Delhi High Court
Rakesh Gupta & Anr. vs Sushil Kumar Gupta & Ors. on 23 May, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 17.01.2017
% Decided on : 23.05.2017
+ C.S.(OS) 1161/2015, Crl.M.A.18029/2015 & I.A.8777/2015
RAKESH GUPTA & ANR. ..... Plaintiffs
Through: Mr.Sanjay Goswami, Advocate
versus
SUSHIL KUMAR GUPTA & ORS. ..... Defendants
Through: Mr.Deepak Chopra, Adv. for D-1 and
D-2.
Ms.Manpreet Gill, Adv. for D-4.
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA
JUDGMENT
I.A.12175/2016 (on behalf of defendant no.1 under Order VII
Rule 11 (d) CPC)
1. The defendant no.1 vide this application has sought the dismissal of
the suit on the ground that the plaintiffs have no cause of action in their
favour. It is submitted that suit is based on a Will dated 31.05.2010 and its
Codicil dated 23.03.2011 executed by defendant no.4 and she is still alive.
No suit can be filed since the Will is enforceable only on the demise of
testator, and testator is still alive.
CS (OS) 1161/2015 Page 1
2. In their reply, the plaintiffs have submitted that although the
document is titled as Will (dated 31.05.2010) and Codicil (dated
23.03.2011) but in fact these documents are settlement documents and
pursuant to this the plaintiffs are in settled possession of the different
portions of the property No.4, Defence Colony Market, New Delhi. While
the plaintiff no.1 is in settled possession of the entire first floor, second floor
portions, the plaintiff no.2 is in the settled possession of 50% of the ground
floor of Shop No.4, Defence Colony Market in the capacity of partner of
M/s New Evergreen Store. It is submitted that the plaintiffs have sought a
decree of permanent injunction against their illegal dispossession as they
apprehend illegal dispossession by defendants and since they are in settled
possession they have cause of action in their favour. It is submitted that the
application is liable to be dismissed.
3. I have heard the arguments and have perused the relevant record.
4. The plaintiffs have filed the present suit against defendant no.1, their
brother and defendant no.2, brother‟s wife and also their mother. They have
also made Sub-Registrar as a party to the suit. The suit relates to the
declaration and permanent injunction. The case of the plaintiffs is that
Mrs.Angoori Devi Gupta (defendant no.4), their mother is presently residing
CS (OS) 1161/2015 Page 2
at A-305, First Floor, Defence Colony, New Delhi. Defendant No.1 (Sushil
K. Gupta) is brother of plaintiffs. Defendant No.2, Anjali Gupta is wife of
defendant No.1. Anjali Gupta is made a party because defendant no.1
fraudulently persuaded defendant No.4 to execute certain documents in her
favour. It is submitted that their mother defendant no.4 is suffering with
multiple diseases and she cannot even identify her close relatives including
her only daughter Renu Gupta. She had remained admitted during the period
23.02.2015 to 04.03.2015 in intensive care in Moolchand Hospital and
although discharged but under prescription takes strong sedative medicines.
She is the absolute owner of the immovable and movable property including
property bearing shop no.4, Defence Colony Market and Shop No.19, LSC,
Naraina and share in house no.2/43, Sarvapriya Vihar, New Delhi as well as
other movable properties. It is submitted that for many years immovable
properties were used and maintained with the consent of defendant no.4 and
defendant no.1. Plaintiff No.2 Mukesh Kumar Gupta is occupying the
ground floor of property bearing shop no.4, Defence Colony and the plaintiff
No.1 has been in exclusive occupation of the first and second floor of the
said property and using it as his residence-cum-office for his company M/s
Simsona Technology Private Limited. They are maintaining the portions of
CS (OS) 1161/2015 Page 3
the said properties in their possession. It is submitted that the plaintiff no.2
is running his business in the name of M/s New Evergreen in partnership
with defendant no.1 in the said property and had spent lakhs of rupees in the
development of the property and its maintenance and also paying property
tax etc. of the portions which are in their use and occupation. The plaintiff
no.1 is presently in possession of the entire ground floor of the property
no.2/43, Sarvapriya Vihar, New Delhi which is presently lying vacant and
he is paying all the dues of the said property including property tax,
electricity and water charges. The defendant no.4 has even issued a No
Objection Certificate in favour of plaintiff no.1 permitting him to get his
company registered at the address of the first and second floor of shop no.4,
Defence Colony and therefore they are in settled possession of the entire
first floor and second floor of property no.4, Defence Colony. It is
submitted that Mrs. Angoori Devi with the consent and consensus of all four
sons and her daughter Smt. Renu Gupta and Rajesh Gupta, husband of Smt.
Renu Gupta executed a registered settlement in the form of a Will dated
31.05.2010. It is submitted that subsequent to this defendant no.4 executed
a registered Codicil dated 23.03.2011 clarifying her Will dated 31.05.2010
which actually was a family settlement. It is further contended that
CS (OS) 1161/2015 Page 4
defendant no.1 wanted to usurp the property in possession of plaintiffs and
also threatened to get the whole of the property transferred in his name from
defendant no.4 Angoori Devi and that is why their relationship with
defendant No.1 turned sour. Angoori Devi due to her old age and illness,
not able to comprehend and understand things. It is contended that plaintiff
no.1 came to know that defendant no.1 and 2 fraudulently got executed a
registered gift deed of shop no.4, Defence Colony on 21.04.2015. Plaintiffs
lodged a complaint with the Sub-Registrar immediately on 22.04.2015
against the registration of the gift deed and also lodged complaint with
various other authorities. In para 33 of the plaint, the petitioners have stated
that the cause of action has arisen in their favour on 17.03.2015 when
defendant no.1 tried to forcibly dispossess the plaintiff no.1 from the first
and second floor of Defence Colony property and on 21.04.2015 when
defendant no.1 and 2 got the gift deed executed in their favour from
defendant no.4. On these facts, the plaintiffs have prayed for a decree of
declaration that an irrevocable license is created in their favour as regards
the ground, first and second floor of property no.4, defence colony under the
settlement made in Will dated 31.05.2010 and Codicil dated 23.03.2011 and
they should be declared the absolute owner in possession of the same and
CS (OS) 1161/2015 Page 5
have also sought declaration of the nature that any document executed in the
nature of title deed, sale deed, gift deed, any blank signed pages or any other
documents got executed by defendant no.1 from defendant no.4 Angoori
Devi as regards property no.4, Defence Colony on 21.04.2015 are null and
void and also sought a decree of permanent injunction restraining defendant
no.1 from interfering in their possession in the said property.
5. Learned counsel for the plaintiff has argued that since the Will dated
31.05.2010 and Codicil dated 23.3.2011 have been acted upon and they have
been given the possession under the said documents, it is in fact a family
settlement creating ownership rights in the property in their possession and a
declaration to this effect be given and their possession should be protected
by way of permanent injunction and any document which affects their right
to continue in the said property be declared as null and void, especially, the
document dated 21.04.2015. It is argued by learned counsel for the plaintiff
that although the document dated 31.05.2010 and its Codicil has been titled
as Will and Codicil respectively but in fact that is a family settlement
creating rights in favour of the parties and also transferring the possession in
the property. It is submitted that the expression used in the Will to the effect
"my sons can get the aforesaid properties mutated in the records in their
CS (OS) 1161/2015 Page 6
favour on the basis of this Will or its certified true copy" clearly shows that
the intention of respondent no.4 was to create rights in the property in
possession of the beneficiaries under the said document that is why the
rights to get the respective portions of the properties mutated was given to
the beneficiaries. It is submitted that since the rights created were in
praesenti, the document is a family settlement and not a Will. Reliance is
also placed on Namburi Basava Subrahmanyam vs. Alapati Hymavathi
and Others (1996) 9 SCC 388 and P.K.Mohan Ram vs. B.N. Ananthachary
and Others (2010) 4 SCC 161. It is argued that the court has propounded
that the nomenclature of the document is not conclusive but it is the
intention of the executants inferred from the language of the document and
the acknowledgement thereof by the parties which determines the real
character of the document. It is submitted that the facts in Namburi Basava
Subrahmanyam (supra) that case are similar to this case. In that case,
Seshamma bequeathed her properties to her two daughters by two settlement
deeds executed and registered on 01.12.1958. Her husband died on
04.05.1970. On 21.08.1970 Seshamma revoked the settlement deed and
executed a Will giving the properties gifted in favour of one daughter. After
her death, the daughter filed the case and the trial court held that since there
CS (OS) 1161/2015 Page 7
was an earlier settlement deed, the Will was not valid in law and dismissed
the suit. The contention of other party was that the settlement deed, though
titled as a „settlement deed‟ but in fact was a „Will‟ as the executants of
document had reserved for herself the life interest in the property and put a
rider that the daughter could not alienate it during her lifetime. The
Supreme Court after relying on the language of the settlement deed had held
that the recitals of the settlement deed executed since had created rights
thereunder which were intended to have taken effect from that date to the
extent the land mentioned in the schedule on the settlement deed along with
the boundaries, and since the document had created right, title and interest in
the said properties, the rider that the daughter was to acquire absolute
enjoyment alienation etc. only on her demise and the fact that the executant
had created for herself a life interest in the property, were of no consequent
since rights and interests in the property were created in praesenti, the
document was a settlement deed and not a 'Will‟. It is argued that it is clear
from the language of the impugned document that it creates rights in favour
of the plaintiffs in praesenti and only because defendant no.4 had retained
the ownership rights of the properties does not make it a Will but it is a
settlement deed creating rights in praesenti.
CS (OS) 1161/2015 Page 8
6. The learned counsel for the defendants on the other hand has argued
that the plaintiffs have no property in their possession and will dated
31.05.2010 is not a family settlement. It is only a Will and the executants
can change it or repeal it any time and the executant of the document is still
alive. Since indisputably, defendant no.4 is the absolute owner of the suit
property and she is alive and she is within her rights to deal with the
property in any manner she wants. The plaintiffs were only permitted to
enjoy the property of defendant no.4 being her sons. They do not have any
vested right or interest in the suit property of defendant no.4. They thus have
no cause of action to file the present suit against the owner of the suit
property. They have no cause of action in their favour as admittedly they do
not have any right, title or interest in the suit property, which needs
protection.
7. It is further submitted that the plaintiffs have concealed material facts
from the knowledge of this court and thus guilty of suppression of material
facts and can be non-suited on these grounds. Reliance is placed on Oswal
Fats and Oils Ltd. vs. Additional Commissioner (Administration), Bareilly
Division, Bareilly and Others (2010) 4 SCC 728, S.P.Chengalvarya Naidu
(dead) By L.Rs. vs. Jagannath (dead) by L.Rs. and Others AIR 1994 SC
CS (OS) 1161/2015 Page 9
853, Ram Chander Aggarwal vs. UOI & Ors. 2012 (128) DRJ 271 (DB),
Surya Prakash Tyagi vs. Ltd. Governor of Delhi & Ors. (2009) 160 DLT 42
(DB), Sandeep Kumar vs. Nihal Chand 2014 (207) DLT 104 and
J.Kumaradasan Nair & Anr. vs. IRIC Sohan & Ors. (2009) 12 SCC 175.
It is submitted that the plaintiffs have not disclosed that the plaintiff no.2
and defendant no.1 had executed a Rent Deed with defendant no.4 Angoori
Devi on 02.04.2015. They have also concealed that fact that the registered
partnership deed executed between plaintiff no.2 and defendant no.1, they
had admitted that they will be paying monthly rent to defendant no.4 i.e. the
Angoori Devi. And they have also concealed the fact that Angoori Devi had
executed a Retirement Partnership Deed on 01.04.2015 in which maximum
share of defendant no.4 were devolved to plaintiff no.2 and lesser share on
defendant no.1. It is further argued that finding in P.K. Mohan case (supra),
the case law relied upon by the plaintiffs is not applicable on the facts of the
present case because in the present case the testator is still alive. It is
submitted that the Supreme Court has clearly held in Bhavnagar University
vs. Palitana Sugar Mill (P) Ltd. 2003 (2) SCC 111 that a judgment has a
precedent value only as the similarity of facts and since in the present case,
the testator is still alive, the case law relied upon by the plaintiff relating to
CS (OS) 1161/2015 Page 10
the interpretation of the document is not applicable. It is further argued that
it is a well settled proposition of law that a document has to be read as a
whole. Reliance is placed on the findings of the Supreme Court in
S.Chattanatha Kurayalar vs. Central Bank of India Ltd. & Others AIR
1965 SC 1856 and the decision of this court in Ansaldo Caldaie Boilers
India Pvt. Ltd. vs. Union of India & Anr. 177 (2011) DLT 752 (DB). It is
also submitted that since the plaintiff has concealed the material facts from
this court, plaintiffs are guilty of contempt of court and relied on the facts of
Satish Khosla vs. Eli Lilly Ranbaxy Ltd. 1998 (1) AD (Delhi). It is argued
that not only the plaintiffs have no cause of action but they are also guilty of
suppression of material facts.
8. I have heard the arguments and given thoughtful consideration to the
rival contentions.
9. The main contention of the defendants is that the plaintiffs have no
cause of action and therefore, the suit is liable to be dismissed. The present
suit has been filed for declaration and permanent injunction in respect of the
suit property. Their main contention is that the documents titled as Will and
the document titled as Codicil are in fact documents showing settlement
between the parties pursuant to which the defendant no.4 has created right,
CS (OS) 1161/2015 Page 11
title and interest in her properties in favour of the plaintiffs and others in the
praesenti. The plaintiffs have averred that defendant no.4 after executing
these documents cannot subsequently gift away the properties by executing
a Gift Deed. Their case is that the properties given to them and others under
these documents vest in the plaintiffs and others and they are already in
occupation of the respective portion of the properties assigned to them.
Under these documents, their rights created cannot be gifted away by
defendant No. 4 by executing any subsequent document. While the plaintiffs
stand is that it is a family arrangement/settlement, the defendants have stated
in their application under Order VII Rule 11 of CPC that it is a will and the
executants of the Will is alive and she being the owner of the property can at
any stage cancel the said Will and Codicil and execute any other document
and so plaintiffs have no cause of action..
10. The cause of action is bundle of essential facts disclosed by the
plaintiff in the plaint in order to establish his rights in the claim for which he
has come before the court. These are the facts and not the evidences which
constitutes the cause of action. The averments made in the plaint have to be
read in its entirety. The court is also not required to dissect the pleadings
into several parts and then consider whether each one of them discloses a
CS (OS) 1161/2015 Page 12
cause of action. It is the meaningful reading of the plaint which the courts
must do in order to ascertain if there exists any cause of action in favour of
the plaintiff. The courts are also not required to reject a plaint on the basis
of allegations made by the defendants in the written statement or in the
application for rejection of the plaint if the plaint discloses some cause of
action which requires determination by the court. For deciding an
application under Order VII Rule 11 CPC, the averments made in the plaint
have to be considered to be true and then to find out whether those
averments disclose a cause of action or a triable issue as such.
11. There is no dispute to the settled proposition that while dealing with
application under Order VII Rule 11 CPC, the court can, besides the
averments in the plaint also consider the documents relied upon by the
plaintiffs. The plaintiffs claim rests on two documents, titled as Will dated
31.05.2010 and Codicil dated 23.03.2011. While the plaintiffs‟ claim is that
it is a settlement deed, contention of the defendants is that this document is a
Will and the testator is still alive and she being the owner of the property
mentioned in the Will and Codicil has a legal right to terminate the Will at
any stage. The only issue is whether the document dated 31.05.2010 and its
Codicil dated 23.03.2011 is a Will or a settlement. For the answer to this
CS (OS) 1161/2015 Page 13
question, at this stage, the Court has to rely only on the averments in the
plaint and judge the documents in the light of the averments in the plaint.
Any defence sets out by the defendant is of no consequence. It is a settled
proposition of law that a document is to be read as a whole (reliance is
placed on S.P.Chengalvarya Naidu (supra) & Ansaldo Caldaie Boilers
India Pvt. Ltd. (supra)
12. The principles governing the interpretation of a document to judge
whether the document is testamentary or a settlement, has been set out by
the Supreme Court in the case of P.K.Mohan Ram (supra). In that case, the
Supreme Court has relied on its earlier judgment in case of Namburi Basava
Subrahmanyam vs. Alapati Hymavathi and Others (1996) 9 SCC 388 and
many other judgments. In Namburi Basava Subrahmanyam vs. Alapati
Hymavathi and Others (1996) 9 SCC 388, the Apex court has held as under:
"5. The said recital clearly would indicate that the
settlement deed executed on that date is to take effect on that
day. She created rights there under intended to take effect
from that date, the extent of the lands mentioned in the
schedule with the boundaries mentioned there under. A
combined reading of the recitals in the document and also
the schedule would clearly indicate that on the date when
the document was executed she had created right, title and
interest in the property in favour of her second daughter but
only on her demise she was to acquire absolute right to
enjoyment, alienation, etc. In other words, she had created
in herself a life interest in the property and vested the
CS (OS) 1161/2015 Page 14
remainder in favour of her second daughter. It is settled law
that the executant while divesting herself of the title to the
property could create a life estate for her enjoyment and the
property would devolve on the settlee with absolute rights
on the settlor's demise. A reading of the documents together
with the schedule would give an indication that she had
created right and interest in præsenti in favour of her
daughter Vimalavathy in respect of the properties
mentioned in the schedule with a life estate for her
enjoyment during her lifetime. Thus, it could be construed
rightly as a settlement deed but not as a will. Having
divested herself of the right and title thereunder, she had,
thereafter, no right to bequeath the same property in favour
of her daughter Hymavathy. The trial court and the learned
Single Judge rightly negatived the claim. The Division
Bench was not, therefore, correct in law in interfering with
the decree of the trial court."
13. After relying on these principles the Supreme Court in P.K.Mohan
Ram (supra) has held as under:
"29. A careful reading of Ext. A-2 shows that in the title
itself the document has been described as a settlement deed.
By executing that document, Shri K. Perumal Iyer expressed
his intention, in no uncertain terms, to settle the property in
favour of 16 persons who were none else than his own
relatives and declared that "from this day onwards I and
you shall enjoy the land and house without creating any
encumbrance or making any alienation whatsoever". This
was an unequivocal creation of right in favour of sixteen
persons in præsenti. Though, the beneficiaries were to
become absolute owners of their respective shares after the
death of the settlor, the language of the document clearly
shows that all of them were to enjoy the property along with
the settlor during his lifetime and after his death, each of the
beneficiaries was to get a specified share. In the concluding
portion, the settlor made it clear that he will have no right
CS (OS) 1161/2015 Page 15
to cancel the settlement deed for any reason whatsoever or
to alter the terms thereof."
14. Therefore, the intention of the executant of the Will on which the
plaintiff is relying has to be ascertained from the recitals made in the
document, in its totality and thereby discerning the intention of the
executants and real nature of documents. Rule of construction of document
is amply clear. The plain meaning has to be given to the document. The
relevant documents i.e. the Will dated 31.05.2010 and Codicil dated
23.03.2011are reproduced as under:
"WILL
"This Will is made at New Delhi on this day of May 2010,
by Smt. Angoori Devi Gupta w/o Late Shri S.K. Gupta,
resident of A-305, Defence Colony, New Delhi. Life is short
and uncertain, god knows when it may come to an end. I
therefore to avoid any litigation amongst my legal heirs is
willingly and without any pressure making this Will with my
own wish.
I have four sons namely 1) Shri Suresh Kumar Gupta 2)
Shri Mukesh Kumar Gupta 3) Shri Rakesh Gupta and 4)
Shri Sushil Kumar Gupta and a youngest daughter Smt.
Renu Gupta w/o Shri Rajesh Gupta as my legal heirs.
I have spent enough on the marriage of my daughter and
she being well off, I do not want to bequeath any of my
immoveable property to her. I am owner of the following
immoveable properties which I want to bequeath the same
as follows :
IMMOVEABLE PROPERTIES
CS (OS) 1161/2015 Page 16
a) SHOP N0.4 DEFENCE COLONY MKT NEW DELHI
That the property/shop was constructed s Ground Floor,
First Floor and the Second Floor which is old structure and
one has to demolish the same and reconstruct a new modem
building as per relaxed norms to extract the commercial
value out of this property. But at present I am bequeathing
the same as per old structure. That the 19 feet length on
ground floor only with full width from back side will devolve
to Shri Mukesh Kumar Gupta and the remaining ground
floor will devolve to Shri Sushil Kumar Gupta. The entire
first floor, entire second floor with its terrace rights will
devolve to Shri Rakesh Gupta.
The share in undivided land beneath the structure is in the
ratio of 45:38:17 for Rakesh, Sushil, Mukesh respectively.
They are entitled to share the property in the above ratio. I
wish that the old structure be demolished and a new
commercial building be made and in that scenario the
structure will be divided as follows:
BASEMENT MUKESH KUMAR GUPTA
GROUND SUSHIL KUMAR GUPTA
FIRST, SECOND, THIRD AND ABOVE : RAKESH GUPTA
That a staircase of apporx. 1/3rd in width of the plot should
be made from front side for entry to the upper floors. It is
clarified that a new building is not made within a period of
4 years, in that eventuality Sh. Rakesh Gupta will be entitled
to have the staircase from the front side of the shop in the
old structure.
b) SHOP NO. 19, LSC NARAINA, NEW DELHI
CS (OS) 1161/2015 Page 17
I hereby bequeath this property to my eldest son Shri Suresh
Kumar Gupta and he will have full rights of ownership in
the property.
c) 1/5th SHARE IN HOUSE NO.2/43 SARVAPRIYA
VIHAR
I hereby bequeath my share in this property to my son Shri
Rakesh Gupta and he will become owner of40% in the
property.
As long I am alive I shall remain the owner of these
properties and my sons can get the aforesaid properties
mutated in the records in their favour on the basis ofthis
Will or its certified true copy.
MOVAEABLE PROPERTIES
30% SHARE IN NEW EVERGREEN STORE
I am partner to the extent of 30% in NEW EVERGREEN
STORE. I hereby bequeath my share to Mukesh Gupta and
Sushil Gupta in equal ratio and after my demise they will be
partners of 50:50 each.
OTHER MOVEABLE AND RESIDUAL PROPERTIES
I bequeath my cash, ancestral jewellery and other assets to
my four daughter in laws in equal portion. All my moveable
assets will devolved upon them equally. My bank balance or
any investment in shares or bond will devolve upon to my
youngest son Shri Sushil Gupta.
In witnessth thereof this WILL is signed atNew Delhi on this
10th day of June 2010 in the presence of the following.
TESTATOR
CS (OS) 1161/2015 Page 18
SD/- ANGOORI
DEVI
WITNESSES:
SD/-
1. Rajesh Gupta
S/o Late Shri R.K. Gupta,
B-393, New Friends Colony,
New Delhi. PAN NO. AAAPG7884Q
Drafted by:
Smt. Angoori Devi
A-305, Defence Colony
2. Sd./-
Sushil Kumar Gupta
S/o Late Sh. S.K. Gupta
A-305, Defence Colony,
New Delhi. PAN NO. AAHPG2302A
3. Sd/-
Mahesh Saini
S/o Sh. H.R. Saini
4/17, D/S, Jangpura Extn.,
New Delhi." (emphasis mine)
"CODICIL TO WILL
This Codicil is made at New Delhi, on his 23rd day of March
2011, by Smt. Angoori Devi Gupta w/o Late Shri S.K.
Gupta, resident of A-305, Defence Colony, New Delhi.
I am in good health and sound disposing mind and
voluntarily wish to make the following
additions/amendments in my earlier Will dated 31st May,
2011, duly registered as document No.4300 in Addl. Book
No.III, Volume No. 1834, on pages 138 to 140, on
28.06.2010, in the office of the Sub Registrar, New Delhi,
CS (OS) 1161/2015 Page 19
hence this Codicil is being made and executed by me,
without any pressure from anybody else,
The Clause No. (a) SHOP N0.4, DEFENCE COLONY
MARKET, NEW DELHI, stands amended and should be
read as under:
That the property/shop was constructed as Ground Floor,
First Floor and the Second Floor which is old structure and
one has to demolish the same and reconstruct a new modem
building as per relaxed norms to extract the commercial
value out of this property. But at present I am bequeathing
the same as per old structure. That the Ground Floor will
devolve to Shri Mukesh Kumar Gupta and Shri Sushil
Kumar Gupta in equal portion jointly. The entire First
Floor, entire Second Floor with its teiface rights will
devolve to Shri Rakesh Gupta.
The share in undivided land beneath the stmcture is in the
ratio of 45:27.5:27.5 for Rakesh : Sushil: Mukesh
respectively. They are entitled to share the property in the
above ratio. I wish that the old structure be demolished and
a new commercial building be made and in that scenario the
structure will be divided as follows:
BASEMENT & GROUND MUKESH KUMAR GUPTA
and SUSHIL KUMAR GUPTA
(jointly in equal share )
FIRST, SECOND, THIRD AND ABOVE RAKESH GUPTA
That a staircase of approx. 1/3rd in width of the plot should
be made from front side for entry to the upper floors. It is
clarified that if new building is not made within a period of
4 years, in that eventuality Shri Rakesh Gupta will be
entitled to have the staircase from front side of the shop in
the old structure.
CS (OS) 1161/2015 Page 20
All other bequeaths made vide earlier Will dated 31st May,
2010, shall remain same.
This Codicil shall form part and parcel of my earlier Will
dated 31st May, 2010 and both these documents shall always
be read together.
IN WITNESS WHEREOF I have signed this Codicil on the
day, month and year first above written, in the presence of
the following witnesses.
SD/- Angoori Devi
TESTATOR
WITNESSES:
1. SD/-
RONIT MEHRA
S/0 SH. T.S. MEHRA
R/0 E-56 FATEHPUR
NEW DELHI"
(emphasis provided)
15. While disposing of the application under Order VII Rule 11 of CPC,
the court is not deciding the suit of the plaintiff, but only ascertaining if they
have any cause of action in their favour. The interpretation of the document,
whether it is the Will or settlement, is done only with the sole intention to
determine if the averments made by the plaintiff in the plaint are
inconsonance with these documents.
16. The language of the document (the Will) i.e.
"............That the property/shop was constructed s Ground
Floor, First Floor and the Second Floor which is old
structure and one has to demolish the same and reconstruct
CS (OS) 1161/2015 Page 21
a new modern building as per relaxed norms to extract the
commercial value out of this property. But at present I am
bequeathing the same as per old structure......"
"..... I wish that the old structure be demolished and a new
commercial building be made and in that scenario ....."
Clearly shows that the testator although was bequeathing the old
structure wished that new structure be raised within a period of four years.
17. Thereafter the executants had stated
"........That a staircase of approx. 1/3rd in width of the plot
should be made from front side for entry to the upper floors.
It is clarified that a new building is not made within a
period of 4 years, in that eventuality Sh. Rakesh Gupta will
be entitled to have the staircase from the front side of the
shop in the old structure."
"b) SHOP NO. 19, LSC NARAINA, NEW DELHI
I hereby bequeath this property to my eldest son Shri Suresh
Kumar Gupta and he will have full rights of ownership in
the property."
18. This averment in the document clearly shows that during her lifetime
the testator had given full right of ownership of shop No.19, LSC, Naraina,
New Delhi in favour of her son Suresh Kumar. Although she has stated in
the document "As long I am alive I shall remain the owner of these
properties...... but she further proceeds to say "my sons can get the
aforesaid properties mutated in the records in their favour on the basis of
this Will or its certified true copy."
CS (OS) 1161/2015 Page 22
19. From these averments in the document, the intention of the executant
is amply clear. She desired to settle the beneficiaries under this document in
respect of the properties they will hold and that is why permitted them to get
the properties mutated in their names. The rights under these documents are
created in praesenti. The wish of executor to get the old structure
demolished and new building be raised within four years also fortifies her
intention to permit the beneficiary under the document to get the properties
reconstructed. Prima facie from the language of the document it appears that
she had created right, title and interest in the properties in favour of the
beneficiaries in praesenti. This document, therefore, supports the averments
and contention of the plaintiff that rights in respect of properties in their
possession was created in their favour under this document. The plaintiffs
have also clearly stated that they are in occupation and possession of the
properties given to them under this document. In the light of the above, it
cannot be said that the plaintiffs do not have a cause of action in their
favour.
20. Learned counsel for the defendants has relied on number of cases in
order to prove that the plaint is liable to be rejected on the ground that the
facts, which they have disclosed in their application under Order VII Rule
CS (OS) 1161/2015 Page 23
11 CPC, have been concealed by the plaintiffs. This contention of the
defendants has no merit in it. In view of the settled proposition of law while
dealing with the application under Order VII Rule 11 CPC, the court has to
confine itself only on the averments in the case and which have to be taken
as gospel truth. The other argument that case laws of P.K. Mohan (supra),
Namburi (supra) are not relevant because the testator is alive, has no merit in
view of the above discussion. It is clear that the plaintiffs have cause of
action in their favour. The application of the defendant No.1 has no merit
and the same is hereby dismissed.
C.S.(OS) 1161/2015
List before Roster Bench on 26.05.2017.
DEEPA SHARMA
(JUDGE)
MAY 23, 2017
rb
CS (OS) 1161/2015 Page 24
