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2023 Supreme(Del) 4105
IN THE HIGH COURT OF DELHI AT NEW DELHI
Neena Bansal Krishna, J.
Shri Ajay Kumar Khurania Son of Late Shri Gulab Chand – Appellant
Versus
Shri Mahendra Kumar Khurania Son of Late Shri Gulab Chand – Respondent
CS(OS) 345 of 2018 (Old Number CS(OS) 321 of 1999) & TEST.CAS.26 of 2000
Decided On : 22-08-2023
Ms. Zubeda Begum, Ms. Ishita Mohanty, Ms. Sana Ansari & Mr. Zubin Singh, Advocates, for the Plaintiff in CS(OS) 345 of 2018 (Old Number CS(OS) 321 of 1999) & for the Respondent in TEST.CAS.26/2000.
Mr. Ravi Sikri, Senior Advocate with Mr. Sarvesh Bisariya, Mr. Ashish Azad, Mr. Abhishek Sandillya & Mr. Nishant Bharadwaj, Advocates, for the Defendants in CS(OS) 345 of 2018 (Old Number CS(OS) 321 of 1999) & for the Petitioner in TEST.CAS.26/2000.
Headnote:(A) Indian Succession Act, 1925 - Sections 63 and 68 - Partition and Probate - Disputes relating to property of deceased involving multiple Wills and heirs - The plaintiff claimed equal share in the property after asserting intestacy, while the defendant sought to establish a registered Will dated 23.02.1994 and a subsequent Will dated 14.05.1997 - Validity of Wills questioned based on allegations of undue influence and suspicious circumstances. The court found that while the first Will was valid and acted upon, the second Will was not proven genuine, suggesting manipulation in its execution and registration process. (Paras 45, 76, 148, 172, 177)
(B) Family Arrangement - Nature of Family Settlement - Mere possession without a registered document does not equate to partition in law; arrangements made during the lifetime of testator require a formal written disposition to effectuate legal partition. (Paras 156-168).
Facts of the case:
The plaintiff filed for partition, claiming co-ownership with siblings of property owned by their mother, who had executed two Wills. The first Will granted equal shares to all heirs, while the second Will excluded one son, citing moral failing and adverse behavior, later contested by the excluded son as being under undue influence and fraudulent.
Findings of Court:
The court held that the first Will was valid and had been acted upon; the second Will was deemed invalid due to lack of evidence of validity and pervasive suspicious circumstances surrounding its execution.
Issues: The court primarily addressed the validity of the two Wills, whether the partition suit was maintainable given prior arrangements, and whether the suit was barred by non-joinder of necessary parties.
Ratio Decidendi: The court ruled that the first Will reflected the true intentions of the testator, and the absence of direct evidence supporting the second Will's authenticity, alongside demonstrated suspicious circumstances regarding its execution, led to its invalidation.
Result: The partition suit was decreed based on the first Will, with a corresponding share allocation among the heirs as outlined in the site plan attached to the judgment.
| Table of Content |
|---|
| 1. factual background of property ownership (Para 1 , 2) |
| 2. arguments related to partition and wills (Para 3 , 4 , 5 , 6 , 7 , 9) |
| 3. contentions against the validity of wills (Para 10 , 11 , 12) |
| 4. suspicious circumstances surrounding second will (Para 33 , 34 , 35 , 36) |
| 5. conclusion regarding effectiveness of wills and partition decree (Para 171 , 172 , 174) |
JUDGMENT
Neena Bansal Krishna, J. The plaintiff Sh. Ajay Khurania filed the suit for partition in the year 1999 in respect of property No.C-41, East of Kailash, New Delhi against his siblings being the lineal descendants of Smt. Gulab Devi. The eldest brother Sh. Mahendra Khurania, in return, filed a Probate case in the year 2000 in respect of Will dated 23.02.1994 of the mother Smt. Gulab Devi which was altered by the subsequent registered Will dated 14.05.1997. The two suits are being decided together as they involve common issues.
2. The factual background of the present disputes is that Late Smt. Gulab Devi mother of the parties to the suit, had purchased the property No.C-41, East of Kailash, New Delhi measuring 200 sq. yards (hereinafter referred to as suit property) from her own funds vide registered perpetual Lease Deed dated 27.01.1969. The two and half storey house was constructed by Smt. Gulab Devi where she resided with all the family members till her death on 31.07.1997. The husband of Smt. Gulab Devi predeceased her on 20.08.1976. Smt. Gulab Devi was survived by four sons and three daughters.
3. Civil Suit No. 345/2018 (earlier CS (OS) No. 321/1999) has been filed by the two sons Shri Ajay Kumar Khurania and Shri Avinash Kumar Khurania against the remaining legal heirs claiming partition of the suit property by asserting that the plaintiffs and defendant No.1 Shri Mahendra Khurania and defendant No. 2 Shri Chandra Prakash are in joint possession of the entire suit property and are in physical possession of the portions as specified in the Site Plan annexed with the plaint. The plaintiffs have let out their respective portions. Likewise, Second Floor, Barsati Floor which is in joint possession of plaintiffs and defendant No.1 and defendant No.2 has been let out to one tenant Mr. Trivedi, who is paying rent to defendant No.1 for and on behalf of all the legal heirs of Late Smt. Gulab Devi. It is claimed that there is a single electricity and water meter and the parties to the suit have installed their separate sub-meters for various parts of the property. The plaintiffs have asserted that they along with defendants Nos. 1 to 4, are co-owners to the extent of 1/6th undivided share and have sought partition accordingly. A decree of mandatory injunction is also sought to direct defendant No.1 to remove the unauthorized and illegal construction raised by him in the front courtyard of the ground floor of the suit property.
4. The defendant No.1 Shri Mahendra Kumar Khurania and defendant No.2 Shri Chandra Prakash Khurania in their joint written statement have raised preliminary objections that the suit is not maintainable in its present form as the suit property has already been partitioned by their mother, late Smt. Gulab Devi, through a registered Will dated 23.02.1994. Also, the suit is bad for non-joinder of necessary parties as the legal heirs of deceased third sister. Smt. Parvati have not been impleaded.
5. On merits, while admitting that Smt. Gulab Devi was the exclusive owner of the property, it is explained that the construction of the property was done in two phases. Smt. Gulab Devi from her own funds had raised the construction on the ground floor in the year 1969, while the remaining construction was carried out in the year 1987 from the financial support given by Shri Mahendra Kumar Khurania. It is denied that Smt. Gulab Devi died intestate, but it is asserted that she had initially executed a registered Will dated 23.02.1994 which was altered by the subsequent registered Will dated 14.05.1997. It is admitted that the plaintiffs and defe
