Shri Rajendra Parshad and Another vs Shri Sukh Dev and Another

Sanjiv Khanna, J.—This suit for partition and rendition of accounts was filed on 5th July, 2000 by Mr. Rajendra Parshad and Mrs. Sarupi Devi, plaintiff Nos. 1 and 2 in respect of property No. 9/6602, situated in Gali No. 3, Dev Nagar, Karol Bagh, New Delhi-110005 (hereinafter referred to as the property, for short).

This property was originally owned by one Mr. Nathu Lal, who expired in the year 1955 and was survived by his two sons viz. Mr. Hira Lal and Mr. Sukh Dev. Mr. Sukh Dev is defendant No. 1. Mr. Hira Lal expired on 3rd January, 1976 and the plaintiff No. 2-Mrs. Sarupi Devi was his wife. plaintiff No. 1, Mr. Rajendra parshad is son of late Mr. Hira Lal and Mrs. Sarupi Devi. Mr. Gopan Singh Nim, defendant No. 2 is the other son of late Mr. Hira Lal and Mrs. Sarupi Devi.

Mrs. Sarupi Devi, plaintiff No. 2 expired on 2nd March, 2003 and thereafter daughters of late Mr. Hira Lal and Mrs. Sarupi Devi were impleaded as defendant Nos. 3, 4 and 5. However, the said defendants have not filed their written statement and are ex parte.

Mr. Rajendra Parshad, plaintiff No. 1 has propounded Will dated 16th June, 2000 stated to have been executed by Mrs. Sarupi Devi bequeathing her share in the property in favour of plaintiff No. 1.

On the basis of pleadings of the parties, the following issues were framed on 25th August, 2006:

(1) Whether the plaintiff is entitled to one-third share from the one-half share of the suit property on the basis of a Will executed in his favour by his mother dated 16.6.2000? OPP

(2) Whether the plaintiff and defendant No. 1 are in joint possession of the suit property? OPP

(3) Whether there was any family settlement between deceased Hira Lal and plaintiff No. 1 and in terms of the said settlement the deceased had given his share of first floor to defendant No. 1? OPD

(4) Whether the plaintiff is entitled to claim partition in the suit property? OPP

(5) Whether defendant No. 1 is liable to render account of the rent received from the tenant, if so for what amount and for what period? OPP

(6) Whether the plaintiff is entitled to a decree of rendition of account, if so to what amount? OPP

(7) Relief.

ISSUE No. 1

The first issue relates to plaintiff No. 1, defendant Nos. 2, 3, 4 and 5. It is admitted case of the said parties that they are legal representatives of late Mrs. Sarupi Devi and late Mr. Hira Lal, being their sons and daughters. It is also admitted case that under the law of succession, each one of them is entitled to equal share in the property along with their mother Mrs. Sarupi Devi, upon death of Mr. Hira Lal on 3rd January, 1976, who was a joint owner along with defendant No. 1 having inherited the property from late Mr. Nathu Lal. The plaintiff No. 1 claims 1/3rd share in the property on the basis of Will dated 16th June, 2000 exhibit PW1/6 purportedly executed by Mrs. Sarupi Devi in his favour. This will is disputed by defendant No. 2.

Learned Counsel for the plaintiff No. 1 has drawn my attention to the averments made in the plaint wherein it is stated that defendant No. 2 has 1/6th share in the property out of one-half share, of Mr. Hira Lal, but he had refused to join the plaintiffs including late Mrs. Sarupi Devi in filing of the suit. It is also stated in the plaint that defendant No. 2 was not having cordial relations with the plaintiffs and he was siding with the defendant No. 1. In addition, learned Counsel for the plaintiff No. 1 has drawn my attention to the evidence of Mr. Bir Singh, PW- 3, one of the witnesses to the Will exhibit PW-1/6.

Mr. Rajendra Parshad has appeared as PW-1 and has stated in his examination-in-chief that late Mrs. Sarupi Devi had executed Will dated 16th June, 2000 exhibit PW-1/6 in his favour and on the said date he had taken her mother to the Parliament Street where the Will was typed on her instructions. He has also stated that the Will was attested by two witnesses viz. Mr. Bir Singh and Mr. Sumanta Chakraborty, who were examined as PW-3 and PW-2. The Will is also claimed to be attested by a notary public but the notary public has not been produced and the serial number of the register required to be maintained by a notary public is not mentioned. The Will has photographs of Mrs. Sarupi Devi and plaintiff No. 1.

Mr. Rajendra Parshad, PW-1 was cross-examined at length by counsel for the defendant No. 1 in respect of the Will. In his cross-examination plaintiff No. 1 has stated that the Will was typed by a typist on dictation given by mother i.e. Mrs. Sarupi Devi. However, he has stated that he does not know educational qualification of the mother but she could sign in Hindi. He could not answer the question whether the Will was written in Hindi. He has admitted that his mother did not know English. The Will Ex.PW-1/6 is in English and not in Hindi. It is a typed Will. The Will PW-1/6 does not have signatures of Mrs. Sarupi Devi, but bears her alleged thumb impressions. Typist has not been produced.

The plaintiff No. 1, PW-1 has admitted that he had written name of Mrs. Sarupi Devi on the Will (Exhb.PW-1/6) in his own handwriting. He has also admitted that the correction made in the Will by adding words "share in" at point ''C'' on the Will exhibit PW-1/6 is in his hand writing.

PW-1 has admitted that the mother had cordial relations with her daughters. On the question whether the mother had cordial relations with defendant No. 2, Mr. Gopal Singh Nim, Mr. Rajendra Parshad (PW-1) in his cross-examination has stated that she did not have cordial relations with him. He has however admitted in his cross-examination that his mother was admitted in GTB Hospital in the year 1996 after she had suffered a fracture and the brother-in-law of defendant No. 2, Dr. M.P. Singh, Arthopaedic Surgeon had operated upon her.

Mr. Bir Singh, PW-3 has filed an affidavit stating that he and Mr. Sumanta Chakraborty, had attested the Will (Exhb.PW-1/6). He has stated that he knew Mr. Rajendra Parshad since 1998, as his wife was a teacher in DPS, Rohini and he had worked as a driver in the said school. He has stated that Mrs. Sarupi Devi had put her thumb impression on the Will and at that time she was in perfect health and sound disposing mind. However, in respect of the hand written words "share in" at point ''C'' on the Will dated 16th June, 2000 exhibit PW-1/6, it was stated by Mr. Bir Singh that these words were written by Mr. Sumanta Chakraborty in his presence. Mr. Sumanta Chakraborty, PW-2 has filed almost an identical affidavit by way of chief and has, inter alia, stated that the words "share in" encircled ''C'' in Will exhibited as PW-1/6 were written by him. As already stated above, the words "share in" as admitted by the PW-1, Mr. Rajendra Parshad were written by him on the Will exhibit PW-1/6. Thus there is a contradiction on who had written words "share in" at point C on the Will (Exhb.PW-1/6)

Mr. Sumanta Chakraborty, PW-2 in his cross-examination has stated that on 16th June, 2000 he had visited the house of the plaintiff No. 1 and on that day was asked to sign some papers, which was a Will. He has further stated that Mr. Bir Singh had already signed the papers before he had signed the same. Mrs. Sarupi Devi''s signatures were already there and he was asked by Mrs. Sarupi Devi to sign the Will. Thus, Mr. Sumanta Chakraborty, PW-2, in his cross-examination, has not accepted the statement of PW-1 and PW-2 that Mrs. Sarupi Devi and they had gone to Parliament Street on 16th June, 2000 and the Will was typed and attested there. On the other hand, PW-2 has stated that the Will was executed at the house of the plaintiff No. 1. He has also stated that Mrs. Sarupi Devi had already put her thumb impressions on the Will. Mr. Bir Singh, who was produced as PW-3, in his cross-examination, on the other hand, had stated that on 16th June, 2000, he had gone to the house of Mr. Rajendra Parshad at about 8.00 or 8.30 a.m. and thereafter along with his mother and Mr. Sumanta Chakraborty, they had gone to Parliament Street where mother of Mr. Rajendra Parshad narrated facts to a typist and the Will was typed. He, however, had admitted that mother of Mr. Rajendra Parshad did not know English but the contents of the Will was read over by Mr. Sumanta Chakraborty, PW-2. I may note here that PW-2, Mr. Sumanta Chakraborty, in his examination-in-chief has made no such statement. It is not stated by PW-2, Mr. Sumanta Chakraborty that he had read over and explained the Will to Mrs. Sarupi Devi before she had put her thumb impression. On the other hand, PW-2, Mr. Sumanta Chakraborty has stated that when he had reached the house of plaintiff No. 1on 16th June, 2000. Mrs. Sarupi Devi had already put her thumb impression on the Will and she asked him to sign the same.

On the basis of evidence led by the plaintiff including the two socalled attesting witnesses to the Will, PW-2 Mr. Sumanta Chakraborty and PW-3, Mr. Bir Singh, the following facts are apparent:

(i) Late Mrs. Sarupi Devi did not know English. The Will is in English.

(ii) As per PW-3, Mr. Bir Singh, PW-2 , Mr. Sumanta Chakraborty had read over and explained the Will in English to late Mrs. Sarupi Devi. However, PW-2, Mr. Sumanta Chakraborty has made no such claim. He has stated that when he reached house of the plaintiff No. 1 the Will (Exhb.PW-1/6) already had thumb impression.

(iii) Mrs. Sarupi Devi knew how to sign in Hindi. Will is not signed by her. Only thumb impression of Mrs. Sarupi Devi exist on the Will.

(iv) Mr. Rajendra Parshad, PW-1, the plaintiff No. 1 had stated in his affidavit that the words "share in" at point ''C'' in the Will exhibit PW-1/6 were written by Mr. Sumanta Chakraborty, PW-2. However, in his cross-examination he has admitted that the said words "share in" point ''C'' on the Will exhibit PW-1/6 were in his hand writing. He has also admitted that the name of Mrs. Sarupi Devi below her thumb impression on the Will PW-1/6 has been written by him.

(v) Mr. Sumanta Chakraborty, PW-2 does not support the version of the plaintiff, PW-1 and Mr. Bir Singh, PW-3 about the place and the manner in which the Will was executed. PW-2, Mr. Sumanta Chakraborty has stated that the Will was signed on 16th June, 2000 at the residence of the plaintiff No. 1 and they did not go to Parliament Street and the Will was not typed out at Parliament Street.

(vi) PW-2, Mr. Sumanta Chakraborty and PW-3, Mr. Bir Singh are closely connected with the plaintiff No. 1, Mr. Rajendra Parshad and were working in the same school where wife of the plaintiff was working.

(vii) It is admitted case of the parties and is clear from the evidence of Mr. Rajendra Parshad, PW-1 that the mother had cordial relations with the daughters. As per Will exhibit PW-1/6, daughters have also been disinherited.

Learned Counsel for the plaintiffs has drawn my attention to the averments made in the plaint wherein it is stated that the mother, who was plaintiff No. 2 did not enjoy cordial relation with defendant No. 2 as the said defendant had not joined the plaintiffs in filing the suit. Averment made in the plaint have to be read with some suspicion and doubt as the plaint is in English and late Mrs. Sarupi Devi had merely put her thumb impression on the plaint. Every page of the plaint does not bear her thumb impression. Mrs. Sarupi Devi did not come to the witness box and was not cross-examined. She was staying with the plaintiff No. 1. Preponderance predicates that the plaint was prepared at the behest of plaintiff No. 1 and on instructions given by him. The Will in question exhibit PW-1/6 is purported to have been signed and executed just twenty days before the plaint was filed. There are number of suspicious circumstances about execution of the Will, which have been explained and set out above. It is doubtful whether late Mrs. Sarupi Devi knew about the contents of the Will, the document she was executing and whether she was in sound health and disposing mind and the Will correctly records her intention.

Keeping all these aspects in mind and in view of the above discussion, it is not possible to accept that Will dated 16th June, 2000 exhibit PW-1/6 has been proved and established. It is accordingly held that the plaintiff No. 1, defendant Nos. 2, 3, 4 and 5 have jointly inherited share of late Mrs. Sarupi Devi in the property. The issue is accordingly decided.

ISSUE No. 2

It has come on record that plaintiff No. 1 and defendant No. 1 are residing in the property. plaintiff No. 1 in his affidavit has clearly stated that he is residing in the property and earlier his mother Mrs. Sarupi Devi was also residing in the property. He has further stated that the house comprises of ground floor, mezzanine floor, first floor and the second floor and plaintiff No. 1, PW-1 is residing on the first floor. He has also produced on record water and electricity bills, which have been marked Exhibit PW-1/4 and PW-1/5. PW-1, Mr. Rajendra Parshad has not been cross-examined in this respect by the defendants. On the other hand, the line of cross-examination by the defendant No. 1 shows that he has accepted that the plaintiff, PW-1 was/is residing on the first floor of the property. Issue No. 2 is accordingly decided in favour of the plaintiff and against defendant No. 1 holding that the plaintiff No. 1 had enjoyed possession of the property along with defendant No. 1.

ISSUE No. 3

Defendant No. 1 had originally pleaded family settlement between late Mr. Hira Lal and defendant No. 1 to claim inter se partition. I may note here that in the written statement filed by the defendant No. 1 to the amended plaint, the said defendant has admitted that the defendant No. 1 is entitled to half share in the property and other half belongs to legal heirs of late Mr. Hira Lal. Defendant No. 1 did not enter the witness box and has not proved and established any oral family settlement about partition of the property or late Mr. Hira Lal had given up his share in the property. PW-1, Mr. Rajendra Parshad was cross-examined by defendant No. 1 and it was suggested that late Mr. Hira Lal had taken loan of Rs. 30,000/- from defendant No. 1 for marriage of his elder daughter and that late Mr. Hira Lal, who was a mason/mistry by profession did not have sufficient means. Mere cross-examination to this extent without any further evidence does not establish and prove the claim of the defendant No. 1, which was made in the original written statement.

In view of the above, issue No. 3 is decided in favour of the plaintiff No. 1 and it is held that defendant No. 1 has not been able to establish any family settlement or division/partition of the property. It is accordingly held that defendant No. 1 is entitled to 50% in the share in the property and the balance 50% share in the property belongs to the legal representatives of late Mr. Hira Lal, viz. plaintiff, defendant Nos. 2, 3, 4 and 5, who are entitled to one-tenth share in the property.

ISSUE No. 4

In view of the findings given above, a preliminary decree of partition is passed holding that defendant No. 1 has 50% or 5/10th share in the property and plaintiff No. 1 and defendant Nos. 2-5, each have 1/10th share in the property.

ISSUE Nos. 5 & 6

For the sake of convenience, both these issues pertaining to rendition of accounts and are being discussed together. Ground floor of the property was rented out to one Mr. Niranjan Das in the year 1969 on monthly rent of Rs. 150/-. Defendant No. 1 had filed an eviction petition against him and eviction order was passed by the Rent Controller on 26th June, 1997. Mr. Niranjan Das thereafter filed an appeal but the matter was compromised and the said tenant gave vacant possession of the property to defendant No. 1 on 31st May, 2000. At the time of hearing, learned Counsel for the plaintiff states that keeping in view the small amount and the tedious exercise, which will have to be undertaken, he gives up the claim for rendition of accounts. I may note here that defendant No. 2 is not claiming rendition of accounts from defendant No. 1.

RELIEF

In view of the findings given above, a preliminary decree of partition is passed in respect of property No. 9/6602, situated in Gali No. 3, Dev Nagar, Karol Bagh, New Delhi-110005 holding that the defendant No. 1 is entitled to 50% or 5/10th share in the property and the plaintiff and defendant Nos. 2, 3, 4 and 5 each are entitled to 1/10th share in the property. The property will be partitioned by metes and bounds.

Learned Counsel for the plaintiff prays for some time so that parties can examine the matter and reach inter se settlement. It is also stated that the plaintiff is interested in retaining possession of the property as he does not have any other residential property in Delhi.

In these circumstances, I am not passing any order for appointment of a Local Commissioner to suggest mode of partition at this stage. Let the parties examine the matter. Parties will also appear in person on the next date of hearing. Court notice will be sent to the parties.

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