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DELHI HIGH COURT
Ms. Mukta Gupta, J.
Sugeeta Chhabra —Plaintiff
versus
Harish Nayar —Defendant
IA 5013/2012 in CS (OS) 1342/2011
Decided on 3.1.14
Counsel for the Parties:
For the Plaintiff: Mr. Sanjeev Sindhwani, Sr. Adv. with Mr. Sanjay Dua, Adv.
For the Defendant Mr. R.P. Sharma, Advocate.
IMPORTANT POINT
If the defence is found to be moonshine, the Court shall be justified in passing a decree on admission on the ground that the defendant has not disclosed a triable defence.
Headnote:Civil Procedure Code, 1908—Order XII Rule 6—Suit for partition rendition of accounts and permanent injunction filed by plaintiff— Defence of defendant, brother of plaintiff that deceased father having left a Will plaintiff was not entitled to reliefs claimed— Application thereagainst by plaintiff contending that defence set up by defendant not being plausible, a decree under Order XII Rule 6 CPC was required to be passed in favour of plaintiff—Even if defendant was permitted to lead evidence he could not demonstrate that purported Will was signed and executed by testator or attested by witnesses and thus could not prove the Will as per Section 68 of Evidence Act— Since defendant even if permitted to lead evidence would not be able to prove the execution of a legal and valid Will, it would be thus deemed that deceased father passed away intestate—In view thereof, plea of plaintiff that she was entitled to 1/4th share in the suit property and half the share in the movable assets of deceased father was required to be allowed— Application disposed of passing a preliminary decree in favour of plaintiff and against the defendant. (Paras 7 to 9)
Result: Application disposed of.
Ms. Mukta Gupta, J.—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, 166 (2010) DLT 84. and Grammy Communications Pvt. Ltd. Vs. EMAAR MGF Land Ltd., 202 (2013) 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 relatio
