Shri Gopal Krishan Dua v. Shri Darshan Kumar Dua & Anr.

1. This application is filed under Order 39 Rules 1 and 2 CPC seeking an ex-parte interim injunction.

2. This matter came up for hearing on 23.07.2018 when this court passed an interim order directing the parties to maintain status quo regarding title and possession of the suit properties till further orders.

3. The accompanying suit is filed by the plaintiff seeking a decree of declaration declaring the Will dated 11.04.1998 said to have been executed by deceased father of the plaintiff late Sh.Chanderbhan Dua as null and void and having no effect in law and a decree of partition is sought for apportioning the respective shares of the legal heirs in the assets of late 2019:DHC:3342 Sh.Chanderbhan Dua including, i) Flat No.18/1, Ground Floor, DDA Double Storied Flats, Pant Nagar, New Delhi, ii) Land at Village Namoli, admeasuring 4.7877 Hectares, situated in Gatta No.l11, 116, 76/200, 102 and 93 Min., iii) 7752 Shares in Super Cassette Industries Pvt. Ltd. having face value of Rs. 100/- each, and iv) Savings Bank Account bearing No.1177101006675 in Canara Bank, Noida Branch, Noida (U.P). Other connected reliefs are also sought.

4. The case of the plaintiff is that plaintiff, defendant Nos.1, 4 and 5 are the sibling being the children of late Sh.Chanderbhan Dua. Defendant Nos.[2] and 3 are the son and wife of the predeceased brother of the parties, namely, Sh.Gulshan Kumar Dua. Sh.Chanderbhan Dua expired on 06.03.2004. He is survived by the parties to the suit as Sh.Chanderbhan Dua’s wife Smt.Krishna Devi Dua died in 1984. Hence, it is pleaded that after the death of Sh.Chanderbhan Dua, the aforesaid properties equally devolved upon his legal heirs.

5. Regarding the Will dated 11.04.1998 purportedly executed by late Sh.Chanderbhan Dua, it is pleaded that the Will is forged and fabricated. The father was not educated and could not read or write Hindi or English. He could only read Urdu. Other grounds are also taken to challenge the said Will.

6. Defendants have filed their written statement. Defendant No.2 in his written statement states that late Sh.Gulshan Kumar Dua started the company M/s Super Cassettes Industries Pvt. Ltd. (in short „SCIL‟) and its predecessor concerned Firm. It is stated that late Sh.Chander Bhan Dua held 7752 shares in SCIL but the said shares were held in trust and for the benefit of defendant No.2 as the entire business was set up and being run and managed by the father of defendant No.2 late Sh.Gulshan Kumar Dua. It is stated that the said company SCIL was taken to great heights but unfortunately, in 1997 late Sh. Gulshan Kumar Dua passed away. After the demise of Sh.Gulshan Kumar Dua, defendant No.2 took over the sole and complete responsibility of managing the complete affairs of SCIL and continues to manage the same till today. He is Managing Director of SCIL.

7. It is also pleaded that a suit was filed in 1998 by the legal heirs of late Gulshan Kumar Dua including defendant No.2 against Sh.Chanderbhan Dua seeking a declaration that 7752 shares of late Sh.Chanderbhan Dua were held by him in trust and for the benefit of defendant No.2. On 12.02.1998 a settlement was recorded where it was accepted that Sh.Chanderbhan Dua held the said 7752 shares in trust and for the benefit of defendant No.2. It is pleaded that subsequently on 27.01.1999 late Sh.Chanderbhan Dua out of his own free will gifted the shares as mentioned in Will dated 11.04.1998 to defendant No.2 through a registered gift deed. Late Sh.Chanderbhan Dua also executed necessary Share Transfer Form dated 16.02.1999. The shares have been registered in the name of defendant No.2 and he is the sole owner of the said shares since 1999.

8. I have heard the learned counsel for the parties.

9. Learned senior counsel appearing for defendant Nos.[1] to 4 has reiterated that pursuant to the legal and valid Will dated 11.04.1998 and gift deed dated 27.01.1999 the plaintiff can claim no right in the assets of late Sh.Chanderbhan Dua.

10. The learned counsel appearing for the plaintiff however states that Will dated 11.04.1998 is a forged document. He reiterates that late Sh.Chanderbhan Dua could not read or write English. He further reiterates that the Will is worded in a vague manner and is liable to be struck down. He further pleads that gift deed dated 27.01.1999 has now surfaced and he is taking steps to challenge the same.

11. As is apparent from the above, the contentions of the plaintiff centre around two immoveable properties, namely, Flat No.18/1, Ground Floor, DDA Double Storied Flats, Pant Nagar, New Delhi, and Land at Village Namoli, admeasuring 4.7877 Hectares, situated in Gatta No.l11, 116, 76/200, 102 and 93 Min., and 7752 Shares in Super Cassette Industries Pvt. Ltd. No submissions have been made regarding Savings Bank Account in Canara Bank, Noida Branch, Noida (U.P).

12. As far as the shares in Super Cassette Industries Pvt. Ltd. are concerned, they have been transferred in the name of defendant No.2 by means of a gift deed dated 27.01.1999. I cannot help noticing that apart from the gift deed, late Sh.Chanderbhan Dua also entered into a compromise decree with defendant No.2 on 27.04.1998 accepting that he was holding the shares in trust and for the benefit of defendant No.2. Subsequently, after the consent decree, he has also executed a registered gift deed. He has also executed a Share Transfer Form in 1999. Thereafter the shares stand transferred in the name of defendant No.2 in 1999.

13. There is no challenge to the said transfer of shares in favour of defendant No.2 by the plaintiff. Written statement was filed by defendant No.2 sometime in October, 2018. However, there is no challenge to the gift deed.

14. That apart from, in my opinion, the transfer of the shares have taken place back in 1998/1999 in favour defendant No.2. Late Sh.Chanderbhan Dua died in 2004. The plaintiff has now belatedly 14 years after the death of Sh.Chanderbhan Dua sought to claim a right in the shares. In all these years defendant No.2 has enjoyed all the rights as a shareholder of Super Cassette Industries Private Limited. He would have also enjoyed the dividends given by the company on these for 14 years. It is also not a disputed fact that defendant No.2 is the Managing Director of the said company. The claim of the plaintiff that the transfer of shares in favour of defendant No.2 is pursuant to a fraud played on late Shri Chander Bhan Dua prima facie lacks conviction on account of the delay on the part of the plaintiff in claiming his alleged rights in the said shares.

15. In this regard reference may be had to the maxim “Vigilantibus, non dormienti bus, jura subvenint” i.e. “delay defeats equities, or equity aids the vigilant and not the indolent.”