2019 NearLaw (DelhiHC) Online 128
Delhi High Court

JUSTICE MUKTA GUPTA

MRIGENDRA PRITAM VIKRAM SINGH STEINER AND ORS. Vs. JASWINDER SINGH AND ORS.

CS(OS) 980/2009

10th January 2019

Petitioner Counsel: Mr. A.K. Vali Mr. Tuhin
Respondent Counsel: Mr. Viraj R. Datar Mr. Karan Mehta

On 1st December, 2000, Rajendra Vikram Singh came to India and stayed with Defendant No1 for approximately two weeks when he discussed his property related matter with his father and shared his intention of leaving his entire estate in India to Defendant No1 as he shared a special father-son bond with him, Defendant No1 being the only male heir in the family.
On 5th December, 2000, Rajendra Vikram Singh executed his last and final Will in favour of Defendant No1 in the presence of three witnesses, namely, Tejinder Pal Singh Mann, Suresh Pal and Puneet Sharma who all attested the same.
After the death of Rajendra Vikram Singh, father of Defendant No1 gave him the Will dated 5th December, 2000 executed in his favour whereby Late Rajendra Vikram Singh had bequeathed his entire moveable and immoveable properties in India to defendant No1.
5.3 Objections of the Plaintiffs to the validity of the Will are that the Will was unnatural as the deceased Rajendra Vikram Singh shared a very good harmonious relationship with his four daughters, i.e. the Plaintiffs herein, on the last visit of the deceased to India plaintiff No1 i.e. PW-2 and her family members were together with the deceased and the deceased died holding the hands of Plaintiff No1, the witnesses to the Will cannot be believed as they are not natural witnesses and the language of the Will itself shows that Late Rajendra Vikram Singh was not the author thereof.
The issue is not whether there were cordial relations between the father and the daughters but whether the plaintiffs had weak links with India and whether there was any justification qua disinheriting the plaintiffs to the property of Rajendra Vikram Singh in India and not in USA Admittedly, no Will has been left by Rajendra Vikram Singh in respect of his properties in USA which have all been inherited by the plaintiffs.
Even as per the case of the plaintiffs Power of Attorney had been executed by Rajendra Vikram Singh in favour of his elder brother Jaswant Singh, father of defendant No1 and all properties including the purchase of property No B-10, Westend and 510, Surya Kiran Building was done by Jaswant Singh as Power of Attorney holder of Rajendra Vikram Singh.
It is the admitted case of the plaintiffs that even their bank accounts, shares, assets in India were also taken care of by the father of defendant No1 as Power of Attorney and there was never any dispute during the lifetime of their father Rajendra Vikram Singh or even thereafter qua their accounts.
5.14 Contention of learned counsel for the plaintiff that Rajendra Vikram Singh was a person with modern outlook working as a scientist in NASA and he merrily and happily performed the marriage of his daughters to foreigners does not affect the intention of the deceased to bequeath the property in India in favour of his nephew defendant No1 in view of the weak links of the plaintiffs to India and as Rajendra Vikram Singh had spent considerable amount on their education, marriage and had left sizable movable and immovable assets in USA in favour of the plaintiffs.
Where, for example, the former suit was dismissed by the trial court for want of jurisdiction, or for default of plaintiff's appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision not being on the merits would not be res judicata in a subsequent suit.
But if the contention of the appellant were to be accepted and it is held that if the appeal court dismisses the appeal on any preliminary ground, like limitation or default in printing, thus confirming toto the trial court's decision given on merits, the appeal court's decree cannot be res judicata, the result would be that even though the decision of the trial court given on the merits is confirmed by the dismissal of the appeal on a preliminary ground there can never be res judicata.
We cannot therefore accept the contention that even though the trial court may have decided the matter on the merits there can be no res judicata if the appeal court dismisses the appeal on a preliminary ground without going into the merits, even though the result of the dismissal of the appeal by the appeal court is confirmation of the decision of the trial court given on the merits.
We are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal.
10.1 Having held that the Will propounded by defendant No1 of late Rajendra Vikram Singh is a valid Will and that the relief of declaration sought in respect of property No501, Surya Kiran Building, 19, Kasturba Gandhi Marg, New Delhi being beyond the period of limitation, Issues No(i), (ii), (iii), (iv), (v) & (vi) are decided against the plaintiffs and in favour of the defendant No1.
No costs.

Cases Cited :
Para 4: Jaswinder Singh & Ors. Vs. Mrigendra Pritam Vikram Singh Steiner & Ors, (2013) 137 DRJ 290
Para 6: Badami Vs. Bhali, (2012) 11 SCC 574
Para 6: S.B. Noronah Vs. Prem Kumari Khanna, [(1980) 1 SCC 52 : AIR 1980 SC 193]
Para 6: Shrisht Dhawan Vs. Shaw Bros., [(1992) 1 SCC 534 : AIR 1992 SC 1555]
Para 6: Lazarus Estates Ltd. Vs. Beasley, [(1956) 1 QB 702 : (1956) 2 WLR 502 : (1956) 1 All ER 341]
Para 6: Hamza Haji Vs. State of Kerala, [(2006) 7 SCC 416 : AIR 2006 SC 3028]
Para 6: Meghmala Vs. G. Narasimha Reddy, (2010) 8 SCC 383
Para 6: Vizianagaram Social Welfare Residential School Society Vs. M. Tripura Sundari Devi, [(1990) 3 SCC 655 : 1990 SCC (L&S) 520 : (1990) 14 ATC 766]
Para 6: Union of India Vs. M. Bhaskaran, [1995 Supp (4) SCC 100 : 1996 SCC (L&S) 162 : (1996) 32 ATC 94]
Para 6: Kendriya Vidyalaya Sangathan Vs. Girdharilal Yadav, [(2004) 6 SCC 325 : 2005 SCC (L&S) 785]
Para 6: State of Maharashtra Vs. Ravi Prakash Babulalsing Parmar, [(2007) 1 SCC 80 : (2007) 1 SCC (L&S) 5]
Para 6: Himadri Chemicals Industries Ltd. Vs. Coal Tar Refining Co., [(2007) 8 SCC 110 : AIR 2007 SC 2798]
Para 6: Mohd. Ibrahim Vs. State of Bihar, [(2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929]
Para 6: Vimla (Dr.) Vs. Delhi Admn., [AIR 1963 SC 1572 : (1963) 2 Cri LJ 434]
Para 6: Indian Bank Vs. Satyam Fibres (India) (P) Ltd. [(1996) 5 SCC 550]
Para 6: State of A.P. Vs. T. Suryachandra Rao, [(2005) 6 SCC 149 : AIR 2005 SC 3110]
Para 6: K.D. Sharma Vs. SAIL, [(2008) 12 SCC 481]
Para 6: Central Bank of India Vs. Madhulika Guruprasad Dahir, [(2008) 13 SCC 170 : (2009) 1 SCC (L&S) 272]
Para 6: S.P. Chengalvaraya Naidu, [(1994) 1 SCC 1 : AIR 1994 SC 853]
Para 6: Gowrishankar Vs. Joshi Amba Shankar Family Trust, [(1996) 3 SCC 310 : AIR 1996 SC 2202]
Para 6: Ram Chandra Singh Vs. Savitri Devi, [(2003) 8 SCC 319]
Para 6: Roshan Deen Vs. Preeti Lal [(2002) 1 SCC 100 : 2002 SCC (L&S) 97 : AIR 2002 SC 33]
Para 6: Ram Preeti Yadav Vs. U.P. Board of High School & Intermediate Education, [(2003) 8 SCC 311 : AIR 2003 SC 4268]
Para 6: Ashok Leyland Ltd. Vs. State of T.N., [(2004) 3 SCC 1 : AIR 2004 SC 2836]
Para 6: Kinch Vs. Walcott [1929 AC 482 : 1929 All ER Rep 720 (PC)]
Para 7: Sheodan Singh Vs. Daryao Kunwar, (1966) 3 SCR 300 : AIR 1966 SC 1332
Para 7: State of U.P. Vs. Jagdish Sharan Agrawal, (2009) 1 SCC 689
Para 7: Ram Gobinda Dawan Vs. Bhaktabala, (1971) 1 SCC 387

JUDGEMENT

1. The present suit has been filed by the four sisters through their mother as the attorney being the legal heirs of deceased late Rajendra Vikram Singh against defendant No. 1 who is the son of the brother of the deceased Rajendra Vikram Singh.

2. The deceased Rajendra Vikram Singh left two properties, that is, Half portion of B-10, Westend Colony, New Delhi admeasuring about 400 sq. yards out of total plot size of approximately 800 sq. yards and Flat No. 510, Suryakiran Building, 19, Kasturba Gandhi Marg, New Delhi admeasuring 1105 sq. feet and died on 2nd January, 2011 survived by the four daughters as the mother of the plaintiffs and their father had divorced. The defendant No.1 claims his right on the properties on the basis of the Will dated 5th December, 2000.

3. After the pleadings were complete the following issues were settled:
“(i) Are the Plaintiffs entitled to be declared as owners of half portions of the property at B-10, West End, New Delhi as described in Schedule I to the plaint? (OPP)
(ii) Are the Plaintiffs entitled to preliminary decree of partition and thereafter the final decree of partition by metes and bounds as prayed for in respect of the property at B-10, West End, New Delhi? (OPP)
(iii) Are the Plaintiffs entitled to decree of permanent injunction in respect of the property at B-10, West End, New Delhi as prayed for? (OPP)
(iv) Are the Plaintiffs entitled to be declared as owners of the property No. 510, Suryakiran Building, Kasturba Gandhi Marg, New Delhi? (OPP)
(v) Are the Plaintiffs entitled to a decree for possession in respect of the property No. 510, Suryakiran Building, Kasturba Gandhi Marg, New Delhi? (OPP)
(vi) Are the Plaintiffs entitled for a decree of permanent injunction in respect of the property No. 510, Suryakiran Building, Kasturba Gandhi Marg, New Delhi and effect thereof? (OPP)
(vii) Is the Will dated 5th December 2000 propounded by Defendant No.1 genuine? (OPD-1)
(viii) In the event Defendant No.1 succeeds in Issue No. (vii), the effect thereof? (OPP)
(ix) Has the plaint been signed and verified by a duly authorised person? (OPD-1)
(x) Have the Plaintiffs concealed any material fact and document and the effect thereof? (OPD-1)
(xi) Whether the suit is hit by the provisions of Order XXIII Rule 1 CPC in view of earlier suit CS (OS) No. 1207 of 2001 having been dismissed? (OPD-1)
(xii) Is the suit hit by principles of res judicata? OPD-1
(xiii) Has the suit been properly valued for the purposes of court fee and jurisdiction? (OPD-1)
(xiv) Is the relief of declaration qua the property No. 510, Suryakiran Building, Kasturba Gandhi Marg, New Delhi barred by limitation? (OPD-1)

4. To prove its case, Plaintiffs sought to examine three witnesses Ms.Baljeet Dhillon (PW-1), the mother of the Plaintiffs who deposed as Power of Attorney holder of the Plaintiffs who are her four daughters. However, after PW-1 was examined, learned counsel for the Plaintiffs stated that he did not want to examine any further witnesses. Later on permission being granted, Plaintiff No.1 and Plaintiff No.2 stepped into the witness box and were examined as PW-2 and PW-3 respectively. Since the first two plaintiffs stepped into the witness box as PW-2 and PW-3, learned counsel for the Defendant gave up his objection on the basis of which issue No.(ix) was settled and the parties did not address arguments thereon. Learned counsel for the defendant No.1 also did not press issue No. (xi) in view of the finding of the Division Bench of this Court in the decision reported as (2013) 137 DRJ 290 Jaswinder Singh & Ors. Vs. Mrigendra Pritam Vikram Singh Steiner & Ors wherein the challenge of the defendant No.1 herein seeking rejection of the plaint on the issue raised was declined. Hence, this Court need not return any finding on the said issues. A perusal of the facts in the plaint and the written statement reveal that the main issue in the Suit is issue No.(vii) as to whether the Will dated 5th December, 2000 propounded by Defendant No.1 is genuine or not, onus whereof lies on Defendant No.1. Issues No.(i) to (vi) and (viii) are consequential to issue No.(vii). Hence, this Court proceeds to decide issue Nos.(vii) and (viii) in the first instance.

5. Issue No. (vii) : Is the Will dated 5th December 2000 propounded by Defendant No.1 genuine? (OPD-1)
Issue No. (viii) : In the event Defendant No.1 succeeds in Issue No.(vii), the effect thereof? (OPP)

5.1 To prove the Will, Defendant No.1 entered into the witness box and exhibited the original Will as Ex.DW1/B. Case of the Defendant No.1 in his written statement and evidence by way of affidavit is that Late Rajendra Vikram Singh was the elder brother of his father Late Jaswant Singh. Rajendra Vikram Singh moved to USA in late 1960s with his wife and daughters and executed a General Power of Attorney dated 29th March, 1974 in favour of Jaswant Singh following which all affairs pertaining to the estate of Rajendra Vikram Singh were maintained on his behalf entirely by Jaswant Singh. The said Power of Attorney was neither cancelled nor revoked during the lifetime of Rajendra Vikram Singh due to complete faith and trust he had in his brother Jaswant Singh and Defendant No.1. Rajendra Vikram Singh, though a US citizen, used to frequently visit India and used to stay with Defendant No.1 and his father when they would apprise him of the affairs of his properties as well as shares in his family estates. It is further deposed that the marriage between Rajendra Vikram Singh and Baljit Dhillon went through several rough patches as a result of which, Rajendra Vikram Singh and Baljeet Dhillon entered into a marital settlement agreement dated 26th September, 1972 and finally divorced in 1987. On 1st December, 2000, Rajendra Vikram Singh came to India and stayed with Defendant No.1 for approximately two weeks when he discussed his property related matter with his father and shared his intention of leaving his entire estate in India to Defendant No.1 as he shared a special father-son bond with him, Defendant No.1 being the only male heir in the family. It is further deposed that in fact Defendant No.1, i.e. Jaswinder Singh was named by his grandmother from the name of his uncle and father, i.e. Rajendra Vikram Singh and Jaswant Singh. On 5th December, 2000, Rajendra Vikram Singh executed his last and final Will in favour of Defendant No.1 in the presence of three witnesses, namely, Tejinder Pal Singh Mann, Suresh Pal and Puneet Sharma who all attested the same. Son of Tejinder Pal Singh Mann, i.e. Brijender Mann also accompanied him at the time when the Will was attested by his father. Rajendra Vikram Singh thereafter left to travel towards the countryside and while at Chak 41-RB Tehsil Padampur where he owned agricultural land, he passed away on 2nd January, 2001. On being informed, Defendant No.1, his wife and mother rushed to Padampur to organize the last rites of Rajendra Vikram Singh which were performed by Defendant No.1 by lighting the funeral pyre and Kripal Kriya. Ashes of Late Rajendra Vikram Singh were also personally immersed by Defendant No.1 in Harike Pattan in Punjab. After the death of Rajendra Vikram Singh, father of Defendant No.1 gave him the Will dated 5th December, 2000 executed in his favour whereby Late Rajendra Vikram Singh had bequeathed his entire moveable and immoveable properties in India to defendant No.1. On the basis of the Will, Defendant No.1 got mutated the two properties in India, i.e. property No. 510, Surya Kiran Building, K.G. Marg, New Delhi and half portion of B-10, Westend Colony, New Delhi besides two agricultural land at Pehowa in Dist. Kurukshetra, Haryana and at Padampur.

5.2 To prove the Will, Defendant No.1 also examined the two attesting witnesses Suresh Pal as DW-2 and Puneet Sharma as DW-4. Since Tejinder Pal Singh Mann had passed away, his son Brijender Mann, was cited as a witness but was not examined.

5.3 Objections of the Plaintiffs to the validity of the Will are that the Will was unnatural as the deceased Rajendra Vikram Singh shared a very good harmonious relationship with his four daughters, i.e. the Plaintiffs herein, on the last visit of the deceased to India plaintiff No.1 i.e. PW-2 and her family members were together with the deceased and the deceased died holding the hands of Plaintiff No.1, the witnesses to the Will cannot be believed as they are not natural witnesses and the language of the Will itself shows that Late Rajendra Vikram Singh was not the author thereof. It is thus claimed that the Will is a forged and fabricated document. Though in the pleadings it is enumerated as to how the Will is forged and fabricated, in the cross-examination of Defendant No.1, the Plaintiffs challenged the fabrication in the Will on the count that the same was typed on blank signed page available with Defendant No.1 which he had because of the trust exercised by Late Rajendra Vikram Singh in Defendant No.1 and his father.

5.4 To canvas the first objection that Rajendra Vikram Singh shared a very good and harmonious relationship with his four daughters hence, it was unnatural for him to not bequeath the property on the four daughters, learned counsel for the plaintiffs relies on the following circumstances:
i. It is unnatural for any human being to secretly make a Will depriving his four children totally and bequeath all properties worth several crores of rupees in favour of his nephew.
ii. Relationship between late Rajendra Vikram Singh and his family being cordial is evident from the fact that he last came to India on 1st December, 2000 and in a few days plaintiff No. 1 also arrived in India from USA on 16th December, 2000 along with her husband, three children and one friend of children Lukas. The daughters, that is, the plaintiffs are permanent resident of California, USA and were living in close vicinity of Rajendra Vikram Singh who received and entertained his daughter, son-in-law and grand children and also went with his son-in-law, grandson and son’s friend to Jim Corbett Park and thereafter joined his daughter and the remaining two grandsons on 21st December, 2000 at Shri Ganganagar whereafter all seven lived together till 2nd January, 2001 when he expired, it was thus unnatural for him to have not bequeathed the properties on his daughters. There is no allegation of bitterness in relations nor brought out in cross-examination of the plaintiffs between the deceased father and the daughters.

5.5 Challenging the attesting witnesses of the Will, learned counsel for the plaintiffs contends that both the attesting witnesses i.e. Puneet Sharma and Suresh Pal are rank outsiders. Admittedly, Puneet Sharma is very close to defendant No. 1 having lived with him in a boarding school together for six years. Puneet Sharma admitted having received precious gifts of properties from the mother of defendant No.1, soon after he became a party to the fabrication of the Will dated 5th December, 2000. No reason has been given why Puneet Sharma has been gifted agricultural properties in Rajasthan and Haryana by defendant No.1’s family. Suresh Pal was not a natural witness and was a Personal Assistant of Tejinder Pal Mann for twenty years and did not know Rajendra Vikram Singh independently. Suresh Pal is illiterate who could not read or understand English and it is highly unlikely that Rajendra Vikram Singh who was a scientist of great repute would choose an illiterate person to attest his Will.

5.6 Further there are contradictions in the testimony of the two attesting witnesses as Puneet Sharma stated that the Will was attested definitely not in the drawing room whereas Suresh Pal stated that it was attested in the drawing room. Puneet Sharma stated that Rajender Vikram Singh was wearing a jacket and trouser whereas Suresh Pal stated that he was wearing a coat and pant. In the affidavit of evidence both witnesses of the Will stated that Tejinder Pal Mann read over the Will whereas to the police they stated that Rajender Vikram Singh read over the Will before they signed it. Thirdly, learned counsel for the plaintiffs contends that the language used in the Will cannot be of a person like Rajendra Vikram Singh who was highly educated and a scientist at NASA, as it was written without punctuation marks and gaps.

5.7 Countering the contentions of learned counsel for the plaintiffs, learned counsel for the defendant on the first count submits that it is not the case of the defendant No. 1 that Rajendra Vikram Singh hated his daughters. The issue is not whether there were cordial relations between the father and the daughters but whether the plaintiffs had weak links with India and whether there was any justification qua disinheriting the plaintiffs to the property of Rajendra Vikram Singh in India and not in USA. Admittedly, no Will has been left by Rajendra Vikram Singh in respect of his properties in USA which have all been inherited by the plaintiffs. In respect of the Will dated 5th December, 2000 it is neither the case of the plaintiffs that the signature on the Will are not of Rajendra Vikram Singh nor that he was not in a sound disposing mind. Though this plea was sought to be set up in an earlier suit filed which was withdrawn, this plea has not been taken in the present suit. There is no pleading that Rajendra Vikram Singh at any point of time left blank signed documents with his brother. Even as per the case of the plaintiffs’ Power of Attorney had been executed by Rajendra Vikram Singh in favour of his elder brother Jaswant Singh, father of defendant No.1 and all properties including the purchase of property No. B-10, Westend and 510, Surya Kiran Building was done by Jaswant Singh as Power of Attorney holder of Rajendra Vikram Singh. All the accounts of Rajendra Vikram Singh were maintained by Jaswant Singh as his Power of Attorney Holder. Further even the accounts and shares held by the plaintiffs in India were taken care of by Jaswant Singh as a Power of Attorney Holder of the plaintiffs. Soon after the death of Rajendra Vikram Singh, Jaswant Singh gave all the shares and movable assets to the plaintiffs however, Rajendra Vikram Singh bequeathed the four immovable properties in India in favour of defendant No. 1 as the plaintiffs had weak links with India.

5.8 Admittedly, in the present suit there is no challenge to the bequeath of the immovable properties at Pehwa and Padampur and the prayer is only in respect of the two properties in Delhi, that is, Property No. 510, Surya Kiran Building, K.G. Marg and half portion of B-10, Westend Colony. Even as per the plaintiffs 509, Surya Kiran Building, K.G. Marg was owned by Jaswant Singh and half portion of B-10, Westend Colony was also owned by Jaswant Singh and the two properties have always been managed by the father of defendant No.1. Further admittedly separation had taken place between Rajendra Vikram Singh and his wife Smt. Baljeet Dhillon, attorney of four plaintiffs and Baljeet Dhillon was given a house for her residence as alimony. The weak links of the plaintiffs with India is evident from the fact that PW-2 and PW-3 both admitted that two of the plaintiffs never visited India. They did not even come to Court to depose in the present suit. Out of PW-2 and PW-3 who appeared, PW-3 had admittedly come to India once in the last ten years and PW-2 had come three-four times in the last ten years, whereas Rajendra Vikram Singh visited India atleast once if not twice or thrice in a year and whenever he came to India he stayed for two-three months. Further whenever Rajendra Vikram Singh came to India he was never accompanied by any of his daughters except that PW-2 visited India during the last visit of Rajendra Vikram Singh to India. Thus even if on an average Rajendra Vikram Singh visited India once or twice a year, he stayed in India approximately for a period of four to five months in India and every time with his brother and his family i.e. the defendant No.1.

5.9 The intention of Rajendra Vikram Singh is evident in so far all his properties in USA were inherited by his daughters in the absence of a Will and since they had no links with India he bequeathed the immovable properties in India to defendant No.1. The plaintiffs were aware that the two properties at Rajasthan and Haryana were under actual cultivation and on a question being put as to what utilization would they do on receiving the properties, it was stated that they would make it a farmhouse. Further B-10, Westend Colony is one single plot on which two units have been built up, half owned by Rajendra Vikram Singh and half by Jaswant Singh. Even the flats 509-510, Surya Kiran Building, 19, Kasturba Gandhi Marg, New Delhi bought by two brother were adjoining. The two properties at Delhi and even the agricultural lands at Haryana and Rajasthan were thus bought with the intention that for all times to come Jaswant Singh or his son defendant No.1 would take care of them. The fact that all assets of the plaintiffs were also looked after by Jaswant Singh as power of attorney holder is evident from the cross-examination of the PW-2 and PW-3 wherein they admitted that after the death of their father there was no dispute in respect of the shares and assets held by the plaintiffs or their father. In respect of the contention that the PW-2 along with the husband and children and a friend of her son were with Rajendra Vikram Singh on his last visit, the conduct of plaintiffs is required to be noted. The plaintiffs set up a Will dated 22nd December, 2000 and filed a probate petition however, the original Will was never filed and when it was required to be filed a plea was set up that the said Will had been lost. In the FIR registered against the plaintiffs and their mother, the version of PW-2 was that she accompanied her father to Jim Corbett Park which was found to be incorrect and thus she changed the version that she did not accompany her father to Jim Corbett Park.

5.10 Challenge to the testimonies of the attesting witness is also required to be rejected. Three witnesses had signed the Will as attesting witnesses however, since Tejinder Pal Mann died, he could not be examined. Tejinder Pal Mann was a Minister in the Haryana Government and a long standing friend of Rajendra Vikram Singh. Thus Tejinder Pal Mann attesting the Will of his friend is not unnatural. Suresh Pal was the Personal Assistant of Tejinder Pal Mann Singh for twenty years and thus was his confident and even if Rajendra Vikram singh was not too friendly with Suresh Pal, he being confident of Tejinder Pal Mann and accompanying him was a natural witness and cannot be rejected as an attesting witness merely on account that he is not highly educated. Further Puneet Sharma in his cross-examination stated that his father and Rajendra Vikram Singh were friends since they were residing in Chakrota and had a long standing relationship. Thus it was not merely that Puneet Sharma was a friend of defendant No. 1 but the family friendship continued from the earlier generation between Rajendra Vikram Singh and father of Puneet Sharma. Testimonies of these witnesses qua time, place, person executing, presence of each other, the Will being already signed by the testator wherafter he again signed in their presence and they all signed in the presence of each other are unshaken in cross-examination. The testimony of the two attesting witnesses cannot be thrown out merely on account that one witness said that the testator was wearing a suit and the other said that he was wearing a jacket and pant or that the Will was attested in the drawing room or in the living room. Further merely because the deceased executed the Will when defendant No.1 or his father were not at home nor did the deceased inform the defendant No.1 or his father about the execution of the Will, would not make the Will suspect.

5.11 As noted above the plaintiffs do not challenge the authenticity of the two signatures of Rajendra Vikram Singh on the Will nor do they challenge that he was not in a sound disposing mind to execute a Will or that he was under coercion. For the first time in the cross-examination of defendant No.1 suggestion has been given that the Will has been got typed on the blank signed pages of Rajendra Vikram Singh. The cordial relations between the two brothers, that is, Rajendra Vikram Singh and Jaswant Singh are admitted by the plaintiffs. Jaswant Singh was not only the Power of Attorney Holder of his brother Rajendra Vikram Singh but also of the four plaintiffs and dealt with all their assets as an attorney in India. Both sides contested as to who lit pyre or who immersed the ashes of late Rajendra Vikram Singh but admitted that when the last rites were performed both the plaintiff No.1 and defendant No. 1 were present together. Thus it is apparent that both participated in the last rites and for immersing the ashes.

5.12 It is also an admitted fact that Rajendra Vikram Singh left no Will for his properties in USA which have been inherited by the plaintiffs by way of intestate succession. The present suit further does not seek any relief in respect of two agricultural properties at Haryana and Rajasthan. Plaintiffs set up a purported Will of 22nd December, 2000 of their late father which original Will never saw the light of the day. In the light of these facts it is to be seen whether admittedly as a person with sound disposing mind Rajendra Vikram Singh could have bequeathed the property to defendant No.1. The reasons given by Rajendra Vikram Singh for bequeathing the four immovable properties on defendant No.1 in the Will dated 5th December, 2000 are:
i. Defendant No.1 has always treated and respected him like father.
ii. Rajendra Vikram Singh on his part has also love and affection towards him as he is the only male child between Rajendra Vikram Singh and his elder brother.
iii. His four daughters, that is, plaintiffs herein are all citizens of USA and have married foreigners of alien race and religion of non Indian origin.
iv. His four daughters have very weak links or ties with India.
v. Rajendra Vikram Singh has spent considerable amount of money on the marriages, education etc. of his daughters and has left for them considerable sizable assets, properties and cash in USA.

5.13 Learned counsel for plaintiffs has countered the intention in the Will only on the aspect that the four daughters have married foreigners of alien race and religion of non-Indian origin and that they have very weak links and ties in India. As noted above two of the plaintiffs have not even visited India for the last ten years. PW-3 visited only once in the last ten years and PW-2 visited only three-four times. Merely because PW-2 was present when Rajendra Vikram Singh died would not make her ties strong with India. It is the admitted case of the plaintiffs that even their bank accounts, shares, assets in India were also taken care of by the father of defendant No.1 as Power of Attorney and there was never any dispute during the lifetime of their father Rajendra Vikram Singh or even thereafter qua their accounts.

5.14 Contention of learned counsel for the plaintiff that Rajendra Vikram Singh was a person with modern outlook working as a scientist in NASA and he merrily and happily performed the marriage of his daughters to foreigners does not affect the intention of the deceased to bequeath the property in India in favour of his nephew defendant No.1 in view of the weak links of the plaintiffs to India and as Rajendra Vikram Singh had spent considerable amount on their education, marriage and had left sizable movable and immovable assets in USA in favour of the plaintiffs. This Court finds no merit in the challenge to the validity of the Will on the count that it is unnatural for a father who is too cordial with his daughters to bequeath the property in favour of his nephew when the relations of the deceased were cordial with his nephew as well.

5.15 The challenge of the plaintiff to the attesting witnesses on the count that they were rank outsiders also deserves to be rejected. Though Puneet Sharma admitted that he was a close friend of defendant No.1 but he also stated that the families were known to each other and that the deceased and his father were old friends. Further, Suresh Pal, who was one of the attesting witnesses of the Will was a natural witness being the Personal Assistant of Tejinder Pal Mann, who was a very good friend of the deceased and Suresh Pal had worked with Tejinder Pal Mann for around 20 years. Thus, the deceased knowing Suresh Pal was not unnatural. Being the Personal Assistant of a friend of the deceased it did not matter even if Suresh Pal could not read or understand English as it is not necessary for a well read person to get his Will attested from a person who is also equally well read, particularly when Tejinder Mann was also an attesting witness. Merely because gift deeds in respect of agricultural properties were made in the name of Puneet Sharma by the mother of defendant No.1 could not be a ground to discredit his testimony

5.16 The glaring contradictions sought to be brought in the testimonies of Puneet Sharma and Suresh Pal with regard to the place where the Will was attested and dress the deceased was wearing also deserve to be rejected. As regards place of execution of the Will, on a question put as to in which room did late Rajendra Vikram Singh called him and had a meeting with him, Puneet Sharma said that it was a room on the left side on entering the house and there was a sofa set and no dining table, but there was a small table. As regards his dress, Puneet Sharma stated that the deceased was wearing a jacket and trouser, however, he did not recollect the colour. Whereas Suresh Pal stated that on 5th December, 2000 he, Brijender Mann and Tejinder Pal Mann were together at Vasant Kunj when a telephone call was received by Tejinder Pal Mann from Rajendra Vikram Singh to come to his house and they all went to his house. He further stated in cross-examination that he did not see the entire house and had gone to 2-3 rooms as well as office with Tejinder Pal Mann. He again clarified that when the Will was executed, five persons were present i.e. Rajendra Vikram Singh, Tejinder Pal Mann himself, Suresh Pal, Puneet Sharma and Brijender Mann. Suresh Pal even in his cross-examination stated that when he entered the house, on the left side, there was a room with an attached bathroom with three sofas and there was a table in the centre. Late Rajendra Vikram Singh was wearing a suit meaning thereby a coat and a pant. It is thus apparent whether that place is called a drawing room or living room both the witnesses have consistently stated that the room was on the left with sofas and a table therein. Further, both described that he was wearing a suit though one stated that he was wearing a jacket and one said it was a coat. This cannot be a material contradiction in the two statements warranting impeachment of their testimonies. Both the witnesses have been confronted with their statements made to the police regarding who read over the Will, however, the same is again not a material contradiction. Thus, this Court finds no ground to reject the validity of the Will on the purported contradictions or the credibility of the attesting witnesses.

5.17 Learned counsel for the plaintiff has also challenged the validity of the Will on the ground that the language used in the Will cannot be of the deceased who was a highly literate person.

5.18 The Will of the deceased dated 5th December, 2000 reads as under:
“Today on 5th December, 2000, I, Rajendra Vikram Singh son of Harnam Singh aged over 71 years, and residing in India at B-10, West End New Delhi and permanent resident of 3611 Lupine Avenue, Palo Alto California USA, do hereby make and declare this as my last Will and testament with sound mind and in full senses, whereby I bequeath and give to my nephew Jaswinder Singh son of Lt. Col. Jaswant Singh all my movable and immovable properties which may be possessed or entitled at the time of my death. I am writing this Will to avoid unnecessary litigation after my death about my property. My nephew Jaswinder Singh has always treated and respected me like a father. I, too, on my part, have love and affection towards him as he is the only male child between my elder brother and me. This last Will of mine cancels, and supercedes any and all earlier Wills pertaining to the properties situated in India.
I hereby appoint and constitute my nephew Jaswinder Singh as the executor of the Will. After my demise he shall immediately take charge of my movable and immovable properties and assets in India. I have four immovable properties in India, i.e. (i) Share in house B-10 West End New Delhi (ii) Agriculture land about 20 acres situated in village Diwana Tehsil Pehowa, District Kurukshetra (Haryana) (iii) Plots and agriculture land about 24 acres situated in village Chak(s) 40 RB and 41 RB Tehsil Padampur, District Sri Ganga Nagar (Rajasthan) (iv) Flat 510 Surya Kiran Building Kasturba Gandhi Marg New Delhi. Apart from these properties I also have movable properties and assets in India including accounts in various Banks.
I have four daughters namely Mrigendra (Mabette), Mayurendra (Mayur), Maganendra (Magan) and Milanendra (Milan). They are all citizens of USA. They have all married foreigners of ‘Alien Races and Religions’ of Non-Indian origin. They have very weak link or ties with India. I have spent considerable amount of money on their marriages, education etc. and have left for them considerable and sizeable assets and properties and cash in USA. All my daughters therefore, shall have no right or concern with my properties in India after my death. My divorced wife Baljit also has no legal or moral interest or share in any of my properties in India.
This will of mine includes all my movable & immovable properties including my unpartitioned and unspecified and undeclared interest in any and all properties existing individually or in joint ownership with my brother Lt. Col. Jaswant Singh or any one else in India.”

5.19 The language in the Will is not of an illiterate person. Merely because punctuation such as comas have not been used cannot be a ground to come to the conclusion that the Will is forged and fabricated, particularly when the signatures of the deceased are not disputed and no evidence has been led by the plaintiffs to prove that blank signed documents were left by the deceased with the defendant No.1 or his father and power of attorney executed in favour of the father of defendant No.1 by the deceased is not disputed.

5.20 In view of the discussion aforesaid, Issue No. (vii) and (viii) are decided in favour of defendant No.1 and against the plaintiffs. Will dated 5th December, 2000 propounded by defendant No.1 is a genuine Will and thus the plaintiffs are not entitled to claim the reliefs as claimed in the suit due to the Will dated 5th December, 2000 executed by the deceased in favour of defendant No.1.

6. Issue No.(x) Have the Plaintiffs concealed any material fact and document and the effect thereof? (OPD-1).

6.1 According to the defendant No.1 the plaintiff filed a suit with a purported Will of the deceased dated 22nd December, 2000 stating that the same was discovered in early May 2001 at the house of the maternal grandmother of the plaintiffs at Chak 5-A, Sri Ganganagar. Based on the said discovery of the Will a legal notice dated 28th May, 2001 was sent to defendant No.1. However, there was no mention of the Will dated 22nd December, 2000 in the contents of the notice. Further, against the order of mutation passed in favour of defendant No.1 qua the two suit properties i.e. Flat No.510, Surya Kiran Building, Kasturba Gandhi Marg, New Delhi and B-10, West End, New Delhi the plaintiffs preferred an appeal which was dismissed. The plaintiffs also preferred a suit. The plaintiffs also filed a Probate Petition based on the alleged Will dated 22nd December, 2000 wherein the District Judge vide order dated 23rd April, 2003 impleaded defendant No.1. The said Probate Petition was dismissed for non-prosecution on 21st May, 2003. An appeal was filed before the Punjab & Haryana High Court wherein vide order dated 8th April, 2004 in FAO No.4073/2003 the Probate Petition was restored to its original position. However, vide order dated 19th May, 2004, the Probate Petition was again dismissed for non-prosecution.

6.2 It is the case of defendant No.1 that the plaintiffs further concealed that the power of attorney holder of the plaintiffs i.e. their mother had entered into settlement with her late husband. Further, the power of attorney holder also concealed a declaration before the appropriate authority in California that the deceased had become violent towards his daughter Mayurendra Pritam Vikram Singh Bangh i.e. plaintiff No.2 herein.

6.3 No doubt the plaintiffs have made material concealments. The Will dated 22nd December, 2000 was propounded by them. However, when the Will was sought to be produced in the Court contrary pleas were taken. In the Court plea taken was that the same has been lost on 31st January 2002 for which complaint was lodged, whereas to the Police it was stated that the Will was with the daughter in USA. Further the Probate Petition filed by the plaintiffs was dismissed for non-prosecution.

6.4 Supreme Court in the decision reported as (2012) 11 SCC 574 Badami v. Bhali while dealing with concealment of material facts in a suit noted as under:
“29. Presently, we shall refer as to how this Court has dealt with concept of fraud. In S.B. Noronah v. Prem Kumari Khanna [(1980) 1 SCC 52 : AIR 1980 SC 193] while dealing with the concept of estoppel and fraud a two-Judge Bench has stated that: (SCC p. 58, para 20)
“20. It is an old maxim that estoppels are odious, although considerable inroad into this maxim has been made by modern law. Even so, ‘a judgment obtained by fraud or collusion, even, it seems, a judgment of the House of Lords, may be treated as a nullity’. (See Halsbury's Laws of England, Vol. 16, 4th Edn., para 1553.) The point is that the sanction granted under Section 21, if it has been procured by fraud or collusion, cannot withstand invalidity because, otherwise, high public policy will be given as hostage to successful collusion.”
30. In S.P. Chengalvaraya Naidu v. Jagannath [(1994) 1 SCC 1] this Court commenced the verdict with the following words: (SCC p. 2, para 1)
“1. ‘Fraud avoids all judicial acts, ecclesiastical or temporal’ observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eye of the law. Such a judgment/decree—by the first court or by the highest court—has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.”
In the said case it was clearly stated that the courts of law are meant for imparting justice between the parties and one who comes to the court, must come with clean hands.
31. A person whose case is based on falsehood has no right to approach the court. A litigant who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If a vital document is withheld in order to gain advantage on the other side he would be guilty of playing fraud on court as well as on the opposite party.
32. In Shrisht Dhawan v. Shaw Bros. [(1992) 1 SCC 534 : AIR 1992 SC 1555] it has been opined that the fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It has been defined as an act of trickery or deceit. The aforesaid principle has been reiterated in Roshan Deen v. Preeti Lal [(2002) 1 SCC 100 : 2002 SCC (L&S) 97 : AIR 2002 SC 33] , Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education [(2003) 8 SCC 311] and Ram Chandra Singh v. Savitri Devi [(2003) 8 SCC 319] .
33. In State of A.P. v. T. Suryachandra Rao [(2005) 6 SCC 149] after referring to the earlier decision this Court observed as follows: (SCC p. 155, para 16)
“16. In Lazarus Estates Ltd. v. Beasley [(1956) 1 QB 702 : (1956) 2 WLR 502 : (1956) 1 All ER 341] Lord Denning observed at QB p. 712:
‘… No judgment of a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.’
In the same judgment Lord Parker, L.J. observed that fraud ‘vitiates all transactions known to the law of however high a degree of solemnity’ (Lazarus case [(1956) 1 QB 702 : (1956) 2 WLR 502 : (1956) 1 All ER 341] , QB p. 722).”
34. Yet in another decision Hamza Haji v. State of Kerala [(2006) 7 SCC 416 : AIR 2006 SC 3028] it has been held that no court will allow itself to be used as an instrument of fraud and no court, by way of rule of evidence and procedure, can allow its eyes to be closed to the fact it is being used as an instrument of fraud. The basic principle is that a party who secures the judgment by taking recourse to fraud should not be enabled to enjoy the fruits thereof.”

6.5 Supreme Court in the decision reported as (2010) 8 SCC 383 Meghmala v. G. Narasimha Reddy observed as under:
“32. The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud. (See Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi [(1990) 3 SCC 655 : 1990 SCC (L&S) 520 : (1990) 14 ATC 766] , Union of India v. M. Bhaskaran [1995 Supp (4) SCC 100 : 1996 SCC (L&S) 162 : (1996) 32 ATC 94] , Kendriya Vidyalaya Sangathan v. Girdharilal Yadav [(2004) 6 SCC 325 : 2005 SCC (L&S) 785] , State of Maharashtra v. Ravi Prakash Babulalsing Parmar [(2007) 1 SCC 80 : (2007) 1 SCC (L&S) 5] , Himadri Chemicals Industries Ltd. v. Coal Tar Refining Co. [(2007) 8 SCC 110 : AIR 2007 SC 2798] and Mohd. Ibrahim v. State of Bihar [(2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929] .)
33. Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceedings of courts of justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. The expression “fraud” involves two elements, deceit and injury to the person deceived. It is a cheating intended to get an advantage. [Vide Vimla (Dr.) v. Delhi Admn. [AIR 1963 SC 1572 : (1963) 2 Cri LJ 434] , Indian Bank v. Satyam Fibres (India) (P) Ltd. [(1996) 5 SCC 550] , State of A.P. v. T. Suryachandra Rao [(2005) 6 SCC 149 : AIR 2005 SC 3110] , K.D. Sharma v. SAIL [(2008) 12 SCC 481] and Central Bank of India v. Madhulika Guruprasad Dahir [(2008) 13 SCC 170 : (2009) 1 SCC (L&S) 272] .]
34. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. Suppression of a material document would also amount to a fraud on the court. (Vide S.P. Chengalvaraya Naidu [(1994) 1 SCC 1 : AIR 1994 SC 853] , Gowrishankar v. Joshi Amba Shankar Family Trust [(1996) 3 SCC 310 : AIR 1996 SC 2202] , Ram Chandra Singh v. Savitri Devi [(2003) 8 SCC 319] , Roshan Deen v. Preeti Lal [(2002) 1 SCC 100 : 2002 SCC (L&S) 97 : AIR 2002 SC 33] , Ram Preeti Yadav v. U.P. Board of High School & Intermediate Education [(2003) 8 SCC 311 : AIR 2003 SC 4268] and Ashok Leyland Ltd. v. State of T.N. [(2004) 3 SCC 1 : AIR 2004 SC 2836] )
35. In Kinch v. Walcott [1929 AC 482 : 1929 All ER Rep 720 (PC)] it has been held that:
“… mere constructive fraud is not, at all events after long delay, sufficient but such a judgment will not be set aside upon mere proof that the judgment was obtained by perjury”.
Thus, detection/discovery of constructive fraud at a much belated stage may not be sufficient to set aside the judgment procured by perjury.
36. From the above, it is evident that even in judicial proceedings, once a fraud is proved, all advantages gained by playing fraud can be taken away. In such an eventuality the questions of non-executing of the statutory remedies or statutory bars like doctrine of res judicata are not attracted. Suppression of any material fact/document amounts to a fraud on the court. Every court has an inherent power to recall its own order obtained by fraud as the order so obtained is non est.”

6.6 From the evidence led by the defendant No.1 it is proved that the plaintiffs first sought inheritance of the properties based on a purported Will dated 22nd December, 2000 which never saw the light of the day in judicial/ quasi-judicial proceedings and failing in the said attempt filed the present suit concealing about dismissal of the suit and other proceedings. Thus issue No. (x) is also decided against the plaintiffs and in favour of defendant No.1.

7. Issue No.(xii) Is the suit hit by principles of res judicata? (OPD-1)

7.1 Contention of learned counsel for the defendant No.1 is that earlier suit of the plaintiffs i.e. CS(OS) 1207/2001 having been dismissed the present suit is barred by the principles of res judicata.

7.2 Supreme Court in the decision reported as (1966) 3 SCR 300 : AIR 1966 SC 1332 Sheodan Singh v. Daryao Kunwar noted as under:
“Re (iv).
14. This brings us to the main point that has been urged in these appeals, namely, that the High Court had not heard and finally decided the appeals arising out of Suits Nos. 77 and 91. One of the appeals was dismissed on the ground that it was filed beyond the period of limitation while the other appeal was dismissed on the ground that the appellant therein had not taken steps to print the records. It is therefore urged that the two appeals arising out of Suits Nos. 77 and 91 had not been heard and finally decided by the High Court, and so the condition that the former suit must have been heard and finally decided was not satisfied in the present case. Reliance in this connection is placed on the well-settled principle that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial court for want of jurisdiction, or for default of plaintiff's appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision not being on the merits would not be res judicata in a subsequent suit. But none of these considerations apply in the present case, for the Additional Civil Judge decided all the four suits on the merits and decided the issue as to title on merits against the appellant and his father. It is true that the High Court dismissed the appeals arising out of Suits Nos. 77 and 91 either on the ground that it was barred by limitation or on the ground that steps had not been taken for printing the records. Even so the fact remains that the result of the dismissal of the two appeals arising from Suits Nos. 77 and 91 by the High Court on these grounds was that the decrees of the Additional Civil Judge who decided the issue as to title on merits stood confirmed by the order of the High Court. In such a case, even though the order of the High Court may itself not be on the merit the result of the High Court's decision is to confirm the decision on the issue of title which had been given on the merits by the Additional Civil Judge and thus in effect the High Court confirmed the decree of the trial court on the merits, whatever may be the reason for the dismissal of the appeals arising from Suits Nos. 77 and 91. In these circumstances though the order of the High Court itself may not be on the merits, the decision of the High Court dismissing the appeals arising out of Suits Nos. 77 and 91 was to uphold the decision on the merits as to issue of title and therefore it must be held that by dismissing the appeals arising out of Suits Nos. 77 and 91 the High Court heard and finally decided the matter for it confirmed the judgment of the trial court on the issue of title arising between the parties and the decision of the trial court being on the merits the High Court's decision confirming that decision must also be deemed to be on the merits. To hold otherwise would make res judicata impossible in cases where the trial court decides the matter on merits but the appeal court dismisses the appeal on some preliminary ground thus confirming the decision of the trial court on the merits. It is well settled that where a decree on the merits is appealed from, the decision of the trial court loses its character of finality and what was once res judicata again becomes res sub-judice and it is the decree of the appeal court which will then be res judicata. But if the contention of the appellant were to be accepted and it is held that if the appeal court dismisses the appeal on any preliminary ground, like limitation or default in printing, thus confirming toto the trial court's decision given on merits, the appeal court's decree cannot be res judicata, the result would be that even though the decision of the trial court given on the merits is confirmed by the dismissal of the appeal on a preliminary ground there can never be res judicata. We cannot therefore accept the contention that even though the trial court may have decided the matter on the merits there can be no res judicata if the appeal court dismisses the appeal on a preliminary ground without going into the merits, even though the result of the dismissal of the appeal by the appeal court is confirmation of the decision of the trial court given on the merits. Acceptance of such a proposition will mean that all that the losing party has to do to destroy the effect of a decision given by the trial court on the merits is to file an appeal and let that appeal be dismissed on some preliminary ground, with the result that the decision given on the merits also becomes useless as between the parties. We are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal.
(emphasis supplied)”

7.3 Apex Court in the decision reported as (2009) 1 SCC 689 State of U.P. v. Jagdish Sharan Agrawal while placing reliance on its earlier decision reported as (1971) 1 SCC 387 Ram Gobinda Dawan v. Bhaktabala held that dismissal of suit for non prosecution was not a decision on merit, thus, res judicata would not apply. It was observed as under:
“14. In the present case, the suit filed by Nagar Palika was dismissed on technical ground and in any case the State was not a party. So far the suit where the State was a party and amendments were made, the same was dismissed for non-prosecution. But the same was not dismissed under Order 9 Rule 8. Order 9 Rule 8 and Order 9 Rule 9 CPC read as follows:
“8. Procedure where defendant only appears.—Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.
9. Decree against plaintiff by default bars fresh suit.—(1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.”
Therefore, Order 9 Rule 9 cannot be said to be applicable. The dismissal of the suit for non-prosecution was not a decision on merit. Consequently, the said order cannot operate as res judicata.”

7.4 As noted above, the previous suit of the plaintiffs was dismissed for want of requisite Court fees and for non-prosecution. In view of the decisions of the Supreme Court noted hereinabove the present suit cannot be dismissed being barred by res-judicata. Thus issue No. (xii) is decided in favour of the plaintiffs and against the defendant No.1.

8. Issue No.(xiii) Has the suit been properly valued for the purposes of court fee and jurisdiction? (OPD-1)

8.1 Claim of defendant No.1 in the written statement is that the plaint is liable to be rejected on the ground that the plaintiffs have undervalued the suit on the basis of valuation of circle rate given by the Govt. of NCT of Delhi as ₹43,000/- per sq. mtr. However, it is the claim of the defendant No.1 that the prevalent rate of West End properties is ₹5,00,000/- per sq.mtr.

8.2 Though claimed, however no evidence has been led by defendant No.1 on this count, thus this issue is decided against defendant No.1.

9. Issue No.(xiv) Is the relief of declaration qua the property No. 510, Suryakiran Building, Kasturba Gandhi Marg, New Delhi barred by limitation? (OPD-1)

9.1 Claim of defendant No.1 in the written statement is that the defendant No.1 in the written statement filed in the earlier suit being CS(OS) No.1207/2001, specifically contended that Surya Kiran Building flat stood transferred in his name, hence the present suit for the relief of declaration of ownership of the flat vesting in the plaintiffs is beyond the period of limitation.

9.2 The present suit was instituted on 21st May, 2009. It is not denied by the plaintiffs that in the earlier suit written statement of the defendant No.1 informed about the transfer of ownership of the property No. 510, Suryakiran Building, Kasturba Gandhi Marg, New Delhi in his favour. Thus the period of limitation as contemplated to start from the date of knowledge would be the date of filing the written statement. Thus the present suit seeking the relief of declaration of ownership of the flat No. 510, Suryakiran Building, Kasturba Gandhi Marg, New Delhi is beyond the period of limitation.

9.3 Thus issue No. (xiv) is also decided against the plaintiffs and in favour of defendant No.1.

10. Issue No.(i) Are the Plaintiffs entitled to be declared as owners of half portions of the property at B-10, West End, New Delhi as described in Schedule I to the plaint? (OPP)
Issue No.(ii) Are the Plaintiffs entitled to preliminary decree of partition and thereafter the final decree of partition by metes and bounds as prayed for in respect of the property at B-10, West End, New Delhi? (OPP)
Issue No.(iii) Are the Plaintiffs entitled to decree of permanent injunction in respect of the property at B-10, West End, New Delhi as prayed for? (OPP)
Issue No.(iv) Are the Plaintiffs entitled to be declared as owners of the property No. 510, Suryakiran Building, Kasturba Gandhi Marg, New Delhi? (OPP)
Issue No.(v) Are the Plaintiffs entitled to a decree for possession in respect of the property No. 510, Suryakiran Building, Kasturba Gandhi Marg, New Delhi? (OPP)
Issue No. (vi) Are the Plaintiffs entitled for a decree of permanent injunction in respect of the property No. 510, Suryakiran Building, Kasturba Gandhi Marg, New Delhi and effect thereof? (OPP)

10.1 Having held that the Will propounded by defendant No.1 of late Rajendra Vikram Singh is a valid Will and that the relief of declaration sought in respect of property No.501, Surya Kiran Building, 19, Kasturba Gandhi Marg, New Delhi being beyond the period of limitation, Issues No.(i), (ii), (iii), (iv), (v) & (vi) are decided against the plaintiffs and in favour of the defendant No.1.

11. In view of the findings noted above, the suit is dismissed.

12. No costs.