Delhi District Court
Surinder Kumar vs Madan Lala on 11 April, 2026
Surender Kumar vs. Madan Lal and Ors.
IN THE COURT OF SH. JITEN MEHRA, DISTRICT
JUDGE-10: CENTRAL DISTRICT, TIS HAZARI COURTS:
DELHI.
CNR NO.:- DLCT01-000026-1998
CS DJ NO.:- 611272/16
IN THE MATTER OF :-
SURENDER KUMAR
S/O LATE SHRI RAM DASS,
R/o 206-B, KISHAN GANJ MARKET
DELHI.
PLAINTIFF.........
Versus
1. MADAN LAL
S/O LATE SHRI RAM DASS
R/O 313/40, 4-B, INDER LOK,
DELHI - 110035.
2. PARVEEN KUMAR
3. RAJEEV KUMAR
BOTH SONS OF LATE SHRI RAM DASS.
R/O 313/40, 4-B, INDER LOK,
DELHI - 110035
4. YOGINDER KUMAR
S/O LATE SHRI RAM DASS,
AT PRESENT CONFINED TO
CENTRAL JAIL TIHAR, NEW DELHI.
CS DJ no. 611272/16 Page 1/177
Surender Kumar vs. Madan Lal and Ors.
5. RAJINDER KUMAR
S/O LATE SHRI RAM DASS,
C/O R-579, RISHI NAGAR,
SHAKUR BASTI, DELHI - 110034
6. SMT. JANAK BALA,
W/O LATE SH. CHANDER KUMAR
R/O 3/63, GURU ANGAD NAGAR,
NEAR RADHU PALACE, SHAHDARA,
DELHI.
7. MASTER CHANCHU MUNJAL
8. KUMARI NISHA,
9. KUMARI ASHA
ALL S/O & D/O LATE SH. CHANDER KUMAR
ALL R/O 3/63, GURU ANGAD NAGAR,
NEAR BADHU PALACE, SHADHARA, DELHI.
10. GAGANDEEP MUNJAL
S/O SH. YOGENER KUMAR
R/O F-237, RISHI NAGAR, RANI BAGH
DELHI - 110034.
DEFENDANTS...........
SUIT FOR PARTITION, RENDITION OF ACCOUNTS AND
PERMANENT INJUNCTION.
Date of Institution of the Suit : 18.09.1998
Date on which Judgment was reserved : 28.10.2025
Date of Judgment : 11.04.2026
::- J U D G M E N T -::
CS DJ no. 611272/16 Page 2/177
Surender Kumar vs. Madan Lal and Ors.
1. The plaintiff Sh. Madan Lal had initially instituted the
present suit for partition, rendition of accounts and permanent
injunction before the Hon'ble High Court of Delhi on
18.09.1998, however owing to the increase in the pecuniary
jurisdiction of the District Courts in Delhi, the present suit was
transferred to Tis Hazari District Court vide order dated
05.11.2003 passed by the ld. Joint Registrar of the Hon'ble High
Court as the value of the suit properties involved was less than
Rs. 20 lakhs.
2. The defendant no.10 Gagandeep Munjal, son of the
defendant no.4, was impleaded in the present suit on his
application under Order 1 rule 10 of the Code of Civil Procedure,
1908 (CPC) filed on 23.02.2007, which was allowed vide order
dated 12.05.2007.
3. That during the pendency of the suit, the defendant no.1
unfortunately expired on 06.11.2009 and his legal heirs (who
were already party to the suit as the defendants no.2 and 3) were
brought on record vide order dated 22.04.2010.
CS DJ no. 611272/16 Page 3/177
Surender Kumar vs. Madan Lal and Ors.
Plaintiff's version as per the amended plaint:
4. That the plaintiff was permitted to amend his plaint vide
order dated 21.11.2005 to correct the numbers of some of the suit
properties mentioned in the plaint.
5. As per the amended plaint, the plaintiff and the defendants
no. 1, 4 and 5 are the sons of Late Sh. Ram Dass. The defendants
no.2 and 3 are the sons of the defendant no.1. The defendant no.6
is the wife of Late Sh. Chander Kumar, the pre-deceased son of
Late Sh. Ram Dass. The defendants no. 7 - 9 are the children of
the defendant no.6 and her late husband.
6. It is stated that Late Sh. Ram Dass died on 21.09.1997 and
at the time of his death, he was having a 'right' in the following
properties:
i) WZ-711, Rishi Nagar, Shakur Basti, Delhi - 34.
ii) 313/40, B-4, Inderlok Tri Nagar, Delhi - 35.
iii) Portion of first floor and second floor of property no.
313/48, Plot No. B-6, Inderlok, Tri Nagar, Delhi - 35.
iv) Shop no. 19, 20 Har Lal Market, Sector No. 7, Rohini,
Delhi - 110085.
CS DJ no. 611272/16 Page 4/177
Surender Kumar vs. Madan Lal and Ors.
v) Horizontal Machine (PVT and 40 dies), Mixture and
Grinder Machines, raw material and finished goods worth
Rs. 10 Lakhs, jewellery, furniture, utensils, electronic
items, including color TV, fridge, V.C.R., V.C.P., table
fans, coolers, ceiling fans, godrej almirahs, exhaust fans
lying at premises no. 313/40, B-4, Inderlok Tri Nagar,
Delhi - 35.
7. It is stated that Late Sh. Ram Dass was also having fixed
deposits in the bank and shares in Unit Trust of India, and the
said deposit receipts and documents are lying in the possession of
the defendant no.1 and the exact amount of the said deposits is
also within the knowledge of the defendants no.1 - 3.
8. It is further stated that the plaintiff has acquired a right in
the aforementioned properties in equal shares along with the
defendants on the death of his father Late Sh. Ram Dass.
9. It is further stated in para no.6 of the amended plaint that
Late Sh. Ram Dass had been paying Rs. 5,000/- per month to the
defendant no.6 during his life time, as she was having no source
CS DJ no. 611272/16 Page 5/177
Surender Kumar vs. Madan Lal and Ors.
of income of her own. Further, Late Sh. Ram Dass was also
making 'arrangements' for the defendants no. 6 - 9 and after his
death, no amount was being received by the defendant no.6 from
the defendant no.1, although he had promised to pay the same on
several occasions in the presence of the plaintiff and other
defendants.
10. In para no.7 of the amended plaint, it is further stated that
"the defendant no.1 with a view to usurp the rights of the other
legal heirs fabricated a will dated 10th of June, 1995. No such will
was written or executed by the deceased late Shri Ram Dass in
sound deposing mind and he was having no right to make the
Will of the property bearing No. House No. 313/40, Inder Lok
Tri Nagar, Delhi - 110035 in favour of the defendant Nos. 2 and
3.".
11. It is further stated in para no.8 of the amended plaint that
"the said Will is not genuine will and there exists no reason to
make the WILL in favour of the Defendant Nos. 2 and 3. The
defendant Nos. 2 and 3 have not acquired any right in the said
property and as such all the properties left by the deceased late
CS DJ no. 611272/16 Page 6/177
Surender Kumar vs. Madan Lal and Ors.
Shri Ram Dass are to be partitioned and divided."
12. The plaintiff has further stated in para no.9 of the amended
plaint "That since the business of the deceased has been taken
over by the Defendant No.1 without giving anything either to the
Plaintiff or any of the defendants and he is drawing all benefits
and profits of the business which were being run by the father of
the Plaintiff late Shri Ram Dass, as such the Plaintiff is entitled to
the rendition of accounts of all the amounts received by him
including the Machinery in equal shares alongwith other
defendants. The defendant Nos. 1 to 3 are not making true and
correct entries of the sale proceeds and are manipulating the
account to harm the interest of the Plaintiff and other legal heirs
of late Shri Ram Dass."
13. The plaintiff states that he issued a legal notice dated
12.10.1997 to the defendant no.1 calling upon him to divide the
suit properties by way of metes and bounds and deliver his share,
however the defendants no.1 - 3 have not complied with the
same and hence the plaintiff has been constrained to file the
present suit for partition. It is further submitted that the
CS DJ no. 611272/16 Page 7/177
Surender Kumar vs. Madan Lal and Ors.
defendants no.1-3 are threatening to sell/dispose off the suit
properties so as to deprive the plaintiff and the other parties of
their legitimate share.
14. That cause of action for filing the present suit is stated to
have arisen on 21.09.1997, when Late Sh. Ram Dass had 'died'
and all the legal heirs acquired rights in the properties. The cause
of action is stated to have further arisen on 12.10.1997 when the
plaintiff issued the legal notice to the defendant no.1 to divide the
properties by way of metes and bounds and thereafter again in
the last week of June, 1998 when he requested the defendants to
divide the property by way of metes and bounds. The cause of
action further arose on 09.10.2005 when the defendants no.1-3
have raised unauthorised construction on the suit property.
15. In para no.14 of the amended plaint, the plaintiff has
valued the present suit for the purpose of court fees and
jurisdiction at Rs. 20,00,000/-, on which appropriate court fees is
stated to have been paid.
16. Hence, this present suit seeking partition of the properties
CS DJ no. 611272/16 Page 8/177
Surender Kumar vs. Madan Lal and Ors.
by way of metes and bounds and a decree for rendition of
accounts against the defendants no.1 - 3 to render the accounts
for the profits and assets left by Late Sh. Ram Dass. A decree for
permanent injunction is also sought against the defendants no.1-3
restraining them from selling or transferring the suit properties or
raising any unauthorised construction over the same.
Defendants' versions as per their written statements:
17. The defendant no.5, Rajinder Kumar was served by way of
affixation and did not appear in the present suit and consequently
did not file any written statement as well. He was also proceeded
ex-parte vide order dated 04.03.2005.
Written statement of the defendants no.1-3
18. The ld. Counsel for the defendants no.1-3 submitted that
the written statement filed by the answering defendants no. 1 - 3
to the original plaint be treated as their written statement to the
amended plaint as well, which submission is recorded in the
order dated 27.11.2006. This Court allowed the said request and
the written statement of the defendants no.1-3 to the original
plaint was treated as their written statement to the amended
CS DJ no. 611272/16 Page 9/177
Surender Kumar vs. Madan Lal and Ors.
plaint.
19. The defendants no.1-3 filed a joint written statement in
which they raised the preliminary objections that the plaintiff has
suppressed material facts and has not approached the Court with
clean hands.
20. It is submitted that the plaintiff has not disclosed in the
plaint that the plaintiff and the defendants no. 4 and 5 had
severely strained relations with their father Late Sh. Ram Dass,
who had disinherited them from his estate/assets. Further, the
plaintiff has also suppressed the fact that Late Sh. Ram Dass was
murdered at his residence by the defendant no.4 on the night
between 20.09.1997 and 21.09.1997. The plaintiff has also not
disclosed that on the same night and at the same spot, the
defendant no.4 also murdered the minor son of the defendant
no.1, i.e. Master Sanjiv Kumar. It is submitted that the plaintiff
abetted the commission of the said crime and till date is also
helping the defendant no.4. It is submitted that the plaintiff's
claim that he is entitled to equal share in the properties of Late
Sh. Ram Dass along with the defendants no.1 and 4 - 9 is
CS DJ no. 611272/16 Page 10/177
Surender Kumar vs. Madan Lal and Ors.
misconceived in view of section 25 of the Hindu Succession Act,
1956 (HSA).
21. It is further submitted that Late Sh. Ram Dass also got
published a public notice dated 10.06.1993 in the newspaper
'Punjab Kesari', Delhi edition, in which he declared that he had
disinherited the plaintiff and the defendants no.4 and 5. Hence,
the plaintiff and the other defendants have no right or title in the
properties of Late Sh. Ram Dass.
22. The answering defendants no.1 - 3 also submitted that
Late Sh. Ram Dass was the owner of only the following
immovable properties, i.e. : (a) 313/40, B-4, Inderlok, New Delhi
and (b) First floor and Second floor of property no. 313/48, Plot
No. B-6, Inderlok, New Delhi, and the other properties
mentioned in the plaint did not belong to Late Sh. Ram Dass. It is
further submitted that the defendants no.1 and 2 are the owners
of property no. WZ-711, Rishi Nagar, Shakur Basti, Delhi - 34,
being their self-acquired property. It was further submitted that
the defendant no.1 is a tenant the shop no. 19, 20 Har Lal Market,
Sector No. 7, Rohini, Delhi - 110085.
CS DJ no. 611272/16 Page 11/177
Surender Kumar vs. Madan Lal and Ors.
23. It is submitted that the averments of the plaint are also
vague as no details of the alleged business, raw materials,
finished goods, jewellery, bank deposits etc. belonging to Late
Sh. Ram Dass have been provided in the said plaint. The plaintiff
has made bald and unsubstantiated averments in the plaint
lacking in material facts and particulars.
24. It is also submitted that vide a registered will dated
10.01.1995, Late Sh. Ram Dass bequeathed the properties no.
313/40, B-4, Inderlok, New Delhi and First Floor and Second
Floor of property no. 313/48, B-6, Inderlok, New Delhi to the
defendants no.2 and 3. As per the said will, the defendant no.2 is
the owner of the basement and ground floor of property no.
313/40, B-4, Inderlok , New Delhi and the defendant no.3 is the
owner of the remaining floors, i.e. the first, second and third
floors in the said property. Further the defendant no.2 is the
owner of the first and second floors of the property no. 313/48,
B-6, Inderlok, New Delhi.
CS DJ no. 611272/16 Page 12/177
Surender Kumar vs. Madan Lal and Ors.
25. It is further submitted that Late Sh. Ram Dass had settled
the plaintiff in his lifetime as he had given the shop no.206-B,
Kishan Ganj Market, Delhi to him, from which shop the plaintiff
is also conducting his business. It is submitted that Late Sh. Ram
Dass, in his lifetime, also distributed his movable assets and gold
to his sons, including the plaintiff. The remaining cash and gold
ornaments lying with Late Sh. Ram Dass were stolen by the
plaintiff and the defendants no. 4 and 5 on 23.09.1993 from his
house.
26. It is submitted that at the time of his death, Late Sh. Ram
Dass had stopped all his business activities and owned only a few
articles of personal use including one old cooler, fridge, fan and
some useless furniture. The answering defendants no.1-3 denied
that Late Sh. Ram Dass left behind machinery, raw materials and
finished goods worth Rs. 10 lakhs, fixed deposits or shares as
stated in the plaint. It is also denied that Late Sh. Ram Dass left
behind any business or business assets or that the defendants
no.1-3 were earning profits from the same.
CS DJ no. 611272/16 Page 13/177
Surender Kumar vs. Madan Lal and Ors.
27. As per the answering defendants no.1-3, the plaintiff has
acted in collusion with the defendants no.4 - 6 to try to snatch
the assets and properties of Late Sh. Ram Dass even during his
lifetime. The plaintiff in collusion with the said defendants
constantly quarreled with him and made his life miserable, which
led to Late Sh. Ram Dass even lodging complaints with the
police against the plaintiff and the said defendants clearly stating
that he feared for his life and property at their hands. It was only
the defendant no.1 and his family who stood by Late Sh. Ram
Dass during his lifetime.
28. The answering defendants also denied that the present suit
had been correctly valued or that the correct court fees has been
paid thereon. It was denied that the plaintiff was in possession of
any of the properties and hence was liable to pay ad valorem
Court fees on the market value of the properties.
29. In the reply on merits, the answering defendants no.1-3
reiterated that Late Sh. Ram Dass had been murdered at his
residence by the defendant no.4 on the night between
20.09.19979 and 21.09.1997. They also denied that Late Sh. Ram
CS DJ no. 611272/16 Page 14/177
Surender Kumar vs. Madan Lal and Ors.
Dass was the owner of property no. WZ-711, Rishi Nagar,
Shakur Basti, Delhi - 34 or Shop no. 19, 20 Har Lal Market,
Sector No. 7, Rohini, Delhi - 110085. The averments of the
plaintiff that Late Sh. Ram Dass left behind the movable
properties as stated in the plaint were also denied. The averments
of the plaint that Late Sh. Ram Dass was paying an amount of
Rs. 5,000/- to the defendant no.6 or that the defendant no.1 had
promised to continue to pay the same were also denied. It is
submitted that infact the plaintiff and the defendant no.6 got
married illegally after the death of her husband and despite the
fact that the plaintiff's marriage with his wife was still subsisting.
The wife of the plaintiff also filed matrimonial and criminal cases
at Kurukshetra against the plaintiff, who was also convicted by
the concerned Court and imprisoned for two years along with
fine of Rs. 5,000/-.
30. The answering defendants no.1-3 denied that the defendant
no.1 had fabricated a Will dated 10.06.1995 and reiterated that
Late Sh. Ram Dass had executed a will dated 10.01.1995 in
favour of the defendants no.2 and 3. They also denied that Late
Sh. Ram Dass was carrying on any business at the time of his
CS DJ no. 611272/16 Page 15/177
Surender Kumar vs. Madan Lal and Ors.
death, or that the same was taken over by the answering
defendants. It was submitted that the question of making any
fraudulent entries by them also did not arise as there existed no
business of Late Sh. Ram Dass itself and hence they were not
required to render any accounts as well. The answering
defendants no. 1 - 3 also denied receiving any legal notice dated
12.10.1997 from the plaintiff. They also denied that any cause of
action has arisen in favour of the plaintiff to file the present suit
and sought for it's dismissal with exemplary cost.
Written statement of the defendant no. 4
31. It is pertinent to mention that during the pendency of the
present suit, the defendant no.4 was convicted for the murder of
Late Sh. Ram Dass and Sanjeev Kumar @ Sunny under section
302 of the Indian Penal Code, 1860 (IPC), in FIR no. 499/97, P.S.
Rohilla, Delhi by the Court of the Ld. Additional Sessions Judge,
Delhi vide it's judgment dated 07.05.2004 and sentenced to
undergo life imprisonment alongwith fine of Rs. 5,000/-, and in
default to undergo further simple imprisonment for six months
vide it's sentencing order dated 27.05.2004. The defendant no.4
filed his written statement from the jail while serving the
CS DJ no. 611272/16 Page 16/177
Surender Kumar vs. Madan Lal and Ors.
aforementioned imprisonment sentence.
32. The defendant no.4 in the reply on merits of his written
statement, denied that Late Sh. Ram Dass had died on
21.09.1997 and otherwise admitted the averments of the plaint
and claimed 1/5th undivided share in the properties of Late Sh.
Ram Dass. However, he denied that Late Sh. Ram Dass had been
paying Rs. 5,000/- per month to the defendant no.6, but admitted
that after the death of Late Sh. Ram Dass, the defendant no.1 had
been paying the same to the defendant no.6 as she had no source
of income. He stated that the defendant no.1 had fabricated the
will dated 10.06.1995 of Late Sh. Ram Dass and the execution of
the same was never disclosed by Late Sh. Ram Dass or the
defendants to anyone. He also stated that the income of the
business of Late Sh. Ram Dass was being retained by the
defendant no.1. He further stated that the defendant no.1 had not
extended any threats with respect to selling of the properties to
him and denied the averment for lack of knowledge. He sought
for division of the properties of Late Sh. Ram Dass by way of
metes and bounds and claimed 1/5th undivided share therein.
Written statement of the defendants no. 6 - 9
CS DJ no. 611272/16 Page 17/177
Surender Kumar vs. Madan Lal and Ors.
33. The answering defendants no. 6 - 9 raised the preliminary
objections that the plaint did not disclose the entire properties of
Late Sh. Ram Dass and submitted that property bearing no.
206B, Kishan Ganj Market, Delhi was also a joint property,
which was amenable to partition.
34. They submitted that the defendant no.6 is the wife of Late
Sh. Chander Kumar, son of Late Sh. Ram Dass and at present
since the defendant no.7 is a minor, the defendant no.6 being his
natural guardian was filing the written statement on his behalf. It
is further submitted that Late Sh. Chander Kumar expired on
12.10.1991 leaving behind his children, i.e. the defendants no. 7
- 9. The defendant no.6 lived at her matrimonial home till the
year 1999 and was thereafter was forced by the defendants to live
at her paternal home. She stated that the property bearing no.
206B, Kishan Ganj Market, Delhi was earlier in the possession of
her husband and after his death, the plaintiff is in possession of
the same and deriving profits and income by running a shop
therein. She denied that after death of her father-in-law Late Sh.
Ram Dass she was paid Rs. 5,000/- per month as stated in the
plaint.
CS DJ no. 611272/16 Page 18/177
Surender Kumar vs. Madan Lal and Ors.
35. In the reply on merits, the answering defendants no. 6 - 9
did not deny the averments of the plaint, except to state that the
property bearing no. 206B, Kishan Ganj Market, Delhi be also
included in the list of properties for partition as the said property
was established out of joint Hindu family income. The defendant
no.6 further stated that she had been informed by her husband
that there were some fixed deposits and UTI shares belonging to
late Sh. Ram Dass. She stated that Late Sh. Ram Dass had been
paying Rs. 5,000/- to her during his lifetime, however after his
death, the other family members stopped paying the same. She
stated that Late Sh. Ram Dass had made the arrangement after
the death of her husband Late Sh. Chander Kumar as he had been
running his shop at property bearing no. 206-B, Kishan Ganj
Market, Delhi, which shop was then being run by the plaintiff.
She denied for want of knowledge that after the death of Late Sh.
Ram Dass, the defendant no.1 was supposed to pay the said
amount to her and stated that both the plaintiff and the defendant
no.1 were responsible to pay the said amount to her.
CS DJ no. 611272/16 Page 19/177
Surender Kumar vs. Madan Lal and Ors.
36. With respect to the averment of the plaint that the
defendant no.1 had fabricated the will dated 10.06.1995 of Late
Sh. Ram Dass, she stated in para no.7 of the reply on merits
"That the answering defendants are not in position give any reply
to para no.7 as they have no knowledge about the facts relating to
any Will or Deed executed in favour of any defendants or
plaintiff".
37. The answering defendants further admitted the averments
of the plaint relating to the business of Late Sh. Ram Dass having
been taken over by the defendant no.1 after his death and further
added that the plaintiff has also taken over the property no. 206-
B, Kishan Ganj Market, Delhi to the exclusion of the answering
defendants. The issuance of the legal notice dated 12.10.1997
was denied for want of knowledge. The defendant no.6 stated
that being a hapless lady, she was never allowed to participate in
the family affairs by her husband's family either prior to her
husband's demise or thereafter. Further, being responsible for
three minor children, she was never in a position to raise her
voice in the family. During the lifetime of Late Sh. Ram Dass, he
looked after the needs and rights of the answering defendants and
CS DJ no. 611272/16 Page 20/177
Surender Kumar vs. Madan Lal and Ors.
give amounts for their day to day needs. However, after Late Sh.
Ram Dass passed away, the other family members forced her to
leave her matrimonial home and reside separately.
38. The answering defendants also sought for the partition of
the properties of Late Sh. Ram Dass, including the property no.
206-B, Kishan Ganj Market, Delhi.
Written statement of the defendant no.10
39. The defendant no.10 Gagandeep Munjal, son of the
defendant no.4, was impleaded in the present suit on his
application under order 1 rule 10 CPC filed on 23.02.2007, which
was allowed vide order dated 12.05.2007 on the ground that he
was a grand-son of Late Sh. Ram Dass and a co-parcenor and
since his father was in judicial custody, he had an interest which
would be adversely affected if not heard in the present matter.
40. In the reply on merits, the defendant no.10 admitted the
averments of the plaint and sought for the division of the
properties of Late Sh. Ram Dass by way of metes and bounds.
Replication by the Plaintiff:
41. Despite opportunity given, the plaintiff did not file any
CS DJ no. 611272/16 Page 21/177
Surender Kumar vs. Madan Lal and Ors.
replication to the written statements of the defendants no.1-3,
defendant no.4 and the defendant no. 10. The plaintiff only filed
the replication to the written statement of the defendants no. 6 -
9, in which he stated that the property no. 206B, Kishan Ganj
Market Delhi was not owned by Late Sh. Ram Dass and was also
never in the possession of the husband of the defendant no.6. He
further stated that he was the owner of the said shop.
Issues framed:
42. Upon completion of pleadings, the following issues were
framed vide order dated 07.04.2008:
1. Whether the plaintiff and defendant no. 4 and 5 were
disinherited by the deceased late Sh. Ram Dass from his
estate? If so, what is its effect? OPD-1
2. Whether the suit of the plaintiff as framed is hit by the
provisions of section 25 of the Hindu Succession Act?
OPD-1-3
3. Whether the deceased late Sh. Ram Dass was owner of
the properties as mentioned in para no.3 and 4 of the
plaint? OPP
4. Whether late Sh. Ram Dass bequeathed his right, title
and interest in property no. 313/40, Inder Lok, New Delhi
and the first and second floor of property no. 313/48, B-6,
Inderlok, New Delhi in favour of the defendant no.2 and 3,
who are his grandsons, if so, what is its effect? OPD 1 - 3
CS DJ no. 611272/16 Page 22/177
Surender Kumar vs. Madan Lal and Ors.
5. Whether the suit is correctly valued for the purpose of
court fee and jurisdiction? OPP
6. Whether the plaintiff is entitled to a decree of partition
as prayed in the suit? OPP
7.Whether the plaintiff is entitled for the decree of
rendition of account, as prayed in the plaint? OPP
8. Whether the plaintiff is entitled for a decree of
permanent injunction, as prayed for in the prayer clause of
the plaint ?
Evidence adduced by the plaintiff:
Evidence of Surender Kumar/plaintiff as PW-1:
43. The plaintiff stepped into the witness box as PW-1 and
tendered his evidence by way of affidavit on 18.09.2008 as Ex.
PW-1/A in which he reiterated the contents of the plaint. It is
pertinent to mention that in para no.7 of Ex. PW-1/A, the plaintiff
again reiterated that the defendant no.1 had fabricated a Will
dated 10.06.1995, whereas no such will was written or executed
by the deceased late Shri Ram Dass in sound deposing mind and
the said Will dated 10.06.1995 was not a genuine Will. He relied
on a copy of the legal notice dated 12.10.1997 as Ex. PW-1/1,
however since the said document was not found on the record,
the same was expunged at the time of tendering of Ex. PW-1/A.
CS DJ no. 611272/16 Page 23/177
Surender Kumar vs. Madan Lal and Ors.
44. The plaintiff/PW-1 was cross-examined by the ld. Counsel
for the defendants no.1-3 on 18.09.2008 itself, during which he
admitted that their father Late Sh. Ram Dass was murdered in the
intervening night of 20.09.1997 and 21.09.1997 by their brother,
i.e. the defendant no.4, who was also sentenced to life
imprisonment for the same by the Court of Sh. Yogesh Khanna,
Ld. ASJ, Delhi.
45. He stated that he was not 'aware' if their father had
disinherited him and the defendants no.4 and 5, by way of a
public notice published on 10.06.1983 in the newspaper 'Punjab
Kesari'. He denied the suggestion that he was having strained
relations with their father before his death. He stated that the
property no. WZ-711, Rishi Nagar, Shakur Basti, Delhi - 34 was
purchased by his father from one Sh. Praveen Kumar Sharma,
however he did not remember the date, month or year of it's
purchase. He denied the suggestion that Late Sh. Ram Dass was
not owner of the property no. 19-20, Har Lal Market and
volunteered to state that he had taken it on ' pagri'. He stated that
he did not know who was the owner of the said property as of
CS DJ no. 611272/16 Page 24/177
Surender Kumar vs. Madan Lal and Ors.
today. He admitted that Shop no. 206-B, Kishanganj Market,
Delhi was also owned by their father and mother. He admitted
that the said shop was under his exclusive possession and also
admitted that he had not mentioned this property in the plaint. He
also admitted that he was not in possession of any of the
properties mentioned by him in para no.2 of his evidence by way
of affidavit and volunteered to state that the defendants no.1-3
took over the possession of the entire estate left behind by Late
Sh. Ram Dass. He stated that he could identify the signatures of
Late Sh. Ram Dass if shown to him. Thereafter, his further cross-
examination was deferred.
46. The plaintiff/PW-1 was next cross-examined by the ld.
Counsel for the defendants no.1-3 on 21.05.2012, during which
he admitted that brother of the defendants no.2 and 3 was also
murdered along with Sh. Ram Dass on the intervening night of
20.09.1997 - 21.09.1997 for which murders, the defendant no.4
was convicted and sentenced to life imprisonment. He stated that
he did not know English language and hence could neither admit
or deny the contents of the public notice dated 09.06.1993 issued
through his advocate Sh. S.P. Manocha or whether his father had
CS DJ no. 611272/16 Page 25/177
Surender Kumar vs. Madan Lal and Ors.
disinherited him from all his properties vide the said public
notice.
47. He denied the signatures of his father on the complaint
dated 02.07.1993 written by Late Sh. Ram Dass to the SHO, P.S.
Sarai Rhilla, Mark B at point X and Y. He stated that he was in
possession of signatures of his father, but had not brought it with
him to Court. He denied the suggestion that he was falsely
denying the signatures of his father on Mark B. He stated that he
was not aware that his father had lodged a police complaint dated
02.07.1993 against him and his brothers Yoginder
Kumar/defendant no.4 and Rajinder Kumar/defendant no.5,
copies of which were also sent to the Lt. Governor of Delhi, the
Deputy Commissioner of Police, North West and the ACP, Delhi.
48. He further stated that he had mentioned in his plaint that
Shops No. 19 and 20 in Har Lal Market were owned by Sh. Har
Lal. He denied the suggestion that he had falsely stated in his
plaint that the Shops no. 19 and 20 Har Lal Market, Sector No. 7,
Rohini, Delhi - 110085 were owned by Late Sh. Ram Dass. He
denied the suggestion that the shop no. 206B , Kishan Ganj
CS DJ no. 611272/16 Page 26/177
Surender Kumar vs. Madan Lal and Ors.
Market belonged to Late Sh. Ram Dass and voluntarily stated
that it belonged to their mother. He also denied that earlier in his
cross-examination dated 18.09.2008, he had correctly stated that
the said shop belonged to Late Sh. Ram Dass. He also denied the
suggestion that he had intentionally not included the said shop in
the present plaint.
49. He admitted that the Will of Late Sh. Ram Dass, Mark C
bears the photograph of Late Sh. Ram Dass at point A, but denied
his signatures on the document at point A. He denied that his
father was in perfect disposing mind and medically fit on
10.01.1995. He stated that his father's mental condition was not
good and he used to be mentally absent. However, the plaintiff
admitted that Late Sh. Ram Dass was not suffering from any
specific ailment. He stated that his elder brother used to get the
treatment of his father done for "the said illness" and denied the
suggestion that the defendant no.1 never got his father treated for
any mental illness. He also denied the suggestion that their father
was in perfect mental state till his death. The plaintiff/PW-1
further admitted that he was not aware of the name of any
hospital where his father got treatment for the alleged mental
CS DJ no. 611272/16 Page 27/177
Surender Kumar vs. Madan Lal and Ors.
illness ("I am not aware of any hospital where my father get
treatment for his mental illness"). He denied the suggestion that
he could not tell the name of any hospital because their father
was never treated for the same in his lifetime.
50. He denied the suggestion that his father had bequeathed
the property no. 313/40, B-4, Inderlok Tri Nagar, Delhi - 35 and
323/48, B-6, Inderlok, New Delhi to the defendants no. 2 and 3
by virtue of the registered will dated 10.01.1995.
51. He denied the suggestion that their father was not the
owner of the property no. WZ-711, Rishi Nagar, Shakur Basti,
Delhi.
52. The plaintiff/PW-1 further denied the suggestions that his
father was not doing any business at the time of his death and
was also not possession any raw materials, goods, jewellery, bank
deposits at the time of his death. He admitted that he was also not
aware of any number of the said fixed deposit receipt or the
amount lying therein and stated that it was in State Bank,
Inderlok ("I am not aware of any number of the F.D. or the
CS DJ no. 611272/16 Page 28/177
Surender Kumar vs. Madan Lal and Ors.
amount which my father was having in his name, but it was in
State Bank, Inderlok"). He denied the suggestion that their father
was not having any such account or fixed deposit in the said
bank.
53. He also denied the suggestion that on 23.09.1993, he along
with the defendant no.4 and 5 had stolen the goods of their father
from his house and he had lodged a police report with respect to
the same as well.
54. He also denied the suggestion that he had illegally
contracted a marriage with the defendant no.6 after the death of
her husband/his brother. He also denied the suggestion that his
wife had filed a criminal case against him for committing bigamy
and volunteered to state that it was a case concerning a quarrel,
however admitted that the defendant no.6 was a co-accused with
him in the said case filed by his wife. He also admitted that he
was convicted in the said case initially for a period of two years
imprisonment alongwith fine of Rs. 500/- . He also admitted that
the matter was settled in appeal after which he brought back his
wife Smt. Neelam Rani in his house. ("It is correct that I was
CS DJ no. 611272/16 Page 29/177
Surender Kumar vs. Madan Lal and Ors.
convicted in the said case initially for a period of two years
imprisonment alongwith fine of Rs. 500/-. It is correct that matter
was settled in appeal and I brought back my wife Smt. Neelam
Rani in my house").
55. He also denied the suggestion that he never sent any notice
to the defendants before filing the present suit. He also admitted
that he had not filed any postal receipt or any UPC report
regarding sending of any notice to the defendants. He denied the
suggestion that her had filed a false suit and was deposing falsely.
Thereafter, his cross-examination by the defendants no.1-3 was
completed.
56. The plaintiff/PW-1 was then briefly cross-examined by the
ld. Counsel for the defendant no.10, during which he admitted
that the defendant no. 10 was having a share in the properties left
by Late Sh. Ram Dass. ( "It is correct that defendant No. 10 is
having a share in the properties left by my late father Sh. Ram
Dass"). Thereafter, the matter was adjourned for his cross-
examination by the ld. Counsel for the defendant no.10.
CS DJ no. 611272/16 Page 30/177
Surender Kumar vs. Madan Lal and Ors.
57. The plaintiff/PW-1 was next cross-examined by the ld.
Counsel for the defendant no.4 on 27.02.2013, during which he
stated that on 21.09.1997 when his father was murdered, the
defendant no.4 and his children were not present. He stated that
the defendant no.1 and his children at Rani Bagh. He stated that
prior to the murder of their father, the defendants no.1 and 4 were
not on talking terms with each other. He stated that only the
defendant no.4 was staying in the property no. 313/48, Plot No.
B-6, Inderlok, Tri Nagar, Delhi - 35 and was also operating a
godown from here. He stated that this property only had one
floor along with a godown and it was owned by the defendant
no.4.
58. He further stated that in property no. 313/40 B-4, Inderlok
Tri Nagar, Delhi - 35, there was a factory belonging to his father
on the ground floor and on the first and second floor, the
defendant no.4 and his family were living. He stated that Late Sh.
Ram Dass was the owner of both the properties no. 313/40, B-4,
Inderlok Tri Nagar, Delhi - 35 and 313/48, Plot No. B-6,
Inderlok, Tri Nagar, Delhi - 35. He stated that the first floor of
property no. 313/48, Plot No. B-6, Inderlok, Tri Nagar, Delhi -
CS DJ no. 611272/16 Page 31/177
Surender Kumar vs. Madan Lal and Ors.
35 was rented to the defendant no.4 and his goods were lying
there. He stated that he had seen a photograph of the defendant
no.4 in the first floor of property no. 313/48, Plot No. B-6,
Inderlok, Tri Nagar, Delhi - 35. He stated that the defendant
no.4 was a graduate and his children were in 6th and 7th class.
59. He stated that Late Sh. Ram Dass loved the children of the
defendant no.4. He stated that the defendant no.1 was at
loggerheads with Late Sh. Ram Dass and they used to quarrel. He
also admitted that the defendant no.4 was prosperous in his
business. He stated that the defendant no.1 were 'vagabonders
and roaming in the streets' and did not enjoy good relations
amongst themselves also. He further admitted that the earnings of
all the brothers went to their father. He stated that their father had
a bank account in the State Bank of India. He stated that their
father had met with an accident and had also remained in hospital
for about one month. He stated that he did not remember when
their mother had expired and that all were present.
60. He stated that in property no. 313/40, B-4, Inderlok Tri
Nagar, Delhi - 35, Late Sh. Ram Dass was residing on the
CS DJ no. 611272/16 Page 32/177
Surender Kumar vs. Madan Lal and Ors.
ground floor and the defendant no.4 was residing on the first and
second floors. He stated with respect to the property no. 313/48,
B-6, Inderlok Tri Nagar, Delhi - 35 the ground floor was already
sold and the defendant no.4's godown was located on the first
floor.
61. He stated that their father did not know English and Hindi
language and only knew Urdu language and that the will was in
English language. He affirmed the suggestion that the will relied
upon by the defendants no. 1 - 3 was forged. Thereafter, his
cross-examination by the defendant no.4 was completed.
62. The plaintiff/PW-1 was again cross-examined by the ld.
Counsel for the defendant no.1 - 3 on 27.02.2013, during which
he denied that the will dated 10.06.1995 executed by their father
was a genuine will. He also denied the suggestion that their
father was in a fit and disposing mind on the date of his murder
and stated that he had not been in a fit and disposing mind for the
last 8-10 years prior to his murder. He admitted that his father
was not admitted in any hospital with regard to treatment for any
mental illness and stated that he had been admitted only for a
CS DJ no. 611272/16 Page 33/177
Surender Kumar vs. Madan Lal and Ors.
heart problem, however could not recall the date, month or year
when he was admitted ("My father was not admitted in any
hospital with regard to treatment of any mental illness, however
he was admitted for heart problem. He was admitted in
Motinagar Hospital for heart ailment, but I cannot say the date,
month or year of the same"). He denied the suggestion that their
father was hale and hearty and was not never admitted to any
Hospital.
63. The plaintiff/PW-1 admitted that the original will was
shown by his father to him and could not recall the year when he
had seen the original will. He stated that the will was in
possession of his father when it was shown to him. ("The original
Will was shown by my father to me. I cannot tell the year when I
had seen the original Will. The Will was in possession of my
father at the time when he showed the same to me").
64. The plaintiff/PW-1 also admitted that their father was not
doing any work for 8 - 10 years prior to his death. ( "My father
was not doing any work 8 - 10 years prior to his death").
CS DJ no. 611272/16 Page 34/177
Surender Kumar vs. Madan Lal and Ors.
65. He stated that he was not 'aware' whether their father had
disinherited him from all properties vide a public notice dated
12.10.1997 published in the newspaper Punjab Kesari and stated
that he had come to know of the same only after the filing of the
present suit.
66. The plaintiff categorically admitted that he was not in
possession of any document to show that the properties
mentioned by him in his evidence by way of affidavit, Ex.
PW-1/A belonged to his father. ("Iam not in possession of any
document to show that these properties mentioned in my affidavit
belonged to my father"). He denied the suggestion that properties
no. 313/40, B-4, Inderlok Tri Nagar, Delhi - 35 and 313/48, B-6,
Inderlok Tri Nagar, Delhi - 35 were in the possession of his
father at the time of his death and volunteered to state that their
father was in possession of only 313/40, B-4, Inderlok Tri Nagar,
Delhi - 35.
67. He denied the suggestion that Late Sh. Ram Dass had very
cordial relations with the defendants no.2 and 3 and admitted that
Late Sh. Ram Dass had never lodged any police complaint
CS DJ no. 611272/16 Page 35/177
Surender Kumar vs. Madan Lal and Ors.
against them.
68. He denied the suggestion that Late Sh. Ram Dass also did
not have any movable properties as alleged in Ex. PW-1/A. He
again admitted that he did not know the bank account number of
his father or the location of the FDRs and shares or in which
bank/company they were held or even when they were
purchased. He denied the suggestion that there were no such
FDRs or shares. ("I do not know the bank account number of my
father, which I have stated today in Court. I do not know what
were the FDRs or share certificates of my father and in which
bank/company. I cannot tell what was the value of the shares in
UTI and when these were purchased").
69. He admitted that his father had once lodged a police
complaint against him when they had a quarrel. He stated that he
was not aware whether his father had lodged a police report
against him and the defendants no.4 and 5 at P.S. Sarai Rohilla on
04.07.1993 as he was apprehending constant danger of being
killed for grabbing his properties. He did not whether his father
had made a complaint against him to DCP, Vigilance, HQ on
CS DJ no. 611272/16 Page 36/177
Surender Kumar vs. Madan Lal and Ors.
15.02.1994 for having misconducted himself. He also denied the
suggestion that their father had lodged a police report with the
Commissioner of Police dated 04.09.1997 over the defendant
no.4 having threatened to kill him. He admitted that the
complaint dated 02.07.1993 filed by his father Late Sh. Ram
Dass to the S.H.O, P.S. Sarai Rohilla, along with copy to the
Hon'ble Lt. Governor, Delhi; D.C.P. North-West, Delhi and
A.C.P. North-West, Delhi bore the signatures of his father Late
Sh. Ram Dass at points A and B, which was then exhibited as Ex.
PW1/D1-D3. He denied the suggestion that he had filed the
present suit in collusion with the defendants no. 4, 5 and 6. (" My
father had once lodged a police complaint against me, when we
had a quarrel. I am not aware if my father lodged a police report
against me, Yogender and Rajender at PS Sarai Rohilla on
04.07.93 apprehending that he has constant dander of being
killed by me and by my brother to grab his properties. I do not
know that my father had made any complaint to DCP, Vigilance,
HQ regarding my misconduct with him on 15.02.94. It is wrong
to suggest that my father lodged a police report to the
Commissioner of Police against Yogender dated 04.09l.97 that he
has threatened to kill him. It is correct that Ex. PW1/D1-D3 bears
CS DJ no. 611272/16 Page 37/177
Surender Kumar vs. Madan Lal and Ors.
the signatures of my father at points A and B. It is wrong to
suggest that I have filed the present suit in connivance with
defendant no.4 Yogender. It is wrong to suggest that I have filed
the present suit in connivance with defendants no.5 and 6.")
70. The plaintiff/PW-1 at first denied the suggestion that he
was prosecuted by his wife in Haryana for marrying his brother's
wife during the lifetime of his wife, however immediately
thereafter admitted that his wife had filed a case against him
regarding the same, which was compromised in the Sessions
Court. He denied the suggestion that he had to appeal before the
Sessions Court as he had been convicted by the Magistrate Court.
He also denied the suggestion that his first wife had filed
criminal and matrimonial cases against him at Kurukshetra and
he had been convicted with two years imprisonment and fine of
Rs. 5,000/-. ("It is wrong to suggest that I was prosecuted by my
wife in Haryana for marrying my brother's wife during my wife's
lifetime. It is correct that a case was filed against me by my wife
regarding the same and I compromised in that court. The
compromise was effected in the session court. It is wrong to
suggest that I had to move to session court because I was
CS DJ no. 611272/16 Page 38/177
Surender Kumar vs. Madan Lal and Ors.
convicted by the Court of Magistrate. It is wrong to suggest that
my first wife filed criminal and matrimonial cases against me at
Kurukshetra and I had been convicted with two years
imprisonment and a fine of Rs. 5000/-.")
71. The plaintiff further admitted that he could not tell the
value of the suit properties as on the date of the filing of the suit
and also could not say whether they were worth more than Rs. 1
crore. He also admitted that he had not issued any legal notice to
the defendants prior to the filing of the present suit. (" I cannot
tell what was the value of the suit properties on the date of the
filing of the suit. I cannot say whether at that time the value of
suit properties was more than Rs. 1 crore. I had not issued any
legal notice prior to the filing of the suit to the defendants.")
72. He denied the suggestion that he had filed a false case and
was also deposing falsely to grab the properties of others. He
denied the suggestion that he was not having any share in the
properties, having been disinherited by his late father and that he
had no right to claim any share in the properties. Thereafter, his
cross-examination by the defendants no.1-3 was completed.
CS DJ no. 611272/16 Page 39/177
Surender Kumar vs. Madan Lal and Ors.
73. The plaintiff/PW-1 was not cross-examined by any of the
remaining defendants and he closed his evidence on 27.02.2013.
Evidence led by the defendants
Evidence led by the defendants no.1-3
Evidence of Sh. Praveen Kumar, the defendant no.2 as D2W1:
74. The defendant no.2 Sh. Praveen Kumar stepped into the
witness box as D2W1 and he tendered his evidence by way of
affidavit as Ex. D-2/1 on 06.04.2016 in which he stated that his
grand-father Late Sh. Ram Dass had been murdered on the
intervening night of 20.09.1991 and 21.09.1991 by the defendant
no.4, over which FIR no. 409/1997, P.S. Sarai Rohilla was
lodged under section 302 IPC and he was convicted by the Court
of Sh. Yogesh Khanna, Ld. ASJ, Delhi. He relied on the certified
copy of the judgment dated 07.05.2004 and sentencing order
dated 27.05.2004 passed by the Court of the Ld. ASJ in Sessions
Case No. 37/2003 as Ex. DW-2/1.
75. He stated that the defendants no.4 and 5 had severely
strained relations with Late Sh. Ram Dass, who had disinherited
them as well vide a public notice dated 09.06.1993, published in
CS DJ no. 611272/16 Page 40/177
Surender Kumar vs. Madan Lal and Ors.
the Punjab Kesari newspaper, Delhi Edition, through S.P.
Minocha, Advocate.
76. The defendant no.2/D2W1 further deposed that Late Sh.
Ram Dass was not having any right in property no. WZ-711,
Rishi Nagar, Shakur Basti, Delhi - 34 and Shops no. 19 and 20,
Har Lal Market, Sector 7, Rohini, Delhi. He deposed that Late
Sh. Ram Dass was also not having any movable assets as
mentioned in the para no.3 of the plaint or any fixed deposit in
any bank or any share in Unit Trust of India. He also denied that
either he or the defendants no.1 and 3 had ever taken the
possession of any such assets.
77. He deposed that deceased Late Sh. Ram Dass was the
owner of property no. 313/40, B-4, Inderlok, Delhi and First
Floor and Second Floor of property no. 313/48, B-6, Inderlok,
New Delhi and apart from the said properties, Late Sh. Ram Dass
was not the owner of any other properties as mentioned in the
plaint.
78. He further deposed in para no.6 of his affidavit, Ex. D-2/1
CS DJ no. 611272/16 Page 41/177
Surender Kumar vs. Madan Lal and Ors.
that vide a registered Will dated 10.01.1995, Ex. DW2/3, Late
Sh. Ram Dass had bequeathed his rights, title and interest in
property No. 313/40, B-4, Inderlok, New Delhi and the first and
second floors of property No. 313/48, B-6, Inderlok, New Delhi
in his favour and the defendant no.3. He deposed that as per the
said registered Will dated 10.01.1995, he has become the owner
of the basement and ground floor of property No. 313/40, B-4,
Inderlok, New Delhi and the defendant no.3 had become the
owners of the remaining floors from first floor to the third floor
in the said property. Further, he had also become the owner of the
First Floor and Second Floor of the property No. 313/48, B-6,
Inderlok, New Delhi.
79. He further deposed in para no.6 of Ex. D-2/1 that " My
deceased father Sh. Madan Lal was the attesting witness of the
said Will" and he identified the signatures of his father on the
said Will, Ex. DW-2/3 at points 'A' and 'A-1'. He also identified
the signatures and thumb impressions of Late Sh. Ram Dass on
the Will, Ex. DW-2/3 at points B, B-1, B-2, B-3, B-4, B-5, B-6,
B-7, B-8, B-9 and B-10. He identified the photograph of Late Sh.
Ram Dass on the Will, Ex. DW-2/3 at point C. He deposed that
CS DJ no. 611272/16 Page 42/177
Surender Kumar vs. Madan Lal and Ors.
after the registration of the Will, the same was handed over to
him by Late Sh. Ram Dass.
80. The defendant no.2/D2W1 further deposed that the Will,
Ex. DW-2/3 was made by Late Sh. Ram Dass with his free will
and consent and without any influence by the deponent or his
brother/defendant no.3 or by their father the deceased defendant
no.1. He deposed that Late Sh. Ram Dass was not suffering from
any mental or physical disability till his death and was in a
perfect mental state at the time of making of this Will till his
death.
81. He further deposed that Late Sh. Ram Dass was the owner
of shop no. 206-B, Kishanganj Market, Delhi from where the
plaintiff is conducting his business and that during his lifetime,
Late Sh. Ram Dass had settled the plaintiff and distributed his
assets and gold to his sons. Further, some of his cash and gold
ornaments were stolen by the defendants no. 4 and 5 on
23.09.1993 from his residence. At the time of his death, Late Sh.
Ram Dass had stopped his business activities and owned only a
few articles for his personal use.
CS DJ no. 611272/16 Page 43/177
Surender Kumar vs. Madan Lal and Ors.
82. He further deposed that he along with his deceased
father/defendant no.1 were the owners of property no. WZ-711,
Rishi Nagar, Shakur Basti, Delhi being their self-acquired
property.
83. He deposed that the plaintiff, along with the defendants
no.4 - 6 tried their best to snatch the assets and properties of Late
Sh. Ram Dass during his lifetime and also constantly quarreled
with him and made his life miserable for which Late Sh. Ram
Dass had also been lodging various police reports against them.
84. He deposed that the plaintiff had filed the present suit in
collusion with the defendants no. 4- 6 and that the defendant no.4
being guilty of murdering Late Sh. Ram Dass was disqualified
from inheriting his properties.
85. He further deposed that the plaintiff and the defendant no.6
had got married illegally after the death of the plaintiff's
brother/husband of defendant no.6, despite the fact that the
plaintiff's marriage with his wife was still subsisting. He stated
CS DJ no. 611272/16 Page 44/177
Surender Kumar vs. Madan Lal and Ors.
that the plaintiff's wife had filed a criminal complaint against
him, for which he was convicted and sentenced to two years
imprisonment alongwith a fine of Rs. 5,000/- by the concerned
Court at Kurukshetra.
86. He deposed that Late Sh. Ram Dass was not doing any
business at the time of his death and hence there was no question
of the defendants no.1 - 3 having taken over the said business. He
further deposed that the plaintiff had not sent any legal notice
dated 12.10.1997 to him or his father.
87. The defendant no.2/D2W1 relied on the following
documents in support of his case:
a) Certified copy of the judgment dated 07.05.2004 and
sentencing order dated 27.05.2004 passed by the Court of
the Ld. ASJ, Delhi in Sessions Case No. 37/2003 as Ex.
DW-2/1.
b) True copy of the public notice dated 09.06.1993
published in Punjab Kesari newspaper as Mark D-2/A.
c)The original will of late Sh. Ram Dass as Ex. DW-2/3.
CS DJ no. 611272/16 Page 45/177
Surender Kumar vs. Madan Lal and Ors.
88. The defendant no.2/D2W1 was first cross-examined by the
ld. Counsel for the defendant no.4 on 30.05.2017, during which
he stated that Late Sh. Ram Dass had five sons, namely Madan
Lal, Chander Kumar, Yoginder Kumar, Rajinder Kumar and
Surinder Kumar. He stated that Chander Kumar, husband of the
defendant no.6, had pre-deceased Late Sh. Ram Dass in the year
1991 itself.
89. He further stated that in the year 1992, the defendant no.6
had married the plaintiff after the death of her husband Chander
Kumar and the plaintiff used to maintain her and her children. He
stated that at the time, the plaintiff was married to his wife
Neelam and was involved in litigation with her at Kurukshetra,
Haryana. He stated that he was not aware whether the plaintiff
was living with Neelam and their son at Delhi and volunteered to
state that the plaintiff was convicted for two years imprisonment
and fine of Rs. 5,000/- for contracting a marriage with the
defendant no.6. He stated that his grandfather and father were
also convicted in the said case. However, he admitted that he had
not seen any such order and had been told of the same by Late
Sh. Ram Dass. He denied the suggestion that there was no such
CS DJ no. 611272/16 Page 46/177
Surender Kumar vs. Madan Lal and Ors.
order. He stated that the plaintiff, his father and grandfather had
been taken into custody and were released on bail. The matter
was then compromised in the appeal and the conviction was set
aside.
90. He stated that in the year 1995, he along with his father
and other family members were residing at WZ-711, Rishi Nagar,
Shakur Basti, Delhi - 34 and lived there till the year 1998. He
stated that he was not aware if any sale deed was executed in
favour of the defendant no.1 with respect to the said property or
if the GPA of the said property was in favour of Late Sh. Ram
Dass. He stated that they were residing in the said house as
owner of the property and that his father might be having the
papers of the said property and that he had seen the papers of the
property with his father. He stated that he was a child at that time
and then again stated that he was 20 years old. He also admitted
that he could not tell from whom his father had purchased the
said property. He further admitted that he was not having any
papers of the property no. WZ-711, Rishi Nagar, Shakur Basti,
Delhi - 34 and could not produce the same to show that the said
property belonged to his father/defendant no.1. ("I am not aware
CS DJ no. 611272/16 Page 47/177
Surender Kumar vs. Madan Lal and Ors.
if any sale deed was executed in favour of Madan Lal. We used
to live in the said house as the owner of the property. My father
might be having the papers of said property. I had seen the papers
with my father. I was a child at that time. I was 20 years of age at
that time. I cannot tell from whom the property was purchased by
my father. Since I am not having any paper of property No.
WZ-711, Rishi Nagar, therefore, I cannot produce the same to
show that this property belonged to my father.").
91. He stated that he did not know any Praveen Sharma, s/o
Sh. Kailash Chand, r/o 232, Sainik Vihar, Delhi - 34 and did not
remember whether he had executed any GPA in respect of
property no. WZ-711, Rishi Nagar, Shakur Basti, Delhi - 34 in
favour of Late Sh. Ram Dass and stated that the papers of the
said property might be with his father.
92. The defendant no.2/D2W1 was then shown the
photocopies of the GPA/Mark A, SPA/Mark B and the Will/Mark
C with respect to the property no. WZ-711, Rishi Nagar, Shakur
Basti, Delhi - 34, on which he admitted he photograph of Late
Sh. Ram Dass at point A only on the Will/ Mark C. Thereafter,
CS DJ no. 611272/16 Page 48/177
Surender Kumar vs. Madan Lal and Ors.
his cross-examination was adjourned for the post-lunch session.
93. In the post-lunch session on 30.05.2017, he stated that his
parents and brother were residing in the property no. WZ-711,
Rishi Nagar, Shakur Basti, Delhi - 34 till the year 2004. He
stated that after the year 1998, he shifted into property no.
313/40, Inderlok, Delhi and got his I.D. prepared at the said
address in the year 1997-1998 and got his second I.D. card issued
in the year 2004. He affirmed that the house no. 313 was earlier
referred to as 313/40-B/4, Inderlok, Delhi - 35.
94. He stated that he could not say anything about the
information given by Sh. Mangej Singh, E.R.O, AC 15, Shakur
Basti under the Right to Information Act, 2005 vide his
intimation letter dated 11.05.2016, Mark D to the defendant
no.10 that the defendant no.2 did not have his Voter ID card
made from the address of House no. 313/40B, Inderlok, Delhi -
35.
95. He stated that he could identify the signatures of Late Sh.
Ram Dass only on original documents and denied that the
CS DJ no. 611272/16 Page 49/177
Surender Kumar vs. Madan Lal and Ors.
photocopy of the sale deed dated 06.06.1964, Mark E contained
the signatures of Late Sh. Ram Dass.
96. He admitted that the signatures and thumb impressions on
the Will, Ex. DW-2/3 were not done in his presence. He denied
that his father ever purchased the property no. 313/48-C, Inderlok
Delhi or whether the same had been sold by his father on
02.05.2003 to Mubin Ahmed. He denied the signatures of his
father on the document, Mark F, as it was a photocopy. He stated
that he could not produce any document bearing his grand-
father's thumb impression. He denied the suggestion that Late
Sh. Ram Dass was never the owner of property no.6B, Inderlok
Puri/ new no. 313/48/6-B. However, admitted that there was no
document to show that Late Sh. Ram Dass had ever purchased
this property. He stated that he also did not know whether late Sh.
Ram Dass, his wife and two sons had purchased 50 sq. yards
each in property No. 313/48/B-6.
97. He stated that he was not an eye-witness to the murder of
Late Sh. Ram Dass and admitted that his grandfather did not
know English or Hindi and used to sign in Urdu only. He denied
CS DJ no. 611272/16 Page 50/177
Surender Kumar vs. Madan Lal and Ors.
the suggestion that in the year 1992, the defendant no.4 was
living in property no. 313/40/B-4, Inderlok. He stated the he did
not know about the nature of documents executed in favour of his
grand father in respect of property no. 313/40/B-4, Inderlok
Delhi and stated that no such property existed.
98. He affirmed that his grandfather Late Sh. Ram Dass had
shops no. 19 and 20 in Harlal Market, Sector 7, Rohini, Delhi
and volunteered to state that Late Sh. Ram Dass was a tenant and
had surrendered the tenancy during his lifetime. He did not know
if Late Sh. Ram Dass had never surrendered the said shops. He
admitted that a restaurant by the name of 'Aalishan Hotel' was
run from the said shops.
99. He admitted that Late Sh. Ram Dass had a factory by the
name of Ram Plastic and volunteered to state that it was closed in
the 1990s' and denied the suggestion that it was started in 1990s'.
He stated that he had no documentary proof with respect to it's
closure in the year 1990. He stated that Late Sh. Ram Dass had
disposed off the machinery of the factory during his lifetime. He
stated that he had no details of the machines sold by Late Sh.
CS DJ no. 611272/16 Page 51/177
Surender Kumar vs. Madan Lal and Ors.
Ram Dass.
100. He stated that he did not know whether Late Sh. Ram Dass
had a horizontal machine (PVT) and mixture grinder machine,
raw material and finished goods worth Rs.10 Lakhs. He also
denied the suggestion that his grandfather had jewellery, and
volunteered to state that it was stolen and a case of theft was
lodged by his grandfather. He also denied the suggestion that his
grandfather had furniture, utensils, electronic items, colour TV,
fridge, VCR, VCP, table fans, cooler, ceiling fans, Godrej
Almirah, exhaust fans at premises No. 313/40/B-4, Inderlok, Tri
Nagar, Delhi.
101. He placed the police complaint dated 09.02.1994 filed by
Late Sh. Ram Dass with the DCP Vigilance, I.P. Estate, Delhi on
record as Ex.D-2/W-1/D-4/A. He denied the suggestive that the
report had been lodged by his father and not grand-father, and
volunteered to state that it bears signatures of his grand-father.
102. He denied the suggestion that Shri S.P. Manocha, Advocate
was his father's counsel and stated that he was the counsel of his
CS DJ no. 611272/16 Page 52/177
Surender Kumar vs. Madan Lal and Ors.
grand-father. He also denied the suggestion that Shri S.P.
Manocha, Advocate appeared against Defendant no.4 on the
instructions of his father. He stated that he did not know whether
his father had executed vakalatnama in favour of Shri S.P.
Manocha, Advocate.
103. He stated that he did not know whether his grandfather
executed any document debarring the plaintiff and the defendants
no.4 and 5 from his properties, and volunteered to state that he
got a public notice issued in newspaper Punjab Keshari, through
Shri S.P. Manocha, Advocate. He affirmed that his father had
strained relations with the plaintiff and the defendants no. 4 and 5
and stated that his grandfather and his father had cordial
relations.
104. He further stated that he had not seen the defendant No.5
for last about 20 years. He stated that the defendant no.5 used to
live with defendant no.4 in the year 1995. He stated that his
grandfather had mentioned in his Will that he has debarred the
plaintiff and defendants no. 4 and 5 from his properties, however
it is not mentioned in the will that he had given a public notice in
CS DJ no. 611272/16 Page 53/177
Surender Kumar vs. Madan Lal and Ors.
the newspaper Punjab Keshari. He denied the suggestion that his
grandfather never authorized Shri. S.P. Manocha, Advocate for
any such public notice and the same was done by his father to
grab the property. Thereafter, the further cross-examination of
D2W1/defendant no.2 was deferred.
105. The D2W1/defendant no.2 was next cross-examined on
08.02.2018 by the ld. Counsel for the defendant no.4, during
which he stated that he did not know who had informed the
police about the age of his grand father late Sh. Ram Dass. He
stated the he did not know the date of birth of late Sh. Ram Dass
and that his age might be 70 years at the time of his death.
106. He stated that he was VIIIth class pass and knew English
little bit. He stated that he can read his evidence by way of
affidavit Ex D-2/1. He admitted that the facts stated in para no.3
of his evidence by way of affidavit Ex D-2/1 were not mentioned
in the Will Ex DW-2/3. He stated that in the said will it was
recorded that his grandfather had debarred Sh. Surender Kumar,
Sh. Rajender Kumar and Sh. Yogender Kumar. He was then
questioned that in the Will Ex. DW-2/3, Late SH. Ram Dass had
CS DJ no. 611272/16 Page 54/177
Surender Kumar vs. Madan Lal and Ors.
not recorded that he had debarred Sh. Surender Kumar, Sh.
Rajender Kumar and Sh. Yogender Kumar, to which he stated
that he had gone through the Will and no such fact is mentioned
by the deceased in the Will to show that they were debarred from
the property and volunteered to state that they have been
debarred vide public notice dated 09.06.1993 in the Newspaper.
107. He stated that he was not in possession of any document to
show that Late Sh. Ram Dass got issued and published the notice
dated 09.06.1993 in the Newspaper. He also admitted that the
reference of public notice is not recorded in the Will of his grand
father late Sh. Ram Dass.
108. He stated that his father may be aware if the GPA and Will
in regard to property no. WZ-711, Rani Bagh, Delhi was in the
name of Late Sh. Ram Dass and did not know anything about it
himself. He stated that his father was residing at WZ-711, Rani
Bagh, Delhi and was in possession of title documents. He stated
that he did not know about the nature of the documents, but it
was in a file. He stated that neither he nor any family member
were in possession of said file.
CS DJ no. 611272/16 Page 55/177
Surender Kumar vs. Madan Lal and Ors.
109. He also admitted that the facts stated in para-6 of the
evidence by way of affidavit had been taken from the Will relied
upon by him. He stated that his grandfather had gone for the
execution of said Will and did not know who had accompanied
him. He stated that he had not accompanied his grandfather for
executing the Will. He stated that he was aware about the date
when his grandfather late Sh. Ram Dass went for execution of
the said Will.
110. He stated that his father was having good relations with his
grandfather. He stated that he had not filed any document except
the disputed Will showing that his father ever put his thumb
impression on any document.
111. He further stated that the Will was handed over to him on
02.10.1996 and did not know who had brought the Will from the
office of the Sub-Registrar. He stated that he was not asked to
visit the Sub-Registrar office to execute the Will by his
grandfather. He did not know when the photograph, pasted on
the Will, was clicked. He stated that the property is not identified
CS DJ no. 611272/16 Page 56/177
Surender Kumar vs. Madan Lal and Ors.
by Block No. or Plot No and that the property is identified by
numbers and did not know when the number on the property was
affixed by MCD. He stated that when his grandfather purchased
the property, it was having numbers on property.
112. He stated that he did not have any document to show that
the property bearing no. 313/40 Inderlok, Delhi was purchased
by Late Sh. Ram Dass. He also did not know whether the said
property was known as property no. 313/40-B, Plot No. 4,
Inderlok at the time of it's purchase. He stated that his
grandfather was aware about the property numbers. Thereafter,
the further cross-examination of D2W1/defendant no.2 was
deferred.
113. The D2W1/defendant no.2 was next cross-examined by
the ld. Counsel for the defendant no.4 on 06.03.2018, during
which he stated that all the properties mentioned in para 5 of the
evidence by way of affidavit were known as mentioned therein.
He stated that his grandfather Late Sh. Ram Dass was also
aware about the numbers of the properties.
CS DJ no. 611272/16 Page 57/177
Surender Kumar vs. Madan Lal and Ors.
114. He stated that the Will was not signed,
thumb marked and attested by his father in his presence. He
stated that he had seen his father placing his thumb impression in
the bank account of Punjab National Bank, Rohini, however
could not tell the account number. He denied the suggestion that
his father has not affixed his thumb impression on any paper
while opening the bank account with the said bank. He stated that
he cannot produce any paper carrying the thumb impression of
his father, however could identify the same on any document, if
shown to him.
115. He stated that without seeing the original of document
Mark X, he could not tell whether it bears thumb impression of
his father at Mark X1 or Mark X2 on all the pages.
116. He further stated that his father had not sold the property
bearing no. 313 / 48C in favour of the vendee as shown therein
on 02.05.2003. He stated that his father's photograph on Mark X
was not clear and he could not identify the same
without seeing the original document. He stated that he had no
document to substantiate the facts as stated in para 8 of his
CS DJ no. 611272/16 Page 58/177
Surender Kumar vs. Madan Lal and Ors.
evidence by way of affidavit with respect to Late Sh. Ram Dass
having given the Shop no. 206B, Kishanganj Market, Delhi to the
plaintiff.
117. He stated that the properties were distributed to the
concerned parties where the parties were residing at the time of
settlement and was not aware whether the property no. WZ-711,
Rishi Nagar, Shakur Basti, Delhi - 34 was given by his
grandfather to his father as he was too young at the time.
118. He further stated that Late Sh. Ram Dass never resided in
property no. WZ-711, Rishi Nagar, Shakur Basti, Delhi - 34 and
was not aware whether the said property was in the name of one
Praveen Kumar earlier, who had executed a GPA
in favour of Late Sh. Ram Dass in regards to this property. He
stated that he could not identify the signatures or photographs of
his father or grandfather on photocopies unless the original are
shown to him.
119. He stated that after the death of Late Sh. Ram Dass, neither
he nor his brother or father had met any of the defendants in the
CS DJ no. 611272/16 Page 59/177
Surender Kumar vs. Madan Lal and Ors.
present case. He admitted that the contents of paras no.12 to 14
of his evidence by way of affidavit were not mentioned in the
written statement, except the prayer clause.
120. He further stated that he had met D.P. Singh at Kashmere
Gate, 3 - 4 years prior to today, i.e. in the year
2013-2014. He stated that D.P. Singh was not having any
record of the Will propounded by him and volunteered to state
that he had shown photocopy of the Will to D.P. Singh. He
denied the suggestion that Late Sh. Ram Dass had not executed
any will dated 10.01.1995. He stated that all the properties left
behind by Late Sh. Ram Dass were still with them. He also
admitted that no copy of the will had been filed with the MCD to
get the property mutated in his name or his brother's name and
volunteered to state that the house tax was in his name, however
admitted that no document had been placed on record to show
that the house tax was being assessed in his name. Thereafter, the
cross-examination of D2W1/defendant no.2 by the ld. Counsel
for the defendant no.4 was completed.
121. The ld. Counsel for the defendant no.10 adopted the cross-
CS DJ no. 611272/16 Page 60/177
Surender Kumar vs. Madan Lal and Ors.
examination of D2W1/defendant no.2 as conducted by the ld.
Counsel for the defendant no.4.
122. The D2W1/defendant no.2 was next cross-examined by
the ld. Counsel for the plaintiff on 14.04.2018, during which he
stated that his family consisted of his wife and three children,
who are studying a the time and that his mother also resided with
them. He affirmed that his brother Sh. Sanjeev Kumar was
murdered by the defendant no.4 alongwith his grandfather Late
Sh. Ram Dass on 20.09.1997 - 21.09.1997. Thereafter, his further
cross-examination was deferred on the request of the ld. Counsel
for the plaintiff.
123. The D2W1/defendant no.2 was next cross-examined by
the ld. Counsel for the plaintiff on 07.05.2018, during which he
stated that his children are studying in Sachdeva Public School at
Pitampura, which is at a distance about 5 km from his residence.
He stated that he was residing at 61, Lotus Enclave, Pitampura,
Delhi. He stated that he knew a little bit of English. He admitted
that he had not placed on record his Aadhar card and voter card.
He stated that he was an Income Tax assessee and was continuing
CS DJ no. 611272/16 Page 61/177
Surender Kumar vs. Madan Lal and Ors.
the business being run by his father. He stated that he had filed
his income tax returns (ITR) upto the assessment years 2017-
2018.
124. He further stated that from the years 1994 to 1997, he had
resided in WZ-711, Rishi Nagar, Rani Bagh, Delhi alongwith his
parents. During the period from the years 1994 -1997, he was
doing the business of selling footwear in the name of 'P.K. Foot
wears'. He stated that he did not remember if he had any Sales
Tax registration number with respect to the said business or
whether he had filed any ITR during the said period. He stated
that this business was started in and around the year 1991, while
he was about 16 years of age at that time. He stated that prior to
the year 1991, he used to accompany his father at his
sweet shop. He stated that the business of sweets shop was
started in the year 1985 and was not aware if his father had filed
his ITR during that period or whether he was an income tax
assessee.
125. He stated that during the period of 1992- 1993, there used
to be quarrels and his grandfather Late Sh. Ram Dass
CS DJ no. 611272/16 Page 62/177
Surender Kumar vs. Madan Lal and Ors.
used to lodge police reports, however he could not remember the
number of FIRs and against whom they were lodged, unless the
judicial file was shown to him. After seeing the judicial file, he
stated that there were no FIRs, however complaints had been
lodged by Late Sh. Ram Dass and pointed to the complaints Ex.
DW2W1/D4A and Ex. PW-1/D1 to D3.
126. He denied the suggestion that during December, 1994 and
February, 1995, his grandfather was suffering from illness. He
stated that he had no knowledge whether his grandfather was
admitted to Kalra Hospital for the treatment of heart disease
during December, 1994 and February, 1995.
127. He further stated that he did not know where his
grandfather Sh. Ram Dass was born. He admitted that Late Sh.
Ram Dass used to put his signature in Urdu, however, he was not
much literate to write sentences in Urdu.
128. He stated that he had procured the certified copy of
Ex.DW2/3 and was not aware if his father Sh. Madan Lal had
sold the portion of property no. 313/48C Inderlok, Delhi to Late
CS DJ no. 611272/16 Page 63/177
Surender Kumar vs. Madan Lal and Ors.
Sh. Ram Dass on 21.04.1994 for a sum of Rs.30,000/-. He stated
that during the period from the years 1990 to 1995, his father Sh.
Madan Lal used to reside at 86, Shakti Vihar, Pitampura.
Myself and his younger brother namely Sanjeev Kumar who was
murdered by Yogender Kumar/defendant no.4, was residing at
86, Shakti Vihar and also at 313/40 Inderlok.
129. He affirmed that he was not residing with his grandfather
in September, 1997. He denied the suggestion that he was
intentionally not It is wrong to suggest that I am
intentionally not identifying the signature of my father on the
photocopy of agreement to sell and receipt dated 21.04.94 which
are Mark Z and Mark Z1. He admitted that the address
mentioned on the Mark Z and Mark Z1 is of his father where he
was residing during the relevant period.
130. He admitted that the portion from points 'A' to 'A' and 'B'
to 'B' of his evidence by way of affidavit Ex.D2/1 are not
mentioned in the written statement, but are mentioned in a
different context. Thereafter, his cross-examination was again
deferred.
CS DJ no. 611272/16 Page 64/177
Surender Kumar vs. Madan Lal and Ors.
131. The D2W1/defendant no.2 was next cross-examined on
31.08.2018 by the ld. Counsel for the plaintiff, during which he
stated that he had applied for the certified copy of Will
Ex.DW2/3 last year i.e. 2017 and had visited the office at
Kashmere Gate for the same. He stated that he came to know
about the Will in the year 1996 through his grandfather. He stated
that he required the certified copy of Will as it was required to be
shown in different departments. He stated that he had not
mentioned these facts in his evidence by way of affidavit,
Ex.D2/1.
132. He affirmed that the age of his
grandfather at the time of his death was about 70 years and that
Ram Plastic was a proprietorship concern of his grandfather. He
denied the suggestion that his grandfather had worked till his
death from 19-20, Harlal Market, Sector 7, Rohini.
133. He further stated that his grandfather had about 10
grandchildren and denied the suggestion that his grandfather had
equal affection towards all of them and volunteered to state that
CS DJ no. 611272/16 Page 65/177
Surender Kumar vs. Madan Lal and Ors.
the children of the defendant no.4 used to give beatings
to his grandfather and he had seen them giving beatings to him.
He stated that he had not mentioned the above fact in his
evidence by way of affidavit. He stated that his grandfather had
more affection towards their late brother Sanjeev. He affirmed
that Sanjeev resided with his grandfather till his death. He also
affirmed that his grandfather was affectionate with his father.
134. He denied the suggestion that his father had manipulated
the Will in collusion with the counsel to grab the properties and
that his grandfather had never visited the office of Sub-Registrar
and never executed any will.
135. At this stage, Sh. Anil Khatri, Junior Assistant was
summoned from the office of the Sub-Registrar-VIA, Pitampura,
who produced the summoned record, and the witness was
confronted with three certified documents i.e. GPA,
SPA and Sale Deed. The witness admitted the photograph of his
grandfather appearing at point A on GPA which was marked as
Ex.D2W1/PX (OSR). He also admitted the photographs of his
grandfather at point B on the SPA, which was marked as
CS DJ no. 611272/16 Page 66/177
Surender Kumar vs. Madan Lal and Ors.
Ex.D2W1/PY(OSR).
136. He stated that he was not aware that the GPA
Ex.D2W1/PX and SPA Ex.D2W1/PY in respect of WZ-711,
Rishi Nagar, Rani Bagh was executed in favour of his
grandfather. The witness admitted the signature, photograph and
thumb impression of his father at point A, B and C on sale deed
which was marked as Ex.D2W1/PZ(OSR).
137. He denied the suggestion that Late Sh. Ram Dass
purchased the property no. 313/48C, Plot No. 6 in Block B,
measuring 200 sq. yards Inderlok, Delhi and that his father sold
the same as GPA of Ram Das on 02.05.2003 vide document
Ex.D2W1/PZ to Shri Mubeen Ahmad. He also denied the
suggestion that he was deposing falsely in this regard or that Late
Sh. Ram Dass had not executed any Will during his lifetime.
Thereafter D2W1/defendant no.2 was discharged as a witness.
Evidence of Sh. D. P. Singh, Advocate as D2W2:
138. The defendants no.1-3 next examined Sh. D. P. Singh,
Advocate as D2W2, who tendered his evidence by way of
affidavit as Ex. D2W2/A on 22.10.2018 in which he stated that
CS DJ no. 611272/16 Page 67/177
Surender Kumar vs. Madan Lal and Ors.
he had seen the original Will dated 10.01.1995 of Sh. Ram Dass,
s/o Sh. Jassu Ram which had been brought to his seat at Old
Court, Kashmere Gate on 29.11.2014. He stated that the said Will
was registered as document no. 1249, Additional Book No. 3, Vol
No. 2244 at pages 168 to 170 on 10.01.1995 with the office of
the Sub-Registrar, North, Kashmere gate, Delhi.
139. He further stated that the said Will was made by Sh. Ram
Dass with his free will and consent in his presence and the same
had been drafted by him as per the instructions of Late Sh. Ram
Dass. He deposed that Late Sh. Ram Dass was not suffering from
any mental disability and was in a fit and disposing mind at the
time of the execution of the said will. He stated that the will was
signed and the thumb impression was affixed by Late Sh. Ram
Dass in his presence at the time of it's execution as well as
registration before the Sub-Registrar. He deposed that the will
was read over and explained by him to the deceased, who signed
and affixed his thumb impression only after understanding it's
contents. He deposed that he also appended his signatures on he
will along with his seal. He deposed that when the Will was
presented for registration, the Sub-Registrar also made queries
CS DJ no. 611272/16 Page 68/177
Surender Kumar vs. Madan Lal and Ors.
from Late Sh. Ram Dass. He deposed that one Sh. Madan Lal
was also present along with the deceased at the time when the
will was made as a witness, who also also appended his
signatures and thumb impressions on the said Will in his
presence and also explained the contents of the Will to Late Sh.
Ram Dass. He identified his own signatures on the Will, Ex.
DW-2/3 at points X, X-1 and X-2. He identified the signatures of
and thumb marks of Late Sh. Ram Dass on the at points B, B-1,
B-2, B-3, B-4, B-5, B-6, B-7, B-8. B-9, B-10 and B-11. He also
identified the signatures of Madan lal on the Will at points A and
A-1. He identified the photographs of Late Sh. Ram Dass on the
will at point C.
140. At the time of tendering of his evidence by way of
affidavit on 22.10.2018, the witness D2W2 stated in his
examination--in-chief that the Will bears the signatures of Sh.
Madan Lal at points A-1 and A-2 and his thumb impressions at
point A and A-3. He further stated that the Will bears the
signatures of Late Sh. Ram Dass at points B-1, B-4, B-6, B-8 and
B-10 and his thumb impressions were at points B-3, B-5 and B-9
and that the photograph of Late Sh. Ram Dass was at point C.
CS DJ no. 611272/16 Page 69/177
Surender Kumar vs. Madan Lal and Ors.
141. The witness D.P. Singh/D2W2 was cross-examined by the
ld. Counsel for the defendant no.4 on 22.10.2018, during which
he stated that he has been sitting at Kashmere Gate since the year
1992 and had appeared as a witness till date in 10 - 12 cases,
however could not recollect the particulars of the said cases. He
did not remember how many wills he had drafted as an advocate
and how many wills he had attested as a witness and did not
maintain any records of the wills drafted by him or in which he
had signed as a witness. He stated that he also received fees from
the clients, but did not maintain any records as well. He stated
that he used to file his ITRs earlier, however did not do so
nowadays and did not remember when he had stopped filing the
same.
142. He stated that he did not know Late Sh. Ram Dass or the
attesting witness prior to drafting the Will. He stated that his seat
number at Kashmere Gate was 88 and did not sit anywhere else.
He stated that he was identifying the Will in question on the basis
of his stamp and signature.
CS DJ no. 611272/16 Page 70/177
Surender Kumar vs. Madan Lal and Ors.
143. He further stated that the facts stated in paras no.1 and 2 of
his evidence by way of affidavit, Ex. DW2/2A were not within
his personal knowledge prior to 29.11.2014. He stated that on
29.11.2014, Sh. Praveen Kumar had come to him and again
stated that he had come to him on 05.07.2016 and had brought
the certified copy of the Will. He stated that he looked at the
original Will on 29.11.2014 and saw the certified copy of the Will
on 05.07.2016. He stated that Praveen Kumar had come to him
alone on 05.07.2016. He admitted that he had not stated in his
evidence by way of affidavit that Praveen Kumar had come to
him on 05.07.2016. He stated that he did not enquire from Late
Sh. Ram Dass about issuing of any notice against his children or
the public at large. He stated that Late Sh. Ram Dass had told
him that the property is only to be bequeathed to the persons
whose names he was giving. He stated that Madan Lal was
present at that time, however did not remember if Madan Lal had
disclosed his relationship with the beneficiaries.
144. He stated that he could identify the signatures of Late Sh.
Ram Dass as well as the witnesses on the photocopies of the
documents if shown to him. At this stage, witness was shown
CS DJ no. 611272/16 Page 71/177
Surender Kumar vs. Madan Lal and Ors.
documents Ex.D2W1/P2, Mark X, Mark Z, Mark Z1, Mark F,
Mark E, Mark A, Mark B and Mark C and the witness stated that
he can only identify the signature which are
appended in his presence and not the signature which are
appended on documents which are not prepared in his presence.
He further stated that he never leaves any portion blank in the
documents prepared by him. Thereafter, his further cross-
examination was deferred.
145. The witness D2W2 was next cross-examined on
27.05.2019 by the ld. Counsel for the defendant no.4, during
which he stated that the affidavits which he had filed before this
Court were prepared by him and that he had got two affidavits
prepared in this case. He stated that he normally sees the
documents before preparation of affidavits. He stated that he had
not seen the original Will when he got the first affidavit
prepared, and again stated that he had seen the original Will on
29.11.2014 and that he also saw the certified copy of the Will on
05.07.2016.
146. He stated that when he prepared his affidavit in this case
CS DJ no. 611272/16 Page 72/177
Surender Kumar vs. Madan Lal and Ors.
on 29.11.2014, he has mentioned the facts in the affidavit after
going through the Will, and volunteered to state that since there
was some typographical error in his affidavit, he had prepared
another affidavit, Ex.D2W2/A. He stated that at the time when he
prepared the second affidavit, he had only seen the certified copy
of the Will.
147. He further stated that he had disclosed in his affidavit that
Parveen Kumar had brought the Will to him. He stated that
whatever he had mentioned in paragraphs no. 2 and 3 of his
affidavit Ex.D2W2/A was also mentioned in the Will. He denied
the suggestion that he had deposed falsely in this regard.
148. He further stated that Praveen Kumar was not present
when the Will Ex. DW2/3 was prepared and affirmed that the
will was neither signed nor prepared in the presence of Praveen
Kumar. He stated that Late Sh. Ram Dass was knowing Urdu
language. He admitted that he had not stated in the Will that it
had been drafted by him and volunteered to state that it was
bearing his stamp. He stated that he had mentioned in the said
will that it was being prepared at the instance of Late Sh. Ram
CS DJ no. 611272/16 Page 73/177
Surender Kumar vs. Madan Lal and Ors.
Dass. He stated that he did not remember whether he had
mentioned in the Will whether Late Sh. Ram Dass was suffering
from any mental disability or not. Thereafter, his further cross-
examination was deferred.
149. The witness D2W2 was next cross-examined by the ld.
Counsel for the defendant no.4 on 30.01.2020, during which he
stated that he did not know whether Late Sh. Ram Dass could
read or write Hindi or English and volunteered o state that the
same was read over by him to Late Sh. Ram Dass. He stated that
the defendants no. 2 and 3 were not present at the time of
execution of the will, Ex. DW2/3. He stated that he had seen the
ownership documents of Late Sh. Ram Dass at the time of
execution of the will.
150. He further stated that generally he did not affix two copies
of his stamps on documents. He stated that the name of Late Sh.
Ram Dass, below the photograph, was written by his clerk. He
stated that he did not know the address of Late Sh. Ram Dass. He
stated that Sh. Ram Dass had approached him as an advocate for
drafting of the said will. He stated that he used to inquire from
CS DJ no. 611272/16 Page 74/177
Surender Kumar vs. Madan Lal and Ors.
the person regarding his mental state before stating him of sound
mind in the will. He further stated that he did not visit the
properties before drafting any will qua them. He further stated
that generally, he did not attest as witness, the wills drafted by
him. He further stated that he did not remember when Late Sh.
Ram Dass became owner of the properties bequeathed by him
through the present will. He further stated that the other attesting
witness, Sh. Madan Lal also came along-with Sh. Ram Dass at
the time of execution of the Will. He did not know whether Sh.
Madan Lal had strained relations with Sh. Ram Dass and also did
not know whether Sh. Madan Lal was not residing with Late Sh.
Ram Dass. Thereafter his further cross-examination was
deferred.
151. The witness D2W2 was next cross-examined by the ld.
Counsel for the defendant no.4 on 11.02.2020, during which he
admitted that the words "in my presence with his freewill and
consent" as stated in paragraph 2 of his affidavit were not
mentioned in the Will Ex.DW2/3. He also admitted that the facts
stated in paragraph no. 3 of his evidence by way of affidavit were
not mentioned in the Will, Ex.DW2/3. He denied the suggestion
CS DJ no. 611272/16 Page 75/177
Surender Kumar vs. Madan Lal and Ors.
tat he had mentioned wrong facts in paras no. 2 and 3 of his
evidence by way of affidavit.
152. He admitted that the testator Late Sh. Ram Dass had not
brought two witnesses along with him at the time of execution of
the said Will. He stated that the testator Late Sh. Ram Dass did
not tell him about his relationship with the witness Sh. Madan
Lal or that the beneficiaries in the said will were the children of
Sh. Madan Lal. He further stated that he did not remember what
was the description of the property documents shown by Late Sh.
Ram Dass to him.
153. He further stated that the testator Late Sh. Ram Dass had
signed once on each page of the said Will. The true copy of the
original Will was filed with the office of Registrar for their
record.
154. At this stage, the witness was shown the certified copy of
the said Will and asked whether the certified copy of the
registered Will Ex.DW2/A-1 is of the same Will which was filed
with the office of the Sub-Registrar?, to which he stated that it
CS DJ no. 611272/16 Page 76/177
Surender Kumar vs. Madan Lal and Ors.
might be the same copy.
155. He denied the suggestion that the signatures and thumb
impression at point A on Ex. DW-2/A-1 and at point A-1 on Ex.
DW2/A-1 are not identical. He also denied the suggestion that
the beneficiaries were not residing with the testator at the time of
execution of the Will. He stated that he had prepared a rought
note before the execution of the Will, Ex. DW-2/3. He states that
the testator was sitting along with him at the time of typing of the
said Will and that no blanks were left in the said Will. He could
not say anything about the signatures at point A on Mark-B and
stated that he could not identify the same and volunteered to state
that he could not identify the signatures of Late Sh. Ram Dass,
which had not been identified by him.
156. He further stated that he could not read or write Urdu
language and did not know whether the witness Sh. Madan Lal
knew Urdu or not. He denied the suggestion that Late Sh. Ram
Dass had never approached him for preparation of the Will or
that he had never signed the same in his presence. He denied the
suggestion that he had no personal knowledge of the Will and
CS DJ no. 611272/16 Page 77/177
Surender Kumar vs. Madan Lal and Ors.
that the Late Sh. Ram Dass has not executed the same or that he
had prepared it in collusion with the defendant no.1. Thereafter,
the cross-examination of witness D2W2 by the ld. Counsel for
the defendant no.4 was completed.
157. The witness D2W2 was next cross-examined by the ld.
Counsel for the plaintiff on 29.03.2022, during which he stated
that the evidence by way of affidavit tendered in evidence, as
well as the earlier evidence by way of affidavit filed by him were
prepared by him. He stated that earlier affidavit contained the
incorrect registration and volume number of the Will and when
he saw the certified copy of the Will and affidavit, he had pointed
out the said mistake. He denied the suggestion that at the time of
preparation of his affidavit dated 29.11.2014, the Will or it's
certified copy was not shown to him. He further stated that as a
draftsman, he had met all the requirements of the will and
prepared it as per the wishes of Late Sh. Ram Dass. He stated
that he had also checked his property documents at the time of
preparation of the Will, including Aadhar Card and the witnesses
who came along with him. He admitted that he had not stated in
the will that he had checked the property documents or their
CS DJ no. 611272/16 Page 78/177
Surender Kumar vs. Madan Lal and Ors.
identity cards and stated that he had drafted the Will and
corrected it as many times required before finalization.
158. He stated that he had corrected the Will around 2 - 4 times
and all the drafts were not read out to Late Sh. Ram Dass and
only the final draft was shown and read out to him. He stated that
he had drafted the Will in English language and Ram Dass did
not know English, however volunteered to state that he had read
out the Will to him. He stated that he did not prepare the will in
the language of Late Sh. Ram Dass and had prepared it in
English. He stated that he did not remember whether the Will
mentions that it was read out in urdu language to Late Sh. Ram
Dass. At this stage, the Will Ex. DW-2/3 was also shown to the
witness who stated that it was correct that it was not mentioned
in the Will that it had been read out to him. Thereafter, the further
cross-examination of the witness was deferred.
159. The witness D2W2 was next cross-examined by the ld.
Counsel for the plaintiff on 29.03.2022, during which he stated
that Sh. Madan Lal did not disclose his relations with the Late
Sh. Ram Dass or with the beneficiaries of the Will. He stated that
CS DJ no. 611272/16 Page 79/177
Surender Kumar vs. Madan Lal and Ors.
Late Sh. Ram Dass also did not tell him about his relations with
Sh. Madan Lal. He stated that the name of the father of the
witness is also mentioned along-with other details of the witness.
He stated that the name of the father of the witness is Ram Dass.
160. He further stated that Sh. Madan Lal did not tell him
whether Late Sh. Ram Dass has other properties besides those
mentioned in the Will. He stated that Sh. Madan Lal did not tell
him about the other members of the family of Late Sh. Ram
Dass. He stated that under the Will, the properties had devolved
upon Sh. Praveen Kumar and Sh. Rajeev Kumar, who are the
sons of Sh. Madan Lal. He stated that Late Sh. Ram Dass did not
tell him that his relations with Sh. Madan Lal were not good.
161. He further stated that he had not mentioned the Aadhar
Card details of the witness and the executant on the Will and did
not remember whether in the year 1995, there was no Aadhar
Card or number. He stated that he did not put any date under his
signatures and volunteered to state that as the same was already
mentioned on the document. He was then questioned: "How can
you tell without mentioning the date under your signatures on the
CS DJ no. 611272/16 Page 80/177
Surender Kumar vs. Madan Lal and Ors.
document as to when the same document was drafted by you?",
to which he stated that he had signed the document on the date of
it's registration i.e. 10.01.1995. He stated that he gets to know the
date on the document as he signs it on the same day when the
witnesses and the executant sign and the same is registered.
162. He was then questioned as to whether he mentions in the
document that the same has been "drafted by me", to which he
stated that "There are two stamps appended on the document, one
mentions the word "drafted by me" and the other is appended
upon the document as a witness" and that the will Ex. DW-2/3
bears both these stamps. He stated that the cuttings upon the final
document are countersigned by the executant and the handwritten
additions in the document are not counter signed by the
executant.
163. He further stated that he met Praveen Kumar/defendant
no.2 for the first time on 29.11.2014 and did not remember the
time when he met him. He stated that Sh. Praveen
Kumar/defendant no.2 was accompanied by Madan Lal and Sh.
Ram Dass and again stated that only Sh. Madan Lal had
CS DJ no. 611272/16 Page 81/177
Surender Kumar vs. Madan Lal and Ors.
accompanied him. He stated that the Sh. Praveen
Kumar/defendant no.2 again met him on 05.07.2016 and on
05.08.2016. He did not remember if he met Sh. Praveen Kumar/
defendant no.2 after August, 2016. He stated that he met him
during the evidence proceedings in the Court on previous dates
of hearing in this case and that he was not accompanied by
anyone else at that time. He stated that he had met him at the
Sub-Registrar's office, Kashmere Gate, Office , Delhi where his
office was located and some time at Tis Hazari Courts, Delhi. He
further stated that his evidence by way of affidavit mentions the
contents of the Will, Ex. DW-2/3.
164. He further stated that Sh. Madan Lal was present as many
times as the will was drafted and volunteered to state that he was
present in the Chamber and was sitting separately while he was
asking Late Sh. Ram Dass as to what properties he wished to get
the Will made for. He stated that the will, Ex. DW-2/3 was
finalized on the same day, which took about three hours to
finalize.
165. He stated that while the said will was being finalized, Sh.
CS DJ no. 611272/16 Page 82/177
Surender Kumar vs. Madan Lal and Ors.
Madan Lal did not know about the same and volunteered to state
that Madan Lal got to know about it when it was finalized, read
out and signed. He stated that it is written in the document that it
was read out and signed in the presence of the executant and the
witness. He stated that Madan Lal did not tell him at the time that
he was a resident of WZ-711, Rishi Nagar, Rani Bagh, Delhi -
34. He stated that Ram Dass did not tell him that the defendant
no.4 Yogender resides with him on the second floor in the same
property where he was residing. He stated that Madan Lal did not
tell him where he was residing and volunteered to state that his
address was mentioned on the document Ex. DW-2/3. He stated
that generally the witnesses accompany the executant to the
Registrar's office for registration. At the time of registration of
the will, at the back side of the Will, it is endorsed as to who is
the presenter of the Will and who are the witnesses of the Will.
He stated that the will was registered on the same day of it's
finalization. He stated that it is not necessary to mention the
identification of the property in the Will and volunteered to state
that the property numbers were mentioned in the Will. He stated
that he had not mentioned the the area of the property, nature of
the document and the source from where it was acquired by the
CS DJ no. 611272/16 Page 83/177
Surender Kumar vs. Madan Lal and Ors.
testator and no other details, except the floors and the numbers
have been mentioned in the Will. He stated that Ram Dass had
not mentioned in the Will any reason for not giving the property
to Madan lal. He denied the suggestion that he had not seen any
property documents and therefore no details have been
mentioned in the Will.
166. He further stated that Ram Dass was about 62-63 years old
as on 10.01.1995 and that he had not seen any medical document
to show that Ram Dass was fit to execute the Will, Ex. DW-2/3.
He stated that he did not make any query as to the medical fitness
of Ram Dass from Madan Lal and they did not show him any
medical document to show that Ram Dass was fit to execute the
Will, Ex. DW-2/3. He stated that it is not mentioned in the Will
that the Will was read out to Ram Dass and volunteered to state
that he had read out the Will to Ram Dass. He admitted that the
Will does not mention that it has been prepared under the
instructions of Ram Dass. He also admitted that the will does not
mention the family details of Ram Dass. He also admitted that
the will does not mention the relation of the executant with the
witness. He denied the suggestion that he has put his signatures
CS DJ no. 611272/16 Page 84/177
Surender Kumar vs. Madan Lal and Ors.
as witness for the sake of money or that he was deposing falsely
at the instance of the defendant no.2. Thereafter, his cross-
examination by the defendant no.2 was completed.
Evidence led by the defendant no.4
Evidence of Yogender Kumar, the defendant no.4 as D4W1:
167. The defendant no.4 stepped into the witness box as D4W1
and tendered his evidence by way of affidavit, Ex. D4W1/A on
27.10.2014. It is pertinent to mention that para no.1, 3, 4, 5, 10
and 12 of the evidence by way of affidavit were struck off being
beyond the pleadings/contrary to the written statement on the
objection of the ld. Counsel for the defendants no. 1-3.
168. The D4W1/defendant no.4 was first cross-examined by the
ld. Counsel for the defendants no. 1- 3 on 29.10.2014, during
which he admitted that he was presently undergoing the sentence
awarded to him for having committed the murder of his father
Late Sh. Ram Dass and also admitted that his appeal against the
order of conviction was also dismissed four years ago. He also
admitted that he was simultaneously also undergoing the
sentence for the murder of his nephew Sh. Sanjeev Kumar, son of
the defendant no.1 Madan Lal.
CS DJ no. 611272/16 Page 85/177
Surender Kumar vs. Madan Lal and Ors.
169. He also admitted that at the time of his death, his father Sh.
Ram Dass used to reside at house no. 313/40, Inder Lok, Delhi
and denied that the defendants no.2 and 3 were are staying at
Inder Lok. However, he admitted that both Sanjeev Kumar
(minor son of the defendant no.1 Madan Lal) and Ram Dass were
murdered in the property bearing no. 313/40, Inder Lok, Delhi.
He also admitted that the defendants no.2 and 3 are the real
brothers of Sanjeev Kumar.
170. He denied the suggestion that he was deposing falsely that
the defendants no.2 and 3 were also living in the property no.
313/40, Inder Lok, Delhi at the time of the murder of Late Sh.
Ram Dass. He stated that he had not seen the will dated
10.01.1995 and volunteered to state that he came to know about
the existence of the Will only after the filing of the present suit.
He denied the suggestion that during the lifetime of his father, he
was engaged in litigation with him and his father had also filed
police complaint against him for assault, threat of life and theft.
He denied that the Will, Ex. PW-1/D3 bears the signatures of
Late Sh. Ram Dass.
CS DJ no. 611272/16 Page 86/177
Surender Kumar vs. Madan Lal and Ors.
171. He also admitted that shop no. 206-B, Kishan Ganj, Delhi
was with the plaintiff and stated that this shop did not belong to
Late Sh. Ram Dass and that his mother could be it's owner.
However, admitted that he did not know to whom the said shop
belonged and till date had never seen the title documents of the
said shop as well. However, later admitted that his mother Late
Smt. Kaushalya Devi was the owner of the said shop. He
admitted that his mother Smt. Kaushalya Devi had pre-deceased
his father Late Sh. Ram Dass.
172. He denied the suggestion that property no. WZ-711, Rishi
Nagar, Shakur Basti, Delhi - 34 was never owned by Late Sh.
Ram Dass or was ever in his possession as well. He denied the
suggestion that Shop no. 19, 20 Har Lal Market, Sector No. 7,
Rohini, Delhi - 110085. was taken on rent by Late Sh. Ram Dass
and was vacated by him prior to his death. He stated that he had
visited the the said property 2 - 3 months prior to the murder of
his father and had taken his father to show him the said shops.
173. He further stated that he used to reside at the second floor
CS DJ no. 611272/16 Page 87/177
Surender Kumar vs. Madan Lal and Ors.
and his father used to reside at the ground floor of the property
no. 313/40, Inderlok, Delhi. He denied the suggestion that his
father used to lodge police complaint against him since early
1993 and volunteered to state that this was a conspiracy by the
defendants no. 1 - 3. He also denied the suggestion that he along
with the other brothers were not entitled to any share in the
property of Late Sh. Ram Dass. Thereafter, his cross-examination
by the ld. Counsel for the defendants no. 1 - 3 was completed.
174. The D4W1/defendant no.4 was then cross-examined by the
ld. Counsel for the plaintiff, during which he stated that Late Sh.
Ram Dass was not educated and did not know English or Hindi
and only knew little bit of Urdu and used to sign in Urdu as well.
He further stated that late Sh. Ram Dass was the owner of
313/40, B-4, Inderlok Tri Nagar, Delhi - 35; 313/48, B-6,
Inderlok Tri Nagar, Delhi - 35 and WZ-711, Rishi Nagar, Shakur
Basti, Delhi - 34. He stated that Late Sh. Ram Dass had sale
deeds in respect of all three properties in his favour.
175. He further stated that prior to his death, Late Sh. Ram Dass
was forgetful, had fever and his mind was 'upset', however
CS DJ no. 611272/16 Page 88/177
Surender Kumar vs. Madan Lal and Ors.
admitted that he was not being treated for any mental disturbance
or 'mental upsetness' by any psychiatrist.
176. He further stated that prior to his death, Late Sh. Ram Dass
was running a factory on the ground floor of the Inder Lok
property and was also earning profits from it and at the time of
his death there were some articles therein, i.e. one oriental
machine, 40 diaries, raw materials and finished goods worth 10
lakhs, cooler, fridge and other articles. He stated that he had
visited the factory 2- 4 days prior to the murder of Late Sh. Ram
Dass. He stated that his father had also not disclosed anything
about having executed a Will prior to his murder. He stated that
he was also having a share to the extent of 100 sq. yards out of
the 200 sq. yards. Thereafter, he was discharged as a witness.
Evidence led by the defendant no.10
Evidence of Gagandeep Munjal, the defendant no.10 as D10W1:
177. The defendant no.10 (son of the defendant no.4) also led
his evidence as D10W1 and tendered his evidence by way of
affidavit as Ex. D10W1/A, the paragraph no.2 of which was
struck off being beyond the pleadings. He deposed that Late Sh.
Ram Dass and Smt. Kaushalya Devi were his grandparents, who
CS DJ no. 611272/16 Page 89/177
Surender Kumar vs. Madan Lal and Ors.
had not executed any will during their lifetime and that he had a
right in their property by birth.
178. The D10W1/defendant no.10 was cross-examined by the
ld. Counsel for the plaintiff on 23.04.2014, during which he
stated that Sh. Ram Dass was his grandfather, who died in the
year 1997 at which time the witness was aged 10 - 11 years. He
stated that Ram Dass had five sons namely Surender Kumar,
Chander Kumar, Madan Lal, Yogender Kumar and Rajender
Kumar and had no daughters. He stated that the documents
relating to the immovable property of Late Sh. Ram Dass had
been placed on record. It is also recorded by the Court that he
was being prompted by the counsel for the defendant no.4 Mr.
Swarn Kumar Kapoor.
179. The D10W1/defendant no.10 was also cross-examined by
the ld. Counsel for the defendants no. 1 - 3, during which he
admitted that his father was lodged in Tihar Jail and serving the
sentence of imprisonment in connection with the murder of Late
Sh. Ram Dass and Sh. Sanjeev Kumar, son of the defendant no.1,
however volunteered to state that he had been falsely implicated
CS DJ no. 611272/16 Page 90/177
Surender Kumar vs. Madan Lal and Ors.
in the said case. He stated that he did not know whether there
was any appeal pending against his conviction or not and could
neither admit nor deny whether the appeal filed against the
conviction had reached it's finality. He stated that he did not
know whether Late Sh. Ram Dass had dis-inherited his father and
Surender Kumar vide notice dated 09.06.1993 published in
Punjab Kesari Newspaper or whether he had executed a will
dated 10.01.1995 in favour of the defendants no.2 and 3.
Thereafter he was discharged as a witness.
ARGUMENTS OF THE PARTIES
Arguments of Sh. Sanjeev Behl, Ld. Counsel for the plaintiff
180. The Ld. Counsel for the plaintiff Sh. Sanjeev Behl has
argued that the defendant no.2 has examined himself as D2W1
and although the defendant no.3 has filed his evidence by way of
affidavit, did not step into the witness box and hence has not
supported the Will in his favour. He has further submitted that
Sh. D.P. Singh, Advocate was also examined as witness D2W2,
is neither a reliable, nor a truthful witness and has made
statements against the record and failed to explain the date
recorded, which has been left blank in the Will and has been
CS DJ no. 611272/16 Page 91/177
Surender Kumar vs. Madan Lal and Ors.
written subsequently. The witness has also not explained as to
why the column of the date has been left blank, which shows that
the said Will was not drafted on the said date and appears to have
been drafted prior to the said date.
181. He has further submitted that the onus of the issue no.1,
framed with respect to the plaintiff and the defendants no. 4 and
5 having been disinherited by Late Sh. Ram Dass, was on the
defendants no.1-3 who have failed to prove the same. The
D2W1/defendant no.2 has led in evidence the public notice dated
09.06.1993 published in Punjab Kesari by Sh. S.P. Manocha,
Advocate as Mark D-2/A, which has not been proved as no
witness has been summoned from the said newspaper and further
the defendants no.1-3 have also not led the evidence of Sh. S.P.
Manocha to prove that the notice was got published through him.
Further, in the alleged Will Ex. DW-2/3 of Late Sh. Ram Dass,
there is no reference to the said public notice dated 09.06.1993 or
that the plaintiff and the defendants no. 4 and 5 have been
disinherited. The D2W1/defendant no.2 has also admitted in his
cross-examination dated 08.02.2018 that Late Sh. Ram Dass has
not mentioned the fact of having disinheriting the plaintiff and
CS DJ no. 611272/16 Page 92/177
Surender Kumar vs. Madan Lal and Ors.
the defendants no. 4 and 5 in his Will and that it is also not
mentioned in the Will that Late Sh. Ram Dass was having
strained relations with the plaintiff and the defendants no. 4 and
5. Further the date of the said public notice as put to the
plaintiff/PW-1 during his cross-examination has also varied.
During the plaintiff/PW-1's cross-examination dated 21.05.2012
the date of the public notice was put to him as 09.06.1993 and
during his cross-examination dated 27.02.2013, it has been put to
him as 12.10.1997. The defendant no.2/D2W1 also admitted
during his cross-examination dated 08.02.2018 that he was not in
possession of any document to show that the deceased Ram Dass
got issued the public notice dated 09.06.1993. The defendant
no.4 has also duly supported the plaintiff on this account. Hence,
the issue no.1 is liable to be decided against the defendants no. 1-
3.
182. He has submitted that with respect to the issue no.2
regarding the suit being hit by the provisions of section 25 of the
Hindu Succession Act, the defendants no.1-3 have failed to
establish that the entire suit is defenestrated on account of section
25 of the Hindu Succession Act and it only applies to the share of
CS DJ no. 611272/16 Page 93/177
Surender Kumar vs. Madan Lal and Ors.
a particular person. Hence, the issue no.2 is also to be decided
against the defendants no.1-3.
183. With respect to issue no.3 framed with regard to whether
Late Sh. Ram Dass was the owner of the properties as mentioned
in paras no.3 and 4 of the plaint, it is submitted that the
defendants no.1-3 have admitted that Late Sh. Ram Dass has left
behind property no. 313/40, B-4, Inderlok Tri Nagar, Delhi - 35
and 313/48, B-6, Inderlok Tri Nagar, Delhi - 35. With respect to
the property no. WZ-711, Rishi Nagar, Shakur Basti, Delhi - 34,
the defendants no.1 and 2 have submitted that they are the
owners of this property, however have not provided any
documentary proof thereof. Hence, this property is to be treated
as belonging to Late Sh. Ram Dass as well. With respect to the
property/shops no. 19, 20 Har Lal Market, Sector No. 7, Rohini,
Delhi - 110085, it is submitted that the D2W1/defendant no.2 has
admitted in his cross-examination dated 30.05.2017 that Late Sh.
Ram Dass was the tenant of these shops and has never proved
that the same were surrendered by him. He has also admitted that
a restaurant by the name of 'ALISHAN' was being run in the
said shops and that Late Sh. Ram Dass had a factory in the name
CS DJ no. 611272/16 Page 94/177
Surender Kumar vs. Madan Lal and Ors.
of Ram Plastic and no evidence has been brought on record to
show that the said factory was ever closed. Even in the Will, Ex.
DW-2/3 there is no mention of the closing of the factory or the
surrendering of the said shop or the disposing of the machineries.
Further, with respect to the movable properties, the defendants
no.1-3 have stated in the written statement that they were
distributed by Late Sh. Ram Dass amongst his sons, however the
said fact has not been proved by them. Hence, the plaintiff has
duly proved the issue no.3 in his favour as well.
184. It is further submitted by the Ld. Counsel for the plaintiff
that with respect to issues no. 4 and 5, the defendants no.1-3 have
failed to prove the alleged Will dated 10.01.1995. The
D2W1/defendant no.2 is admittedly not a witness to the said will
and has also admitted that his grandfather did not know English
and Hindi and used to sign in Urdu only. It is also an admitted
fact that Sh. Madan Lal/defendant no.1 who is the witness to the
will is the father of the beneficiaries, i.e. the defendants no.2 and
3. hence, for this reason alone, it can be said that the Will was not
prepared freely and without influence. Further, Late Sh. Ram
Dass has not given any reason for having excluded his own sons
CS DJ no. 611272/16 Page 95/177
Surender Kumar vs. Madan Lal and Ors.
and other legal heirs, with whom he was having good relations.
The defendant no.1/Madan Lal has also not stated anything in his
written statement that he had signed the said Will as a witness or
that it was got prepared by Sh. D.P. Singh Advocate. It is argued
that it is unnatural for a person to bequeath property only to his
grandsons ignoring other legal heirs, who he was helping during
his lifetime and without making any provision for them. Ld.
Counsel has further submitted that the Will in question only has
one witness and as per law, any Will is required to be attested by
two witnesses. There is also no explanation as to why no
provision has been made for Sanjeev Kumar, who was admittedly
residing with Late Sh. Ram Dass. The D2W1/defendant no.2 has
also admitted in his cross-examination dated 31.08.2018 that
Late Sh. Ram Dass was having more affection towards Sanjeev
Kumar. The contents of the Will therefore create suspicion
regarding it's execution. The D2W1 has also stated in his cross-
examination dated 08.02.2018 that the age of Late Sh. Ram Dass
was around 70 years at the time of his death, which s contrary to
the facts on record.
185. Ld. Counsel for the plaintiff has further submitted that
CS DJ no. 611272/16 Page 96/177
Surender Kumar vs. Madan Lal and Ors.
there is also no explanation as to why the date has been left blank
in the said Will and has been written subsequently, and it has not
been proved as to who has written the said date. Hence, the will
is shrouded with clouds of suspicion, which have not been
dispelled by the propounder. There is also no evidence on record
to show that Late Sh. Ram Dass was mentally fit at the time of
execution of the Will in question. There is no mentioned that
there was any earlier Will executed by the Late Sh. Ram Dass or
that it's contents were explained to him and understood by him.
No evidence has been led to prove that the Will in question has
been executed by Late Sh. Ram Dass in sound disposition of
mind. The said will was also never produced before the MCD for
mutation by the defendants no.2 and 3. They have also not
produced any document to show that the house tax is assessed in
their name.
186. It is submitted that D.P. Singh/D2W2 has also admitted in
his cross-examination that it is not mentioned in the Will that it
has been drafted by him and he has identified the Will only on
the basis of his stamp. He has also admitted that he has not
mentioned that the Will has been prepared at the instance of Late
CS DJ no. 611272/16 Page 97/177
Surender Kumar vs. Madan Lal and Ors.
Sh. Ram Dass. Hence, it is not proved that D.P. Singh/D2W2 was
the draftsman of the said Will either. The said witness was not
even aware whether Late Sh. Ram Dass could read or write
English or Hindi Language. He has claimed that he had seen the
ownership documents of the properties, however the same has
not been mentioned in the Will. The Will also does not carry the
correct description of the properties. Further, he has also admitted
that he has not attested the Will as a witness. Hence, the same is
not a valid will as per section 63 (c) of the Indian Succession Act.
The said witness has also not made mention of the thumb
impressions. He also stated that the Will in question has no
blanks, whereas admittedly the said Will carried blanks. The
witness also could not say anything about the signatures of Late
Sh. Ram Dass on Mark B. The name of Late Sh. Ram Dass's
father was also not mentioned in the said Will. The witness has
also admitted that 2 - 4 drafts of the Will were created and only
the last draft was read out to Late Sh. Ram Dass. Further, he
claims to have checked the Aadhar card of Late Sh. Ram Dass in
the year 1995, which were introduced only in the year 2009.
Hence, the said issues are liable to be decided in favour of the
plaintiff.
CS DJ no. 611272/16 Page 98/177
Surender Kumar vs. Madan Lal and Ors.
187. With respect to issue no.6 concerning valuation of the suit,
it is submitted that no evidence has been led on this issue by any
party and hence it is liable to be decided in favor of the plaintiff.
188. In view of the above, the issues no. 7 and 8 are also liable
to be decided in favour of the plaintiff.
Arguments of Sh. Sunil Khanna, Ld. Counsel for the defendants
no.2 and 3
189. Sh. Sunil Khanna, ld. Counsel for the defendants no.2 and
3 has submitted that the defendants no.1-3 have filed their joint
written statement in the present case and have specifically
pleaded that the plaintiff has suppressed the material fact that
Late Sh. Ram Dass was murdered by the defendant no.4 on the
intervening night on 20.09.1997 - 21.09.1997 along with Sh.
Sanjiv Kumar, the minor son of the defendant no.1. They have
also stated that the defendants no. 4 and 5 had severely strained
relations with their father Late Sh. Ram Dass, who had also dis-
inherited them from his estate. The defendants no.1-3 have also
stated in their written statement that the plaintiff had abetted the
commission of the said crime and continues to help the defendant
CS DJ no. 611272/16 Page 99/177
Surender Kumar vs. Madan Lal and Ors.
no.4. It is submitted that the defendant no.4, having been
convicted for the murder of Late Sh. Ram Dass and Sh. Sanjiv
Kumar is barred from inheriting his properties in view of section
25 of the Hindu Succession Act, 1956. Further, Late Sh. Ram
Dass had published notice dated 10.06.1993, whereby he had
disinherited the plaintiff and the defendants no. 4 - 9 from all his
properties.
190. The defendants no.1 - 3 have also stated in their written
statement that Late Sh. Ram Dass was not the owner of any other
properties as stated in the plaint, apart from properties no.
313/40, B-4, Inderlok, New Delhi and the 2 nd Floor of property
no. 313/48, B-6, Inderlok, New Delhi. Further, vide a registered
Will dated 10.01.1995, Late Sh. Ram Dass has bequeathed the
said properties in favour of the defendants no.2 and 3., being his
grand-sons.
191. It is submitted that the plaintiff has failed to prove the
issues no. 3, 5 and 8, of which the the burden to proof was on his
shoulders. The plaintiff has failed to prove that Late Sh. Ram
Dass was the owner of the properties as mentioned in the plaint.
CS DJ no. 611272/16 Page 100/177
Surender Kumar vs. Madan Lal and Ors.
The plaintiff did not produce any sale deed or any document to
show that the properties claimed belonged to Late Sh. Ram Dass.
The plaintiff also did not summon the records from any Sub-
Registrar to prove his claim. The plaintiff also did not provide the
bank account details or any other details of the shares etc. The
plaintiff also never produced even a photograph of the alleged
movable articles stated in the plaint.
192. The plaintiff/PW-1 has stated in his cross-examination that
the property no. WZ-711, Rishi Nagar, Delhi was purchased from
one Praveen Kumar Sharma, however he did not even remember
the date, month or year of the said purchase. The plaintiff also
failed to examine the said Praveen Kumar Sharma as a witness.
193. With respect to the Shop no. 19, 20 Har Lal Market,
Sector No. 7, Rohini, Delhi - 110085, the plaintiff has stated that
one Har Lal was the owner, however the plaintiff never examined
the said Har Lal as a witness as well. The plaintiff then stated that
the said properties were taken on pagri. The plaintiff admitted
that the shop no. 206-B, Kishan Ganj Market was owned by his
father and mother and that the said shop was in his exclusive
CS DJ no. 611272/16 Page 101/177
Surender Kumar vs. Madan Lal and Ors.
possession. The plaintiff admitted during his cross-examination
dated 17.02.2013 that he was not in possession of any document
to show that the properties mentioned in his evidence by way of
affidavit belonged to his father.
194. The plaintiff/PW-1 has also stated during his cross-
examination dated 27.02.2013 that his father was in possession of
property bearing no. 313/40, B-4, Inderlok, New Delhi, however
during his cross-examination by the ld. Counsel for the defendant
no.4, he stated that the said property, his father was residing on
the ground floor and Yoginder was residing on the first and
second floors.
195. Ld. Counsel for the defendants no.2 and 3 has submitted
that in a suit for partition, the onus of proving that the properties
belong to the deceased is upon the plaintiff, who has failed to
prove the same. He has pointed out that the defendant no.4 has
also admitted in his cross-examination dated 29.10.2014 by the
plaintiff that "all these properties were under the ownership of
Ram Dass, my deceased father and he was having sale deeds in
respect of all these properties in his favour." Hence, the issues
CS DJ no. 611272/16 Page 102/177
Surender Kumar vs. Madan Lal and Ors.
no. 3, 6 and 8 are liable to be decided against the plaintiff.
196. With respect to the issue no.2, it is submitted that it has
been proved that vide the judgment, Ex. DW-2/1, the defendant
no.4 has been convicted of the murder of Late Sh. Ram Dass and
the brother of the defendants no.2 and 3. The plaintiff was
conscious of the said fact and has malafidely concealed the same
in the plaint. The plaintiff also did not file any replication to the
written statement by the defendants no.1-3 to further suppress the
fact of murder of Late Sh. Ram Dass by the defendant no.4.
However, ultimately admitted the same during his cross-
examination dated 18.09.2008 and 21.05.2012. The suit of the
plaintiff is therefore stated to be hit by section 25 of the Hindu
Succession Act. The ld. Counsel for the defendants no.2 and 3
has relied on the decision of the Hon'ble Apex Court in
Vallikannu vs. Shingaperumal & Ors, AIR 2005 SC 2597 in this
regards.
197. Ld. Counsel for the defendants no.2 and 3 has submitted
that with respect to the issues no. 1 and 4, the onus of these
issues was on the defendants no.1-3. It is submitted that the
CS DJ no. 611272/16 Page 103/177
Surender Kumar vs. Madan Lal and Ors.
plaintiff has stated in his plaint that Late Sh. Ram Dass has not
executed any Will dated 10.06.1995, whereas the Will relied
upon the defendants no.2 and 3 is dated 10.01.1995. The plaintiff
took no steps to amend his plaint in this regards. Even in his
evidence by way of affidavit, the plaintiff has mentioned that no
will dated 10.06.1995 was executed, which does not exist.
Hence, the will dated 10.01.1995 executed by Late Sh. Ram Dass
remains unchallenged by the plaintiff.
198. It is further submitted that the Will dated 10.01.1995, Ex.
DW-2/3 has been proved by examining Sh. D. P. Singh, Advocate
as D2W2, who is an independent witness. He has stated in his
evidence by way of affidavit, Ex. DW-2/A that the will was made
in his presence with the free consent of Late Sh. Ram Dass. He
has also deposed that Late Sh. Ram Dass was not suffering from
any mental disability and was in a fit and disposing mind at the
time of it's execution. He has also stated that the said will was
signed and thumb marked in his presence and also at the time of
presenting the same before the Sub-Registrar. He has also
deposed that the Sub-Registrar also made queries from Late Sh.
Ram Dass for this purpose about the contents of the Will. He has
CS DJ no. 611272/16 Page 104/177
Surender Kumar vs. Madan Lal and Ors.
identified his signatures on the Will at point X, X-1 and X2 and
the signatures of Late Sh. Ram Dass at point B, B-1, B-2, B-3,
B-4, B-5, B-6, B-7, B-8, B-9, B-10 and B-11. He has also
identified the signatures of Madan Lal/defendant no.1 at points
A-1 and A-2 and the photograph of the deceased at point C on the
Will Ex. DW-2/3. The said Will is also a registered Will and
carries a presumption of genuineness as per section 34 of the
Registration Act.
199. It is further submitted that many irrelevant questions have
been put to the witness D2W2 D.P. Singh during his cross-
examination. The said witness had drafted the Will in the year
1995 was cross-examined after more than 20 years about the
same, on account of which some minor contradictions are bound
to have crept in. However, his overall evidence is unchallenged
that he had drafted the Will on the instructions of the deceased,
who was in a fit disposing mind and had executed the same in his
presence. No such suggestion has been put to him that Late Sh.
Ram Dass did not come to him, or that Late Sh. Ram Dass was
not in a fit and disposing mind or that Will was executed under
some influence. Rather, he has deposed that Late Sh. Madan
CS DJ no. 611272/16 Page 105/177
Surender Kumar vs. Madan Lal and Ors.
Lal/defendant no.1 was sitting separately while the Will was
being drafted and Madan Lal did not know about it's contents till
it's finalization. The credibility of the witness is sought to be
shaken on the ground that when his evidence byway of affidavit
was being drafted, Madan Lal had also come with witness
Parveen, however no further cross-examination is conducted on
this point as to whether it was the same Madan Lal who had
witnesses the Will. It also seems that the witness appears not to
have understood the question properly as he had stated that on
29.11.2014, defendant no.2 was accompanied by Madan Lal and
Ram Dass and again stated that only Madan Lal had
accompanied him. Even otherwise, it is submitted that even if
Madan Lal had accompanied the defendant no.2 on 29.11.2014,
this would not make the Will dated 10.01.1995 a suspicious one.
200. It is submitted that the defendant no.2/D2W1 has also
proved the signatures and thumb impressions of his father Madan
Lal/defendant no.1 and Late Sh. Ram Dass on the Will, Ex.
DW-2/3. He has also stated that that he had been handed over the
Will by his grand-father and that he was no suffering from any
mental/physical incapacity till his death. He has also deposed that
CS DJ no. 611272/16 Page 106/177
Surender Kumar vs. Madan Lal and Ors.
the plaintiff has already been settled by Late Sh. Ram Dass by
giving him Shop No. 206-B, Kishan Ganj Market, Delhi. He has
also stated that the defendants no.4 and 5 had stolen cash and
gold of Late Sh. Ram Dass on 23.09.1993 from his residence. He
has also specifically deposed that late Sh. Ram Dass was not the
owner of WZ-711, Rishi Nagar, Shakur Basti, Delhi - 34, which
belonged to him and his father. He also deposed that the plaintiff
and the defendants no.4-6 constantly quarreled with Late Sh.
Ram Dass during his lifetime and tried to snatch away his assets
and properties. It is further submitted that even the main cross-
examination of the defendant no.2/D2W1 was conducted by the
ld. Counsel for the defendant no.4, which shows that the plaintiff
and the defendant no.4 are in collusion.
201. It is further submitted that the defendant no.2/D2W1 has
also led in evidence the police complaints registered against the
plaintiff and the defendants no. 4 and 5, Ex. D-2/W1/D4/A. The
plaintiff has also admitted in his cross-examination dated
27.02.2013 that the police report Ex. PW-1/D1 and D2 bears the
signatures of Ram Dass at points A and B. A perusal of the said
report reveals that the police report dated 09.02.1994 was
CS DJ no. 611272/16 Page 107/177
Surender Kumar vs. Madan Lal and Ors.
addressed to the Commissioner of Police, New Delhi by Late Sh.
Ram Dass and the police report dated 02.07.1993 was addressed
to the SHO, P.S. Sarai Rohilla. In both the complaints, Late Sh.
Ram Dass has mentioned that a public notice was given by him
in the newspaper divesting the plaintiff and the defendants no.4
and 5 from his business and property. Late Sh. Ram Dass has also
specifically stated that he apprehends danger to his life and that
on 30.06.1993, the plaintiff accompanied by three persons had
come to him in a drunken state and threatened him and that he
was living in a constant gander of being killed by them to grab
his property. The said complaints were also forwarded to Hon'ble
LG, DCP North-West and ACP North West. Hence, there was
sufficient reason for Late Sh. Ram Dass not to have given any of
properties to the plaintiff and the defendants no.4 and 5.
202. It is further submitted that in the entire cross-examination
of the defendant no.2/D2W1, not a single suggestion has been
put to him that the Will does not bear the signatures and thumb
impressions of Late Sh. Ram Dass or that he had never appeared
before the Sub-Registrar or that the Will does not bear his
photograph. No suggestion has also been put to him that the Will
CS DJ no. 611272/16 Page 108/177
Surender Kumar vs. Madan Lal and Ors.
in question was made under the influence of Madan
Lal/defendant no.1 or that Late Sh. Ram Dass was not in his
perfect mental state or that the Will was got executed under force
and coercion, without his free will.
203. It is submitted that the murder of Late Sh. Ram Dass by
the defendant no.4, the police reports filed by Late Sh. Ram Dass
during his lifetime against the plaintiff and the defendants no. 4
and 5 and the public notice issued in the newspaper all provide
sufficient reasons for Late Sh. Ram Dass to have excluded them
from his properties.
204. It is further submitted that even the plaintiff in his cross-
examination dated 27.02.2013 stated that the original Will was
shown to him by his father, meaning thereby that he also admits
that Late Sh. Ram Dass had infact executed the Will in question.
205. It is further submitted that the argument that the Will is in
English language and Late Sh. Ram Dass did not know any
English and hence the Will is not genuine is also a spurious
argument, as the witness D2W2 D.P. Singh clearly deposed that
CS DJ no. 611272/16 Page 109/177
Surender Kumar vs. Madan Lal and Ors.
he had drafted the Will on the instructions of Late Sh. Ram Dass.
Further, merely because Madan Lal is an attesting witness is not
a suspicious circumstance as admittedly he has not benefited
from the said Will.
206. It is further submitted that the argument that a scribe
cannot be a witness to a Will is also without any force in view of
the decisions of Matthew Oommea vs. Suseela Matthew, AIR
2006 SC 786; Raghunath vs State and Ors, decided by the
Hon'ble High Court of Delhi in FAO no. 284/2008 on
17.01.2018.
207. With respect to issue no.5 concerning valuation of the
present suit, it is submitted that the plaintiff has provided the
value of the properties as Rs. 20 lakhs, however he has admitted
in his cross-examination dated 27.02.2013 that he could not tell
what was the value of the suit properties as on the date of the
filing of the suit and also could not state whether they were worth
more than Rs. 1 crore. The plaintiff has also admitted that he is
not in possession of any of the properties and is therefore liable
to court fees on the value of his share. The ld. Counsel for the
CS DJ no. 611272/16 Page 110/177
Surender Kumar vs. Madan Lal and Ors.
defendants no.2 and 3 has relied upon the decisions of Jyoti Puri
vs Pawan Gandhi and Ors, 2018 (107) DRS 574 and Anil Kumar
Bomal vs R.K. Bomal, 198 (2013 ) DLT 723.
208. During the course of arguments, ld. Counsel for the
defendants no.2 and 3 has also relied on the following judgments:
a) Rangammal vs Kuppuswami and Anr, 2011 (4) RCR
Civil 291: That the burden of proof will always lie on the
person asserting a particular fact and until such burden is
discharged, the other party is not called upon to prove the
case. The Court cannot proceed on the basis of weakness
of the other party.
b) Vallikannu vs Singaperumal and Anr, AIR 2005 SC
2587: The effect of sections 25 and 27 of the Hindu
Succession Act, 1956 are that the entire stock of a
murderer stands disqualified.
c) Jyoti Puri vs Pawan Gandhi and Ors, 2018 (167) DRJ
574; Anil Kumar Bansal vs. R. K. Bansal , 198 (2013) DLT
723: Where plaintiff is not in possession, he is bound to
pay ad valorem court fees as per section 7 of the Suits and
Valuation Act.
CS DJ no. 611272/16 Page 111/177
Surender Kumar vs. Madan Lal and Ors.
d) Baldev Raj Ahuja vs State of NCT Delhi , 299 (2023)
DLT 112: Merely because the propounder of the Will is
also it's beneficiary alone is not a doubtful circumstance
and that a registered Will carries presumption of
genuineness.
e) Matthew Oommen vs Suseela Matthew, AIR 2006 SC
686; Raghunath vs State and Anr, FAO no. 284/2008,
decided by the Hon'ble High Court of Delhi on
17.01.2018; Ujagar Singh vs Chaman Singh, AIR 1986
P&H 230: A scribe can also be an attesting witness.
f) Nando vs Sher Singh: Attesting witness is not required
to know the contents of the Will.
g) Shakuntala Devi vs Savitri Devi, AIR 1997 HP 93:
Exclusion of natural heirs and minor inconsistencies in a
will is not a suspicious circumstance. The memory of a
witness fades away with time.
h) Hemkunwar Bai vs Sumer Singh, C.A. No. 8827/2011
Decided by the Hon'ble Apex Courton 15.09.2019:
Witness is not required to know the contents of the
documents and.
CS DJ no. 611272/16 Page 112/177
Surender Kumar vs. Madan Lal and Ors.
209. It is submitted that in light of the above, the suit of the
plaintiff be dismissed with exemplary cost as sought for in the
written statement.
Arguments of Sh. R. K. Jain, Ld. Counsel for the defendants no.4
and 10
210. Sh. R. K. Jain, ld. Counsel for the defendants no.4 and 10
has submitted that the defendants no.1-3 have stated in their
written statement that the plaintiff and the defendants no.4 and 10
had strained relations with Late Sh. Ram Dass, who had
disinherited them, however nothing has been stated by them
regarding his relations with the defendants no. 6 - 10.
211. It is submitted that while the defendants no.1-3 have
admitted that Late Sh. Ram Dass was the owner of properties no.
313/40, B-4, Inderlok, Delhi and the First and Second Floor of
property no. 313/48, B-6, Inderlok Delhi, they have falsely
denied that he was not the owner of the other properties as stated
in the plaint. It is submitted that the Will dated 10.01.1995 is
surrounded by suspicious circumstances and the same has not
been proved by them. It is submitted that there is no explanation
as to why the defendant no.1/Madan Lal was excluded as well as
CS DJ no. 611272/16 Page 113/177
Surender Kumar vs. Madan Lal and Ors.
his minor son Sanjeev Kumar, who was residing with the
deceased till his death, as well as the other grandsons.
212. It is submitted that the defendants no.1-3 also claimed to
be the owners of property no. WZ-711, Rishi Nagar, Delhi as
well as the tenants of Shop no. 19-20, Har Lal Market, Sector 7,
Rohini Delhi, however have miserably failed to prove the same.
They have also claimed that Late Sh. Ram Dass had distributed
his movable assets and gold during his lifetime to his sons,
including the plaintiff and the remaining was stolen, however the
said theft has not been proved by them as well.
213. It is further submitted that the defendant no.3/Rajeev
Kumar filed his evidence by way of affidavit, however never
stepped into the witness box to prove the same and hence has not
supported the defence as stated by them. The defendant
no.2/D2W1 admittedly is not a witness to the Will dated
10.01.1995. It is submitted that in the entire written statement
filed by the defendants no.1-3 it has not been stated that Madan
Lal has signed and affixed his thumb impression on the said Will
or that D.P. Singh prepared the said Will and also signed on the
CS DJ no. 611272/16 Page 114/177
Surender Kumar vs. Madan Lal and Ors.
same as a witness. It has also not been stated that the Will has
been executed in the presence of Madan Lal or D.P. Singh with
his free consent or that the same was read over to him by the D.P.
Singh. It has also not been mentioned as to who has written the
date on the said Will.
214. It is further submitted that D2W1 has also admitted in his
cross-examination dated 06.03.2018 that "all the properties of
Late Ram Dass are still with us" hence, the properties as claimed
in the plaint still exist with the defendants no.1-3.
215. It is submitted that the defendants no.1-3 have failed to
discharge the onus of the issues no.1,2 and 4 placed on them. No
evidence has been led by them with respect to the issue no.5.
216. It is argued that the evidence of the defendant no.2/D2W1
is of no help to the defendants no.1-3 as he is also not a witness
to the Will of Late Sh. Ram Dass. Further, the evidence of D.P.
Singh/ D2W1 is doubtful, vague and beyond pleadings. There is
no mention in the Will that the same was read over to Late Sh.
Ram Dass and the contents were understood by him. Further, the
CS DJ no. 611272/16 Page 115/177
Surender Kumar vs. Madan Lal and Ors.
mere existence of the stamp and signature of D2W2 on the said
Will does not amount to it's attestation as per law. It is also not
mentioned in the Will that he had drafted the said Will. The date
on Will is also written by hand.
217. With respect to the issues framed, it is submitted that in
regards to the issue no.1, the onus was upon the defendants no. 1
- 3, who have failed to discharge the same. The defendants no.1-
3 have claimed in their written statement that the plaintiff and the
defendants no.4 and 5 had strained relations with Late Sh. Ram
Dass and he had got published a public notice dated 10.06.1963
in the newspaper Punjab Kesari. The defendant no.2/D2W1 in his
evidence by way of affidavit has mentioned the date of the public
notice as 09.06.1993 and the said newspaper was de-exhibited in
evidence as well and marked as D-2/A. The said newspaper has
not been proved in evidence, as no witness has been examined to
prove the same. The defendants no.1-3 have also not examined
Sh. S.P. Manocha advocate to prove the said notice. Further, the
defendant no.2/D2W1 has also admitted in his cross-examination
that his grandfather has not mentioned in his Will that he has
debarred the plaintiff and the defendants no.4 and 5 from his
CS DJ no. 611272/16 Page 116/177
Surender Kumar vs. Madan Lal and Ors.
Will. Hence, the defendants no.1-3 have failed to prove the issue
no.1.
218. With respect to the issue no.2, it is simply argued that the
said provision nowhere bars the suit of the plaintiff. With respect
to the issue no.3, it is submitted that the defendants no. 1 - 3
have admitted in their written statement that Late Sh. Ram Dass
left behind the property no. 313/40, B-4, Inderlok, Delhi and the
First and Second Floors of property no. 313/48, B-6, Inderlok,
Delhi. With respect to the property no. WZ-711, Rishi Nagar,
Shakur Basti, Delhi - 110034, it is claimed that the defendants
no.1 and 2 are the owners and the shop no. 19-20,, Har Lal
Market, Sector 7 , Rohini, Delhi is in the tenancy of the
defendant no.1. However, the defendants no.1-3 have failed to
prove the said facts. Further, the defendants no.1-3 have also not
been able to prove that the cash, gold and ornaments had been
distributed by Late Sh. Ram Dass within his lifetime. The
defendant no.2/D2W1 has stated during his cross-examination
dated 06.03.2018 that he was not aware if one Praveen Kumar
had executed a GPA in favour of Late Sh. Ram Dass in respect of
property no. WZ-711, Rishi Nagar, Delhi, however in his cross-
CS DJ no. 611272/16 Page 117/177
Surender Kumar vs. Madan Lal and Ors.
examination dated 31.08.2018, admitted the photographs of Late
Sh. Ram Dass on the GPA, Ex. D2W1/PX and SPA, Ex.
D2W1/PY. The defendant no.2/D2W1 also admitted during his
cross-examination dated 30.05.2017 that he had not seen any
document with respect to the property no. WZ-711, Rishi Nagar,
Delhi and could not produce any document to show that it
belonged to his father. The defendant no.2/D2W1 further stated
in his cross-examination dated 08.02.2018 that his father may be
knowing if there was a GPA and Will in respect of the property
no. WZ-711, Rishi Nagar, Delhi and admitted that his father was
residing in the said property and was in possession of the title
documents. It is further submitted that the defendants no.1-3 have
not placed any document to show that the factory was closed in
1990 and the existence of machinery is not disputed and there is
no evidence that the same has been disposed off by Late Sh. Ram
Dass. Further the defendant no.2/D2W1 has admitted in his
cross-examination dated 06.03.2018 that all the properties left by
Sh. Ram Dass were with them. Hence, The said issue no.3 is duly
proved in favour of the plaintiff.
219. With respect to issue no.4, it is submitted that it is settled
CS DJ no. 611272/16 Page 118/177
Surender Kumar vs. Madan Lal and Ors.
law that the propounder of the Will to prove the same and dispel
all the suspicious circumstances. The defendants no.1-3 have
failed to prove the said issue. The Will has been written in
English language, whereas Late Sh. Ram Dass has put his
signatures on the same in Urdu language and it is an admitted
fact that he knew neither Hindi nor English. In the said Will, it is
recorded that there is nobody to look after Late Sh. Ram Dass
except the defendants no.2 and 3, who are residing with him at
house bearing no. 313/40, Inderlok, Delhi. However, the
defendant no.2/D2W1 has stated in his cross-examination that in
the year 1995, he along with his father and other family members
were residing at property no. WZ-711, Rishi Nagar, Delhi and
lived there till the year 1997.Further, during his cross-
examination dated 30.05.2017, he admitted that he and his
parents resided in property no. WZ-711, Rishi Nagar, Delhi till
2004 and that after 1998, he shifted to the property no. 313/40,
Inder Lok Delhi. During his cross-examination dated 07.05.2018,
he again stated that from 1994 to 1997, he resided in WZ-711,
Rishi Nagar, Delhi along with his parents. From the above, there
exist doubts on the genuineness of the Will. Hence, the issue no.4
is not proved by the defendants.
CS DJ no. 611272/16 Page 119/177
Surender Kumar vs. Madan Lal and Ors.
220. With respect to issue no.5, it is submitted that no evidence
has been led by any of the parties and no arguments have been
addressed and hence the said issue is liable to be decided in
favour of the plaintiff.
Arguments of Sh. Yashbir Thakur, Ld. Counsel for defendants no.
6 - 9.
221. Sh. Yashbir Thakur, Ld. Counsel for defendants no. 6 - 9
has argued on similar lines as that of the plaintiff, and the
defendants no. 4 and 10.
ISSUE-WISE FINDINGS
Issue no.1
222. I shall first decide issue no.1, which is reproduced below
for the sake of convenience:
1. Whether the plaintiff and defendant no. 4 and 5 were
disinherited by the deceased late Sh. Ram Dass from his
estate? If so, what is its effect? OPD-1
223. The onus of the said issue was on the defendants no.1-3,
who have claimed in para no.2 their joint written statement that
Late Sh. Ram Dass had disinherited the plaintiff and the
CS DJ no. 611272/16 Page 120/177
Surender Kumar vs. Madan Lal and Ors.
defendants no.4 and 5 from his estate/assets vide a public notice
published on 10.06.1993 in the newspaper 'Punjab Kesari', Delhi
edition. Although, the plaintiff did not file any replication to the
written statement of the defendants no.1-3 denying the said fact,
nevertheless the onus to prove that Late Sh. Ram Dass had got
published the said public notice is on the defendants no.1-3.
224. During the cross-examination of the plaintiff/PW-1 dated
18.09.2008 by the ld. Counsel for the defendants no.1 - 3, he
stated that he was not aware if his father had disinherited him and
the defendants no.4 and 5 from all his properties vide a public
notice published on 10.06.1993 in the newspaper, Punjab Kesari,
Delhi edition. Thereafter, during the plaintiff/PW-1's cross-
examination dated 21.05.2012, the date of the said notice was
changed to 09.06.1993 and he stated that as he does not know
english language, he could neither admit or deny the public
notice dated 09.06.1993, which was got issued by Late Sh. Ram
Dass through his advocate Sh. S.P. Manocha. A photocopy of the
Public Notice was also put to him as Mark A, the contents of
which are reproduced below:
***
Public Notice
CS DJ no. 611272/16 Page 121/177
Surender Kumar vs. Madan Lal and Ors.
Under instructions from and on behalf of my client Shri Ram
Dass S/o Shri Jassu Ram R/o 313/40, Inderlok, Delhi, I
hereby notify to the general public and to all those concerned
that my aforesaid client has divested his sons namely S/ Shri
Yogender Kumar, Rajinder Kumar and Surender Kumar to
inherit him in all his his properties and business. My client
has also severed all his connections with all the above three
persons in his business activities. Henceforth, they are thus
not entitled to deal with anyone on behalf of my client in
anyway.
Any individual or a firm/ company dealing with any of the
above persons shall do so on his/ their individual behalf for
which my client shall have no responsibilities/ liabilities
– Sign./-
(S. P. Minocha), Advocate
***
225. Thereafter, during the plaintiff/PW-1’s further cross-
examination dated 27.02.2013 conducted by the ld. Counsel for
the defendants no.1-3, the date of the said public notice was
changed to 12.10.1997 and the plaintiff/PW-1 stated that he was
not aware that his father had disinherited him from all properties
vide a public notice dated 12.10.1997 in Punjab Kesari. (” I was
not aware that my father disinherited me from all his properties
vide a public notice dated 12.10.97 in Punjab Kesari”)
226. In the evidence by way of affidavit, Ex. D-2/1 filed by the
defendant no.2/D2W1, he stated in para no.3 that Late Sh. Ram
Dass had issued a public notice in the newspaper Punjab Kesari,
through his counsel Sh. S.P. Minocha, which was published on
CS DJ no. 611272/16 Page 122/177
Surender Kumar vs. Madan Lal and Ors.
09.06.1993. The defendant no.2/D2W1 relied on a photocopy of
the public notice as Mark D-2/A.
227. The defendants no.1 – 3 never produced the original
newspaper or made any efforts to summon a copy from the
newspaper as well and hence, the said public notice has not been
proved. Further, the defendants no.1 – 3 also did not examine Sh.
S. P. Minocha as a witness to prove that he had issued the said
public notice on behalf of Late Sh. Ram Dass. Also, as already
mentioned, the defendants no.1-3 have themselves given
different dates as to when the said public notice was got
published, i.e. 10.06.1993, 06.06.1993 and 12.10.1997.
Accordingly, I find that the defendants no.1-3 have failed to
prove that the plaintiff and defendant no.4 and 5 were
disinherited by the deceased late Sh. Ram Dass from his estate
vide a public notice dated 10.06.1993. Hence, the issue no.1 is
decided against the defendants no. 1 – 3.
Issue no.3
228. I shall next decide issue no.3, which is reproduced below
for the sake of convenience:
CS DJ no. 611272/16 Page 123/177
3. Whether the deceased late Sh. Ram Dass was owner of
the properties as mentioned in para no.3 and 4 of the
plaint? OPP
229. The onus of the above issue is on the plaintiff, who has
claimed in paras no.3 and 4 of the amended plaint that Late Sh.
Ram Dass was having ‘right’ in the following movable and
immovable properties:
i) WZ-711, Rishi Nagar, Shakur Basti, Delhi – 34.
ii) 313/40, B-4, Inderlok Tri Nagar, Delhi – 35.
iii) Portion of first floor and second floor of property no.
313/48, Plot No. B-6, Inderlok, Tri Nagar, Delhi – 35.
iv) Shop no. 19, 20 Har Lal Market, Sector No. 7, Rohini,
Delhi – 110085.
v) Horizontal Machine (PVT and 40 dies), Mixture and
Grinder Machines, raw material and finished goods worth
Rs. 10 Lakhs, jewellery, furniture, utensils, electronic
items, including color TV, fridge, V.C.R., V.C.P., table
fans, coolers, ceiling fans, godrej almirahs, exhaust fans
lying at premises no. 313/40, B-4, Inderlok Tri Nagar,
Delhi – 35.
vi) It is stated that Late Sh. Ram Dass was also having
CS DJ no. 611272/16 Page 124/177
Surender Kumar vs. Madan Lal and Ors.
fixed deposits in the bank and shares in Unit Trust of India,
and the said deposit receipts and documents are lying in
the possession of the defendant no.1 and the exact amount
of the said deposits is also within the knowledge of the
defendants no.1 – 3.
230. The defendants no.1-3 in their joint written statement have
admitted that Late Sh. Ram Dass was the owner of only two
properties, i.e. property no. 313/40, B-4, Inderlok, New Delhi
and the first floor and second floor of property no. 313/48, Plot
No. B-6, Inderlok, Tri Nagar, Delhi – 35. They have categorically
denied that Late Sh. Ram Dass was the owner of any other
movable or immovable properties as alleged by the Plaintiff. The
defendants no.1-3 also averred that the defendants no.1 and 2
were the owners of property no. WZ-711, Rishi Nagar, Shakur
Basti, Delhi – 34 being their self acquired property. The
defendants no.1 – 3 also submitted that the defendant no.1 is a
tenant in respect of Shop no. 19 – 20, Har Lal Market, Sector
no.7, Rohini, Delhi – 110085. The defendants no. 1 – 3 also
denied that any raw material, finished goods, jewellery, movable
items, fixed deposit or shares were left behind by Late Sh. Ram
CS DJ no. 611272/16 Page 125/177
Surender Kumar vs. Madan Lal and Ors.
Dass. It was also submitted that the plaintiff had not provided any
material particulars with respect to any of the above in the plaint.
The defendants no.1-3 also alleged that Shop no. 206B, Kishan
Ganj Market, Delhi from where the plaintiff is conducting his
business was ‘possessed’ by Late Sh. Ram Dass, who gave the
same to the plaintiff and that during his lifetime, he also
distributed his movable assets and gold to his sons including
plaintiff. Further, the remaining cash and gold ornaments of Late
Sh. Ram Dass were stolen from him on 23.09.1993 by the
plaintiff and the defendants no.4 and 5 from his residence.
231. The defendant no. 4 has admitted in his written statement
that Late Sh. Ram Dass had a ‘right’ in the movable and
immovable properties as mentioned in para no.3 of the plaint,
however denied for want of knowledge that Late Sh. Ram Dass
was also having fixed deposits in a bank and shares in Unit Trust
of India, however, in the same breath did not dispute that he used
to “keep his amount in fixed deposit in banks and also in other
accounts” and stated that “all the documents are now in
possession of the defendant no.1.”.
CS DJ no. 611272/16 Page 126/177
Surender Kumar vs. Madan Lal and Ors.
232. The defendants no. 6 – 9 stated in their written statement
that property bearing shop no. 206B, Kishan Ganj Market, Delhi
was a ‘joint hindu family property’ having been ‘purchased and
established out of joint hindu family income’ and was earlier in
her husband Late Sh. Chander Kumar’s possession and after his
death in the year 1991, the same is in the possession of the
plaintiff, who was deriving income and profits from the same and
sought for it’s inclusion in the assets left behind by Late Sh. Ram
Dass. They also described the assets stated in the plaint as ‘joint
hindu family property’. The defendants no.6-9 did not provide
any further material particulars with respect to the alleged joint
hindu family or it’s income in the entire written statement.
233. The defendant no. 10 has admitted the properties left
behind by Late Sh. Ram Dass as stated by the plaintiff and
denied for want of knowledge the fixed deposits and shares in
Unit Trust of India.
234. The plaintiff filed his replication only to the written
statement of the defendants no. 6- 9, in which he denied that
Shop no. 206B, Kishan Ganj Market, Delhi was ever in
CS DJ no. 611272/16 Page 127/177
Surender Kumar vs. Madan Lal and Ors.
possession of his brother Late Sh. Chander Kumar or that it was
joint family property.
235. It would be useful at this stage to discuss the evidence led
with respect to each property by the parties and enquire whether
the ownership of Late Sh. Ram Dass has been proved qua the
same or not.
Property no. WZ-711, Shakur Basti, Rishi Nagar, Delhi – 34:
236. With respect to property no. WZ-711, Shakur Basti, Rishi
Nagar, Delhi – 34, the plaintiff/PW-1 stated during his cross-
examination dated 18.09.2008 by the ld. Counsel for the
defendants no.1-3 that the said property was purchased by his
father from one Praveen Kumar Sharma, however could not even
recollect the date, month or year of it’s purchase.
237. The evidence of the defendants no.4 and 10 has also not
contributed anything in favour of the plaintiff as they have also
not produced any documentary evidence to prove that the said
property belonged to Late Sh. Ram Dass. The admission made by
the defendant no.4/D4W1 during his cross-examination by the ld.
CS DJ no. 611272/16 Page 128/177
Surender Kumar vs. Madan Lal and Ors.
Counsel for the plaintiff dated 29.10.2014 that this property
belonged to Late Sh. Ram Dass are not credible in the absence of
any documents of ownership having been produced by him or the
plaintiff. Further, defendant no.4/D4W1 claimed that sale deeds
had been executed in favour of Late Sh. Ram Dass, whereas no
such sale deed was ever produced. The defendant no.10 claimed
during his cross-examination dated 23.04.2014 that he had placed
on record the documents of title, whereas no such documents had
been placed on record by him and thereafter vaguely stated that
his father might have filed the said documents.
238. During the cross-examination of the defendant no.2/D2W1
dated 30.05.2017, the defendant no.4 confronted him with
photocopies of a General Power of Attorney dated 01.08.1996
executed by Praveen Sharma in favour of Ram Dass, Mark A;
photocopy of a Special Power of Attorney dated 01.08.1996
executed by Praveen Sharma in favour of Ram Dass and a Will
dated 01.08.1996 executed by Praveen Sharma in favour of the
defendants no.1 and 2 all executed with respect to the property in
question.
CS DJ no. 611272/16 Page 129/177
Surender Kumar vs. Madan Lal and Ors.
239. Later during the cross-examination of the defendant
no.2/D2W1 dated 31.08.2018, the defendant no.4 also summoned
the certified copy from the office of the Sub-Registrar-VIA,
Pitampura Delhi and confronted the witness with the certified
copy of the said GPA dated 01.08.1996 as Ex. D2W1/PX (OSR)
and the certified copy of the SPA dated 01.08.1996 as Ex.
D2W1/PY (OSR).
240. As per section 65 (e) of the Indian Evidence Act, where a
document is a public document within the meaning of section 74
of the Act, secondary evidence of such document may be given.
Further, as per section 74 (2) of the Act, public records kept in
any state of private documents are considered to be ‘public
documents’. As per section 77 of the Act, certified copies of such
documents may be produced in proof of the contents of the said
document. As per section 57(5) of the Registration Act all copies
given under this section shall be signed and sealed by the
registering officer, and shall be admissible for the purpose of
proving the contents of the original documents. The Hon’ble
Apex Court has also held in Appaiya vs. Andimuthu alias
Thangapandi and Ors., (2024) 19 SCC 602, that a registered sale
CS DJ no. 611272/16 Page 130/177
Surender Kumar vs. Madan Lal and Ors.
deed can be proved by way of it’s certified copy and that a
certified copy of a public document under section 65 (e) of the
Indian Evidence Act, was admissible to prove the existence,
condition and contents of the original document. Hence, the
General Power of Attorney dated 01.08.1996, Ex. D1W1/ PX
(OSR) and Special Power of Attorney dated 01.08.1996, Ex.
D1W1/ PY (OSR) are held to be admissible in evidence.
241. A bare perusal of the contents of the said documents reveal
that document Ex. P1W1/PX is only a general power of attorney
dated 01.08.1996 executed by one Parveen Sharma in favour of
Sh. Ram Dass with respect to the property in question. The
document does not record whether Parveen Sharma is the owner
of the said property and there is no transfer of any ownership
right in the property by him to Sh. Ram Dass. Similarly, the
document Ex. P1W1/PX is a special power of attorney dated
01.08.1996 authorizing Sh. Ram Dass to sell the property in
question to any person on behalf of the said Parveen Sharma. It is
settled law that no ownership title can be said to have passed in
any property on the basis of a general or special power of
attorney in the absence of a registered sale deed. (Suraj Lamp and
CS DJ no. 611272/16 Page 131/177
Surender Kumar vs. Madan Lal and Ors.
Industrues vs State of Haryana, 2012 1 SCC 656. Hence, it is not
proved that Late Sh. Ram Dass was the owner of WZ-711, Rishi
Nagar, Shakur Basti, Delhi -34.
242. I may also point out at this stage that although the
defendant no.4 did not prove the document Mark C, i.e.
photocopy of Will dated 01.08.1996 executed by Parveen
Sharma, the said document also does not support the defendant
no.4 and the plaintiff. A perusal of Mark C reveals that it is a Will
dated 01.08.1996 executed by Parveen Sharma bequeathing the
property to in favour of the defendants no.1 and 2. The said Will
also declared that till such time the testator is alive, he shall
remain the absolute owner of the property and only after his
death, the defendants no.1 and 2 would become its owner. Hence,
the defendant no.4’s own document is also against his own case.
243. Accordingly, I find that the plaintiff and the defendants
no.4 – 10 have failed to prove that the property no. WZ-711,
Rishi Nagar, Shakur Basti, Delhi – 34 was owned by Late Sh.
Ram Dass and liable to be partitioned in the present suit.
CS DJ no. 611272/16 Page 132/177
Surender Kumar vs. Madan Lal and Ors.
244. On the other hand, the defendant no. 1 – 3 also did not
produce any documents to prove that the defendants no. 1 – 3
were the owners of the said property either along with their
written statement or during the evidence of the defendant
no.2/D2W1. The defendant no.2/D2W1 also admitted during his
cross-examination dated 30.05.2017 that he was not aware if any
sale deed with respect to the said property was executed in favour
of his father/defendant no.1. He stated that they were residing in
the said house as owners of the property and that his father might
be having it’s papers. Despite claiming to be the joint owner
along with his father, he could not even tell from whom the
property had been purchased. He also admitted that he had no
documents in his possession to show it’s ownership.
245. Hence, the plaintiff has filed to prove that the property in
question, i.e. , WZ-711, Shakur Basti, Delhi 34 belonged to Late
Sh. Ram Dass. On the other hand, the defendants no. 1- 3 have
also failed to prove that the said property belonged to the
defendants no.1 and 2. As per sections 101 and 102 of the Indian
Evidence Act, 1872, it would be the plaintiff who has failed to
prove the said question in his favour.
CS DJ no. 611272/16 Page 133/177
Surender Kumar vs. Madan Lal and Ors.
Property no. 313/40, B-4, Inderlok, Tri Nagar, Delhi – 35 and
First Floor and Second Floor of Property no. 313/48, B-6,
Inderlok Tri Nagar, Delhi – 35.
246. The plaintiff has claimed that Late Sh. Ram Dass had a
‘right’ in two immovable properties in his plaint. The defendants
no. 1 – 3, in their written statement and the evidence of the
defendant no.2/D2W1 have admitted the said properties to be
belonging to Late Sh. Ram Dass. The defendants no.4 and 10
have also admitted the same in their written statement and their
evidence. The defendants no. 6 – 9 have admitted the plaintiff’s
claim in their written statement and further have asserted the said
properties to be ‘joint hindu family properties, in support of
which no evidence has been led by them and none has also
entered the witness box to prove the same.
247. As per section 58 of the Indian Evidence Act, 1857 facts
which are admitted, need to be proved. In view of the categorical
admissions by the defendants no.1 – 5 and 10, the property no.
313/40, B-4, Inderlok, Tri Nagar, Delhi – 35 and First Floor and
Second Floor of Property no. 313/48, B-6, Inderlok Tri Nagar,
Delhi – 35 are held to have belonged to Late Sh. Ram Dass.
CS DJ no. 611272/16 Page 134/177
Surender Kumar vs. Madan Lal and Ors.
Shops no. 19 – 20, Har Lal Market, Sector 7, Rohini, Delhi – 85
248. The plaintiff has claimed that Late Sh. Ram Dass had a
‘right’ in this property in his plaint. The defendants no. 1 – 3 have
claimed that the defendant no.1 is a tenant in this property in
their written statement. The defendants no. 4 and 10 have
admitted the plaintiff’s version, whereas the defendants no. 6 – 9
have reiterated their claim of it being a joint family property.
249. The plaintiff has not led any documentary evidence to
prove that Late Sh. Ram Dass was the owner of the same and
admitted during his cross-examination dated 27.02.2013 that he
had no documentary proof that the property belonged to Late Sh.
Ram Dass. No document of title concerning the said property has
been on record by him. In his cross-examination dated
18.09.2008 by the ld. Counsel for the defendant’s no. 1 – 3, he
stated for the first time that the said property was taken on ‘ pagri’
by Late Sh. Ram Dass, without providing any further details of
the same. During his cross-examination dated 21.05.2012, he
changed his version to state that he mentioned in his plaint that
the said shops were owned by Sh. Har Lal.
CS DJ no. 611272/16 Page 135/177
Surender Kumar vs. Madan Lal and Ors.
250. The defendant no.2/D2W1 did not even mention in his
evidence by way of affidavit, Ex. D-2/1 that the defendant no.1
was a tenant in the said shop. In his cross-examination dated
30.05.2017, he stated that the Late Sh. Ram Dass was a tenant in
the said property and had surrendered his tenancy and denied the
suggestion that it was never surrendered. He admitted that a
restaurant under the name of ‘Aalishan Hotel’ was run in these
shops.
251. Hence, the plaintiff has failed to prove that the shops no.
19 – 20, Har Lal Market, Sector – 7, Rohini, Delhi – 85 belonged
to Late Sh. Ram Dass and liable to be partitioned in the present
suit and the defendants no.1 – 3 have also failed to prove that the
said property was the self-acquired Late Sh. Ram Dass. As per
sections 101 and 102 of the Indian Evidence Act, 1872, it would
be the plaintiff who has failed to prove the said question in his
favour.
Movable properties of Late Sh. Ram Dass
252. The plaintiff has alleged in the plaint that Late Sh. Ram
CS DJ no. 611272/16 Page 136/177
Surender Kumar vs. Madan Lal and Ors.
Dass also left behind Horizental Machine (PVT and 40 dies) and
finished goods worth 10 Lakhs, jewellery, furniture, utensils,
electronic items including: colour tv, fridge, VCR, VCP, table
fans, coolers, ceiling fans, Godrej almirahs, exhaust fans which
are lying at property no. 313/40, B-4, Inderlok, Tri Nagar, Delhi.
The plaintiff has also alleged that Late Sh. Ram Dass left behind
fixed deposits in a bank and shares in Unit Trust of India.
253. The defendants no. 1 – 3 in their written statement have
denied that the movable properties as stated in the plaint were left
behind by Late Sh. Ram Dass and further stated that Late Sh.
Ram Dass had distributed all his movable assets and gold to his
sons including the plaintiff and some remaining cash and gold
ornaments lying with Late Sh. Ram Dass were stolen by the
plaintiff and the defendants no. 4 and 5 on 23.09.1993 from his
residence.
254. The plaintiff has not led any documentary evidence to
prove that Late Sh. Ram Dass was the owner of the
aforementioned movable properties. Further, the plaintiff did not
even provide any material particulars in the plaint or his evidence
CS DJ no. 611272/16 Page 137/177
Surender Kumar vs. Madan Lal and Ors.
by way of affidavit, Ex. PW-1/A with respect to the said movable
properties, fixed deposits or shares in the Unit Trust of India. The
plaintiff/PW-1 also admitted during his cross-examination dated
21.05.2012 that he was not aware of any number of the fixed
deposit or the amount held by his father and only stated that it
was in State Bank of India, Inderlok. During his cross-
examination dated 27.02.2013, he also admitted that he did not
know the bank account number of his father or what were the
fixed deposit receipts or share certificates of his father or in
which bank or company they were held. The plaintiff made no
attempts to summon any records from the Unit Trust of India or
any bank to prove that Late Sh. Ram Dass left behind the
movable properties as claimed by him. The plaintiff also led no
documentary evidence to prove that any business was being
carried on by Late Sh. Ram Dass at the time of his murder.
255. The defendants no. 1 – 3 have also failed to lead any
documentary evidence to prove that Late Sh. Ram Dass had
distributed any movable assets or gold to his sons within his
lifetime or that the plaintiff and the defendants no.4 and 5 had
committed theft of his remaining cash and gold.
CS DJ no. 611272/16 Page 138/177
Surender Kumar vs. Madan Lal and Ors.
256. Accordingly, I find that the plaintiff has failed to prove that
Late Sh. Ram Dass left behind the movable properties, fixed
deposit receipts and shares as claimed by him.
Shop no. 206-B, Kishanganj Market, Delhi
257. The defendants no. 1 – 3 have claimed in their written
statement that this shop was given to the plaintiff by Late Sh.
Ram Dass, from where he was conducting his business. The
defendants no. 6 – 9 claimed this shop to be a ‘joint hindu family
property’, which was earlier in the possession of Late Sh.
Chander Kumar and after his death, taken over by the plaintiff.
258. As already mentioned, the plaintiff did not file any
replication to the written statement of the defendants no. 1 – 3
and stated in his replication to the written statement of the
defendants no. 6 – 9 that he was the owner of the said shop.
259. The defendants no. 1- 3 have not placed on record any
documentary proof to prove that the shop in question belonged to
Late Sh. Ram Dass. However, the plaintiff/PW-1 has admitted in
CS DJ no. 611272/16 Page 139/177
Surender Kumar vs. Madan Lal and Ors.
his cross-examination dated 18.09.2008 that the said shop was
owned by his father and mother and that he was in exclusive
possession of the same. However, changed his stance in his
cross-examination dated 21.05.2012 and stated that the said shop
belonged to his mother and denied that it belonged to his father.
The defendant no.2/D2W1 has stated in his evidence by way of
affidavit, Ex. D-2/1 that Late Sh. Ram Dass was the owner of
shop no. 206-B, Kishanganj Market, Delhi, however has not led
in evidence any document to prove that Late Sh. Ram Dass was
the owner of the said shop. He also admitted during his cross-
examination dated 06.03.2018 that he had no document to prove
the same as well.
260. Hence, I find that the defendants no. 1-3 and 6-9 have also
failed to prove that the shop no. 206-B, Kishanganj Market,
Delhi belonged to Late Sh. Ram Dass.
261. Hence, in view of the above, only the properties no.
313/40, B-4, Inderlok Trinagar, Delhi – 35 and the first and
second floor of property no. 313/48, B-6, Inderlok, Trinagar,
Delhi – 35 are held to be the only properties left behind by Late
CS DJ no. 611272/16 Page 140/177
Surender Kumar vs. Madan Lal and Ors.
Sh. Ram Dass. The issue no. 3 is partly decided in favour of the
plaintiff in terms of the above finding.
Issue no. 2
262. I shall next decide issue no.2, which is reproduced below
for the sake of convenience:
2. Whether the suit of the plaintiff as framed is hit by the
provisions of section 25 of the Hindu Succession Act?
OPD-1
263. It is not in dispute that Late Sh. Ram Dass and Sh. Sanjiv
Kumar were murdered by the defendant no.4 Yoginder Kumar on
the intervening night of 20.09.1997 and 21.09.1997 and that he
was caught red-handed at the spot as well, i.e. the house no.
313/40, B-4, Inderlok, Tri Nagar, Delhi. The defendant
no.2/D2W1 has also led into evidence the certified copy of the
judgment dated 07.05.2004 and sentencing order dated
27.05.2004, Ex. DW-2/1 whereby the defendant no.4 was
convicted under section 302 IPC for having committed the
murder of Sh. Ram Dass and Sanjiv Kumar @ Sunny and
sentenced to undergo life imprisonment along with fine of Rs.
5,000/-, and a further simple imprisonment for six months in
CS DJ no. 611272/16 Page 141/177
Surender Kumar vs. Madan Lal and Ors.
default of payment of the fine. The defendant no.4 also admitted
during his cross-examination dated 29.10.2014 that the appeal
against his conviction was also dismissed four years ago, and that
his conviction had not been set aside in any appeal. It is also not
in dispute that the plaintiff and the defendants no. 5 – 9 were
neither prosecuted nor convicted for having abetted the said
murder.
264. Section 25 of the Hindu Succession Act, 1956 prevents a
man from taking the advantage of his own wrongs by providing
for the disqualification of a murderer from inheriting the property
of the person murdered. This is based on the principles of justice,
equity and good conscience. The section provides as follows:
25. Murderer disqualified – A person who commits murder or abets
the commission of murder shall be disqualified from inheriting the
property of the person murdered, or any other property in
furtherance of the succession to which he or she committed or
abetted the commission of the murder.
265. Hence, in view of the above, as only the defendant no.4
was convicted under section 302 IPC for the murder of his father
Late Sh. Ram Dass, he along with his son, the defendant no. 10
or any other heir of the defendant no.4 stand completely excluded
CS DJ no. 611272/16 Page 142/177
Surender Kumar vs. Madan Lal and Ors.
from inheriting any of the properties of Late Sh. Ram Dass
[Vellikannu vs. R. Singaperumal, (2005) 6 SCC 622]. However,
it cannot be said that the entire suit stands defenestrated and the
plaintiff and the defendants no. 5 – 9 are also excluded from the
properties of Late Sh. Ram Dass. Accordingly, the issue no.2 is
partly decided in favour of the defendants no. 1 – 3 by holding
that only the defendants no.4 and 10 along with any other legal
heir of the defendant no. 4 stand excluded from the properties of
Late Sh. Ram Dass and the present suit is not barred.
Issues no. 4, 6, 7 and 8
266. I shall next decide issues no.4, 6, 7 and 8 together, being
connected issues, which are being reproduced below for the sake
of convenience:
4. Whether late Sh. Ram Dass bequeathed his right, title
and interest in property no. 313/40, Inder Lok, New Delhi
and the first and second floor of property no. 313/48, B-6,
Inderlok, New Delhi in favour of the defendant no.2 and 3,
who are his grandsons, if so, what is its effect? OPD 1 – 3
6. Whether the plaintiff is entitled to a decree of partition
as prayed in the suit? OPP
7.Whether the plaintiff is entitled for the decree of
rendition of account, as prayed in the plaint? OPPCS DJ no. 611272/16 Page 143/177
Surender Kumar vs. Madan Lal and Ors.
8. Whether the plaintiff is entitled for a decree of
permanent injunction, as prayed for in the prayer clause of
the plaint?
267. Section 63, Chapter III, of the Indian Succession Act, 1925
statutorily requires (a) the testator to sign or affix his mark to the
will, or the will to be signed by some other person in his
presence and by his direction; (b) further, the signature or mark
of the testator, or the signature of the person signing for him,
shall be so placed that it shall appear that it was intended
thereby to give effect to the writing as a will; and (c) that the
will shall be attested by two or more witnesses, each of whom
has seen the testator sign or affix his mark to the will or has
seen some other person sign the will, in the presence and by the
direction of the testator, or has received from the testator a
personal acknowledgment of his signature or mark, or of the
signature of such other person; and each of the
witnesses shall sign the will in the presence of the
testator, but it shall not be necessary that more than one witness
be present at the same time, and no particular form of
attestation shall be necessary.
CS DJ no. 611272/16 Page 144/177
Surender Kumar vs. Madan Lal and Ors.
268. Section 3 of the Transfer of Property Act, 1882 defines the
word ‘attested’ to mean attestation by two or more witnesses,
each of whom has seen the executant sign or affix his mark, or
has seen some other person sign in the presence and by the
direction of the executant or has received from the executant a
personal acknowledgment of his signature or mark, or of the
signature of such other person; and each of the
witnesses shall sign the will in the presence of the
executant, but it shall not be necessary that more than one
witness be present at the same time, and no particular form
of attestation shall be necessary.
269. Further, section 68 of the Indian Evidence Act mandates
that in case of a document required by law to be attested, such as
a Will, it shall not be used as evidence until one attesting witness
at least has been called for the purpose of proving its execution,
if there be an attesting witness alive, and subject to the process of
the Court and capable of giving evidence.
270. Hence, the first question which the defendants no. 1 – 3 are
required to prove in the affirmative is whether the registered Will
CS DJ no. 611272/16 Page 145/177
Surender Kumar vs. Madan Lal and Ors.
dated 10.01.1995, Ex. DW-2/3 of Late Sh. Ram Dass has been
validly executed as per the provisions of section 63 of the Indian
Succession Act.
271. At this stage it would be useful to reproduce the contents
of the registered Will dated 10.01.1995, Ex. DW-2/3. It pertinent
to point out that the will consists of three pages, which have been
typed on a type-writer. The words and figures which have been
hand-written in the said Will are mentioned in italics. On the first
page of the will at the top right hand corner, there is black and
white photograph of Sh. Ram Dass affixed, with the words Ram
Dass handwritten in ink below. On each page, on the lower left
hand side, there is the signature of Sh. Ram Dass in Urdu
language along with his thumb imprint purporting to be of Sh.
Ram Dass. At the end of the Will, the signatures of the defendant
no.1/ Sh. Madan Lal appear as a witness. The stamp and
signatures of Sh. D. P. Singh, Advocate with his address as ‘Old
Courtr. K. Gate Delhi’ appear at two places, adjacent to each
other, 3 – 4 cm below the signatures of the witness Sh. Madan
Lal. On the back side of the first page, the thumb impressions
and signatures of Late Sh. Ram Dass, the defendant no. 1 and Sh.
CS DJ no. 611272/16 Page 146/177
Surender Kumar vs. Madan Lal and Ors.
D.P Singh also appear.
Ex. DW-2/3
WILL
I, Ram Dass son of Sh. Jassu Ram aged about 63 Yrs.
Resident of 313/40, Inderlok Delhi, do hereby make this will and
testament. I have not made any other will in respect of the properties
mentioned hereunder at any time heretofore and declare this to be
my last will. It will take effect after my death.
I am sole owner of property bearing no. 313/40, situated at
Inderlok, Delhi. The said property is my self acquired property and
is exclusively in my possession. The said property is a four storied
building in addition to a basement constructed therein. On the
ground floor of the said property, I have constructed shops which are
in my exclusive possession. First floor of the said property is being
used by me for residential purposes and I am residing therein with
my grand-sons Parveen Kumar and Rajeev Kumar, both sons of Sh.
Madan Lal. Second floor and third floor of the said property are in
my possession and are lying vacant at present. I am using the
basement as a storage and is also in my exclusive possession.
My wife has since died and my sons including Shri Madan
Lal and the widow of my deceased son Shri Chander Kumar are
residing separately and there is no body to look after me except my
above grand-sons namely Parveen Kumar and Rajeev Kumar who
are now residing with me at my house bearing No. 313/40, situated
at Inderlok Delhi and are looking after me.
I hereby leave, give and bequeath the basement and shops
constructed on the ground floor of the property bearing No. 313/40,
situated at Inderlok Delhi to my grandson Parveen Kumar son of Sh.
Madan Lal and rest of the portion of the property bearing No.
313/40, situated at Inderlok Delhi which comprises of first floor,
second floor and third floor to my other grand son Rajeev Kumar
son of Sh. Madan Lal. After my death my grandsons Sh. Parveen
Kumar and Sh. Rajeev Kumar shall be the absolute owners of their
respective shares in my above property to the extent as mentioned
above and they shall be entitled to deal with their shares in the
property in any manner they like.
I am also owner of the property bearing No. 6-B situated at
Inderlok Delhi. The said property is also my self-acquired property.
The said property is a three storied building. I have already sold the
ground floor of the said property, which consists of shops to various
CS DJ no. 611272/16 Page 147/177
Surender Kumar vs. Madan Lal and Ors.
persons who are in exclusive possession of their respective portions.
First floor and second floor of the said property are in my exclusive
possession and use. I hereby leave, give and bequeath the entire
portion of the property belonging to me which is the first floor and
second floor of the property bearing No. 6-B, situated at Inderlok
Delhi to my grandson Parveen Kumar son of Sh. Madan Lal. My
grandson Parveen Kumar shall be the absolute owner of the property
as mentioned above after my death and he shall be entitled to deal
with the above property in any manner he likes.
In witness whereof I have hereunto set and subscribed my
hand and signature on this 10th day of Jan 1995 in the presence of
two witnesses who have also on my request subscribed their
respective signatures as attesting witnesses:-
WITNESSES.
1.
Executant
2.
***
272. The two witnesses to the will are stated to be Sh. Madan
Lal/defendant no.1, who expired during the pendency of the
present suit on 06.11.2009 before he could lead his evidence in
the present suit and Sh. D.P. Singh, Advocate who is also the
draftsman/scribe of the Will who has been examined as witness
no. D2W2.
273. It is settled law that a scribe can be also be a witness to a
Will, provided that he has signed the same with the requisite
intention of ‘animo attestandi’, i.e. with an intention to bear
witness to it’s execution and not merely as it’s scribe. [ Mathew
CS DJ no. 611272/16 Page 148/177
Surender Kumar vs. Madan Lal and Ors.
Oommen vs. Suseela Matthew, (2006) 1 SCC 519.]
274. The Hon’ble High Court of Delhi has also followed this
settled legal position in the decision of Ram Niwas Rana vs. Anil
Kumar, (2014) 144 DRJ 186 and held as follows:
“13. For deciding the present matter, it would be appropriate to
reproduce the relevant provisions i.e., Section 63 of the Indian
Succession Act, 1925 and Section 68 of the Indian Evidence Act,
1872 which reads as under:
“Section 63 of the Succession Act
63. Execution of unprivileged Wills.- Every testator, not being a
soldier employed in an expedition or engaged in actual warfare, or
an airman so employed or engaged, or a mariner at sea, shall execute
his Will according to the following rules : –
(a) The testator shall sing or shall affix his mark to the Will, or it
shall be signed by some other person in his presence and by his
direction.
(b) The signature or mark of the testator, or the signature of the
person signing for him, shall be so placed that it shall appear that it
was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of
whom has seen the testator sign or affix his mark to the Will or has
seen some other person sign the Will, in the presence and by the
direction of the testator, or has received from the testator a personal
acknowledgement of his signature or mark, or of the signature of
such other person; and each of the witnesses shall sign the will in the
presence of the testator, but it shall not be necessary that more than
one witness be present at the same time, and no particular form of
attestation shall be necessary.”
Section 68 of the Evidence Act
CS DJ no. 611272/16 Page 149/177
Surender Kumar vs. Madan Lal and Ors.
“68. Proof of execution of document required by law to be attested.-
If a document is required by law to be attested, it shall not be used as
evidence until one attesting witness at least has been called for the
purpose of proving it’s execution, if there be an attesting witness
alive, and subject to the process of the Court and capable of giving
evidence:
Provided xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx”
14. To say Will has been duly executed the requirement mentioned in
Clauses (a), (b) and (c) of Section 63 of the Succession Act are to be
complied with i.e., (a) the testator has to sign or affix his mark to the
will, or it has got to be signed by some other person in his presence
and by his direction; (b) that the signature or mark of the testator, or
the signature of the person signing at his direction, has to appear at a
place from which it could appear that by that mark or signature the
document is intended to have effect as a Will; (c) that the Will has to
be attested by two or more witnesses and each of these witnesses
must have seen the testator sign or affix his mark to the Will, or must
have seen some other person sign the Will in the presence and by the
direction of the testator, or must have received from the testator a
personal acknowledgement of signature or mark, or of the signature
of such other person, and each of the witnesses has to sign the will in
the presence of the testator.
15. It is thus clear that one of the requirements of due execution of
Will is its attestation by two or more witnesses which is mandatory.
Section 68 of the Evidence Act speaks of as to how a document
required by law to be attested can be proved. According to the said
Section, a document required by law to be attested shall not be used
as evidence until one attesting witness at least has been called for the
purpose of proving its execution, if there be an attesting witness
alive, and subject to the process of the Court and capable of giving
CS DJ no. 611272/16 Page 150/177
Surender Kumar vs. Madan Lal and Ors.
an evidence. It flows from this Section that if there be an attesting
witness alive capable of giving evidence and subject to the process
of the Court, has to be necessarily examined before the document
required by law to be attested can be used in an evidence. On a
combined reading of Section 63 of the Succession Act with Section
68 of the Evidence Act, it appears that a person propounding the will
has got to prove that the will was duly and validly executed. That
cannot be done by simply proving that the signature on the will was
that of the testator but must also prove that attestations were also
made properly as required by clause (c) of Section 63 of the
Succession Act. It is true that Section 68 of Evidence Act does not
say that both or all the attesting witnesses must be examined. But at
least one attesting witness has to be called for proving due execution
of the will as envisaged in Section 63. Although Section 63 of the
Succession Act requires that a will has to be attested at least by two
witnesses, Section 68 of the Evidence Act provides that a document,
which is required by law to be attested, shall not be used as evidence
until one attesting witness at least has been examined for the purpose
of proving its due execution if such witness is alive and capable of
giving evidence and subject to the process of the Court. In a way,
Section 68 gives a concession to those who want to prove and
establish a will in a Court of law by examining at least one attesting
witness even though will has to be attested at least by two witnesses
mandatorily under Section 63 of the Succession Act. But what is
significant and to be noted is that that one attesting witness
examined should be in a position to prove the execution of a will. To
put in other words, if one attesting witness can prove execution of
the will in terms of clause (c) of Section 63, viz., attestation by two
attesting witnesses in the manner contemplated therein, the
examination of other attesting witness can be dispensed with. The
one attesting witness examined, in his evidence has to satisfy the
attestation of a will by him and the other attesting witness in order to
CS DJ no. 611272/16 Page 151/177
Surender Kumar vs. Madan Lal and Ors.
prove there was due execution of the will. If the attesting witness
examined besides his attestation does not, in his evidence, satisfy the
requirements of attestation of the will by other witness also it falls
short of attestation of will at least by two witnesses for the simple
reason that the execution of the will does not merely mean the
signing of it by the testator but it means fulfilling and proof of all the
formalities required under Section 63 of the Succession Act. Where
one attesting witness examined to prove the will under Section 68 of
the Evidence Act fails to prove the due execution of the will then the
other available attesting witness has to be called to supplement his
evidence to make it complete in all respects. Where one attesting
witness is examined and he fails to prove the attestation of the will
by the other witness there will be deficiency in meeting the
mandatory requirements of Section 68 of the Evidence Act. The
above are the statutory requirements to prove a will. Reference is
made to the judgment in Janki Narayan Bhoir v. Narayan Namdeo
Kadam : MANU/SC/1155/2002 and Seth Beni Chand (since
deceased) now by L.Rs v. Smt. Kamla Kunwar : AIR 1977 SC 63.
16. In the present case, respondent no. 1 has produced Sh. M.N.
Sharma, Advocate in the evidence. The contention of petitioner is
that he is only a scribe and can’t be treated as an attesting witness.
17. It is settled law that scribe can be treated as an attesting witness
if it is shown that he had put down his signatures for the purpose of
attesting the document.
18. The Supreme Court in Mathew Oommen v. Suseela
Mathew; (2006) 1 SCC 519 has held that scribe of the Will is not
ineligible to be an attesting witness. It is held that what is required in
attestation is the intention to attest. If intention to attest is there on
the part of the scribe then he can also be an attesting witness to the
Will. The relevant portion of the judgment of Supreme Court is
reproduced as under : –
“8…………………………………………………
CS DJ no. 611272/16 Page 152/177
In support of this argument it was submitted that one of the alleged
attesting witnesses is only scribe of the will and is not an attesting
witness. Regarding this objection we may note that there is no
requirement in Taw that a scribe cannot be an attesting witness. The
person concerned has appeared in the witness box as PWl and has
clearly stated that he is a scribe of the Will as well as he is an
attesting witness of the Will. For attestation what is required is an
intention to attest which is clear from the statement of PW1. He
categorically stated that he has signed as an attestor and scribe. In
our view, the requirement of attestation of the Will by two witnesses
is fully met in the present case.”
19. In Sh. Baldev Raj v. Sh. Man Mohan; 92 (2001) DLT 274
decided by the Division Bench of this court wherein also the
question was whether the scribe could be treated as an attesting
witness of Will under Section 63 of the Indian Succession Act. It was
held that the scribe could be treated as an attesting witness but it
must be shown that scribe put down his signatures for the purpose of
attesting the document. The relevant portion of the judgment is as
under : –
“10……………………………………………….
It is not universal rule that a scribe cannot be treated as an
attesting witness. Even in the decision of Himachal Pradesh
High Court relied upon by learned counsel for the appellant it
has been held that scribe may be an attesting witness of the
Will, but it must be shown that the scribe put down his
signature for the purposes of attesting the document.”
20. The Supreme Court in Seth Beni Chand (Since Dead) Now by
L.Rs. v. Smt. Kamla Kunwar; AIR 1977 SC 63 has held that no
particular form of attestation is required and that an attesting witness
need not necessarily be labelled as an attesting witness. The relevant
portion of the judgment is as under : –
“8………………………………………………..
CS DJ no. 611272/16 Page 153/177
None of the three is described in the Will as an attesting
witness but such labelling is by no statute necessary and the
mere description of a signatory to a testamentary document
as an attesting witness cannot take the place of evidence
showing due execution of the document. By attestation is
meant the signing of a document to signify that the attestator
is a witness to the execution of the document, and by Section
63(c) of the Succession Act, an attesting witness is one who
signs the document in the presence of the executant after
seeing the execution of the document or after receiving a
personal acknowledgment from, the executants as regards the
execution of the document.”
21. The evidence of Sh. M.N. Sharma is examined in the light of
case law discussed above.
22. Sh. M.N. Sharma PW4 has deposed that he had seen Will
EX.PW4/1. On 05.04.1995, testatrix had come to him at 10.15 a.m.
and requested for getting the will Ex.PW 4/1 prepared. He got Will
EX.PW4/1 typed as per the instructions. The testatrix was
accompanied by Sh. Chet Ram, Sh. Jeet Ram and Sh. Anil Kumar.
Sh. Jeet Ram was earlier known to him being his client. The testatrix
had put her left thumb impression on EX.PW4/1 at point X. Sh. Chet
Ram signed at point Y. He signed at point Z. He had also deposed
that the testatrix had put her thumb impression in the presence of
aforesaid witnesses and the witnesses had also signed in her
presence. They all went to the office of Sub Registrar where the
testatrix as well as the aforesaid witnesses signed in the presence of
Sub Registrar. The Will Ex.PW 4/1 was also read over to her. His
material deposition as regards attesting the Will by Sh. Chet Ram as
well as by the witness himself has not been demolished in cross-
examination. He has also stated in the cross-examination that it is
true that he is an Advocate and is a scribe of the Will. He has also
deposed that he acted as a witness also. Learned counsel for the
CS DJ no. 611272/16 Page 154/177
Surender Kumar vs. Madan Lal and Ors.
appellant stated that this portion that he acted as a witness be not
taken into consideration as the same was said by him on being
suggested by learned counsel for petitioner. It may be noticed that
evidence has to be read as a whole and not in pieces. By reading the
evidence as a whole, it cannot be said that he did not sign as an
attesting witness to the will. Even on bare perusal of Will Ex.PW1/4,
it is seen that he had signed the Will at two places. The stamp
bearing his name is also there at two places on the Will Ex.PW 4/1.
He has signed below the heading “witnesses” on Ex.PW 4/1 after the
name of sh. Chet Ram. He has also signed on the right side of the
Will below the thumb mark of testatrix as a scribe. Reading his
evidence and examining the Will Ex.PW 4/1, it cannot be said that
he had no animus attestandi to attest the Will Ex.PW 4/1.
Further Sh. M.N. Sharma, Advocate has also verified the probate
petition as one of the witnesses to the Will Ex.PW 4/1. No objections
have been raised by the appellant that he was not one of the
witnesses to the Will, as such verification is not in accordance with
law.
The evidence of Shri M.N. Sharma, Advocate proves that the
testatrix had affixed the thumb mark in his presence as well as in the
presence of Chet Ram, the other attesting witness to the Will. By
reading his evidence, it also stands established that both the attesting
witnesses i.e., Sh. M.N. Sharma, Advocate and Chet Ram had signed
the Will Ex.PW 4/1 in the presence of testatrix. His evidence clearly
establishes that provisions of section 63(c) of the Indian Succession
Act and Section 68 of the Indian Evidence Act have been complied
with in the present case.”
275. In light of the above, I shall now proceed to determine
whether on the basis of the evidence led by Sh. D.P. Singh/D2W2
it stands proved that he has signed on the registered Will dated
CS DJ no. 611272/16 Page 155/177
Surender Kumar vs. Madan Lal and Ors.
10.01.1993, Ex. DW-2/3 as an attesting witness with the requisite
‘animo attestandi’.
276. At this stage it would be pertinent to point out that the said
witness D.P. Singh had filed two evidence by way of affidavits,
the first evidence by way of affidavit was attested on 29.11.2014
and filed before the Court on 19.12.2014. Thereafter, on
11.08.2016, an application under section 151 CPC was filed by
the defendant no.2 seeking permission of the Court to file an
amended additional affidavit of the witness D.P. Singh as the
earlier affidavit filed contained certain typographical errors. The
said application was allowed on 11.08.2016 and D.P. Singh was
permitted to file a fresh evidence by way of affidavit. Thereafter,
a subsequent evidence by way of affidavit of D.P. Singh, attested
on 08.08.2016, was filed before the Court on 11.08.2016 and it is
the subsequent affidavit that has been tendered in evidence as Ex.
D2W2/A.
277. In the earlier evidence by way of affidavit attested on
29.11.2014, he stated in para no.1 that he had seen the original
will dated 10.01.1995, which was brought to his seat at Old
CS DJ no. 611272/16 Page 156/177
Surender Kumar vs. Madan Lal and Ors.
Court, Kashmere Gate without mentioning the date, whereas in
the subsequent affidavit, it is stated “brought to me at my old
Court, Kashmere Gate on 29.11.2014.” Further, in the earlier
evidence by way of affidavit in para no.1 the details of
registration of the Will were stated as “The Will is registered as
document No. 1244 Addl. Book No.3, Volume No. 2243 at pages
168 to 170 on 10.01.1995 with the office of Sub Registrar North,
Kashmiri Gate, Delhi.” The same were correct in the subsequent
affidavit to “The Will is registered as document No. 1249 Addl.
Book No.3, Volume No. 2244 at pages 168 to 170 on 10.01.1995
with the office of Sub Registrar North, Kashmiri Gate, Delhi.
Further, in para no.2 of the earlier affidavit, it is stated ” That after
seeing the original Will I say….” Whereas in the subsequent
affidavit, the word ‘original’ has been deleted.
278. During the course of final arguments, much importance
has been attached by the ld. Counsels for the plaintiff and the
defendants no. 4 and 10 to the changes made in the two
affidavits. It is settled law that a party can be permitted to cure
slight defects and irregularities in their affidavits by filing the
same afresh [Malhotra Steel Syndicate vs. Punjab Chemi-Plants
CS DJ no. 611272/16 Page 157/177
Surender Kumar vs. Madan Lal and Ors.
Ltd, 1993 Supp (3) SCC 565; Associated Journals Ltd vs Mysore
Paper Mills Ltd., (2006) 6 SCC 197.]. Further, the defendant no.2
had moved an appropriate application in this regards under
section 151 CPC before the Court, which was allowed vide order
dated 11.08.2016. Neither the plaintiff nor any of the other
defendants raised any objection to the said application or
challenged the order dated 11.08.2016 permitting Sh. D.P. Singh
to file his fresh affidavit. Hence, it cannot be said the mere fact of
filing two affidavits by D.P. Singh is to be viewed with suspicion
as admittedly only small corrections were carried out, that too
after having sought permission from the Court.
279. Sh. D. P. Singh, Advocate D2W2 has deposed in his
evidence by way of affidavit, Ex. D2W2/A as follows:
“I D.P. Singh, Advocate, Old Courts, Kashmere Gate, Delhi-110006,
do hereby solemnly affirm and declare as under :-
1. That I had seen the original WILL dated 10.1.1995 of Sh. Ram
Dass s/o Sh. Jassu Ram, brought to me at my seat old court,
Kashmere Gate on 29.11.2014. The WILL was registered as
document No.1249 Addl. Book No.3, Volume No.2244 at pages 168
to 170 on 10.1.1995 with the office of Sub Registrar North, Kashmiri
Gate, Delhi.
2. That after seeing the WILL I say that this WILL was made by
Ram Dass son of Jassu Ram who was aged about 63 years on the
date of WILL and was resident of
CS DJ no. 611272/16 Page 158/177
Surender Kumar vs. Madan Lal and Ors.
313/40, Inderlok, Delhi, in my presence with his free will and
consent.
3. That this Will was drafted by me as per
instructions of deceased Ram Dass and was
made by him with his free will and consent. Deceased Ram Dass
was not suffering from any mental disability and was in his fit
disposing mind at the time of execution of this WILL. The WILL
was signed and thumb marked by the deceased in my presence at the
time of making of the same and also at the
time of presentation of the same before the office of Sub Registrar,
Sub Distt. 1, Delhi. The WILL was read over and explained by me to
the deceased who signed and thumb marked the same after
understanding its contents. I also appended my signatures on –
the WILL with my seal. The WILL was presented for registration
before the Sub Registrar who also made his queries from the
deceased about the contents of the WILL. The deceased also
disclosed the contents of the WILL to the Sub-Registrar. One Mr.
Madan Lal who was also present alongwith the deceased at the time
when the deceased made the Will also witnesses the same and
appended his signatures and thumb marks on the WILL in my
presence and also explained the contents of the WILL to the
deceased. I identify my signatures on the WILL at points X, X-1 &
X-2. The Will is purported to be Exhibited by Sh. Parveen Kumar as
Ex. DW2/3. I identify the signatures and thumb marks of the
deceased at points B, B-1, B-2, B-3, B-4, B-5, B-6, B-7, B-8, B-9,
B-10 and B-11 as the same were put in my presence. I also identify
the signatures of Madan Lal on the WILL Exhibit DW2/3 at points
A, A-1. I also identify photograph of deceased at point C affixed on
WILL Ex. DW2/3.”
(Emphasis supplied)
CS DJ no. 611272/16 Page 159/177
Surender Kumar vs. Madan Lal and Ors.
280. A perusal of the above reveals that Sh. D.P. Singh, D2W2
has clearly deposed in his evidence by way of affidavit,
Ex.D2W2/A that: (i) he had drafted the will in question on the
instructions of Sh. Ram Dass; (ii) that Sh. Ram Dass had signed
the will, Ex. DW-2/3 in his presence as well as the other witness
Sh. Madan Lal; and identified the signatures of Ram Dass on the
Will at points B, B-1, B-2, B-3, B-4, B-5, B-6, B-7, B-8, B-9,
B-10 and B-11 (iii) that he and Madan Lal also signed the Will in
the presence of Sh. Ram Dass and identified his own signatures
at points X, X-1 and X-2 and those of Madan Lal at points A and
A-1.
281. It now remains to be seen whether any material
inconsistencies were elicited from the witness D2W2 D.P. Singh
during his cross-examination. The said witness was first cross-
examined by the ld. Counsel for the defendant no.4 first on
22.10.2018, 27.05.2019, 30.01.2020 and 11.02.2020. Thereafter,
he was cross-examined by the ld. Counsel for the plaintiff on
29.03.2022 and discharged. It is also pertinent to point out that
the witness had drafted and attested the said Will on 10.01.1995
and was being cross-examined after more than 23 years of it’s
CS DJ no. 611272/16 Page 160/177
Surender Kumar vs. Madan Lal and Ors.
execution and remained under cross-examination for more than 3
years by the ld. Counsels for the defendant no.4 and the plaintiff.
282. During the cross-examination of Sh. D. P. Singh, D2W2
dated 22.10.2018 by the ld. Counsel for the defendant no.4, he
stated that ” I have been sitting at Kashmere Gate since 1992. I
have appeared as a witness till date in 10-12 cases. I cannot
recollect the particulars of those cases in which I have appeared
as a witness. I do not know how many Wills I have drafted as an
advocate and as to how many Wills I have attested as a witness. I
do not maintain records of the Will which I draft or sign as a
witness. I receive fees from the clients but I do not maintain
record. Earlier I used to file my ITRs but now a days I do not file
any ITRs. I do not remember when I stopped filing ITRs. I did
not know Ram Dass prior to drafting of this Will” … “My seat
number in Kashmere Gate is 88. I do not sit anywhere else. I
identify the Will or document prepared by me on the basis of my
stamp and signature”. The witness has clearly deposed that he
was working as a draftsman outside the Sub Registrar Office at
Kashmere Gate since the year 1992, i.e. three years prior to the
drafting of the will in question and was regularly doing the work
CS DJ no. 611272/16 Page 161/177
Surender Kumar vs. Madan Lal and Ors.
of drafting of wills. His statement that he did not know Ram Dass
prior to the drafting of the Will is also consistent with the case set
up by the defendants no. 1 – 3 that he had attested the Will as a
draftsman and also signed as an attesting witness.
283. He further stated during his cross-examination dated
22.10.2018 that “Praveen Kumar came to me on 29.11.2014. He
had not come to me prior to 29.11.2014. Again said, Praveen
Kumar again came to me on 05.07.2016. He had brought the
certified copy of the Will. I looked into the original Will on
29.11.2014, whereas I saw the certified copy of the Will on
05.07.2016. Praveen Kumar came alone to me on 05.07.2016. I
have not got recorded in my affidavit that Praveen Kumar came
to me on 05.07.2016” The said inconsistency in the statement of
D.P. Singh D2W2 is only a minor inconsistency, which can be
attributed to the natural fading away of human memory and it’s
imperfect recollection of events. Further, merely because the
witness did not stated that Praveen Kumar had come to him on
05.07.2016 as well with the certified copy of the Will is not a
material omission on his part.
CS DJ no. 611272/16 Page 162/177
Surender Kumar vs. Madan Lal and Ors.
284. He further deposed his cross-examination dated
22.10.2018 that no enquiry was made by him from Ram Dass
regarding issuance of notice against his children debarring them
or to the public at large. The said statement of the witness also
does not point to any material inconsistency as it cannot be
expected for a draftsman to know whether any person had issued
any public notice or not. He further deposed that He had inquired
from the testator with respect to the names of his children, to
which he told him that only the names of the persons in whose
favour he was bequeathing the property were to be mentioned.
285. The witness specifically deposed that “Madan lal was
present” and stated that he did not remember if Madan lal
disclosed his relationship with his beneficiaries. The said
statement of the witness D.P. Singh is also not out of the ordinary
as he was a mere draftsman of the said Will and was not known
to either Ram Dass or Madan Lal and there was no requirement
on their part to have disclosed that Madan Lal was the father of
the beneficiaries under the said Will.
286. During his cross-examination dated 27.05.2019 by the ld.
CS DJ no. 611272/16 Page 163/177
Surender Kumar vs. Madan Lal and Ors.
Counsel for the defendant no.4, D.P. Singh stated ” The affidavits
I had filed before this Court was prepared by me. I have got two
affidavits prepared in this case. I normally see the documents
before preparation of affidavits. I had not seen the original Will
when I got my first affidavit prepared. Again said, I have seen the
original Will on 29.11.2014 and I also saw the certified copy on
05.07.2016. When I prepared my affidavit in this case on
29.11.2014, I have mentioned the facts in the affidavit after going
through the Will. (Volunteered – since there was some
typographical error in my affidavit I prepared another affidavit
Ex. D2W2/A. At the time when I prepared the second affidavit, I
have only seen the certified copy of the Will.” The said statement
of the witness clearly gives the reasons for having filed two
affidavits in the present case and does not materially affect his
testimony in any manner.
287. The witness D.P. Singh further deposed that ” The attestor
was knowing Urdu language” and admitted that “It is correct that
I have not mentioned in the Will that the Will was drafted by me.
(Volunteered – however, it was bearing my stamp. I have also
mentioned in the said will that I had prepared the said Will at the
CS DJ no. 611272/16 Page 164/177
Surender Kumar vs. Madan Lal and Ors.
instance of Ram Dass. I do not remember whether I had
mentioned in the Will whether deceased Ram Dass was suffering
from any mental disability or not”. Admittedly, the fact that the
Will has been drafted by D.P. Singh does not find mention in the
said Will, and the Will only bears his stamp and signatures at two
adjacent places on the last page. However, the same can be
attributed to inconsistencies associated with the witness deposing
after a substantial period of time, i.e. 23 years, after the execution
of the said will. Hence, the said inconsistency is also not a
material inconsistency in his evidence.
288. During his cross-examination dated 30.01.2020, the
witness D.P. Singh deposed that he did not know whether Sh.
Ram Dass could read or write Hindi or English and specifically
volunteered that the Will was read over by him to Ram Dass. He
stated that “I do not generally affix two copies of my stamps on
documents”…. “Late Sh. Ram Dass approached me as an
advocate, for drafting of the Will.”….. “I do not attest the Will as
witness, drafted by me”. The ld. Counsels for the plaintiff and the
defendants no. 4 and 10 have attached much importance to these
statements of the witness D.P. Singh to argue that he has not
CS DJ no. 611272/16 Page 165/177
Surender Kumar vs. Madan Lal and Ors.
attested the Will as a witness. However, in my considered
opinion, the witness has clearly deposed that in general cases, he
does not affix two copies of his stamps on documents, which
adds weight to the contention that in the present case, the fact
that D.P. Singh has affixed his stamp and signature twice on the
document by itself goes to show that he had signed the same as a
scribe as well as an attesting witness. Further, his statement that
he does not attest wills drafted by him as a witness, is his general
statement with respect to his wills drafted by him and does not
show that in the present case, he has not attested the Will as an
attesting witness. Hence, the said statements also do not damage
the testimony of D.P. Singh/D2W2 in any manner.
289. The witness has also clearly stated in his cross-
examination dated 30.01.2020 that Madan had also accompanied
Ram Dass at the time of execution of the Will on 10.01.1995.
290. During his cross-examination dated 11.02.2020 by the ld.
Counsel for the defendant no.4, he further stated that ” No blanks
were left in the said Will”, however, no specific question has
been put to him as to whether there were any blanks which were
CS DJ no. 611272/16 Page 166/177
Surender Kumar vs. Madan Lal and Ors.
filled in by handwriting in the said will. Hence, it cannot be said
the said statement of the witness is also a material inconsistency.
291. During his cross-examination dated 29.03.2022 by the ld.
Counsel for the plaintiff, the witness D.P. Singh has stated that he
has checked the property documents and Aadhar card of the
executant and witness who came along with him. It is argued that
in the present case, no Aadhar card were in existence at the time
of the execution of the Will in the year 1995. However, the said
inconsistency can also be attributed to the witness having been
cross-examined after a substantial period of 23 years and the
same is also not a material inconsistency.
292. During his cross-examination dated 29.03.2022, the
witness D.P. Singh further stated that Madan Lal did not tell him
of his relations with the beneficiary or the testator. The said fact
is also not an unbelievable statement as he was merely the scribe
who also acted as the attesting witness of the said Will and it was
not compulsory for either Madan Lal or Ram Dass to have
disclosed their relations to him.
CS DJ no. 611272/16 Page 167/177
Surender Kumar vs. Madan Lal and Ors.
293. Further, during his cross-examination dated 29.03.2022, he
was questioned “Do you mentioned in the document “drafted by
me” when you drafted the document? Answer: There are two
stamps appended on the documents, one mentions the words
“drafted by me” and the other is appended upon the document as
a witness”. Admittedly, in the present case, neither of the stamps
and signatures of D.P. Singh on the Will mentions the words
“drafted by me”, however the same is also only a minor
inconsistency in his evidence.
294. Hence, I find that the evidence of D2W2 Sh. D.P. Singh
Advocate when read as a whole clearly reveals that he has
deposed to the valid execution of the Will, Ex. DW-2/3 by Ram
Dass. He has also clearly deposed that the Will was signed and
thumb impressions were affixed in his presence and that of
Madan Lal. He has also clearly deposed that he and Madan Lal
had also signed on the Will in the presence of Ram Dass. He has
also deposed that he also appeared before the Sub-Registrar as an
attesting witness. He has also stated that the Will was signed by
Late Sh. Ram Dass after the same was read out to him and he had
understood its contents. He has also deposed that Late Sh. Ram
CS DJ no. 611272/16 Page 168/177
Surender Kumar vs. Madan Lal and Ors.
Dass had made the Will with his free will and consent in a fit and
disposing state of mind. Sh. D.P. Singh has identified the
signatures and thumb impressions of Ram Dass on the Will as
well as those of Sh. Madan Lal, attesting witness as well as his
own. Accordingly, I find that the defendants no.1 – 3 have
proved that the Will dated 10.01.1995 has been validly executed
by Late Sh. Ram Dass as per section 63 of the Indian Succession
Act. Further, I find that the defendants no. 1 – 3 have also proved
that the said Will dated 10.01.1995, Ex. DW-2/3 by examining
one of the attesting witnesses, D.P. Singh/D2W2 as per section
68 of the Indian Evidence Act.
295. The next question to be considered is whether there any
suspicious circumstances surrounding the Will and whether the
propounders of the Will have dispelled the same.
296. The plaintiff/PW-1 during his cross-examination dated
21.05.2012 by the ld. Counsels for the defendants no. 1- 3, at first
denied the signatures of Late Sh. Ram Dass on the document
Mark B, i.e. the original complaint dated 02.07.1993, filed by
Late Sh. Ram Dass with the S.H.O, P.S. Sarai Rohilla, along with
CS DJ no. 611272/16 Page 169/177
Surender Kumar vs. Madan Lal and Ors.
copy to Lt. Governor, Delhi; DCP, North West, Delhi and ACP,
North West, Delhi . However, later during his cross-examination
dated 27.02.2013, he admitted that “It is correct that Ex.
PW-1/D1 – D3 bears the signatures of my father at points A and
B.” Hence, the plaintiff/PW-1 admitted the signatures of Late Sh.
Ram Dass on the complaint dated 02.07.1993, filed by him with
the S.H.O, P.S. Sarai Rohilla, along with copy to Lt. Governor,
Delhi; DCP, North West, Delhi and ACP, North West, Delhi. He
also admitted that “my father had once lodged a police against
me, when we had a quarrel” At this stage, it would be useful to
reproduce it’s contents:
Ex.PW-1/D1-D3
The S.H.O
Police Station Sarai Rohilla,
DelhiSir,
This is to report to your goodself about
high handedness on part of my sons Surinder Kumar, Yoginder
Kumar and Rajinder Kumar who are bent upon causing physical
violance against me to grab my property and business.
I am having my residence at House No. 313/40, Inderlok Delhi in
which premises my factory for manufacture of Plastic Chapples is
also located. My wife has since died and I am living alone. My
above sons are having their seperate business and residence and have
nothing to do with any business or property.
It was revealed to me that Yoginder Kumar and Rajinder Kumar
would get the goods on credit from the market under my name and
CS DJ no. 611272/16 Page 170/177
Surender Kumar vs. Madan Lal and Ors.
would swindle away the amount. Whenever I asked them to refrain
from such acts, they would pick up quarrels and assault me and
threaten me with dire consequences. Being father, I tolerated their
abusive and threatening attitude. Ultimately I gave a public notice
which was published in Punjab Keshri on 10.6.1993 whereby I
divested them to inherit me in my property and business and also
that the people should not deal with them on my behalf. This further
provoked them to cause physical violence against me and also to
forcibly occupy my residential / factory premises.
On 24.6.93 the above Yoginder Kumar, his
wife Raj Rani and Rajinder Kumar came to my factory premises and
forcibly entered in the factory premises where repair was going on
and they started picking up quarre1 with me and 1abourers who were
doing the repair work. When I wanted to telephone the police, they
broke the telephone appratus. However some neighbourers collected
there and pacified the matter. Again on 25.6.93Yoginder Kumar, his
wife Raj Rani, Surinder Kumar, his wife Smt. Janak Bala and
Rajinder again came there and forcibly entered the Factory premises
and started abusing and threatening me that they would not spare me
and forced me to write and sign papers allocating my property to
them. They all assaulted me and the labourers who came to my
rescue. One of the labourers received bleeding injuries at their
hands. The police was informed who arrived there and took them to
police post Inderlok where a report was also recorded and the matter
was compromised, after they apologised and assured to behave
properly in future.The above persons, despite assurances, have
not stopped their illegal activities which cause a reasonable
apprehension of danger to my life and property. On 30-6-93 again
Surinder Kumar accompanied by 3 other persons came drunk and
started threatening me. On my raising alaram they all ran away from
there. On the same night some persons came to my house and
shouted at me to open my door. I however did not open the door and
after conveying the threats to me, they went away.
Under these circumstances, I am under constant danger of
being killed by them to grab my property. In view of their repeated
attempts to forcibly occupy my residential / factory premises, I also
strongly apprehend that the above persons may cause physical
violence against me resulting in breach of peace.
It is requested that necessary action may please be taken
against the above persons and their associates to protect my life and
property.
Thanking you,
CS DJ no. 611272/16 Page 171/177
Surender Kumar vs. Madan Lal and Ors.
Yours faithfully
(signed by Ram Dass in urdu)
DELHI.
Dated 2.7.93
Copy to:-
1. Hon’ble Lt. Governor of Delhi
Raj Niwas, DELHI.
2. Deputy Commissioner of Police,
North West Distt.
Ashok Vihar,
Delhi.
3. ACP,
North West, Distt.
Ashok Vihar, Delhi.
***
297. The said letter, Ex. PW-1/D1-D3 is dated 02.07.1993 and
has been written by Late Sh. Ram Dass just around a year and a
half prior to the Will dated 10.01.1995, Ex. DW-2/3 and four
years prior to his unfortunate murder at the hands of the
defendant no.4. The said letter clearly proves that the state of the
relationship between Late Sh. Ram Dass and the plaintiff,
defendant no.4 and his wife Raj Rani and the defendants no.5 and
6 was extremely troubled and strained to say the least. It is
pertinent to point out that Late Sh. Ram Dass even refers to the
defendant no.6/Smt. Janak Bala as the wife of the plaintiff in the
said letter. Late Sh. Ram Dass also refers to having issued a
public notice published on 10.06.93 in the newspaper Punjab
CS DJ no. 611272/16 Page 172/177
Surender Kumar vs. Madan Lal and Ors.
Kesri disinheriting them from his property and business. Late Sh.
Ram Dass has also mentioned the specific events of 24.06.1993,
25.06.1993 and 30.06.1993 during which the said persons
quarreled with him and also extended dire threats to him. Late
Sh. Ram Dass also clearly expressed that he was fearing for his
life and property at their hands.
298. In view of the strained and sour relations that Late Sh.
Ram Dass was having with his own sons and their spouses, it was
completely natural for a person placed in his shoes to have
wanted to execute a Will in order to make sure that his properties
did not fall in their hands. The Will dated 10.01.1995 has also
been executed in close proximity of time, i.e. just a year and a
half after he had made the complaint dated 02.07.1993. In this
background, the act of Late Sh. Ram Dass having asked only the
defendant no.1, as the person known to him and from his family,
to be an attesting witness to the Will also does not seem
suspicious. The act on the part of Late Sh. Ram Dass in asking
the scribe Sh. D.P. Singh/D2W2 to witness the said Will as an
attesting witness also does not seem out of place as his relations
with his immediate family were extremely strained. Further, the
CS DJ no. 611272/16 Page 173/177
Surender Kumar vs. Madan Lal and Ors.
fact of the Will dated 10.01.1995, Ex. DW-2/3 having excluded
the plaintiff and the defendants no.4 – 10 from the assets of Late
Sh. Ram Dass also stands fully explained and no longer remains
as a cloud of suspicious circumstance over it. Further, from the
document Ex.PW-1/D2-D3, it can also be inferred that Late Sh.
Ram Dass was in the practice of signing documents drafted in
English language with his signatures in Urdu and the act of
having signed the Will in question, which is also drafted in
English, with his signatures in Urdu is also not an incongruous
circumstance. Hence, the Will dated 10.01.1993, Ex. DW-2/3
cannot be said to be unnatural, improbable or unfair to any legal
heir. In the present case, the Will in question is a registered one
as well, which further adds to it’s credibility.
299. It is also pertinent to mention that the plaintiff during his
cross examination dated 27.02.2013 by the ld. Counsel for the
defendants no. 1-3 admitted “The original will was shown by my
father to me. I cannot tell the year when I had seen the original
will. The will was in possession of my father at the time when he
showed the same to me.”
CS DJ no. 611272/16 Page 174/177
Surender Kumar vs. Madan Lal and Ors.
300. The Hon’ble Apex Court has held in the decision of
Sridevi v. Jayaraja Shetty, (2005) 2 SCC 784, as follows:
“11. The onus to prove the will is on the propounder and in the
absence of suspicious circumstances surrounding the execution of
the will, proof of testamentary capacity and proof of the signature of
the testator, as required by law, need be sufficient to discharge the
onus. Where there are suspicious circumstances, the onus would
again be on the propounder to explain them to the satisfaction of the
court before the will can be accepted as genuine. Proof in either case
cannot be mathematically precise and certain and should be one of
satisfaction of a prudent mind in such matters. In case the person
contesting the will alleges undue influence, fraud or coercion, the
onus will be on him to prove the same. As to what are suspicious
circumstances have to be judged in the facts and circumstances of
each particular case.
12. In the light of this settled position of the law, we have to examine
as to whether the will under consideration had been duly executed
and the propounders of the will had dispelled the suspicious
circumstances surrounding the will.
14. The propounder of the Will has to show that the Will was signed
by the testator; that he was at the relevant time in sound disposing
state of mind; that he understood the nature and effect of dispositions
and had put his signatures to the testament of his own free will and
that he had signed it in the presence of the two witnesses who
attested in his presence and in the presence of each other.”
301. Hence, I find that when tested on the balance of
preponderance of probabilities, the defendants no.1 – 3 have been
able to prove that Late Sh. Ram Dass had executed a legal and
valid Will dated 10.01.1995, Ex. DW-2/3, with a sound and
disposing mind. The said Will dated 10.01.1995, Ex. DW-2/3 has
also been duly proved by examining one attesting witness, Sh.
D.P. Singh. The defendants no. 1 – 3 have also been able to prove
CS DJ no. 611272/16 Page 175/177
Surender Kumar vs. Madan Lal and Ors.
that there are no suspicious circumstances surrounding the
execution of the Will dated 10.01.1995, Ex. DW-2/3 by Late Sh.
Ram Dass. The plaintiff and the defendants no. 4 – 10 have failed
to prove that prove the existence of any undue influence, fraud or
coercion in the execution of the said Will. Accordingly, the issue
no.4 is decided in favour of the defendants no. 1 – 3 and the
issues no. 6 – 8 are decided against the plaintiff.
Issue no. 5
302. I shall next decide issue no. 5, which is reproduced below
for the sake of convenience:
5. Whether the suit is correctly valued for the purpose of
court fee and jurisdiction? OPP
303. In para no. 14 of the amended plaint, the plaintiff has
valued the suit at Rs.20 lakhs on which he has paid fix court fees.
During his cross examination dated 27.02.2013 “I cannot tell
what was the value of the suit properties on the date of the filing
of the suit. I cannot say whether at that time the value of suit
properties was more than Rs.1 Crore.” The onus of the above
issue is placed on the plaintiff who had to prove that he had
correctly valued the present suit. However, plaintiff/PW-1 has
CS DJ no. 611272/16 Page 176/177
Surender Kumar vs. Madan Lal and Ors.
admitted in his cross examination dated 27.02.2013 that he did
not know the value of the suit properties on the date of filing of
the suit. Accordingly, issue no. 5 is decided against the plaintiff.
Relief.
304. The suit of the plaintiff is dismissed. Costs of the suit are
awarded in favour of the defendants no. 1 to 3. Decree sheet be
prepared accordingly. File be consigned to the record room after
due compliance. Judgment be uploaded after corrections.
Digitally signed
by JITEN
JITEN MEHRA
MEHRA Date:
2026.04.11
16:54:23 +0530Announced in the open court (Jiten Mehra)
on 11.04.2026. DJ-10/Central/THC/Delhi.
CS DJ no. 611272/16 Page 177/177