Delhi High Court
Jyoti Puri vs Pawan Gandhi & Ors. on 3 January, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 27th September, 2017
Judgment delivered on: 03rd January, 2018
+ CS(OS) 970/2011
JYOTI PURI ..... Plaintiff
versus
PAWAN GANDHI & ORS. ..... Defendants
Advocates who appeared in this case:
For the Plaintiff : Mr. Kuldip Singh with Mr. Gagan Kumar Singhal, Advocates.
For the Defendants : Mr. G.P. Thareja with Ms. Purnima Maheshwari and Mr. D.K. Singh,
Advocates.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGEMENT
SANJEEV SACHDEVA, J
1. This is a Suit, seeking inter alia, partition, rendition of accounts
and permanent injunction, filed by the Plaintiff Smt. Jyoti Puri, who is
the daughter of Sh. Krishan Gopal Gandhi and Mrs. Roop Rani
Gandhi. Defendants Nos.1 and 2, i.e. Sh. Pawan Gandhi and Sh.
Raman Gandhi are the brothers of the Plaintiff. Defendant Nos.3 and
4, i.e. Smt. Ranjana Thukral and Smt. Rosy Malhotra are the sisters of
the Plaintiff.
2. The Plaintiff has sought partition of the constructed freehold
property measuring 306 sq. yards bearing No.A-2/11, Rajouri Garden,
New Delhi (hereinafter referred to as „the Suit property‟) claiming
1/5th share in her favour and 1/5th share for each of the four
Defendants. The claim of the Plaintiff is that the father of the parties
Sh. Krishan Gopal Gandhi died intestate leaving behind the Suit
property besides moveable assets worth Rs.40 lakhs in the shape of
investments, cash and jewellery. He expired on 11.12.2007 leaving
behind his five children as well as his wife, who all inherited the Suit
property as well as the other moveable assets in 1/6th share each.
3. The Plaintiff contends that Defendant No.1 Sh. Pawan Gandhi
had manipulated and maneuvered documents like Relinquishment
Deed, Deed of Will from the Defendant Nos.3 and 4 and late Smt.
Roop Rani Gandhi and, accordingly, the Defendant Nos.1 and 2, i.e.
the brothers converted the estate left behind by Sh. Krishan Gopal
Gandhi and appropriated the same to their own use without giving due
share to the Plaintiff and other legal heirs.
4. The Defendants, i.e. the two brothers and the two sisters filed
the common written statement contending that after demise of their
parents, on 11.12.2007 and 04.02.2011 respectively, they divided the
assets by Deed of Settlements dated 10.02.2011 and 20.05.2011
between themselves and the share of the Plaintiff was given to the
Plaintiff. It is contended that Sh. Krishan Gopal Gandhi duly
executed his registered Will dated 29.12.1997 and bequeathed his
share in the Suit property in favour of his wife (Smt. Roop Rani
Gandhi) and the Defendant No.2 (Sh. Raman Gandhi). The mother of
the parties executed a registered Will dated 02.01.2009 bequeathing
her share in the property equally to her sons Sh. Pawan Gandhi and
Sh. Raman Gandhi. It is contended that the Plaintiff, in the plaint, has
acknowledged the execution of the Will by Smt. Roop Rani Gandhi.
It is contended that the two brothers had not taken any share in the
moveable assets left behind by their parents.
5. On the pleadings of the parties, on 22.03.2013, the following
issues were framed:-
"1) Whether the Suit has not been properly valued for
the purpose of court fee and requisite court fees has
not been paid? (OPD)
2) Whether Sh. Krishan Gopal Gandhi, father of the
parties had executed a legal and valid Will dated
29.12.1997 in respect of the Suit premises and if so,
the effect thereof? (OPD)
3) Whether Smt. Roop Rani Gandhi, mother of the
parties was not the absolute owner of the Suit
premises? (OPP)
4) If issue No.3 is decided in the affirmative, then what
would be the effect of the Will dated 02.01.2009
allegedly executed by Smt. Roop Rani
Gandhi?(OPP)
5) What is the effect of Relinquishment Deed dated
10.02.2002, executed by Defendants No. 3 and 4 in
favour of their mother, Smt. Roop Rani
Gandhi?(OPD)
7) Whether the Plaintiff is entitled to a decree of
partition of the Suit premises and if so, what are the
share of the parties? OPP
8) Relief."
6. Since issues Nos.2 to 7 are inter-related and premised on the
execution of the legality and validity of the Will dated 29.12.1997 (of
Sh. Krishan Gopal Gandhi) and Will dated 02.01.2009 (of Smt. Roop
Rani Gandhi), the said issues are being disposed of together. Onus of
issue Nos.2, 4, 5 and 6 was cast on the Defendants, accordingly, the
Defendants led their evidence first.
7. Prior to dealing with the evidence led by the parties, it may be
expedient to examine the contents of the Wills left behind by Sh.
Krishan Gopal Gandhi and Smt. Roop Rani Gandhi. Sh. Krishan
Gopal Gandhi in his Will dated 29.12.1997 (exhibited as Ex.DW2/1)
has deposed as under:-
"WHEREAS I am the sole and absolute owner of
Freehold Double Storeyed built-up Property bearing
No.-A-2/11, land measuring 306 sq.yds. situated in the
approved residential colony known as RAJOURI
GARDEN, New Delhi, which is bounded as under:-
EAST : Property No. A-2/10.
WEST : Property No. A-2/12.
NORTH : ROAD.
SOUTH : Property No. A-2/28.
That I have got my wife Mrs. Roop Rani Gandhi, two
sons and three daughters namely (1) Dr. Pawan Gandhi,
(2) Mr. Raman Gandhi,(3) Mrs. Ranjana Thukral, (4)
Mrs. Jyoti Puri and (5)Mrs. Rozy Malhotra.
That My above named three daughters are married and
well settled and they are enjoying their married lives
happily. And they shall have no rights to interfere in this
Will.
That now I from my free WILL and consent hereby
bequeath that after my demise the Entire Ground Floor
and the Terrace of Entire Second Floor out of the
aforesaid Property alongwith half undivided share in the
land beneath the said building shall go and devolve upon
my wife MRS. ROOP RANI GANDHI and the Entire First
Floor and the Entire Second Floor out of aforesaid
Property alongwith half undivided share in the land
beneath the said building shall go and devolve upon my
son Mr. Raman Gandhi, and the passage leading from
main gate to staircase shall remain common and the area
under stars will be common to both.
***** ***** *****
That my other legal heirs shall have no right to claim and
interfere in this Will and my other son Dr. Pawan Gandhi
and his legal heirs shall not have any rights or claim
against the said Portion of Property.".
8. The Will is attested by Sh. Gobind Singh and Sh. H.K. Babbar
as the two attesting witnesses.
9. The Will dated 02.01.2009, executed by Smt. Roop Rani
Gandhi, inter alia, reads as under:-
"Whereas the Testator is the owner and in possession of
one half undivided share of 3/6th undivided share of Built
up property bearing No.11, in Block A-2, land measuring
306 sq.yds., situated at Rajouri Garden, New Delhi, with
the free hold rights of the land under the said property.
Whereas I hereby bequeath that after my death the above
mentioned property shall go and devolve to my sons Shri
Pawan Gandhi & Shri Raman Gandhi both sons of late
Shri Krishan Gopal Gandhi resident of A-2/11, Rajouri
Garden, New Delhi, he/she/they will be sole absolute
owner of the above mentioned property and my other
legal heirs, successors, executors and assigns etc. shall
have no rights or interest whatsoever to the said property.
In case any other person/persons raises any objection it
will be considered as null and void."
10. The Will is stated to be attested by Sh. Sanjiv Gandhi and Sh.
Ramesh Kumar.
11. The Defendant No.1 examined himself as DW1 and also
produced Sh. Gobind Singh and Sh. H.K. Babbar, the two attesting
witnesses to the Will of Sh. Krishan Gopal Gandhi, as DW2 and DW3
respectively and produced Sh. Sanjiv Gandhi and Sh. Ramesh Kumar,
the two attesting witnesses to the Will of Smt. Roop Rani Gandhi, as
DW4 and DW5.
12. Sh. Pawan Gandhi DW1, in his examination-in-chief, with
regard to the distribution of the moveable assets deposed that all the
assets, gold and cash were divided by virtue of a Family Settlement
Deed dated 10.02.2011 (Ex.DW4/2) and receipts dated 18.02.2011
(Ex.D1 & 2) and 20.05.2011 (Ex.D3). As per receipt dated
10.02.2011 (Ex.DW4/2), on division of the jewellery and moveable
assets, the Plaintiff was to receive one big kada, one pair of tops, two
rings and cash of Rs.4,39,500/-. Receipt dated 18.02.2011 (Ex.D1) is
the receipt of one kada, one pair of tops and two rings signed by the
Plaintiff Smt. Jyoti Puri. Receipt dated 18.02.2011 (Ex.D2) is the
receipt of two passbooks of Post Office Monthly Scheme. It may be
noticed that there is no cross-examination of Sh. Pawan Gandhi on the
said part of the deposition.
13. Sh. Gobind Singh (DW2), in his examination-in-chief, filed by
way of an affidavit, deposed as under:-
"1. That I knew late Sh. Krishan Gopal Gandhi, he
had visited me on 29-12-1997 and told me that he has got
his Will typed from H.K.Babbar the other attesting
witness. He told me to accompanying him to Sub-
Registrar II Janakpuri Office. After reaching he read and
checked the contents of the Will are, as per his wish and
desire. After being satisfied as to the contents of the
same Sh. Krishan Gopal Gandhi signed the said Will, in
my presence as well as in the presence of other attesting
witness H.K.Babbar. I signed the Will as the attesting
witness and H.K.Babbar also signed the Will as attesting
witness, in presence of Late Shri Krishan Gopal Gandhi
and in the presence of each other. I identify the
signatures of Late Shri Krishan Gopal Gandhi and
H.K.Babbar. Thereafter, the Will was presented for
Registration before the Registrar II, Janak Puri and all
three of us appeared before the Sub- Registrar II, Janak
Puri, New Delhi and signed on the register. Thumb
impression of Late Shri Krishan Gopal Gandhi alongwith
signature was taken on the Will and later after stamping
and other formalities, the Will was returned to Late Sh.
Krishan Gopal Gandhi. I identify the signatures of Late
Krishan Gopal Gandhi, myself and H.K.Babbar. The Will
was registered as Document No. 85719 in Book No. III,
Volume No. 4130 at Pages 135 - 136. The said Will is Ex.
DW2/1 and bears my signature on point B, that of
H.K.Babbar at Point A and that of Late Sh. Krishan
Gopal Gandhi at point C on each page."
14. Sh. H.K. Babbar (DW-3), in his examination-in-chief with
regard to the Will of Sh. Krishan Kumar Gandhi, deposed as under:-
"1. That I knew late Sh. Krishan Gopal Gandhi, he
had visited me a day prior to 29-12-1997 and told me
that he want to get his Will typed and Registered. He told
me the contents I made a note thereof and told him to
come the next day i.e. 29-12-1997 with his photograph
and attesting witness. He came on 29-12-1997 along with
an attesting witness whose was Gobind Singh. After
reading and checking the contents of the Will are, as per
his wish and desire and being satisfied as to the contents
of the same Sh. Krishan Gopal Gandhi signed the said
Will, in my presence as well as, in the presence of other
attesting witness Gobind Singh. Gobind Singh signed the
Will as the attesting witness and myself also signed the
Will as attesting witness, in presence of Late Shri
Krishan Gopal Gandhi and in the presence of each other.
I identify the signatures of Late Shri Krishan Gopal
Gandhi and Gobind Singh. Thereafter, the Will was
presented for Registration before the Registrar II, Janak
Puri and all three of us appeared before the Sub-
Registrar II, Janak Puri, New Delhi and signed on the
register. Thumb impression of Late Shri Krishan Gopal
Gandhi alongwith signature was taken on the Will and
later after stamping and other formalities, the Will was
returned to Late Sh. Krishan Gopal Gandhi. I identify the
signatures of Late Krishan Gopal Gandhi, Gobind Singh
and myself. The Will was registered as Document No.
85719 in Book No. III, Volume No. 4130 at Pages 135 -
136. The said Will is Ex. DW2/1 and bears my signature
on point A, that of Gobind Singh at Point B and that of
Late Sh. Krishan Gopal Gandhi at point C on each
page."
15. In his cross-examination DW-3 further deposed that Sh.
Krishan Gopal Gandhi could understand English and the Will was
read over to him by the deponent in vernacular.
16. One of the objections raised by the Plaintiff to the Will of Sh.
Krishan Gopal Gandhi is that the same is not attested by the two
attesting witnesses. With regard to Sh. H.K. Babbar, it is contended
that he had signed the same only as a scribe and not as an attesting
witness. Another objection raised is that Sh. Gobind Singh, the
attesting witness of the Will did not read the Will and was not aware
of the contents of the Will and, accordingly, it is no attestation in the
eyes of the law. It is contended that the animus attestandi is missing.
Reliance is placed on the decision of the Supreme Court in N.
Kamalam & Anr. vs. Ayyasamy & Anr.: (2001) 7 SCC 503.
17. Sh. Gobind Singh, in his deposition, has stated that Sh. Krishan
Gopal Gandhi visited him and told him that he had got his Will typed
from Sh. H.K. Babbar, the other attesting witness and told him to
accompany him to Sub-Registrar Office. It is also stated that Sh.
Krishan Gopal Gandhi read and checked contents of the Will and that
the contents were as per his wish and desire and after being satisfied
as to the contents of the same, signed the Will in the presence of the
deponent as well as in the presence of the other attesting witnesses.
He states that he signed the Will as an attesting witness and Sh. H.K.
Babbar also signed the Will as an attesting witness in the presence of
Sh. Krishan Gopal Gandhi and each other.
18. Further, Sh. H.K. Babbar, in his examination-in-chief by way of
an affidavit, has also stated that Sh. Krishan Gopal Gandhi visited him
a day prior to 29.12.1997 and got his Will prepared. He came
alongwith the other attesting witness Sh. Gopal Singh and after
reading and checking the contents of the Will and being satisfied,
signed the Will in the presence of Sh. H.K. Babbar as well as in the
presence of the other attesting witness. Sh. H.K. Babbar has stated
that Sh. Gopal Singh has signed the Will as an attesting witness and
he also signed the Will as an attesting witness in the presence of Sh.
Krishan Gopal Gandhi and each other.
19. Perusal of the Will Ex.DW2/1 shows that Sh. H.K. Babbar has
signed at the place earmarked for witnesses. Nowhere does the Will
state that Sh. H.K. Babbar has signed the same as a scribe. Even the
endorsement on the reverse of the Will, at the place where the stamp
of the Sub-Registrar has been affixed, the name of Sh. H.K. Babbar
has been mentioned as the second attesting witness. The reverse page
is also signed by Sh. Krishan Gopal Gandhi as well as the two
attesting witnesses alongwith the thumb impressions. Further, it may
be noticed that there is not even a suggestion given to Sh. H.K.
Babbar during his cross-examination that he had signed only as a
scribe and not as an attesting witness. Even Sh. Gobind Singh has not
been given as much as a suggestion that he had not signed the Will as
an attesting witness and was not aware that the Will was being
executed. The objection with regard to Sh. Gobind Singh that there
was no animus attestandi is not sustainable.
20. From the deposition of the attesting witnesses, it is clear that
the Defendants have proved the due execution of the Will of Sh.
Krishan Gopal Gandhi and there is satisfaction of the requirements of
Section 63 of the Indian Succession Act, 1925. The witnesses have
duly deposed that Sh. Krishan Gopal Gandhi was aware that a Will
was being executed and the deponents had signed the Will as attesting
witnesses on the request of Sh. Krishan Gopal Gandhi. There is no
requirement in law that the attesting witness must be aware of the
contents of the Will. In my view, the Defendants have duly
discharged the onus of proving the Will of Sh. Krishan Gopal Gandhi
and the compliance of Section 63 of the Indian Succession Act, 1925.
21. The Judgment in N. Kamalam (Supra) is not applicable to the
facts of the present case. In the said case the Propounder of the Will
had failed to produce the attesting witnesses to prove the Will but had
only produced the scribe, who had written the Will. The Court held
that signatures of a scribe cannot be equated to the signatures of an
attesting witness. In the present case both DW 2 and DW 3 have
deposed that they have signed the Will as attesting witnesses and even
their signatures appear as attesting witnesses to the Will.
22. With regard to the Will of Smt. Roop Rani Gandhi, the
Defendants had produced Sh. Sanjiv Gandhi (DW4), who, in his
examination-in-chief, deposed as under:-
"1. That I knew late Smt. Roop Rani Gandhi W/o. Sh.
Krishan Gopal Gandhi, she told me on 2-01-2009 that
she has got her Will typed from her family Lawyer. She
told me to check that the contents of the Will are as per
her wish and desire and I explained the contents of the
same to her in vernacular language - Hindi. She also told
me to accompany her to Sub-Registrar II Janakpuri
Office as attesting witness alongwith Ramesh Kumar,
whom she had also called for the said purpose and who
was present there. He had come after me but all the said
talks took in his presence. After being satisfied as to the
contents of the same Smt. Roop Rani Gandhi signed the
said Will, in my presence as well as in the presence of
other attesting witness Ramesh Kumar. I signed the Will
as the attesting witness and Ramesh Kumar also signed
the Will as attesting witness, in presence of Late Smt.
Roop Rani Gandhi and in the presence of each other. I
identify the signatures of Late Smt. Roop Rani Gandhi
and Ramesh Kumar. Thereafter, the Will was presented
for Registration before the Registrar 11, Janak Puri and
all three of us appeared before the Sub- Registrar 11,
Janak Puri, New Delhi and signed on the register. Thumb
impression of Late Smt. Roop Rani Gandhi alongwith
signature was taken on the Will and later after stamping
and other formalities, the Will was returned to Late Smt.
Roop Rani Gandhi. I identify the signatures of Late Smt.
Roop Rani Gandhi, myself and Ramesh Kumar. The Will
was registered as Document No. 55 in Book No. III,
Volume No. 7683 at Pages 114 - 115. The said Will is Ex.
DW4/1 and bears my signature on point A, that of
Ramesh Kumar at Point B and that of Late Smt. Roop
Rani Gandhi at point C on each page.
2. That after death of Mrs. Roop Rani Gandhi I was
called to be an attesting witness to the division of the
movable assets of her on 10-2- 2011. The same bears the
signature of the daughters of Roop Rani Gandhi who
signed in my presence and whom I identify. The said
settlement is Ex.DW4/2."
23. The other attesting witness Sh. Ramesh Kumar (DW5) deposed
as under:-
"1. That I knew late Smt. Roop Rani Gandhi W/o. Sh.
Krishan Gopal Gandhi, she told me on 2-01-2009 that
she has got her Will typed from her family Lawyer. When
I reached her house Sh. Sanjiv Gandhi was also present
and she told him to check that the contents of the Will are,
as per her wish and desire and he explained the contents
of the same to her in vernacular language - Hindi in my
presence. She also told us to accompany her to Sub-
Registrar II Janakpuri Office as attesting Witnesses. After
being satisfied as to the contents of the same Smt. Roop
Rani Gandhi signed the said Will, in my presence as well
as in the presence of other attesting witness Sanjiv
Gandhi. I signed the Will as the attesting witness and
Sanjiv Gandhi also signed the Will as attesting witness, in
presence of Late Smt. Roop Rani Gandhi and in the
presence of each other. I identify the signatures of Late
Smt. Roop Rani Gandhi, myself and Sanjiv Gandhi.
Thereafter, the Will was presented for Registration before
the Registrar II, Janak Puri and all three of us appeared
before the Sub- Registrar II, Janak Purl, New Delhi and
signed on the register. Thumb Impression of Late Smt.
Roop Rani Gandhi alongwith signature was taken on the
Will and later after stamping and other formalities, the
Will was returned to Late Smt. Roop Rani Gandhi. I
identify the signatures of Late Smt. Roop Ram Gandhi,
myself and Ramesh Kumar. The Will was registered as
Document No. 55 In Book No. III, Volume No. 7683 at
Pages 114 - 115. The said Will is Ex. DW4/1 and bears
my signature on point B, that of Sanjiv Gandhi at Point A
and that of Late Smt. Roop Ram Gandhi at point C on
each page.
2. That after death of Mrs. Roop Rani Gandhi I was
called to be an attesting witness to the division of the
movable assets of her on 10-2-2011. The same bears the
signature of the daughters of Roop Rani Gandhi who
signed in my presence and whom I identify. The said
settlement is Ex.DW4/2."
24. Both the attesting witnesses in their cross-examination have
stood by their deposition and have confirmed that they signed the said
Will as attesting witnesses. Further, it may be seen that the Plaintiff
in the plaint herself has admitted that the Will was executed by Smt.
Roop Rani Gandhi though it is contended that it was under pressure
and coercion.
25. It may be noticed that in the plaint it is contended that the
Defendant Nos.1 and 2 had manipulated and maneuvered the
documents from not only Smt. Roop Rani Gandhi but also from the
Defendant Nos.3 and 4, the other sisters. Defendant Nos.3 and 4, the
other two sisters have not supported the Plaintiff and have not taken a
stand that they were forced to execute any relinquishment deed or that
the mother was forced to execute any deed or Will. They have, in
fact, through the written statement, which is also supported by their
affidavits, reconfirmed the same and also confirmed the distribution of
the moveable assets.
26. Further, in the examination-in-chief by way of affidavit filed by
the Plaintiff herself, she has deposed that "the Will executed by late
Smt. Roop Rani Gandhi had been executed in ignorance of the alleged
Will left behind by late Sh. K.G. Gandhi."
27. In the examination-in-chief, filed by the Plaintiff, she has stated
that the Will executed by Smt. Roop Rani Gandhi had not been
executed out of her own free will and consent and the Will was not
read over to the witnesses and the testator. It may be noticed that
apart from a mere bald averment, there is nothing to substantiate that
the Will was not executed out of free will and consent. The averment
that the Will had not been read over to the testator is not substantiated,
on the other hand, the attesting witnesses have very categorically
deposed that the Will had been executed by Smt. Roop Rani Gandhi
out of her own free will and after confirming that the contents of the
same were as per her wish and desire.
28. From the evidence led, it is evident that the Defendants have
duly proved the due execution of the Will left behind by Sh. Krishan
Gopal Gandhi and Smt. Roop Rani Gandhi and that the Wills dated
29.12.1997 and 02.01.2009 satisfy the requirements of Section 63 of
the Indian Succession Act, 1925.
29. The other objection raised by the Plaintiff is that Sh. Krishan
Gopal Gandhi had bequeathed the entire ground floor and the terrace
of the entire second floor alongwith half undivided share in the land to
his wife Smt. Roop Rani Gandhi and the entire first floor and the
entire second floor alongwith half undivided share in the land to his
son Mr. Raman Gandhi. Whereas, Smt. Roop Rani Gandhi by her
Will had stated that she was the owner of one half undivided share of
3/6th undivided share of the Suit property and that the property shall
go and devolve upon the two sons Sh. Pawan Gandhi and Sh. Raman
Gandhi. It is contended, by the Plaintiff, that there being a variance in
what was bequeathed to Smt. Roop Rani Gandhi and what was being
bequeathed by her, accordingly, the said bequest in invalid. Reliance
is placed on the judgment in Dagani Ramadas vs. P. Daveed: (1998) 8
SCC 465. It is contended that the mother was not the owner of half of
the property and, accordingly, could not have bequeathed half of the
said Suit property.
30. A Will has to be constructed in a manner so as to give effect to
the intention of the testator. The Will has to be read as a whole so as
to ascertain the intention of the testator. On construing the Will of Sh.
Krishan Gopal Gandhi, it is seen that he has bequeathed his property
in two shares, one to his wife and the other to Sh. Raman Gandhi. He
has specifically bequeathed one-half undivided share in the land each
in favour of Smt. Roop Rani Gandhi and Sh. Raman Gandhi. From
the construction of the Will, it is clear that the intention of Sh. Krishan
Kumar Gandhi was to bequeath one-half share in favour of his wife
and one-half share in favour of Sh. Raman Gandhi. He has however,
sought to divide the superstructure giving the entire ground floor and
terrace over the second floor to his wife and the first and the second
floor to Sh. Raman Gandhi. On the other hand, Smt. Roop Rani
Gandhi has bequeathed her entire property to his sons Sh. Pawan
Gandhi and Sh. Raman Gandhi though in the distribution of the
property she has stated that she is the owner and in possession of one
half undivided share of 3/6th undivided share of the built up property.
The intention as emanating from the said Will is to bequeath the entire
share that she owns in the Suit property by virtue of that Will. She
has specifically in her Will stated that apart from her sons, other legal
heirs, successors, executors and assigns shall have no rights or interest
whatsoever to the Suit property. The intention of both the testators is
very clear that is to devolve the said property in favour of Sh. Pawan
Gandhi and Sh. Raman Gandhi and to exclude all other legal heirs
including the Plaintiff and the other Defendants from the Suit
property.
31. The judgment in the case of Dagani Ramadas (Supra) does not
support the case of the Plaintiff. In the said case, the testator prior to
execution of the Will in favour of the Appellant, with regard to a
constructed property, constructed on land on which she only had a
possessory title, executed a settlement deed settling the constructed
property in favour of the Respondent. The court negated the bequest
by Will on the ground that as she had already settled the property in
favour of the Respondent she could not have willed the same. Here, it
is not the case that Smt. Roop Rani Gandhi did not own any portion of
the property, which is covered by the Will. She is admittedly owner of
half of the land and part of the superstructure. How the superstructure
is to be divided, is between Defendants 1 and 2, who apparently have
no inter-se dispute. The Plaintiff and Defendants 3 and 4 has no right,
title or interest in the Suit property.
32. Since Defendants 3 and 4 have no interest in the Suit property,
the relinquishment deed executed by them is inconsequential.
33. In view of the above, issue Nos.2, to 7 are, accordingly, decided
in favour of the Defendants and against the Plaintiff.
34. Insofar as the issue No.1 with regard to valuation of the Suit for
the purposes of court fee and the requisite court fee not having been
paid in the plaint is concerned, the onus of the same was on the
Defendants. The Plaintiff has valued the Suit at Rs.13 crores,
however, has paid the court fee claiming to be in the possession of the
Suit property as one of the joint owners. Sh. Pawan Gandhi in his
examination-in-chief by way of affidavit has specifically stated that
the Plaintiff has not paid the requisite court fee as she is not in
possession of any part of the property. It may be seen that there is not
even a suggestion put to Sh. Pawan Gandhi in his cross-examination
that the statement that the Plaintiff is not in possession of the property
is incorrect. Further, the Plaintiff in her examination-in-chief has not
claimed to be in possession of the subject property and has not by way
of any cogent evidence established that she was in physical or legal
possession of any portion of the Suit property. Rather in her cross-
examination she has stated that after marriage she started living with
her in-laws at Kirti Nagar and had not stayed overnight at her parents‟
house after marriage except for 5-6 days during the birth of her
children. Her children were born in 1984 and 1989. Since the Plaintiff
had not established that she was in possession of any portion of the
Suit property, the Plaintiff was liable to pay ad valorem court fee on
the plaint as the Plaintiff is seeking partition of the Suit property by
metes and bounds and separate possession of her share. Issue No. 1 is
also, accordingly, decided in favour of the Defendants and against the
Plaintiff.
35. In view of the above findings, the Suit of the Plaintiff is
dismissed with cost. Decree sheet be drawn up accordingly.
SANJEEV SACHDEVA, J
JANUARY 03, 2018
st
