Delhi High Court
Shri Gopal Krishan Dua vs Shri Darshan Kumar Dua & Anr. on 12 July, 2019
$~OS-8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 12.07.2019
+ CS(OS) 338/2018
SHRI GOPAL KRISHAN DUA ..... Plaintiff
Through Mr.P. S. Bindra and Mr.G.S.Patwalia,
Advs.
versus
SHRI DARSHAN KUMAR DUA & ANR. ..... Defendants
Through Mr.Amit Sibal, Sr. Adv. with
Mr.Harsh Kaushik, Ms.Nikita Chitale,
Mr.Vinay Tripathi and Mr.
Aishwarya Vikram, Advs. for D-1 to
D-4.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
IA No.9112/2018
1. This application is filed under Order 39 Rules 1 and 2 CPC seeking an
ex-parte interim injunction.
2. This matter came up for hearing on 23.07.2018 when this court passed
an interim order directing the parties to maintain status quo regarding title
and possession of the suit properties till further orders.
3. The accompanying suit is filed by the plaintiff seeking a decree of
declaration declaring the Will dated 11.04.1998 said to have been executed
by deceased father of the plaintiff late Sh.Chanderbhan Dua as null and void
and having no effect in law and a decree of partition is sought for
apportioning the respective shares of the legal heirs in the assets of late
CS(OS)338/2018 Page 1 of 6
Sh.Chanderbhan Dua including, i) Flat No.18/1, Ground Floor, DDA
Double Storied Flats, Pant Nagar, New Delhi, ii) Land at Village Namoli,
admeasuring 4.7877 Hectares, situated in Gatta No.l11, 116, 76/200, 102
and 93 Min., iii) 7752 Shares in Super Cassette Industries Pvt. Ltd. having
face value of Rs. 100/- each, and iv) Savings Bank Account bearing
No.1177101006675 in Canara Bank, Noida Branch, Noida (U.P). Other
connected reliefs are also sought.
4. The case of the plaintiff is that plaintiff, defendant Nos.1, 4 and 5 are
the sibling being the children of late Sh.Chanderbhan Dua. Defendant Nos.2
and 3 are the son and wife of the predeceased brother of the parties, namely,
Sh.Gulshan Kumar Dua. Sh.Chanderbhan Dua expired on 06.03.2004. He is
survived by the parties to the suit as Sh.Chanderbhan Dua's wife
Smt.Krishna Devi Dua died in 1984. Hence, it is pleaded that after the death
of Sh.Chanderbhan Dua, the aforesaid properties equally devolved upon his
legal heirs.
5. Regarding the Will dated 11.04.1998 purportedly executed by late
Sh.Chanderbhan Dua, it is pleaded that the Will is forged and fabricated.
The father was not educated and could not read or write Hindi or English.
He could only read Urdu. Other grounds are also taken to challenge the said
Will.
6. Defendants have filed their written statement. Defendant No.2 in his
written statement states that late Sh.Gulshan Kumar Dua started the
company M/s Super Cassettes Industries Pvt. Ltd. (in short „SCIL‟) and its
predecessor concerned Firm. It is stated that late Sh.Chander Bhan Dua held
7752 shares in SCIL but the said shares were held in trust and for the benefit
of defendant No.2 as the entire business was set up and being run and
CS(OS)338/2018 Page 2 of 6
managed by the father of defendant No.2 late Sh.Gulshan Kumar Dua. It is
stated that the said company SCIL was taken to great heights but
unfortunately, in 1997 late Sh. Gulshan Kumar Dua passed away. After the
demise of Sh.Gulshan Kumar Dua, defendant No.2 took over the sole and
complete responsibility of managing the complete affairs of SCIL and
continues to manage the same till today. He is Managing Director of SCIL.
7. It is also pleaded that a suit was filed in 1998 by the legal heirs of late
Gulshan Kumar Dua including defendant No.2 against Sh.Chanderbhan Dua
seeking a declaration that 7752 shares of late Sh.Chanderbhan Dua were
held by him in trust and for the benefit of defendant No.2. On 12.02.1998 a
settlement was recorded where it was accepted that Sh.Chanderbhan Dua
held the said 7752 shares in trust and for the benefit of defendant No.2. It is
pleaded that subsequently on 27.01.1999 late Sh.Chanderbhan Dua out of
his own free will gifted the shares as mentioned in Will dated 11.04.1998 to
defendant No.2 through a registered gift deed. Late Sh.Chanderbhan Dua
also executed necessary Share Transfer Form dated 16.02.1999. The shares
have been registered in the name of defendant No.2 and he is the sole owner
of the said shares since 1999.
8. I have heard the learned counsel for the parties.
9. Learned senior counsel appearing for defendant Nos.1 to 4 has
reiterated that pursuant to the legal and valid Will dated 11.04.1998 and gift
deed dated 27.01.1999 the plaintiff can claim no right in the assets of late
Sh.Chanderbhan Dua.
10. The learned counsel appearing for the plaintiff however states that
Will dated 11.04.1998 is a forged document. He reiterates that late
Sh.Chanderbhan Dua could not read or write English. He further reiterates
CS(OS)338/2018 Page 3 of 6
that the Will is worded in a vague manner and is liable to be struck down.
He further pleads that gift deed dated 27.01.1999 has now surfaced and he is
taking steps to challenge the same.
11. As is apparent from the above, the contentions of the plaintiff centre
around two immoveable properties, namely, Flat No.18/1, Ground Floor,
DDA Double Storied Flats, Pant Nagar, New Delhi, and Land at Village
Namoli, admeasuring 4.7877 Hectares, situated in Gatta No.l11, 116,
76/200, 102 and 93 Min., and 7752 Shares in Super Cassette Industries Pvt.
Ltd. No submissions have been made regarding Savings Bank Account in
Canara Bank, Noida Branch, Noida (U.P).
12. As far as the shares in Super Cassette Industries Pvt. Ltd. are
concerned, they have been transferred in the name of defendant No.2 by
means of a gift deed dated 27.01.1999. I cannot help noticing that apart from
the gift deed, late Sh.Chanderbhan Dua also entered into a compromise
decree with defendant No.2 on 27.04.1998 accepting that he was holding the
shares in trust and for the benefit of defendant No.2. Subsequently, after the
consent decree, he has also executed a registered gift deed. He has also
executed a Share Transfer Form in 1999. Thereafter the shares stand
transferred in the name of defendant No.2 in 1999.
13. There is no challenge to the said transfer of shares in favour of
defendant No.2 by the plaintiff. Written statement was filed by defendant
No.2 sometime in October, 2018. However, there is no challenge to the gift
deed.
14. That apart from, in my opinion, the transfer of the shares have taken
place back in 1998/1999 in favour defendant No.2. Late Sh.Chanderbhan
Dua died in 2004. The plaintiff has now belatedly 14 years after the death of
CS(OS)338/2018 Page 4 of 6
Sh.Chanderbhan Dua sought to claim a right in the shares. In all these years
defendant No.2 has enjoyed all the rights as a shareholder of Super Cassette
Industries Private Limited. He would have also enjoyed the dividends given
by the company on these for 14 years. It is also not a disputed fact that
defendant No.2 is the Managing Director of the said company. The claim of
the plaintiff that the transfer of shares in favour of defendant No.2 is
pursuant to a fraud played on late Shri Chander Bhan Dua prima facie lacks
conviction on account of the delay on the part of the plaintiff in claiming his
alleged rights in the said shares.
15. In this regard reference may be had to the maxim "Vigilantibus, non
dormienti bus, jura subvenint" i.e. "delay defeats equities, or equity aids the
vigilant and not the indolent."
16. Regarding his title to the share, in my opinion, the plaintiff has failed
to make a prima facie case.
17. As far as two immoveable properties are concerned, the title of the
said properties is claimed by defendant No.2 in view of the registered Will
dated 11.04.1998 of late Sh.Chanderbhan Dua.
18. The plaintiff has however challenged the said Will and has sought a
declaration that the same is forged and invalid. Various grounds have been
raised in the plaint to state that the Will is null and void including stating
that late Sh.Chanderbhan Dua could not read English. The Will, it is stated,
is devoid of reasons as to why all the assets are being bequeathed in favour
of defendant No2 his grandson. Late Sh.Chanderbhan Dua was not in sound
deposing mind and was not well and most of the time was on bed. It is also
pleaded that the application for mutation of the suit properties has been
made/done 10 years after the death of Sh.Chanderbhan Dua. These issues
CS(OS)338/2018 Page 5 of 6
are disputed questions of fact which would have to be adjudicated upon.
Plaintiff has challenged the validity of the will said to have been executed by
late Shri Chander Bhan Dua. It would be in the interest of justice that status
quo regarding title of the said two immovable properties is maintained.
19. The interim order passed by this court dated 23.07.2018 is partly
modified. The parties shall continue to maintain the status quo regarding the
title of the two immoveable properties. The interim order passed against the
shares of Super Cassette Industries Pvt. Ltd. stands vacated. As no
submissions have been made regarding the Savings Bank Account in Canara
Bank, Noida Branch, Noida (U.P)., the interim order regarding the same is
also vacated.
20. The application stands disposed of as above.
JAYANT NATH, J.
JULY 12, 2019/v
