REPORTED * IN THE HIGH COURT OF DELHI AT NEW DELHI % DATE OF RESERVE: APRIL 30, 2009 DATE OF DECISION: August 12, 2009 + CS(OS) 1432/1999 ROMESH CHANDER SETHI ..... Plaintiff Through: Mr. Dinesh Garg, Advocate versus INDER MOHAN SETHI & ANR. ..... Defendants Through: Mr. Rajesh Yadav, Advocate for D-1 Mr. Ravi Verma, Advocate for D-2 CORAM: HON'BLE MS. JUSTICE REVA KHETRAPAL 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : REVA KHETRAPAL, J. 1. The plaintiff in the present suit seeks partition of property bearing No.13-B/4, Old Rajinder Nagar, New Delhi claiming one-half share in the said property. 2. The facts succinctly stated are that in the year 1954, Shri Jagat Ram Sethi had purchased the leasehold rights of the aforesaid property, measuring 752.3 sq. metres (868 sq. yards) from the Delhi Improvement Trust (now DDA) by way of a perpetual Lease Deed dated 12th September, 1956, registered as Document No.3112, Additional Book No.I, Volume 298 with the Sub-Registrar, Delhi on 24th September, 1956. On this plot, Shri Jagat Ram CS(OS) 1432/1999 Page No. 1 of 32 Sethi constructed a two and a half storeyed residential house and continued to hold the same as an owner till the time of his death on 15th April, 1978. He left surviving him Smt. Daya Wati Sethi – his widow, Smt. Prem Sahni – his daughter (the defendant No.2), Shri R.C. Sethi – his son (the plaintiff herein) and Shri I.M. Sethi – his younger son (the defendant No.1 herein). He also left a will dated 06.07.1971 bequeathing the property to his two sons, i.e., the plaintiff and the defendant No.1 in equal shares with the right of residence to his wife during her lifetime alongwith the rental income therefrom. 3. About seven years later, his widow (Smt. Daya Wati Sethi) also died on 28th June, 1985. She too left a will dated 1st March, 1979 bequeathing the property in equal shares to her two sons. Thus, the plaintiff and the defendant No.1 came to own the property in equal shares. 4. It is the case of the plaintiff that the two brothers came to an understanding with regard to the user of the portions of the property between them till it was partitioned. It is further the case of the plaintiff that in the year 1985, the first floor was rented out by the defendant No.1 to one Shri Rajiv Verma while M/s. Trade Links Private Limited, which had vacated the first floor in 1985, continued to retain the barsati floor as tenant of the defendant No.1. In October, 1991, the plaintiff retired and commenced residence in the ground floor. The defendant No.1 retired in 1995, and then proceeded to CS(OS) 1432/1999 Page No. 2 of 32 recover possession of the first floor from Shri Rajiv Verma. At the time of the filing of the suit, therefore, the ground floor was occupied by the plaintiff, the first floor by the defendant No.1, and the barsati floor was under the occupation of Trade Links Private Limited from whom the defendant No.1 was recovering the rent. 5. The plaintiff's further case is that the plaintiff is being deprived of the proper usufruct of his share in the suit property and is unable to derive any advantage from its immense potential. In other words, the plaintiff states that the property is being wasted and accordingly it has become necessary to seek partition of the same as undivided co-owner. 6. The defendant No.1 has contested the suit by filing a written statement raising a number of preliminary objections to the maintainability of the suit. The first of the said preliminary objections which is the mainstay of the defence of the defendant No.1 is that the suit for partition filed by the plaintiff is not maintainable as the property already stood divided in pursuance of an oral partition between the plaintiff and the defendant No.1 on 5th July, 1985, immediately after the death of their mother on 28.06.1985 and the mutual agreement dated 06.07.1985 between the plaintiff and the defendant No.1. The said mutual agreement was signed by the parties acknowledging the oral partition dated 05.07.1985 and the fact that they had taken possession of their CS(OS) 1432/1999 Page No. 3 of 32 respective portions. 7. The second preliminary objection of the defendant No.1 relates to the impleadment of the defendant No.2 by the plaintiff and it is stated that the defendant No.2 is neither a necessary nor a proper party for the effectual disposal of the case. By way of preliminary objection No.3, the defendant No.1 has pleaded that even otherwise the suit of the plaintiff is not maintainable, as the plaintiff has not approached this Court with clean hands, and has deliberately suppressed the factum of division and partition of the suit property. Preliminary objection No.4 relates to the plea of the defendant No.1 that the suit is hopelessly time barred and liable to be thrown out on account of delay and laches. Preliminary objection No.5 relates to the mis-description of the suit property in the plaint while in preliminary objection No.6 it is stated that the suit for partition is not maintainable till the defendant No.1 seeks a declaration against the oral partition and the mutual agreement dated 6th July, 1985. 8. On facts, the defendant No.1 in his written statement did not dispute that Shri Jagat Ram Sethi died on 15th April, 1978, leaving behind a will dated 06.07.1971 (Ex.DW-1/P1), whereby he bequeathed the property in question unto his two sons, the plaintiff and the defendant No.1. The defendant No.1 also admitted that Smt. Daya Wati Sethi expired on 28th June, 1985, leaving CS(OS) 1432/1999 Page No. 4 of 32 behind a will dated 01.03.1979 (Ex.DW-1/P2) whereby she bequeathed whatever property she had to her two sons in equal shares. As regards the plaintiff's prayer for partition, as already stated, the defendant No.1 set up an entirely different case to that of the plaintiff. According to him, immediately after the death of their mother on 05.07.1985, the plaintiff and the defendant No.1 had decided to orally partition the suit property and enjoy their respective shares to the exclusion of each other. It was decided by them that the ground floor portion along with the garage block on the left side facing the building be allotted in favour of the plaintiff; and the first floor portion along with the barsatis, the barsati floor and the garage block on the right side facing the building be allotted to the defendant No.1 and be owned by him to the exclusion of the plaintiff. Immediately after the said decision and in pursuance thereof, the plaintiff and the defendant No.1 took possession of their respective portions. However, “to acknowledge and record as a Memorandum the terms of the said oral partition”, the plaintiff and the defendant No.1 decided to make a mutual agreement. The said Memorandum was drawn up on 06.07.1985 acknowledging the oral partition and was signed by the plaintiff, the defendant No.1 and the husband of the defendant No.2, who signed as a witness. Another witness, namely, Shri B.R. Kohli signed the mutual agreement on 06.07.1985. Thereafter, the parties proceeded to rent out their CS(OS) 1432/1999 Page No. 5 of 32 respective portions to their separate tenants, to the exclusion of each other and to execute lease deeds in terms of the settlement arrived at between them. The suit property was also jointly mutated in the records of right in the names of the plaintiff and the defendant No.1 on 16th August, 1978, i.e., subsequent to the death of Shri J.R. Sethi. In short, the case of the defendant No.1 is that the property cannot be partitioned as it already stands partitioned between the plaintiff and the defendant No.1 and that the defendant No.2 has no right, claim or interest in the suit property. 9. In the written statement filed by the defendant No.2, however, the defendant No.2 has taken the stand that no will or bequest was executed by either of her parents and thus the claim of the plaintiff and the defendant No.1 for half share each in the suit property is ill-founded. It is submitted by the defendant No.2 that she too is entitled to a share in the suit property and that the same is liable to be partitioned amongst the parties to the suit as per their entitlement in law. 10. On the pleadings of the parties, the following issues were framed on 01.03.2001:- “(1) Whether Jagat Ram Sethi left behind Will dated 6th July, 1971, as alleged? OPP (2) Whether Smt. Daya Wati Sethi left behind Will dated 1st March, 1979? OPP (3) Whether plaintiff is entitled to half share in suit property? OPP CS(OS) 1432/1999 Page No. 6 of 32 (4) Whether defendant No.2 executed the Writing dated 7th July, 1985 in the circumstances set out in the written statement filed by her? If so, its effect? OPD-2 (5) Whether suit property stood partitioned pursuant to an oral partition which had also been acted upon, as alleged? If so, its effect? OPD (6) Whether defendant No.2 is not a necessary party to suit? OPD-1 (7) Relief.” 11. On the aforesaid issues, the parties went to trial. In the course of the trial, the plaintiff tendered in evidence his affidavit by way of evidence and was cross-examined by the learned counsel for the defendant No.1 at considerable length. The defendant No.1 too tendered in evidence his affidavit by way of evidence and was cross-examined by the learned counsel for the plaintiff. No evidence in rebuttal was led by the defendant No.2. In the course of the recording of the evidence before the learned Local Commissioner Mr. Arun Bhardwaj, Advocate, the defendant No.2, who had earlier filed a written statement contesting the suit, withdrew her claim vide letter dated 1st September, 2004 (Ex.DW-2/1). This letter was tendered by the counsel appearing for her [Mr. Vikram Nandrajog, Advocate], which reads as under:- “REGISTERED ACK DUE Prem Sahni Tele: 2433044 20-A, D/C, Gandhi Nagar Jammu-180 044 September 1, 2004 CS(OS) 1432/1999 Page No. 7 of 32 Mr.Vikram Nandrajog, 224, Lawyers Chambers, Delhi High Court, New Delhi-3 Dear Sir, Re: Suit No.1432/1999 Shri Ramesh Chander Sethi Vs. Shri Inder Mohan Sethi & Anr., Before Hon'ble Delhi High Court. This acknowledges receipt of your letter dated 28/8/2004 regarding the next date of hearing of the above case. Due to my old age and indifferent health and difficulty in travelling, after due consideration, I have decided not to press my case. Please be informed that I do not wish to pursue the case any further. I wish to withdraw my claim to the share of the property of my father Late Shri Jagat Ram Sethi. Kindly inform the Hon'ble Court about this decision at the next hearing. Kindly acknowledge. Thanking you, Yours faithfully sd/- Mrs.Prem Sahni” 12. Since the statement of the defendant No.2 had not been recorded, in order to place matters beyond the pale of controversy, by an order dated 18th July, 2005, this Court (Hon'ble Mr. Justice Swatanter Kumar) in order to fully and finally determine the issue in controversy in the present suit issued court notice to her and on 13.09.2005 recorded her statement. In her said CS(OS) 1432/1999 Page No. 8 of 32 statement, the defendant No.2 categorically admitted that letter dated 1st September, 2004 (Exhibit DW2/1) had been written by her to her counsel, Mr. Vikram Nandrajog, instructing him not to pursue the case any further. 13. On the same date, i.e., on 13.09.2005, the following order was passed:- “Statement of Defendant no.2 has been recorded in court today. Learned counsel appearing for the plaintiff submits that in face of the letter Exhibit DW2/1 the defendant would have no right to claim any share in the property. List for arguments on 7th December, 2005.” 14. Around the end of November, 2005, however, the defendant No.2 moved an application, being IA No.9651/05 seeking to retract from the statement made by her on 13.09.2005 as well as the letter Exhibit DW2/1. Notice of the said application was issued to the plaintiff who submitted through his counsel that he did not wish to file any reply to the application and would argue his opposition to the prayer made in the application. Thereafter, the application came up for hearing on April 22, 2008 when the same was dismissed on the ground that the defendant No.2 had neither cared to appear on 2nd November, 2006 when the same came up for hearing nor had cared to appear on 22nd April, 2008. 15. Significantly, no application was filed by the defendant No.2 or her counsel for the restoration of the aforesaid application nor any fresh application was filed by the defendant No.2 at any subsequent stage. CS(OS) 1432/1999 Page No. 9 of 32 16. I have heard Mr. Dinesh Garg, the learned counsel for the plaintiff, Mr. Rajesh Yadav, the learned counsel for the defendant No.1 and Mr. Ravi Verma, the learned counsel for the defendant No.2 and scrutinized the records. My findings on the issues framed by this Court are recorded hereunder. 17. Issues No.1, 2 and 3: Issues No.1, 2 and 3 which pertain to the Will dated 6th July, 1971 of Shri J.R. Sethi (Ex.DW-1/P1) and the Will dated 1st March, 1979 of Smt. Daya Wati Sethi (Ex.DW-1/P2), for the sake of convenience, are being dealt with together as the effect and purport of both the Wills is the same. In the Will executed by him, Shri J.R.Sethi bequeathed his entire estate, stated to be wholly self-acquired, including House No.13-B/4, Uttri Marg, New Delhi to his two sons, namely, Romesh Chander Sethi and Inder Mohan Sethi in equal shares. The testator gave his wife a life estate along with the net income from the net rent realized from the above-mentioned property during her lifetime. As regards his daughter, the defendant No.2, he devised as follows:- “That my married daughter, Mrs.Prem Sahni shall not be entitled to any share in any of the properties, movable or immovable whatsoever, as she has been sufficiently provided for by me by way of her dowry and other gifts and cash or kind from time to time. I hereby specifically divest her, i.e., my married daughter Smt.Prem Sahni from claiming any share in my property, movable or immovable.” 18. On her demise, Smt.Daya Wati, the wife of late Shri Jagat Ram Sethi CS(OS) 1432/1999 Page No. 10 of 32 also bequeathed her estate including movable and immovable properety of all kinds unto her two sons, i.e., the plaintiff and the defendant No.1 in equal shares, half-share each. 19. The aforesaid two Wills have been specifically admitted in the written statement filed by the defendant No.1 as also in the course of his cross- examination and have, therefore, been exhibited as Ex.DW-1/P1 and Ex.DW- 1/P2 respectively. In his cross-examination, DW-1 stated that both the Wills were correct as per their originals. In the course of his further cross- examination, DW-1 stated that it was correct that the original Wills were with him and he had filed the same in eviction proceedings for the eviction of his tenant on the first floor. 20. The defendant No.2 did not choose to lead any evidence in rebuttal to dispute the validity of the aforesaid two Wills nor she chose to cross-examine PW-1 or PW-2 or to appear in the witness box to state on oath that the two Wills had not been executed by her father and mother. It is trite law that the facts admitted in terms of Section 58 of the Evidence Act are not required to be proved (See: Seth Ramdayal Jat V. Laxmi Prasad JT 2009(5) SC 461; Gannmani Anasuya & Ors. v. Parvatini Amarendra Chaudhary (2007) 10 SCC 296; L.K.Verma v. HMT Ltd. (2006) 2 SCC 269; Avtar Singh v. Gurdial Singh (2006) 12 SCC 552; Vice Chairman, Kendriya Vidyalaya CS(OS) 1432/1999 Page No. 11 of 32 Sangathan & Ors. v. Girdharilal Yadav (2004) 6 SCC 325). It is accordingly held that the Will dated 06.07.1971 left behind by late Shri J.R.Sethi and the Will dated 01.03.1979 left behind by late Smt. Daya Wati Sethi are the genuine Wills of the aforesaid testator and testatrix. This being so, the plaintiff and the defendant No.1 must be held entitled to half-share each in the suit property. Issues No.1, 2 and 3 are decided accordingly. 21. Issues No.4 and 6 : Issues No.4 and 6 are being dealt with together as both the said issues relate to the claim of the defendant No.2 as set out by her in her written statement. 22. In the written statement filed by her, the defendant No.2 categorically stated that both Shri Jagat Ram Sethi and Smt.Daya Wati Sethi died intestate and that the two Wills purported to have been executed by her late father and mother were “created documents”, which were created by her brothers by representing that the same were for the purpose of mutation and that she would continue to have all the rights in the suit property as co-owner thereof. Further, according to the defendant No.2, the plaintiff and the defendant No.1 obtained from her in writing that she accepts the existence, correctness and genuineness of the Will dated 06.07.1971. The said writing was executed by her on the representation of the plaintiff and the defendant No.1 that the Will was only for the purpose of mutation and not for any other purpose. Similarly, after the CS(OS) 1432/1999 Page No. 12 of 32 death of their mother, the plaintiff and the defendant No.1 “created” the alleged Will dated 01.03.1979. The plaintiff and the defendant No.1 got the document dated 06.07.1985 also signed by Shri Sat Paul Sahni, (husband of the defendant No.2) as a witness to the said document. The two Wills in question and the document executed by her accepting the existence, correctness and genuineness of the Will dated 06.07.1971 (not filed) and the purported mutual agreement dated 06.07.1985 were all documents “created” by the plaintiff and the defendant No.1 for the specific purpose of effecting mutation in respect of the suit property. 23. In the aforesaid backdrop of the admission of the defendant No.2 that she had accepted the existence, correctness and genuineness of the Will dated 06.07.1971, a few facts need to be noted at this stage in order to deal effectively with the matter. 24. Not only does the defendant No.2 admit that she had accepted in writing the existence, correctness and genuineness of the Will dated 06.07.1971, and that her husband Shri Sat Paul Sahni had witnessed the agreement dated 06.07.1985, the defendant No.2 at no point of time thereafter, prior to the filing of her written statement, chose to challenge the Wills in question. The defendant No.2 having disputed the genuineness of the Wills in her written statement, in the course of the trial an affidavit of evidence of PW-2 Shri CS(OS) 1432/1999 Page No. 13 of 32 M.M.Mehta was filed by the plaintiff, who was an attesting witness to the Will executed by Smt.Daya Wati Sethi in order to prove the Will. However, at this juncture, the defendant No.2 made a statement that she did not wish to press her case and the following order was recorded by the Local Commissioner, Mr.Arun Bhardwaj, Advocate in the Record of Proceedings on 14.09.2004:- “The defendant No.2, Smt. Prem Sahni through her Advocate Mr.Vikram Nandrajog filed letter dated 01.09.2004 stating that she does not wish to press her case. Counsel for plaintiff is closing her evidence in affirmative and is dropping PW-2 Shri M.M.Mehta.....................” 25. Thereafter, the defendant No.2 chose not to press her case either by appearing in the witness box or by cross-examining the witnesses of the plaintiff and the defendant No.1. Had she not made a statement that she did not press her case, presumably the plaintiff would have formally proved the original Will of his late father and that of his late mother. As things stood, the plaintiff chose to drop the remaining witnesses on the premise that the defendant No.2 was not pressing her claim in the suit property. It was only much later on issuance of court notice to her, for the purpose of recording her formal statement that the defendant No.2 appeared to state that she wanted to press her claim, though she did not deny that her counsel had on her despatching a letter to him in this regard made a statement before this Court that she did not press her case. CS(OS) 1432/1999 Page No. 14 of 32 26. Yet again, when the matter was listed for arguments, the defendant No.2 filed an application under Section 151 CPC being I.A.No.9651/2005 to contest the suit, but again chose not to press the said application, resulting in its dismissal in default three years later, i.e., on 22.04.2008. As already stated, no effort was thereafter made by the defendant No.2 to have the said application restored or to press her claim in the suit property in any other manner whatsoever. 27. The aforesaid being the admitted position, the defendant No.2 cannot at this stage of the proceedings be permitted by this Court to render at naught the document dated 06.07.1985 witnessed by her husband, the letter dated 14.09.2004 send by her to her counsel instructing him not to press the case, the statement made by her counsel before the Local Commissioner that the defendant No.2 did not intend to press the case resulting in the closure of the remaining evidence of the plaintiff, the admission made by her in Court in her statement recorded by the Court on 13.09.2008 that she had instructed her counsel not to press her claim. The effect of the defendant No.2 having filed an application even thereafter before this Court and having chosen not to pursue the same, yields the same result. The shifting stands taken by the defendant No.2 and the fact that she did not choose to lead any evidence in support of her claim or to put herself in the witness box, in my view, must weigh heavily CS(OS) 1432/1999 Page No. 15 of 32 against the defendant No.2. 28. Further the onus of proving of issue No.4 that her husband had executed the writing dated 7.7.1985 in the circumstances set out by her in her written statement was squarely upon the defendant No.2. She having failed to discharge the said onus, issue No.4 must be decided against her. The necessary corollary is that issue No.6 must also be decided against the defendant No.2. Issues No.4 and 6 are decided accordingly. 29. Issue No.5: The only surviving issue which remains to be considered by this Court pertains to the stand taken by the defendant No.1 that the suit property stood partitioned pursuant to an oral partition, which had also been acted upon by both parties. The onus of proving this issue was upon the defendant No.1. 30. Before going into the evidence adduced by the parties, it is deemed appropriate to set out the contents of this document, which is heavily relied upon by the defendant No.1 in support of his case. It reads as under:- Terms of mutual agreement between brothers Romesh Chandra and Inder Mohan Sethi, son of late Shri J.R.Sethi and late Mrs.D.W.Sethi, drawn up on the demise of their mother, who passed away on 28.06.1985. 1. The ground floor portion, along with the garage block on the left side facing the building is alloted in favour of R.C.Sethi. 2. The first floor portion, along with the barsaties and a garage block on the right side facing the building is alloted to CS(OS) 1432/1999 Page No. 16 of 32 I.M.Sethi. 3. Till such time as their DDA flat is ready for occupation, the sister Mrs. Prem Sahni and her husband Mr.Sat Paul Sahni