In this first appeal against a partition decree, the High Court upheld the trial court's finding that the testator executed a valid Will in 1989 despite allegations of unsound mind. The court dismissed the appeal, holding partition suitable despite jurisdictional objections.
The appeal was dismissed and the trial court's decree for partition was upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
*IN THE HIGH COURT OF DELHI AT NEW DELHI
PREM MEHTA ..... Appellant
Through: Appellant in person.
Versus
RAJ KUMAR MEHTA & ORS. ..... Respondents Through: Mr. Sanjiv Bahel, Adv.
CORAM:HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
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Mehta during his lifetime executed his last Will on 21st July, 1989 and which Will was registered with the Sub-Registrar, New Delhi as Document No.3495 in Additional Book No.III, Volume No.514 at Pages 75-80 dated 21st July, 1989; iii) that in the aforesaid Will Sh. Bhag Mal Mehta mentioned property No.7A/70, WEA, Karol Bagh, New Delhi, measuring 173.25 sq. yds. as his self acquired property and the suit was being filed seeking partition of the said property by metes and bounds as per the said Will; iv) that the respondent no.1 / plaintiff had already obtained Succession Certificate in respect of movable assets of Late Sh. Bhag Mal Mehta; v) that after the death of Sh. Bhag Mal Mehta, the respondent no.1 / plaintiff requested the appellant and the respondents no.2&3 / defendants to partition the property by metes and bounds as per the Will but they were refusing to do so; vi) that as per the said Will, the respondent no.1 / plaintiff had become the absolute owner of the entire ground floor and the barsati floor and the appellant and the respondents no.2 &3 / defendants were entitled to first floor only of the property; vii) that the respondent no.1 / plaintiff was in possession of the entire ground floor and the appellant and the respondents no.2&3/defendants were in possession of first floor of the property; the barsati floor was jointly occupied by the respondent no.1 / plaintiff and the
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appellant and the respondents no.2&3 / defendants “though the defendants allegedly claim their possession over the same”; viii) accordingly, the relief of partition of the property by metes and bounds as per their respective shares by virtue of the Will was claimed.
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and if somebody asked him to come out of bathroom, he used to say that he was sitting in his bedroom and not to disturb him; he used to take off his clothes and would not put them on himself until somebody helped him; vi) that Sh. Bhag Mal Mehta was suffering from various ailments since the year 1976 and his health worsened day-by-day and in the year 1989, he was totally bed-ridden and could not even walk properly; vii) that in fact Sh. Bhag Mal Mehta had executed a Will dated 10th March, 1975—the said Will is genuine and correct; viii) that there was no reason for Sh. Bhag Mal Mehta to change the said Will; ix) that partition has already taken place in the year 1971, during the lifetime of Sh. Bhag Mal Mehta—as per the wish, and the defendants were given the first floor and the barsati floor and the ground floor which was having more than six rooms was given to the respondent No.1/plaintiff; x) that it was agreed between the parties in the Succession Court that movable properties shall be divided equally without prejudice to their rights; and xi) denying that the barsati floor was jointly occupied by the parties and claiming that the defendants were in exclusive possession of the first floor and the barsati floor; and, xi) that partition has to take place as per the registered Will dated 10th March, 1975 which is the only and genuine Will left by Sh. Bhag Mal Mehta.
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“Issue No.1 Whether the plaintiff is entitled to partition as prayed for? OPP Issue No.2 Relief.”
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Thereafter, vide order dated 16th December, 2009, the following
additional issues were framed:
2. Whether the deceased/executant of Will was not of sound mind at the material time of execution of the Will? If so, its effect? OPD
3. Whether the suit is not maintainable in the present form? OPD”
(i) that the controversy in the suit revolved around the validity of the Will dated 21st July, 1989;
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(ii) that the respondent No.1/plaintiff had examined one of the attesting witness to the Will who had proved the said Will;
(iii) that the attesting witness in his cross-examination denied that Sh. Bhag Mal Mehta did not personally go to the Sub-Registrar Office and did not present himself for the purpose of registration or that any other person impersonated himself as Sh. Bhag Mal Mehta for the purpose of registration of the Will;
(iv) that the Legal Representative of the respondent No.1/plaintiff (i.e. Dr. Nutan Mehta) had deposed that the Succession Certificate was granted without going into merits and controversies of respective Wills and also deposed that Sh. Bhag Mal Mehta was hail and hearty and had no problem regarding walking, talking, vision and climbing stairs etc;
(v) that as per the law, propounder of the Will has to show that the Will was signed by the testator and that the testator had put his signatures to the testament of his own free will and that the testator at the relevant time was in a sound disposing state of mind and understood the nature and effect of the disposition and that the testator
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had signed in the presence of two witnesses who attested it in the presence of the testator and in the presence of each other;
(vi) that the attesting witness to the Will examined by the respondent No.1/plaintiff had proved so;
(vii) that once the aforesaid is proved, the onus of the propounder of the Will is discharged unless any other special circumstances are pleaded;
(viii) that in the instant case, the appellant and the respondents No.2&3 / defendants had pleaded that Sh. Bhag Mal Mehta was not possessing good mental health for two years prior to his death and that he was not behaving rationally;
(ix) that though the appellant/defendant appearing in the witness box deposed on the same line and also stated that her son used to take Sh. Bhag Mal Mehta to Wellington Hospital and dispensary at Pusa Road but claimed that she was not in possession of medical prescription to show that she ever bought any medicine for Sh. Bhag Mal Mehta or that she was visiting Wellington Hospital for the ailment and deposed that she had disposed of all the said documents;
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(x) that the appellant/defendant could not even tell the name of the Doctor under whose treatment Sh. Bhag Mal Mehta was;
(xi) that Sh. Vinod Kumar examined by the appellant and the respondents No.2&3 / defendants also deposed on the same line but the evidence of the appellant and the respondents No.2&3 / defendants was vague and bald regarding the mental and physical health of Sh. Bhag Mal Mehta; they had not specifically shown as to from what ailment Sh. Bhag Mal Mehta was suffering and had also not produced any material on record to show that Sh. Bhag Mal Mehta was not in a sound disposing mind;
(xii) that the respondent No.1/plaintiff had thus successfully proved that Sh. Bhag Mal Mehta had executed the registered Will dated 21st July, 1989 which was duly attested by attesting witnesses;
(xiv) that no probate of the Will was required to be obtained before making a claim on the basis thereof; reliance was placed on Santosh
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Kakkar Vs. Ram Prasad 71 (1998) DLT 147 holding that the executor or legatee can establish his rights under a Will executed in Delhi without seeking probate;
(xv) that since the shares of the parties in the properties were as per the Will which had been proved, no preliminary decree was required to be passed.
Accordingly, a decree for partition was passed partitioning the property by metes and bounds as per Will dated 21st July, 1989 of Sh. Bhag Mal Mehta.
(a) that the findings of the learned ADJ are based on conjectures and on faulty appreciation of evidence;
(b) that the learned ADJ has failed to appreciate that the suit for partition was not maintainable without claiming possession;
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(c) that the attesting witness to the Will examined was also the draftsman of the Will—no reliance could be placed on his evidence;
(d) that the learned ADJ has not given due weightage to the testimony of Sh. Vinod Kumar examined by the appellant/defendant and respondents No.2&3 / defendants.
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v) he has identified his own signatures, signatures of Sh. Bhag Mal Mehta, signature of Sh. V.R. Iyer, other attesting witness as well as signature of Sh. I.C. Garg, Advocate at Sub Registrar Office who facilitated the registration, on the original Will on trial court record and deposed of the chronology in which signatures were put. The Will thus stands proved by him. I have carefully perused his lengthy cross-examination by the counsel for the appellant and the respondents No.2&3 / defendants and I do not find the same to have dented his testimony in proof of the Will and in proof of the mental condition of Sh. Bhag Mal Mehta at the time of making of the said Will. I find the appellant and the respondents no. 2&3/defendants to have also filed before the trial court the certified copy of the earlier Will registered on 20th March, 1975, though did not prove the same. The same is also found to have the same Sh. V.R. Iyer as witness. The signatures of Sh. Bhag Mal and Sh. V.R. Iyer on the Will registered on 20th March, 1975 and on the Will dated 21st July, 1989 at least to the naked eye appear to be of the same person, save with differences owing to passage of time. The earlier Will also contains witness of one Mr. S.S. Madan, Advocate.
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Mal Mehta at the time of execution of the Will being not in a sound mental condition. She in her cross-examination admitted that Sh. Bhag Mal Mehta during his lifetime was residing on the ground floor of the subject property along with the family of the respondent No.1/plaintiff. She also admitted that Sh. Bhag Mal Mehta till two years prior to his death used to climb up to the first floor of the property where she was residing. As far as the testimony of Sh. Vinod Kumar examined by the appellant and the respondents No.2&3 / defendants is concerned, he is admittedly neither a neighbor nor a relative. However, he claimed to have visited Sh. Bhag Mal Mehta during the period 1988 to 1990 and claimed to have found him of unsound mind and not understanding anything; he has however not disclosed the reason for his such visits. In cross-examination, he stated that he used to visit the appellant/defendant who was living on the first floor, that would however still not explain his visit to the ground floor. Rather, he admitted that he had never seen the ground floor from inside and only used the staircase from the ground to the first floor. I find the said Sh. Vinod Kumar to be an interested and unreliable witness.
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without claiming the relief of possession was not maintainable. No merit is found in the said contention. It is a settled position in law that while claiming the relief of partition, no separate relief for possession is required to be claimed. The relief of possession of separate share, if the property is capable of division by metes and bounds, is imbedded in the relief of partition. It was so held by Supreme Court in Prokash Chandra Mukherjee Vs. Saradindu Kumar Mukherjee (1971) 3 SCC 607.
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Here, the case of the respondent no.1/plaintiff was that he was the owner of ground floor, of which he was in exclusive possession and appellant and respondents no. 2&3 / defendants were the owners of first floor, of which they were in exclusive possession of. There was thus no need for partition thereof. As far as the barsati/second floor was concerned, that according to the respondent no.1/plaintiff himself belonged exclusively to him; the question of filing a suit for partition with respect thereto did not arise. However as aforesaid, the appellant and respondents no. 2&3/defendants did not clearly urge the said plea and which resulted in the same remaining to be adjudicated. I am now, after the parties have been litigating for over 18 years, not willing to non suit the respondent no.1/plaintiff for reason thereof. Such a plea indeed ought to have been taken by way of a preliminary issue. Now, when the real controversy between the parties i.e. as to the Will dated 21st July, 1989 has been adjudicated and as outcome whereof respondent no.1/plaintiff indeed is entitled to the barsati/second floor, it is not deemed appropriate to direct the respondent no.1/plaintiff to file, instead of a suit for partition, a suit for possession. More so when the difference is only in terms of court fee. In fact it is also not known what court fee is payable on final
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decree for partition and whether the respondent no.1/plaintiff at all has gained.
No costs.
Decree Sheet be prepared.
Trial Court file be returned.
RAJIV SAHAI ENDLAW, J.
MARCH 18, 2016
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3 issues framed by the court
Whether the finding that the appellant failed to prove the testator was of unsound mind at the time of executing the Will is correct.
Whether a suit for partition requires a separate claim for possession when the property can be divided by metes and bounds.
Whether the suit was maintainable given that the respondent claimed exclusive ownership of the barsati/second floor under the Will.
Colour shows how this judgement treated each authority
Santosh Kakkar Vs. Ram PrasadReferred¶14
Santosh Kakkar Vs. Ram Prasad 71 (1998) DLT 147 · Who else cites this
Prokash Chandra Mukherjee Vs. Saradindu Kumar MukherjeeReferred¶77
Prokash Chandra Mukherjee Vs. Saradindu Kumar Mukherjee (1971) 3 SCC 607 · Who else cites this
3 provisions across 3 enactments
Prem Mehta
Raj Kumar Mehta
Rajiv Sahai Endlaw
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
