Delhi District Court
Sanjay Kumar vs Smt. Ranjeet Kaur on 8 September, 2011
1
IN THE COURT OF SH. JAGDISH KUMAR: JSCCcumASCJcumGJ
KARKARDOOMA COURTS: DELHI
Suit No. 327/08
In the matter of :
1. Sanjay Kumar
2. Suman
3. Ruby
4. Rajiv Kumar
All Son & Daughters of Late Sh. Surjeet Singh
All R/o H. No. 28/56, Kasturba Nagar,
Shahdara, Delhi32.
All Presently residing/ Correspondence
address at : C/o Smt. Gurdeep Kaur,
R/o H. No. 28/83, Kasturba Nagar,
Shahdara, Delhi32 ....... Plaintiffs
Versus
Smt. Ranjeet Kaur
W/o Sh. Mahender Singh
R/o H. No. 28/99, Kasturba Nagar,
Shahdara, Delhi32. ....... Defendant
Suit No. 327/08 Page 1 of 17
2
JUDGMENT
1. The plaintiffs have filed the present suit for possession, permanent and mandatory injunction against the defendant Ranjeet Kaur. The plaintiffs asserted in the plaint that the property bearing no. 28/56 Kasturba Nagar, Shahdara, Delhi32 was owned by their grand mother namely Late Smt. Bishan Kaur, who expired on 12.01.04. The marriage of the plaintiff's father and mother namely Smt. Gurdeep Kaur was solemnized on 21.02.1971. The plaintiffs are six brothers and sisters. Four are sisters and two are brothers. Two elder sisters of the plaintiffs are married, namely Asha and Usha and residing in their matrimonial home.
2. The plaintiffs further asserted in their plaint that due to temperamental differences, their parents got separated by a mutual divorce decree on 07.12.1995. All the plaintiffs remained with their father Late Sh. Surjeet Singh at the suit property bearing no. 28/56 Kasturba Nagar, Shahdara, Delhi32 with late grand mother Smt. Suit No. 327/08 Page 2 of 17 3 Bishan Kaur. The suit property is one and half storey built up property consisting 6 rooms. Out of these 6 rooms, two rooms come in the share of father of the plaintiffs as the plaintiffs have asserted in their plaint.
3. The plaintiffs have asserted in their plaint that after the death of their grand mother the relations between their mother and father got become of visiting nature. The plaintiffs also started to visit the house of their mother. The father of the plaintiffs expired on 20.02.08. After the death of plaintiffs' father, their paternal aunt (Bua) started to reside with them in the suit property as defendant no. 3 & 4 were minor at that time.
4. The plaintiffs asserted in their plaint that in the second week of July 2008, the defendant Ranjeet Kaur requested to the mother of plaintiffs for keeping them with her for few days as she has to go to for some religious tour, (Tirath Yatra) as there was no other person who can look after the plaintiffs in the absence of defendant. Then, the plaintiffs went to reside with their mother at H. No. 28/83 Suit No. 327/08 Page 3 of 17 4 Kasturba Nagar, Shahdara, Delhi32. The defendant came from the religious tour after one and half month. Then, mother of the plaintiffs requested the defendant to take back the plaintiffs at the suit property, but defendant requested to the mother of the plaintiffs to keep the plaintiffs with her for few more days. The mother of the plaintiffs agreed for the same. But, due to the passage of many days, when the defendant had not called the plaintiffs to the suit property, then the plaintiff no. 1 and his mother got suspicious and met the defendant on 01.09.08 at the suit property and tried to enter in the suit property, but defendant had not allowed them. The plaintiffs again met the defendant but defendant threatened the plaintiffs with dire consequences. A police complaint was also made to the concerned police station on 09.09.08 but no action has been taken by the police.
5. Summons of the suit were issued to the defendant. The defendant was served with the summons and put her appearance and filed the WS in detail. The defendant took the preliminary objection that plaintiffs have concealed the material facts. The defendant has Suit No. 327/08 Page 4 of 17 5 admitted the divorce between the mother and father of the plaintiffs. The defendant has asserted that after the divorce, the plaintiffs had gone with their mother to the house where their mother was residing. The father of the plaintiffs was suffering from cancer since long back. Neither the mother of the plaintiffs, nor the plaintiffs took care of her husband or their father, after the divorce. Even the plaintiffs have never come to see their sick father. The defendant further asserted that she had look aftered her sick brother as per her capacity and also got treated her brother. The father of the plaintiffs was very happy with the services of her sister i.e. defendant.
6. Due to the services, love and affection, Late Sh. Surjeet Singh (Brother of the defendant) executed a will dated 22.08.07 with respect to suit property in her favour. The defendant alleged that plaintiffs want to grab the suit property. They have no right, title or claim of their share in the suit property in any way. The defendant asserted in the WS that she has become absolute owner of the suit property by virtue of will deed. The defendant further alleged that Suit No. 327/08 Page 5 of 17 6 plaintiffs want to grab the property by forcibly dispossessing her and creating problems in the peaceful possession of her. The defendant further alleged that the plaintiffs have given wrong address in the plaint as 28/99 Kasturba Nagar, Shahdara, Delhi32 of her. She is residing at property bearing no. 28/56 Kasturba Nagar, Shahdara, Delhi32.
7. The defendant further asserted that she has never went for visiting any religious place as alleged by the plaintiffs in their plaint. The defendant further replied in her WS that neither the plaintiffs nor their mother had ever met to her after the divorce between her brother and mother of the plaintiffs. The defendant has prayed for dismissal of the suit.
8. Replication to the WS has been filed by the plaintiffs in which the plaintiffs have asserted all the facts mentioned in the plaint and denied all the allegations and averments made in the WS by the defendant. The plaintiffs denied that Late Sh. Surjeet Singh, their Suit No. 327/08 Page 6 of 17 7 father, has executed a will dt. 22.08.07 due to service, love and affection with respect to suit property and alleged that the will is false and fabricated. The plaintiffs further asserted that Late Sh. Surjeet Singh (their father) has inherited the suit property from her mother and infact the late Sh. Surjeet Singh was only the cosharer of the ancestral property with the plaintiffs. The plaintiffs have prayed for the decree of the suit.
9. After the completion of pleadings, following issues were framed by my Ld. Predecessor on 18.03.2009 :
1. Whether the plaintiffs are entitled for possession as claimed? OPP
2. Whether the plaintiffs are entitled for permanent and mandatory injunction as claimed? OPP
3. Relief.
10. I have heard the Ld. Counsels for the parties and gave my thoughtful consideration to the submissions made by the parties and also perused the file.
Suit No. 327/08 Page 7 of 17 8 ISSUE NO. 1 :
11. The onus to prove this issue is casted upon the plaintiffs. The plaintiffs are seeking the possession of the suit property bearing no. 28/56 Kasturba Nagar, Shahdara, Delhi32. Firstly, the plaintiffs are claiming the possession of the suit property on the basis of co owner alongwith their Late father Sh. Surjeet Singh. Secondly, that the will dt. 22.08.07 is forged and fabricated and thirdly, that they were in possession of the suit property since the divorce of their parents.
12. The first question which has to be answered by this court is whether the plaintiffs were coowner alongwith their father, of the suit property. In this regard, the plaintiffs have asserted in their plaint that the suit property bearing no. 28/56 Kasturba Nagar, Shahdara, Delhi32 was belonging to her grand mother namely Late Smt. Bishan Kaur. The PWs have also deposed on the same lines as they have asserted in their plaint on this fact. It is not the case of the plaintiffs that Smt. Bishan Kaur has inherited the suit property from her ancestors. So, it is the proven fact on record that the suit property Suit No. 327/08 Page 8 of 17 9 was belonging to Smt. Bishan Kaur. Section 15 of the Hindu Succession Act, 1956 describes the general rules of succession in case of female Hindus. Section 15 (1) of the Hindu Succession Act lays down the rules of succession as " The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16 :
(a) Firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;
(b) Secondly, upon the heirs of the husband;
(c) Thirdly, upon the mother and father;
(d) Fourthly, upon the heirs of the father ; and
(e) Lastly, upon the heirs of the mother.
13. The clause 2 of Sub Clause 2, Section 15 of the Hindu Succession Act is not applicable in the present suit, as nothing is in pleadings of the parties that Late Bishan kaur, grand mother had inherited the suit property from her father or mother, or from her husband or from her father in law. So, in the absence of any Suit No. 327/08 Page 9 of 17 10 pleadings in this regard, I am of the view that the suit property was the property of Late Smt. Bishan Kaur, Grand Mother.
14. The Section 16 of the Hindu Succession Act describes the rules how the property of a female Hindu will be distributed. So, by the joint reading of Section 15 & 16 Hindu Succession Act, the suit property will be distributed among the sons, daughters (including any children of any predeceased son or daughter) and the husband, as per provision of Section 15 (1) (a) of the Hindu Succession Act. The plaintiffs does not falls in that category. So, I am of the considered view that the plaintiffs are not the coowners of the suit property.
15. The second question is whether the will dated 22.08.07 is forged and fabricated. Neither the PW1, nor PW2 have deposed in their examination in chief that the will dt. 22.08.07 is forged and fabricated. It is the settled law that if a party alleging the document as forged and fabricated. That party has to prove the forgeness and fabrication of the document. A suggestion has been put to the witnesses that will has been executed by the father of the plaintiffs. Suit No. 327/08 Page 10 of 17 11 The plaintiffs have put a suggestion to the DW1 Ranjeet Kaur that the document Mark X at point A bears the signatures of Late Sh. Surjeet Singh. The plaintiffs have placed on record the document Mark A to prove that Late Sh. Surjeet Singh used to sign being literate person instead of putting thumb impression. Now, it is established law that mere marking of the document as exhibit or Mark does not make any difference. It is upto the court whether it takes cognizance of the document or not in the given facts and circumstances of the case. I have gone through the document carefully. The document is Ikrarrnama executed by one Rora Singh in favour of Smt. Gurdeep Kaur, mother of the plaintiffs. On this document, some witnesses have also signed being witness to the document namely Gurubachan Singh, Mohinder Singh, Ilma Singh alongwith Rora Singh and Gurdeep Kaur. There are also signature at Point A on this document by the name of Sarjeeti Singh, on the same document, below the signature the name Sarjeet Singh is also written in bracket. The question is whether Sarjeet Singh has signed on this document Mark X at Point A or not. From the bare screening of the document, it Suit No. 327/08 Page 11 of 17 12 reveals that the pen used by putting the signature in the name of Sarjeeti Singh at Point A are of different ink. Secondly, the addresses of all the witnesses as well as the executor of document and Gurdeep Kaur, in whose favour the document was executed, bears the address on this document Mark X. The document was produced from the possession of the PW2 mother of the plaintiffs. Which creates doubt regarding the signature of Late Sh. Surjeet Singh on this document, particularly where no other handwriting of Surjeet Singh has been produced by the plaintiffs to prove the fact that late Sh. Surjeet singh also used to write. The document is laminated. The document cannot be sent for examination for getting expert opinion as there is no other handwriting of deceased Surjeet Singh. The document Mark X cannot be relied upon safely. Same is discarded.
16. The next question is whether the thumb impression of the Late Surjeet Singh has got on document Ex.DW1/1 under any fiduciary relation between the defendant no. 1 and Late Sh. Surjeet Singh. The defendant has examined three witnesses including herself. All the three witnesses are illiterate. All the three defence Suit No. 327/08 Page 12 of 17 13 witnesses have deposed in their examination in chief that document Ex.DW1/1 was executed in favour of defendant by their brother Sh. Surjeet Singh. The DW2 & DW3 deposed that they have also put their thumb impressions on the document Ex.PW1/1. The defendants have deposed in their examination that neither the plaintiffs nor her mother used to see the Late Sh. Surjeet Singh during his lifetime as he was suffering from cancer. The fact has not been denied by the plaintiffs that deceased Surjeet Singh was not suffering from cancer. The plaintiffs have failed to bring on record any evidence which suggest to this court that they have ever visited the defendant or their father. They have also failed to bring on record that they have ever got treated their father for the disease of cancer. On the other hand, defendant witnesses have deposed that Surjeet Singh was got treated by the defendant and defendant has given her services to late Surjeet Singh. So, the preponderance of evidence adduced on record suggest that Late Surjeet Singh could have executed the will deed Ex.DW1/1. The registration of the will is optional as envisaged u/s 18 of the Registration Act. That the contradictions in the cross Suit No. 327/08 Page 13 of 17 14 examination of the DWs are not so vital (being the illiterate witnesses) which can rebutt the possibilities that Sh. Surjeet Singh has not executed the will. All the three defence witnesses are illiterate. Their capacity to understand the question and give answers may be different to the persons of higher intellectual.
17. The third question whether the plaintiffs were thrown out by the defendant no. 1 from the suit property is dealt herewith. The fact plaintiffs have asserted in their plaint that they were sent to their mother's house by the defendant no. 1 on the pretext that the defendant no. 1 had gone to the religious visit, also cannot be relied upon. The plaintiffs have asserted that defendant no. 1 has returned from the yatra after one and half month. The defendant was residing with plaintiffs to look after them, it cannot be believed that she will not disclose the place where she will go for religious visit, to the plaintiffs. Even otherwise, the witnesses of the plaintiffs deposed in their examination that after the death of Late Smt. Bishan Kaur (grand mother), the mother of the plaintiffs used to visit the house of Late Sh. Suit No. 327/08 Page 14 of 17 15 Surjeet Singh. Then, it cannot be believed what circumstances has prevented the mother of the plaintiffs (PW2) to come at the suit property and reside there with the plaintiffs after the death of her husband i.e. the father of the plaintiffs. The plaintiffs have failed to bring on record any evidence which suggest to this court that they resided with their father after the divorce of their parents since 1995. So, I am of the considered view that plaintiffs have not resided in the suit property after the divorce between their parents. This issue is decided in favour of the defendant and against the plaintiffs. ISSUE NO. 2 :
18. The next issue is "Whether the plaintiffs are entitled for permanent and mandatory injunction as claimed". The onus to prove this issue is casted upon the plaintiffs. Vide this issue plaintiffs are seeking restraining order permanently against the defendant from creating any third party interest in the suit property, but they have failed to prove the will Ex.DW1/1 as false and fabricated. They have also failed to prove that they are also coowners alongwith their father Suit No. 327/08 Page 15 of 17 16 of the suit property. They have also failed to prove that they were ever in possession of the suit property, after the divorce of their parents. So, I am of the considered view that the plaintiffs are not entitled for mandatory or permanent injunction as they have prayed in their suit. This issue is decided in favour of the defendant and against the plaintiffs.
ISSUE NO. 3 : (Relief)
19. As I have given my findings on issues above, the plaintiffs are not entitled for any relief as sought by them. The suit of the plaintiffs is dismissed. No cost as to suit.
File be consigned to Record Room after necessary compliance.
(Announced in open Court (JAGDISH KUMAR)
today i.e 08.09.11) JSCC/ASCJ/GJ(East)
KKD COURTS/ DELHI
Suit No. 327/08 Page 16 of 17
17
Suit No. 327/08
08.09.2011
Present : Counsel for plaintiffs.
Counsel for defendant.
Written submissions filed by the plaintiff. Copy supplied. Final arguments heard on behalf of the parties.
Put up for orders at 4.00 p.m. (JAGDISH KUMAR) JSCC/ASCJ/GJ(East) KKD COURTS/ 08.09.11 At 4.00 p.m. Present: Proxy counsel for plaintiffs.
Proxy counsel for defendant.
Vide separate judgment dictated and announced in the open court, suit of the plaintiffs is dismissed. No cost as to suit.
File be consigned to Record Room after necessary compliance.
(JAGDISH KUMAR) JSCC/ASCJ/GJ(East) KKD COURTS/ 08.09.11 Suit No. 327/08 Page 17 of 17