SUGEETA CHHABRA Vs. HARISH NAYAR

JUDGEMENT

(1.) By this application the plaintiff seeks judgment on admission. Learned counsel for the plaintiff in support of the application contends that the defence set up by the defendant not being plausible, a decree under Order XII Rule 6 CPC is required to be passed in favour of the plaintiff. The plaintiff has sought the relief of partition of the property bearing No. 41 Prithvi Raj Road, New Delhi (hereinafter referred to as the 'suit property') by meets and bounds and further a decree of partition being the owner of 50% share in the movable assets owned by late Shri Ram Gopal Nayar, rendition of accounts and permanent injunction. The defendant who is the brother of the plaintiff has set up a defence that the deceased father left a Will and thus the plaintiff is not entitled to the reliefs claimed. The Will allegedly left behind by the deceased father is neither signed nor executed by the deceased, nor witnessed. Further even as per the correspondence relied by the defendant the draft Will was sent by the counsel of the deceased father on 9th February, 2001, the deceased father survived till 29th October, 2009 and had not executed the Will. It is, thus, apparent that he had no intention to execute the Will. Relying upon Section 63 of the Indian Succession Act, 1925 it is stated that a Will has to be executed by the testator by signing it and by attestation of two witnesses who have seen the testator sign the document. Unless the mandatory requirements are fulfilled, the document does not qualify to be a Will. Further, under Section 68 of the Evidence Act, a document which is required to be attested can be proved only if it is attested. The defence of the defendant thus holds no legs and it would be deemed that the deceased father died intestate. Thus the plaintiff is entitled to partition of the suit property. Reliance is placed on P.P.A. Impex Pvt. Ltd. Vs. Mangal Sain Mittal, 2010 166 DLT 84 and Grammy Communications Pvt. Ltd. Vs. EMAAR MGF Land Ltd.,2013 202 DLT 756.

(2.) Learned counsel for the defendant on the other hand contends that whether the document filed by the defendant is a Will or not in the eyes of law is required to be proved during trial and merely because the Will is neither signed nor attested, the defendant cannot be non-suited at this stage. The deceased father of the parties has left various amendments sought to be made in the Will in his own handwriting which the defendant would prove during trial. Besides the defendant has taken preliminary objections regarding Court fees etc., and without deciding the same the suit of the plaintiff cannot be decreed. For invoking Order XII Rule 6 CPC the plaintiff is required to show unambiguous admissions. The judgments relied upon by the plaintiff relate to landlord tenant disputes and have no application to the facts of the present case.

(3.) Heard learned counsel for the parties and perused the pleadings. The plaintiff has filed the present suit for partition, permanent injunction and rendition of accounts as noted above. The plaintiff and defendant are sister and brother being daughter and son of late Shri Ram Gopal Nayar and Smt. Sharda Nayar. Late Shri Ram Gopal Nayar, deceased father of the plaintiff and defendant passed away on 29th October, 2009. It is thus the claim of the plaintiff that the plaintiff and defendant being the only class-I legal heirs of the deceased are entitled to 50% of the immovable and movable assets left behind by the deceased, as the mother Smt. Sharda Nayar pre-deceased the father on 27th December, 1976. The deceased owned and possessed a number of properties and movable assets as noted in Schedule A with the plaint. The deceased was co-owner of the suit property with his wife late Smt. Sharda Nayar, the deceased mother of the plaintiff and defendant. The plaintiff is entitled to 50% share in the suit property consequent upon the death of the deceased father, however with a view to keep harmony and good relations in the family, the plaintiff is not pressing and claiming the share which the defendant claims to have succeeded on the basis of the alleged Will of the mother. The plaintiff is, however, claiming 25% in the suit property being half the share inherited from the estate of the deceased father. The defence set up by the defendant in the written statement is that the plaintiff is fully aware that the deceased father left a Will written in his own hand. He had instructed his lawyer to prepare his Will who vide letter dated 9 th February, 2001 sent a draft Will duly prepared by him as instructed by the deceased. The said Will was corrected by the deceased father in his own hand at different places and slips written in his own hands were attached by him wherever he wanted to make the changes. Thus, a valid and legally executed Will was left behind by the deceased which decides the rights of the parties. As per the Will left by the deceased 50% share in the suit property belonged to the defendant and the remaining 50% share which was held by the deceased was bequeathed by him in favour of his grandson Shri Raghav Nayar and thus the grandson is the owner of the 50% share left behind by the deceased and not the plaintiff. The contention that the deceased died intestate is wholly incorrect.