Delhi District Court
Mrs Veena Vig vs Jyoti Bhushan on 4 June, 2024
IN THE COURT OF MS. RICHA GUSAIN SOLANKI,
DISTRICT JUDGE-02, SOUTH-WEST DISTRICT, DWARKA
COURTS, NEW DELHI
CS DJ ADJ No. 1086/2018
CNR No. DLSW010182012018
IN THE MATTER OF:
Mrs Veena Vig
W/o Late Sh. Raman Lal Vig.
D/o Late Sh. Tilak Raj
R/o H No. E-110
B.K.Dutt Colony
New Delhi ........Plaintiff
Versus
1. Mr Jyoti Bhushan
S/o Late Sh. Tilak Raj
R/o DG-II/94-A, Vikas Puri
New Delhi ...Defendant no.1
2. Mrs Kusum Kapur
W/o sh. Ravish Kapur
D/o Late Sh. Tilak Raj
R/o E-121, Kalka Ji
New Delhi ...Defendant no.2
3. Mrs Shamma Sehgal
W/o Sh. Ravi Sehgal
D/o Late Sh. Tilak Raj
R/o 81/24, Pratap Nagar
Rohtak, Haryana ...Defendant no.3
Date of institution 22.10.2018
Date of reserving judgment 08.05.2024
Date of pronouncement of judgment 04.06.2024
CS No. 1086/2018 Veena Vij vs. Jyoti Bhushan & Ors Page no. 1/22
JUDGMENT
This is a suit for partition, declaration, permanent injunction and mesne profits. The brief facts of the suit are:− PLAINT 1 It is stated that the plaintiff is the sister of the defendants. It is stated that the father of the parties, Sh. Tilak Raj, had purchased a flat bearing number 94A, DG-II Block, SFS Flats, Vikas Puri, New Delhi. It is stated that later he purchased Flat number 94B, DG-II Block, SFS Flats, Vikas Puri, New Delhi from the money received after selling ancestral property (hereinafter collectively referred to as the "suit properties" ) in the name of their mother Smt. Kailash Rani ( hereinafter referred to as the "deceased".) 2 It is stated that after the death of Sh. Tilak Raj, the plaintiff and the defendants executed a relinquishment deed in favour of the deceased, by mutual consent on 05.08.2009 for mutation purposes. It is stated that thus, the deceased became the owner of the subject properties.
3 It is stated that in December 2016, the deceased passed away due to old age as well as illness. It is stated that she had "become weak/ unconscious/mentally upset". It is stated that although the deceased was residing with defendant no.1, the plaintiff had served her when she had fallen sick and had borne all her medical expenses through her CGHS card. 4 It is stated that after the passing of the deceased, the plaintiff approached the defendants for distribution of the assets of the deceased, but they kept delaying the matter. It is stated that on 17.05.2018, the plaintiff sent a legal notice dated 04.05.2018 to defendant no.1, seeking a partition of the suit CS No. 1086/2018 Veena Vij vs. Jyoti Bhushan & Ors Page no. 2/22 properties as well as of bank deposits, cash, jewellery, etc of the deceased. It is stated that defendant no.1 sent a reply on 23.05.2018, wherein he stated that the deceased had executed a Will of the suit properties in his favour and that defendant nos. 2 and 3 were witnesses to the same.
5 It is stated that after the passing of the deceased, defendant no.1 had withdrawn the bank balance in the deceased's name and had given ₹5 lakhs to the plaintiff as her one-fourth share in the movable property.
6 It is stated that the Will in favour of defendant no.1 has been executed under undue influence, coercion and fraud of the defendants. It is stated that at the time of her death, the deceased was 85 years old and was suffering from several old- age diseases and unconsciousness and she was mentally disturbed for long. It is stated that the deceased was not capable of understanding the nature of the document when the Will dated 24.04.2014 was executed. It is further stated that the deceased was not educated and did not understand the English language. It is stated that the Will has not been executed by the free will of the deceased.
7 It is also stated that the plaintiff had executed the relinquishment deed in favour of the deceased for mutation purposes, but defendant no.1 has misused the said document to grab the share of the plaintiff in the suit properties. It is submitted that, therefore, the relinquishment deed is also liable to be declared void.
8 Hence, the present suit has been filed seeking a relief of declaration that the relinquishment deed dated 09.08.2009 and the Will dated 24.04.2014 are null and void, of partition and CS No. 1086/2018 Veena Vij vs. Jyoti Bhushan & Ors Page no. 3/22 possession of the suit properties, of mesne profits @ ₹20,000 per month till the possession is handed over and of permanent injunction restraining the defendants from transferring/ alienating or creating any third party interest over the suit properties till the disposal of the suit.
WRITTEN STATEMENT 9 Defendant nos. 1 and 3 filed a common written statement stating that the deceased has bequeathed the suit properties in favour of defendant no.1 whereas the money in her bank account had already been distributed among the plaintiff and defendant nos. 2 and 3, as per the mutual settlement. It is stated that the relief of declaration regarding the relinquishment deed is barred by limitation, having been claimed after 9 years and 8 months. It is stated that defendant no.1 and his wife used to hand over their salaries to the deceased and this money was utilised to purchase flat no.94B in the name of the deceased. It is stated that the plaintiff used to reside in her matrimonial house and she had no concern with the health of the deceased. It is stated that the plaintiff has relied on medical documents of the deceased pertaining to April 2011 whereas the deceased passed away much later on 30.12.2016. It is denied that the deceased was suffering from unconsciousness or weakness, as alleged. It is stated that the deceased used to control, manage and administer the household. It is stated that the deceased resided with defendant no.1 and did not visit the plaintiff as she considered it improper for the parents to live with a married daughter. It is stated that the deceased had expressly mentioned in the Will that her daughters were happily living with their in-laws and CS No. 1086/2018 Veena Vij vs. Jyoti Bhushan & Ors Page no. 4/22 therefore, they were not given any share in the suit properties. It is stated that the deceased was hale and healthy and that she had made the Will on her own accord in a sound and disposing state of mind.
10 This written statement was subsequently adopted by defendant no.2.
REPLICATION 11 The plaintiff filed a replication to the written statement reiterating the contents of the plaint and denying the averments made in the written statement.
ISSUES 12 Admission-denial of documents was conducted and the documents admitted by the plaintiff were marked as Ex D-1 to Ex D-3 and those admitted by the defendants were marked as Ex P-1 to Ex P-4.
13 Thereafter, vide order dated 24.07.2019, Ld Predecessor Court framed ten issues in this case:
"(1)Whether the defendant no. 1 proves the due execution of registered will dated 24.02.2014?...OPD1 (2) Whether the relinquishment deed dated 09.08.2019 executed by the plaintiff and defendants with regard to an immovable property i.e. Flat No. 94A, DGII Block, SFS Flats, Vikas Puri, New Delhi 110018 in favour of their mother Kailash Rani (now deceased) shall be declared null and void?...OPP (3) Whether the immovable property i.e. Flat No. 94A, DGII Block, SFS Flats, Vikas Puri, New Delhi 110018 was the absolute property of Kailash Rani (now deceased) mother of the parties? ...OPP CS No. 1086/2018 Veena Vij vs. Jyoti Bhushan & Ors Page no. 5/22 (4) Whether the immovable property i.e. Flat No. 94A, DGII Block, SFS Flats, Vikas Puri, New Delhi 110018 is to be partitioned amoungst the parties who are the legal heirs of Kailash Rani (now deceased)? ...OPP (5) Whether the plaintiff is entited for 1⁄4th share in the immovable property i.e. Flat No. 94A, DGII Block, SFS Flats, Vikas Puri, New Delhi 110018? ...OPP (6) Whether the plaintiff is entitled for mesne profit @ 20,000/ per month from the date of the death of Kailash Rani (now deceased) on 30.12.2016 until the date of handing over of the possession of 1⁄4th share to the plaintiff. ...OPP (7) Whether this suit is barred by law of limitation? ...OPDs (8) Whether the plaintiff has concealed the material facts and documents from this Court?...OPDs (9) Whether the plaintiff has under valued the suit property and the suit is liable to be dismissed? ...OPDs (10) Relief, if any."
EVIDENCE 14 In order to prove her case, the plaintiff examined four witnesses.
14.1 PW1/the plaintiff tendered her affidavit Ex PW-1/A in evidence which reiterates the facts mentioned in the plaint. She relied on the following documents:
S. No. Document Marked as 1. A copy of the Aadhaar card of the plaintiff Ex P-1 2. A copy of the identity card of the plaintiff Ex P-2 3. Site plan Ex P-3 4. A copy of the relinquishment deed Ex P-4
5. Copies of the CGHS card and medical Ex PW1/E documents
6. A copy of the legal notice sent to defendant Ex PW1/F CS No. 1086/2018 Veena Vij vs. Jyoti Bhushan & Ors Page no. 6/22 no.1
7. A copy of the reply to the legal notice sent Ex PW1/G by defendant no.1
8. Copy of the Will dated 24.04.2014 Ex PW1/H (also Ex D-3) 14.2 PW2/Witness from employer of the plaintiff proved the service record of the plaintiff Ex PW2/1 in which it was shown that the deceased was one of the beneficiaries of the CGHS facilities given to the plaintiff.
14.3 PW3/Witness from Mata Chanan Devi Hospital proved the medical records Ex PW3/1(colly) of the deceased. 14.4 PW4/Witness from employer of the plaintiff proved the leave record of the plaintiff Ex PW4/A wherein it is shown that the plaintiff was not on leave on 24.04.2014. 15 Defendants examined five witnesses in their support:
15.1 DW1/Defendant no.1 tendered his affidavit Ex DW-1/A in evidence which supports the averments made in the written statement. He relied on the following documents:
S. No. Document Marked as
1. Special Power of attorney in favour of defendant Ex D1 no.1 executed by defendant no.2 and 3
2. A copy of the Will executed by Sh. Tilak Raj in Ex D-2 favour of the deceased
3. A copy of the relinquishment deed Ex P-4
4. Copy of the Will dated 24.04.2014 Ex D-3 15.2 DW2/Witness from Sub-Registrar Office-II, proved the registration of Will Ex D-3 and that of relinquishment deed Ex P-4.
15.3 DW3/Defendant no.3 tendered his affidavits Ex DW-
3/A which supports the averments made in the written CS No. 1086/2018 Veena Vij vs. Jyoti Bhushan & Ors Page no. 7/22 statement. She relied on already exhibited documents Ex DW1/2, Ex DW1/3 and Ex P-4.
15.4 DW4 and DW5 are witnesses of the relinquishment deed and they proved its execution.
FINDINGS 16 I have heard Sh. Satender Kajla, Ld Legal Aid Counsel for the plaintiff and Dr. Major J.C. Vashista & Ms. Manisha Vashista, Ld. Counsels for the defendants and have perused the record.
17 Issue-wise findings are as under:
Issue no. "(2) Whether the relinquishment deed dated 09.08.2019 executed by the plaintiff and defendants with regard to an immovable property i.e. Flat No. 94 A, DGII Block, SFS Flats, Vikas Puri, New Delhi 110018 in favour of their mother Kailash Rani (now deceased) shall be declared null and void?...OPP"
AND Issue no. "(7) Whether this suit is barred by law of limitation? ...OPDs"
18 The onus of proving issue no. (2) was on the plaintiff whereas that of issue no. (7) was on the defendants. Both these issues are connected and are thus, being taken up together. 19 It is the admitted case of the parties that the relinquishment deed Ex P-4 was executed by the plaintiff on 09.08.2009 whereas the present suit was filed on 22.10.2018. 20 It is argued by Ld Counsel for the defendants that in the plaint itself the plaintiff has stated that the relinquishment deed was executed by mutual consent and, therefore, she has no cause of action for seeking a declaration regarding the CS No. 1086/2018 Veena Vij vs. Jyoti Bhushan & Ors Page no. 8/22 relinquishment deed.
21 On the other hand, Ld LAC for the plaintiff has argued that the relinquishment deed was executed with the understanding that flat no. 94A would be mutated in the name of the mother and thereafter, all the legal heirs would be given equal shares. 22 However, I do not agree with Ld LAC. The plaintiff has deposed that the relinquishment deed was executed for "purpose of municipal taxes, mutation and electricity bill". She has neither averred nor proved that the relinquishment deed was executed under any other pretense. 23 As per Section 92 of the Evidence Act, when the terms of any contract, grant or other disposition of property have been reduced to the form of a document and proved in terms of Section 91 of the Act, no evidence of any oral agreement or statement shall be admitted for the purpose of contradicting, varying, adding to, or subtracting from, its terms. There are some exceptions to this rule:
"Proviso (1).--Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. Proviso (2).--The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.
Proviso (3).--The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved. Proviso (4).--The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been CS No. 1086/2018 Veena Vij vs. Jyoti Bhushan & Ors Page no. 9/22 registered according to the law in force for the time being as to the registration of documents.
Proviso (5).--Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved. Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.
Proviso (6).--Any fact may be proved which shows in what manner the language of a document is related to existing facts."
24 The onus of proving such exceptional grounds is on the party who asserts such facts.
25 In the present case, the plaintiff does not claim any of the grounds mentioned in Proviso 2 to 6.
26 The plaintiff has also not pleaded or proved fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law.
27 It is also noteworthy that Late Sh. Tilak Raj had left a Will dated 20.06.1994 Ex D-1, which is an admitted document of the parties. In this Will, he had bequeathed all his movable and immovable properties in favour of the deceased. Therefore, the relinquishment deed was just a formality since the flat no. 94A already stood bequeathed to the deceased. 28 Therefore, there is no ground to declare the relinquishment deed as null and void.
29 Moreover, the relinquishment deed was within the knowledge of the plaintiff since its inception, having been executed "by mutual consent". As per Article 58 of the Schedule to the Limitation Act, the period of limitation for obtaining a declaration is three years from the day when the right to sue first accrued. The cause of action cannot be said to CS No. 1086/2018 Veena Vij vs. Jyoti Bhushan & Ors Page no. 10/22 have first accrued either on the deaths of the parents of the parties or when the plaintiff demanded a partition, as mentioned in the plaint. At best, the right to sue, if any accrued on 05.08.2009 and hence, the relief of declaration regarding the relinquishment deed is also barred by the law of limitation.
30 Both these issues are accordingly, decided against the plaintiff and in favour of the defendants.
Issue no."(1)Whether the defendant no. 1 proves the due execution of registered will dated 24.02.2014?...OPD1" 31 There is a typographical error in this issue. The Will is dated 24.04.2014 and not 24.02.2014. The error stands rectified and the issue is treated as such.
32 The onus of proving this issue was on defendant no.1. In the plaint, the plaintiff has taken four-fold grounds as to why the Will is liable to be declared null and void: One that the deceased was an illiterate woman and did not understand the English language in which the Will is drafted. Two, that she was about 85 years of age at the time of her death and was suffering from various old age ailments. Three, that she was mentally disturbed and suffered from unconsciousness, and did not have a sound state of mind to execute the said documents. Four, that the defendants exercised fraud, undue influence, coercion and misrepresentation upon the deceased. 33 Indeed, it appears that the deceased did not understand the English language because she put her signatures in hindi on the Will and the other documents.
CS No. 1086/2018 Veena Vij vs. Jyoti Bhushan & Ors Page no. 11/22 34 However, there is no requirement in law that a Will should be made in the language that the testator understands or specifically mention that the same is being prepared under the dictation of the executor. Rather, often a Will is prepared by an Advocate and has a standard format in which changes are made by the parties to suit their requirements. 35 This is registered Will which specifically contains a certificate from the concerned Sub-Registrar that the contents of the document had been read over to the testator and the same were admitted to be correct. Therefore, the first ground raised against the sanctity of the Will is not sustainable. 36 The second ground raised by the plaintiff is that the deceased was about 85 years of age at the time of her death and was suffering from various old age ailments. 37 Certainly, it appears from the medical documents on record that the deceased was around 86 years old at the time of decease on 30.12.2016 and she was around 83-84 years old at the time of executing the Will. The Will was executed by the deceased on 24.04.2014, that is, roughly three years before her death.
38 It is reasonable to assume that at such an advanced age, the deceased was suffering from age-related illnesses and lacked good health, however, unless the physical health is proven to cause such deterioration in mental health so as to become lack of soundness of mind, it cannot be held that the deceased was lacking mental capacity especially more so in the facts of the present case where the Will is a registered Will and the Sub- Registrar acting under the provisions of the Registration Act, 1908, read with Section 114 of the Evidence Act, 1872, would CS No. 1086/2018 Veena Vij vs. Jyoti Bhushan & Ors Page no. 12/22 have put appropriate questions to the testator at the time of registration of the Will i.e questions pertaining to due execution and attestation of the Will.
Therefore, the second ground also does not hold water. 39 The third ground raised by the plaintiff is that the deceased was mentally disturbed and suffered from unconsciousness, and did not have a sound state of mind to execute the said documents.
40 At the outset, it may be again noted that the deceased passed away nearly three years after the Will was made. 41 The plaintiff had summoned the medical records of the deceased from Mata Chanan Devi Hospital pertaining to the treatment given to her immediately before her passing. Her medical documents show that she was admitted in the hospital on 15.12.2016 with diabetes, hypertension, breathing difficulty and chronic kidney disease. None of these diseases are such as would indicate that the deceased had any long standing mental health issues. The deceased was drowsy and unconscious on 15.12.2016 but that does not mean that the deceased suffered from unsoundness of mind when the Will was executed.
42 The documents brought from Mata Chanan Devi Hospital also included some copies of the previous treatment papers of the deceased at Sir Ganga Ram Hospital. These documents pertain to the period of April to May 2010 and mention that the patient was suffering from hypertension and cervical myelopathy, which was causing bodily pain to her. Her discharge summary shows that at the time of discharge, she was conscious, alert, improving and her vitals were stable.
CS No. 1086/2018 Veena Vij vs. Jyoti Bhushan & Ors Page no. 13/22 43 The medical history of the deceased given at Mata Chanan Devi Hospital also does not mention that she had any mental health issues.
44 Therefore, none of the medical documents of the deceased show that she had any mental health issues or cognitive impairment on 24.04.2014.
45 Further, when the issue is of soundness of mind, it was necessary for the plaintiff to prove such medical records of the deceased as would indicate her lack of mental capacity for making of the Will at the time when the Will was made. 46 It is also noteworthy that while the plaintiff claims that she was bearing all the medical expenses of the deceased through her CGHS card but it is not her case that she ever got the deceased treated for any psychological problem. In these circumstances, the contention that the deceased was mentally unfit does not appear to be probable.
47 Moreover, it is the case of the plaintiff that the deceased was mentally ill in the year 2014 (when the Will was executed) and continued to remain so for three years (till her death). Thus, while the period of mental illness allegedly extended for nearly three years, the plaintiff did not even examine any person to vouch for the fact that the deceased was suffering from any mental illness.
48 At the cost of repetition, unsoundness of mind has to be proved and buttressed by some medical evidence as to lack of mental capacity, and in my opinion, self serving oral testimony of the plaintiff cannot be believed in the facts of the present case to hold the lack of mental capacity of the deceased while making the Will.
CS No. 1086/2018 Veena Vij vs. Jyoti Bhushan & Ors Page no. 14/22 49 The fourth ground of the plaintiff to challenge the Will is that the defendants exercised fraud, undue influence, coercion and misrepresentation upon the deceased.
50 Ld LAC for the plaintiff has argued that the plaintiff was deliberately not told about the Will, as is clear from the testimonies of DW3 and PW4, and this raises a suspicion that the defendants had exercised coercion or fraud or undue influence on the deceased for executing the Will. 51 I am unable to find any force in this argument. Order VI Rule 4 CPC provides:
"Particulars to be given where necessary.--In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."
52 Further, in Bishundeo Narain and Another v. Seogeni Rai and Others, AIR 1951 SC 280 the Hon'ble Supreme Court observed that general allegations of fraud and mis- representation are insufficient to be considered as specific averment of fraud. The parties are required to provide fill particulars and the case can only be decided on the particulars as laid. Similarly, in Ladli Prasad Jaiswal vs Karnal Distillery Co., Ltd. & Ors, 1963 AIR 1279 it was observed that a litigant who prefers allegation of fraud or other improper misconduct must place on record precise and specific details of these charges.
53 The plaintiff has taken the entire gamut of objections but has not pleaded details of any ground. The deceased was admittedly residing with defendant no.1, who is the only son. She may have rightly or wrongly decided to bequeath all her CS No. 1086/2018 Veena Vij vs. Jyoti Bhushan & Ors Page no. 15/22 properties to him. Mere absence of the plaintiff at the time of the execution of the Will is no ground to suspect the Will; her absence is capable of being explained with several reasons. 54 The plaintiff claims to be in constant touch with the deceased, who passed away nearly three years after executing the Will. If the deceased had any time doubted the intentions of the defendants, she must have made a mention of it to the plaintiff. However, it is not the case of the plaintiff that the deceased ever expressed anything like this to her. 55 The Will dated 24.04.2014 is a registered one and there is a presumption regarding its genuineness. Reliance is placed on the judgment in the case of Rani Purnima Devi and anr vs Kumar Khagendra Narayan Dev and anr, AIR 1962 SC 567 wherein it was observed by the Hon'ble Apex Court:
"There is no doubt that if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the will) that the testator knew that it was a will the execution of which he was admitting, the fact that the will Was registered would not be of much value."
56 It was open for the plaintiff to show why reliance should not be placed on the Will, show the circumstances that bring CS No. 1086/2018 Veena Vij vs. Jyoti Bhushan & Ors Page no. 16/22 the Will under suspicion or why the certificate given by the Sub-Registrar at the foot of the Will should not be believed but she has miserably failed to discharge this onus. Apart from the fact that the Will is to the dislike of the plaintiff, who has been excluded therefrom, no other circumstance has been proved on record. Exclusion of one or more heirs is in itself not a ground to suspect the circumstances in which a Will is made.
57 DW3 has testified that the Will had been explained to all, including the deceased by the Advocate and thereafter, first the deceased signed it and after her, defendant no.2 and then defendant no.3 signed it. She explained that the deceased was suffering from age-related ailments and therefore, she decided to execute the Will. She also explained that the deceased did not intend to give any share in the immovable properties to the daughters as they were well-settled and amounts had been spent on their marriages. She specifically stated that the deceased was feeble due to old age but she was mentally fit. 58 Although, issue no. (1) is framed so as to put the onus of proving the due execution of the Will on the defendants, it is to be noted that the present proceedings are not of a probate petition filed by defendant no.1, but a declaratory suit filed by the plaintiff. The burden of proof is upon the plaintiff to first prove that suspicious circumstances exist regarding the execution of the Will, and only then the onus would shift on the defendant nos. 1 to remove such suspicion(s). The case of the plaintiff must stand on its own legs and she must prove why she is entitled to a declaration that the Will dated 24.04.2014 is null and void.
CS No. 1086/2018 Veena Vij vs. Jyoti Bhushan & Ors Page no. 17/22 59 As discussed herein-above, there is no reason to disbelieve or doubt the execution of the Will dated 24.04.2014. 60 Issue no.(1) is accordingly answered.
Issue no. (3) "Whether the immovable property i.e. Flat No. 94A, DGII Block, SFS Flats, Vikas Puri, New Delhi 110018 was the absolute property of Kailash Rani (now deceased) mother of the parties? ...OPP"
61 There appears to be a typographical error in the framing of this issue. The flat no. 94A was purchased in the name of Sh. Tilak Raj, which came into the hands of the deceased after his decease. It was flat no. 94B regarding which the parties have made submissions as to the source of sale consideration. I shall deal with both flats under this issue. 62 So far as the flat no. 94A is concerned, once Sh. Tilak Raj had bequeathed a Will of all his properties in favour of the deceased, the said flat became her absolute property. Further, when the parties to this suit executed a relinquishment deed of the flat no. 94A in favour of the deceased, there remained no doubt that the same was her exclusive property. There can be no two ways that the deceased was the absolute owner of the flat no. 94A, after Sh. Tilak Raj passed away. 63 As regards flat no. 94B, the plaintiff claims that it was purchased out of money received from the sale of ancestral property. On the other hand, the defendants claim that it was purchased from the monies of defendant no.1 and his wife. Apart from their ipse dixit, no evidence was led by both sides. 64 Merely saying that there was an ancestral property or that the property at Rohtak was ancestral is not sufficient.
CS No. 1086/2018 Veena Vij vs. Jyoti Bhushan & Ors Page no. 18/22 Evidence was required to show why and how the property at Rohtak was ancestral, when it had been sold, how the sale proceeds had been utilized.
65 The plaintiff has claimed that her grandfather was allotted the house at Rohtak after partition. In the case of Yudhishter vs. Ashok Kumar (1987) 1 SCC 204, the Hon'ble Supreme Court has observed that after the Hindu Succession Act 1956, when the son inherited the property in the situation contemplated by Section 8, he does not take it as karta of his own undivided family but takes it in his individual capacity. Therefore, the plaintiff ought to have explained when the property was allotted to her grandfather and when Sh. Tikal Raj got it from his father.
66 Similarly, the defendants ought to have brought documentary proof that the salaries of defendant no.1 and his wife were being given to the deceased.
67 Moreover, since none of the parties have actually stated that the flat no. 94B was held benami in the name of the deceased, the same would continue to be under her absolute ownership as there is no bar in the Contract Act that the consideration is paid by someone other than for whose benefit the contract is executed.
68 This issue is accordingly answered.
Issue no. "(4) Whether the immovable property i.e. Flat No. 94A, DGII Block, SFS Flats, Vikas Puri, New Delhi110018 is to be partitioned amoungst the parties who are the legal heirs of Kailash Rani (now deceased)? ...OPP"
AND CS No. 1086/2018 Veena Vij vs. Jyoti Bhushan & Ors Page no. 19/22 Issue no. "(5) Whether the plaintiff is entited for 1⁄4th share in the immovable property i.e. Flat No. 94A, DGII Block, SFS Flats, Vikas Puri, New Delhi 110018? ...OPP"
AND Issue no.(6) Whether the plaintiff is entitled for mesne profit @ 20,000/ per month from the date of the death of Kailash Rani (now deceased) on 30.12.2016 until the date of handing over of the possession of 1⁄4th share to the plaintiff. ...OPP 69 There is a typographical error in the framing of issue nos.
4 and 5 since the plaintiff has claimed partition of both the flats, that is, flat no.94A and 94B and not just flat no. 94A. The error stands rectified under Section 153 CPC. 70 The onus of proving these issues was on the plaintiff.
Since the findings on all these issues will follow the findings on previous issues, they are being dealt with together. 71 In view of the findings on issue no.(1), the suit properties, having been bequeathed by Will dated 24.04.2014 to defendant no. 1, are no longer the intestate properties of the deceased and cannot be partitioned according to Hindu Succession Act. Resultantly, no mesne profits can be granted in favour of the plaintiff against the owner of the suit properties.
72 The issues no.(4), (5) and (6) are decided against the plaintiff and in favour of the defendants.
"Issue no. (8) Whether the plaintiff has concealed the material facts and documents from this Court?...OPDs"
73 The onus of proving this issue was on the defendants but the defendants have not led any evidence on this issue. The CS No. 1086/2018 Veena Vij vs. Jyoti Bhushan & Ors Page no. 20/22 defendants could not present any material fact which had been suppressed by the plaintiff.
74 Therefore, it cannot be said that the plaintiff is guilty of concealing material facts or documents from the court. This issue is decided in favour of the plaintiff and against the defendants.
Issue no."(9) Whether the plaintiff has under valued the suit property and the suit is liable to be dismissed? ...OPDs" 75 The onus of proving this issue was on the defendants. 76 The plaintiff has given only two valuations in the plaint, that is, ₹98,46,180 for "declaration, partition, possession" and ₹130 for injunction. It is mentioned in the plaint that "appropriate" "requisite" court fee is paid. As regards the mesne profits, the plaintiff undertook to pay appropriate court fee on the same, as awarded by the court.
77 The plaintiff has paid one cumulative amount of ₹25000/-
as court fees without giving a break up as to how much court fees has been paid on each relief.
78 There is no gainsaying that the plaintiff ought to have each relied separately for the purpose of jurisdiction and for the purpose of court fees.
79 Ld LAC for the plaintiff fairly concedes that the valuation clause is not properly worded. However, he has argued that as per the plaintiff, the cumulative value of both the flats was ₹98,46,180 and it was for the defendants to show otherwise. 80 It is further stated that the plaintiff has paid a court fee of ₹20 each for the reliefs of declaration and partition, ₹13 for the relief of permanent injunction and the remainder court fees CS No. 1086/2018 Veena Vij vs. Jyoti Bhushan & Ors Page no. 21/22 is for the relief of mesne profits up till the date of filing of the suit. It is submitted that there is no ouster of the plaintiff from the suit properties and she is, being a married daughter, deemed to be in joint possession with the other heirs and hence, the relief of possession is included within the relief of partition.
81 It is further submitted by Ld. LAC that calculated thus, the plaintiff has paid much more court fees in anticipation of the mesne profits.
82 Since the defendants have not led any evidence to the contrary, there is no reason to hold that the suit is undervalued. Resultantly, this issue is decided in favour of the plaintiff and against the defendants.
Issue no. "(10) Relief."
83 In view of the above-noted observations, the suit of the plaintiff is dismissed. Parties to bear their own costs. 84 Decree sheet be prepared accordingly.
85 File be consigned to record room after due compliance.
Digitally signed by RICHA RICHA GUSAIN
GUSAIN SOLANKI
Date: 2024.06.04
Announced in open Court today SOLANKI
(Richa Gusain Solanki)
17:01:03 +0530
on 04th June, 2024 District Judge-02,
South-West District
Dwarka Courts: New Delhi
CS No. 1086/2018 Veena Vij vs. Jyoti Bhushan & Ors Page no. 22/22