TaxTMI 
TaxTMI 
2019 (1) TMI 1930
X X X X Extracts X X X X
X X X X Extracts X X X X
....e following issues were settled: "(i) Are the Plaintiffs entitled to be declared as owners of half portions of the property at B-10, West End, New Delhi as described in Schedule I to the plaint? (OPP) (ii) Are the Plaintiffs entitled to preliminary decree of partition and thereafter the final decree of partition by metes and bounds as prayed for in respect of the property at B-10, West End, New Delhi? (OPP) (iii) Are the Plaintiffs entitled to decree of permanent injunction in respect of the property at B-10, West End, New Delhi as prayed for? (OPP) (iv) Are the Plaintiffs entitled to be declared as owners of the property No. 510, Suryakiran Building, Kasturba Gandhi Marg, New Delhi? (OPP) (v) Are the Plaintiffs entitled to a decree for possession in respect of the property No. 510, Suryakiran Building, Kasturba Gandhi Marg, New Delhi? (OPP) (vi) Are the Plaintiffs entitled for a decree of permanent injunction in respect of the property No. 510, Suryakiran Building, Kasturba Gandhi Marg, New Delhi and effect thereof? (OPP) (vii) Is the Will dated 5th December 2000 propounded by Defendant No. 1 genuine? (OPD-1) (viii) In the event Defendant No. 1 succeeds in Issue No....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t No. 1 succeeds in Issue No. (vii), the effect thereof? (OPP) 5.1 To prove the Will, Defendant No. 1 entered into the witness box and exhibited the original Will as Ex. DW1/B. Case of the Defendant No. 1 in his written statement and evidence by way of affidavit is that Late Rajendra Vikram Singh was the elder brother of his father Late Jaswant Singh. Rajendra Vikram Singh moved to USA in late 1960s with his wife and daughters and executed a General Power of Attorney dated 29th March, 1974 in favour of Jaswant Singh following which all affairs pertaining to the estate of Rajendra Vikram Singh were maintained on his behalf entirely by Jaswant Singh. The said Power of Attorney was neither cancelled nor revoked during the lifetime of Rajendra Vikram Singh due to complete faith and trust he had in his brother Jaswant Singh and Defendant No. 1. Rajendra Vikram Singh, though a US citizen, used to frequently visit India and used to stay with Defendant No. 1 and his father when they would apprise him of the affairs of his properties as well as shares in his family estates. It is further deposed that the marriage between Rajendra Vikram Singh and Baljit Dhillon went through several rough p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ns of the Plaintiffs to the validity of the Will are that the Will was unnatural as the deceased Rajendra Vikram Singh shared a very good harmonious relationship with his four daughters, i.e. the Plaintiffs herein, on the last visit of the deceased to India plaintiff No. 1 i.e. PW-2 and her family members were together with the deceased and the deceased died holding the hands of Plaintiff No. 1, the witnesses to the Will cannot be believed as they are not natural witnesses and the language of the Will itself shows that Late Rajendra Vikram Singh was not the author thereof. It is thus claimed that the Will is a forged and fabricated document. Though in the pleadings it is enumerated as to how the Will is forged and fabricated, in the cross-examination of Defendant No. 1, the Plaintiffs challenged the fabrication in the Will on the count that the same was typed on blank signed page available with Defendant No. 1 which he had because of the trust exercised by Late Rajendra Vikram Singh in Defendant No. 1 and his father. 5.4 To canvas the first objection that Rajendra Vikram Singh shared a very good and harmonious relationship with his four daughters hence, it was unnatural for him to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he testimony of the two attesting witnesses as Puneet Sharma stated that the Will was attested definitely not in the drawing room whereas Suresh Pal stated that it was attested in the drawing room. Puneet Sharma stated that Rajender Vikram Singh was wearing a jacket and trouser whereas Suresh Pal stated that he was wearing a coat and pant. In the affidavit of evidence both witnesses of the Will stated that Tejinder Pal Mann read over the Will whereas to the police they stated that Rajender Vikram Singh read over the Will before they signed it. Thirdly, learned counsel for the plaintiffs contends that the language used in the Will cannot be of a person like Rajendra Vikram Singh who was highly educated and a scientist at NASA, as it was written without punctuation marks and gaps. 5.7 Countering the contentions of learned counsel for the plaintiffs, learned counsel for the defendant on the first count submits that it is not the case of the defendant No. 1 that Rajendra Vikram Singh hated his daughters. The issue is not whether there were cordial relations between the father and the daughters but whether the plaintiffs had weak links with India and whether there was any justification....
X X X X Extracts X X X X
X X X X Extracts X X X X
....act that PW-2 and PW-3 both admitted that two of the plaintiffs never visited India. They did not even come to Court to depose in the present suit. Out of PW-2 and PW-3 who appeared, PW-3 had admittedly come to India once in the last ten years and PW-2 had come three-four times in the last ten years, whereas Rajendra Vikram Singh visited India atleast once if not twice or thrice in a year and whenever he came to India he stayed for two-three months. Further whenever Rajendra Vikram Singh came to India he was never accompanied by any of his daughters except that PW-2 visited India during the last visit of Rajendra Vikram Singh to India. Thus even if on an average Rajendra Vikram Singh visited India once or twice a year, he stayed in India approximately for a period of four to five months in India and every time with his brother and his family i.e. the defendant No. 1. 5.9 The intention of Rajendra Vikram Singh is evident in so far all his properties in USA were inherited by his daughters in the absence of a Will and since they had no links with India he bequeathed the immovable properties in India to defendant No. 1. The plaintiffs were aware that the two properties at Rajasthan an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on account that he is not highly educated. Further Puneet Sharma in his cross-examination stated that his father and Rajendra Vikram Singh were friends since they were residing in Chakrota and had a long standing relationship. Thus it was not merely that Puneet Sharma was a friend of defendant No. 1 but the family friendship continued from the earlier generation between Rajendra Vikram Singh and father of Puneet Sharma. Testimonies of these witnesses qua time, place, person executing, presence of each other, the Will being already signed by the testator whereafter he again signed in their presence and they all signed in the presence of each other are unshaken in cross-examination. The testimony of the two attesting witnesses cannot be thrown out merely on account that one witness said that the testator was wearing a suit and the other said that he was wearing a jacket and pant or that the Will was attested in the drawing room or in the living room. Further merely because the deceased executed the Will when defendant No. 1 or his father were not at home nor did the deceased inform the defendant No. 1 or his father about the execution of the Will, would not make the Will suspect. 5.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ets, properties and cash in USA. 5.13 Learned counsel for plaintiffs has countered the intention in the Will only on the aspect that the four daughters have married foreigners of alien race and religion of non-Indian origin and that they have very weak links and ties in India. As noted above two of the plaintiffs have not even visited India for the last ten years. PW-3 visited only once in the last ten years and PW-2 visited only three-four times. Merely because PW-2 was present when Rajendra Vikram Singh died would not make her ties strong with India. It is the admitted case of the plaintiffs that even their bank accounts, shares, assets in India were also taken care of by the father of defendant No. 1 as Power of Attorney and there was never any dispute during the lifetime of their father Rajendra Vikram Singh or even thereafter qua their accounts. 5.14 Contention of learned counsel for the plaintiff that Rajendra Vikram Singh was a person with modern outlook working as a scientist in NASA and he merrily and happily performed the marriage of his daughters to foreigners does not affect the intention of the deceased to bequeath the property in India in favour of his nephew defend....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r Pal Mann were together at Vasant Kunj when a telephone call was received by Tejinder Pal Mann from Rajendra Vikram Singh to come to his house and they all went to his house. He further stated in cross-examination that he did not see the entire house and had gone to 2-3 rooms as well as office with Tejinder Pal Mann. He again clarified that when the Will was executed, five persons were present i.e. Rajendra Vikram Singh, Tejinder Pal Mann himself, Suresh Pal, Puneet Sharma and Brijender Mann. Suresh Pal even in his cross-examination stated that when he entered the house, on the left side, there was a room with an attached bathroom with three sofas and there was a table in the centre. Late Rajendra Vikram Singh was wearing a suit meaning thereby a coat and a pant. It is thus apparent whether that place is called a drawing room or living room both the witnesses have consistently stated that the room was on the left with sofas and a table therein. Further, both described that he was wearing a suit though one stated that he was wearing a jacket and one said it was a coat. This cannot be a material contradiction in the two statements warranting impeachment of their testimonies. Both th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n Races and Religions' of Non-Indian origin. They have very weak link or ties with India. I have spent considerable amount of money on their marriages, education etc. and have left for them considerable and sizeable assets and properties and cash in USA. All my daughters therefore, shall have no right or concern with my properties in India after my death. My divorced wife Baljit also has no legal or moral interest or share in any of my properties in India. This will of mine includes all my movable & immovable properties including my unpartitioned and unspecified and undeclared interest in any and all properties existing individually or in joint ownership with my brother Lt. Col. Jaswant Singh or anyone else in India." 5.19 The language in the Will is not of an illiterate person. Merely because punctuation such as comas have not been used cannot be a ground to come to the conclusion that the Will is forged and fabricated, particularly when the signatures of the deceased are not disputed and no evidence has been led by the plaintiffs to prove that blank signed documents were left by the deceased with the defendant No. 1 or his father and power of attorney executed in favour of....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Will dated 22nd December, 2000 was propounded by them. However, when the Will was sought to be produced in the Court contrary pleas were taken. In the Court plea taken was that the same has been lost on 31st January 2002 for which complaint was lodged, whereas to the Police it was stated that the Will was with the daughter in USA. Further the Probate Petition filed by the plaintiffs was dismissed for non-prosecution. 6.4 Supreme Court in the decision reported as (2012) 11 SCC 574 Badami v. Bhali while dealing with concealment of material facts in a suit noted as under: "29. Presently, we shall refer as to how this Court has dealt with concept of fraud. In S.B. Noronah v. Prem Kumari Khanna [(1980) 1 SCC 52: AIR 1980 SC 193] while dealing with the concept of estoppel and fraud a two-Judge Bench has stated that: (SCC p. 58, para 20) "20. It is an old maxim that estoppels are odious, although considerable inroad into this maxim has been made by modern law. Even so, 'a judgment obtained by fraud or collusion, even, it seems, a judgment of the House of Lords, may be treated as a nullity'. (See Halsbury's Laws of England, Vol. 16, 4th Edn., para 1553.) The point is th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dgment Lord Parker, L.J. observed that fraud 'vitiates all transactions known to the law of however high a degree of solemnity' (Lazarus case [(1956) 1 QB 702: (1956) 2 WLR 502: (1956) 1 All ER 341], QB p. 722)." 34. Yet in another decision Hamza Haji v. State of Kerala [(2006) 7 SCC 416: AIR 2006 SC 3028] it has been held that no court will allow itself to be used as an instrument of fraud and no court, by way of rule of evidence and procedure, can allow its eyes to be closed to the fact it is being used as an instrument of fraud. The basic principle is that a party who secures the judgment by taking recourse to fraud should not be enabled to enjoy the fruits thereof." 6.5 Supreme Court in the decision reported as (2010) 8 SCC 383 Meghmala v. G. Narasimha Reddy observed as under: "32. The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud. (See Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi [(1990) 3 SCC 655: 1990 SCC (L & S) 520: (1990) 14 A....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... [(2004) 3 SCC 1 : AIR 2004 SC 2836]) 35. In Kinch v. Walcott [1929 AC 482 : 1929 All ER Rep 720 (PC)] it has been held that: " mere constructive fraud is not, at all events after long delay, sufficient but such a judgment will not be set aside upon mere proof that the judgment was obtained by perjury". Thus, detection/discovery of constructive fraud at a much belated stage may not be sufficient to set aside the judgment procured by perjury. 36. From the above, it is evident that even in judicial proceedings, once a fraud is proved, all advantages gained by playing fraud can be taken away. In such an eventuality the questions of non-executing of the statutory remedies or statutory bars like doctrine of res judicata are not attracted. Suppression of any material fact/document amounts to a fraud on the court. Every court has an inherent power to recall its own order obtained by fraud as the order so obtained is non est. " 6.6 From the evidence led by the defendant No. 1 it is proved that the plaintiffs first sought inheritance of the properties based on a purported Will dated 22nd December, 2000 which never saw the light of the day in judicial/quasi-judicial proceedings and....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ions apply in the present case, for the Additional Civil Judge decided all the four suits on the merits and decided the issue as to title on merits against the appellant and his father. It is true that the High Court dismissed the appeals arising out of Suits Nos. 77 and 91 either on the ground that it was barred by limitation or on the ground that steps had not been taken for printing the records. Even so the fact remains that the result of the dismissal of the two appeals arising from Suits Nos. 77 and 91 by the High Court on these grounds was that the decrees of the Additional Civil Judge who decided the issue as to title on merits stood confirmed by the order of the High Court. In such a case, even though the order of the High Court may itself not be on the merit the result of the High Court's decision is to confirm the decision on the issue of title which had been given on the merits by the Additional Civil Judge and thus in effect the High Court confirmed the decree of the trial court on the merits, whatever may be the reason for the dismissal of the appeals arising from Suits Nos. 77 and 91. In these circumstances though the order of the High Court itself may not be on t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal. (emphasis supplied)" 7.3 Apex Court in the decision reported as (2009) 1 SCC 689 State of U.P. v. Jagdish Sharan Agrawal while placing reliance on its earlier decision reported as (1971) 1 SCC 387 Ram Gobinda Dawan v. Bhaktabala held that dismissal of suit for non prosecution was not a decision on merit, thus, res judicata would not apply. It was observed as under: "14. In the present case, the suit filed by Nagar Palika was dismissed on technical ground and in any case the State was not a party. So far the suit where the State was a party and amendments were made, the same was dismissed for non-prosecution. But the same was not dismissed under Order 9 Rule 8. Order 9 Rule 8 and Order 9 Rule 9 CPC read as follows: "8. Procedure where defendant only appears.--Where the defendant appears and the plaintiff does not appear when ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of defendant No. 1 in the written statement is that the defendant No. 1 in the written statement filed in the earlier suit being CS(OS) No. 1207/2001, specifically contended that Surya Kiran Building flat stood transferred in his name, hence the present suit for the relief of declaration of ownership of the flat vesting in the plaintiffs is beyond the period of limitation. 9.2 The present suit was instituted on 21st May, 2009. It is not denied by the plaintiffs that in the earlier suit written statement of the defendant No. 1 informed about the transfer of ownership of the property No. 510, Suryakiran Building, Kasturba Gandhi Marg, New Delhi in his favour. Thus the period of limitation as contemplated to start from the date of knowledge would be the date of filing the written statement. Thus the present suit seeking the relief of declaration of ownership of the flat No. 510, Suryakiran Building, Kasturba Gandhi Marg, New Delhi is beyond the period of limitation. 9.3 Thus issue No. (xiv) is also decided against the plaintiffs and in favour of defendant No. 1. 10. Issue No. (i) Are the Plaintiffs entitled to be declared as owners of half portions of the property at B-10, West End....