Delhi District Court
Kailash Rani (Since Deceased) vs Mohan Bir Singh on 15 January, 2020
Kailash Rani V. Mohan Bir Singh & Anr.
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
RCA NO.: 07/2019
UNIQUE CASE ID NO.: 08/2018
IN THE MATTER OF :
Kailash Rani (Since Deceased)
Through her LRs
i) Shagun Kumar
S/o Kasturi Lal and
Late Smt. Kailash Rani
R/o D11/279, Sector7,
Rohini, Delhi110085.
ii) Harmandeep Singh
S/o Late Jasbir Singh and
Grandson of Late Kasturi Lal and
Smt. Kailash Rani,
R/o G55, Sant Nagar,
Tilak Nagar,
New Delhi110018. ...Plaintiffs/Appellants
Versus
1. Mohan Bir Singh
RCA No. 07/2019 Page 1 of 27
Kailash Rani V. Mohan Bir Singh & Anr.
S/o S. Gurbax Singh
R/o. D14A/ 29, Model Town,
Delhi110009
2. Smt. Arvinder Kaur
W/o Sh. Mohan Bir Singh
R/o D14A/ 29, Model Town,
Delhi110009. ...Defendants/Respondents
APPEAL AGAINST THE JUDGMENT DATED 15/10/2016 PASSED BY THE THEN LD. CIVIL JUDGE DELHI IN SUIT NO. 257/06 TITLED AS KAILASH RANI VS. MOHAN BIR SINGH AND ANR.
Date of institution of the Appeal : 05.01.2018 Date on which Judgment was reserved : 23.11.2019 Date of Judgment : 15.01.2020 :: J U D G M E N T ::
1. The Appellant Smt. Kailash Rani (now represented through LR's) was plaintiff and the respondents were defendants. The appellant and respondents are respectively referred in this Judgment according to the original status before the Ld. Trial Court. The Appellant is dissatisfied with the Judgment and Decree dated 15/10/2016 passed by the Ld. Trial Court. The Ld. Trial Court has dismissed the suit of plaintiff.
RCA No. 07/2019 Page 2 of 27Kailash Rani V. Mohan Bir Singh & Anr.
2. Succinctly, the plaintiff/appellant had filed a Suit for declaration, cancellation of documents and permanent injunction against defendants/respondents interalia on the following facts that: (A) The plaintiff is a widow lady and her husband died in the year 1981 leaving behind plaintiff and her two sons namely Jasbir and Shaughan Kumar. The husband of plaintiff owned property no. 1064, Naiwala, Karol Bagh, New Delhi (hereinafter referred to a suit property), which is a three storeyed building.
(B) There is a shop on the ground floor and two floors above it for residential use. After the death of husband of plaintiff, the younger son of plaintiff relinquished his right, title and interest in favour of plaintiff by executing relinquishment deed in plaintiff's favour and registered in the office of Registrar, Asaf Ali Road, New Delhi. (C) In 1990, plaintiff was in dire need of money. The plaintiff sold the 1st and 2nd floors without roof rights of the suit property to defendant no. 1 in the month of August, 1990 for a sum of Rs. 40,000/ and the shop on the ground floor was not sold by plaintiff. The shop on the ground floor was in the tenancy of a person who was originally defendant no. 2 when the suit was filed but who was later on deleted from the array of parties. An eviction petition was also filed by plaintiff which was RCA No. 07/2019 Page 3 of 27 Kailash Rani V. Mohan Bir Singh & Anr.
dismissed by the court of Additional Rent Controller, Delhi on 02.12.1996 on the technical plea that the property is situated in slum areas and prior permission of the competent authority was not obtained before instituting the eviction petition.
(D) After dismissal of the eviction petition, the plaintiff has been going to her tenant of ground floor shop asking him to pay the rent where he insisted on obtaining rent receipts not only in his favour but also in favour of his father, his wife and his brother. Again on 21.11.1999 when plaintiff once again, went him to realize the rent due to her, when his father told the plaintiff that plaintiff has lost the right to claim ownership of the shop as the same was sold by her to defendant no. 1. It is alleged by plaintiff that defendant no. 1 threatened to kill the plaintiff if she questioned his right in the shop situated on the ground floor of the suit property. The plaintiff has lodged a complaint in P.S. Karol Bagh, New Delhi in this regard.
(E) The plaintiff has sent a legal notice dated 29.11.1999 through her lawyer to defendant no. 1 and copy of this notice was also sent to the tenant. The plaintiff and her son Jasbir Singh @ Adarsh Kumar never executed and signed the registered GPA dated 30.08.1990 registered at Budana, UP, registered Wills dated 30.08.1990 RCA No. 07/2019 Page 4 of 27 Kailash Rani V. Mohan Bir Singh & Anr.
registered at the office of SubRegistrar, Delhi, the receipt dated 30.08.1990 registered at the office of Sub Registrar Delhi and the sale deed registered at the office of SubRegistrar, Delhi on 04.10.1999 on the basis of which, the defendants are claiming their ownership over the suit property. It is the case of plaintiff that she has only sold 1st & 2nd floor without roof rights of the said property to defendant no. 3 and she is the owner of the ground floor and the roof rights of the second floor.
3. Upon receipt of plaint, the defendant no. 1 has filed the written statement and denied all the facts alleged by plaintiff in her plaint. The defendant no. 1 alleged that the suit property was purchased by Smt. Arvinder Kaur on 30.08.1990 for a total sale consideration amount of Rs. 40,000/ and plaintiff was coowner of the suit property along with Sh. Jasbir Singh, who has executed a registered Power of Attorney in favour of defendant no. 1. He further alleged that the suit property was originally owned by Sh. Sugun Kumar, Smt. Kailash Rani and Sh. Jasbir Singh. Sh. Sugun Kumar relinquished his share in the aforesaid property vide a registered Relinquishment deed dated 27.02.1990 in favour of plaintiff and Sh. Jasbir Singh. It is further stated by defendant no. 1 Sh. Jasbir Singh that plaintiff has executed a power of attorney in favour of defendant no.1, on the basis of which a registered sale deed dated 04.10.1999 was executed RCA No. 07/2019 Page 5 of 27 Kailash Rani V. Mohan Bir Singh & Anr.
by defendant no. 1 in favour of Smt. Arvinder Kaur. It is the case of defendants that by virtue of this sale deed defendant no. 1 is now the owner of the whole suit property.
4. On the basis of pleadings of parties, following issues were framed by the Ld. Trial Court vide order dated 19.01.2010: ISSUES (1) Whether on the basis of plaint allegations plaintiff is entitled for a decree of declaration as prayed for? OPP (2) Whether on the basis of the plaint allegations plaintiff is entitled for a decree of injunction as prayed for? OPP (3) Whether on the basis of the plaint allegations plaintiff is entitled for a decree of cancellation as prayed for? OPP (4) Whether the present suit regarding cancellation is time barred? OPD (5) Whether the plaintiff has no locus standi to file the present suit? OPD (6) Whether the suit is bad for misjoinder and non joinder of necessary parties? OPD (7) Any other relief which the plaintiff may be entitled for? OPP RCA No. 07/2019 Page 6 of 27 Kailash Rani V. Mohan Bir Singh & Anr.
5. The Ld. Trial Court has passed the impugned Judgment and decree dated 15/10/2016, whereby the suit of plaintiff was dismissed. The appellant/plaintiff aggrieved from the Judgment and decree passed by the Ld. Trial Court has sought to set aside Judgment and decree dated 15/10/2016 and praying to set aside the judgment and decree dated 15.10.2016 and to decree the suit interalia on the following grounds : (A) Because the Ld. Trial Court failed to appreciate that the GPA dated 30.08.1990 was executed at Budana U.P. and Will, receipt dated 30.08.1990 was executed in New Delhi which under normal circumstances is improbable. (B) Because the Ld. Trial Court failed to appreciate that in his evidence by PW2, it has clearly come out that the signatures & thumb impression on the GPA dated 30.8.1990 executed at Budana do not match with the signature and thumb impression of PW1.
(C) Because the Ld. Trial Court failed to appreciate that the tenant on the ground floor paid rent of the shop at the ground floor to the appellant till 1996 to which no objection was taken by the respondents.
6. In the aforesaid background, the following points for determination arise for the consideration of the present case:
i) Can the order under question be termed as perverse, capricious and arbitrary?
RCA No. 07/2019 Page 7 of 27Kailash Rani V. Mohan Bir Singh & Anr.
ii) Does the impugned order run against the legal framework operating in and principles enunciated in this sphere?
iii) Does determination of point for determination no.1 or 2 warrants any indulgence or interference of the present Court with the order appealed against?
iv) What order?
FINDINGS AND CONCLUSIONS OF THE COURT The entire controversy basically revolves around issue no.1 and issues no.2 & 3, which are aftermath of issue no.1. The Ld. Trial Court has dealt with the issue no.1 in detail and paras no.13 to 22 of the said findings are reproduced herein: "13. Plaintiff has admitted that in the year 1990 she was in the dire need of money and she sold the first and second floors of the suit property without roof rights.
The case of the defendant is that the plaintiff has sold the entire suit property to them. In the year 1990, plaintiff has sold the suit property to the defendant no. 2 who is the wife of the defendant no. 1 for a consideration of Rs. 40,000/ it was done on 30.08.1990. Further the plaintiff has made the defendant no. 1 Mohan Bir Singh her attorney for the purpose of certain acts, the authority to execute the sale deed being one of them in view of clause 5 of GPA Ex.PW1/D2. Defendants says that the defendant no. 1 being empowered by this power of attorney, completed the sale of a suit property in favour of the defendant no. 2 by executing a sale deed Ex.DW1/P3 on 14.10.1999. After the execution of sale deed defendant no.
RCA No. 07/2019 Page 8 of 27Kailash Rani V. Mohan Bir Singh & Anr.
2 Smt. Arvinder Kaur became the owner of the complete suit property. The property mentioned in the sale deed is the complete suit property including the ground floor shop and roof rights.
14. This sale deed was executed by the defendant no. 1 in favour of the defendant no. 2 on the basis of GPA Ex.PW1/D2 which also gives the authority to the defendant no. 1 to sale the entire suit property including ground floor shop. The GPA and sale deed both are registered document. The GPA was registered at Budhana, Uttar Pradesh, whereas the sale deed was registered with the SubRegistrar, Delhi. On the date of execution of GPA, a receipt dated 30.08.1990 was also got registered which is Ex.PW1/4 showing a consideration of Rs. 40,000/ was also executed. This consideration amount of Rs. 40,000/ is otherwise not in dispute. On the same day, two registered Wills were also executed by the plaintiff and his elder son bequeathing the entire suit property in favour of the defendant no. 2. According to the defendants these are contemporaneous documents and reflects the intention of the plaintiff and her son to dispose the whole suit property. Prima Facie the documents, most prominently the sale deed and GPA proves that the defendant no. 2 is the owner of whole suit property and when the defendant no. 2 is the owner of the suit property consequent upon plaintiff and her sons transfer of their interest in it, the plaintiff cannot claim a relief of declaration that she still is the owner of portion of suit property i.e. shop on the ground floor. If the plaintiff has to succeed she has to plead and prove that she has actually not transferred the ground floor of the suit property and the documents in favour of the defendants like GPA RCA No. 07/2019 Page 9 of 27 Kailash Rani V. Mohan Bir Singh & Anr.
and sale deed etc. are forged and fabricated document with which the plaintiff has nothing to do as she has not executed the same.
15. It is pertinent to mention here the plaintiff in her plaint pleaded that she and her sons never executed the GPA and the sale deed or the Wills or the receipt and these are fabricated by the defendants. The onus to prove of this fact was on the plaintiff. She has examined herself as a witness and she has also examined a witness namely Syed Sarfarz Ahmed to prove that the documents stated above i.e. GPA, Wills and the receipt do not bear her signatures.
16. The question here is whether the testimony of the witnesses of the plaintiff i.e. plaintiff herself and her scientific expert possesses such probative force so as to believe what she is saying. In evidence, the plaintiff has reiterated whatever she said in the plaint. The plaintiff in her cross examination has admitted that while selling the suit property to the defendants she went to the office of SubRegistrar, Kashmere Gate Delhi. She also admitted appearing before the SubRegistrar. She further admitted she had executed a document of sale but she do not remember the details of that agreement. Regarding the will Ex.PW1/D2 she answered that she cannot tell whether she executed this Will. It means that she was not sure whether she had executed a Will Ex.PW1/D2, whereas in her pleading she denied the execution of this Will. In further cross examination she denied her signatures in this Will. She also admits that her son also signed on this alleged document for the sale of 1st and 2nd floor of the suit property. In cross examination she further admits that she RCA No. 07/2019 Page 10 of 27 Kailash Rani V. Mohan Bir Singh & Anr.
has executed a GPA in favour of defendant no. 1 Mohan Bir Singh for the first and second floor of the suit property. She further admits that she appeared before the Subregistrar, Kashmere Gate, Delhi for execution of documents/GPA in favour of the defendant no. 1. She further admits that the document registered in the office of subregistrar, Delhi were having her signatures. She admits that she signed on 45 documents in the office of Subregistrar. She has also admitted that she has not paid the house tax of the ground floor shop since the execution of documents in favour of the defendant no. 1 Mohan Bir Singh.
17. This testimony of the plaintiff discussed above shows that there is an admission on behalf of the plaintiff regarding the sale of some portions of the suit property and execution of sale document and even their registration in the office of Subregistrar but the plaintiff has not proved any such document to show that she has sold only 1st and 2nd floor of the suit property to the defendants. The plaintiff is completely bereft of any documents in respect of any documents pertaining to the ownership of the suit property. On the contrary there are certain documents with the defendant relating to the ownership of the suit property most prominently a sale deed executed by the agent/attorney of the plaintiff. It is not the case of the plaintiff that these documents are in favour of the defendant were got fraudulently executed by her. On the contrary, the plaintiff has out rightly denied the execution of these documents by her. If the plaintiff denying the documents relied by the defendants i.e. Sale deed Ex.PW1/D3, GPA Ex.PW1/D2, Will Ex.PW1/D3 and Receipt Ex.PW1/D4, then the plaintiff should have proved those RCA No. 07/2019 Page 11 of 27 Kailash Rani V. Mohan Bir Singh & Anr.
documents by virtue of which she has allegedly sold the first and second floor of the suit property to the defendants, and for the execution and registration of which she went the office of Subregistrar, Delhi. If I analyse the whole case of both the parties, there is only one set of documents, in favour of the defendants which shows that the entire suit property was transferred to the defendant no. 2.
18. The denial of execution of GPA, Will and receipt and the denial of the signatures of these documents by the plaintiff does not inspire such confidence so as to believe that her signatures are false on these document. Although both the parties have led their witnesses who are finger print experts namely Syed Sarafaraz Ahmed PW2 and Deepak Jain DW2 but both these witnesses have deposed in favour of their own clients. The opinion of the handwriting expert is not conclusive. It is in the nature of opinion evidence. The evidence of handwriting expert has to be taken with some amount of caution for normally they appeared to serve the party at whose instance they have been examined, as happened in the present case. Since both the expert witnesses have deposed in favour of their own clients, it is necessary to look for other evidences which the party have led in support of their causes to come in any conclusion of this case.
19. DW3 Dharmvir Chawla has deposed that he is doing the work of property dealer and he knows both the parties. He was the witness to the execution of GPA at Budhana, UP and he deposed that he has accompanied the parties for the purpose of execution of GPA in favour of the defendant no. 1 by the plaintiff Mrs. Kailash Rani and her son Jasbir RCA No. 07/2019 Page 12 of 27 Kailash Rani V. Mohan Bir Singh & Anr.
Singh. He further deposed that entire suit property was transferred by the plaintiff and her son in favour of the defendants. There is nothing in the cross examination of this witness which may discredit him on account of any lapse or short coming in his testimony.
20. The other witness of the GPA is shown to be the younger son of the plaintiff herself. She has not examined him as a witness to deny that the signatures on the GPA are not his signatures. Now, since there exists only one set of the document that too in favour of the defendants and the plaintiff failed to show and to prove any contrary documents, this court has to believe the terms of sale as reflected in the documents relied by the defendants.
21. Section 91 and 92 of the Indian Evidence Act contains the rule of exclusion of oral evidence regarding written contracts. It provide that when a transaction has been reduced into writing either by requirement of law, or by agreement of the parties, the writing becomes, in general, the exclusive memorial thereof, and no evidence may be given to prove the transaction, except the document itself or the secondary evidence of its contents where such evidence is admissible. It is a cardinal rule of evidence, not one of technicality, but of substance, from which it is dangerous depart that where written documents exist, they shall be produced as being the best evidence of their own contents. The force of written proof consists in this: men agree to preserve in writing the remembrance of past events, of which they wish to create a memorial, either with the view of laying down a rule for their own guidance, or in or to have, in the instrument a lasting proof of the truth of what RCA No. 07/2019 Page 13 of 27 Kailash Rani V. Mohan Bir Singh & Anr.
is written. Thus, contracts are written in order to preserve the memorial of what the contracting parties have prescribed for each other to do, and to make for themselves a fixed and immutable law as to what has been agreed on. So testaments are written in order to preserve the remembrance of what the party who has a right to dispose of his property has ordained concerning it, and thereby to lay down a rule for the guidance of his heir and legatees. Hence, the truth of written acts is established by the acts themselves that is, by the inspection of the original.
22. In this case the plaintiff's claim of selling only two floors of the suit property is in contrast to the documentary evidence depicting the sale of the entire suit property and therefore the claim of the plaintiff does not hold water and is factually unproved. Therefore, it cannot be said that after selling the entire property the plaintiff is the owner of the shop on the ground floor thereby plaintiff causing this issue to the defendants."
This Court has perused the record and the Ld. Trial Court has dealt with the entire issue methodically, meticulously and scrupulously in the correct perspective after analyzing the entire evidence on record.
The Ld. counsel for the LRs of plaintiff has argued that all the documents are shown to be executed on 30.08.1990 and one of the document i.e. GPA was alleged to be executed at Budana, UP, which is approximately 150 K.M. from Delhi and it is not possible that all the documents i.e. GPA, Wills and receipt can be executed RCA No. 07/2019 Page 14 of 27 Kailash Rani V. Mohan Bir Singh & Anr.
in one day at both the places i.e. Budana, UP and Kashmere Gate, Delhi.
The above arguments regarding the distance of 150 K.M., which is raised by Ld. counsel for LRs of plaintiff, are first of all, beyond the pleadings and has been raised for the first time before this Court. The DW3, who is witness and property dealer, has appeared before Ld. Trial Court and proved the GPA on the record. The plaintiff has not put even a single question to the said witness in order to lay the foundation of the aforesaid arguments. Furthermore, DW1 has also appeared but plaintiff has failed to put even single question to the said witness also in that respect. Otherwise also, it is not impossible to get the documents registered at both places as the distance of 150 K.M. can be easily covered within a period of 2 to 2.5 hours even on those days by hiring the taxi.
The Ld. counsel for the Appellant has also strenuously argued that GPA Exhibit PW1/D2 clearly shows that the insertion of complete property details were made subsequently in respect of the suit property and after the property details, it is nowhere recorded "hereinafter referred to as said property". This argument is also without substance. Firstly, this argument has been raised, for the first time, before this Court. The plaintiff has brought the suit for declaration and cancellation against the registered documents and therefore, heavy burden was cast upon the plaintiff to dislodge the said documents. The entire case of plaintiff, in the plaint, RCA No. 07/2019 Page 15 of 27 Kailash Rani V. Mohan Bir Singh & Anr.
including para no.11A, is based upon the complete denial of execution of the said documents with denial of signature and it is alleged that the said documents are forged and fabricated documents. In the plaint and evidence, the plaintiff has clearly averred and deposed that documents do not bear the signatures of plaintiff and his son Shri Jasbir Singh and there was no pleading with respect to the said documents that the said documents were executed only in relation to First and Second Floors without roof rights of property no. 1064, Naiwala, Karol Bagh, New Delhi but defendants/respondents have made insertion of the property details in the said document i.e. Exhibit PW1/D2. The case of plaintiff is not based upon the explanation of the documents, but simplicitor denial of execution of the entire documents, as relied upon by the defendants. Furthermore, the Will dated 30.08.1990 - Exhibit PW 1/D3 (also Ex. PW1/6) executed by plaintiff clearly shows the entire details of the suit property in a systematic manner.
The omission of the words "hereinafter referred to as the said property", after description of the suit property, does not make the other clauses invalid and it could not take away the veracity and efficacy of the further clauses of documents where the word "said property" is depicted. The reference to said property has to be read in context of the document. There was reference of the complete description of the suit property and thereafter, at various places, it is mentioned as "said property". The said property can be given only one meaning i.e. the property, which was described RCA No. 07/2019 Page 16 of 27 Kailash Rani V. Mohan Bir Singh & Anr.
above in the said document and no other meaning can be attached to the said connotation. The said argument of Ld. counsel for the LRs of plaintiff also sans merit and the same is hereby rejected The Ld. counsel for the LRs of plaintiff has also argued with forensic tenacity that GPA dated 30.08.1990 was not proved by summoning and calling the witness from SubRegistrar/Registrar Office of Budana, UP. The plaintiff is seeking the declaration and cancellation of the said document and entire burden was upon the plaintiff. The defendants have produced the original GPA and examined the witnesses DW1 and DW3. If plaintiff was apprehensive about the said document, then, the plaintiff ought to have called and summoned the witness from the Sub Registrar/Registrar Office of Budana, U.P. The Ld. counsel for the LRs of plaintiff has also assiduously argued that Shri Jasbir Singh, son of plaintiff has expired on 28.02.1998 i.e. prior to the execution of Sale Deed dated 04.10.1999, therefore, the sanctity of the said GPA dated 30.08.1990 has lost its efficacy, specifically, qua the half share of Shri Jasbir Singh.
The said argument is also without substance. First of all, the Ld. Trial Court, while deciding issue of nonjoinder of necessary party i.e. impleadment of all the LRs of Shri Jasbir Singh, had come to the conclusion that the suit is bad in the eyes of law, since under Order 1 Rule 9 CPC, nonjoinder of necessary party is fatal to the institution of the suit, as no effective decree can be RCA No. 07/2019 Page 17 of 27 Kailash Rani V. Mohan Bir Singh & Anr.
passed in the absence of necessary party. The plaintiff has not joined all the legal heirs of Late Shri Jasbir Singh before the Ld. Trial Court. The documents were executed by the plaintiff and Late Shri Jasbir Singh and therefore, all the LRs of Late Shri Jasbir Singh were not made party before the Ld. Trial Court. I am fully in agreement with the findings of the Ld. Trial Court qua the said issue.
Secondly, the Hon'ble High Court of Delhi, in catena of judgments, has recognized the rights of the parties in the property on the basis of the documents in the nature of Agreement, Will, GPA, Receipt, Affidavit, etc., which were executed prior to 24/09/2001. The GPA, in such cases, is irrevocable General Power of Attorney in terms of Section202 of Indian Contract Act. I have profit to rely upon relevant paras no.6 to 10 of one of the Judgment of the Hon'ble High Court of Delhi passed in Ramesh Chand Versus Suresh Chand RFA no.358/2000 decided on 09.04.2012: ".........The summarization is that the documents which were executed by the fatherSh. Kundan Lal in favour of the respondent No.1/plaintiff/son dated 16.5.1996 would not stricto sensu confer complete ownership rights, however, the said documents would create rights to the extent provided for by Section 202 of Contract Act, 1872 and ownership on account of devolution in terms of the Will after the death of the testator in terms of relevant provisions of RCA No. 07/2019 Page 18 of 27 Kailash Rani V. Mohan Bir Singh & Anr.
Indian Succession Act, 1925. Of course, I hasten to add that so far as the facts of the present case are concerned, I am not giving the benefit of the doctrine of part performance under Section 53A of the Transfer of Property Act, 1882 to the respondent No.1/plaintiff inasmuch as learned counsel for the appellant is correct in arguing that the benefit of the said doctrine cannot be given as the physical possession of the property was not transferred to the respondent No.1/plaintiff by the fatherSh. Kundan Lal under the agreement to sell dated 16.5.1996.
7. Accordingly, even if we do not give the benefit of Section 53A of the Transfer of Property Act, 1882 to the respondent No.1/plaintiff, the respondent No.1/plaintiff however would be entitled to benefit of Section 202 of the Contract Act, 1872 and the fact that ownership had devolved upon him in terms of the Will executed by the father in his favour on 16.5.1996. The argument urged on behalf of the appellant by his counsel that power of attorney, Ex.PW1/6 ceased to operate after the death of the father is an argument without any substance in view of the provision of Section 202 of the Contract Act, 1872 alongwith its illustration (which I have reproduced above) and which shows that power of attorney given for consideration operates even after the death of the executant.
8. Great stress was laid on behalf of the appellant to the fact that the respondent No.1/plaintiff had failed to prove the Will, Ex.PW1/5 in accordance with law inasmuch as no attesting witnesses were examined. Reliance RCA No. 07/2019 Page 19 of 27 Kailash Rani V. Mohan Bir Singh & Anr.
is placed on behalf of the appellant on the judgment of the Supreme Court in the case of Kashibai & Anr. Vs. Parwatibai & Ors. 1995 IV AD S.C. (C) 41 to argue that the Will has to be proved in terms of the provisions of Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872 by calling of the attesting witnesses and if the same is not done merely because there is an exhibit mark given to the Will, the same cannot be said to be proved. In my opinion, the judgment of the Supreme Court in the case of Kashibai & Anr. (supra), and various other judgments which deal with the issue of requirement of a Will having to be proved by summoning of an attesting witness, are judgments given in those cases where there are inter se disputes between the legal heirs of a deceased testator and the validity of the Will is questioned in those circumstances. Observations in the said judgments cannot have application to the facts of those cases where the disputes with regard to Will are not classical disputes between the legal heirs of the deceased testator and the Will is an instrument which really furthered an intent to transfer the rights in an immovable property by the testator to the beneficiary. I may note that in the present case, there is absolutely no cross examination at all on behalf of the appellant when the registered Will was proved and exhibited in the statement of the respondent No.1/plaintiff as PW1. Once there is no cross examination, in the cases such as the present, which are different than the classical disputes RCA No. 07/2019 Page 20 of 27 Kailash Rani V. Mohan Bir Singh & Anr.
inter se the legal heirs of a deceased testator, I would feel that the Will should be held to be a proved document inasmuch as the object of the Will in cases such as the present was really to transfer rights in an immovable property after the death of the testator. Further, I may note that the observations with respect to Will having to be very strictly proved by calling the attesting witness are in probate cases where the judgment is a judgment in rem whereas in the present case the judgment on the basis of ownership rights devolving upon the respondent No.1/plaintiff under a Will will not be a judgment in rem but only a judgment inter se the parties. Also another aspect to be borne in mind is that besides the two sons of the deceased Sh. Kundan Lal, who were the plaintiff and defendant No.1 in the suit, the other legal heirs of the deceased Sh. Kundan Lal were very much in knowledge of the present litigation but they never chose to add themselves as parties. Whereas the other son i.e. the brother of the parties to the present suit, Sh. Ram Swaroop deposed in favour of respondent No.1/plaintiff as PW2, the only daughter of the deceased Sh. Kundan Lal namely Smt. Krishna deposed in favour of the appellant/defendant No.1 as DW2. Therefore, all the interested parties, who would claim any benefit in the suit property, were aware of the subject litigation.
9. Another argument very strenuously put forth on behalf of the appellant was that the documents dated 16.5.1996 executed by the father in favour of the respondent No.1/plaintiff were forged and fabricated documents created after the death of the father who died in the year 1997. In my opinion, this argument is RCA No. 07/2019 Page 21 of 27 Kailash Rani V. Mohan Bir Singh & Anr.
totally without any merit for the reason that the documents being the agreement to sell, general power of attorney, receipt, etc. dated 16.5.1996 includes a registered document being the Will which was registered with the subRegistrar on the date of its execution i.e. 16.5.1996. Therefore, this argument that the documents were fabricated after the death of Sh. Kundan Lal in 1997, is therefore rejected.
10. Learned counsel for the appellant finally laid great stress on paras 18 and 19 of the judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. (supra) and which read as under: "18. We have merely drawn attention to and reiterated the wellsettled legal position that SA/GPA/WILL transactions are not 'transfers' or 'sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said 'SA/GPA/WILL transactions' may also be used to obtain specific performance or to defend possession under Section 53A of TP Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the documents relating to 'SA/GPA/WILL transactions' has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue RCA No. 07/2019 Page 22 of 27 Kailash Rani V. Mohan Bir Singh & Anr.
authorities to effect mutation, they need not be disturbed, merely on account of this decision.
19. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister, or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding 'SA/GPA/WILL transactions' are not intended to apply to such bona fide/genuine transactions."
These paragraphs were relied upon in support of the proposition that by these paras the Supreme Court in fact explained its earlier observations made in paras 12, 13, 14 and 16 of its judgment and that the Supreme Court did not intend to give any rights in immovable property. In other words, the argument was that in spite of paras 12 to 16 of the judgment in the case of Suraj Lamps & Industries Pvt. Ltd.
RCA No. 07/2019 Page 23 of 27Kailash Rani V. Mohan Bir Singh & Anr.
(supra) the documents being an agreement to sell under Section 53A or a power of attorney coupled with interest or a Will cannot create rights in an immovable property. In my opinion, this argument urged on behalf of the appellant really does not convey any meaning to me inasmuch as the argument, if accepted, would mean that I am ignoring the binding observation/ratio of the Supreme Court given in paras 12 to 16 of the judgment in the case of Suraj Lamps & Industries Pvt. Ltd. (supra)."
(Portions bolded in order to highlight) No doubt, Agreement to sell was not produced but the parties have executed the Receipt dated 30.08.1990Exhibit PW 1/D4, which clearly shows the receipt of the amount of Rs.40,000/. The proving of other contemporaneous documents i.e. GPA, Wills etc. of the same date alongwith plaintiff's admission about receipt of the amount of Rs.40,000/, clearly show the sale and purchase of the suit property. In such circumstances, the GPA Exhibit PW1/D2 is irrevocable in terms of Section202 of the Indian Contract Act. Moreover, after the death of Late Shri Jasbir Singh, registered Will dated 30.08.1990 - Exhibit PW1/7, executed by Late Shri Jasbir Singh in favour of defendant/respondent no.2, also confers the right, title and interest in favour of defendant/respondent no.2 in terms of the aforesaid Judgment passed by the Hon'ble High Court.
The Ld. Trial Court, as far as issue no.4, which pertains to limitation, has categorically held as under: RCA No. 07/2019 Page 24 of 27 Kailash Rani V. Mohan Bir Singh & Anr.
"25. The onus to prove this issue was on the defendant. Plaintiff has sought a cancellation of certain documents. Suit was filed on 17.12.1999. The sale deed ExDW1/P3 was executed on 04.10.1999. A suit of cancellation of any document can be filed within three years of its execution or knowledge of its execution. The suit for cancellation of sale deed is within three years and it cannot be said to be time barred but the relief of cancellation of Wills, GPA and receipt are clearly beyond the period of three year. The onus had shifted to the plaintiff that she do not have the knowledge of execution of these documents on the date on which these were executed. The plaintiff has failed to discharge her burden as is evident from the discussion of issue no. 1. Therefore, as far as the relief of cancellation of sale deed is concerned, its not time barred but the reliefs of cancellation of other documents i.e. GPA, Wills other receipt are clearly time barred..."
This Court fully endorsed the aforesaid findings of Ld. Trial Court. Furthermore, in terms of Section3 of Transfer of Property Act, the notice/knowledge is attributable to plaintiff, as plaintiff is seeking cancellation of the documents, which were registered documents and the same were executed by plaintiff and his son Late Shri Jasbir Singh. When the cancellation of documents i.e. registered GPA, Wills, receipt are clearly time barred, then, the Sale Deed dated 14.10.1999 cannot be allowed to be questioned as the Sale Deed is basically based and founded on the said documents, which were executed by defendant no.1 being attorney of plaintiff and Late Shri Jasbir Singh in favour of defendant no.2.
RCA No. 07/2019 Page 25 of 27Kailash Rani V. Mohan Bir Singh & Anr.
There is another aspect of the matter, the PW1, during crossexamination, has admitted that prior to execution of the documents in the year 1990, the plaintiff was using the roof above the second floor but after execution of the documents, the defendant no.1 did not allow her to enter on the roof of second floor. The said crossexamination clearly reveals that plaintiff was not having the possession of the roof above second floor after 1990. The suit was filed on 17.12.1999 i.e. after 9 years. The application for Amendment of the Plaint was also filed but in the said application, the plaintiff has not sought possession of the roof. The suit of plaintiff is also hit in terms of proviso to Section 34 of the Specific Relief Act, 1963 as plaintiff has not sought any relief of possession of roof of the aforesaid property, in which the plaintiff has sought declaration of her right.
RELIEF:
In view of the discussions, as adumbrated above, I hereby pass the following :: FINAL ORDER ::
(a) The Regular Civil Appeal of the plaintiff/Appellant is hereby dismissed and consequently, the impugned Judgment and decree, passed by the Ld. Trial Court, are hereby confirmed.
(b) The Parties shall bear their own respective costs.
(c) The copy of this Judgment may kindly be sent forthwith to the Ld. Trial Court alongwith the record of Trial Court.RCA No. 07/2019 Page 26 of 27
Kailash Rani V. Mohan Bir Singh & Anr.
Decreesheet in the Appeal be prepared accordingly, in terms of this Judgment.
Appeal file be consigned to record room after due compliance.
Announced in the open court on this 15th day of January, 2020.
(ARUN SUKHIJA) ADJ07 (Central) Tis Hazari Courts, Delhi RCA No. 07/2019 Page 27 of 27