Delhi High Court
Pyare Lal Gupta vs Som Bala Alias Suman Khandelwal & Ors. on 3 April, 2025
Author: Navin Chawla
Bench: Navin Chawla
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 03.04.2025
+ RFA(OS) 68/2024
PYARE LAL GUPTA .....Appellant
Through: Mr. Rajiv K. Garg, Mr. R. K.
Bedi and Mr. Aayush Agrawal,
Advs.
versus
SOM BALA ALIAS SUMAN KHANDELWAL & ORS.
.....Respondents
Through: Mr. Mohit Aggarwal, Mr.
Deepak Singh Poonia, Mr.
Bhuvan Shekhar and Ms. Pooja
Saini, Advs. for R-1.
Mr. Amit Malik, Ms.Anu
Kushwaha, Mr.Rajat Sangeliya
and Mr.Harshit Saini, Advs. For
R-3 and 4.
Mr. KK Nangia and Mr. SP
Nangia, Advs. for R-5 & 6.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE RENU BHATNAGAR
NAVIN CHAWLA, J. (Oral)
1. For the reasons stated in the application, the delay of 140 days
in filing the appeal is condoned.
2. The application stands disposed of.
RFA(OS) 68/2024 AND CM APPL. 73096/2024
3. This appeal has been filed by the appellant under Section 96
read with Order XLI of the Code of Civil Procedure, 1908 (hereinafter
referred to as, 'CPC') read with Section 10 of the Delhi High Court
Act, 1966, challenging the Preliminary Decree dated 02.08.2022 and
the Final Decree dated 11.11.2022 passed by the learned Single Judge
of this Court in CS (OS) 2152/2014 (hereinafter referred to as, 'the
suit') titled Som Bala @ Suman Khandelwal v. Pyare Lal Gupta &
Ors.
4. Brief background of the appeal is that the above suit had been
filed by the respondent no. 1 herein, seeking a decree of partition,
declaration, demarcation, possession, mesne profits and other
consequential reliefs with respect to following immovable properties-
(i) Entire Built-up House/property Nos.
10144, 10145, 10146 & 10147, Library
Road, Azad Market, Delhi-110006 and;
(ii) Entire Built-up House/property No.
10156, Gali Gandhak Wali, Nawabganj,
Pul Bangash, Azad Market, Delhi-
110006; (Both the properties are
hereinafter referred to as, 'the suit
property').
5. It was the case of the respondent no. 1 before the learned Single
Judge that the suit properties were self acquired properties of Late Sh.
Durga Prasad Gupta, the father of the parties to the suit, who are all
siblings. He died intestate on 18.03.1988, leaving behind the parties to
the suit as only legal heirs. The respondent no. 1, therefore, prayed for
the above relief in the suit.
6. The appellant herein, on the other hand, contested the above suit
by claiming that Late Sh. Durga Prasad Gupta had left behind a Will
dated 25.10.1986, in terms whereof, the suit properties had been
bequeathed in favour of the appellant.
7. Admittedly, the original copy of the said Will was not produced
before the learned Single Judge in the suit. Even the alleged attesting
witnesses to the said Will were not produced in evidence. The Will,
therefore, remained unproved. The learned Single Judge, therefore,
passed the Preliminary Decree, observing that there was no defence to
the suit.
8. The learned counsel for the appellant submits that the
respondents had, in fact, admitted to the Will and based thereon, had
executed "No Objection Certificates" (hereinafter referred to as,
'NOC') giving their no objection to the mutation of the suit properties
in favour of the appellant.
9. He further submits that the witnesses to the Will were not
available and, therefore, could not be produced before the learned
Single Judge in evidence.
10. He submits that the respondent no. 1 having prayed for a Decree
of declaration declaring the Will dated 25.10.1986 as null and void,
the onus of proof for the same lay on the respondent no. 1, which she
has failed to discharge. He further submits that the respondent no. 2
had also admitted to the Will.
11. On the other hand, the learned counsels for the respondent nos.
1, 3, 4, 5 and 6 oppose this appeal by contending that the onus of
proving the alleged Will lies only on the appellant, who is the
propounder and the sole beneficiary thereunder. They submit that the
Will was not proved in accordance with the Section 63 of the Indian
Succession Act, 1925 read with Section 68 of the Indian Evidence
Act, 1872 (corresponding Section 67 of the Bharatiya Sakshya
Adhiniyam, 2023), and therefore, the learned Single Judge has rightly
passed the Preliminary Decree vide Judgement dated 02.08.2022. He
further submits that this belated challenge to the Preliminary Decree
should not be sustained.
12. We have considered the submissions made by the learned
counsels for the parties.
13. The appellant being the propounder and sole beneficiary of the
alleged Will dated 25.10.1986 of Late Sh. Durga Prasad Gupta, the
onus of proving the due execution thereof in accordance with Section
63 of the Indian Succession Act, 1925 read with Section 68 of the
Indian Evidence Act, 1872 (corresponding Section 67 of the Bharatiya
Sakshya Adhiniyam, 2003), lies only on the appellant. He cannot pass
this onus on to the respondents. The appellant miserably failed to
discharge this onus inasmuch as, he did not produce the alleged
attesting witnesses to the said Will. Even the original Will was not
filed before the learned Single Judge in the suit.
14. The submission of the learned counsel for the appellant that the
alleged witnesses to the impugned Will were not traceable, is also not
supported by any evidence on record.
15. The reliance of the learned counsel for the appellant on the
NOC can also be of no avail to the appellant. The said NOC does not
make reference to the alleged Will. As has been repeatedly held, the
mutation of the suit properties is only for the purposes of payment of
taxes and does not confer any title on any person. The said NOC,
therefore, cannot be deemed to be an acceptance of the impugned Will
by the respondents.
16. The plea of the learned counsel for the appellant that the
respondent no. 2 had admitted to the Will, also cannot help the
appellant. The onus of proving the Will does not get discharged only
because one of the parties and a co-defendant admits to the Will. Once
the respondent no. 1 had challenged the Will, it had to be proved by
the appellant in accordance with law. Having failed to do so, and as no
other defence was offered to the suit for partition filed by the
respondent no. 1, the Suit was rightly decreed by the learned Single
Judge.
17. We, therefore, find no infirmity in the Impugned Judgment
dated 02.08.2022 passing the Preliminary Decree by holding all seven
parties to the suit to have 1/7th share in the suit properties.
18. As far as the Final Decree dated 11.11.2022 is concerned, the
challenge is founded on the same submissions as to the Preliminary
Decree. Once the said challenge has failed, there is no challenge left to
the Final Decree dated 11.11.2022 as well.
19. Accordingly, we find no merit in the present appeal. The same,
along with the pending application, is dismissed.
NAVIN CHAWLA, J
RENU BHATNAGAR, J
APRIL 3, 2025/p/kg/ik
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