Baljeet Singh vs Sukhvinder Singh @ Kakku & Ors.
2019 Latest Caselaw 654 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 84/2019

%                                                    1st February, 2019

BALJEET SINGH                                            ..... Appellant
                          Through:       Mr. Munish Chhoker, Advocate
                                         (Mobile No. 9873340929).


                          versus

SUKHVINDER SINGH @ KAKKU & ORS.                        ..... Respondents

CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. Appl. No. 4615/2019 (for exemption)

1. Exemption allowed, subject to just exceptions.

C.M. stands disposed of.

C.M. Appl. No. 4614/2019 (for delay in re-filing)

2. For the reasons stated in the application the delay of 25

days in re-filing the appeal stands condoned, subject to just

exceptions.

C.M. stands disposed of.

RFA No. 84/2019 & CM No. 4613/2019 (for stay)

3. This Regular First Appeal under Section 96 of the Code

of Civil Procedure 1908 (CPC) is filed by the plaintiff in the suit

impugning the Judgment of the trial court dated 24.07.2018 by which

the trial court has dismissed the suit for partition filed by the

appellant/plaintiff with respect to two properties. The first property is

referred in the impugned judgment as property No.1 bearing No. T-99,

Vishnu Garden, New Delhi. The second property referred to as

property No. 2 is bearing No. 1523-24, T.C. Camp Raghuvir Nagar,

New Delhi.

4. The case of the appellant/plaintiff was that these two suit

properties were purchased by the father, Late Sh. Dalip Singh, after

selling the ancestral property bearing No. 332, Gali No. 2, Anand

Parbat, Karol Bagh, New Delhi, and the plaintiff therefore has a 1/5th

right in the two suit properties. Since it will be relevant, at this stage

itself it is to noted that in the suit plaint that the properties are

mentioned as one property bearing property No. T-99, Vishnu Garden,

New Delhi and the second property is also mentioned as one property

bearing property No. 1523-24, T.C. Camp Raghuvir Nagar, New

Delhi. The appellant/plaintiff in essence had additionally pleaded an

alternative case that in any case since the father Late Sh. Dalip Singh

was the owner of the two properties, and had died intestate, therefore

the appellant/plaintiff became 1/5th owner along with the four other

legal heirs being three daughters and one other deceased son, Sh.

Mohinder Singh. In the original suit plaint, the appellant/plaintiff was

Sh. Baljeet Singh. Originally, in the suit, there were four defendants.

Defendant no. 2 Sh. Mohinder Singh was the other son. The two

daughters, Smt. Parmjeet Kaur and Ms. Amarjeet Kaur, were

impleaded as defendant nos. 3 and 4. Defendant no. 1 in the suit was

the son of the third daughter, Late Smt. Satnam Kaur. The suit plaint

was thereafter amended because as per the written statement filed by

the original defendant nos. 3 and 4, it was stated that they had sold two

floors in the Vishnu Garden property to Sh. Krishan Kumar and Smt.

Navdeep Kaur in terms of registered Sale Deeds dated 23.04.2008 and

December 2008 and therefore the purchasers, Sh. Krishan Kumar and

Ms. Navdeep Kaur, were added as the defendants in the suit and were

arrayed as defendant nos. 9 and 10. The two daughters, Smt.

Paramjeet Kaur and Smt. Amarjeet Kaur, who were defendant nos. 3

and 4 became defendant nos. 7 and 8. Sh. Mohinder Singh, the

defendant no. 2, became defendant no. 6. Defendant nos. 2 to 5 were

impleaded as legal heirs of the daughter, Late Smt. Satnam Kaur as

they were not originally impleaded as parties to the suit and only one

son of Late Smt. Satnam Kaur was impleaded as defendant no. 1.

Therefore, defendant nos. 1 to 5 in the suit are the legal representatives

of the daughter Late Smt. Satnam Kaur. Defendant no. 6 was the

original defendant no. 2 namely Sh. Mohinder Singh, son of Late Sh.

Dalip Singh. Defendant nos. 7 and 8 are the two daughters of Late Sh.

Dalip Singh and who were originally defendant nos. 3 and 4. The

purchasers of the two floors of the properties, Sh. Krishan Kumar and

Ms. Navdeep Kaur, became the defendant nos. 9 and 10.

5. The main contest to the suit was by defendant nos. 3 and

4, being the two daughters of Late Sh. Dalip Singh. They propounded

a registered Will dated 11.10.1995 (registered on 10.11.1995)

whereby the two properties were bequeathed by the father, Late Sh.

Dalip Singh to his three daughters, namely, Late Smt. Satnam Kuar,

Smt. Parmjeet Kaur and Ms. Amarjeet Kaur. It was pleaded by

defendant nos. 3 & 4 that the plaintiff had immediately after his

marriage had in 1984 left the residence of the father and lived

separately. It was pleaded that Late Sh. Dalip Singh has in fact

disowned the appellant/plaintiff from inheriting his properties by

virtue of the publication in the newspaper „Punjab Kesri‟ dated

21.10.1992. It was pleaded that the case of the appellant/plaintiff that

the properties were acquired from the ancestral funds of the ancestral

property bearing No. 332, Gali No. 2, Anand Parbat, Karol Bagh, New

Delhi was false and the Late Sh. Dalip Singh had acquired the two suit

properties as his self-acquired properties. The suit was accordingly

prayed to be dismissed.

6. The trial court framed the following issues:

"1. Whether the plaintiff is entitled to decree of partition of the suit property, as prayed vide prayer clause (a)? OPP

2. Whether the plaintiff is entitled to decree of permanent injunction, as prayed vide prayer clause (b)? OPP

3. Whether the plaintiff has properly valued the suit for the purpose of court fee and jurisdiction? OPP

4. Whether late Shri Dalip Singh has executed Will in favour of the defendant nos. 7, 8 and late Smt. Satnam Kaur, if so, its effect? OPD

5. Relief."

7. The trial court has dismissed the suit filed by the

appellant/plaintiff by holding that the contesting defendants nos. 7 and

8/respondent nos. 7 and 8 have proved the Registered Will dated

11.10.1995 as Ex. D8W1/2 through one attesting witness D8W4,

namely Sh. T.V.S.R. Krishna Sastry, Advocate, and who was the

second attesting witness in the Will. The trial court has referred to the

fact that the attesting witness, Sh. T.V.S.R. Krishna Sastry, has duly

deposed with respect to the execution and attestation of the Will by

deposing that Late Sh. Dalip Singh signed the Will in his presence and

he signed the Will in the presence of Late Sh. Dalip Singh and also

that the first attesting witness has signed the Will in the presence of

Late Sh. Dalip Singh and in the presence of D8W4 Sh. T.V.S.R.

Krishna Sastry, Advocate. The trial court has also referred to the fact

that the attesting witness Sh. T.V.S.R. Krishna Sastry has stood the

test of cross-examination and nothing has been stated by him in his

cross-examination whereby the Will can be discarded. Further, the

trial court has noted that the attesting witness Sh. T.V.S.R. Krishna

Sastry has deposed that he was present before the Sub-Registrar at the

time of the registering of the Will. Sh. T.V.S.R. Krishna Sastry has

deposed that though he did not explain the contents of the Will to Late

Sh. Dalip Singh, but the contents of the Will were explained to Late

Sh. Dalip Singh by the Sub-Registrar. Sh. T.V.S.R. Krishna Sastry

has denied that he did not see Late Sh. Dalip Singh executing the Will

and he did not attest the Will as attesting witness. The trial court has

held that it was immaterial that Late Sh. Dalip Singh was not earlier

known to the attesting witness Sh. T.V.S.R. Krishna Sastry, Advocate.

Sh. T.V.S.R. Krishna Sastry, Advocate had deposed that he was a

practicing Advocate since 1985 and remained member of several Bar

Associations and that at the time of his deposition he was a member of

the Supreme Court Bar Association and the Dwarka Courts Bar

Association. Sh. T.V.S.R. Krishna Sastry, Advocate also deposed that

though his residential address was not mentioned in the Will, his

enrolment number was duly mentioned on the Will. Also, the trial

court has specifically referred to the fact that Sh. T.V.S.R. Krishna

Sastry has signed the Will in the Sub-Registrar‟s office on 10.11.1995

and it was denied by Sh. T.V.S.R. Krishna Sastry that the testator Late

Sh. Dalip Singh had not signed the Will. Though the

appellant/plaintiff sought to make a mountain out of a mole hill by

stating that the date of the execution of the Will was 10.11.1995 as

stated by Sh. T.V.S.R. Krishna Sastry whereas Will has been executed

on 11.10.1995, and this has rightly been discarded by the trial court

that this minor contradiction will not change the factual aspects that

the Will itself states that it was executed on 11.10.1995 and is

registered subsequently on 10.11.1995. In fact the factum of due

registration of the Will has been duly proved through the witness of

the Sub-Registrar‟s Office who deposed as D8W2 namely Sh. Vivek

Yadav. The trial court has also held that the father Late Sh. Dalip

Singh had disinherited the appellant/plaintiff in terms of insertion in

the newspaper „Punjab Kesri‟ which was proved and exhibited as

Ex.D8W3/1, and this was done by summoning the witness from the

Punjab Kesri newspaper namely Sh. H.C. Mehta who deposed as

D8W3. The trial court has also said that there is no reason to

disbelieve the Will inasmuch as it has been established on record that

the appellant/plaintiff never resided with his father Late Sh. Dalip

Singh, never took care of him and never gave him any monies

including for his treatment. These aspects are specifically noted by

the trial court in paras 38 and 39 of the impugned judgment, and these

paras read as under:-

"38. In this regard, one may also refer to the testimony of PW-1, Sh. Baljeet Singh who deposed during his cross-examination dated 04.12.2017 that he and his wife or children never resided in the suit property no.1. He denied knowledge about disease / illness from which his father was suffering. He also denied knowledge about the period of admission of his father in different hospitals. He denied knowledge about the exact date of death of his father. He deposed that his father had expired in February, 2000 and mother expired in the year, 1994. He also deposed that he does not have any document for passbook transaction to show that he had given any money to his father and mother for their use. He deposed that he also does not have any documentary proof / medical document of his parents to show that he had ever taken any of them to any doctor or hospital for any medical care. He denied knowledge about issuance of public notice dated 21.10.1992 in 'Punjab Kesri' disowning him and severing all relations with him. He denied knowledge of execution of registered Will dated 11.10.1995. PW-1 deposed that he got married in the year 1984 and after one and half month of his marriage, he shifted to Kalkaji, New Delhi. He further deposed that he neither lived at the suit property no.1 nor at the suit property no.2. He volunteered that he used to visit the suit property no.1 where they used to live. He again said that he used to visit the suit property no. 2 as well.

39. Perusal of testimony of the plaintiff shows that the plaintiff neither resided with his parents after marriage nor taken care of them. In such circumstances, there is no doubt emerging from the record on the authenticity of execution of Will dated 10.11.1995, Ex.D8W1/2 in favour of daughters."

(Underlining Added)

8. In my opinion, in view of the aforesaid aspects, the trial

court therefore has committed no illegality in upholding the Will dated

11.10.1995 (registered on 10.11.1995) executed by the father, Late Sh.

Dalip Singh and proved through the attesting witness Sh. T.V.S.R.

Krishna Sastry. The Will has been exhibited as Ex.D8W1/2.

9. Once the Will is proved, it stands proved that the two

properties have been bequeathed by the father, Late Sh. Dalip Singh in

favour of his three daughters and also that the appellant/plaintiff was

disinherited by the father with respect to the two suit properties.

10(i). The ld. counsel for the appellant/plaintiff in an act of

desperation sought to argue that there were not two properties but

three properties inasmuch as the second property which is given No.

1523-24, T.C. Camp Raghuvir Nagar, New Delhi, are two properties

and not one property, and that in the Will of the father dated

11.10.1995 only one property is bequeathed to the three daughters

namely property No. 1523, T.C. Camp Raghuvir Nagar, New Delhi

and not property No. 1524, T.C. Camp Raghuvir Nagar, New Delhi,

and therefore, the trial court should have at least decreed the suit for

partition with respect to property No. 1524. This argument, therefore,

is predicated on the ground that the property nos. 1523-24 at T.C.

Camp Raghuvir Nagar, New Delhi is not one property but are two

properties.

10(ii). This Court, however, cannot agree with this argument

urged on behalf of the appellant/plaintiff because though no doubt the

Will uses the property No. 1523 only, however, a reading of the entire

plaint shows that the appelant/plaintiff himself has referred to the

same as one single property (the property No. 1523-24, T.C. Camp

Raghuvir Nagar, New Delhi) and not as two separate properties. Not

only this, once the contesting defendants relied on the Will of the

father dated 11.10.1995 that the father bequeathed the two properties

in favour of his three daughters, it was not the case of the

appellant/plaintiff in the replication that there existed three properties

with the third property No. 1524 being a third property which was not

the subject matter of the Will, and therefore, qua the property No.

1524 the appellant/plaintiff is entitled to partition of the same. I

would also like to note that even in the affidavit by way of evidence

filed on behalf of the appellant/plaintiff there is no case which is put

forth that there are not two properties but there are three properties

with property No. 1524 being not the subject matter of the Will dated

11.10.1995 of the father Late Sh. Dalip Singh. It is also seen that even

in the issues framed there is no issue which was got framed by the

appellant/plaintiff that the property No. 1524 is a separate property,

and therefore, since there is no will with respect to alleged separate

property No. 1524, the appellant/plaintiff is entitled to partition of this

property.

10(iii). Therefore, there were only two properties with the second

property being No. 1523-24, T.C. Camp Raghuvir Nagar, New Delhi

and the Will only by a typographical mistake calls this as property No.

1523. If really therefore there was a third property, it is not

conceivable that the appellant/plaintiff would have remained silent in

this regard in his plaint, then, in his replication, and finally even in his

affidavit by way of evidence.

10(iv). This Court also observes that if really there were

three properties and not two properties, the appellant/plaintiff would

have himself filed or got summoned through the contesting defendants

the title documents of the property bearing No. 1523-24, T.C. Camp

Raghuvir Nagar, New Delhi to show that this property was not one

property but two properties.

10(v). However, in this regard to protect the right of the

appellant/plaintiff it is observed by this Court that so far as this alleged

claim of an alleged third property No. 1524 is concerned, in case there

is any substance to this argument, the remedy of the appellant/plaintiff

really will be to file a review petition, and this review petition if filed

will be heard and disposed of by the trial court in accordance with law.

11. Finally, I would like to note that though the

appellant/plaintiff set up a case of an HUF as per the plaint, however,

by the time when the evidence was led on behalf of the

appellant/plaintiff, this plea/case of the existence of an HUF was given

up because in the affidavit by way of evidence filed by the

appellant/plaintiff, it is not stated that suit properties are in fact HUF

properties. As already stated above, the entire suit has been contested

on the ground that father was the owner of the two properties, and the

issue was whether the father died intestate or whether the father died

leaving behind his Registered Will dated 11.10.1995.

14. In view of the aforesaid discussion, there is no merit in

the appeal. Dismissed. All pending applications are also disposed of.

FEBRUARY 01, 2019                          VALMIKI J. MEHTA, J