1. This suit filed by the plaintiff is for partition and rendition of accounts. The plaintiff and defendant No. 1 are the sons and defendants 2 and 3 are the daughters of late Sh. Jagdish Prasad Chaturvedi (hereinafter referred to as 'deceased father'). Defendants 4 and 5 are also imp leaded who are wife and son respectively of defendant No. 1. Put simply, the deceased father had two sons, namely, plaintiff and defendant No. 1 and two daughters, namely, defendants 2 and 3. The deceased father of the parties was possessed of a House No. 11-A/16, Western Extension Area, Karol Bagh, New Delhi (for short 'Karol Bagh house') apart from certain movable properties. In the plaint filed by the plaintiff, it is stated that after the death of his father, the plaintiff is in possession of the ground floor and defendant No. 1 is in possession of the first floor of the Karol Bagh house. Entire movable properties including Fixed Deposit Receipts, cash, gold and gold ornaments, share certificates and all other movable properties are taken over by defendant No. 1, being elder brother of the plaintiff. The plaintiff had requested defendant No. 1 to partition the properties left by their deceased father but defendant No.1 kept on avoiding. As defendants 2 and 3 did not claim any share in these properties of their late father, the plaintiff and defendant No. 1 have equal share in the properties left by the deceased. It is further averred in the plaint that on being pressed by the plaintiff and on persuasion of the relatives, the defendant No. 1 had agreed to refer the question of partition of the properties by their deceased father to mediation of Sh. K.L. Parashar, Sh.Dwarka Dass Arora and Sh. Bimal Kishore Mishra. Before the mediators, the defendant No. 1 admitted the following properties having been left by their deceased father:
(i) One House No. 11-A/16, Western Extension Area, Karol Bagh, New Delhi.
(ii) Fixed Deposit Receipts for total sum of Rs. 93,000/-.
(iii) One joint account operable by either or survivor in the name of Sh. Jagdish Parshad and the defendant No. 1.
(iv) Gold and Gold Ornaments.
(v) Personal Saving Bank Account in the name of late Sh. Jagdish Parshad.
(vi) 29 ordinary shares of Rs. 10/- each in Bengal Electric Lamp Ltd.
2. He also admitted having received interest on the fixed deposit as well as rent for the rented portion of the Karol Bagh house. The plaintiff further states that the mediators suggested mode of partition as also provisions for various liabilities and customary obligations. However, besides being in possession of ground floor of Karol Bagh house, defendant no. 1 has given a sum of Rs. 10,000/- only and refused to render the accounts for partitioning the properties thereby compelling the plaintiff to file the instant suit.
3. It may be mentioned that initially only defendants 1 to 3 were made parties and summons were issued to them. The defendant No. 1 appeared and filed the written statement wherein it was mentioned that their deceased father did not die intestate but had executed a Will dated 18th October, 1976 as per which he bequeathed his properties to defendants 4 and 5. At this stage the defendant No. 4 moved an application for impleadment of defendants 4 and 5, her minor son, on the ground that they were beneficiaries under the Will. This application was allowed.
4. Written statements were thereafter filed on behalf of defendants 4 and 5 contesting the suit on the basis of Will date 18th October, 1976. Defendant No.2, sister of plaintiff and defendant No. 1 filed written statement wherein she has admitted the execution of the Will and has stressed that properties they had administered and distributed among the legatees according to the terms of the said Will.
5. It may be mentioned that as per the Will, Karol Bagh house falls to the share of defendant No. 1 who has also been made executor of the Will. Further according to this Will, various amounts have to be paid to the different persons from the amount received from the sale of ancestral property At Farrukhabad. The gold jewellery has been bequeathed to defendant No. 4. Movable properties have been given to defendant No.1.
6. On the basis of pleadings, following issues were framed on 27th September, 1983:
1. Whether Late Shri Jagdish Prasad Chaturvedi has left behind any validly executed Will dated 18th October, 1976? O.P. Defendants 1, 4 and 5.
2. If issue No. 1 is fond in affirmative then what are the shares of the parties?
7. Bone of contention is issue No. 1 relating to the execution of purported Will dated 18th October, 1976 by the deceased father of the parties. On the outcome of this issue, depends the fate of this case. Onus to prove this issue was on defendants. The defendants examined D-1W-1 Sh.A.M. Trehan S/o Vikramajit Trehan who was the attesting witness to the Will. He has stated that his uncle Vikramajit Trehan had gone to the place of Sh.J.P. Chaturvedi along with him when he had executed the Will in his presence. His uncle has put his signature at point-C on the first and last page of the Will. He further stated that Sh. Vikramajit Trehan died on 27th November, 1980. This witness has categorically deposed about the execution of the Will. Another witness of the Will (D-1W-2) Sh.B.K. Mishra has stated that the Will was executed and signed by Late Shri Jagdish Prasad Chaturvedi in his presence. He proved his own signatures on the Will being its attesting witness. Sh.B.K. Mishra has further stated that he was called by Mr. Prashar and Dwarka Das Arora and they told him that Mr.R.K. Chaturvedi and M.C. Chaturvedi had settled their dispute and it was in this context that certain pages were written. He however could not identify as to in whose handwriting encircled portion were written. It was also stated by him that after page 13 was written and matter was not resolved and that when the Will was brought, he refused to get associated with the said arbitration proceedings any further. Another witness was also produced on behalf of the defendant No.1 being (D-1W-3) Shri Manikant Mishra. The said witness is the son of defendant No.2. He has stated that his mother Bachhi Devi (defendant No.2) expired in 1988. He has identified the signatures of her mother on the written statement. He has admitted that his maternal grandfather Late Shri Jagdish Prasad Chaturvedi left a Will duly written and signed by him. He has further deposed that his mother has received an amount of Rs. 5,000/- on 9th May, 1983.
8. The plaintiff has himself examined as PW-1 in the suit. He had admitted the relationship between himself and the defendants. He has stated categorically that he never knew about the Will. He further stated that after the death of his father, dispute arose between him and the defendant No. 1 regarding the properties. According to him the matter went through arbitration of Sh.B.K.Mishra, Sh. K.K. Parashar and Sh. Dwarka Das. He has stated that the arbitrators gave their decision which was accepted by him and also by the defendant No.1. According to him the decision has been acted upon. He further stated that before the arbitrators, the defendant No. 1 did not set up any Will. Will was brought only in this Court. The plaintiff has stated in his statement that he has never seen his father signing any Will. He also stated that he has not seen his father writing or signing. He also does not remember as to when his sisters told him that they do not claim share in the properties of their father. He has admitted that he has filed two criminal complaints against his brother. He has denied the suggestion that he had tried to kidnap the son of defendant No. 1. He has admitted that he received a sum of Rs. 10,000/- but stated that it was not accordance with the Will. He does not recognise the signature of his sister. He also stated that he does not know whether the file containing arbitration proceedings is complete. HE admits that he is Ahlmad/Reader in the court of Sub-Judge and Magistrate in the District Court, Delhi. He does not admit the execution of the Will. He also does not admit that his sisters had been paid Rs. 5,000/- each in terms of the Will.
9. Mr. Ramesh Chandra, learned senior counsel, appearing for plaintiff submitted that the defendants failed to the prove the Will and there were circumstances raising doubts about the genuineness of purported Will. It was submitted that the defendants were not produced as witnesses at all to prove the Will. Further the record relating tot he mediation by certain persons, as mentioned in the plaint, was produced. On 11th May, 1980 both the plaintiff and the defendant No.1 agreed to the mediation of Sh. B.K. Mishra, Sh. K.L. Parashar and Sh. Dwarka Dass Arora. Defendant No. 1 categorically agreed that whatever the said mediators/arbitrators decide, would be acceptable to him. The proceedings record the details of movable and immovable properties as well as liabilities of their deceased father. It is further recorded as to how some of the movable properties are to be shared. In respect of Karol Bagh house, it mentions that first floor barsati is allotted to defendant No. 1 and ground floor is allotted to the plaintiff. The division of these movable and immovables properties is mentioned at pages 13 and 14 and at the bottom there is an endorsement of plaintiff and defendant No.1 accepting the decision. At page 15 is letter signed by defendant No. 1 wherein he has stated that while he accepts the decision of the committee, he has to make certain submission for consideration. The assets for consideration of liability of Rs. 20,000/- left by their deceased father which is to be paid from the assets of the deceased father and to the marriage ceremony of niece (sister's daughter) wherein 'Dala' worth Rs. 6,000/- is to be given by him as her maternal uncle. In this letter he has requested the committee to consider these points as well. This request is considered by the committee and decision thereof is given at pages 16 and 17 of the proceedings. After giving the decision, all the three persons of the committee as well as the plaintiff and the defendant No.1 had signed at the bottom of page 17 as on 19th November, 1980. Referring to these proceedings, learned senior counsel for the plaintiff submitted that there was not even a whisper about the alleged Will. On the contrary, in view of the disputes regarding the respective partitioning of the properties, all the parties agreed for decision by the committee consisting of aforesaid three persons who in fact divided and partitioned each and every aspect belonging to their deceased father. The settlement was even acted upon in so far as division of immovable property is concerned. The purported Will has surfaced only after suit for partition was filed by the plaintiff. It was also submitted that witness D-1W-3 cannot be relied upon as he received the money from defendant No.1, allegedly as per the Will, during the pendency of this case and after receiving the money he has deposed in favor of defendants. The submission of learned counsel was that had there been any Will in existence, defendant No. 1 would not have agreed for the mediation by the aforesaid committee and in any case, would have mentioned about that Will at that time. This, according to him, shows that Will is fabricated afterwards just to defeat the claim of the plaintiff in this suit.
10. This case came up for hearing on 16th April, 2001 when counsel for plaintiff made his submissions. However, there was no appearance on behalf of the defendants and judgment was accordingly reserved. Still defendant No. 1 was given opportunity to file arguments within one week. Thereafter, defendant No. 1 filed is No.3785/2001 with prayer to allow him to file written arguments. Since order to that effect was already passed, and by order dated 23rd April, 2001 allowing the defendant No.1 to file the written arguments by 4th May, 2001, the said is was disposed of. Counsel for defendant No.1 filed his written submissions. As per these written submissions, it is argued that the original Will has been produced in the court and the same is Ex. D-1W-1/1. This Will is in personal handwriting of deceased Jagdish Prasad Chaturvedi signed by the two attesting witnesses. The Will is in Hindi. According to this Will, immovable property situated at 11-A/16, W.E.A.Karol Bagh falls to the share of defendant No.1. Defendant No.1 has been made executor of the Will. The Will clearly states all the facts. The testator has categorically stated that he wants his elder son(defendant No.1) to be his main successor. It is categorically stated that if at the time of death Ramakant Chaturvedi (plaintiff) is living in this house then he will have to vacate the house and will have to live at a separate place. According to the Will, various amounts have to be paid to different persons from the amount received from the sale of his ancestral properties at Farrukhabad. The gold jewellery has been bequeathed to defendant No. 4(wife of defendant No.1). Similarly movables have been given to defendant No.1. It is categorically stated in the Will that all rites subsequent to death and other ceremonies shall be done and completed by the defendant No.1 only. The Plaintiff is made completely free from such post death obligations. Similarly all social liabilities in respect of the married daughters (defendants 2 and 3) shall also be carried out throughout his life by defendant No.1. The Will, if reads in its entirety, gives the sufficient mind of the testator. It is further submitted that the sole testimony of the plaintiff goes to prove that he is speaking absolute lies. It is not possible to believe that the plaintiff has not seen his father writing and signing. The plaintiff has conveniently taken a plea that as he has never seen his father writing and signing. He is not in a position to admit or deny the contentions of the Will. The plaintiff has admitted that he was living in the Karol Bagh house as joint family member. He has also stated that his father was living with him. In the plaint, the plaintiff has categorically demanded partition of the properties and has nowhere suggested that the arbitrators have given their judgment which has been acted upon. However, as a witness in the court, he improves upon his earlier statement in the plaint. He admits that his father retired as Accounts Officer from AGCR. In the plaint it is categorically stated that on being pressed by the plaintiff and on persuasion of the relatives, the defendant No.1 had agreed to refer question of partition of the properties, while in his statement before the court he has denied the suggestion that he has put any pressure on the defendant No.1 to agree for mediation. He has admitted that he has lodged two criminal complaints against his brother. He accepts Rs. 10,000/- being received from defendant No.1 but not in terms of the Will. The total evidence of the plaintiff is unreliable. He has conveniently stated that he has never seen his sisters and father writing and signing, though he admits that he recognises signatures and writing of his brother (defendant No.1). The statement of the plaintiff Ex. PW-1, if read as a whole, shall demonstrate itself that the said statement is not reliable and that he is cleverly speaking lies. The statement of the plaintiff is absolutely unreliable. It was further argued that the defendant No.1 has discharged his onus of proving the Will. Section 2(h) of the Indian Succession Act, 1925 defines the Will which means legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. The Will set up by the defendant No.1 in this case being the last wish of deceased father dated 18th October, 1976 is perfectly within the ambit of the aforesaid section. The Holograph Will is written and signed by the testator in his own handwriting and attested by two witnesses. Sections 59 and 63 of the aforesaid Act governs the execution of the Will. The Will of the deceased father has been proved beyond any doubt. It has been held by the Supreme Court that the Will has to be proved like any other document except as to the special requirements of attestation by Section 63 of the Act. The test to be applied would be usual test of satisfaction of the prudent mind in such matters. Reliance is placed on the judgments of the Supreme Court in the cases of H.Venkatachala Iyengar Vs . B.N. Thimmajamma & Ors. : AIR1959SC443 . The question whether the Will set up by the defendant is proved to be the last Will by the testator has to be decided in the light of the provisions of Sections 67 and 68 of the Evidence act and Sections 59 and 63 of the Succession Act. In the present case one of the attesting witnesses has died but his nephew (DW-1/1) who had accompanied the attesting witness has proved that the Will was executed, attested and signed in his presence. The other attesting witness Sh.B.K.Mishra (DW-1/2) has categorically proved that the Will was duly written by the testator and signed by him in his presence. The testator was of sound and disposing mind. The ingredient of Sections 59 and 63 of the Indian Succession Act have been fully complied with and proved. The defendant in this case in order to prove the Will has examined three witnesses. The defendant has proved the Will and in the absence of any suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by the law is sufficient to discharge the onus of proof. The court would thereforee give effect to the Will as has been held by the Supreme Court in the case of Pushpavati & Ors. Vs . Chandraja Kadamba and Ors. : AIR1972SC2492 . It was further argued that the plaintiff who has denied the execution of Will has not taken any plea of undue influence, fraud or coercion. The plaintiff has only denied that his father has not executed any Will. Under law where there is absence of the initial evidence on the part of the party disputing the genuineness of the Will, the propounder of the Will need only to prove execution of the Will (Refer: P. Subramanian and Ors. Vs . Ramachandran & Ors. : AIR1996Ker64 ). Reliance was placed on the judgment of Madras High Court in the case of Ammu Balachandran Vs . Mrs. O.T. Joseph (died) and Ors. : AIR1996Mad442 where the court held that where a Will is properly executed and proved, no inference can be drawn against Will merely because it is unregistered. In the case of Shakuntala Devi Vs . Savitri Devi & Ors. it was held that where a Will is duly proved by attesting witnesses and in the present case they are independent witnesses. There is nothing on record to show their interest in legatees and that there is also no evidence that they are inimical towards excluded heir and also that there is no evidence showing that deceased was not possessing sound disposing mind at relevant time. All these Will go to show that the execution of Will stands duly proved. This court in the case of Mathew Jacob & Ors. Vs . Ms. Salestine Jacob & Anr. : AIR1998Delhi390 held that examination of one witness is sufficient to discharge the onus of proof. It was also argued that in the construction of the Will Section 74 of the Act defines that the wording must be such that the intention of the testator can be known there from. The Supreme Court in the case of Veerattalingam & Ors. v. Ramesh & Ors. reported as AIR 1990 SC 2001 held that the court while construing a Will should try to ascertain the intention of the testator to be gathered primarily from the language of the document; but while so doing the surrounding circumstances, the position of the testator, his family relationship and probability that he used the words in a particular sense must also taken into account. They lend a valuable aid in arriving at the correct construction of the Will. The Supreme Court has time and again has held that the court should, to the extent legally permissible give effect tot he intention of the testator. The intention has to gathered by reading the Will as a whole. As far as possible the effect should be given to every clause in the Will as each clause therein is important as the other. It was further argued that Section 87 of the Indian Succession Act provides that the intention of the testator shall not be set aside because it cannot take effect to the full extent but, effect is to be given to it as far as possible. The paramount intention of the testator should be given effect to in determining the intention of the testator, the entire Will has to be looked into and all clauses in a Will will have to be read together. The courts have held time and again that if the dispositive words in the Will are clear and unambiguous, the court is bound to enforce them. Even if there is any ambiguity, it is necessary to ascertain the declared intention of the testator from other clauses of the Will and also the surrounding circumstances. The Supreme Court has categorically held that cardinal maxim to be observed, is to ascertain the intention of the testator from the language of the document which is to be read as a whole without indulging in any conjecture or speculation. (Refer: Gnambal Ammal Vs . T.Raju Ayyar and Ors. : 1SCR949 . Unless the Will is claimed to be ambiguous or if such plea is raised, no presumption against the Will can be raised in any manner. In the circumstances, the Will of Late Shri Jagdish Prasad Chaturvedi stands completely proved and the property has to be distributed as per the desire and the intention of the testator. It was further argued that the Will executed by the deceased father on 18th October, 1976 before his death which occurred on 18th July, 1979 is a Holograph Will, since it is in the handwriting of the testator himself, Reliance was placed on the judgment of the Supreme Court in the case of Mrs. Joyce Primrose Prestor (Nee Vas) Vs . Miss Vera Marie Vas & ors. : (1996)9SCC324 where the court made the following observations:
'While the presumption in the case of ordinary Wills is as stated above, in the case of 'holograph Wills', the presumption is all the more a greater presumption. Ex.P.1 is a 'holograph will'. It is one which is wholly in the handwriting of the testator. The Calcutta High Court in Ajit Chandra Majumdar Vs . Akhil Chandra Majumdar : AIR1960Cal551 stated about such a Will, thus:-
'The whole of this Will was written in the hand by the testator himself in English. The handwriting is clear and firm. The law makes a great presumption in favor of the genuineness of a holograph will for the very goods reason that the mind of the testator in physically writing out his own Will is more apparent in a holograph Will than where his signature alone appears to either a typed script or to a script written by somebody else.
The writing of the Will and signature of the testator are admitted. There is also due and proper attestation in accordance with the relevant statutory provisions. No suspicious circumstance appears on the face of the document, Ex.P-1. The Will appears to be moderate and ration. Viewed from the above angle, there is a great presumption-even bordering on actual proof of the due execution and attestation of the Will'.
11. Further in para 15, the court has further while approving Shashi Kumar Banerjee & Ors. Vs . Subodh Kumar Banerjee since decreased and after him his legal representatives and Ors. : AIR1964SC529 held as under:
'In applying the above general principles to particular cases, the nature of the Will, the pleading of the parties in the case, facts admitted or proved and the presumptions available in law, Will have to be carefully given effect. The case of a 'holograph Will' which is admittedly in the handwriting of the testator, is a special case which will require a different approach in considering the evidence in the case, to find whether the Will has been duly executed and attested. The approach to be mae in such cases has bene stated by the Constitution Bench in Shashi kumar Banerjee's case (supra) at page 532 paragraph (5). In that case, the court referred to certain undisputed preliminary facts as follows:
The testator, a well-known wealthy lawyer, who died at the age of 97, had executed a Will when he has 93 years old. He had made provision for his heirs by executing a number of documents, and the Will was witnesses by two persons. The entire Will was in the handwriting of the testator, corrected in various places and corrections were initialled by him. It was admitted that the signature at the bottom of the Will was of the testator. The despositions were very clear and detailed and it could not be said to be an unnatural document. There was no evidence to show that the propounders took any part in the execution of the Will. After stating these preliminary facts, the court stated the approach to be made in the case of a 'holograph Will', thus:
'Further the fact that the Will is a holograph Will and admittedly in the hand of the testator and in the last paragraph of the Will the testator had stated that he had signed the Will in the presence of the witnesses and the witnesses had signed it in his presence and in the presence of each other raise strong presumption of its regularity and of its being duly executed and attested. On these facts there is hardly any suspicious circumstance attached to this Will and it will in our opinion require very little evidence to prove due execution and attestation of the Will'.
12. After considering the submissions of both the parties, evidence on record and perusing the documents, the inevitable conclusion is that Will dated 18th October, 1976 stands proved. It is a holograph Will. The entire Will is in the handwriting of the testator himself. Both the attesting witnesses are also produced who have testified to the effect that deceased father of the plaintiff and defendant No.1 had executed and signed the Will in question, namely, Ex.D1W1/1. There is no reason to disbelieve these witnesses. Learned counsel for the plaintiff also did not point out any infirmity in the statements of these witnesses.The only argument raised was that the defendant No.1 has not examined himself. That may not be necessary when both the witnesses to the Will had been examined. Issue No.1 relates to the execution of Will dated 18th October, 1976 by the deceased father. It was sufficient for defendants to prove this Will by producing the attesting witness, the other witness having been died. The plaintiff has simply denied the execution of the Will by his deceased father. He has conveniently stated that he has not seen his father writing or signing which is totally unbelievable. He has not categorically stated that the writing on the Will Ex.D1W1/1 is not that of his father. Significantly, as per this Will, the plaintiff was to receive a sum of Rs. 10,000/- which he admits having received although he states that it was no in accordance with Law. The money as per the Will is paid to the sisters also. D1W-3 has also admitted received a sum of Rs. 5,000/- in terms of the said Will by her mother, i.e sister of plaintiff and defendant No.1, executing the receipt dated 9th May, 1983. Having regard to the principles laid down in various judgments quoted by the learned counsel for the defendants, I hold that the defendants have been able to prove the genuineness of the Will in question. In so far as argument of learned counsel for plaintiff based on the alleged settlement arrived at through mediation/arbitration of the committee is concerned, merely because parties had agreed to settle the disputes through mediation, would not be a factor which militates against the Will. Issue No.1 is about the execution of the Will in question. When the Will is otherwise proved, which was in fact in the handwriting of the testator himself, merely because parties decided to seek mediation to resolve the disputes, notwithstanding this Will, it would not go to show that there was no Will in existence. It is a matter of common knowledge that many times inspire of such Wills executed by elders, on disputes being created, legal representatives still try to settle the disputes. It may be mentioned at this stage that the defendant No.1 in his written statement has alleged that there was undue pressure and psychologically, fraud with the terrorism activities put upon by the plaintiff. He had even filed number of FIRs. Under such pressure, he signed certain blank papers. It is explained by learned counsel for defendant No.1 that defendant No.1 did not lead any evidence to prove this fact as the issue related to the execution of Will only and the defendant No.1 was to prove the issue as framed. After all the present suit is not for giving effect to the alleged settlement or the alleged decision of the mediators/arbitrators nor any issue is framed therein.
13. The result of the aforesaid discussion coupled with the judgments cited by the learned counsel for defendant No.1, issue No.1 is decided in favor of the defendants 1, 4 and 5 and against the plaintiff. It is held that late Sh. Jagdish Prasad Chaturvedi left behind validly executed Will dated 18th October, 1976.
14. As per the Will dated 18th October, 1976, the House No. 11-A/16, Western Extension Area, Karol Bagh, New Delhi falls to the share of the defendant No.1. thereforee, the plaintiff has no right in this property. Suit for partition is, thereforee, not maintainable.
Issue No. 3:
15. The plaintiff is not entitled to any relief in the suit.
16. The suit is accordingly dismissed.