Delhi District Court
S.L. Arya vs Sameer Chatterjee Anr on 22 January, 2025
-1-
IN THE COURT OF MS. GUNJAN GUPTA,
DISTRICT JUDGE-04, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
In the matter of
CS DJ 9968/2016
1. S.L. ARYA
S/o Late Shri J.R. Arya,
R/o B-1/19, First Floor,
Malviya Nagar,
New Delhi - 110017.
2. SHRI ASHISH RAJPAL
S/o Shri G.D. Rajpal,
R/o B-1/9,
Malviya Nagar,
New Delhi - 110017. .... Plaintiffs
VERSUS
1. SHRI SAMEER CHATTERJEE (SINCE DECEASED)
Through his legal heirs .
(i) Smt. Kalyani Chatterjee
W/o Shri Sameer Chatterjee
(ii) Sh. Agnibha Chatterjee
S/o Shri Sameer Chatterjee
Both R/o I-1600,
Chittaranjan Park,
New Delhi - 110019.
2. SMT. DEEPALI CHATTERJEE (SINCE DECEASED)
Through her legal heirs
(i) Sh. Sameer Chatterjee (since deceased)
Through his legal heirs
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
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(a) Smt. Kalyani Chatterjee
W/o Late Shri Sameer Chatterjee
(b) Sh. Agnibha Chatterjee
S/o Late Shri Sameer Chatterjee
Both R/o I-1600,
Chittaranjan Park,
New Delhi - 110019.
(ii) LATE SMT. MALA Anita PAL (since deceased)
Through her legal heirs
(a) Ms. Nandita Sharma
D/o Late Smt. Mala Pal
R/o 11, Mathewson Street,
Maple, Ontario, Postal Code-L6A1B6.
(b) Sh. Abhijit Paul
S/o Late Smt. Mala Pal
USA Office :
2300 Route 1 North,
North Brunswick,
New Jersey 08902 USA.
Canada Office :
1055, Clark BLVD,
Brampton On L6T 3WA
Canada.
3. BRAHAM ARENJA
S/o Late Sh. L.R. Arenja,
R/o N-51, Panchsheel Park,
New Delhi - 110019. ....Defendants
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
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Date of Institution : 12.09.2011
Date reserved for judgment : 06.12.2024
Date of judgment : 22.01.2025
DECISION : DISMISSED
SUIT FOR PARTITION & PERMANENT INJUNCTION
JUDGMENT
1. The present suit has been filed by the plaintiff for
partition, of property ad-measuring 341 Sq yards bearing
no. I-1600, Chittaranjan Park, New Delhi (hereinafter
referred to as suit property), and permanent injunction
against the defendants.
2. Brief back ground of the case :
2.1 The present suit is filed with respect to property
originally owned by one Sh. P.C Chatterjee who was alleged
to have died inte-state leaving behind three sons and daughters
as his legal heirs. The Plaintiffs claim to have purchased the
1/3 undivided share of one of the legal heirs / daughter of Sh.
P.C. Chatterjee i.e. Smt. Mala Anita Pal. However, the
plaintiffs only arrayed Sh. Sameer Chatterjee (son of Sh.
P.C. Chatterjee) & Smt. Deepti Chatterjee (wife of a
deceased son of Sh. P.C. Chatterjee) as defendants and Smt.
Mala Anita Pal who was the alleged seller of 1/3 share of
suit property to plaintiffs was not arrayed as party. Also,
Smt. Ella Chatterjee, w/o. Sh. Sunil Chatterjee (deceased
son of Sh. P.C Chatterjee) was not made a party.
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
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2.2. During the course of proceedings both the defendants
expired and were substituted by their legal heirs. However,
defendant no. 3 Sh. Brahm Arenja was added on his
application u/o. 1 Rule 1 CPC. He claims to have become
the owner of the undivided share of Smt. Deepti Chatterjee
on the basis of the Will dt 19.09.2013 allegedly executed by
her.
3. CASE OF THE PLAINTIFF:
Brief facts of the case as set out in the plaint are as
under:
3.1. The suit property was originally owned by Sh.
P.C. Chatterjee (father of the defendants and Smt. Mala
Anita Pal who died intestate on 29.01.1992 leaving behind
Sh. Amresh Chandra Chatterjee (son), Sh. Sunil Chatterjee
(son) Sh. Sameer Chatterjee(son) and Smt. Mala Anita Pal
(daughter).
3.2. Shri Amresh Chandra Chatterjee (son) died on
30.05.1997, leaving behind his wife Smt. Deepti Chatterjee,
as his only legal heir. Shri Sunil Chatterjee (another son of
Late Shri Paresh Chandra Chatterjee) died on 29.01.2002
without leaving any legal heirs. Resultantly the suit
property vested in defendants and Smt. Mala Anita Pal in
equal shares with each legal heir having 1/3rd share each.
3.3 It is further averred that Smt. Mala Anita Pal
agreed to sell her undivided 1/3rd share in the suit property
to the plaintiffs herein by virtue of agreement to sell dated
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
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22.03.2007 for a total sale consideration of Rs.67,50,000/-,
out of which a sum of Rs.20 lakhs was paid to her as
earnest money and the remaining balance consideration was
to be paid at the time of execution of the sale deed and
other documents for transfer of ownership. However, Smt.
Mala Anita Pal instead of completing the formalities for
transfer of her 1/3 share in the suit property, in favour of
plaintiffs, filed a suit being CS(OS) No.1295/ 2007 seeking
a declaration that the agreement to sell dated 22.3.2007 be
declared as null and void as plaintiffs have failed to pay the
balance sale consideration of Rs.47,50,000/-. The said suit
was subsequently compromised before the High Court
Mediation and Conciliation Centre after settlement dated
25.03.2011 whereby Smt. Mala Anita Pal agreed to transfer
her 1/3 share in suit property to the plaintiffs for the total
sale consideration of Rs.67,50,000/- and in view of the said
settlement, the suit was disposed off vide order dated
26.05.2011.
3.4 In pursuance of the said settlement and as per the
Agreement to Sell dated 22.03.2007, Smt. Mala Anita Pal,
transferred/sold her 1/3 share of lease hold rights, in the suit
property, in favour of the plaintiffs vide GPA, Will,
affidavit all dt 05.07.2011 (Will being attested on
06.07.2011) and possession letter dated 06.07.2011 for total
sale consideration of Rs. 67,50,000/-. Thus, the plaintiffs
became owners of 1/3 share of Smt. Mala Anita Pal and,
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
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therefore, plaintiffs and defendants have become joint
owners of the 1/3 share each in the suit property.
3.5. Immediately after the said settlement, the
Plaintiffs approached the Defendants for partition of the
property by metes and bounds and to deliver possession of
their 1/3 share. The Defendants did not pay any heed to the
requests of the plaintiffs and have not agreed to partition the
suit property. Hence the plaintiff has filed the present suit
for partition and permanent injunction.
4. CASE OF THE DEFENDANT NO.1:
The defendant no. 1 filed his Written Statement
denying the averments made in the plaint and averred as
follows:
4.1 Sh. Paresh Chandra Chatterjee was the recorded
owner of the suit property. During his life time, he executed
a registered Will dt 23.01.1987 thereby bequeathing the suit
property to all his three sons in equal shares. In the said
Will no share, right or interest was given to Smt. Mala
Anita Pal as she was happily married in a good family.
Thus, after the demise of Sh. Paresh Chandra Chatterjee on
29.01.1992, all his three sons became the joint owners of
the suit property.
4.2 In the year 1992, it came to the notice of
defendant no.1 that by taking advantage of the ill heath and
mental instability of Sh. Paresh Chandra Chatterjee, Sunil
Chattejee has managed to get his signatures on another WillS.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
-7-dt 22.12.1987 whereby Sunil Chatterjee and his wife Mrs.
Ella Chatterjee were made the sole owners of the suit
property. In the year around 1930, Sunil Chatterjee was
settled in Scotland with his wife and only defendant no.1
and his wife had been taking care of his father.
4.3 In the year 1992, Sunil Chatterjee filed a
probate petition w.r.t. Will dt 22.12.1987, before Hon’ble
High Court of Delhi, wherein the defendant no.1 raised the
question qua validity of the Will dt 22.12.1987. Thereafter
the said case was withdrawn by Sunil Chatterjee.
4.4 Sh. Sunil Chatterjee died interstate on
29.01.2000 leaving behind his wife Ella Chatterjee as his
only legal heir. His wife must be around 85 years old and is
not traceable for a long time. Thus, in accordance with the
First and the Original Will dt 23.01.1987, the defendant
no.1 and 2 became the joint owners of the suit property.
4.5 Since Smt. Mala Anita Pal was not the joint
owner in respect of 1/3rd share in the suit property, the
alleged sale of her undivided share to the plaintiff is void.
She had no right to sell any share of the suit property to the
plaintiffs and the documents executed by Smt. Mala Anita
Pal in favour of plaintiffs are false documents executed
fradulently and without any lawful authority.
4.6 The plaintiffs and Ms. Mala Anita Pal in
collusion with each other have played fraud upon the
answering defendant by stating that Late Sh. Paresh
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
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Chandra Chatterjee died intestate.
4.7 The documents dt 27.03.2007, GPA and Will
dt 05.07.2011 are false and no right/title has been
transferred on the basis of these documents as also these are
unregistered documents. The title in respect of share in the
suit property still remains in the name of Smt. Mala Anita
Pal, therefore, the plaintiffs have no locus-standi to file the
present suit.
4.8 The defendant no. 1 and 2 are in possession of
the suit property and the plaintiffs are neither in possession
nor have right, title or interest in the suit property, hence the
suit is liable to be dismissed.
5. CASE OF DEFENDANT NO. 2
Written statement was also filed on behalf of
defendant no. 2 through her Power of Attorney – Sh. Brahm
Arenja (now defendant no.3) raising preliminary objections
and stating on merits as follows:
5.1 Sh. Paresh Chandra Chatterjee was absolute
owner of suit property. He died on 29.01.1992 leaving
behind a registered Will dt 03.02.1987 bequeathing his
property in favour of three sons. No share was given to
Smt. Mala Anita Pal.
5.2 Sh. Amresh Chandra Chatterjee died on
30.05.1997 leaving the answering defendant as his only
legal heir and thus the answering defendant became owner
of 1/3 share in the suit property.
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
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5.3 Sunil Chatterjee also died intestate on
29.01.2000 leaving behind his wife Smt. Ella Chatterjee
and hence, after the death of Smt. Sunil Chatterjee, Smt.
Ella Chatterjee become owner of 1/3 share of the suit
property. She was residing in Scotland and expired in June
2012 and thus her share in the suit property devolved upon
Smt. Mala Anita Pal, defendant no.1 and defendant no.2 in
equal shares as per Hindu Succession Act, 1956. Hence Sh.
Sameer Chatterjee (defendant no.1) became entitled to 4/9
share and Ms. Deepti Chatterjee (defendant no.2) became
owner of 4/9 share and Ms. Mala Anita Pal became owner
of 1/9 share.
5.4 Since Ms. Mala Anita Pal is entitled to 1/9
share in the suit property, the plaintiff cannot have better
share in the suit property than that of Ms. Mala Anita Pal
and are at best entitled to 1/9 share.
6. CASE OF DEFENDANT NO. 3
6.1 W.S was also filed by defendant no. 3 who was
impleaded as defendant vide order dt 27.03.2018 passed by
Ld. Predecessor of this Court. In the W.S, the defendant no.
3 has claimed the right to undivided share of Smt. Deepti
Chatterjee, in the suit property, on the basis of a Will dt
19.09.2013 allegedly executed by the deceased defendant
no.2 in favour of defendant no. 3. It is averred that
existence of the said Will was brought to his knowledge by
one of the attesting witnesses to the said Will – Sh. Jayant
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 10 –
Ghadia. Further the defendant no.3 adopted the W.S of
defendant no.2 stating that he was the SPA Holder of
deceased defendant no. 2.
7. REPLICATION OF THE PLAINTIFFS TO THE W.S
OF DEFENDANT NO.1 & 2
7.1 The plaintiffs filed separate replications to the
W/S of defendant no. 1 and defendant no. 2, reiterating the
contents of the plaint and denying the averments in the W.S
of both the defendants. It is stated in the replications that
all the three sons of Late Sh. Paresh Chander Chatterjee
taking advantage of his old age in collusion with each other
had perpetuated a fraud upon the daughter Ms. Mala Anita
Pal by way of executing Will dt 23.01.1987. Smt. Mala
Anita Pal being the daughter of deceased Paresh Chander
Chatterjee, had all the right over the undivided suit property
and to sell her one third undivided share to the plaintiff.
8. REPLICATION ON BEHALF OF DEFENDANT NO. 1
TO THE W.S OF DEFENDANT NO.3
Defendant no. 1 also filed replication to the W.S of
defendant no.3 and averred as follows:
8.1. The Will propounded by defendant no.3 is
forged and fabricated. There was no occasion for Smt.
Deepti Chatterjee to make any Will or even a Power of
Attorney in favour of defendant no. 3, who is neither a
relative nor even a friend of Smt. Deepti Chatterjee. There
is no reason why Sh. Jayant Ghadia, who is a resident of
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 11 –
Delhi, was called to Kolkata merely for attesting a
purported Will. It is not clear as to why Smt. Deepti
Chatterjee had chosen defendant no. 3 for bequeathing her
estate. It is stated that under no circumstances, Smt. Deepti
Chatterjee could execute any Will in favour of defendant
no. 3, when there were several of her own relatives present
in Kolkata, who were very close to her and had good
relations with her. However, instead of making Will in
favour of relatives, who were looking after her, she made
the alleged Will in favour of a person, who had no relation
with her and was living in Delhi.
8.2. The alleged Will is not registered and even the
signature on it are not of Smt. Deepti Chatterjee and the
said Will is surrounded with various suspicious
circumstances. Smt. Deepti Chatterjee was suffering from
various ailments and even the ailments and death of her
husband had also effected her health, understanding and
mental status/condition drastically. The condition of Smt.
Deepti was bad and she was not capable of understanding
or resisting anything. She was not capable of making any
testament or documents and was totally incapacitated.
8.3 Witness Sh. Jayant Ghadia, is already involved
in numerous frauds and multiple litigation. Defendant no. 3
is acting in connivance with the plaintiffs and Mr. Jayant
Ghadia who is the attesting witness of the Will of Smt. Deepti
Chatterjee and they have together played a fraud.
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 12 –
8.4 The defendant no. 3 has no locus in the present
matter as a person who is yet to establish his rights or share
in the property can neither be a party nor could claim any
share in the suit property.
8.5 The date of GPA on the basis of which W.S
was filed on behalf of defendant no. 2 and Will is the same
i.e. being 19.09.2013, still defendant no. 3 averred that he
was not aware of any Will and it was Mr. Jayant Ghadia i.e.
attesting witness, who informed him about the Will. Sh.
Jayant Ghadia is not an independent witness but an
accomplice of defendant no. 3.
8.6 The testatrix has also not assigned any reason
for bequeathing her alleged share to defendant no.3 by
leaving her own close relatives. The relations between
defendant no.1 and defendant no.2 and defendant no.1 and
his brother late Sh. Amresh Chandra Chatterjee were very
good. In view of such good relations, it is hard to digest
that defendant no. 2 would have bequeathed her share of the
suit property in favour of defendant no.3. It is highly
unbelievable as the purported Will has not been registered
and allegedly witnessed by unknown people and strangers.
Since it was not possible to get a forged and fabricated Will
registered in the absence of and without presenting Smt.
Deepti Chatterjee, the Will was not got registered.
8.7 GPA & Will both are dt 19.09.2013 whereas
W.S was filed on behalf of defendant no.2 on 29.05.2014,
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 13 –
yet there is no mention of the Will in the W.S. Also Sh.
Jayant Ghadia is a common witness in Agreement to sell dt
22.03.2007 and Will dt 19.09.2013.
8.8 Defendant no. 2 died intestate on 04.02.2015,
therefore, her share has devolved upon the heirs of her
predeceased husband, namely Late Sh. Amresh Chandra
Chatterjee as per Section 15(1) of Hindu Succession Act
and defendant no.3 cannot claim any alleged share in the
suit property.
8.9 In the probate proceedings in respect of Will
set up by Sh. Sunil Chatterjee, Ms. Mala Anita Pal had
categorically stated that she had no objection if the said
purported Will is acted upon. However, the defendant no.1
in his reply to the said probate petition had not only
objected to and challenged the said Will set up by Sunil
Chattejee, but also informed the court about the legal and
valid will dt 23.01.1987 of Sh. P.C. Chatterjee in favour of
his three sons and also filed the same on record and thus
made everyone aware of the said Will dt 23.01.987. Sh.
Sunil Chatterjee and Mrs. Mala Anita Pal had thought it
expedient not to proceed further and accordingly abandoned
the alleged claim meaning thereby that the Will dated
23.01.1987 stood proved automatically and prevailed being
duly admitted by all the legal heirs of Sh. P.C. Chatterjee
including Mrs. Mala Anita Pal as none of the Legal Heirs
ever challenged the said Will. Even otherwise, the fact
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 14 –
remains that by giving an NOC in the said case, Mrs. Mala
Anita Pal has duly admitted that Sh. P.C. Chatterjee has not
died intestate, thus she did not acquire any derivative rights
in the suit property. Therefore, in the absence of any share
or rights in the suit property, she could not enter into any
alleged agreement with the plaintiffs.
8.10 The plaintiff and Mr. Ghadia trapped Mrs.
Mala Anita Pal and lured her for selling her alleged rights
in the property for throw away prices. Instead of filing a
suit for specific performance for perfecting their title, the
plaintiffs filed the present suit.
8.11 Share of Ms. Ella Chatterjee would devolve
upon the heirs of her husband in view of section 15(2) of
the Hindu Succession Act i.e. the living brothers(s) and
sister(s) of Sh. Sunil Chattejee i.e. defendant no.1 and Late
Smt. Mala Anita Pal.
9. ISSUES
On the basis of pleadings and documents on record,
following issues were framed by Ld. Predecessor of this
Court vide order dt 21.08.2018:-
(i) Whether the plaintiff is entitled to a preliminary decree of
partition in favour of the plaintiff and against the defendants
thereby declaring that the plaintiff is entitled to a 1/3rd equal
share in property described as bearing no. I-1600, C.R. Park,
New Delhi by metes and bounds in accordance with the shares
declared in terms of the preliminary decree of partition? OPPS.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 15 –
(ii) Whether the plaintiff is entitled to a final decree of
partition thereby partitioning property described as bearing no.
I-1600, C.R. Park, New Delhi by metes and bounds in
accordance with the shares declared in terms of the
preliminary decree of partition? OPP
(iii) Whether the plaintiff is entitled to a decree of permanent
injunction in favour of plaintiff and against the defendant
thereby restraining the defendant from creating any third party
interest in any manner whatsoever? OPP
(iv) Whether the plaintiff has no right, title or interest in the
suit property as the vendor namely Ms. Mala Anita Pal from
whom the plaintiffs claimed to have purchased the suit
property upon execution of GPA, Will, Affidavit, Possession
Letter all dated 05.07.2011 in terms of agreement to sell dated
27.03.2007 upon receipt of total sale consideration of
Rs.67,50,000/- herself had no right, title or interest in the said
property? OPD
(v) Whether Late Sh. Paresh Chand Chatterjee duly executed
and left behind a legal and binding Will dated 23.01.1987
thereby bequeathing the suit property in favour of his three
sons in equal shares non suiting his daughter, Smt. Mala Anita
Pal OPD1
(vi) Whether the suit of the plaintiff is bad for misjoinder of
parties? OPD
(vii) Whether the suit of the plaintiff is without any cause of
action? OPD
(viii) Relief
10.ADDITIONAL ISSUE
Vide Order dt 28.10.2024, the following additional
issue was framed in the matter:
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 16 –
i). Whether the Will dt 19.09.2013 executed by
Smt. Deepti Chatterjee in favour of defendant
no. 3 is a forged and fabricated Will ? OPD1
11.PLAINTIFFS EVIDENCE
Plaintiffs in support of their case examined Sh. S.L.
Arya as PW-1. He tendered his evidence by way of
affidavit EX.PW1/1 and relied upon the following
documents:
1. Certified copy of settlement agreement dated
25.03.2011 Ex. PW1/A.
2. Certified copy of order dated 26.05.20011Ex.
PW1/B.
3. Certified copy of of Agreement to Sell dated
22.03.2007 Mark PW1/C.
4. Original Irrevocable General Power of Attorney
dated 05.07.2011 Ex. PW1/D.
5. Original Will dated 06.07.2011 Ex. PW1/E.
6. Original Affidavit dated 05.07.2011 Ex. PW1/F.
12. PW1 was duly cross-examined by defendants no.
2(A) and 2(B) and by defendant no.1. Plaintiff did not lead
any other evidence in the matter.
13.DEFENDANTS EVIDENCE
13.1 No evidence was led on behalf of defendant no.1 and 2.
13.2 The defendant no. 3. in support of his case examined the
following witnesses:
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 17 –
i) Ms. Priyanka Sethi Sharma, Branch Head, Allahabad
Bank now Indian Bank as D3W1 who proved the transfer of
Rs. 25 lacs to the account of Smt. Deepti Chatterjee. She
brought the certificate dated 27.07.2023 Ex DW3/1/A with
respect to DD No. 0000128 for a sum of Rs. 25 lakhs and
Statement of Account in respect of the same is EX.DW3/B.
She deposed that the said DD was issued in favour of Dipti
Chatterjee by Arenja Enterprises Pvt. Ltd. and it was credited
in her account on 04.09.2013. The said certificate is
EX.DW3/A.
ii. Sh. Krishan Kumar, Punjab National Bank, C.R.
Park, New Delhi as DW3/2 to prove the transfer of Rs. 60 lacs
and Rs. 25 lacs to the account of Smt. Deepti Chatterjee. He
also brought the bank statement pertaining to A/c No.
0156010265331 and 1880010012157 of Ms. Dipti Chatterjee
from 01.09.2013 till 31.12.2020. The same are EX. DW3/2/A
and EX.DW3/2/B.
iii. Sh. Raj Kumar, Personal Banker, HDFC Bank, GK-
II, New Delhi as DW3/3 to prove the statement of account of
A/c No. 05572020004176 in the name of M/s. Arenja
Enterprises Pvt. Ltd for the period 01.09.2013 to 31.09.2013
and exhibited the same as EX. DW3/3/A. He also proved the
letter dated 21.06.2023 addressed to Arenja Enterprises Pvt.
Ltd. by the bank giving information about cheques paid to
Dipti Chatterjee, which is EX.DW3/3/D. The certificate u/s.
65-B of Indian Evidence Act and 2A of the Bankers Book of
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 18 –
Evidence Act are Ex.DW3/3/B & Ex.DW3/3/C.
iv. Attested witness to the Will dt 19.09.2013 – Sh.
Jayant Ghadia as DW4. He tendered his evidence by way of
affidavit Ex.DW4/A and relied upon the Will dt 19.09.2013 as
Ex.DW4/1 (OSR) and GPA dt 19.09.2013 as Ex.DW4/2
(OSR). The evidence affidavit of the witness is beyond
pleadings as the witness deposes about the purchase of the
undivided share of Smt. Deepti Chatterjee by Sh. Brahm
Arenja.
v. DW5 Sh. Brahm Arenja/Defendant no. 3 who
tendered his evidence by way of affidavit Ex.DW5/A . The
evidence affidavit of the witness is beyond pleadings as the
witness deposes about the purchase of the undivided share of
Smt. Deepti Chatterjee by him.
14.ARGUMENTS ON BEHALF OF PLAINTIFFS:
14.1 It is argued by Ld. Counsel for plaintiffs that the
plaintiffs in the instant case are claiming their rights in the suit
property through documents namely Agreement to sell dt
23.03.2007 Mark PW1/C, irrevocable GPA dated 05.07.2011-
Ex.PW1/D, Will dated 06.07.2011-Ex.PW1/E & affidavit dt
05.07.2011 Ex.PW1/F executed by Smt. Mala Anita Pal in
their favour in view of the settlement dt 25.03.2011 Ex.PW1/A
arrived at in CS OS No. 1295/2007 through Delhi High Court
Mediation and Conciliation Centre. It is argued that the suit
was disposed off in terms of settlement vide order dtS.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 19 –
26.05.2011, Ex.PW1/B. It was argued that on the basis of the
above documents, the plaintiffs herein had become the owner
of the 1/3rd share of Smt. Mala Anita Pal in the suit property.
14.2 It was argued that defendant no. 1 has disputed
the right of Smt. Mala Anita Pal in the suit property relying on
the Will dt 23.01.1987, however, Smt. Kalyani Chatterjee
(L.R/Wife of defendant no.1) had on 07.06.2023 stated on oath
before this court that the Will dt 23.01.1987 is not a genuine
Will as Sh. P.C Chatterjee was not in fit state of mind during
the relevant time and was suffering from Dementia and the
share in the suit property should go to all the sons and
daughters. It is argued that Sh. K.K. Ganguly, brother of Smt.
Kalyani Chatterjee, is a practicing Advocate and the statement
was recorded in his presence who had also signed the same. It
is further submitted that Smt. Kalyani Chatterjee later on
moved an application for recalling the said statement which
was dismissed on 18.09.2023 and therefore, the said statement
has attained finality.
14.3 It was argued that in view of the statement of
Smt. Kalyani Chatterjee dt 07.06.2023, it is clear that Sh. P.C.
Chatterjee left no Will and died intestate and, therefore, the
plaintiff through Smt. Mala Anita Pal, the L.Rs of defendant
no.1 and the defendant no. 3 through defendant no.2 i.e. Smt.
Deepti Chatterjee are entitled to 1/3 share each.
14.4 Ld. Counsel for plaintiff appears to have also
argued on behalf of defendant no. 3 as it was argued thatS.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 20 –
defendant no. 3 has proved his case that he had purchased 1/3
share of Smt. Deepti Chatterjee through Agreement to Sell,
GPA and Will dt 19.09.2013 and proved the payment of the
sale consideration amount by summoning witnesses from the
bank of Smt. Deepti Chatterjee and defendant no. 3.
14.5 It was argued that the only contesting party in the
present case was defendant no.1 who has failed to prove her
case and the rest of the defendants have supported the case of
the plaintiff. It was argued that the suit of the plaintiff is thus
liable to be decreed.
15. ARGUMENTS ON BEHALF OF DEFENDANT NO.1:
Sh. K.K. Ganguly, Sr. Advocate appearing on behalf of
defendant no. 1 has based his arguments on the written
submissions filed on behalf of defendant no. 1 on 25.07.2024
and 02.01.2024 & 07.12.2024. As per the written submissions,
the arguments of defendant no.1 are as follows:
15.1 The plaintiffs and defendant no.3 are in collusion
with each other and the plaintiffs have filed the present suit
without any locus. It is stated that Sh. Jayant Ghadia who is the
witness in the Power of Attorney and the Will allegedly
executed by deceased defendant no.2, is also the witness in the
Agreement to Sell executed by Smt. Mala Anita Pal and is a
land grabber involved in various land grabbing suits, details of
which have been mentioned in the written submissions.
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 21 –
15.2 Smt. Mala Anita Pal had no right, title or interest
in the suit property as Late Sh. P.C. Chatterjee left a Will dated
23.01.1987, thereby bequeathing the suit property in equal
shares to his 3 sons and no share whatsoever was given to his
daughter Smt. Mala Anita Pal as she was happily married.
15.3 Since Smt. Mala Anita Pal was not given any
share in any of the Wills, any document executed by her in
favour of the plaintiff have no legal binding.
15.4. One of the sons of Sh. P.C. Chatterjee namely Sh.
Sunil Chatterjee had earlier filed the probate case bearing
no.14/1992 propounding a second Will of Sh. P.C. Chatterjee,
dated 22.12.1987 and claiming to be the sole legatee under the
Will but had withdrawn the same at a latter stage as the
defendant no.1 had filed the objection bringing forth the
already existing Will of Sh. P.C. Chaterjee dated 23.01.1987.
15.5 Since the Will dated 23.01.1987 was brought to
the knowledge of all the legal heirs in the above mentioned
probate proceedings and the same has not been challenged till
date, the same is to be deemed to be the final Will of Sh. P.C.
Chatterjee.
15.6 Smt. Mala Anita Pal was lured by and was in
collusion with the plaintiff and gave a false statement while
executing the Power of Attorney and the Agreement to Sell
and also the Will that her father had died intestate, whereas,
she had filed a no objection in the above mentioned probate
proceedings stating that the Will dated 22.12.1987 is the last
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 22 –
Will of her father and she has no objection if the probate is
granted in favour of Sh. Sunil Chatterjee.
15.07 The statement dated 07.06.2023 made by Ms.
Kalyani Chatterjee LR of defendant no.1 was based on her
general memory and she later realized that she could not have
made any comment on the mental status of her father in law as
she was at the relevant time in Kolkata. However, her
application for amending the statement was dismissed and the
said statement dated 07.06.2023 is being relied upon by the
plaintiff to support the case.
15.8 The plaintiffs do not have any existing right in the
suit property as no title can be asserted on the basis of
agreement to sell, GPA, affidavit, Will etc. in the absence of
registered documents and the sale deed. The Will relied upon
by the plaintiff is invalid as the same has been executed against
sale consideration.
15.9 The present suit is a partition suit and since in a
partition suit only the pre-existing rights are partitioned, the
title of the plaintiffs cannot be decided on the basis of the
documents relied upon by them as the same would amount to
converting the suit into a declaration suit. The plaintiff has not
obtained any probate of the Will set up by him and therefore he
cannot claim any right on the basis of the said Will.
15.10 Even defendant no.3 who alleges to have
purchased share of deceased defendant no.2 is not entitled to
any relief as he also relies upon the Will executed by Smt.
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 23 –
Deepti Chatterjee against consideration. The witness to the
Will- Sh. Jayant Ghadia is not an independent witness and is
connected with the plaintiff. The Will & Power of Attorney
relied upon by the defendant no.3 were notorized at Kolkata in
the absence of Smt. Deepti Chatterjee and Sh. Braham Arenja,
as has been deposed by DW4 and DW5. The defendant no.3
claims to have purchased the property from Smt. Deepti
Chatterjee through GPA, Agreement to Sell and Will executed
by her and the said documents are not valid documents. The
name of Smt. Deepti Chatterjee is wrongly spelled out as Dipti
Chatterjee in the documents relied upon by the defendant no.3
as in the written statement filed on behalf of defendant no.2 her
name has been spelt out as Deepti Chatterjee, thus clearly
showing that the documents relied upon by defendant no.3 are
forged documents. Further the age of Deepti Chatterjee as
shown in the Will dated 19.09.2013 is 73 years, whereas, an
interim application bearing IA No.8607 of 2015 dated
21.04.2015 mentions her age as 85 years.
5.11 In the cross-examination it was stated by DW4
Sh. Jayant Ghadia that the agreement to sell executed by Smt.
Deepti Chatterjee was signed by the wife of Sh. Brahm Arenja
and therefore, the defendant no.3 did not file the agreement to
sell before this court.
5.12 The defendant no.3 and plaintiff had the intention
to usurp the shares of defendant no.1 & 2 as an IA No. 8607/15
dated 21.04.2015 was filed by defendant no.3 stating that
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 24 –
defendant no.2 has settled her dispute with the plaintiff. The
said application was filed on 21.04.2015 i.e. after the death of
Smt. Deepti Chatterjee on 04.02.2015.
5.13 The defendant no.3 herein claimed the share of
deceased defendant no.2 on the basis of an unregistered Will
dated 19.09.2013 almost after 2 years of the demise of
defendant no.2. It was admitted by defendant no.3 that he had
purchased the share of defendant no.2 vide Agreement to Sell,
Will etc. whereas the said fact of purchase from defendant no.2
by way of Will & Agreement to Sell as well as the payment of
consideration amount, was not disclosed any where in the WS
filed on behalf of defendant no.2 through defendant no.3 who
was acting as the Power of Attorney of defendant no.2. The
defendant no.3 also falsely stated that he has come to know
about the Will of defendant no.2 from Sh. Jayant Ghadia
whereas in his evidence, it has come out that Sh. Jayant Ghadia
was visiting Kolkata for notorization and execution of the GPA
& the Will of defendant no.2 at request of Sh. Brahm Arenja.
15.14 In the settlement agreement dated 25.03.2011 it
was stated that the plaintiff therein i.e. Smt. Mala Anita Pal
will file suit for partition in respect of the suit property and she
shall execute an irrevocable power of attorney in favour of Sh.
S.L. Arya for filing the suit on her behalf, whereas, the present
suit has been filed by the plaintiffs in their own rights and not
as power of attorney of Smt. Mala Anita Pal and thus have no
locus to file the present suit.
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 25 –
The defendant no.1 has also relied upon certain
judgments in the written submissions but the same were never
referred to nor the judgments were produced before the court
for perusal.
16. ARGUMENTS OF DEFENDANT NO.3:
Ld. Counsels for defendant no.3 stated that she supports
the case of plaintiff and argued that the defendant no.3 has
proved the payment of the sale consideration to defendant no.2
by summoning the witnesses from the bank of Smt. Deepti
Chatterjee and defendant no.3 and defendant no.3 has
supported his case in his evidence and the attesting witness of
the Will Sh. Jayant Ghadia has testified as to the Will in his
evidence. Thus each party is entitled to 1/3 share.
17. I have given my thoughtful consideration to the
arguments of both the sides and have gone through the record
of the case.
18. FINDINGS ON THE ISSUES FRAMED:
For the sake of convenience the issues are decided in
the following order:-
18.1. Issue no. (v) Whether Late Sh. Paresh Chand Chatterjee
duly executed and left behind a legal and binding Will dated
23.01.1987 thereby bequeathing the suit property in favour of his
three sons in equal shares non suiting his daughter, Smt. Mala
Anita Pal ? OPD1
18.1.1. The burden to prove this issue was upon
the defendant no.1. The defendant no. 1 had relied upon theS.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 26 –
Will dt 23.01.1987 to assert that Smt. Mala Anita Pal was not
entitled to any share in the suit property, alleging that by way
of the above mentioned Will, Sh. P.C Chatterjee had
bequeathed the suit property only in favour of his three sons in
equal shares. However, a statement was made by L.R of
defendant no. 1 in court on oath, on 07.06.2023, in the
presence of her own brother Sh. K.K. Ganguly who is also a
practicing Advocate stating that the Will dt 23.01.1987 is
invalid as Sh. P.C. Chatterjee was mentally unsound since the
time of her marriage in 1984 which fact was known to her even
before her marriage with defendant no.1. It was also stated that
she is aware that her husband Sh. Sameer Chattejee (defendant
no.1) had relied upon the said Will. She stated that since her
father in law was mentally unsound and was not in a position
to execute the Will, the share in the property should go to all
sons and daughters. The said statement is also signed by her
brother Sh. K.K. Ganguly who was present in court on that
said date.
The said statement is reproduced hereunder:
“I am Widow of Late Sh. Sameer Chatterjee. Me
and Sh. Sameer Chatterjee have a son by the name Agnibha
Chatterjee who had also appeared before Court two dates
back.
I say that I got married with Sh. Sameer
Chatterjee in the year 1984. My father-in-law Sh. P.C
Chatterjee was of mentally unsound mind since the time
I saw him at the time of my marriage. I came to know
that he was of mentally unsound mind before even my
marriage with Sh. Sameer Chatterjee. I say that he was
not in a mentally fit state to execute the Will dtS.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 27 –
23.01.1987. I do not know who got this Will executed
through my father-in-law. I am God fearing person and
I will only state the truth.
I am aware that my husband Sh. Sameer
Chatterjee had taken a stand that the Will dt 23.01.1987
is the valid Will of his father Sh. P.C Chatterjee.
However, I state on oath that my father-in-law was of
mentally unsound mind and was not in a position to
enter and execute such Will.
Since I am the L.R of my husband Sh. Sameer
Chatterjee, I state that the Will dt 23.01.1987 is invalid.
The share in the property should go to all sons and
daughters.
I am myself in a mentally fit state of mind to
make this statement. My brother-Sh. Krishna Kishore
Ganguly is also present in the Court today.
I further state that my own son Sh. Agnibha
Chatterjee is not in a mentally fit state of mind. I have filed
documents on record to show that his treatment was going
on from AIIMS and then from IBHAS.”
18.1.2 Later on an application was moved by Smt.
Kalyani Chatterjee to amend her said statement which was
dismissed vide a reasoned order dt 18.09.2023 and the
statement made by her on 07.06.2023 thus became binding
upon her. Further, the defendant no.1 has not placed on record
the certified copy of the Will dt 23.01.1987 nor has led any
evidence with respect to the said Will as per the provisions of
Section 68 to 71 of Indian Evidence Act (now section 67 to 70
of BSA, 2023).
18.1.3 The burden to prove the said Will was on
defendant no. 1 which has not been discharged and, therefore,
the Will dt 23.01.1987 is not proved as per law.
18.1.4 It is also important to note here that
contradictory stands have been taken by defendant no.1 every
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 28 –
now and then. Perusal of the record would show that in the
W/S filed by defendant no. 1, it has been averred that the Will
dt 22.12.1987 propounded by Sh. Sunil Chatterjee in the
Probate Proceedings bearing no. 14/1992, claiming that entire
property has been bequeathed in his name, was a forged and
fabricated Will and since the Probate Petition was withdrawn
by Sh. Sunil Chatterjee the only valid Will would be
23.01.1987. It has also been averred that Smt. Mala Anita Pal
had given her NOC in the said petition and thus she was aware
that she had no share in the suit property. However, an
application was also filed u/o. 6 rule 17 CPC by defendant no.
1 wherein the defendant no.1 had placed heavy reliance upon
the Will dt 22.12.1987. Though the said application was
dismissed yet the averments in the said application are
important to be taken note of as the said application was
supported by an affidavit of defendant no. 1 and materially
deviates from the stand taken in the W.S.
18.1.5 Further neither the defendant no.1 nor the
L.Rs of defendant no.1 ever stepped into the witness box to
prove their case. Thus the Will dated 23.01.1987 and the case
of the defendant as averred in the WS remained unproved.
18.1.6 It is pertinent to note that in the replication
filed by the plaintiffs, the plaintiffs have not denied this Will dt
23.01.1987 but have pleaded that the sons of Sh. P.C.
Chatterjee had fraudulently got the said Will executed,
however, the fact remains that the Will is mandatorily to be
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 29 –
proved by calling the attesting witness which was not done in
the present case, thus leaving the Will unproved.
18.1.7 In view of the above discussion, issue no.
(v) is decided against defendant no.1.
18.2 Issue no. (i) Whether the plaintiff is entitled to a
preliminary decree of partition in favour of the plaintiff and
against the defendants thereby declaring that the plaintiff is
entitled to a 1/3rd equal share in property described as bearing no.
I-1600, C.R.Park, New Delhi by metes and bounds in accordance
with the shares declared in terms of the preliminary decree of
partition? OPP
Issue no. (ii) Whether the plaintiff is entitled to a final decree
of partition thereby partitioning property described as bearing
no. I-1600, C.R. Park, New Delhi by metes and bounds in
accordance with the shares declared in terms of the
preliminary decree of partition? OPP
Issue no. (iii) Whether the plaintiff is entitled to a decree of
permanent injunction in favour of plaintiff and against the
defendant thereby restraining the defendant from creating any
third party interest in any manner whatsoever? OPP
(vii) Whether the suit of the plaintiff is without any cause of
action? OPD
Since the above issues are interconnected and can be
disposed off by common reasoning, they are dealt with
together hereunder.
18.2.1 The word ‘partition’ and the scope of suit
for partition has been discussed by the Hon’ble Supreme Court
in a catena of judgments and it has been held that ‘partition’ is
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 30 –
a redistribution of pre-existing rights and only a person having
a share and interest in the suit property is entitled to seek
partition. In this regard, it would be appropriate to refer to para
4 of the judgment passed by Hon’ble Supreme Court in Shub
Karan Bubna @ Shub Karan Prasad Bubna vs. Sita Saran
Bubna and Ors- MANU/SC/1607/2009 which is as under :-
“4. `Partition’ is a re-distribution or adjustment of
pre-existing rights, among co-owners/coparceners,
resulting in a division of lands or other properties
jointly held by them, into different lots or portions
and delivery thereof to the respective allottees. The
effect of such division is that the joint ownership is
terminated and the respective shares vest in them in
severalty. A partition of a property can be only
among those having a share or interest in it. A person
who does not have a share in such property cannot
obviously be a party to a partition. `Separation of
share’ is a species of ‘partition’. When all co-owners
get separated, it is a partition. …. In a suit for
partition or separation of a share, the prayer is not
only for declaration of plaintiff’s share in the suit
properties, but also division of his share by metes and
bounds. This involves three issues: (i) whether the
person seeking division has a share or interest in the
suit property/properties; (ii) whether he is entitled to
the relief of division and separate possession; and (iii)
how and in what manner, the property/properties
should be divided by metes and bounds ?”
(emphasis supplied)
18.2.2 In the present case, the plaintiffs claim to
have purchased the 1/3rd undivided share of Smt. Mala Anita
Pal through GPA and Affidavit both dt 05.07.2011 and Will dt
06.07.2011 and agreement to sell dated 22.03.2007. They also
claim to have paid the entire sale consideration to Smt. Mala
Anita Pal and have relied upon the settlement agreement dated
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 31 –
25.03.2011 Ex.PW1/A and order dated 26.05.2011 Ex.PW1/B
in this regard. However, there is no registered sale deed in
favour of the plaintiffs and as per the judgment in Suraj Lamp
& Industries (P) Ld.Tr.Dir vs State Of Haryana & Anr on 11
October, 2011, the plaintiffs cannot be said to be the owners of
the 1/3 share in the suit property. The relevant part of the said
judgment is reproduced hereunder:
“15.Therefore, a SA/GPA/WILL
transaction does not convey any title nor create
any interest in an immovable property. The
observations by the Delhi High Court, in Asha
M. Jain v. Canara Bank – 94 (2001) DLT 841,
that the “concept of power of attorney sales
have been recognized as a mode of transaction”
when dealing with transactions by way of
SA/GPA/WILL are unwarranted and not
justified, unintendedly misleading the general
public into thinking that SA/GPA/WILL
transactions are some kind of a recognized or
accepted mode of transfer and that it can be a
valid substitute for a sale deed. Such decisions
to the extent they recognize or accept
SA/GPA/WILL transactions as concluded
transfers, as contrasted from an agreement to
transfer, are not good law.
16. We therefore reiterate that
immovable property can be legally and
lawfully transferred/conveyed only by a
registered deed of conveyance.
Transactions of the nature of `GPA
sales’ or `SA/GPA/WILL transfers’ do not
convey title and do not amount to transfer, nor
can they be recognized or valid mode of
transfer of immoveable property. The courts
will not treat such transactions as completed or
concluded transfers or as conveyances as they
neither convey title nor create any interest in an
immovable property.
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 32 –
They cannot be recognized as deeds of
title, except to the limited extent of section 53A
of the TP Act. Such transactions cannot be
relied upon or made the basis for mutations in
Municipal or Revenue Records. What is stated
above will apply not only to deeds of
conveyance in regard to freehold property but
also to transfer of leasehold property. A lease
can be validly transferred only under a
registered Assignment of Lease. It is time that
an end is put to the pernicious practice of
SA/GPA/WILL transactions known as GPA
sales.”
18.2.3 Also the Will dated 06.07.2011 Ex.PW1/E
allegedly executed by Smt. Mala Anita Pal in favour of the
plaintiffs, has not been proved by the plaintiffs in accordance
with section 68 of the Indian Evidence Act, 1872 (section 67 of
B.S.A, 2023) r/w section 63 of The Indian Succession Act,
1925. Section 63 (c) of Indian Succession Act 1925 lays down
a mandatory requirement of attestation of the Will by two or
more witnesses. Section 63 (c) is reproduced hereunder :
“Section 63. Execution of unprivileged Wills.
(a). ***
(b). ***
(c). The Will shall be attested by two or more
witnesses, each of whom has seen the testator sign
or affix his mark to the Will or has seen some other
person sign the Will, in the presence and by the
direction of the testator, or has received from the
testator a personal acknowledgement of his
signature or mark, or the signature of such other
person; and each of the witnesses shall sign the Will
in the presence of the testator, but it shall not be
necessary that more than one witness be present at
the same time, and no particular form of attestation
shall be necessary.”
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 33 –
18.2.3 Section 68 of Indian Evidence Act, 1872
(section 67 of BSA, 2023) provides that if a document is
required by law to be attested the same shall not be used as an
evidence until one attesting witness has been called to prove its
execution. The said Section 68 of Indian Evidence Act,
1982/Sec 67 of BSA, 2023 is reproduced hereunder :-
“68. Proof of execution of document required by
law to be attested.
If a document is required by law to be
attested, it shall not be used as evidence until one
attesting witness at least has been called for the
purpose of proving its execution, if there be an
attesting witness alive, and subject to the process of
the Court and capable of giving evidence :
Provided that it shall not be necessary to call
an attesting witness in proof of the execution of any
document, not being a Will, which has been
registered in accordance with the provisions of the
Indian Registration Act, 1908 (16 of 1908), unless its
execution by the person by whom it purports to have
been executed is specifically denied.”
18.2.4 Thus it is clear from a conjoint reading
of above two provisions that a Will has to be mandatorily
proved by examining an attesting witness to the Will, who
shall depose in terms of Section 63 (c) of Indian Succession
Act, 192.
18.2.5 The plaintiffs have not examined the
attesting witness to the Will and thus the Will dated 06.07.2011
Ex.PW1/E remained unproved and cannot be relied upon.
Even a close scrutiny of the Will dt 06.07.2011 shows that the
signatures of Smt. Mala Anita Pal on the said Will and the
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 34 –
agreement to sell as well as the GPA, Affidavit & settlement
agreement are different despite the documents of GPA,
affidavit being executed only a date prior to date of Will. The
signatures on the Will are in smooth flow whereas in the other
documents above mentioned the signatures are not flowy, the
formation of the letter ‘M’ in the Will is totally different from
the formation of the letter ‘M’ in the other documents, there is
pen lifting in the word ‘Mala’ in the documents of GPA etc.,
whereas, in the Will the alphabets in the word Mala are
connected and continuous. Further, the spacing of the
alphabets in the word “Mala” in the Will is much more than
the word “Mala” in the other documents. Thus, suspicion arises
as to the due execution of the Will.
18.2.6 Since the plaintiffs have not yet become
the owners as per the provisions of the section 54 of Transfer
of Property Act r/w section 17 & 49 of the Registration Act
and documents in favour of plaintiffs are hit by the judgment in
Suraj Lamps (supra), they cannot be said to be having a pre-
existing right or share in the suit property as their rights in the
suit property have not yet crystallized. If the plaintiffs had any
rights in the suit property, they should have filed an appropriate
suit in the court of law to perfect their title and then filed a suit
for partition or should have filed the present suit only through
the coparcener Smt. Mala Anita Pal. Thus, the plaintiffs are not
entitled to 1/3 equal share in the suit property. The plaintiffs
had no cause of action and no locus whatsoever to file the
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 35 –
present suit for partition and it was only Smt. Mala Anita Pal
who could have filed the present suit.
18.2.7 The plaintiffs have placed heavy reliance
upon the order dated 26.05.2011 passed by Hon’ble High
Court of Delhi, Ex.PW1/B and the settlement arrived between
the plaintiffs and Smt. Mala Anita Pal Ex.PW1/A in support of
their case.
18.2.8 However, a perusal of the settlement
agreement Ex.PW1/A shows that the suit for partition was to
be filed by Smt. Mala Anita Pal and the plaintiffs herein may
have acted as the attorneys of Smt. Mala Anita Pal in the suit
for partition which even otherwise would have been the proper
course. Also when the order dt 26.05.2011 was passed by the
Hon’ble High Court of Delhi, the settlement Ex. PW1/A
became a part and parcel of that order and the plaintiffs were
bound to comply the same. But the fact remains that the
plaintiffs filed the present suit in their own capacity and also
did not implead Smt. Mala Anita Pal as a party in the suit, for
the reasons best known to them. Since the plaintiffs claim to
have purchased the suit property from Smt. Mala Anita Pal and
also did not have any valid documents of title in their favour,
she was a necessary party to the present suit. At a very later
stage, the LRs of Smt. Mala Anita Pal were added and
impleaded in the present suit as LRs of deceased defendant
no.2, Smt. Deepti Chatterjee, who as per the record did not
support the case of the plaintiff.
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 36 –
18.2.9 Thus, in view of the above, it is held that
the plaintiffs are not entitled to 1/3 equal share in the suit
property and had no cause of action and also did not have any
locus to file the present suit for partition of the suit property.
Further the suit is bad for non-joinder of necessary party i.e.
Smt. Mala Anita Pal. In view of the above, the issue no.1, 2, 3
& 7 are decided against the plaintiffs.
18.3 Issue no. (iv) Whether the plaintiff has no right, title or
interest in the suit property as the vendor namely Ms. Mala
Anita Pal from whom the plaintiffs claimed to have purchased the
suit property upon execution of GPA, Will, Affidavit, Possession
Letter all dated 05.07.2011 in terms of agreement to sell dated
27.03.2007 upon receipt of total sale consideration of
Rs.67,50,000/- herself had no right, title or interest in the said
property? OPD
18.3.1 The burden to prove this issue was upon
the defendants. However, no evidence was led on behalf of
defendant no.1 and 2 and it was stated on behalf of defendant
no. 3 that they support the case of the plaintiff. Thus no
evidence whatsoever was led qua this issue.
18.3.2 It has already been discussed and held
while deciding issue no. (v) above that defendant no.1 has
failed to prove the Will dt 23.01.1987. It is also important to
note that a reference to another Will dt 22.12.1987 has been
seen in the pleadings of defendant no.1, however, as already
held above, the defendant no.1 has taken contradictory stands
with respect to the said Wills and on one hand has claimed the
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 37 –
same to be forged and fabricated while on the other hand has
sought to rely upon the same in his application u/o. 6 Rule 17
CPC. The fact remains that even the said Will was never
produced before this court nor any evidence was led with
respect to the same. Further, since defendant no.1 never
stepped into the witness box, the case of the defendant no. 1
remained unproved.
18.3.3 Since the Wills propounded in the matter
could not be proved, the only conclusion that can be drawn is
that Sh. P.C. Chatterjee died intestate.
18.3.4 It is pertinent to note here that the plaintiff
claims to have purchased 1/3 share of Smt. Mala Anita Pal in
the suit property, however, it is not clear whether on the date of
transactions between the plaintiffs and Smt. Mala Anita Pal,
she was entitled to 1/3 share or not. A perusal of the pleadings
of the parties in the present case, would show that there are
different versions of the parties w.r.t the living status of Smt.
Ella Chatterjee, wife of deceased Sh. Sunil Chatterjee. It is the
case of the plaintiff that sh. Sunil Chatterjee died without any
Legal Heirs whereas the defendants filed the W.S claiming that
Sh. Sunil Chatterjee left behind his wife Smt. Ella Chatterjee.
The defendant no.1 claims that Ella Chatterjee is not traceable
for a long time whereas defendant no.2 claimed that she died in
the year June, 2012. It was also pleaded that she had resided in
Scotland with her husband Sh. Sunil Chatterjee. Despite that
the plaintiff never sought to add Smt. Ella Chattejee as a legal
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 38 –
heir. It was imperative to add Smt. Ella Chatterjee as a
defendant as without adding her as a party, it could not have
been ascertained whether Smt. Ella Chatterjee was alive or
dead. If it was a case of not being heard of for several years or
her death, the same could have come to light by the
proceedings of her service in the case. Only after the
presumption of the death of Smt. Ella Chatterjee would have
been raised, it could be said that the remaining L.Rs of Sh. P.C
Chatterjee inherited the share of Smt. Ella Chatterjee and
became owners of 1/3 share each. Without the date of death of
Smt. Ella Chatterjee being proved or without the presumption
of her death being raised u/s. 108 of Indian Evidence Act
( Section 111 of BSA, 2023), it cannot be ascertained as to
whether and if so, when her share devolved upon the other
L.Rs. Also, if it would have been proved that Smt. Ella
Chatterjee died in 2012 as alleged, then Smt. Mala Anita Pal
would not have been entitled to 1/3 share in the suit property
and instead would have been entitled to only ¼ share in the
same as on 22.03.2007 or on 05.07.2011 i.e. the date of
entering into transaction for sale of her 1/3rd share to plaintiffs.
18.3.5 Further, it is also important to note that the
plaintiffs in the replication to the WS of defendant no.1 have
not denied the Will dt 23.01.1987 but have only alleged fraud
and collusion of the three sons of Late Sh. P.C Chatterjee in
getting the said Will executed, which shows that the plaintiffs
were aware of the execution of the said Will but have chosen to
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 39 –
conceal the said fact in their pleadings.
18.3.6 Since it is not clear as to what share was
inherited by Smt. Mala Anita Pal, it cannot be said that the
plaintiffs are entitled to any right, title or interest in the suit
property. Even otherwise, it has already been held above that
the plaintiffs have no share in the suit property nor have any
cause of action or locus to file the suit.
In view of the above discussion, issue no.(iv) is decided
against the plaintiffs.
18.4. Issue no. (vi) Whether the suit of the plaintiff is bad for
misjoinder of parties? OPD
No arguments have been advanced by any of the parties
on this aspect. The issue is accordingly deleted. Even
otherwise, as per the provisions of CPC, a suit cannot be
dismissed on the ground of mis-joinder of parties (Order 1
Rule 9 r/w order 1 Rule 13 CPC r/w Section 99 CPC).
19.FINDINGS ON ADDITIONAL ISSUE FRAMED ON
28.10.2024 :
Issue no. i). Whether the Will dt 19.09.2013 executed by
Smt. Deepti Chatterjee in favour of defendant
no. 3 is a forged and fabricated Will ? OPD1
19.1.1 As far as defendant no.3 is concerned, he
has claimed share of Smt. Deepti Chatterjee on the basis of the
Will dt 19.09.2013 executed by Smt. Deepti Chatterjee in his
favour. The said Will has been challenged by defendant no.1
through replication to the W/s of defendant no. 3 filed by him.
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 40 –
19.1.2 As per the W.S of defendant no.3, it is the
case of defendant no.3 that he has become the owner of the
undivided share of the deceased defendant no.3 vide Will dated
19.09.2013 Ex.DW4/1 executed by deceased Smt. Deepti
Chatterjee in his favour, which as per him came to his
knowledge only when the attesting witness Sh. Jayant Ghadia
informed him of the same.
19.1.3 Though the present issue puts the burden to
prove the same on defendant no.1, yet it is for the defendant
no.3 first to prove the said Will as per the provisions of law i.e.
section 68 of Indian Evidence Act r/w section 63 (c ) of Indian
Succession Act. Though no formal issue was framed with
respect to the alleged right of defendant no.3, yet evidence has
already been led on behalf of the parties and even arguments
have been addressed by the parties and as such no prejudice is
caused to the parties by non framing of the issue. Thus the
evidence in this regard is discussed by this court hereafter.
19.1.4 To prove the said Will, defendant no.3 has
examined attesting witness Sh. Jayant Ghadia as DW4. In his
affidavit of evidence Ex.DW4/A-Sh. Jayant Ghadia has
deposed that Sh. Brahm Arenja had purchased the property
from Smt. Deepti Chatterjee by execution of Agreement to
Sell, GPA, Affidavit and Will dt 19.09.2013. Thus it can be
said that the animus was to be a witness to a sale transaction
and not a bequeathment. Also in his affidavit, he states himself
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 41 –
to be a friend of Sh. Brahm Arenja and his wife but does not
state how and why he was called by Smt. Deepti Chatterjee to
attest the Will.
19.1.5 In his cross-examination, he has stated that
he had taken the documents i.e. GPA dated 19.09.2013
Ex.DW4/2 and Will dated 19.09.2013 Ex.DW4/1 for
notorization to Kolkata and Sh. Brahm Arenja was not present
before the Notary. It has been further stated that the said
documents were prepared at Kolkata whereafter the same were
brought to Delhi for approval of Sh. Brahm Arenja and
thereafter the same were attested and executed in Kolkata. This
very fact alone shows that the Will dt 19.09.2013 Ex.PW4/1
was not executed by the testator out of free Will as the same
had first been approved by Sh. Brahm Arenja. Further, the
attesting witness and defendant no.3 have not testified as to the
mental and physical health of the testator at the time of
execution of the Will. It is also not clear as to why Sh. Jayant
Ghadia was called from Delhi to Kolkata by Smt. Deepti
Chatterjee to attest the said documents. It cannot be also lost
sight of that Sh. Jayant Ghadia is also a witness to the
agreement to sell between the plaintiffs and Smt. Mala Anita
Pal.
19.1.6 It is also pertinent to note that the age of
Smt. Deepti Chatterjee has been mentioned as 73 years in the
Will dt 19.09.2013 whereas during the course of proceedings,
an application bearing no. 8607/2015 was moved by plaintiffs
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 42 –
and defendant no.2 on 21.04.2015 wherein age of defendant
no. 2 is stated to be 85 years, which itself raises doubts on the
genuineness of the Will. In these circumstances, it cannot be
said that Smt. Deepti Chatterjee executed the Will out of her
own free Will and the execution of the same is surrounded by
suspicious circumstances.
19.1.7 Further, the defendant no.3 though does
not aver that he purchased the share of Smt. Deepti Chatterjee
yet he led evidence of payment of sale consideration to Smt.
Deepti Chatterjee by summoning the witnesses from the bank
of Smt. Deepti Chatterjee and his own bank namely D3W1,
DW3/2 & DW3/3. Even his affidavit of evidence Ex.DW5/A
testifies as to the purchase of undivided share of Smt. Deepti
Chatterjee and is beyond pleadings. Thus it is clear that the
defendant no.3 has got into some transaction of sale and
purchase with Smt. Deepti Chatterjee but to escape the rigours
of the judgment in Suraj Lamps vs. State of Haryana (supra)
has only preferred to rely upon the Will in his pleadings though
leading evidence as to the purchase of the undivided share of
Smt. Deepti Chatterjee as well as the Will. It is clear from the
above discussion that the Will dt 19.09.2013 was a part and
parcel of transactions of sale and purchase between Smt.
Deepti Chatterjee and Sh. Brahm Arenja and was not actually
am independent testamentary document. Thus the said Will at
best could be said to be the intention of the testator to transfer
the property to Sh. Brahm Arenja on receipt of some
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 43 –
consideration and not without that. However, since the
defendant no.3 does not plead a case of purchase and share of
Smt. Deepti Chatterjee, the Will would not support the case of
defendant no. 3 as neither the purchase is proved nor
independent bequeathment.
19.1.8 It is also important to note that the conduct
of the defendant no. 3 is also not free of doubts and he has
suppressed material facts in the present proceedings. It is
pertinent to mention that the fact of the execution of the
Agreement to Sell in favour of his wife, Will of Smt. Deepti
Chatterjee and payment of consideration etc have not been
mentioned in the written statement filed on behalf of deceased
defendant no.2 through defendant no.3, though the said facts
were already in his knowledge. The defendant no.3 has also
falsely stated in his application under Order 1 Rule 10 CPC
filed by him for his impleadment, that he was not aware of the
Will dated 19.09.2013 and came to know of the same through
Sh. Jayant Ghadia, though he claims to have even paid the sale
consideration for the purchase of the property and has led
evidence in that respect and it has come in the evidence of
DW4 that the said documents were prepared in Kolkata and
were brought for approval of Sh. Brahm Arenja, whereafter,
the said documents were taken for attestation and execution to
Kolkata. It has also been stated in evidence of DW4 that the
agreement to sell was executed by Smt. Deepti Chatterjee in
favour of wife of Sh. Brahm Arenja and not Sh. Brahm Arenja.
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 44 –
The said documents have been concealed by Sh. Brahm Arenja
and have not been filed before this court. Thus it can be said
that defendant no.3 has not come to the court with clean hands.
19.1.9 Thus it can be said that the Will dt
19.09.2013 has not been proved to be a Valid Will and thus
defendant no. 3 cannot be said to have become the owner of
undivided share of Smt. Deepti Chatterjee. Before parting with
this issue, it is also deemed appropriate to bring on record that
though defendant no. 3 claims to have filed the W.S on behalf
of defendant no. 2 as her POA, yet it appears that he was
contesting the suit on his own behalf under the garb of being a
POA of defendant no.2. This can be said as during the
proceedings it was informed by defendant no. 1 that defendant
no. 2 has expired in February, 2015 only whereafter the
defendant no. 3 filed application u/o. 1 rule 10 CPC for his
impleadment that too without mentioning in his application as
to when defendant no.2 died and whether or not any proper
enquiry was made by him in this regard. In the application it is
merely stated as follows:
“2. That as per the information provided by
defendant no. 1, defendant no.2 expired and is not
having any surviving member in her family.
3 ****
4. That the applicant on coming to know about
the death of the defendant no.2, asked the witnesses
in the GPA to inquire about the same and also to
enquire about the legal heirs of defendant no. 2.
5. It is submitted that one of the witness to
the GPA i.e. Sh. Jayant Ghadia, informed the
applicant that the deceased Dipti Chatterjee hadS.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
– 45 –
executed the Will dt 19th September 2013 in favour
of applicant as stated herein above and the same has
been duly notarised. The copy of Will dated
19.09.2013 is attached herewith.”
19.1.10 The proceedings continued in the suit
despite the death of defendant no.2 and even an application of
compromise came to be filed on 21.04.2015 despite the date of
death of defendant no.2 being February, 2015 (it is not the case
of defendant no.3 that defendant no.2 did not expire in 2015).
19.1.11 Since defendant no.1 did not enter into the
witness box and did not lead any evidence as to whether the
Will dt 19.09.2013 is forged and fabricated Will or not, the
issue is decided against defendant no.1. However, it has
already been held above that defendant no.3 has himself failed
to prove the Will dt 19.09.2013 even on pre-ponderance of
probability.
20. RELIEF :
In view of the above findings and discussions, the suit of
the plaintiffs is dismissed. No order as to costs.
21. Decree sheet be drawn accordingly.
22. File be consigned to Record Room.
Announced in open court Digitally signed
by GUNJAN
GUNJAN GUPTA
on 22.01.2025 Date:
GUPTA 2025.01.27
17:37:34
+0530
(GUNJAN GUPTA)
DJ-04/South-East,Saket Courts,
New Delhi
S.L. Arya and ors vs. Sameer Chatterjee & ors. CS DJ 9968/2016
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