Delhi District Court
Smt. Krishna Kumari vs ) Smt. Phool Kaur (Died On 14.11.2004) on 31 January, 2015
Suit No. 58/14/03
IN THE COURT OF MS. SMITA GARG,
ADDITIONAL DISTRICT JUDGE03, WEST,
TIS HAZARI COURTS, DELHI.
Suit No. 58/14/03
Case ID No. 02401C0116842003
In re:
Smt. Krishna Kumari
W/o Late Shri Ajit Singh
R/o F279, Ladoo Sarai,
Mehrauli, New Delhi .......................Plaintiff
Versus
1) Smt. Phool Kaur (died on 14.11.2004)
W/o Late Shri Kanwar Singh
R/o House No. 24, Village Adchini,
Malviya Nagar, New Delhi
(Deleted vide order dated 13.07.2005)
2) Shri Daljeet Singh
S/o Late Shri Kanwar Singh
R/o House No. 24, Village Adchini,
Malviya Nagar, New Delhi
3) Smt. Sudesh Devi
W/o Sh. Daljeet Singh
R/o House No. 24, Village Adchini,
Malviya Nagar, New Delhi
4) Smt. Geeta Devi (died on 03.10.2009)
Krishna Kumari Vs. Phool Kaur & Ors. Page No. 1/26
Suit No. 58/14/03
W/o Late Shri Ajad Singh
R/o House No. 24, Village Adchini,
Malviya Nagar, New Delhi
5) Shri Hushiar Singh
R/o House No. 24, Village Adchini,
Malviya Nagar, New Delhi
6) Smt. Kanta Devi
W/o Shri Hushiar Singh
R/o House No. 24, Village Adchini,
Malviya Nagar, New Delhi
7) Shri Bittoo
S/o Shri Hushiar Singh
R/o House No. 24, Village Adchini,
Malviya Nagar, New Delhi .............. Defendants
Date of institution of suit : 16.09.2003
Date of judgment : 31.01.2015
JUDGMENT:
1. This is a suit for possession in respect of first floor of property bearing no. 24/3, Village Adchini, Malviya Nagar, New Delhi (hereinafter referred to as 'suit property').
2. The plaintiff claims to be the daughter in law of the defendant no.1. Defendant no.2, 4 & 6 are the son and daughters of the Krishna Kumari Vs. Phool Kaur & Ors. Page No. 2/26 Suit No. 58/14/03 defendant no.1. Defendant no.3 is the wife of the defendant no.2 and defendant no.5 & 7 are the husband and son respectively of the defendant no.6.
The case of the plaintiff is that her father in law Late Sh. Kanwar Singh was the absolute owner of the property bearing house no. 24, Village Adchini, Malviya Nagar, New Delhi. He had partitioned all his properties amongst his sons and daughters during his life time. On account of the said partition, Sh. Ajit Singh (i.e the husband of the plaintiff) became the absolute owner of 1/3 of the property bearing no. 24, Village Adchini, Malviya Nagar, New Delhi. The portion admeasuring 100 sq. yards that came into the share of Sh. Ajit Singh was numbered as 24/3, Village Adchini, Malviya Nagar, New Delhi. Sh. Ajit Singh married the plaintiff according to Hindu rites and ceremonies on 11.03.1995. After the death of his father, Sh. Ajit Singh started living separately from his brothers and sisters in a rented accommodation at Gautam Nagar, New Delhi. He got a five storey structure constructed on his portion through a builder on the basis of proportionate sharing. He retained the first floor (i.e. the suit property) but sold out the remaining four floors during his life time. According to the plaintiff, Sh. Ajit Singh Krishna Kumari Vs. Phool Kaur & Ors. Page No. 3/26 Suit No. 58/14/03 had started taking liquor due to which frequent quarrels used to take place between them and therefore, in order to provide financial security to her, he transferred 50 sq. yards of the suit property in her favour under a family settlement on 17.11.1999 vide Registered General Power of Attorney, Will, Agreement to Sell and Purchase, Affidavit, Receipt and Possession Letter. On 30.03.2000, the remaining 50 sq. yards of the suit property was also transferred by Sh. Ajit Singh in favour of the plaintiff vide Registered General Power of Attorney, Will, Agreement to Sell and Purchase, Affidavit, Receipt and Possession Letter and thus the plaintiff became the absolute owner of the entire suit property. On a written request, the suit property was mutated in the name of the plaintiff on 30.04.2001 by MCD. Electricity meter installed at the suit property was also transferred in the name of the plaintiff on 30.09.2002. Since the plaintiff and Sh. Ajit Singh were not gainfully employed, the suit property had been let out by them to M/s Candid Marketing Services so as to earn their livelihood. On 30.11.2002, the said tenant vacated the suit property and the plaintiff put her locks on the same. On 31.03.2003, when the plaintiff visited the suit property alongwith a prospective tenant, the defendants came there and started quarreling with her. They also broke open the lock of the Krishna Kumari Vs. Phool Kaur & Ors. Page No. 4/26 Suit No. 58/14/03 plaintiff and put their own lock on the suit property. On 01.04.2003, Sh. Ajit Singh died at TB Hospital, Mehrauli, New Delhi. While the plaintiff was mourning the death of her husband, the defendants threw her out of the rented accommodation at Gautam Nagar, New Delhi and also did not allow her to take belongings. The plaintiff made a written complaint to local police on 21.04.2003 but no action was taken by them. The plaintiff thus filed a writ petition no. 504/2003 before the High Court of Delhi on 05.05.2003 for registration of FIR and restoration of possession of the suit property. Vide order dated 15.07.2003, the writ petition was disposed of with the direction to the plaintiff to file a civil suit for possession. Hence, the present suit was filed.
3. Defendant no.1 filed her written statement on 23.10.2003 wherein she took the preliminary objections that the suit had been undervalued for the purpose of court fees and jurisdiction; that the court lacked pecuniary jurisdiction to try and entertain the suit; and that the suit was bad for nonjoinder of necessary parties. On merits, the defendant no.1 admitted that her husband Late Sh. Kanwar Singh was the absolute owner of property bearing no. 24, Village Adchini, Malviya Nagar, New Delhi but Krishna Kumari Vs. Phool Kaur & Ors. Page No. 5/26 Suit No. 58/14/03 denied that the said property had been partitioned by Late Sh. Kanwar Singh amongst his sons and daughters during his life time. She stated that though her sons had built their respective houses on the property for their convenience, however, the shares of the parties in the property were not defined. She denied that her son Sh. Ajit Singh had become the owner of 1/3 rd of the property bearing house no. 24, Village Adchini or that he had ever transferred the suit property in favour of the plaintiff. According to the defendant no.1, Sh. Ajit Singh remained a bachelor through out his life and did not marry the plaintiff at any point of time. She alleged that the plaintiff was residing with one Sh. Parikshan, who used to impersonate as Ajit Singh, and when Sh. Ajit Singh came to know about the same, he made written complaints to various authorities stating that his name was being misused by the plaintiff and Sh. Parikshan by forging documents. According to the defendant no.1, the registered General Power of Attorney, Will, Agreement to Sell and Purchase, Affidavit, Receipt and Possession Letter dated 17.11.1999 and 30.03.2000 relied upon by the plaintiff are forged and fabricated documents and had been executed by Sh. Parikshan by impersonating as Ajit Singh. She stated that the plaintiff had also got the suit property mutated in her name by Krishna Kumari Vs. Phool Kaur & Ors. Page No. 6/26 Suit No. 58/14/03 misrepresenting the facts but the said mutation as well as the transfer of the electricity connection in her name had been canceled by both the authorities on receiving the complaints from Sh. Ajit Singh. She denied that the suit property was vacated by M/s Candid Marketing on 30.11.2002. Incident dated 31.03.2003 was also denied. According to the defendant no.1, she had been in physical possession of the suit property for last more than 40 years and since the plaintiff was never in its possession at any point of time, the question of restoration of possession to her did not arise. Though she admitted that the plaintiff had filed a writ petition before the Hon'ble High Court and that an FIR had been registered at the instance of the plaintiff but stated that the police did not find anything which could show that the plaintiff was ever in possession of the suit property. A prayer for the dismissal of the suit was thus made.
During the course of proceedings, defendant no.1 expired on 14.11.2004. On the statement of plaintiff, name of defendant no.1 was deleted from the array of defendants on 13.07.2005.
4. Defendants no.2 & 3 filed a joint written statement wherein they took the same preliminary objections as had been raised by the Krishna Kumari Vs. Phool Kaur & Ors. Page No. 7/26 Suit No. 58/14/03 defendant no.1 in her written statement. They also admitted that the property bearing no. 24, Village Adchini, Malviya Nagar, New Delhi was owned by Late Sh. Kanwar Singh and stated that after the death of Sh. Kanwar Singh, the property had been mutated in the name of his widow Smt. Phool Kaur (i.e the defendant no.1) and three sons namely Sh. Baljeet Singh, Sh. Daljeet Singh (defendant no.2) and Late Sh. Ajit Singh. According to them, during the life time of Late Sh. Kanwar Singh, his three sons had partitioned the property for their convenience and had raised construction over their respective portions but the shares of Smt. Phool Kaur and the daughters had not been defined. The portions of the sons were numbered as 24/1, 24/2 & 24/3 for the sake of convenience although in all the govt. records, the number of the property continued to remain the same. In the year 1997, Sh. Ajit Singh let out the first floor of property no. 24/3, Village Adchini, Malviya Nagar, New Delhi to Paramount Inter Model Transport Pvt. Ltd.. Upon its vacation on 10.02.2000, Sh. Ajit Singh leased it out to M/s Free Ka Mal. Com vide lease deed dated 02.07.2000. The said tenant vacated the premises in the month of November, 2002 and handed over the possession to Sh. Ajit Singh. According to the defendants no.2 & 3, Sh. Ajit Singh sold the Krishna Kumari Vs. Phool Kaur & Ors. Page No. 8/26 Suit No. 58/14/03 entire first floor admeasuring 900 sq. feet with terrace right of the portion which had come in his share by partition to the defendant no.2 by executing GPA, Will, Agreement to Sell, Undertaking, Receipt, Affidavit and Possession Letter in his favour on 04.02.2003 and since the date of execution of the said documents, the defendant no.2 is in actual and physical possession of the suit property. The property was also mutated in the name of the defendant no.2 on 30.04.2003 in the MCD records and from the date of mutation, he is the assessee with regard to the suit property in the House Tax department. They averred that the documents relied upon by the plaintiff are false and frivolous which have been manipulated by her in collusion with one Sh. Prikshan Singh, who used to impersonate as Sh. Ajit Singh and with whom the plaintiff is residing. According to the defendants no.2 & 3, Sh. Ajit Singh was a bachelor and had kept the plaintiff as his maid servant and when he came to know about the fraud played upon him by the plaintiff in collusion with Sh. Parikshan, he wrote a letter dated 14.02.2003 to Assistant Assessor, MCD and AFO, BSES, Adchini electricity agency intimating them about her fraudulent acts and revoking the documents. He also sent a legal notice dated 04.02.2003 through Sh. Mahesh Kumar Chauhan, Advocate to the Sub Krishna Kumari Vs. Phool Kaur & Ors. Page No. 9/26 Suit No. 58/14/03 Registrar requiring him to cancel the documents in respect of the suit property registered in the name of the plaintiff. Late Sh. Ajit Singh also made a complaint against the plaintiff stating that the plaintiff, who had been kept as maid servant, had made him a habitual drunkard and taking benefit of the same, had obtained his signatures on blank stamp papers and some other papers for preparing the sale documents in respect of the suit property. The defendant no.2 & 3 averred that besides filing a false complaint on 03.04.2003 with CAW Cell, South District against Late Sh. Ajit Singh and the defendant no.2, the plaintiff had also filed a criminal writ petition before the Hon'ble High Court seeking direction for registration of FIR and without making any inquiry, police authorities registered an FIR No. 403/03, which is pending investigation. According to the defendants no.2 & 3, the plaintiff was never married to Late Sh. Ajit Singh and was never in possession of the suit property. They denied that the suit property was ever let out to M/s Candid Marketing Services by the plaintiff or that the said company had handed over the possession to the plaintiff in November, 2002. The incidents dated 31.03.2003 and 01.04.2003 were also denied. They stated that on 01.04.2003, the plaintiff alongwith some gunda elements tried to forcibly enter the suit property on the pretext that she Krishna Kumari Vs. Phool Kaur & Ors. Page No. 10/26 Suit No. 58/14/03 was going to sell the same whereupon hue and cry was raised by the defendants and the plaintiff could not succeed in her ill designs. In view of the said incident, the defendant no.2 had to file a suit for injunction against the plaintiff. According to defendants no.2 & 3, after the death of Sh. Ajit Singh, the defendant no.2 has become the absolute owner of 900 sq. feet with terrace right over and above the first floor alongwith proportional undivided and impartiable ownership right in the freehold land underneath measuring 100 sq. yards by virtue of Will dated 04.02.2003 executed in his favour by Late Sh. Ajit Singh and since the plaintiff has no concern with the suit property, the suit is liable to be dismissed.
5. Though the defendant no.4 to 7 entered appearance through their counsel but they failed to file the written statement. Accordingly, their defence was struck of by the court vide order dated 19.11.2003. During the pendency of the suit, the defendant no.4 also expired on 03.10.2009.
6. The plaintiff filed replications to the written statements of defendant no.1 as well as defendants no.2 &3 wherein she denied the contents of the written statements and reiterated her Krishna Kumari Vs. Phool Kaur & Ors. Page No. 11/26 Suit No. 58/14/03 case as set out in the plaint.
7. On 26.08.2004, following issues were framed:
1. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction?OPD
2. Whether the suit is bad for mis joinder and non joinder of parties?OPD
3. Whether the plaintiff was in possession of the suit property. If yes, since and till when?OPP
4. Whether the plaintiff is the owner of the suit premises by virtue of documents i.e agreement to sell, POA etc. dated 17.11.99 and 30.03.00?OPP
5. Whether the plaintiff has been forcibly dispossessed by the defendant from the suit premises?OPP
6. Whether the defendant no.2 is the owner of the suit premises by virtue of documents i.e agreement to sell, P O A etc. dated 04.02.2003?OPD2
7. Whether the plaintiff is entitled to the decree of possession as prayed for? OPD
8. Relief.
8. In support of her case, the plaintiff appeared in the witness box as PW1. She led evidence on affidavit supporting the averments of the plaint. She placed on record the following documents: Krishna Kumari Vs. Phool Kaur & Ors. Page No. 12/26 Suit No. 58/14/03 i. her photographs with Sh. Ajit Singh alongwith negatives as Ex. PW1/A(colly);
ii. copy of her passport as Ex. PW1/B;
iii. statement of her savings bank account no. 50126 maintained with Indian Overseas Bank, Yusuf Sarai as Ex. PW1/C;
iv. missing report of Sh. Ajit Singh lodged with P.S Mehrauli on 23.08.2002 as Ex. PW1/D;
v. site plan of the suit property as Ex. PW1/E; vi. registered GPA, Will as well as notarised Agreement to Sell and Purchase, Affidavit, Receipt and Possession Letter all dated 17.11.1999 stated to have been executed by Late Sh. Ajit Singh in her favour in respect of 50 sq. yards of the suit property as Ex. PW1/F (collectively); vii. registered GPA and Will as well as notarised Agreement to Sell and Purchase, Affidavit, Receipt and Possession Letter all dated 30.03.2000 stated to have been executed by Late Sh. Ajit Singh in her favour in respect of remaining 50 sq. yards of the suit property as Ex. PW 1/G (collectively);
viii. acknowledgment from MCD Office, R.K. Puram in respect of request letter dated 16.11.2000 submitted by the plaintiff for mutation of the suit property in her name as Ex. PW1/H;
ix. order dated 30.04.2001 of Assistant Assessor and Collector thereby mutating the suit property in the name of the plaintiff as Ex. PW1/I , receipt in respect of payment of transfer duty and transfer fee as Ex. PW1/J & Ex. PW1/K respectively;
Krishna Kumari Vs. Phool Kaur & Ors. Page No. 13/26 Suit No. 58/14/03 x. bill No. RKP/40919 dated 10.08.2002 raised by MCD demanding property tax in respect of the suit property as Ex. PW1/L;
xi. transfer order dated 30.09.2002 and payment receipt regarding transfer of electricity connection installed at the suit property in the name of the plaintiff as Ex. PW 1/M(collectively);
xii. electricity bill for the period 16.09.2002 to 16.11.2002 in the name of the plaintiff as Ex. PW1/N;
xiii. lease deed dated 11.03.2002 executed by the plaintiff in favour of M/s Candid Marketing Services in respect of the suit property for the period 15.03.2002 to 14.03.2003 as Ex. PW1/O;
xiv. death certificate of Late Sh. Ajit Singh as Ex. PW1/P; xv. complaint dated 21.04.2003 lodged by the plaintiff with local police as Ex. PW1/Q;
xvi. certified copy of criminal writ petition no. 504/2003 and FIR No. 403/03 P.S Malviya Nagar as Ex. PW1/R and Ex. PW1/S respectively;
xvii. certified copy of the order dated 15.07.2003 whereby criminal writ petition no. 504/2003 was disposed off by the Hon'ble High Court as Ex. PW1/T; and xviii. the paint as Ex. PW1/U. The plaintiff also examined six other witnesses in support of her case.
PW2 Sh. Vijay Bhatt from LRS institute of Tube Tuberculosis & Respiratory diseases was examined to prove the admission Krishna Kumari Vs. Phool Kaur & Ors. Page No. 14/26 Suit No. 58/14/03 form, Patient Report, New Patient Form, Investigation Slip, Death Summary, Death Certificate and Temperature Chart of Late Sh. Ajit Singh as Ex. PW2/B to Ex. PW2/H respectively.
PW3 Sh. Sandeep Kalra from Allahabad Bank, Adchini Branch was examined to prove the account opening form in respect of account no. 104377 held by Late Sh. Ajit Singh and his sister Geeta Devi (i.e. the defendant no.4) as well as the statement of account for the period 01.02.2002 to 31.12.2002 as Ex. PW3/B and Ex. PW3/C respectively.
PW4 Sh. Bansi Lal from Indian Overseas Bank, Yusuf Sarai Branch was examined to prove the account opening form in respect of account no. 50126 held by the plaintiff as well as the copy of the ration card submitted with the form as Ex. PW4/A and Ex. PW4/B respectively. He was again examined as PW7 on 07.11.2007 to prove the statement of account for the period 01.01.2002 to 31.12.2002.
PW5 H.Ct. Hosiar Singh from P.S Mehrauli was examined to prove the missing person report lodged by the plaintiff on 23.08.2002 qua the missing of Late Sh. Ajit Singh as Ex. PW Krishna Kumari Vs. Phool Kaur & Ors. Page No. 15/26 Suit No. 58/14/03 5/A. PW6 Sh. Sunil Srivastava from the office of SubRegistrarVII, Vikas Sadan, INA was examined to prove the registered General Power of Attorney and Will dated 17.11.1999 executed by Sh. Ajit Singh in favour of the plaintiff as Ex. PW1/F (colly) and the registered General Power of Attorney and Will dated 30.03.2000 as Ex. PW1/G (colly).
9. Defendant no.2 Sh. Daljeet Singh appeared in the witness box as DW1. He also led evidence on affidavit affirming the contents of the written statement. He placed on record copy of the lease deed dated 02.07.2000 executed by Sh. Ajit Singh thereby letting out the suit property to M/s Free Ka Mal. Com as Ex. DW1/1, statement of account in respect of the joint account held by Late Sh. Ajit Singh with his sister (i.e. the defendant no.
4) in Allahabad Bank, Adchini Branch as Mark X, copy of complaints lodged on 14.02.2003 with MCD and BSES as well as complaint dated 04.02.2003 lodged with P.S Malviya Nagar against the plaintiff by Late Sh. Ajit Singh as Ex. DW1/2 (colly), General Power of Attorney, Will, Agreement to Sell, Undertaking, Receipt and Possession Letter dated 04.02.2003 Krishna Kumari Vs. Phool Kaur & Ors. Page No. 16/26 Suit No. 58/14/03 executed by Late Sh. Ajit Singh in favour of the defendant no.2 as Ex. DW1/4 (colly), copy of electricity bill of the suit property for the month of July, 2002 as Ex. DW1/6, copy of the notice dated 16.04.2003 received from CAW Cell on the complaint dated 03.04.2003 of the plaintiff as Ex. DW1/7 and the copy of Edition dated 30.03.2003 of the newspaper "Times of India" as Mark Y. On 15.05.2012, it was clarified by the counsel for the defendant no.2 that documents referred to as Ex. DW1/3, Ex. DW1/5, Ex. DW1/8 and Ex. DW1/9 in the affidavit of DW1 had not been filed on record.
Here it is pertinent to mention that though it was mentioned in the order sheets dated 15.03.2008 and 19.04.2008 that the defendant no.2 had also examined Sh. Sunil Srivastava, Sh. Mahesh Kumar, SI Dharam Pal and Sh. Ishwar Chand as DW2 to DW5 respectively but no such witness was examined by him in this case. It appears that the said error took place because a suit for declaration and injunction bearing no.57/14/04 (old No. 413/03) titled as "Krishna Kumari Vs. Daljeet Singh" was also pending in the court and both the cases were being listed together for evidence. In fact, the witness DW2 to DW5 had been examined by the defendant no.2 in the other suit no.
Krishna Kumari Vs. Phool Kaur & Ors. Page No. 17/26 Suit No. 58/14/03 57/14/04.
During the course of proceedings, disputes arose between the defendant no.2&3. The defendant no.3 thus engaged a separate counsel and led her evidence on affidavit dated 29.04.2011. Contrary to the defence put forth in the written statement, she deposed in her affidavit that prior to the death of Late Sh. Ajit Singh, the plaintiff had been residing with him at Gautam Budh Nagar for more than 810 years and that upon the partition of the property no. 24, Village Adchini, Malviya Nagar, Delhi amongst the brothers, property bearing no. 24/3, Village Adchini, Malviya Nagar, Delhi had fallen into the share of Sh. Ajit Singh who had sold out all the floors except the first floor (i.e. the suit property), which had been lying vacant at the time of his death. She also deposed that the suit property had been let out to M/s India Golf Union by the defendant no.2 in the year 2008.
10. I have heard the counsel for both the parties and perused the record.
11. My issuewise findings are as follows: Krishna Kumari Vs. Phool Kaur & Ors. Page No. 18/26 Suit No. 58/14/03 Issue No.1: "1. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction?OPD"
In para no. 20 of the plaint, the plaintiff has valued the suit for the purpose of jurisdiction at Rs. 6 lac and has affixed advalorem court fees of Rs. 8300/ on the plaint. The defendants no.2 &3 raised a preliminary objection in their written statement that the market value of the suit property was more than Rs. 25 lac and thus the suit had been undervalued for the purpose of court fees and jurisdiction by the plaintiff. The counsel for the plaintiff has submitted that since the suit property, which admeasures 100 sq. yards, had been transferred by Late Sh. Ajit Singh in favour of the plaintiff for a total sale consideration of Rs. 4,50,000/ (i.e 50 sq. yards for Rs. 2,50,000/on 17.11.1999 and the remaining 50 sq. yards for Rs.2,00,000/ on 30.03.2000), keeping in view the escalation in market value of the property, the plaintiff had rightly valued the suit at Rs. 6 lac at the time of its institution. A perusal of the cross examination of the plaintiff (PW1) shows that the defendants no.2 & 3 have not cross examined her on the above score. They did not even suggest to the plaintiff (PW1) that the value of the suit property was Rs. 25 lac at the time of institution of the suit. They also failed to Krishna Kumari Vs. Phool Kaur & Ors. Page No. 19/26 Suit No. 58/14/03 produce any material on record during the course of their evidence to show that the value of the suit property was Rs. 25 lac as alleged by them. In fact, the transfer documents dated 04.02.2003 on the basis of which the defendant no.2 staked claim of ownership in respect of the suit property mentions the sale consideration as Rs.1,50,000/ only. It is settled law that ordinarily the valuation of the suit for the purpose of jurisdiction as assessed by the plaintiff would be accepted as correct unless some material contrary to it is brought on record. Since the defendants failed to produce any material to show that the market value of the suit property was Rs. 25 lac as alleged by them, the valuation of the suit as assessed by the plaintiff has to be accepted. The present issue is thus decided in favour of the plaintiff and against the defendants.
Issues No. 2,4,6 &7:
"2. Whether the suit is bad for mis joinder and non joinder of parties?OPD
4. Whether the plaintiff is the owner of the suit premises by virtue of documents i.e agreement to sell, POA etc. dated 17.11.99 and 30.03.00?OPP Krishna Kumari Vs. Phool Kaur & Ors. Page No. 20/26 Suit No. 58/14/03
6. Whether the defendant no.2 is the owner of the suit premises by virtue of documents i.e agreement to sell, POA etc. dated 04.02.2003?OPD2
7. Whether the plaintiff is entitled to the decree of possession as prayed for? OPD"
All the above issues are being decided together as they are interwoven.
It is the common case of the parties that Late Sh. Kanwar Singh was the absolute owner of the property bearing House No.24, Village Adchini, Malviya Nagar, New Delhi. According to the plaintiff, Late Sh. Kanwar Singh had partitioned all his properties amongst his daughters and sons during his life time and on account of the said partition, her husband Late Sh. Ajit Singh became the absolute owner of 1/3 rd of the abovesaid property. It is stated that the 1/3 rd portion which came to the share of Sh. Ajit Singh admeasured 100 sq. yards and had been numbered as 24/3, Village Adchini, Malviya Nagar, New Delhi. Plaintiff claims that the first floor of 24/3, Village Adchini, Malviya Nagar, New Delhi (i.e. the suit property) had been transferred by Late Sh. Ajit Singh in her favour in two phases i.e 50 sq. yards through registered General Power of Attorney, Will, Agreement to Sell and Purchase, Affidavit, Receipt and Krishna Kumari Vs. Phool Kaur & Ors. Page No. 21/26 Suit No. 58/14/03 Possession Letter executed on 17.11.1999 and the remaining 50 sq. yards through a similar set of documents executed on 30.03.2000. On the other hand, the defendants no.2 & 3 denied that any partition by metes and bounds of the properties owned by Late Sh. Kanwar Singh had been effected or that the shares of his widow and the daughters had been demarcated in the property. They averred that it was only for the sake of convenience that all the three sons of Late Sh. Kanwar Singh had partitioned the property bearing House No. 24, Village Adchini, Malviya Nagar, New Delhi amongst themselves and had numbered their portions as 24/1, 24/2 & 24/3. They disputed the relationship of husband and wife between Late Sh. Ajit Singh and the plaintiff and asserted that Late Sh. Ajit Singh had transferred his portion to the defendant no.2 by executing General Power of Attorney, Will, Agreement to Sell, Undertaking, Receipt, Affidavit and Possession Letter in his favour on 04.02.2003.
At the outset, it is pertinent to mention that title documents of Late Sh. Kanwar Singh in respect of property bearing House No. 24, Village Adchini, Malviya Nagar, New Delhi have not been produced on record. Considering the fact that the plaintiff has Krishna Kumari Vs. Phool Kaur & Ors. Page No. 22/26 Suit No. 58/14/03 filed this suit for possession in respect of an immovable property on the basis of title and claims that her husband had derived title from his father Late Sh. Kanwar Singh, it was essential for her to prove the ownership of Late Sh. Kanwar Singh in respect of the property eventhough the same had not been disputed by the defendants. For the failure of the plaintiff to produce the said documents, the ownership of Late Sh. Kanwar Singh in respect of property no. 24, Village Adchini, Malviya Nagar, New Delhi has remained unproved on record.
Even if it is presumed that Late Sh. Kanwar Singh was the absolute owner of the property no. 24, Village Adchini, Malviya Nagar, New Delhi as stated by the parties, the pivotal question that arises for consideration is whether the said immovable property could have been orally partitioned and transferred by him amongst his sons during his life time. It needs little emphasis that the partition can take place between the co owners/cosharers only. Existence of right/interest in the property is the sine qua non for partition. Since Late Sh. Kanwar Singh was the absolute owner of the abovesaid property, partition thereof during his life time could not have been effected. It appears that the case of the plaintiff is that Late Sh. Kanwar Singh had transferred the above said property in equal Krishna Kumari Vs. Phool Kaur & Ors. Page No. 23/26 Suit No. 58/14/03 shares amongst his sons during his lifetime. Intervivos transfer (i.e. transfer of a property by a living person to one or other more living persons) of an immovable property is governed by the provisions of the Transfer of Property Act,1882 (for short 'the Act'). Different modes of transfer of immovable property as recognized by the Act are as under:
i) Sale (Section 54)
ii) Mortgage (Section 58)
iii) Lease (Section 105)
iv) Exchange or release (Section 118)
v) Gift (Section 122) While sale, gift and release are the modes of transfer of complete rights, mortgage and lease confer limited rights in an immovable property upon the transferee. In all the above modes of transfer of complete rights in an immovable property, execution of a written document and registration thereof under Section 17 of Indian Registration Act, 1908 are compulsory. It is not the case of the plaintiff that Late Sh. Kanwar Singh had executed any such registered deed in favour of his sons in respect of the property during his life time. In the absence thereof, Late Sh. Ajit Singh neither became the absolute owner of 100 sq. yards out of the property bearing house no. 24, Krishna Kumari Vs. Phool Kaur & Ors. Page No. 24/26 Suit No. 58/14/03 Village Adchini, Malviya Nagar, New Delhi as alleged by the plaintiff nor he could have transferred the same either in favour of the plaintiff or the defendant no.2. It is also not the case of the plaintiff that Late Sh. Kanwar Singh had left behind any Will in respect of the suit property in favour of Late Sh. Ajit Singh.
Thus consequent upon the death of Late Sh. Kanwar Singh, the property owned by him devolved upon all his legal heirs in equal shares by law of inheritence. Though the relationship of plaintiff with Late Sh. Ajit Singh has been disputed by the defendants but even if she is presumed to be the legally wedded wife of Late Sh. Ajit Singh, she would be entitled to only his undivided share in the property. In these circumstances, the appropriate remedy for the plaintiff was to seek partition of the property against all the legal heirs of Late Sh. Kanwar Singh and then, claim possession of the portion allocated to the share of Late Sh. Ajit Singh. Even if the sons of Late Sh. Kanwar Singh had demarcated the property in three portions numbered as 24/1,24/2 & 24/3 and had raised their respective constructions, simpliciter suit for possession, in the absence of actual partition of the property by metes and bounds amongst all the legal heirs of Late Sh. Kanwar Singh, is not maintainable.
Krishna Kumari Vs. Phool Kaur & Ors. Page No. 25/26 Suit No. 58/14/03 For the foregoing reasons, issues no. 2, 4 & 7 are decided against the plaintiff and the issue no.6 is decided against the defendant no.2.
Issues No. 3 & 5: "3. Whether the plaintiff was in possession of the suit property. If yes, since and till when?OPP
5. Whether the plaintiff has been forcibly dispossessed by the defendant from the suit premises?OPP"
Since I have already come to the conclusion that the suit for possession instituted by the plaintiff is not maintainable, both the above issues are not required to be answered.
9. Relief: In view of the above findings, the suit of the plaintiff is hereby dismissed. No order as to costs is made. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court (Smita Garg)
on 31.01.2015 Addl. District Judge03 (West)
Tis Hazari Courts, Delhi.
Krishna Kumari Vs. Phool Kaur & Ors. Page No. 26/26