KAUSHALYA BUTAIL Vs. MADAN LAL BUTAIL

JUDGEMENT

(1.) This is Plaintiffs' suit praying for partition of the immovable properties, rendition of accounts and mandatory injunction. Their case, as disclosed in the latest amended plaint dated 29.10.1998, is that Shri Roshan Lal Butail died on December 4, 1984, leaving behind the Plaintiffs and Defendant No. 1 as his legal representatives. According to Plaintiffs, said Roshan Lal Butail died intestate though some Wills allegedly executed by him are being set up by the Defendants because he was afflicted with a severe attack of paralysis much before his death as a result of which his mental capabilities were very adversely affected rendering him incapable of making any Will with a sound and proper application of his mind. He could not even speak. At the time of his death, said Roshan Lal Butail (hereafter referred to as "the deceased") owned the following immovable properties:

(2.) The deceased also possessed moveable assets comprising cash, money lying in the banks and furniture etc. After his death, claim the Plaintiffs, his entire estate devolved on the Plaintiffs and Defendant No. 1, Plaintiff No. 1 having 5/16th share in the "joint family coparcenary property at Shimla and Pragpur" and 1/4th share in the property at Delhi, Plaintiff No. 2 having 1/4th share in the suit properties and Plaintiff No. 3 having 1/16th share in the "ancestral joint family properties" and 1/4th share in the immovable property in New Delhi. The ancestral properties were coparcenary properties in the hands of the deceased in which all male members got share by birth and the parties to the suit are governed by Mitakshra School of Hindu Law in the matter of coparcenary property. Plaintiffs further claim to be in joint possession of all the properties left by late Shri Roshan Lal at the time of his death and also in exclusive physical occupation of top floor of the house in Delhi and a flat in the Middle floor of Block No. 99/3, Butail Building, Shimla. Since Plaintiffs 2 and 3 are permanently settled in United States of America and Plaintiff No. 1 had been in service as a teacher in a school at Halwara, Defendant No. 1, by taking undue advantage of the situation procured a power of attorney from deceased Roshal Lal for realising the rents of the suit properties in 1984 and since then he had been realising the rents and has realised substantial amount of rents and has also withdrawn substantial amount from the accounts of the deceased but has failed to render accounts of the same despite demands by the Plaintiffs, obviously with a dishonest/mala fide motive of misappropriating the said amounts. He is further alleged to have realised substantial amount of premium for letting out a portion of the property in New Delhi and after the death of said Roshan Lal Butail, Defendant No. 1's attitude has been to grab almost whole of the property and oust the Plaintiffs. Defendant No. 1 by making false and wrong representations to Plaintiffs 2 and 3 managed to procure in his favour a General Power of Attorney for them for managing the affairs of the joint property left by late Shri Roshan Lal and on the strength of said power of attorney, collected substantial amounts and also asked Plaintiff No. 2 to remit him amounts for managing the joint property. When the Plaintiffs came to know about the dishonest intentions of Defendant, the power of attorney so executed was cancelled and the concerned banks were also advised not to allow any withdrawals of any amounts out of the amounts which stood deposited in the name of said Roshan Lal Butail. To protect their rights and interests in the joint properties left by said Roshan Lal, Plaintiffs now do not want to keep the properties joint with Defendant No. 1 who is trying to illegally grab the same by forging a Will and the income wherefrom is being illegally misappropriated by him, and want their share to be partitioned by metes and bounds and to be put in exclusive possession of their shares including the moveable assets. It is further claimed that Istridhan of Plaintiff No. 1, i.e. golden ornaments, are also lying in the lockers, which is the exclusive property of Plaintiff No. 1 and are liable to be delivered to her after the lockers taken by said Shri Roshan Lal Butail are ordered to be opened. Such ornaments consist of 5/6 gold rings weighing about 4 tolas, two pairs of gold ear rings, two pairs of gold buttons, 4 gold bangles and one gold chain. It is further the case of the Plaintiffs that Defendant No. 1 is liable to render true and correct account of income of joint properties and the moneys which he has withdrawn from the accounts of late Shri Roshan Lal Butail and pay to the Plaintiffs their shares in such amounts with interest @ 18% per annum as he has used such amounts for his own exclusive use, thereby depriving the Plaintiffs from user thereof. The Plaintiffs have also claimed that their possession on top floor suite of the house in New Delhi and the rooms in the middle floor in the building at Lower Bazar, Shimla also deserves to be protected. Hence the present suit.

(3.) The Defendants contested the claim of the Plaintiffs. In their joint written statement, they raised the preliminary objections that the suit in the present form is neither competent nor maintainable; that the suit has not been properly valued for purposes of Curt fee and jurisdiction; that the plaint has not been verified in accordance with law; that the Plaintiffs are estopped from filing the suit due to their acts, deeds, conduct and acquiescences; that the suit is bad for non-joinder of necessary parties; that the plaint lacks full and material particulars and that the suit is barred by the principle of res judicata. On merits, the status of the Plaintiffs as the legal heirs of the deceased has been denied and it has been claimed that they have no right, title and interest in the estate left by the deceased which has devolved upon the Defendants in accordance with the Will duly executed by the deceased on 18.10.1984. The allegations that the deceased was incapable of executing the Will due to the alleged illness have been denied and it has been claimed that he had a sound disposing state of mind till the date of his death. It has, however, been admitted that the deceased married Plaintiff No. 1 sometime after the year 1942, after the death of his previous wife and mother of Defendant No. 1 Smt. Sheela Devi. Plaintiffs 2 and 3 are also admitted to be the son and daughter of the deceased out of the wedlock with Plaintiff No. 1. It is, however, claimed that Plaintiff No. 1 deserted the deceased in the year 1965 whereas Defendant No. 1 continued to serve him and used to look after him in the absence of Plaintiffs 2 and 3 who were living abroad. Plaintiff No. 1 did not join the company of the deceased for the rest of his life and did not even visit the house at the time of his death. The Will executed by the deceased on 4.10.1984 was in-fact at the instance of Plaintiff No. 2 who took active interest in getting the Will prepared. However, after having realised the plans of the Plaintiffs, the deceased revoked the said Will and executed the Will dated 18.10.1994 whereby he bequeathed his properties in favour of Defendants etc. mentioning therein the special reasons for depriving the Plaintiffs of any right in the property and also the reasons for giving the share in the properties to the Defendants. As per the last Will so executed, the residential house situated in Greater Kailash devolved upon Defendants 2 and 3 and the New Butail Building at Lower Bazar, Shimla devolved upon Defendant No. 1. Since Plaintiffs 2 and 3 are permanently settled in United States of America, therefore, they were given six vacant residential plots of land situate at Pragpur. All moneys lying in the various banks have been given equally to the Defendants etc. after meeting the expenses, such as unpaid medical bills, taxes, funeral rites, estate duties and repairs of the buildings. Defendant No. 1 is the executor of the Will who has been empowered to distribute the allotted share amongst the persons who are the beneficiaries under the Will. It is further averred that on 8.7.1984, a notice was sent by one Dr. Kailash Nath Sood through his counsel Shri Ajay Kumar Sood, Advocate to Plaintiff No. 1 and Defendant No. 1 informing that he had in his possession a sealed envelop containing the Will of late Roshan Lal Butail. Later on Dr. Kailash Nath Sood handed over the said envelop to Plaintiff No. 1. About the said envelop, Plaintiff No. 1 took false stand that the envelop so delivered to her was empty whereas she knew that it contained the valid Will executed by the deceased on 18.10.1984 which is the last Will of the deceased. The claim of the Plaintiffs in the suit properties has been denied and it has also been denied that they are in joint possession of the properties left by the deceased, except flat Nos. 9 and 10 which the Plaintiff No. 1 had unauthorisedly occupied under some secret deal after the death of Shri Roshan Lal Butail. The claim of the Plaintiffs for rendition of accounts has also been denied on the ground that they have no right to claim it and realisation of any premium or mis-appropriation of any amount, as claimed in the plaint, has also been denied. On the contrary, it has been claimed that a sum of Rs. 30,000 each had been paid to Plaintiffs 2 and 3 after the death of Roshan Lal Butail out of the accounts of the deceased which were operated on either or survivor basis. Apart from the aforesaid amounts, a sum of Rs. 20,000 has been paid by Defendant No. 1 to Plaintiffs 2 and 3 in cash. After having received these amounts, the Plaintiffs served notices for stopping the payment of any amount rendering Defendant No. 1 handicapped either in making payment of the municipal taxes or in carrying out the repairs of the properties. The allegations of dishonest intention to grab the properties as alleged in the plaint have been denied and it is claimed that in-fact, even under the Will, he has got lesser share than he would have got otherwise. The obtaining of General Power of Attorney from Plaintiffs 2 and 3 with mala fide and dishonest intention has also been denied. It is further claimed that one of the lockers of deceased with the State Bank of India, Parliament Street, New Delhi was in the name of the deceased and his niece Nirmala Devi Sood which was operated by either or survivor. Another locker in the Central Bank of India, Greater Kailash, New Delhi, was also in the joint name of Santosh Kumari and the deceased and thereafter this locker was transferred in the name of the deceased and Defendant No. 1 and the wife of Defendant No. 1 to be operated by either or survivor. The Defendants have given the details of the Saving Bank Accounts of the deceased in the written statement. It is, however, claimed that these accounts were in the name of the deceased and Defendant No. 1. Out of the deposits in the account, a sum of Rs. 60,000, as already stated, was paid to Plaintiffs 2 and 3 by Defendant No. 1 and payments to meet other numerous expenses were made from these accounts which were operated by Defendant No. 1 even during the life time of the deceased to meet day to day household expenses etc. The ornaments as claimed are stated to be not in the lockers. Hence the claim of the Plaintiffs has been denied.