Delhi District Court
Sh. A. K. Malhotra vs Sh. Sarwan Kumar Malhotra on 20 January, 2025
IN THE COURT OF ADMINISTRATIVE CIVIL JUDGE-CUM-
CCJ-CUM-ADDITIONAL RENT CONTROLLER, WEST, TIS
HAZARI COURTS, DELHI
Presided over by- Sh. Dev Chaudhary, DJS
CS SCJ -: 310/2013 &
7364/2016
Unique Case ID -: DLWT030000262001
In the matter of -
SH. A.K. MALHOTRA
S/o- Late Sh. B.L.Malhotra
R/o- PD-28C, LIG Flats,
Near ND Market, Pitampura,
Delhi-110034.
Represented through LRs -
A. Sh. Rajiv Malhotra
S/o Late Sh. A.K. Malhotra
B. Sh. Amit Malhotra
S/o Late Sh. A.K. Malhotra
Both R/o BD-111, MIG Flat, Chotti Subzi Mandi,
Janakpuri, Delhi- 59
......... Plaintiff
VS.
1.
SH. SARWAN KUMAR MALHOTRA
S/o- Late Sh. B.L. Malhotra
R/o- M-62, Malviya Nagar,
New Delhi.
Represented through LRs –
A. Sh. Dhiraj Malhotra
S/o Late Sh. Sarwan Kumar Malhotra
B. Mrs. Kavita
D/o Late Sh. Sarwan Kumar Malhotra
Both R/o House No. B-328, Ground Floor,
Near Gate No. 2, Green Field Colony,
Faridabad, Haryana.
2. SH. DAMAN KUMAR MALHOTRA
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DEV CHAUDHARY
CHAUDHARY Date:
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S/o- Late Sh. B.L. Malhotra
R/o- 155, SFS Flats, Nagina Lake Apartments,
Near Village Piragarhi,
Paschim Vihar,
New Delhi.
3. SMT. KAMLESH KUMARI
W/o- Sh. Manmohan Pal,
R/o- B-3/215, Paschim Vihar,
New Delhi.
4. SH. SAT NARAIN
S/o- Sh. Amrit Lal
R/o- B-12, Pushpanjali Enclave,
Pitam Pura, Delhi-110034
5. SH. ANIL
S/o- Sh. Amrit Lal
R/o- B-12, Pushpanjali Enclave,
Pitampura, Delhi-110034.
…….. Defendants
1. Name of Plaintiff : A.K. Malhotra
Sarwan Kumar Malhotra &
2. Name of Deceased :
Ors.
3. Date of Institution : 30.05.2001
4. Date of Reserving Order : 20.12.2024
5. Date of Decision : 20.01.2025
6. Decision : Dismissed
Argued by -: Sh. Gurpreet Singh Sachdeva, Ld. Counsel for the
plaintiff.
Sh. M.L. Bajaj, Ld. counsel for defendant no.1 and 2.
Defendant no. 3 is ex-parte
Sh. Manoj Mittal, Ld. counsel for defendant nos. 4
and 4.
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DEV CHAUDHARY
CHAUDHARY Date:
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JUDGMENT -
INDEX -
HEADING PARA No.
1. Factual Matrix 1-2
2. Pleadings of Plaintiff 3-3.7
3. Pleadings of Defendants 4-6
4. Points for determination 7
5. Evidence 8-10
6. Arguments 11-14
7. Analysis 15-47
Additional Issues 15-17.5
Issue No. (I) : Limitation 18-22
Issue No. (II) to (VII) 23
Nature of Property 24-30
Proof of Will 31-38
Suspicious Circumstances 39-47
o Reason for excluding the plaintiff 41-41.7
o Testamentary Capacity of the 42-42.1
deceased
o Handwriting and Photograph 43-44
Subsequent Transfer
45-47
8. Conclusion 48-52
FACTUAL MATRIX –
1. Bitter rivalry over a property has pitted brothers against
each other in this suit. The rigamarole of this trial, spread over more
than two decades, culminates with this judgment, vide which the suit
of the plaintiff stands dismissed.
2. Late Sh. B.L. Malhotra, father of the plaintiff and
defendant nos. 1 to 3 by virtue of his employment in the Ministry of
Commerce was one of the founder members of the Ministry of
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CHAUDHARY Date:
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Commerce and Industry Coop. House Building Society Ltd. and was
allotted a plot measuring 139.08 sq. mts. bearing No. B-12,
Pushpanjali Enclave, Pitam Pura, Delhi (hereinafter, “the suit
property”) as a sub-lessee. A perpetual sub-lease was executed in
favour of late Sh. B.L. Malhotra in 1983. The present suit revolves
around the said property, which was allegedly willed in favour of the
defendant nos. 1 and 2, and to the exclusion of the plaintiff. The
plaintiff has filed the present suit seeking declaration of the share of
the plaintiff in the suit property, while also declaring the Will of the
father of the plaintiff, and the subsequent conveyance documents of
the suit property, as void. Further, the plaintiff has also sought a
decree of permanent injunction, possession and partition of the suit
property.
PLEADINGS OF PLAINTIFF –
3. It is averred in the plaint that late Sh. B.L. Malhotra was
also a co-sharer along with his two brothers and a sister, of property
No. E-64, Moti Nagar, New Delhi which was originally acquired by
his father late Sh. Ladha Ram. This property was sold sometime
towards the end of the year 1986 or early 1987 for about Rs.9,00,000/-
to defendant no.3 or her husband, and late Sh. B.L. Malhotra got his
1/4th share of the sale proceeds. The plaint avers that late Sh. B.L.
Malhotra retired from service in the year 1978 and it was decided in
the year 1986 to develop the suit property. Consequently, construction
of a two and a half storey house was completed in 1987. The funding
of the construction was done by the sale proceeds of the ancestral
property No. E-64, Moti Nagar, New Delhi and the money received
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CHAUDHARY Date:
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by late Sh. B.L. Malhotra as terminal benefits upon his
superannuation.
3.1. The plaintiff has claimed that he also assisted his father
financially in the construction of the said house. Sh. B.L. Malhotra
died of renal failure on 01.04.1992. Smt. Vidyawanti, his wife, also
expired on 26.07.2000. It is mentioned that after the death of Sh. B.L.
Malhotra and Smt. Vidyawanti, the plaintiff and defendant nos. 1 to 3
became joint owners in possession of the suit property.
3.2. The case of the plaintiff is that neither Sh. B.L. Malhotra
nor his wife Smt. Vidyawanti had left behind any Will nor bequeathed
the said property in favour of any person during their life-times.
3.3. It is averred that the plaintiff is in a transferable job and
had been posted outside Delhi at various places during the last 25
years. After his return to Delhi post death of his mother on
26.07.2000, the plaintiff came to know that defendant nos. 1 and 2 had
been negotiating with proposed purchasers to dispose of the
undivided suit property. Despite requests of the plaintiff, the
defendants did not partition the suit property.
3.4. Consequently, the plaintiff served a legal notice dated
12.03.2001 to the defendants seeking partition of the suit property. In
reply dated 28.03.2001, the defendants disclosed about the Will of
January, 1992 of Sh. B.L. Malhotra wherein life interest was created
in favour of mother of the plaintiff and the ground floor of the suit
property was ultimately bequeathed to defendant no.2 and the 1 st and
2nd floors were bequeathed to defendant no.1. The reply to legal notice
further informed the plaintiff that the mother of the plaintiff, through
two duly executed and registered gift deeds, had gifted the groundCS SCJ No. 7364/2016 A.K. Malhotra Vs. Sarwan Kumar Malhotra & Ors. Page No.5 of 37
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CHAUDHARY Date:
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floor of the said property to defendant no.2 and the 1st and 2nd floors
thereof to defendant no.1. The reply to the legal notice further went on
to say that the suit property was converted from leasehold to freehold
and the ground floor of the suit property was mutated in the name of
defendant no.2 and the first and the second floors were mutated in the
name of defendant no.1. It was further disclosed that the suit property
has been sold to a third party who was also put in physical possession
thereof.
3.5. It is stated in the plaint that the alleged execution of the
said Will, Gift Deeds and Sale Deeds with regard to the suit property
is a result of a criminal conspiracy hatched by the defendants with the
malafide intention of defrauding the plaintiff by depriving him of his
legitimate 1/4th share in the suit property. It is claimed that the Will is
forged.
3.6. The plaint also avers that the alleged Will of late Sh. B.L.
Malhotra contains a recital that the plaintiff had out of love and
affection relinquished his claim in the suit property. However, in the
reply of the defendants to the legal notice of the plaintiff, it is
mentioned that the share of the plaintiff has been given to him. It is
mentioned that the mother of the plaintiff being semi-literate, could
not have executed gift deeds in English, and was even not competent
to execute such gift deeds as she was vested with limited estate in the
suit property. Further, the father of the plaintiff was himself seriously
ill prior to his death, and who had informed him about being
pressurized by the defendants to prepare a Will.
3.7. It is mentioned that the consideration in fact received by
defendant nos. 1 and 2 from the sale of the suit property was muchCS SCJ No. 7364/2016 A.K. Malhotra Vs. Sarwan Kumar Malhotra & Ors. Page No.6 of 37
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more than the one shown in the sale deeds. This is the gist of the plaint
filed by the plaintiff. In the plaint, the plaintiff has sought reliefs of
declaration, injunction, possession and partition.
PLEADINGS OF DEFENDANTS –
4. Summons for settlement of issues were issued to the
defendants. The defendants appeared and filed their respective written
statements.
4.1. In the written statement filed by defendant nos.1 and 2, it
is mentioned that after the demise of the father of the parties, the
plaintiff approached the Court after a period of 11 years, and the suit is
barred by limitation. It is mentioned that had the plaintiff instituted the
suit during the lifetime of his parents, then this parents would not have
supported the case of the plaintiff and only when the parents of the
plaintiff expired, he chose to file the suit. It is mentioned that the
plaintiff has not filed any evidence to corroborate his claims qua the
sale of property at E-64, Moti Nagar and to show construction of the
suit property with the sale proceeds of the Moti Nagar property.
4.2. It is alleged that the plaintiff has not approached the
Court with clean hands and has suppressed the material facts. It is
mentioned that after the retirement of Sh. B.L. Malhotra, in 1986, it
was decided that the suit property be developed. At that time, the
plaintiff had shown his inability to put up the necessary finances, and
on the contrary, the plaintiff asked for his share in the property
evincing a desire to purchase a separate accommodation. The plot was
valued and the plaintiffs’ shared was worked out at Rs. 1,10,000/-,
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which sum was paid to the plaintiff in cash in 1986 itself in the
presence of various family members and relatives.
4.3. It is further averred that the aforesaid amount of Rs.
1,15,000/- was used by the plaintiff to purchase a property bearing no.
PD-28, C, LIG Flats, New Delhi-34, in his wife’s name since plaintiff
already applied for an allotment in his name of a DDA flat. It is
mentioned that the suit property was developed by the defendants
no.1 and 2 from out of their own funds and resources. The
construction on the plot was commenced in October 1986 and was
fully completed in all respects in 1987. It is mentioned that since the
share of the plaintiff was already given to him, the Will was executed
by Sh. B.L. Malhotra and the plaintiff was aware about the Will.
4.4. It is mentioned that the plaintiff was well aware about the
change of ownership of the suit property and it is mentioned that the
plaintiff has failed to show that the nature of the property was
ancestral. It is further stated that the suit of the plaintiff is liable to be
dismissed as the plaintiff is not in the possession of the suit property
and the court fee has not been paid according to the market value of
the property and the relief claimed. It is also mentioned that the suit is
barred as it is above the pecuniary jurisdiction of this Court, as the
plaintiff has himself admitted that the value of the suit property is
above Rs. 55 Lakhs. The assertions of the plaintiff on merits have
been denied. This is the gist of the written statement filed by the
defendant nos. 1 and 2.
5. A separate written statement has been filed by the
defendant nos. 4 and 5, wherein it is averred that the relief claimed in
the above suit is undervalued. It is stated that the suit property was
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self-acquired property of the deceased owner and the plaintiff does
not have any locus standi to file the present suit. It is mentioned that
the defendants are bonafide purchasers of the suit property. The
allegations on merits have been denied.
6. A replication has been filed by the plaintiff to the written
statements. In the same, the allegations of the defendants have been
denied.
POINTS FOR DETERMINATION –
7. Issues were framed in this case vide order dated
15.02.2011. The points for determination before this Court are as
follows –
I. Whether the present suit is not maintainable being barred
by limitation? OPD
II. Whether the plaintiff has not come before the court with
clean hand and has suppressed the material facts? OPD
III. Whether the present suit is bad for misjoinder and non-
joinder of necessary parties? OPD
IV. Whether the plaintiff is entitled for the relief of
declaration, as prayed? OPP
V. Whether the plaintiff is entitled for the recovery of
possession, as prayed? OPP
VI. Whether the plaintiff is entitled for the relief of
permanent injunction, as prayed? OPP
VII. Relief.
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DEV CHAUDHARY
CHAUDHARY Date:
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EVIDENCE –
8. Both the sides have led evidence in this case to prove
their rival stands. The plaintiff has led the following oral and
documentary evidence in order to prove his case –
ORAL EVIDENCE
PW-1 : A.K. Malhotra (plaintiff)
B.N. Srivastava (handwriting
PW-2 :
expert)
PW-3 : Priya Yadav (official witness)
DOCUMENTARY EVIDENCE
Ex. P : Evidence affidavit of PW-1
Ex. PW1/1 : Certified copy of Lease Deed
Ex. PW1/2 : Certified copy of GPA
Ex. PW1/3 : Certified copy of Sale Deed
Form “C” issued by DDA on
Mark A :
18.12.1986
Form “D” issued by DDA on
Mark B :
08.10.1987
Office copy of leave applications
Ex. PW1/4 &
: dated 05.09.1991 and
Ex.PW1/5
15.02.1992
Copy of death certificate of
Ex. PW1/6 :
deceased late Sh. B.L. Malhotra
Ex. PW1/7 : Legal notice dated 12.03.2001
Ex. PW1/8 : Reply to legal notice
Ex. PW1/9,
Ex.PW1/10 & Certified copies of alleged Will
:
Ex.PW1/11 and two Gift Deeds.
(Colly)
Ex. PW1/12 & Certified copy of two Sale Deeds
:
Ex.PW1/13 in favour of defendants no.4 & 5.
Copy of Conveyance Deed
Ex.PW1/14 : executed by DDA on 16.12.1996
in favour of his mother.
Ex. PW2/A : Evidence affidavit of PW-2
Ex.PW2/1 : Report filed by PW-2
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CHAUDHARY Date:
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Ex.PW2/2 to
: Photographs filed by PW-2
Ex.PW2/40
Ex.PW2/41 Negatives of photographs filed
:
(Colly) by PW-2
Ex. PW2/42 : Additional report filed by PW-2
Enlarged photograph of alleged
Ex. PW2/43 :
Will.
: Original certificate of PW-2 by
Ex.PW2/DA (1
Delhi University in forensic
& 2) (OSR)
science
Ex. PW3/1 Copy of conveyance Deed dated
:
(OSR) 16.02.1996.
Ex. PW3/2
: Copy of Letter dated 14.02.1996
(OSR)
Copy of letter dated 02.01.1996
regarding mutation of plot
Ex. PW3/3
: no.B-12, MCI, CHBS Ltd.,
(OSR)
Pushpanjali Enclave, Pitam
Pura, New Delhi
9. In order to disprove the case set up against them, the
defendants have led the following oral and documentary
evidence in this case –
ORAL EVIDENCE
DW-1 : Daman Malhotra (defendant)
DW-2 : Kamlesh Sodhi (defendant)
DW-3 : Pradeep Gupta (witness of Will)
DW-4 : Sevajit (official witness)
Syed Faisal Huda (handwriting
DW-5 :
expert)
DW-5 : Anil Kumar (defendant)
M.L. Malhotra (witness to
— :
transaction)
DOCUMENTARY EVIDENCE
Ex. DW1/X : Evidence affidavit of DW-1
Ex. DW1/Y : Additional affidavit of DW-1
Ex. DW1/1 : DiaryCS SCJ No. 7364/2016 A.K. Malhotra Vs. Sarwan Kumar Malhotra & Ors. Page No.11 of 37
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Ex. DW1/1 : Affidavit of M.L. Malhotra
Ex. DW1/2 to Appointment letters of
:
Ex.DW1/3 defendant no.2.
Copy of passport of defendant
Ex. DW1/4 :
no.2
Copy of NRI Passbook of
Ex.DW1/5 :
defendant no.2.
Document pertaining to
spending amount by defendant
no.2 shown in other Indian
Ex. DW1/6 :
account of defendant no.2 of
State Bank of India for raising
building.
Proof regarding Bank account of
Ex. DW1/7 : defendant no.2 in State Bank of
India.
Pertaining to purchase material
Ex. DW1/8 (33
: by defendant no.2 for raising
leaves)
building.
Documents pertaining to
Ex. DW1/9 to deceased mother of defendant
:
Ex.DW1/10 no.2 showing her as his wife’s
dependent.
Photo state copy of CGHS
showing mother as dependent
Ex. DW1/11 : for medical aid of defendant
no.2’s wife (Original returned to
department)
Documents regarding giving
Ex. DW1/12 : blood to mother by defendant
no.2.
Photo state copy of independent
Ex. DW1/13 :
card of her mother.
Evidence affidavit of
Ex. DW2/A :
DW-2/Smt. Kamlesh Sodhi.
Evidence affidavit of Sh.
Ex. DW3/A :
Pradeep Gupta.
Ex.DW4/A : Certified copy of Will
Ex. DW1 & Detailed report of DW-5
:
2/5/A (Colly) (forensic expert)
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DEV CHAUDHARY
CHAUDHARY Date:
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Evidence affidavit of defendant
Ex. DW5/A :
no.5/Sh. Anil Kumar.
Rent agreement (in cross
Mark A :
examination of PW1)
Rent agreement (in cross
Mark B :
examination of PW1)
10. A detailed discussion on the evidence led in this case by
both sides has been done in the latter part of this judgment. It is also
pertinent to note the defendant no. 3 was proceeded ex-parte in this
case, vide order dated 20.07.2001, however, she has appeared as a
witness in this case for the defence.
ARGUMENTS –
11. I have heard learned counsel appearing for the parties at
length, spread over many hearings. I have also given my thorough
consideration to the material appearing on record.
12. It has been argued by the learned counsel for the plaintiff
that the plaintiff has proved his case on the requisite threshold. He has
argued that the present suit is a classic example of how two conniving
brothers have ousted the third brother from his lawful share in the
property of their father by preparing chains of forged documents,
including Will and gift deeds etc. It is argued that the suit property
was developed after selling ancestral property and the character of
this property was also coparcenary property. It is argued that the
plaintiff has shown from record that the Will has been forged, as there
is no date mentioned on the Will, the photograph is superimposed, the
original was never produced and the Will was not given effect to. It is
argued that the gift deed is itself against law as the mother of theCS SCJ No. 7364/2016 A.K. Malhotra Vs. Sarwan Kumar Malhotra & Ors. Page No.13 of 37
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parties did not get absolute ownership of the property, when she was
given only a life estate in the suit property. Learned counsel has
argued that the witnesses of the defendant are not reliable, and there
are glaring inconsistencies in the testimony of these witnesses. It is
argued that the issue of jurisdiction has been decided by the Court in
this case and it cannot be re-opened at this stage. Further, it is
contented that the matter is within limitation and the factual
foundation in this regard has been laid down by the plaintiff. Learned
counsel has relied upon Neelam Batra vs. Rakesh Bhatia 2014 SCC
OnLine Del 332, Ranvir Dewan vs. Rashmi Khanna AIR 2018 SC 62
and Golap Borah vs. Korneswar Borah AIR 2015 Gau. 99 in support
of his contentions. As such, it is prayed that the suit be decreed.
13. Per contra, learned counsel for the defendant nos. 1 and 2
has argued that the suit of the plaintiff is liable to be dismissed. It is
argued that the suit has been filed after a delay of more than 8 years
pursuant to the Will and death of the father of the parties, and the same
is barred by law of limitation and doctrine of delay and latches. It is
argued that the Will, and its execution, has been proved by the
defendants. As per him, there is no doubt qua the Will in question and
the plaintiff is only trying to grab the property which he could not
have taken during the lifetime of the parents. It is argued that the
plaintiff had earlier taken his share in the property but now by filing of
the suit, is trying to take what is not his. It is argued that the expert
witness of the defendant has followed proper procedure and the
expert witness of the plaintiff is not reliable. Further, the witnesses
deposed cogently about the case and they can be relied upon by this
Court. As such, it is prayed that the suit be dismissed.
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14. Learned counsel for the defendant nos. 4 and 5 has
argued that the defendants are bonafide purchasers, who have
purchased the suit property for consideration, and are in possession of
the same. It is argued that the suit is not maintainable before this
Court, and it is required to be dismissed. Further, it is argued that the
suit property was self-acquired property of the deceased owner, and it
was not a coparcenary property, as is evident from the material on
record. He has relied upon Zahoor Ahmed vs. Rakhi Gupta 188
(2012) DLT 9 in support of his contentions. As such, he also prays that
the suit be dismissed.
ANALYSIS –
ADDITIONAL ISSUES –
15. At the time of addressing final arguments, learned
counsel for both sets of defendants have argued that additional issues
are required to be framed in this case on the aspect of pecuniary
jurisdiction and Court fee. It is argued by the learned counsel for the
defendants that the suit of the plaintiff is beyond the pecuniary
jurisdiction of this Court as the plaintiff himself has averred in the
plaint that the value of the property in question is about Rs. 55 Lakhs,
as it is mentioned that the suit property could have easily fetched
more than ten times the value of the sale deeds. It is argued that at the
time of deciding the application filed under Order VII Rule 11 CPC,
this issue was kept open by the Court and it was observed that an issue
in this regard shall be framed.
16. Per contra, it is argued by the learned counsel for the
plaintiff that this issue has been agitated by the defendants till the
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Hon’ble High Court and there is no requirement to frame any
additional issue at this stage of judgment.
17. In this regard, in the plaint, the plaintiff has averred that
the value of the suit for purpose of jurisdiction is fixed at more than
Rs. 1,00,000/- as the estimated value of the 1/4th share of the plaintiff
in the property on basis of sale deeds is Rs. 1,38,000/-. Court fee has
been annexed accordingly for the reliefs sought by the plaintiff. It is
seen that after the institution of the suit, the defendant no. 2 had filed
an application under Order VII Rule 11 CPC agitating the issues of
limitation, court fee, pecuniary jurisdiction etc. This application came
to be disposed of vide order dated 02.12.2004 of the learned
Predecessor of this Court, wherein it was mentioned that these issues
can be decided after trial and it was mentioned that since the
objections in the application were already taken by the defendant no.
2 in the written statement, a specific issue will be framed on this point.
The application of the defendant under Section 114 CPC read with
Order 47 CPC for reviewing this order was also dismissed vide order
dated 12.09.2005 of the learned Predecessor of this Court. It was
observed in this order that even if the contention of the defendant
regarding value of sale deeds being Rs. 5,50,000/- is taken to be true,
then also the case was covered under a judgment of the Hon’ble High
Court of Delhi, which has been quoted in the order.
17.1. Another attempt was made by the defendant nos. 4 and 4
by filing an application under Order VII Rule 10 CPC on similar
grounds. The defendant no. 2 had filed an application seeking review
of the order dated 12.09.2005, as mentioned above. However, both
the applications also came to be dismissed vide order dated
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19.01.2011, while observing that the suit cannot be said to be barred
by pecuniary jurisdiction, on the basis of the plaint.
17.2. Pursuant thereto, issues in this case were framed on
15.02.2011, and no issue of jurisdiction and court fee was framed.
After framing of issues, further attempts were made by the defendants
in this case to agitate the issues of pecuniary jurisdiction and court
fee. The defendant no. 1 and 2 thereafter filed another application
under Section 9/10 of the Court Fees Act and under Section
6/9/15/151 CPC read with Order VII Rule 10 CPC. Another
application was filed by the defendant nos. 4 and 5 under Order 14
Rule 5 CPC seeking framing of additional issues of valuation, court
fee and pecuniary jurisdiction.
17.3. Vide order dated 26.05.2011, the application for framing
of additional issues was dismissed while observing that these issues
have already been decided vide detailed orders. Qua the other
application, the learned predecessor of this Court vide order dated
01.08.2012, after hearing arguments prior thereto, observed that the
since the issue has already been dealt with, it shall not be adjudicated
upon again.
17.4. The order dated 26.05.2011 was challenged before the
Hon’ble High Court. Vide order dated 24.01.2012, the application
was dismissed by the Hon’ble High Court, while observing that this
issue has been dealt with in detail and there is a categorical finding
that the suit cannot be said to be barred by pecuniary jurisdiction. It
was observed that the said order had attained finality. With regard to
the issue of valuation, various orders of this Court were highlighted
and it was observed that even in the written statement, only a casual
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mention of this issue was made. The application was thus dismissed
by the Hon’ble High Court with costs.
17.5. From the above narration of the case proceedings in this
case, it is clear that both the issues of pecuniary jurisdiction and court
fee have been dealt with, decided, reagitated and decided against the
defendants by this Court and Hon’ble High Court. Therefore, there is
no ground to frame and additional issue at this stage qua these aspects,
and the contentions of the defence in this regard are liable to be
rejected.
ISSUE NO. (I): LIMITATION –
18. The onus to prove this issue was upon the defendants.
Learned counsel for the defendants have argued that the suit is barred
by limitation as the plaintiff has approached the Court in the year
2001, to challenge the Will executed in the year 1992. It is argued that
there is unexplained delay on 9 years in filing of the suit.
19. In this regard, it is observed that in the plaint itself, the
plaintiff has highlighted that he came to know about the existence of
the Will vide the reply to the legal notice dated 28.03.2001. He has
narrated that the factual foundation that led to this notice by stating
that after the death of his mother, he came to know that the defendant
nos. 1 and 2 were negotiating with potential buyers. He asked them to
partition the suit property and sent a legal notice in this regard, after
they failed to pay heed to his requests. In reply to his notice, he was
informed about the factum of existence of Will and the fact that the
property has been sold further.
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20. The evidence of the plaintiff PW1 is on similar lines. He
has deposed about first knowing about the factum of existence of the
Will after receiving reply to his legal notice. The witness has been
cross examined on this aspect and he has stood his ground in this
respect. He has deposed that he also came to know about the
substitution of the property after he received reply to his legal notice.
He deposed that his father had informed him in September, 1991
about the fact that the defendant nos. 1 and 2 were compelling him to
make a Will in their favour but he had refused. However, there is
nothing in the evidence of the plaintiff PW1 to suggest that he was
aware of the existence of the Will prior to the date as mentioned by
him in his evidence.
21. The defendants DW1 (Sh. Daman Malhotra) and DW2
(Smt. Kamlesh) have deposed that the plaintiff was aware about the
existence of the Will but there is no corroboration to this assertion. As
such, from the evidence on record, it cannot be said that the suit of the
plaintiff is barred by limitation. After becoming aware about the
existence of the Will in the year 2001, the present suit was filed in the
same year.
22. Therefore, the defendants have failed to prove this issue
and the same is decided in favour of the plaintiff. The suit of the
plaintiff is held to be not barred by the law of limitation.
ISSUE NO. (II) TO (VII) –
23. Since all the other issues are so intertwined that they
cannot be discussed in isolation, in order to avoid duplication in
discussion on same set of evidence, and in order to justly decide the
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issues at hand, all the remaining issues are being dealt with together in
the following paragraphs. However, the discussion has been
categorized by headings, and the onus upon a particular party qua any
specific issue has been discussed, where required.
NATURE OF PROPERTY –
24. Before adverting to the Will in question, it is apposite to
ascertain the nature of property in question. While the claim of the
plaintiff is that the suit property was constructed from the sale
proceeds of the joint family property at Moti Nagar, the claim of the
defendants is that the property in question was self-acquired property
of the deceased owner, and he was free to dispose it in any way he
deemed fit. Evidence has been led in this case to corroborate the rival
claims.
25. The version of the plaintiff PW1 is that the property
bearing no. E-64, Moti Nagar, Delhi was jointly owned by his father,
his two brothers and one sister, and the said property was joint family
property. It is mentioned that the said property was sold in 1987 to the
brother of the brother-in-law of the plaintiff (husband of defendant
no. 3) for a consideration amount of Rs. 9,00,000/-. However, in the
sale deed, the consideration amount was shown as Rs. 2,70,000/-. He
has claimed that the funding for the construction of the suit property
was done from the sale proceeds of the Moti Nagar property. The
plaintiff has also filed record of the sale deeds in this regard.
26. However, the sale deed Ex. PW1/3 clearly mentions that
the property has been sold by three persons including the father of the
plaintiff for a total consideration amount of Rs. 2,70,000/- Ocular
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evidence to the contrary is barred in terms of Section 92 of the Indian
Evidence Act, 1872, since the plaintiff is representative in interest of
party to the document. Further, apart from bald assertion, the plaintiff
has not led any evidence to show that the sale consideration was Rs.
9,00,000/- and not Rs. 2,70,000/-. There is further no evidence to
show how much amount was received by the father of the plaintiff
from this total amount. During cross examination, the plaintiff PW1
could not depose about the chain of ownership of the property, and no
documents qua the same were produced. He also admitted that the
said property was sold to his real sister (defendant no. 3), amongst
others, and also admitted that he has no proof of the property being
sold for Rs. 9,00,000/-.
27. During cross examination, the plaintiff PW1 has
categorically admitted that the suit property is the self-acquired
property of his father and the entire consideration amount in
purchasing the suit property was paid by his father. He has failed to
prove that the suit property was constructed out of the funds received
from the sale of the other property at Moti Nagar. There is no evidence
regarding the amount received by the father of the plaintiff and that
the said amount was utilized by him in construction of the suit
property. The cross examination of the defence witnesses DW1 and
DW2 on this aspect does not help the plaintiff. DW1 has admitted that
1/5th share was received by his father and has also admitted that there
is no documentary proof of division of sale proceeds. However, this
fact in itself also does not prove the case of the plaintiff.
28. There is yet another aspect to this issue. This is regarding
the contribution in the construction of the suit property. The plaintiff
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PW1 has asserted in his evidence by way of affidavit that he had also
assisted his father financially in the construction of the suit property.
However, during cross examination, he deposed that he had given a
very small amount of Rs. 13,500/- in raising the construction over the
suit property. For this, he did not have any documentary evidence.
Pertinently, he deposed in cross examination that he had disclosed
about his contribution in the construction of the suit property in his
service records. However, no such service record of the plaintiff was
summoned or produced by the plaintiff in order to corroborate his
claims. This evidence could have given the much required
corroboration to the plaintiff.
29. However, on the contrary, the defendants have led some
evidence to show that they had contributed to the construction of the
suit property. The defendant DW1 has deposed that an amount of Rs.
4,60,000/- was spent in the construction of suit property and out of the
same, he had spent Rs. 2,10,000/- and the other defendant no. 1 had
spent the remaining amount. He has also filed proof of his bank
account statements, and the amounts reflected therein generally
depict that the witness had decent financial capacity way back in the
1980s. Ex. DW1/2 is the appointment letter of the witness in the year
1983, whereby his salary at that time was ID 175 (I asked Artificial
Intelligence tool ChatGPT to convert 175 Iraqi Dinar at that time into
INR and the answer was Rs. 1400-1750/- in 1983. ChatGPT also
mentions that this salary would have been a decent middle-class
salary in those days). He has also filed proof of bills pertaining to
Timber Store qua the suit property, issued in his name. Thus, there is
sufficient material on record to suggest that the witness had ample
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funds and had contributed towards the construction of the property.
The plaintiff has not been able to challenge the same during the cross
examination of this witness. Infact, during cross examination, the
plaintiff has admitted that defendant no. 2 monitored the construction
over the suit property.
30. Similarly, it is borne from record that the defendant no. 1
also used to work in the United Nations institution, UNICEF, and was
well placed. Therefore, it can be safely held on the basis of the above
discussion that the plaintiff has failed to prove that the nature of the
suit property is ancestral property. I find that the suit property was
self-acquired property of the deceased, and the defendants had
contributed to the construction of the same. However, there is no
evidence to show that the plaintiff had contributed to the construction
of the suit property. That being so, the deceased was free to dispose of
the property in any manner deemed fit by him.
PROOF OF WILL –
31. The root cause of the present dispute is the Will in
question, which has been purportedly executed by late Sh. B.L.
Malhotra. The law with regard to proof of Will is well settled. Section
63 of the Indian Succession Act, 1925 read with Section 68 of the
Indian Evidence Act, 1872 governs the proof of Wills in any case.
32. It is settled law that the onus to prove a Will lies on the
propounder of the Will. However, once the said Will is challenged on
the ground of force, fraud etc., it is upon the person alleging these
facts to demonstrate the same. The propounder then has to dispel the
suspicious circumstances that have been raised surrounding the Will.
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Additionally, the requirement of law to prove a Will is that atleast one
attesting witness is required to prove the Will. The propounder has to
prove the testamentary capacity and the due execution of the Will.
Reference may be made to H. Venkatachala Iyengar vs. B.N.
Thimmajamma AIR 1959 SC 443 and Bharpur Singh vs. Shamsher
Singh AIR 2009 SC 1766 in this regard. It is in light to these
principles it is to be decided if the Will has been proved in this case or
not.
33. The propounder of the Will in this case are the
defendants. The defendants have led evidence to prove the Will of late
Sh. B.L. Malhotra in this case. It is an admitted fact that the original
Will has not been produced in this case. During hearing of this case,
the plaintiff filed an application under Order 11 Rule 12/13 CPC
seeking production of the original Will from the defendants.
However, vide affidavits filed on 12.05.2008, the defendant nos. 4
and 5 and vide affidavits filed on 30.05.2008, the defendant nos. 1 and
2 have declared that they are not in possession of the original Will.
During the cross examination of DW1, he deposed that the Will was
in possession of his mother.
34. Since the Will was a registered Will, the same has been
requisitioned from the office of the Registrar by the defendants. DW4
is the Record Attendant from the Department of Archives, Delhi, who
has produced on record the office copy of Will, which was registered
in the office on 28.02.1992. Thus, the mode of proof of the Will is
proper in this case, despite the fact that the original Will is lost. In
such circumstances, any secondary evidence of the Will is admissible
in evidence, and certified copy of the same from the office of the
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Registrar is admissible evidence. Refer: Dhanpat vs. Sheo Ram 2020
INSC 316 in this regard.
35. In view of the requirement of law that atleast one
attesting witness has to be produced before the Court to prove a Will
(as per Section 68 of the Indian Evidence Act), the defendants have
produced the witness Sh. Pradeep Gupta, Advocate, as DW3. He has
entered into the witness box and has deposed that he became
acquainted with Sh. B.L. Malhotra in the year 1985 and had visited
his house on some occasions. Sh. Sushil Gupta, who was well known
to him, was also found at the house of Sh. B.L. Malhotra. He has
deposed that in last week of February, 1992, Sh. B.L. Malhotra
expressed his desire to execute a Will, which he had already prepared,
and then the Will has read by him to the witnesses, and signed by him.
Thereafter, the witnesses signed the same. He has deposed that the
Will was registered at the office of the Sub-Registrar on 28.02.1992.
He has deposed that the deceased was of sound mind at that time.
36. In cross examination, the witness has been asked about
his relations with the deceased, and he has deposed about being on
friendly terms with the deceased, while admitted that the deceased did
not introduce him to his children and did not invite him for family
functions. He admitted that the house of the other witness, who later
became a Member of Parliament of Rajya Sabha, was next to his
house. He deposed that he was not aware about any renal disease of
the deceased, and whether he was on dialysis or not.
37. In my opinion, the witness has deposed cogently about
the due execution of the Will, and the fact that the deceased was of
sound mind. Merely because the deceased did not make him meet his
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other family members is not a ground to disbelieve his testimony.
Nothing has been brought out from the deposition of this witness to
challenge the factum of execution of the Will. Learned counsel for the
plaintiff has argued that it unlikely that a person who is nearing 80
years of age will be friends with a person of 32 years of age. Human
relations are dynamic, and categorizing such relations as abnormal,
without any basis, cannot help the plaintiff. The witness has admitted
that he was not involved in personal matters of the deceased, and
being an Advocate, it cannot be assumed that the deceased asking him
to be a witness to the Will was out of ordinary. Suggestion has been
given to this witness that he had taken someone to the office of the
Sub-Registrar, who had impersonated as the deceased. However, all
these allegations have remained unproved in all respects by the
plaintiff. There is nothing on record to suggest that the Sub-Registrar
did not verify the identity of the deceased or was misled during the
said process.
38. On the basis of the above, I find that the propounder of
the Will, i.e. the defendants have successfully proved the due
execution of the Will.
SUSPICIOUS CIRCUMSTANCES –
39. The plaintiffs have raised various arguments to show that
the Will is surrounded by suspicious circumstances, which throw a
doubt upon the genuineness of the Will itself. It is argued by the
learned counsel for the plaintiff that the Will of the deceased has been
forged and fabricated, and the evidence on record itself makes the
Will doubtful.
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40. The major suspicious circumstances, which have been
highlighted by the plaintiff, have been highlighted below, and dealt
with separately –
A. Reason for excluding the plaintiff.
B. Testamentary Capacity of the deceased.
C. Handwriting and Photograph.
41. Reason for excluding the plaintiff – This is the main
ground espoused by the learned counsel for the plaintiff. It is argued
that there was no reasonable basis for excluding the plaintiff from the
inheritance of the deceased. It is mentioned that while the defendants
have claimed that the plaintiff was given his share of the property, no
such mention has been made in the Will. Per contra, it is argued by the
learned counsel for the defendant no. 1 and 2 that the plaintiff was
earlier given his share, and there was valid basis for excluding him
from the inheritance of the property.
41.1. In this regard, it is to be noted at the outset that the suit
property was the self-acquired property of the deceased, as held
above. A person is free to will away his property in whatever manner
he deems fit. It may be the case that out of the legal heirs, he may wish
to exclude any legal heir, without stipulating any reason in the Will.
Infact, the whole purpose of a Will is to alter the natural line of
succession in case of intestate death. In the present Will, the relevant
portion reads as under –
“I have another son named Mr. Ashok Kumar Malhotra resident of
PO Block Flat No. 28C, Pitam Pura, Delhi 110034 and present
working in Dev. Commissioner of Handicrafts Carpet division
Varanasi who is well settled in life and has relinquished the claim on
the said property out of love and affection and who has been
considerably compensated out of my savings during my earning time
will not have any claim on the aforesaid property in any respect.
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(hereinafter shall mean and include his heirs, successors, legal
representatives and assignees respectively)”
Thus, the testator of the Will has duly given his reasons for excluding
the plaintiff from the inheritance. He has mentioned that the plaintiff
has relinquished his share and has otherwise been duly compensated
by the testator. This is the version of the defendants as well. Merely
because the testator has not mentioned that the plaintiff was given his
share out of the property is of no consequence as the testator has duly
mentioned that the plaintiff has relinquished his share. There is no
requirement to write detailed reasons, highlighting each event, in
order to exclude an heir.
41.2. It is the case of the defendants that when it was decided
by the family to construct the suit property, the deceased Sh. B.L.
Malhotra had called his sons and asked them for financial support.
However, since the plaintiff refused to do so, his share was valued at
that time and an amount of Rs. 1,10,000/- was given to him.
41.3. DW1 is the defendant, who has deposed to this effect
from the witness box. He has deposed that qua the share of the
plaintiff in the property, in February 1987, he was given Rs.
1,10,000/- for purchase of a flat in the name of his wife, and Rs.
5,000/- for booking amount of a flat in the name of the plaintiff at
Janakpuri. He has deposed that a meeting of the family took place at
E-64, Moti Nagar in the year 1986 in the evening. However, he did
not remember if his uncle Sh. Mukund Lal Malhotra was present or
not in the meeting. He deposed that his parents, three brothers and
sister were present in the meeting. As per him, it was decided in the
meeting that the plaintiff will get a flat and the plot would go to the
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other two brothers. The witness was cross examined regarding the
term “relinquished out of love and affection” as mentioned in the Will
and he deposed that the payment was given to the plaintiff as his
father wanted to give the plaintiff his share being the third son.
41.4. I find that the witness has given cogent explanations to
the questions put to him. Apart from him, defendant no. 3, although
ex-parte, has examined herself as DW2. She has also deposed about
the meeting taking place and the fact that Rs. 1,10,000/- was given to
the plaintiff in lieu of his share in the suit property, apart from an
amount of Rs. 5,000/- for booking a flat. The witness also deposed
that the meeting had taken place in the Moti Nagar house. She also
deposed that some other persons were present in the meeting, which
included her husband. Her husband asked her not to claim any share
in the property. The witness did not mention about the presence of Sh.
Mukund Lal Malhotra, but she has deposed that she did not remember
as to who else was present in the meeting.
41.5. This Court cannot lose sight of the fact that the witnesses
in this case have been cross examined decades after the events took
place. As per record, the family meeting is stated to have taken place
in the year 1986 and the witnessed were cross examined in the year
2019, i.e. after 33 years of the said meeting. With passage of such long
time, a witness cannot be expected to depose with sharp clarity about
the events that took place. Thus, the differences in narration about the
meeting can be attributed to the delay in examination of these
witnesses in Court. On similar grounds, merely because these
witnesses have deposed differently about the time when the money
was handed over to the plaintiff cannot be the sole ground to
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disbelieve their testimonies. Both the witnesses have deposed about
the amount given to the plaintiff and the purpose for which the said
amount was given. Another witness to the family meeting is Sh. M.L.
Malhotra, whose examination de bene esse under Order 18 Rule 16
CPC was allowed by the Hon’ble High Court vide order dated
28.10.2005 even before issues were framed in this case, keeping in
view his advanced age and ailments. This witness was examined by
the Local Commissioner, and he deposed that the deceased had paid
the plaintiff Rs. 90,000/- and Rs. 25,000/- in respect of his share in the
suit property. However, the witness did not remember most of the
details and deposed that this money was given perhaps in 1985 or
prior to that.
41.6. Moreover, I find that the version of these witnesses is
corroborated from the version of the plaintiff himself. The plaintiff
PW1 has admitted during his cross examination that his father wanted
to raise construction in the year 1986. He has categorically admitted
that his wife had purchased a flat in the year 1987 and his had also
applied for a DDA flat at Janakpuri. He has also admitted that he had
purchase his flat in the year 1987. Thus, it is an admitted position of
the plaintiff that right after the father of the plaintiff had expressed his
desire to construct the suit property, he and his wife had purchased
two properties. This fact lends corroboration to the claim of the
defendants that the money given to the plaintiff was used by the
plaintiff to purchase the two properties. No evidence to the contrary
has been led by the plaintiff in this case.
41.7. Learned counsel for the plaintiff has argued that in the
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one point stated that the plaintiff has been given Rs. 1,10,000/- as his
share in the suit property while at other point in the same notice have
claimed that the amount is Rs. 1,15,000/-. In my opinion, this
inconsistency is minor, and the amounts have been explained
cogently by the witnesses during the evidence. The cross examination
of the witnesses has not elicited any such strong facts which would
throw a doubt on their version in this regard. Further, the fact that
there is no written receipt or document regarding payment to the
plaintiff is not a reason to disbelieve the defendants as the transaction
took place between a father and son, and it is plausible that given the
blood relation between the parties, no documentary evidence was
prepared.
42. Testamentary Capacity of the deceased – The
propounder of the Will has to prove that the testator was of sound
mind and was capable of understanding the contents of the Will. In
this regard, as discussed above, the evidence of the witness to the
Will, PW3 has proved that at the time of execution of the Will, the
testator had read over the Will and had executed the same. The
contention of the plaintiff is that at the time of the Will, the testator
was in semi-conscious state and could not have executed the Will.
42.1. In this regard, the plaintiff has claimed that in 1991, his
father started having health problems, and he was diagnosed with
kidney failure. He has deposed that he came to Delhi on 17.02.1992
and stayed till 21.02.1992, as his father was seriously ill. He has
deposed that his father was semi-conscious, and he came to know that
after his return to Varanasi on 24.02.1992, his father slipped into coma
and did not regain consciousness. However, during cross
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examination, he admitted that he did not have any medical proof to
show that his father was semi-conscious and then slipped into coma.
No witness has been brought to the stand by the plaintiff in order to
establish this claim. The defendant DW1 has been cross examined by
the plaintiff in this regard, and he has deposed that his father was ill
but not seriously ill. He deposed that his father did not undergo
dialysis. However, DW2 has deposed differently. She has deposed
that her father was on dialysis due to renal problem and went into
coma before his demise. However, she explained that the Will was
executed before he went into coma. Without any medical evidence to
corroborate the claim of the plaintiff, this Court cannot assume the
date of which the father of the plaintiff slipped into coma, if at all. The
only direct evidence is that of the witness to the Will, who has not
deposed about the incapacity of the testator. Thus, I find that the
testator had testamentary capacity at the time when the Will was
executed.
43. Handwriting and Photograph – Both the parties have led
evidence of expert witnesses in this case. The plaintiff has examined
PW2, who has tendered into evidence his report and has opined that
the signatures of the deceased Sh. B.L. Malhotra on the Will in
question do not match with his admitted signatures. The report of the
witness majorly mentions that there are no natural tremors in the
signatures upon the Will as these show defects of imitation forgery
like unnatural pen lifts, re-touching, hesitation, tremors etc. It is
mentioned that the writer has a unique way of writing “w” and the
slant is more in the disputed signatures. Further, there is clear “B”
type formation in the start of the admitted signatures, which is not true
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in the disputed signatures. During cross examination, the witness has
claimed that he had examined the original record from the office of
the Sub-Registrar, but no application or other record was produced to
corroborate this claim. He admitted that he did not inspect the Court
record. He admitted that minor variations may occur due to poor
health and mental illness, but the manner of execution remains the
same. He deposed that there is apparent difference in the relative
sizing, positioning and spacing in the disputed and admitted
signatures but failed to supplement this answer with measurements
etc.
43.1. DW5 is the expert witness of the defendants, who has
tendered into evidence his report, which mentions that he has
inspected the Court file and has also inspected the diary of the
deceased, which has been tendered into evidence. His report mentions
that the disputed and admitted signatures have been done by the same
person. It is mentioned in the report that the signatures have been
done with wrist cum forearm movement of hand due to fair degree of
writing speed, fine edges of strokes and well-defined formation of
letters. It is mentioned that the line quality is smooth for both sets of
signatures, and there are no un-natural pen pauses, pen lifts, tremors
etc. The writing speed is rapid, the writing skill is of superior order,
the alignment is of ascending order, the degree of slant is found in
backward order and both sets of signature have natural variations. He
has also highlighted the individual characteristics of “W” like
formation, manner and execution of the letter “a”, “l” and “h”. He has
also compared the signatures with the letters as appearing in the
writing of the deceased.
CS SCJ No. 7364/2016 A.K. Malhotra Vs. Sarwan Kumar Malhotra & Ors. Page No.33 of 37
Digitally
signed by
DEV
DEV CHAUDHARY
CHAUDHARY Date:
2025.01.20
10:43:16
+0530
43.2. During cross examination, he deposed that he has not
visited the Sub-Registrar or DDA office and has taken photographs of
the documents on record. He deposed that comparable letters present
in the signatures can be tallied from the handwriting. However, he
deposed that the client informed him about the writing of Sh. B.L.
Malhotra in the diary and stated that he had examined the diary and
had found that disputed signatures match with the handwriting.
43.3. In this regard, it is noted that both the witnesses have
given their opinions on basis of their examination. It is settled that the
evidence of a handwriting expert is of inherently weak quality and it
cannot be relied upon, without corroboration. The witness tends to
favour the party calling him to the stand. In this case, as noted above,
there is direct evidence of the witness who has seen the deceased
execute the Will. The Will is a registered document, and as per the
endorsement behind the Will, the deceased had got it registered before
the Sub-Registrar. It is also an admitted fact that the Will was
executed in the year 1992 and the perpetual lease, which is basis of the
comparison by the witnesses, was executed in the year 1983. Thus,
there was difference of more than 9 years in the two signatures
examined by the witnesses and given the fact that the testator was
ailing at the time when the Will was executed, it is natural for
variations to occur in the signatures of the person.
43.4. There are deficiencies in the deposition of both the
expert witnesses. While the witness of the plaintiff has not shown any
document to show that he had infact taken pictures from the official
records, the witness of the defendants has also compared evidence
from the writing in the diary of the deceased, which cannot be said forCS SCJ No. 7364/2016 A.K. Malhotra Vs. Sarwan Kumar Malhotra & Ors. Page No.34 of 37
Digitally
signed by
DEV
DEV CHAUDHARY
CHAUDHARY Date:
2025.01.20
10:43:15
+0530
certain contained only the writing of the deceased. However, on bare
perusal of the signatures, no un-natural pen-lifts, retouching,
hesitations and tremors can be seen in the signatures on the Will, as
claimed by the witness of the plaintiff. Thus, this circumstance has
been explained by the defendants by leading direct evidence of the
witness to the execution of the Will.
43.5. With regard to photograph of the deceased, it is claimed
by the plaintiff that behind his photograph, it can be seen that some
super-imposition has been done and the photograph is stitched and
not pasted. In this regard, the witness from the office of the Sub-
Registrar has deposed that the photograph has been stitched and not
pasted but during cross examination, he deposed that he cannot say
that the photograph of the testator is stitched and not pasted as a
matter of practice. The expert witness of the plaintiff has opined vide
a separate report that the head of some other person can be seen
behind the testator in the Will.
43.6. In my opinion, there is no positive evidence to show that
there is super-imposition of any other photograph in this case. From
the enlarged picture, Ex. PW2/43, it appears that the photograph on
the background is infact on another document and not the same
document, as the edges of the page are visible, which cut the other
picture. There is no explanation from the plaintiff as to in what
manner and to what effect super-imposition has been done. Further,
there is no evidence to show that the stitching of photograph instead
of pasting is of any special consequence. Hence, this argument of the
plaintiff is liable to be rejected.
CS SCJ No. 7364/2016 A.K. Malhotra Vs. Sarwan Kumar Malhotra & Ors. Page No.35 of 37
Digitally
signed by
DEV
DEV CHAUDHARY
CHAUDHARY Date:
2025.01.20
10:43:17
+0530
44. On the basis of the above discussion, I find that in this
case, the defendants being the propounders of the Will, have proved
by way of positive evidence that the Will was executed by the
deceased Sh. B.L. Malhotra. The due execution of the Will has been
proved alongwith the fact that the deceased testator has testamentary
capacity. The suspicious circumstances of the Will have been
dispelled by the defendants. Therefore, the Will has been proved by
the defendants on the required threshold.
SUBSEQUENT TRANSFER –
45. The last objection of the plaintiff is that the Will, even if
proved, has not been given effect to. It is argued that the testator has
envisaged a limited estate to the mother of the plaintiff till the time
she was alive, and by executing sale deeds in favour of the defendant
nos. 1 and 2 during her lifetime, she has violated the conditions of the
Will, and she has conveyed property which she could not have done in
view of the bar under Section 14(2) of the Hindu Succession Act,
1956.
46. In this regard, it is already held that the suit property was
self-acquired property of the deceased. In the Will, the deceased has
mentioned as under –
“I am legally entitled to deal with the above mentioned property as of
my own and any manner I like. I shall remain absolute owner of my
above said property as long as I am alive but after my death, the
owner shall be my wife Smt. Vidya Wanti Malhotra now aged 85
years and after her death this plot will be equally shared by my two
sons named 1) Sharwan Kumar Malhotra aged 51 years 2) Daman
Kumar Malhotra aged 35 years”
The testator has specifically mentioned that his wife will be the
“owner” of the property after his demise. Even otherwise, the
ownership by virtue of the gift deeds has vested in the same owners
CS SCJ No. 7364/2016 A.K. Malhotra Vs. Sarwan Kumar Malhotra & Ors. Page No.36 of 37
Digitally
signed by
DEV
DEV CHAUDHARY
CHAUDHARY Date:
2025.01.20
10:43:18
+0530
that were contemplated by the testator. Therefore, on this ground
alone, the suit cannot be decreed.
47. With regard to the issue of non-joiner of parties, I find
that there was no requirement to join DDA or any other party in this
suit, as the same can be effectively decided without the presence of
such parties. I have also given my consideration to the judgments
cited by learned counsel for the plaintiff, however, they are
distinguishable on facts.
CONCLUSION –
48. In view of the above, I find that the plaintiff has failed to
prove his case, even on the standard of preponderance of
probabilities.
49. My issue wise findings are as follows –
I. Decided against the defendants.
II. Decided against the plaintiff.
III. Decided against the defendants.
IV. Decided against the plaintiff.
V. Decided against the plaintiff.
VI. Decided against the plaintiff.
VII. No relief.
50. Resultantly, the suit of the plaintiff stands dismissed.
51. Parties are left to bear their own costs.
52. Decree sheet be prepared accordingly. Digitally
signed by
DEV
DEV CHAUDHARY
Announced in Open (DEV CHAUDHARY) CHAUDHARY Date:
2025.01.20
10:43:37
Court. ACJ/CCJ/ARC(WEST) +0530This judgment
TIS HAZARI COURTS
contains 37 signed
pages.
DELHI/ 20.01.2025
CS SCJ No. 7364/2016 A.K. Malhotra Vs. Sarwan Kumar Malhotra & Ors. Page No.37 of 37
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