Pyare Lal Gupta v. Som Bala Alias Suman Khandelwal & Ors.

1. For the reasons stated in the application, the delay of 140 days in filing the appeal is condoned. CM APPL. 73097/2024

2. The application stands disposed of.

3. This appeal has been filed by the appellant under Section 96 read with Order XLI of the Code of Civil Procedure, 1908 (hereinafter RFA(OS) 68/2024 AND CM APPL. 73096/2024 referred to as, ‘CPC’) read with Section 10 of the Delhi High Court Act, 1966, challenging the Preliminary Decree dated 02.08.2022 and the Final Decree dated 11.11.2022 passed by the learned Single Judge of this Court in CS (OS) 2152/2014 (hereinafter referred to as, ‘the suit’) titled Som Bala @ Suman Khandelwal v. Pyare Lal Gupta & Ors.

4. Brief background of the appeal is that the above suit had been filed by the respondent no. 1 herein, seeking a decree of partition, declaration, demarcation, possession, mesne profits and other consequential reliefs with respect to following immovable properties-

(i) Entire Built-up House/property Nos.

(ii) Entire Built-up House/property NO. 10156, Gali Gandhak Wali, Nawabganj, Pul Bangash, Azad Market, Delhi- 110006; (Both the properties are hereinafter referred to as, ‘the suit property’).

5. It was the case of the respondent no. 1 before the learned Single Judge that the suit properties were self acquired properties of Late Sh. Durga Prasad Gupta, the father of the parties to the suit, who are all siblings. He died intestate on 18.03.1988, leaving behind the parties to the suit as only legal heirs. The respondent no. 1, therefore, prayed for the above relief in the suit.

6. The appellant herein, on the other hand, contested the above suit by claiming that Late Sh. Durga Prasad Gupta had left behind a Will dated 25.10.1986, in terms whereof, the suit properties had been bequeathed in favour of the appellant.

7. Admittedly, the original copy of the said Will was not produced before the learned Single Judge in the suit. Even the alleged attesting witnesses to the said Will were not produced in evidence. The Will, therefore, remained unproved. The learned Single Judge, therefore, passed the Preliminary Decree, observing that there was no defence to the suit.

8. The learned counsel for the appellant submits that the respondents had, in fact, admitted to the Will and based thereon, had executed “No Objection Certificates” (hereinafter referred to as, ‘NOC’) giving their no objection to the mutation of the suit properties in favour of the appellant.

9. He further submits that the witnesses to the Will were not available and, therefore, could not be produced before the learned Single Judge in evidence.

10. He submits that the respondent no. 1 having prayed for a Decree of declaration declaring the Will dated 25.10.1986 as null and void, the onus of proof for the same lay on the respondent no. 1, which she has failed to discharge. He further submits that the respondent no. 2 had also admitted to the Will.

11. On the other hand, the learned counsels for the respondent nos. 1, 3, 4, 5 and 6 oppose this appeal by contending that the onus of proving the alleged Will lies only on the appellant, who is the propounder and the sole beneficiary thereunder. They submit that the Will was not proved in accordance with the Section 63 of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872 (corresponding Section 67 of the Bharatiya Sakshya Adhiniyam, 2023), and therefore, the learned Single Judge has rightly passed the Preliminary Decree vide Judgement dated 02.08.2022. He further submits that this belated challenge to the Preliminary Decree should not be sustained.

12. We have considered the submissions made by the learned counsels for the parties.

13. The appellant being the propounder and sole beneficiary of the alleged Will dated 25.10.1986 of Late Sh. Durga Prasad Gupta, the onus of proving the due execution thereof in accordance with Section 63 of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872 (corresponding Section 67 of the Bharatiya Sakshya Adhiniyam, 2003), lies only on the appellant. He cannot pass this onus on to the respondents. The appellant miserably failed to discharge this onus inasmuch as, he did not produce the alleged attesting witnesses to the said Will. Even the original Will was not filed before the learned Single Judge in the suit.