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2014 Supreme(Del) 1588
High Court of Delhi
RAJIV SAHAI ENDLAW, J.
Satish Kumar Chojar
Versus
Subhashni Chopra & Others
CS (OS) No. 2190 of 2011 & IA. No. 7476 of 2013
Decided on: 01-07-2014
For the Plaintiff:Prabhjit Jauhar, Anupama Kaul, Jeevan Sharma, Advocates.
For the Defendants:G.D. Chopra, Manuj Aggarwal, Advocates.
Headnote:
Succession Act, 1925 - Section 70 - Evidence Act, 1872 - Sections 62, 63, 68 - Partition - Will - Existence of Will - Family settlement - Defendants have admitted the execution and registration of the Will of the father on which the claim of the plaintiff for a 55% - Father being in a sound disposing mind at the time of execution of - Father was not aware at the time of execution and registration of the contents of the document got executed and registered, subsequently became aware and destroyed the Will - A presumption of destruction from non availability of the original was drawn, is of no avail - Document may be proved either by primary evidence or by secondary evidence - Predecessor in title of the parties having bequeathed the property wholly and solely to his wife could have provided for the manner in which the property was to be dealt with after the death of his wife - Petitioner could not have done so - A testator, once has bequeathed the property wholly and solely to his wife and the wife is alive on the date of the demise of the testator, the property becomes of the wife - Any provision in the Will, of the manner in which the property is to be inherited after the demise of the wife, is of no avail - Mother of the parties died intestate - Property would be inherited equally by the plaintiff and the defendants No. 1 & 3 - Plaintiff to have proved the Will and the defendants to have failed to prove the Will having been revoked by destruction - On interpretation of the Will, plaintiff is entitled to 55% share in the property.
Succession Act, 1925 - Section 70 - Evidence Act, 1872 - Sections 62, 63, 68 - Share of parties in the property has been agreed to be 25% - Defendants have utterly failed to prove any such family settlement - Defendant No.3 admitted non-existence of Deed or document of family settlement - There is no other documentary proof - Parties has never acted in consonance with the said family settlement - Mere factum of the plaintiff being in possession of the ground floor and the defendant No.3 being in possession of first floor is not indicative thereof - Held the defendants No. 1 & 3 have failed to prove the family settlement - Claim of the plaintiff for mandatory injunction is in interest of all the parties.
1. The plaintiff has instituted this suit, for partition of property bearing No.29/19, East Patel Nagar, New Delhi (“suit property”), and for permanent and mandatory injunctions with respect to the property, pleading:-
I) that late Sh. Shanti Sarup Chojar (father of the plaintiff and the three defendants) was granted leasehold rights in the suit property vide registered perpetual lease deed dated 23.01.1981 executed in his favour by the President of India through the Land & Development Office;
II) that late Sh. Shanti Sarup Chojar executed a registered Will dated 18.11.1991 recording that the plaintiff had been financially helpful to him during his lifetime and bequeathing 55% share in the suit property to the plaintiff and 5%, 20% and 20% to defendants No.1,2 &3 respectively;
III) that it was also envisaged under the Will that the wife of Sh. Shanti Sarup Chojar (Smt. Sushila Chojar) would be entitled to possession of the suit property and to realise rent therefrom during her lifetime and upon her demise, the property would devolve upon the legal heirs as per the ratio provided in the Will aforesaid;
IV) that Sh. Shanti Sarup Chojar expired on 18.11.1998 leaving behind his wife, the plaintiff (son), and the defendants (daughters) as his only natural heirs; the wife of Sh. Shanti Sarup Chojar also expired on 30.01.2007;
V) that the plaintiff is in possession of the ground floor of the suit property whereas the defendant No.3 is in occupation of the first and second floors; the defendants No.1&2 reside in their respective matrimonial homes;
VI) that though the plaintiff is also in occupation of a room on the second floor of the suit property but the entry thereto has been blocked by defendant No.3 by putting a lock on the entrance of the second floor;
VII) that a meeting was arranged on 02.06.2011 between the plaintiff and the defendants where the plaintiff expressed the desire to partition the suit property as per the Will of Sh. Shanti Sarup Chojar but the said request was refused by the defendants No.1 to 3 who insisted that the property be divided between the four legal heirs in equal shares;
VIII) that the request of the plaintiff to get the suit property mutated in the ratio contained in the Will and thereafter have the same converted into freehold from leasehold was also turned down;
IX) that the plaintiff was thus constrained to get issued a legal notice dated 15.06.2011 calling upon the defendants to partition the suit property in the said ratio and the same was duly served on all the defendants; and,
X) that though the defendants No.1&3 refused to accept the notice but a reply dated 24.06.2011 was received from the defendant No.2 who in paragraph 3 thereof has accepted the fact that her late father Sh. Shanti Sarup Chojar had left behind a Will whereunder she was entitled to 20% share in the suit property and that she has no objection to the said Will.
The plaintiff has accordingly prayed for a decree, of partition of the suit property, declaring the shares of the plaintiff and the defendants therein as per the Will aforesaid, of permanent injunction restraining the defendants from creating third party rights in the suit property and of mandatory injunction directing the defendants to join in applying for mutation of the property as per the shares under the Will aforesaid and to thereafter in applying for getting the leasehold rights in the suit property converted into freehold.
2. The defendants No.1&3 have contested the suit, by disputing the existence of any Will and further claiming an oral family settlement between the heirs of Sh. Shanti Sarup Chojar in December 1998, pleading:-
(a) that under the aforesaid family settlement, the parties had affirmed that Sh. Shanti Sarup Chojar had died intestate and the suit property was partitioned by metes and bounds by the mother of the parties and the plaintiff was allotted the ground floor, defendant No.3 was provided the first floor and the defendant No.1 was give
