Delhi District Court
Jai Kishan vs . Hari Kishan on 31 August, 2013
IN THE COURT OF SH. PRANJAL ANEJA
CIVIL JUDGE-14, CENTRAL, THC, DELHI
JAI KISHAN Vs. HARI KISHAN
Suit No. 1040/11
Unique ID No. 02401C0000771985
Jai Kishan Aggarwal Son of late Sh. Madan Lal Aggarwal,
R/o 2283, Gali Anar,
Dharampura, Dariba Kalan,
Delhi-110006. ...... PLAINTIFF.
Vs.
1. Sh. Hari Kishan (deceased)
S/o late Sh. Madan Lal Aggarwal
R/o 2283, Gali Anar,
Dharampura, Dariba Kalan,
Delhi-110006
Through Legal Heirs & Representative
A. Sh. Roop Narain, S/o Late Sh. Hari Kishan,
R/o 1/3145, 1st Floor, Gali No. 19, Near Shanti
Building Ram Nagar, Mandoli Road, Shahdara,
Delhi-32.
B. Sh. Raj Narain, S/o Late Sh. Hari Kishan,
R/o 111, Madhuvan, Shiva Market, Pitampura,
CS No. 1040/11 Page No. 1 of 48
Jai Kishan Vs. Hari Kishan On 31th August, 2013.
Delhi-34.
C. Sh. Prem Narain S/o Late Sh. Hari Kishan
R/o 2283, 2nd Floor, Gali Anar, Dharampura,
Delhi-6
D. Sh. Prakash Narain, S/o Late Sh. Hari Kishan
R/o 2283, 2nd Floor, Gali Anar, Dharampura,
Delhi-06.
E. Sh. Jai Prakash Narain S/o Late Sh. Hari Kishan
R/o 2283, 2nd Floor, Gali Anar, Dharampura,
Delhi-06.
F. Smt. Meena Devi married D/o Late Sh. Hari
Kishan
R/o 2283, 2nd Floor, Gali Anar, Dharampura,
Delhi-06.
G. Smt. Neeta married D/o Late Sh. Hari Kishan
R/o 2283, 2nd Floor, Gali Anar, Dharampura,
Delhi-06.
H. Smt. Sarita married D/o Late Sh. Hari Kishan
R/o 2283, 2nd Floor, Gali Anar, Dharampura,
Delhi-06.
I. Smt. Laxmi married D/o Late Sh. Hari Kishan
R/o 2283, 2nd Floor, Gali Anar, Dharampura,
Delhi-06.
CS No. 1040/11 Page No. 2 of 48
Jai Kishan Vs. Hari Kishan On 31th August, 2013.
2. Smt. Krishna Devi
W/o Late Sh. Madan Lal Aggarwal
R/o 404, Gali No. 12, Rampura, Delhi-35.
3. Municipal Corporation of Delhi through its
Commissioner Town Hall, Chandni Chowk,
Delhi-06.
4. Sh. Roop Narain
S/o Late Sh. Hari Kishan
R/o 1/3145, 1st Floor, Gali No. 19, Near Shanti
Building, Ram Nagar, Mandoli Road, Shahdara,
Delhi-32. '
5. Sh. Raj Narain S/o Late Sh. Hari Kishan
R/o 111, Madhuvan, Shiva Market, Pitampura,
Delhi-34.
6. Sh. Prem Narain S/o Late Sh. Hari Kishan
R/o 2283, 2nd Floor, Gali Anar, Dharampura,
Delhi-06
..... DEFENDANTS
DATE OF INSTITUTION OF THE CASE :29.05.1985
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Jai Kishan Vs. Hari Kishan On 31th August, 2013.
DATE ON WHICH RESERVED FOR ORDER :23.08.2013
DATE OF ORDER/ JUDGMENT :31.08.2013
JUDGMENT:
SUIT FOR PARTITION
1. The present suit has been filed on behalf of the plaintiff against the defendant for partition and declaration.
2. The brief facts as per the amended plaint are that the disputed premises bearing no. 2283, gali Anar, Dharampura, Delhi was purchased by the father of the plaintiff (defendant no. 2 herein) in favour of his mother Smt. Bramha Devi vide sale deed executed on 08.02.1941 and at that time the name of defendant no. 1, who was a small child, was also included as 1/2 owner out of sheer love and affection. That the Chajja on the 1st floor, already existing at the time of purchase, was under use and occupation of Smt. Brahma Devi and the plaintiff. That Smt. Brahma Devi, grandmother of the plaintiff and defendant no. 1 has left the entire CS No. 1040/11 Page No. 4 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013. share in her ownership and possession by way of Will dated 07.01.1975 in favour of the plaintiff as the plaintiff was residing with her and had been looking after her. That the plaintiff is thus the 1/2 owner of the disputed premises by means of the said Will which was subsequently got registered in 1984. That the Will, inter- alia mentions that Smt. Brahma Devi was 1/2 owner including the shop with Bala Khana and the other 1/2 share of the premises was in the name of defendant no. 1 i.e. Hari Kishan, the real brother of the plaintiff. That the disputed property consist of a shop at the ground floor, under the tenancy of Sh. Badri Prasad. That the 1st floor of the suit premises has always been in the possession of the plaintiff and 2nd floor in the possession of defendant no. 1. The terrace has been in joint possession of the plaintiff and defendant no. 1. That defendant no. 1 illegally fixed iron girders on 06.09.1983 on the two corners of the tin shed and covering the 1st floor. That the defendant no. 1 is trying to construct the balcony on the 2nd floor and also bathroom in the CS No. 1040/11 Page No. 5 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013. small passage to the right of the stairs on the 2nd floor which leads to the 2nd floor. This proposed construction is unauthorized. That in case the bathroom is constructed on the 2 nd floor the passage for going to the terrace will be blocked. That the plaintiff has been repeatedly asking to defendant no. 1 for partition but defendant no. 1 has been harassing the plaintiff. That defendants no. 4, 5 and 6 are the older of the three sons of defendant no. 1 and are colluding with defendant no. 1 in his illegal designs to grab the suit premises. That on 07.06.1986, the defendant threatened the plaintiffs in using the terrace and they also cut the telephone connection of the plaintiff on 08.06.1986. The defendant no. 1 and his children threatened and had beaten the wife of the plaintiff who got severely wounded and police report was lodged and defendants were arrested and kept in judicial lock- up and released on 09.08.1986. That the plaintiff has asked for partition of the premises in dispute on numerous occasions but to no avail. That a decree of partition be passed by metes and bounds and CS No. 1040/11 Page No. 6 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
declaration be made that the plaintiff is in the possession of entire 1st floor and direction be given to defendant no. 3 to demolish of iron girders illegally fixed by defendant no. 1 covering the 1st floor.
3. In WS filed on behalf of defendant no. 1, 4 and 6, it is stated that the present suit is bad for mis- joinder of defendant no. 4 to 6 on the ground floor. That during the life of defendant no. 1 i.e. their father do not and cannot claim any partition of the suit property. That defendant no. 2 had been had been leading immoral life and whatever he had all through his life. That it is denied that the 1st floor and Chajja was in use and occupation of Smt. Brahma Devi and the plaintiff alone. That defendant no. 1 was also residing and using as co- owner of the portion on the 1st floor with Smt. Brahma and Smt. Sharbati Devi (mother). That the plaintiff was born on 28.02.1946. In the year 1951, defendant no. 1 being of marriageable age apprehending that only accommodation on the 1st floor would not be sufficient, constructed the 1st floor with his own funds. That Smt. Brahma Devi did not execute the alleged CS No. 1040/11 Page No. 7 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
Will as she was about 80 years of age and about a month before her death, she had become deaf and paralytic and could not speak and remained half conscious. That Smt. Brahma Devi resided with the replying defendant till her death and she died intestate qua. That the 1/2 share in the property whether Will dated 07.01.1975 is forged and fabricated. That before mortgage was created with respect to the shop at the ground floor by Smt. Brahma Devi in the year 1951, there was an oral settlement between said Smt. Brahma Devi and defendant no. 1 to the effect that she is the owner of the ground floor and defendant no. 1 of the 1st floor and accordingly she created mortgage of her half share of the suit property i.e. ground floor with one Sh. Tara Chand with possession and the said mortgage still exists. That the plaintiff has no right to ask defendant no. 1 to remove the girders.
4. In replication, the averments of the WS have been denied and those of the plaint have been reaffirmed. It is further averred that CS No. 1040/11 Page No. 8 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013. 2nd floor of the disputed property was already built up even in the year 1941 when admittedly the defendant was only about eight years old. That the defendant himself is relying on mortgage deed executed by Smt. Brahma Devi in the year 1951 which itself shows that the 2nd floor of the premises was built up and the defendant himself was a witness to this document and the plea of the defendant that he built up 2nd floor with his own funds, is false.
5. Vide order dated 23.04.1986 issues were framed:-
1. Whether the disputed premises have been purchased benami and whether defendant no. 1 acquires any rights of ownership by virtue of the sale deed dated 08.02.1941? OPP.
2. Whether there is a valid Will dated 07.01.1975 in favour of the plaintiff? If so, to what effect? OPP.
3. Whether the constructions sought to be made by the defendant no. 1 is contrary to the Building Bye Laws of the Municipal Corporation of Delhi? If so, to what effect? OPP.
4. What was the extent of the construction of the suit property at the time of its purchase? If so, to what effect? OPD.CS No. 1040/11 Page No. 9 of 48
Jai Kishan Vs. Hari Kishan On 31th August, 2013.
5. Whether the portion on the second floor was constructed by defendant no. 1 with his own funds? If so, to what effect? OPD.
6. What are the respective shares of the parties?
7. Relief.
6. To substantiate his case on judicial file the plaintiff himself appeared in the witness box as PW-2 his affidavit in evidence being Ex PW 2/1. The plaintiff also got examined Sh. A. Rehman, PW-1, UDC from the office of Sub- Registrar-I, Kashmere Gate. The plaintiff also examined PW-3 Sh. Rakesh Kumar Aggarwal and his affidavit in evidence being EX PW 3/A. Affidavit in evidence of PW-1 Sh. Narender Kumar Jain was also filed but he was not examined and the plaintiff closed his evidence on 24.02.2005. In documentary evidence the plaintiff filed and relied upon the certified copy of the sale deed dated 08.02.1941 as Ex PW 2/1 along with English translation, electricity receipt Ex PW 2/3, water receipt Ex PW 2/4, MCD receipt Ex PW 2/5, relinquishment deed Ex PW 2/6, Will dated 07.01.1975 Ex PW CS No. 1040/11 Page No. 10 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
2/7 along with its English translation. On the other hand Sh. Jai Prakash, one of the LRs i.e. son of deceased defendant no. 1 appeared in the witness box as DW-1.
7. I have heard the arguments and perused the record. My issue-
wise disposal of the present suit is as under:-
8. Issue No. 1:- Whether the disputed premises have been purchased benami and whether defendant no. 1 acquires any rights of ownership by virtue of the sale deed dated 08.02.1941? OPP.
It is averred in the amended plaint para-1 that the disputed premises bearing no. 2283, Gali Anar, Dharampura, Delhi was purchased by father of the plaintiff (defendant no. 2 herein) in favour of Smt. Bramha Devi (mother of defendant no. 2 and grandmother of plaintiff) by means of a sale deed executed on 08.02.1941 and that at that time the defendant no. 1 was a small child, however his name was also included as 1/2 owner out of CS No. 1040/11 Page No. 11 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
sheer love and affection. This averment is admitted by defendant no. 2 in his WS further stating that it was purchased after the death of his father in 1940 and that at the time of purchase of the property, the defendant no. 1 was about 7 or 8 years old.
9. But the other defendants i.e. defendant no. 1, defendant no. 4 to 6 have denied to this averment in their WS to the amended plaint stating that the suit property consisting of ground and 1st floor only was purchased by Smt. Bramha Devi in the joint name of herself and the defendant no. 1 with her own funds and that defendant no. 2 all through his life had been leading immoral life and wasted whatever he had. To this denial, the plaintiff in his replication contends that Smt. Bramha Devi never had any income of her own and the disputed premises was purchased by the father of the plaintiff out of ancestral funds in favour of Smt. Bramha Devi and defendant no. 1.
CS No. 1040/11 Page No. 12 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
10. Replication is part of the pleading if permitted by court. This was held in the matter of Arun Khanna Vs. Vinod Kumar Khanna CS (os) No. 1657/2007 decided by Hon'ble High Court of Delhi on 22.03.2011. This proposition was laid down in Moti Ram Vs. Bladev Krishan DLT 15 (1979) 90. Thus, though not clearly stated in plaint, the plaintiff has averred in his replication that the suit property was purchased out of ancestral funds and thus, the stand of the plaintiff in his pleadings can be taken to be that. On the other hand, defendant no. 1 and defendant no 2 to 4 contend that it was purchased by Smt. Bramha Devi with her own funds, though in joint names of her and defendant no. 1.
11. In the event of the stands taken by the parties in their pleadings above, it is necessary to look at the document itself i.e. sale deed dt. 08.02.1941 Ex PW 2/1 which is a certified copy and English translation from Urdu language is annexed. The plaintiff has summoned the original record by calling witness PW-1 from the office of Sub- Registrar-I, Kashmere Gate, Delhi and has proved CS No. 1040/11 Page No. 13 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013. the said sale deed Ex PW 2/1. The Urdu- English translation is also not disputed by the defendants. The sale deed Ex PW 2/1 is in the joint names of Smt. Bramha Devi and defendant no. 1 and it clearly mentions that the purchasers have spent the amount for property out of their ancestral amount. The defendant no. 1, defendant no. 2 to 4 have not shown any proof in support of their averment that suit property was purchased by Smt. Bramha Devi out of her own funds. It is merely a bald averment of their part which falls to the ground in the presence of the registered sale deed containing the said recital of the property having being purchased out of ancestral amount. The witness DW-1 Sh. Jai Prakash and LR of deceased defendant no. 1 appeared and deposed in his cross-examination dt. 30.05.2005 that:-
" I was not born at that time when the property in suit was purchased in the year 1941. I derived this fact from my father defendant no. 1 that the property in suit was purchased by Smt. Bramha with her own funds in her name and also in the name of defendant no. 1. At the time when the property was purchased the age of my father was seven years. I can say about the facts in para no. 3 of my affidavit on the basis of the knowledge derived from my father."CS No. 1040/11 Page No. 14 of 48
Jai Kishan Vs. Hari Kishan On 31th August, 2013.
From the above testimony, it is clear that the knowledge of DW-1 vis-a-vis the source of purchase of suit property is a derived knowledge from his father i.e. defendant no. 1 who was himself a child of seven years at the time of purchase. Thus, I find that suit property has not been purchased out of the funds of Smt. Bramha Devi.
12. Now going towards the evidence led by plaintiff, it is strange to observe that in his affidavit in evidence Ex PW 2/A, the plaintiff/ PW-2 has stated that suit property was purchased by his father defendant no. 2 from his own funds and sources. This deposition is clearly beyond pleadings and rather contradictory to the stand taken by plaintiff in his replication that the source of purchase was ancestral funds and therefore this deposition cannot be admitted in evidence, it being beyond pleadings. It is does not hold any value in view of the fact that the defendant no. 2 (father) in his WS simply admitted the stand of the plaint. There is no reason or CS No. 1040/11 Page No. 15 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
cause stated/ shown by plaintiff of deviating from his stand and there is no material, whatsoever, on record to believe the version of plaintiff as stated in his affidavit in evidence Ex PW 2/A.
13. Thus, the inevitable conclusion which surfaces in light of the above finding and recital in the sale deed is that the suit property was purchased out of ancestral funds of the family and neither from the funds of father defendant no. 2 nor Grandmother Smt. Bramha Devi.
14. Now coming on to the concept of benami transaction. Where a person purchases property in the name of another it is called a benami transaction. The person in whose name the property is purchased is called benamidar. A benamidar is an ostensible owner and has all indications of ownership and looks like real owner but is not.
15. Applying the concept of benamidar to the conclusion arrived at para 13 above, it is deduced that the suit property belongs to the coparcenary though it is held benami in the joint names of Smt. CS No. 1040/11 Page No. 16 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013. Bramha Devi and defendant no. 1. There is a benami transaction (prohibition) Act, 1988 enacted on 05.09.1988 and section 4 of it prohibits the right to recover property held benami in terms that no suit shall lie against benamidar by the real owner and no defence based on any right in respect of property held benami shall be allowed. The exception to this prohibition is contained in sub- section (3) itself which provides for cases where benamidar is a coparcener in a Hindu undivided family. But Hon'ble Supreme Court in R. Rajagopal Reddy Vs. P. Chandrashekharan AIR (1996) S. C. 238 while over-ruling the ratio of Mithlesh Kumari Vs. Prem Bihari Khare (1989) 2 SCC 95, held that the Act is not retrospective in its operation. Thus, the present suit being filed in 1985 is not barred. Even otherwise the Act also provides an exception in cases of benamidar holding coparcenary property in his name. Although the present suit has not been filed for any declaration regarding suit property being held as benami nor are there any specific phrases used in the CS No. 1040/11 Page No. 17 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
pleadings such as b' enami' or b' enamidar' but at the same time there is no impediment in giving a finding to the issue no. 1 in hand that the suit property had been purchased benami. In fact this finding will decide the manner and the shares in partition. The suit property belongs to the coparcenary. Consequently, there are no rights of benamidar emanating from the said sale deed dt. 08.02.1941 Ex PW 2/1 in the capacity of benamidar.
16. I shall also deal with the contention of defendant no. 1 that there was an oral settlement between him and his grandmother Smt. Brahma Devi to the effect that she is the owner of the ground floor and defendant no. 1 of the first floor and accordingly, she created mortgage in 1951 of her half share of the suit property i.e. ground floor with one Sh. Tara Chand with possession and said mortgage still exists. Defendant no. 1 has averred that this settlement occurred before mortgage was created in 1951. This was put to the witness DW-1 Sh. Jai Prakash son of deceased defendant no. 1 to which he deposed that the above said fact of oral agreement CS No. 1040/11 Page No. 18 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013. was told to him by his father. Further, he deposes that no date of oral settlement was communicated to him but it was before the creation of mortgage. There is no other piece of evidence brought on behalf of defendant no. 1 to prove the oral settlement. Admittedly defendant no. 1 was 18 years of age in 1951 which means he was a minor before that when he allegedly entered into an oral settlement with his grandmother Smt. Brahma Devi in which they agreed that Smt. Brahma Devi would be owner of ground floor and defendant no. 1 would be owner of first floor. Here, it is seen that although mortgage of the ground floor i.e. shop was done by Smt. Brahma Devi but merely that does not go on to prove the alleged oral agreement. No other witness has been produced to prove the oral settlement. As it has already been observed in issue no. 1 above that the property is a coparcenary property and therefore any such settlement could not have been entered upon and it has no sanctity. The issue no. 1 is decided accordingly.
CS No. 1040/11 Page No. 19 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
17. Issue No. 2:- Whether there is a valid Will dated 07.01.1975 in favour of the plaintiff?
If so, to what effect? OPP.
The plaintiff has propounded a Will dt. 07.01.1975 Ex PW 2/7 of his Grandmother Smt. Brahma Devi to be in his favour. The testator expired on 11.01.1975 shortly after allegedly executing the Will. The Will was later got registered by plaintiff on 06.02.1984 prior to filing of present suit in 1985. Plaintiff has alleged that Smt. Bramha Devi bequeathed her share, which is Ex PW 1/2 in the suit property, in his favour and therefore he became 1/2 owner in the suit property by virtue of the said Will. Defendant no. 1 and defendant no. 4 to 6 have contended the Will to be forged and fabricated.
18. A Will has to be proved in accordance with section 68 of the Indian Evidence Act, 1872 read with section 63 of the Indian Succession Act, 1925. For the purpose of convenience the two provisions are reproduced as under:-
CS No. 1040/11 Page No. 20 of 48
Jai Kishan Vs. Hari Kishan On 31th August, 2013. Section 68 of Indian Evidence Act, 1872 reads as:-
" Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there by an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person to whom it purports to have been executed it specifically denied."
Section 63 of Indian Succession Act, 1925 reads as:-
" Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of CS No. 1040/11 Page No. 21 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
Thus, as per section 68 of Indian Evidence Act it is essential to call at least one attesting witness to the Will, even if the Will is registered, and only then the Will may be used in evidence. Section 63 (c) of Indian Succession Act talks about the manner of attestation.
19. In support of proving the Will, Plaintiff has relied upon Vijay Kumar Mehra Vs. State & Ors 147 (2008) DLT 425 wherein it was held that the objector were not able to caste doubt on the registration of the Will and further there was no registration of Will in accordance with Law, the same onus would be of no consequence as it was still open to this Court to test if Will had been executed and attested in accordance with provisions of Law and onus to prove that the Will has been obtained under undue influence or coercion, the onus is on the person who alleges the CS No. 1040/11 Page No. 22 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
same. It was further held that Will is required to be proved like any other documents except for the fact that it is to be proved after the death of the attester. Reliance is also placed upon Ajay Kumar Goel Vs. Dinesh Kumar Goel 2011 VII AD (DELHI) 598 wherein issues were raised as to whether the Will relied upon the plaintiff is forged and it was held that the plaintiff has filed relinquishment deed of their sister, but the facts of the present case differs from those of the said ruling.
20. On the other hand, defendant No.1 relied upon AIR 1975 All.
395 wherein it was held that Will, execution of which is denied cannot be deemed to have been proved when no attesting witness has been examined in proof of it.
21. The plaintiff has got examined Sh. Rakesh Aggarwal as PW-3 who has stated in his affidavit in evidence Ex PW 3/A that he is son of late Sh. Vishwanath Aggarwal and he has seen his father signing and writing during his life time at number of occasions and is in a position to identity his signature. He further states in his CS No. 1040/11 Page No. 23 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013. affidavit that the signature of his father appears on the Will at mark X1 and X2. Even though the witness in his cross- examination dt. 24.02.2005 states that he had seen his father writing and signing on document at the house of plaintiff on 07.01.1975 but he does not clearly mentions that the document was a Will. Another important thing pertinent to observe is that in the True English Translation of the Will filed by plaintiff there is nowhere mentioned the name of the alleged attesting witness namely Sh. Vishwanath Aggarwal. It was the argument on behalf of the plaintiff that the signature and address were in Mundi language and therefore in the English translation ' in Mundi' is mentioned at the place of witness. The relevant portion of English translation is reproduced:-
" Sd- (Thumb impression) Sd- in Mundi Madan lal, House No. ----
Delhi 110035"CS No. 1040/11 Page No. 24 of 48
Jai Kishan Vs. Hari Kishan On 31th August, 2013.
It is seen that beneath the words i' n Mundi' there is mentioned the name of Madan Lal i.e. defendant no. 2. Thus the signature and name of Madan Lal is in Mundi. It was the duty of the plaintiff to bring out a correct and true translation. Had it been the signature and address of said Vishwanath Aggarwal, the translation must have mentioned the same in parenthesis after the words i' n Mundi' .
22. Further, importantly, it is observed that there are three other attesting witnesses seen in the Will but none has been examined by the plaintiff to prove the Will. One Sh. Narender Kumar Jain S/o late Sh. Shanti Prasad Jain was called as PW-4 who in his affidavit in evidence Ex PW 4/A stated that the signature of his father appears on the Will at mark X1 and X2. It is important to note that PW-3 had also stated similar averment in his affidavit Ex PW 3/A that the Will bears the signature of his father at mark X1 and X2. Now each of witnesses PW-3 and PW-4, being sons of alleged attesting witnesses to the Will, state that the signature of CS No. 1040/11 Page No. 25 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013. his father appear at mark X1 and X2. While tendering his affidavit Ex PW 4/A, the witness PW-4 changes his stand and states that the signature of his father is appearing on the Will Ex PW 2/7 at point A. Although, PW-4 was not cross-examined as plaintiff closed his evidence, but the manner in which similar affidavits in evidence of PW-3 and PW-4 are filed, it shows the casual approach of the plaintiff in proving the Will. It is also observed that at point A on the Will, the attestation appears in Urdu language and surprisingly the English translation of the Will does not contain the name and address of the said Sh. Shanti Prasad Jain who is alleged to be an attesting witness at point A in the Will. The Will and its English translation mentions other two witnesses named as Bimal Pershad Jain and Bishan Swarup Lal. These two attesting witnesses have not been called and it is nowhere averred or apprised that they are dead or incapiciated to depose. The plaintiff has himself given up PW-4 un- examined and closed his evidence on the very date of cross-examination of CS No. 1040/11 Page No. 26 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
PW-3 on 24.02.2005. Section 68 of Indian Evidence Act provides that if there be an attesting witness alive, atleast one of them must be called for proving the execution of the Will. But, as is observed above, the plaintiff has not done so. It was very much necessary for the plaintiff to have examined the said two attesting witnesses for proving the Will but the plaintiff failed in his duty to do so.
23. Plaintiff has also relied upon Girdhari Lal Bhat Vs The State & Ors. 22 (1982) DLT 487 wherein it was observed that one witness was alive, but settled in Canada and not able to come and his son testified his signatures and therefore Will is treated as true when considering evidence on record. This ruling also would not help the plaintiff in proving the Will as the plaintiff has not mentioned any fact about the other attesting witnesses of the Will and has not examined them. Reliance has also relied upon Lala Om Prakash Vs. Hari Ram 116 (2005) DLT 71 (DB) wherein it was held that there can be no persumption of partition in case co- CS No. 1040/11 Page No. 27 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
owners are having separate electricity connection and portions in their possession.
24. In this way, it is seen that the Will dt. 07.01.1975 Ex PW 2/7 is in grave shadows of doubt and the plaintiff has miserably failed to prove the same. Plaintiff cannot thus derive any benefit out of the same. The citations related upon by the plaintiff also cannot be of any help to him. Even otherwise the alleged testator Smt. Brahma Devi had no testamentary capacity to bequeath the property which has been observed in issue no. 1 as coparcenary property. The Will, is therefore, invalid on this ground also. This issue no. 2 is decided accordingly.
25. Issue No. 3:- Whether the construction sought to be made by the defendant no 1 is contrary to the building Bye Laws of the Municipal Corporation of Delhi?
If so, to what effect? OPP.
Plaintiff has alleged that defendant no. 1 is trying to construct the balcony of about 16' X 2.50' on the second floor and CS No. 1040/11 Page No. 28 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
also a bathroom in the small passage to the right of the stairs on the second floor, which leads to the second floor and all these proposed construction is unauthorized, against the approved map of the suit property and is also contrary to the Municipal Rules and bye- laws.
26. It is seen that although plaintiff filed site plan but did not exhibit the same in his evidence. Even letter from MCD & special resolutions issued by MCD have been filed on behalf of the plaintiff but the same have also not been proved as no witness was called from MCD with record to prove the same. The plaintiff has not even produced any relevant building bye-laws of the MCD. The plaintiff has filed on record a notice dt. 29.06.1979 & exhibited the same as Ex PW 2/5 which is apparently for the repairs of the building and it nowhere shows that the proposed construction is contrary to building bye-laws of MCD. The onus of proving this issue was upon the plaintiff who has failed in it and therefore this issue is decided against the plaintiff accordingly. CS No. 1040/11 Page No. 29 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
27. Issue No. 4 What was the extent of the construction of the suit property at the time of its purchase? If so, to what effect? OPD.
So as to know the extent of construction of the property at the time of its purchase, firstly the document itself i.e. the sale deed dt. 08.02.1941 Ex PW 2/1 which is the primary evidence in the case, is referred. The extent of construction of the suit property at the time of its purchase can be seen only from the sale deed as section 91 of Indian Evidence Act provides for the exclusion of secondary evidence in the presence of primary evidence i.e. the document itself. The sale deed describes the property as one house one storey along with Bala Khana pucca built with stairs. This clearly shows that the suit property as on date of its purchase was one storey built up pucca building. It also included one shop at the ground floor as it is mentioned in the sale deed.
CS No. 1040/11 Page No. 30 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
28. It is the contention of defendant no. 1 that he was residing and using as co- owner of the portion on the first floor with Smt. Brahma Devi and in the year 1951, he being of marriageable age constructed the 2nd floor with his own funds apprehending that the only accommodation on the first floor would not be sufficient. On the other hand, in replication para 2 on merits it is averred that 'when the premises was purchased in 1941, the second floor was built up.' The meaning of this averment cannot be accepted to be conveying that the property was already built upto 2nd floor when it was purchased as it has already been observed above as per the sale deed that the property consisted of one storey only when it was purchased. The meaning which can at the most sustain from the said averment is that 2nd floor was built up after the premises was purchased. It is further stated that the approval plan of the building has been filed, but there no such approved plan exhibited in evidence. Further averred that defendant no. 1 would be approximately seven or eight years of age and was not CS No. 1040/11 Page No. 31 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
possessed of sufficient means to construct second floor. This averment implies that the plaintiff wants to assert that construction of 2nd floor was done immediately after the property was purchased as it is not denied in the facts that defendant no. 1 was about seven to eight years old when property was purchased.
29. The ld. Counsel for the plaintiff relied upon the resolutions of MCD of 1942 & 1944 filed by him to show the extent of construction but it is seen that they have even not been exhibited in his affidavit in evidence Ex PW 2/A i.e. not tendered in evidence and hence not proved.
30. Thus, the finding upon issue no. 4 which is arrived at on the basis of the above discussion is that the property consisted of one house one storey along with Bala Khana built with stairs. The ground floor consisted of one shop only. Therefore, the property was built up only upto first floor on the date of its purchase. CS No. 1040/11 Page No. 32 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
31. Issue No. 5:- Whether the portion on the second floor was constructed by defendant no. 1 with his own funds? If so, to what effect? OPD.
The defendant no.1 has averred in his WS that in the year 1951 he being of marriageable age and apprehending that only accommodation on the first floor would not be sufficient, constructed the second floor with his own funds. Admittedly, plaintiff has been residing on the first floor and defendant no.1 and his family members have been residing at the second floor. But the question here to be determined is that whether the portion on the second floor was constructed by defendant no.1 with his own funds. In this context firstly it is seen that in the corresponding para no.2 of merits of the replication, the averment of the defendant no.1 has been dealt with by the plaintiff by denying the same and stating that when the premises was purchased in 1941 the second floor was built up and the approved plan of the building has already been filed by plaintiff. CS No. 1040/11 Page No. 33 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013. In this regard, it has already been observed in the paragraph above, while giving a finding on issue no.4, that the suit property was built up only uptill first floor and therefore the averment of the plaintiff in the replication that when the property was purchased in 1941 the second floor was built up does not hold any ground. Further it is seen that no such approved plan of the building has been exhibited in evidence by the plaintiff. It is further seen that in the same para no.2 of the replication on merits it is stated that e' ven otherwise the defendant no.1 will be approx. seven or eight years of age was not possessed of sufficient means to construct second floor with his own funds. In this regard it is seen that the date of birth of defendant no.1 as disclosed by his son, DW1 in his cross examination dated 30.05.2005 at page no.1 is 18.10.1933 and it is seen that no dispute or further question raised with regard to the said date of birth in the cross examination.
CS No. 1040/11 Page No. 34 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
32. This implies that the defendant no.1 was about 7 ½ years old in 1941 when the property was purchased. It is the case of the plaintiff as per the replication that defendant No.1 would be approx. 7 or 8 years of age and was not possessed of sufficient means to construct second floor with his own funds. This averment follows after the averment that when the premises was purchased in 1941, the second floor was built up. As it has already been found that the property was constructed up till first floor only when it was purchased, now it is to be seen when was the second floor constructed, by whom and through what funds. The contention of the plaintiff that the property was built up upto first floor when it was purchased, fades away in the light of the finding arrived at in issue no.4. The plaintiff has averred in the replication that the second floor was built up when the property was purchased in 1941. Even if the meaning is assumed from this averment that the construction of the second floor was carried on after the purchase and at that time defendant no. 1 was 7 to 8 CS No. 1040/11 Page No. 35 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
years of age then the plaintiff has to prove the same. But the plaintiff has not even tendered in evidence the resolutions of 1942 and 1944 passed by MCD to show the construction carried on later. Plaintiff has thus not been able to prove his contentions.
33. On the other hand, the defendant no.1 contends that he constructed the second floor in the year 1951 as there was shortage of accommodation. The defendant no.1 was around 18 years of age in the year 1951 and thus the contention of the plaintiff that the defendant no.1 was 7 or 8 years of age and could not have constructed the second floor, having no means, also goes away.
34. Regarding the construction, DW1 was cross examined on 30.05.2005 in which he stated that he can produce the bills and vouchers with regard to the expenses incurred in building material or the construction of second floor by his father defendant no.1. He was then asked whether he had filed those documents to which he replied that he has not filed those documents as the CS No. 1040/11 Page No. 36 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
same were not demanded and he further stated that he can produce the same. Here it was not asked from the witness to produce the said documents i.e. Bills and vouchers and it was for the plaintiff to have asked for the same, but the plaintiff kept mum by not asking the defendant to actually produce the same. It is further seen that the witness DW1 deposed that in the year 1951 his father was of 14 years of age and was working in Bullion Market as broker and started his brokerage from the age of 15 years and he gained experience from his uncle Sh. Sheebhu Mal, residing at Agra and he is dead and had no issue. Here, it is observed that the witness DW-1 has not been put any further question upon the above depositions regarding the earning of his father i.e. Defendant no. 1.
35. It is pertinent to further note that the plaintiff even did not mention in his pleadings that who constructed the second floor, but has simply stated that it was constructed when the property was purchased. Thus, in the facts and circumstances of the case CS No. 1040/11 Page No. 37 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013. where plaintiff has failed to prove his contentions and the witness DW-1 has given such deposition, the stand taken by defendant no. 1, that the 2nd floor was constructed by him in 1951 out of his own funds, prevails on account of preponderance of probabilities tilting in favour of defendant no. 1. There is also no evidence on record that construction of 2nd floor was carried out of coparcenary funds. Therefore, I find the issue no. 5 in affirmative. Effect of this finding:
The question would also arise that when the defendant no.
1 has constructed the floor over the co-parcenary property then the said second floor is a property thrown into common stock and is a blended property.
In Lakki Reddy Vs. Lakki Reddy, AIR 1963 Supreme Court 1601, it was held that separate property or self acquired property of co-parcenar may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the CS No. 1040/11 Page No. 38 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
common stock with the intention of abandoning the separate claim therein.
It was further held in Narayanan Vs. Radhakrishna AIR 1976 SC 1715 that to establish such abandonment, a clear intention of waiver of separate rights must be established. However, in Narayam Vs. Chamaraju AIR 1968 SC 1276, it has been held by the Hon'ble Supreme Court that it is important to keep in mind that the separate property of a Hindu co-parcenar ceases to be his separate property and acquires the characteristics of joint family property not by mere act of physical mixing with the joint family property, but by his own volition and intention by waiving or surrendering his rights in it as a separate property. It was further observed that such an intention can be known only by his words or from his acts and conduct. In Neel Kanth Vs. Ram Chandra, AIR 1991 Bombay 10, it was observed that where the co-parcenar constructs any storey on a joint family house and wishes to live in it, it is the clear indication of blending.
CS No. 1040/11 Page No. 39 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
From the above legal principles enunciation by the Hon'ble Courts, it is seen that the intention of abandoning separate claims must be established in a case of throwing a property into a common stock or blending and the legal concept of blending is embedded in the fact that there should be conscious surrenders. In the facts of the case in hand, it is seen and even admitted that the defendant no.1 and his family have been residing at the second floor since beginning. There is no intention whether in words or by conduct of defendant no.1 to show that he even intended to throw the second floor constructed by him into the common stock. The plaintiff has been residing at the first floor and thus it can be concluded that the concept of blending or throwing into the common stock does not apply in the facts of the present case.
The further effect of this finding would be that the second floor as constructed by defendant no.1 is not liable to be partitioned and would remain as his personal property. However, here it is important to give a finding with regard to the terrace over the second CS No. 1040/11 Page No. 40 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013. floor. As it has been observed in issue no.1 that the property is co- parcenary property as was purchased in the year 1941, consisting of construction only upto first floor, the terrace over the first floor was also a part of the co-parcenary property and was to be shared by all members and co-parcenars and each co-parcenar had undivided share in it. Now since the finding has been arrived at regarding second floor being built up later in the year 1951 by defendant no.1 out of his own funds and thus the terrace over the first floor having lost its existence, the same is seen to be shifted as a terrace over the second floor and merely the construction of the second floor cannot deprive the other co-parcenars from their right i.e. Undivided share over the terrace which can now be given to all the co-parcenars as their share upon the terrace over the second floor. Equity also demands the same.
Thus the net result which comes out is that while the second floor remains the personal property of defendant no.1, the terrace over it is a part of coparcenary property. CS No. 1040/11 Page No. 41 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
36. Issue No. 6:- What are the respective shares of the parties?
To arrive at the answer of this issue firstly I shall deal with the alleged claim of the plaintiff in the relinquishment deed Ex PW 2/6. The plaintiff has laid his claim upon the basis of a registered relinquishment deed Ex PW 2/6 registered on 30.10.1986 executed jointly by Smt. Omwati daughter of Smt. Brahma Devi and Smt. Krishna Devi alleged wife of defendant no. 2 Madan Lal. The very first thing noted is that the last amended plaint is of 21.07.1986 and the said deed has been filed quite lately on 03.08.1995, as is seen from the list of documents attached with it. There is no application for taking the said deed on record and it has simply been filed without even incorporating it in the pleadings by way of amendment. The deed finds mentioned for the first time only in affidavit in evidence Ex PW 2/A of the plaintiff. Thus, the said relinquishment deed Ex PW 2/6 being beyond pleadings, cannot be read in evidence. Secondly, the relinquishment deed itself acknowledges the Will dt. 07.01.1975 CS No. 1040/11 Page No. 42 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
by Smt. Brahma Devi and stating her to be co- owner of suit property. Thus the executors of the deed themselves had no right to release/ relinquish any share in anyone's favour when admittedly they had no ownership rights in the property and were executing the deed upon the probability of any share accruing upon them from Smt. Brahma Devi. Moreover, the property being coparcenary, they had no such right of executing the said relinquishment deed Ex PW 2/6.
37. The Ld. Counsel for the plaintiff has relied upon Ramesh Chand Sharma Vs. R. S. Aggarwal & Ors. 22 (1982) DLT 356 wherein it was held that the release deed does not require to be attested by witness and it is not necessary to produce marginal witness to prove it U/s 68 of the Indian Evidence Act and that all endorsement of Sub-Registrar the execution, etc is to be presumed as true. But this ruling would not help the plaintiff as it has already been seen that the executors of the release deed Ex.PW2/6 had no power to dispossess with regard to the property CS No. 1040/11 Page No. 43 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
in dispute, the same being coparcenary property. Reliance is also placed upon Suresh Chand Gupta & Ors. Vs. Man Mohan Gupta & Anr. 107 (2003) DLT 160 in support of the contentions regarding the release deed.
38. Now since the property has been found to be coparcenary the same has to be partitioned accordingly. The persons entitled to a share in the partition of coparcenary property are the coparceners. Record shows that after the death of defendant no. 2 Madan Lal, Smt. Krishna Devi was substituted as his alleged wife in I. A. No. 6002/85 vide order dated 09.01.1986. The substitution application was opposed by defendant no. 1 on the ground that Smt. Krishna Devi is not legally wedded wife of the deceased. But the Hon'ble Court substituted her as one of the LR observing that 'without going into the controversy in this matter, which is subject matter of the main suit also, I allow the application.' It implies that there is a controversy with regard to the fact that Krishna Devi was not legally wedded wife of CS No. 1040/11 Page No. 44 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013. deceased Madan Lal. It also reflects from the pleadings in the WS of defendant no. 1 which states that defendant no. 2 all through his life had been leading immoral life and whatever he had. The WS avers Smt. Sharbati Devi as the mother i.e. wife of Madan Lal. Thus, the Hon'ble Court left the controversy open to be decided at a later stage and merely substituted Smt. Krishna Devi in place of deceased defendant no. 2 Madan Lal as LR in deciding the application. Firstly, it is noticed that there is no specific denial in the replication of the fact mentioned in the WS para 2 on merits about the mother being Sharbati Devi. Secondly, in evidence, the plaintiff/ PW-2 in his cross-examination dt. 24.02.2005 deposed that:
" It is correct that the first floor was in joint use of Smt. Brahma Devi, Smt. Sharbati Devi, my mother and defendant no. 1."
The above suggestion in bold letters clearly shows that the plaintiff admits Smt. Sharbati Devi to be his mother and consequently it implies that Smt. Krishna Devi is not his mother CS No. 1040/11 Page No. 45 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
and thus not the legally wedded wife of defendant no. 2 Madan Lal. It is also not the case that Madan Lal had two wives.
39. This is further fortified from the later part of cross-examination in which DW-1 admitted that his father Sh. Madan Lal was living with his keep at Jakhira. The effect of this finding is that Smt. Krishna Devi, not being the legally wedded wife of deceased defendant no. 2 father Sh. Madan Lal and thus not being the mother of plaintiff and defendant no. 2, cannot be entitled to any share in the partition which she would have been entitled had she been a legally wedded wife of Madan Lal. Smt. Sharbati Devi has already expired way back in 1961, as apprised by the Ld. Counsel for the defendants.
40. Thus, the persons entitled to a share in the coparcenary property are the plaintiff and defendant no. 1 but as the defendant no. 1 has been deceased his nine LRs (A to I as per amended memo of CS No. 1040/11 Page No. 46 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
parties dt. 18.07.2000) would have his share to be shared amongst them per capita.
41. Further, it is necessary to find what property is to be partitioned.
For that, the extent of the property is to be seen. The property consists of ground floor (shop), first floor and second floor and terrace on second floor. It has already been found in issue no. 5 that the 2nd floor is the personal property of defendant no. 1. Thus, the property which remains to be partitioned is the ground floor (shop), first floor and terrace over the second floor which is the coparcenary property. The said coparcenary property now becomes the suit property to be partitioned in which the plaintiff and defendant no. 1 share the suit property equally as 1/2 share per stripes but since defendant no. 1 has expired therefore 1/2 goes to his branch i.e. his LRs who shall share per capita i.e. ½ X 1/9 (1/9th of 1/2) amongst them i.e. 1/18 each, there being nine LRs (A to I as per amended memo of parties dt. 18.07.2000). CS No. 1040/11 Page No. 47 of 48 Jai Kishan Vs. Hari Kishan On 31th August, 2013.
RELIEF In light of the findings on all issues above, a preliminary decree for partition is hereby passed in respect of property comprising of ground floor (shop), first floor and terrace over second floor in premises bearing no. 2283, Gali Anar, Dharampura, Delhi entitling equal shares therein per stripes i.e. 1/2 each to plaintiff and defendant no. 1 and since defendant no. 1 has expired his share goes to his branch i.e. His LRs who shall share per capita i.e. 1/2 X 1/9 (1/9th of 1/2) amongst them i.e. 1/18 each.
Let a preliminary decree be drawn accordingly.
Announced in open Court (PRANJAL ANEJA)
on 31.08.2013 CIVIL JUDGE-14, CENTRAL
THC/DELHI/31.08.2013
CS No. 1040/11 Page No. 48 of 48
Jai Kishan Vs. Hari Kishan On 31th August, 2013.