Delhi High Court
Shashi Agrawal vs Vijay Kumar Agrawal & Ors on 29 November, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 15th NOVEMBER, 2017
DECIDED ON : 29th NOVEMBER , 2017
+ OA No.117/2017 & IA No.3215/2017 (u/O 12 R-6 CPC &
u/O 7 R-11 CPC) in CS(OS) 535/2016
SHASHI AGRAWAL ..... Plaintiff
Through : Mr.Akshay Makhija with
Mr.S.Sanyam, Advocates.
versus
VIJAY KUMAR AGRAWAL & ORS ..... Defendants
Through : Mr.Sanjeev Sindhwani, Sr.Advocate,
with Ms.Shalini Kapoor, Mr.Dikshant Khanna
and Ms.Ruhini Dey, Advocates for D1 & D9.
Mr.Mayank Mikhail Mukherjee, Advocates
for D2, D3, D4, D6, D7(i) & (ii), D8(ii) & (iii).
Mr.Abhishek Vikra, Advocate, for D5(c) &
D8(i).
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. OA No. 117/2017 has been preferred by the plaintiff to
challenge the legality and correctness of an order dated 05.07.2017 of
learned Joint Registrar (Judicial) in IA No.16250/2016 whereby he
declined to pass any order thereon till the disposal of the IA No.
3215/2017 under Order XII Rule 6 CPC filed by defendants No. 1 &
9.
2. Both OA and IA were heard.
3. On perusal of the record, it reveals that the plaintiff has
filed the instant suit seeking partition of property No.16, Hailey Road,
New Delhi to claim her 1/3rd share in the property owned by Jagdish
Kumar Agrawal. It is averred that Jagdish Kumar Agrawal died
intestate on 06.12.1983. In their written statements, defendants No.1
& 9 set up Will dated 04.08.1982 executed by Jagdish Kumar
Agrawal. In the replication, the plaintiff claimed that the said Will
was a forged and fabricated document produced for the first time in
the present proceedings. Apparently, validity of the Will dated
04.08.1982 is at issue.
4. Learned Senior Counsel for the contesting defendants
urged that in view of admission of the plaintiff in previous
proceedings, the Will in question cannot be a subject matter of
challenge and IA under Order XII Rule 6 CPC is to be allowed.
5. During the course of arguments, it emerged that in file
Part-III at page 20 (list of documents on behalf of the defendants No.1
& 9), photocopy / true copy of the Will is on record; it has been
attested to be a 'true copy' by S.C.Mittal, Chairman, Staff Selection
Commission, New Delhi. Original of it has also been notarized by
Notary Public, Delhi. Strange enough, this photocopy / attested copy
of the Will does not bear signatures of the testator or the attesting
witnesses. Specific query was raised as to how this 'true copy' /
'attested copy' of the original Will did not contain signatures of the
testator or the attesting witnesses and for what purpose, it has been
attested as 'true copy' of the Will, there was no clear answer to it. In
normal circumstances, it is unheard of getting a copy 'attested' in the
absence of execution of the document (Will in this case). There was
perhaps no valid reasons to get the Will attested to be 'true copy'
without its prior due execution. It prima facie lends credence to the
plaintiff's plea that the Will in question is a forged and fabricated
document. The matter requires to be adjudicated and at no
circumstance, the Will in question can be considered to have been
'admitted' by the plaintiff to allow application under Order XII Rule 6
CPC.
6. Let the learned Joint Registrar decide IA No.16250/2016
which was moved prior to filing of the IA No. 3215/2017 under Order
XII Rule 6 CPC on merits uninfluenced by the observations of this
Court. It is impressed that the learned Joint Registrar shall summon
the individuals who had put their signatures on the 'attested copy' of
the Will (page No.20) as well as Notary Public to ascertain as to how
and in what manner, it was 'attested' / 'notarized' without it bearing
signatures of the testator and the attesting witnesses.
7. The OA and IA stand disposed of in the above terms.
CS(OS) 535/2016 & IA Nos.13023/2016 (u/O 39 R-1&2 CPC),
16250/2016 (u/O 26 R-10A CPC)
List before the Roster Bench on 18th December, 2017 for
further directions.
(S.P.GARG)
JUDGE
NOVEMBER 29, 2017 / tr
