, 2004 intestate, therefore, her property had devolved in the

proportion of ½ share each to her two sons, namely. Raj Kumar Tandon

and Pradeep Kumar Tandon. It was also stated that Nirmala Devi was the

owner of property bearing House No.302-D, behind Ram Lilla Ground,

Shahdara, Delhi and she had transferred the said property in favour of the

respondent/plaintiff during her lifetime as, on account of the death of her

son, she never wanted the respondent/plaintiff and his mother to pay any

rent.

3. The aforesaid suit for partition was contested by the

appellant/defendant, who took the plea that Nirmala Devi, his mother,

had made two Wills. By virtue of one Will, which was proved by him to

be as Ex. DW-2/A and mark '2', the suit property was allegedly

bequeathed by Nirmala Devi to the appellant/defendant, while as the

another Will was also executed on the same date, i.e., on 26th May, 1993

and which is Ex. PW-1/D1, by virtue of which property bearing No. 302-

D, Ram Lilla Ground, Shahdara, Delhi was bequeathed to the

respondent/plaintiff and her mother etc. This stand of the

appellant/defendant was contested by the respondent/plaintiff by filing a

rejoinder. On the pleadings of the parties, the following issues were

framed:-

"1. Whether the suit has been valued properly for the court fee and jurisdiction? OPP

2. Whether the suit is bad for non joinder of necessary parties as alleged by the defendant? OPP

3. Whether Smt. Nirmala Devi owner of the suit property died intestate as claimed by the plaintiff, if so its effect. OPP

4. If issue no.2 is decided in favour of the plaintiff, whether the plaintiff is entitled for the partition of the suit property? OPD"

4. The respondent/plaintiff, in support of his case, examined his

mother as PW-1, AshaTandon. So far as the appellant/defendant is

concerned, he entered into the witness box and examined himself as DW-

1. In addition to this, DW-2, Suresh Chand, a witness, who had signed the

Will, DW-3, Balbir Singh, who was working as an LDC in the Office of

the Sub-Registrar, were also examined.

5. After hearing the arguments, the learned trial Court did not believe

the version of the appellant/defendant that Nirmala Devi had executed

two Wills, by virtue of which the two different properties were

bequeathed to the appellant/defendant and the respondent/plaintiff. It was

stated that there was absolutely no justification for Nirmala Devi to have

executed two separate Wills on the same date, when she could have

executed only one Will. It was also observed by the learned trial Court

that, in one of the Wills, at the bottom, it is written that either of the

parties will not sue the other party with regard to the suit property. The

learned trial Court has examined not only the case law, but entered into

detailed examination of the Wills to arrive at a conclusion that the Wills

have not been proved and thereafter a preliminary decree of partition was

passed.

6. On the face of it, I feel the learned Additional District Judge

('ADJ') has unnecessarily dealt with the case law and the detailed

discussion with regard to the proof of the Will, when ex facie the Will is

not validly executed.

7. The appellant/defendant, feeling aggrieved by the preliminary

decree, has preferred the present appeal.

8. I have gone through the impugned judgment, heard the learned

counsel for the appellant and thoughtfully considered the record.

9. Before dealing with the submissions made by the learned counsel

for the appellant, which has been essentially that Nirmala Devi owned

two properties - one each was bequeathed to the two sons, namely, the

appellant/defendant and the grandson, the respondent/plaintiff, who was

survived on account of the death of the second son, Pradeep Kumar

Tandon of Nirmala Devi.

10. Before dealing with the proof of the Will, it will be pertinent here

to reproduce Section 63 of the Indian Succession Act, 1925 and Section

68 of the Evidence Act, 1872, which read as under:-

"63. Execution of unprivileged Wills. --Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or a mariner at sea, shall execute his Will according to the following rules:--

(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the

signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

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

11. A cumulative reading of the aforesaid provisions would make it

amply clear that the requirement of proof of a Will is that, it must be

made by the deceased/testator in a sound state of mind in respect of the

property owned by him/her and there have to be two attesting witnesses

to the Will - one of whom has to testify before the Court and the three

persons, namely, the two attesting witnesses and the deceased/testator

must sign simultaneously, except in one occasion, where one of the

witnesses has signed in the absence of the other witness, but the

deceased/testator has given an assurance to the second witness that the

other witness has signed in his presence.

12. Further, a Will is to be proved if both the attesting witnesses are

alive, at least by one of the attesting witnesses, who has to come to the

witness box and testify. While accepting the Will to be genuine and valid

Will, there should be no suspicion about execution of the Will.

13. Coming back to the facts of the present case, though the learned

ADJ has taken the Will to be proved through the testimony of the

appellant/defendant himself as Ex. DW-2/A in respect of the suit property

and Ex. PW-1/D1 in respect of property bearing No. 302-D, behind Ram

Lilla Ground, Circular Road, Shahdara, Delhi, which is purported to have

been given to the respondent/plaintiff, but the fact of the matter remains

that, simply execution of a document by a person would not be deemed to

be proof of the Will, as has been stated hereinabove. At least, one of the

attesting witnesses should have testified before the Court in proof of the

Will. In the instant case, both the Wills, which have been exhibited by the

appellant/defendant, are signed by only one attesting witness, while as the

other signature is that of an advocate in the capacity of person who has

drafted the Will. Therefore, this cannot be treated to be a valid Will at all.

The factum of the Will being registered or the witness, namely,

appellant/defendant, or even the respondent/plaintiff admitting that the

Will was signed by Nirmala Devi does not take the case of the

appellant/defendant any further. That is not sufficient requirement of law

in order to uphold the defence of the appellant/defendant to resist the suit

for partition. Therefore, I feel, in the absence of valid execution of the

Will, it was totally unwarranted on the part of the learned ADJ to have

entered into the long discussion with regard to the proof of Will or cite

number of case law to arrive at a conclusion that the defence of the

appellant/defendant is not credible. Issue No.3, which was recast during

the trial so as to read whether Nirmala Devi had left behind a Will in

favour of the appellant/defendant in respect of the suit property and, if so,

to what effect, is not proved and consequently it was held that Nirmala

Devi died intestate and on account of her death intestate, the

respondent/plaintiff, being the grandson, is entitled to ½ share in her

property, which happens to be the suit property bearing No. 7/544, Indira

Park, Jawala Nagar, Shahdara, Delhi along with his two minor daughters

and his mother, though they have not been impleaded as parties and the ½

share is owned by the appellant/defendant.

14. I accordingly feel that there is no illegality or infirmity in the

impugned judgment in arriving at a conclusion, and so far as

respondent/plaintiff is concerned, he has ½ share in the suit property.

Accordingly, the present appeal is totally misconceived and the same is

dismissed.

V.K. SHALI, J.

MAY 09, 2016 tp