Delhi District Court
Smt. Veena Malhotra vs Shri Ashok Malhotra on 17 September, 2011
IN THE COURT OF SH. PITAMBER DUTT; ADJ (CENTRA)17,DELHI
Suit No. 112/2011
Unique Case ID No. 02401C5345502004
1. Smt. Veena Malhotra
W/o Late Shri Dharamvir Malhotra,
R/o 14/30, First floor,
Shakti Nagar, Delhi110007
2. Ms. Ruchi Malhotra
D/o Late Shri Dharmvir Malhotra
R/p 14/30, First floor,
Shakti Nagar, Delhi - 110007
3. Sh. Rahul Malhotra
S/o Late Shri Dharamvir Malhotra,
R/o 14/30 First floor,
Shakti Nagar, Delhi 110007
.....Plaintiffs
Versus
1. Shri Ashok Malhotra
S/o Late Shri Har Saroop Narain,
R/o 14/30 Shakti Nagar, Delhi7
2. Shri Jivesh Malhotra
S/o Shri Ashok Malhotra
R/o 14/30, Shakti Nagar, Delhi7
3. Shri Ram Prasad Sharma
S/o Shri Bansi Lal Sharma
R/0 14/30, Shakti Nagar, ( Back side)
Delhi 110007
Suit no. 112/11 Page 1/55
4. Smt. Kamlesh Jolly
W/o Late Shri Bharat Bhushan Jolly
R/o JP79, Pitam Pura, New Delhi 110085
5. Mrs Promilla Anand
W/o Shri Vinay Anand
R/o 117, Double Storey
New Rejinder Nagar, New Delhi
6. Municipal Corporation of Delhi
Town Hall Delhi, Delhi
through its Commissioner.
........Defendants
Date of Institution of Suit : 12.07.2004
Date when reserved for orders : 08.09.2011
Date of Decision : 17.09.2011
JUDGMENT
1 Vide this judgment I shall decide the suit for declaration, partition, possession, permanent and mandatory injunction and rendition of accounts, filed by the plaintiffs against the defendants. The brief facts necessitating in filing the present suit are given as under: 2 That plaintiff no. 1 to 3 are the legal heirs of late Shri Dharamvir Malhotra who was the real brother of defendant No. 1. Sh. Har Swarup Malhotra and Smt. Sumitra Rani, parents of Sh. Dharamvir Malhotra and defendant no. 1, 4 & 5 were the owners of property no. 30, Block No. 4, Suit no. 112/11 Page 2/55 admeasuring 264 square yards, situated at Roshanara Extension Scheme, now known as Shakti Nagar, Delhi having purchased the same vide registered sale deed dated 8.8.1955 bearing no. 992 in Additional Book No. 1 Volume No. 310 at pages 338 to 343 in equal shares. Shri Har Swarup Narain Malhotra had expired on 23.12.1972 leaving behind his wife Smt. Sumitra Rani, two sons Shri Ashok Malhotra and Shri Dharamvir Malhotra and two daughters Smt. Promilla Anand and Kamlesh Jolly, defendant no. 4 & 5 after his death, Smt. Sumitra Rani and defendant no. 4 & 5 had relinquished their respective share inherited by them after the death of Sh. Har Swarup Narain Malhotra in the suit property in favour of Sh. Ashok Malhotra and Sh. Dharamvir Malhotra vide registered relinquishment deed dated 07.08.1975. Smt. Sumitra Rani expired on 18.04.1999 intestate.
3 That late Sh. Har Swarup Narain Malhotra had applied for a coal depot licence with the MCD in the year 1966 for running the coal depot at the back portion of the suit property admeasuring 71 sq yds which was obtained in the name of defendant no. 1 being the eldest son in the family. The defendant no. 1 with the consent of husband of plaintiff no. 1 and his mother started construction over the back portion of the suit property where coal depot was functioning with the joint funds left by the father and joint income of both the brothers, due to increase in the family members. Suit no. 112/11 Page 3/55 Defendant no. 1 being the eldest son was also allowed to induct the tenants with the consent of the mother and his younger brother and husband of the plaintiff no. 1. The defendant no. 1 had been running in losses in the business and it had been learnt that he had been borrowing loan from defendant no. 3 in order to meet his day o day routine expenses. On 18.04.1996, defendant no. 1 made an application to the MCD seeking mutation of the back portion of the suit property in his name. The husband of plaintiff no. 1 made representation dated 20.05.1996 and dated 22.05.1996 against the said application. The Defendant no. 1 has also forged and fabricated a Will dated 28.10.1970 of deceased late Shri Har Sarwup Narain Malhotra. He also forged a will of Smt. Sumitra Rani dated 26.02.1999 on the basis of the above forged and fabricated will dated 28.10.1970 and 26.02.1999 defendant no. 1 has fraudulently sold the ground floor and first floor of the back portion of the suit property in favour of his son/defendant no. 2 vide registered sale deed dated 27.12.99 having registration no. 1739, in Additional Book No. 1, Volume No. 68, at pages 142 to 149 for a total sale consideration amount of Rs. One lac.
Defendant no. 2 on the basis of the registered sale deed executed by defendant no. 1 had further sold the first floor with roof right of the back portion of the property to defendant no. 3 for a total sale consideration amount of Rs. 2 lacs vide registered sale deed having registration no. 6397 in Suit no. 112/11 Page 4/55 Additional Book no. 1, Volume No. 922 at pages 170 to 175 dated 12.12.2003. The officials of the defendant no. 6 in collusion of defendant no. 1, 2 & 3 Mutated the said property in favour of defendant no. 2 & 3 without making any proper and due inquiries. Defendant no. 1 has also executed a gift deed dated 07.05.2004 in favour of defendant no. 2 on the basis of the above wills The plaintiffs are the legal heirs of late Shri Har Swarup Narain Malhotra through his son late Sh. Dharamvir Malhotra, thus are entitled to have one half share of the suit property i.e front side as well as back side of the suit property. On the basis of the aforesaid averment the present suit has been filed for adjudication .
4 Pursuant to the summons all the defendants have appeared and filed their separate written statement. Defendant no. 1 & 2 filed their written statement taking preliminary objection that plaintiff have no locus standi to file the present suit as the property is not a joint property and has already been divided, that plaintiffs have not come with clean hands and have no cause of action and the suit is time barred as partition has already taken place. 5 On merit it is averred that the suit property was purchased by late Sh. Har Saroop Narain Malhotra and Sumitra Malhotra in equal share. It Suit no. 112/11 Page 5/55 is denied that Har Saroop Narain Malhotra died intestate without executing any will. It is stated that Har Saroop Narain Malhotra had executed a will during his life time 28.10.1970 vide said will Sh. Har Swraup Narain Malhotra declared that after his demise, his half share in the land measuring 34x19 ft alongwith coal depot shall be exclusively and solely owned by defendant no. 1 and remaining portion of the property shall be jointly owned by both his sons namely Dharamvir Malhotra and Ashok Malhotra in equal shares. The said will is very well in the knowledge of the plaintiffs and they have accepted the same in the past which is clear from their conduct. It is also stated that Smt. Sumitra Rani had also executed a will dated 26.02.99 which was got registered after her death declaring that after her death her full share in the suit property including the aforesaid coal depot in the back side of the house shall entirely belongs to defendant no. 1 and Dharamvir Malhotra shall have no claim, title or interest therein. It is also stated that Smt. Sumitra Rani, Dharamvir Malhotra and Ashok Kumar Malhotra, husband of plaintiff no. 1 had executed a settlement deed dated 08.09.1982 in which it has been mentioned that defendant no. 1 shall raise construction on a piece of land measuring 34x19 ft. on the back side of the suit property at his own cost and Smt. Sumitra Rani and Dharamvir Malhotra shall not invest any amount and it shall be the exclusive property of defendant no. 1 and shall not be part of the joint property. Therefore, defendant no. 1 had become the Suit no. 112/11 Page 6/55 exclusive owner in possession of 34x19 ft. constructed back portion of the suit property plus 3/4th share of the remaining property i.e 50% of father's share and 100% of the mother's share. It is further stated that husband of the plaintiff no. 1 came to know about the will dated 26.02.99 and requested the defendant no. 1 to give him some more share in the suit property in addition to 1/4th share and defendant no. 1 agreed to his request to keep harmony in the family, accordingly defendant no. 1 and the husband of plaintiff entered into an agreement which was executed on 10.01.2000 duly attested by the Notary Public. The contents of the agreement clearly establish that property was completely divided between the defendant no. 1 and the husband of the plaintiff no. 1 on the basis of this agreement the mutation was also effected. 6 It is further stated that defendant no. 1 & 2 have come to know that Smt. Sumitra Rani had executed a registered will dated 05.08.1975 and again registered will dated 02.02.1990 also. It is denied that father of defendant no. 1, 4 & 5 had ever applied or obtain any alleged coal depot from MCD. It is stated that the shop was established as per Form "C" on the basis of relevant provisions of Delhi Shop & Establishment Act, 1954 in the name of occupier as Ashok Kumar Malhotra ( defendant no. 1). and thus licence was also issued in the name of defendant no. 1. The said coal depot was being run by defendant no. 1 exclusively. It is denied that defendant no. 1 has Suit no. 112/11 Page 7/55 placed a fabricated will dated 26.2.1999 executed by late Smt. Sumitra Rani. It is stated that plaintiffs are already having their share in the property in their possession and they have already got mutated the same in the name of the plaintiff no. 1. It is denied that plaintiffs are entitled to ½ share of the suit property. It is stated that they are not entitled to any share whatsoever and any other kind of benefit in addition to the share of the property which they are already having in their possession.
7 Defendant no. 1 & 2 has also taken additional plea that defendant no. 1 was managing all the expenses of the family as well as education of the younger brother and sister. In May 1972 his younger brother got appointed as a clerk in Punjab National Bank, Delhi and thereafter he was promoted to the cadre of an officer. After his marriage he started living separately from the family and did not spend any amount even for the welfare of his father, mother and other members. It is also mentioned that there was an old shop with the father of defendant no. 1. The defendant no. 1 spent huge amount but when the shop was disposed of the sale proceeds of the same were got deposited in the name of husband of plaintiff no. 1 as he was a bank employee and was entitled to get better rate of interest over the same. Defendant no. 1 also spent lot of money in litigations for getting vacated the rented portions of the suit property. All other averments have Suit no. 112/11 Page 8/55 been denied. It is prayed that suit be dismissed.
8 Defendant no. 3 filed separate written statement taking preliminary objection that plaintiff has no locus standi to file the suit, that plaintiff has not come with clean hands and are estopped by their own acts and conduct and has no cause of action. On merit it is stated that during the life time Smt. Sumitra Rani used to tell him that defendant no. 1 was obedient to her and her other son late Dharambir Malhotra never took any pain for her welfare or health. She also used to tell that Ashok Malhotra had spent a huge amount for upliftment of all the members of the family. He further stated that he was a tenant in the premises and rent was being paid to defendant no. 1 & 2. He further stated that he was residing in the portion of the house for the last 15 years as a tenant and purchased the same from defendant no. 2 after due verification, request and consultation with plaintiff as well as with the husband of plaintiff no. 1 during her life time. Even the plaintiff had encouraged him to purchase the said portion through registered sale deed 12.12.2003. Other averments have also been denied.
9 Defendant No. 4 & 5 have also filed their separate written statement taking preliminary objection that Smt. Sumitra Rani W/o late Har Sarup Narain Malhotra had not executed any will dated 5.8.1975 nor dated Suit no. 112/11 Page 9/55 2.2.1990 and 26.02.1999 as per their knowledge. During her last days she was looked after by deceased husband of plaintiff no. 1 and he was availing benefit of insurance policy on account of medical treatment and expenses and in fact their mother was living with husband of plaintiff no. 1. On merit they stated that as per their knowledge it was only a relinquishment deed which was executed by Smt. Sumitra Rani alongwith them and no will dated 5.8.1975. Their father had applied for coal depot licence with the MCD, which was granted in the name of defendant no. 1 being the eldest son in the family. Husband of plaintiff no. 1 was being an educated person was able to get a job in the bank and after finishing his job from the bank he used to look after and control the business of coal depot which was being run by their father in the back portion of the property. The said portion was constructed out of the joint fund of the family and was let out in order to meet the further requirement of the family as a joint property but the rental income was being retained by defendant no. 1 on the pretext that he has been maintaining the house and has incurred expenses. All other averments have also been replied. 10 Defendant no. 6 has filed separate written statement taking preliminary objection that suit is not maintainable under Section 278 of the Act as suit has not been properly valued and same is not maintainable against the MCD. The averment on merit have also been replied.
Suit no. 112/11 Page 10/55 11 The plaintiffs filed replication to the written statement of all the defendants thereby denied the averment made in the written statement and reiterated the averments made in the plaint.
12 On the basis of the pleadings of the parties vide order dated 20.05.2008 Ld. Predecessor of this court was pleased to frame the issues for adjudication.
13 Thereafter an application under Order 6 Rule 17 CPC was filed by the plaintiff for seeking necessary amendments in the plaint which was disposed off by the Ld. Predecessor of this court vide order dated 04.08.2008. Vide said order the additional issue have been also framed and the issues already framed vide order dated 20.05.2008 are reframed in the following manners.
1. Whether the plaintiff is not entitled to the half share of the property pursuant to the will of Sh. Har Sarup Narain Malhotra dated 28.10.1970, will of Smt. Sumitra Rani dated 05.08.1975, 2.2.1990 and 26.02.1999? (OPD1)
2. Whether the plaintiff is not entitled to the relief claimed in view of the settlement/agreement dated 10.01.2000 between late Sh. Dharamvir Malhotra and defendant no. 1? ( OPD1)
3. Whether the plaintiff is entitled to the relief of declaration to the effect that the registered Sale Deed dated 27.12.1999 executed in favour of defendant no. 1 by defendant no. 2 is liable to be declared Suit no. 112/11 Page 11/55 as null and void? ( OPP)
4. Whether the registered Gift Deed dated 7.5.2004 is a valid document. It not then whether it is liable to be declared as null and void? ( OP Parties )
5. Whether the plaintiff is entitled to the relief of Partition, Possession, and Mesne Profit as asked for in the plaint? OPP
6. Whether the plaintiff is entitled to the relief of permanent and Mandatory injunction as asked for in the plaint? OPD
7. Whether the plaintiff is entitled to the relief of rendition of account in respect of rest as asked for in the plaint? OPP
8. Relief 14 It is relevant to mention that plaintiff has also claimed the relief of declaration seeking cancellation of the sale deed dated 22.12.2003 executed by defendant no. 2 in favour of defendant no. 3. However, while framing the issues Ld. Predecessor of this court inadvertently could not frame any issue with respect to the said plea.
Order 14 Rule 5 C.P.C empowers a court to frame an additional issue at any stage which is necessary for the just decision of the dispute between the parties. In the fact and circumstances, it would be appropriate for this court to frame an additional issue with regard to the relief claimed by the plaintiff with respect to the sale deed dated 22.12.2003. Therefore, an additional issue no. 3A is thus accordingly framed as under. Suit no. 112/11 Page 12/55 3A Additional issue :Whether the plaintiff is entitled to relief of declaration, declaring the sale deed dated 12.12.2003 executed by defendant no. 2 in favour of defendant no. 3, registered as document no. 6397, additional book no. 1, Volume No. 922 at pages 172 to 175 dated 12.12.2003 as null 7 void? OPP 15 In order to prove their case, plaintiffs have examined Sh. S.K. Sehgal, Inspector, House Tax as PW1 and Sh. Arjun Singh, LDC, Civil Line Zone, as PW2.
16 Plaintiffs have also examined plaintiff no. 1 as PW3 who reiterated the averments made in the plaint in her examination in chief. PW exhibited the certified copy of the Sale Deed dated 8.8.55 as Ex. PW3/, Certified copy of the Relinquishment Deed dated 7.8.1975 as Ex. PW3/2, Copy of the application dated 29.05.95 as Ex. PW3/3, Copy of the letter dated 20.05.96 and 22.05.1996 as Ex. PW3/4 & 5, certified copy of the Sale Deed dated 27.12.1999 executed by defendant no. 1 in favour of defendant no. 2 as Ex. PW2/6. Application dated 29.10.2001 as Ex. PW3/7, copy of the letter dated 11.01.2002 as Ex. PW3/8 and letter of mutation as Ex. PW3/9, certified copy of the Sale Deed dated 12.12.2003 executed by defendant no. 2 in favour of defendant no. 3 as Ex. PW3/10, Copy of the gift Suit no. 112/11 Page 13/55 deed dated 7.5.2004 as Ex. PW3/11, Site Plan as Ex. PW3/2. 17 Plaintiff also examined Sh. Rakesh Ranjan, Record Clerk from the office of Sub Registrar No. 1, Kashmere Gate who brought the original record of the sale deed dated 27.12.1999 as Ex. PW3/6, another sale deed dated 12.12.2003 as Ex. PW3/10 and gift deed dated 7.5.2004 as Ex. PW3/11.
Plaintiff also examined Sh. Naveen Gandas,Record Keeper from the office of Department of Delhi Archives as PW5, he brought the original record of Deed of Relinquishment dated 5.08.1975 and exhibited as Ex. PW5/1. He also brought the record pertaining to the sale deed which in Urdu dated 8.8.1955 as Ex. PW5/2.
18 In order to answer the claim of the plaintiffs, defendant No. 1 examined himself as DW1 and reiterated the averments made in the written statement in her examination in chief. DW1 exhibited the photocopy of Form C as Ex. DW1/1, envelop containing address of the coal depot as Ex. DW1/2, licence issued by the Food & Supply Department on Form 'B' as Ex. DW1/3, Licence issued by MCD as Ex. DW1/4, Receipt no. 622844 issued by Chief Inspector, shop & Establishments as Ex. DW1/5, Copy of the security deposit with Food & Civil Supply as Ex. DW1/6, Renewal Suit no. 112/11 Page 14/55 endorsement as Ex. DW1/7 & 8, Electricity receipt issued by DESU as Ex. DW1/9, hand written documents which were signed by defendant no. 4 & 5 as Ex. DW1/10, Deed of settlement as Ex. DW1/11, Will dated 28.10.1970 as Ex. DW1/12, dated 2.2.1990 as Ex. DW1/13 and dated 26.02.1999 as Ex. DW1/14, Letter of mutation as Ex. DW1/15, Photocopy of clinical reports are Ex. DW1/16 and the complaint dated 27.05.2003 as Ex. DW1/17. 19 Defendant also examined Shri Yogest, Head Clerk from the department of Shops & Establishment as DW2. Defendant also examined Sh. Ram Dass, Licencing Inspector, from the office of Deputy Commissioner, MCD, Civil Zone, Delhi as DW3.
20 Defendant also examined Shri Rakesh Arora as DW4. In his examination in chief DW 4 deposed that defendant no. 1 his family friend for the last many years. He used to visit defendant no. 1 frequently and having good relations. He know that mother of defendant no. 1 late Smt. Sumitra Rani had executed a will during her life time on 26.02.1999 which was registered on 24.04.1999. The said will was executed in his presence and he has signed as a witness on the said will on 26.02.1999. 21 Defendant also examined Sh. Madan Lal as DW5. In his Suit no. 112/11 Page 15/55 examination in chief DW5 deposed that he know defendant no. 1 being the elder son in the family as he has done lot for the upliftment for his family. He has been going to the residence of defendant on every Sunday. He know that father of defendant late Sh. Harswarup Narain had executed a will during his life time on 28.10.1970. The said will was executed in his presence and he has signed as a witness in the will dated 28.10.1970. The said will was came to the knowledge of defendant no. 1 after 1980. He also knows that he stands as witness in the Will dated 2.2.1990 executed by late Smt. Sumitra Rani, mother of defendant no. 1 in his presence and it has been declared by the deceased that the defendant no. 1 shall be the sole owner of her 1/3rd share in the suit property including absolute owner of back side portion. 22 Defendant also examined Sh. Naresh Kumar Parash, UDC, from the office of Sub Registrar who brought the registration record of will dated 02.02.1990 as Ex. DW1/3 and will dated 26.02.1999 as Ex. DW1/4.Defendant no. 3 to 6 have not lead any evidence in support of their case.
23 I have heard the Ld. Counsels for the parties and perused the pleadings, evidences and other material placed on record. My issue wise findings is as under: Suit no. 112/11 Page 16/55 Issue no. 1: Whether the plaintiff is not entitled to the half share of the property pursuant to the will of Sh. Har Sarup Narain Malhotra dated 28.10.1970, will of Smt. Sumitra Rani dated 05.08.1975, 2.2.1990 and 26.02.1999? ( OPD1) 24 The onus to prove issue no. 1 is upon defendant no. 1 who has taken a plea that his father late Sh. Har Sarup Narain Malhotra had executed a will dated 28.10.70 during his life time whereby bequeathing a piece of land measuring 34x14 feet where defendant no. 1 was running a coal depot exclusively and solely to defendant no.1 and remaining portion of his half share in favour of defendant no. 1 and Sh. Dharamvir Malhotra, husband of plaintiff no. 1 and father of plaintiff no. 2 & 3. He also pleaded that Smt. Sumitra Rani, the mother of defendant no. 1 had also executed wills dated 5.08.1975, 02.02.1990 and 26.02.1999 bequeathing her entire share in the suit property exclusively in favour of defendant no. 1.
25 The plaintiffs have controverted the aforesaid plea and pleaded that no such will was ever executed either by late Sh. Har Sarup Narain Malhotra or by Smt. Sumitra Rani, mother of the parties at any point of time.
Both the parties have led their evidence in order to prove their respective pleas.
Suit no. 112/11 Page 17/55 26 It is the admitted case of the parties that Sh. Har Sarup Narain Malhotra and Smt. Sumitra Rani were the coowner of the suit property which they purchased by virtue of a sale deed dated 8.8.1955 Ex. PW5/2. As per the plaintiff Sh. Har Sarup Narain Malhotra and Smt. Sumitra Rani died inestate and after their death the defendant no. 1 and husband of plaintiff no. 1 became the joint owner of the suit property having half share each in the suit property as defendant no. 4 & 5, daughter of the above persons had already relinquished their right in the suit property vide relinquishment deed Ex. PW5/1. Whereas as per defendant no. 1 he became the owner of 3/4th share of the suit property by virtue of the will executed by his father late Sh. Har Sarup Narain Ex. DW1/12 and his mother Ex. DW1/14 in his favour. 27 Section 63 of Indian Succession Act lays down the mode and manner in which the execution of a will is to be proved. As per Section 68 of the Indian Evidence Act execution of will must be proved by examining at least one attesting witness, if any attesting witness is alive, subject to process of the Court and is capable of giving evidence.
28 The burden of proof that the will has been executed and is a genuine documents is on the propounder. The propounder is also required to be prove that the testator has signed the will and that he or she had put his or Suit no. 112/11 Page 18/55 her signature out of his/her own freewill having a sound disposing state of mind and understood the nature and effect thereof. .
The Hon'ble Supreme Court in Savithri vs. Karthyayani Amma reported as AIR 2008, S.C 300 has held that "will like any other documents is to be proved in terms of the provision of Indian Succession act and the Indian Evidence Act. The onus to prove the will is on the propounder. The testamentary capacity of the testator must also establish. Execution of the will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the will. It is required to be shown that the will has been signed by the testator with his own freewill and at the relevant time he or she was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be establish that he has signed the will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. When there exist suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before it can be excepted as genuine" 29 Thus the law with respect of execution of a will is well settled that a conscious of the court must be satisfied that the will in question was not only executed and attested in the manner required under the Indian Suit no. 112/11 Page 19/55 Succession Act 1925 but it should also be found that the said will was the product of the free volition of the executant who had voluntarily executed the same knowing and understanding the contents of the will. 30 In view of the above legal preposition, let me examine the will sought to be established by defendant no. 1 in support of his case. (I) The will dated 28.10.1970 executed by late Sh. Har Sarup Narain Malhotra Ex. DW1/12 31 The defendant no. 1 has claimed that his father late Sh. Har Sarup Narain Malhotra had executed a will Ex. DW1/12 in his favour. In order to prove the said will, defendant no. 1 has examined himself as DW1 and reiterated the said fact in Para 5 of his examination in chief. During crossexamination DW1 deposed that his father expired on 23.12.1972 when he expired he did not know if he had executed any will. He volunteered that it was in the year 1982 that his maternal uncle Sh. R.L. Sehgal informed him of the will. He admitted that his father used to sign in English. He has documents containing the original signature of his father. He denied that he had got certain blank papers signed from his father for official use in normal course. He also denied that he got many such receipts signed from his father for use. He admitted that will dated 28.10.1970 bears a revenue stamp at the bottom space after a word testator is written. He Suit no. 112/11 Page 20/55 denied that there was a piece of paper containing a revenue stamp on it with signatures of Sh. Harsarup Narain Malhotra on it which has been converted into a document titled as deed of execution of will. He cannot say that there is a white fluid used in between the will which has been corrected while using a different typewriter putting a word as "elder".
32 The defendant no. 1 has examined Sh. Madan Lal Arora as DW5 to prove the execution of will. DW5 in Para 4 of his examination in chief deposed as under:
" I know the father of defendant late Sh. Harswaroop Narain had executed a will during his life time on 28.10.1970. The said will was executed in my presence and I have signed as witness in the will dated 28.10.1970 and it has been mentioned in the will that the piece of land measuring 34' x 19' on the back side of the property bearing no. 14/30, Shakti Nagar, Delhi is exclusively in the possession of defendant no. 1 and remaining share of the deceased shall be jointly owned by both the sons of deceased. It is worth to mention that the said will 28.10.1970 was came in the knowledge of defendant no. 1 after 1980."
33 DW5 has been throughly crossexamined. During cross examination DW5 briefly deposed that father of defendant no. 1 has Suit no. 112/11 Page 21/55 executed a will but he does not remember the date, month and year of the same. The said will was written by Mamaji of defendant no. 1 one Mr. Sehgal. After writing the said will the same was retained by him. After the death of the father of defendant no. 1 the said will came to the knowledge of defendant no. 1. Mr. Sehgal informed him about the said will executed by Sh. Harsarup Narain Malhota, father of defendant no. 1. He does do not know what transpired thereafter. Mr. Sehgal wrote the will and took the same at his house. Nothing else was done after the writing of the said will by one Mr. Sehgal and he has taken the said will alongwith him at his house. There was a correction made in the will with the word 'elder'. He has no knowledge with respect to execution of any other will by the father of defendant no. 1. He further deposed that he had seen father of defendant no. 1 reading and writing in the normal course of day to day work. He will be able to identify the signatures of Sh. Harsarup Narain Malhotra if shown to him. He further deposed that sale deed Ex. DW5/2 shown to him does not bears the signatures of late Sh. Harsarup Narain Malhotra at point A. He further deposed that defendant no. 1 has not informed him that he had deposed in his crossexamination that signatures at point A in document Ex. PW5/2 is of his father.
The defendant no. 1 has not examined any other witness in order to prove the due execution of the will Ex. DW1/12 stated to have been Suit no. 112/11 Page 22/55 executed by Sh. Harsarup Narain Malhotra in his favour. 34 On the combined reading of Section 63 of the Indian Succession Act with Section 68 of the Indian Evidence Act it appears that a person propounding the will has got to prove that will was duly and validly executed. That cannot be done by simply proving the signature on the Will that of the testator but must also prove that attestation were also made properly as required by clause 'C' of Section 63 of Indian Succession Act. It is true that Section 68 of Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive capable of giving evidence and subject to the process of court. In a way, Section 68 of Evidence Act gives concession to those who want to prove and establish a will in a court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the Indian Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a will. The one attesting witness examined, in his evidence has to satisfy the attestation of the will by him and other attesting witness in order to prove that there was due execution of will. If the attesting witness examined besides his attestation does not, in his Suit no. 112/11 Page 23/55 evidence, satisfy the requirement of attestation of the will by other witnesses also it falls short of attestation of will at lease by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it must fulfilling and proof of all the formalities required under Section 63 of Succession Act. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be a deficiency to meet the mandatory requirement of Section 63 of the Indian Succession Act.
35 In the instant case, defendant no. 1 has examined Sh. Madan lal DW5 as the only attesting witness of the will of late Sh. Har Swarup Narain Malhotra Ex. DW1/12. DW5 has failed to comply the essential requirement of the due execution of the will as contemplated under Section 63 of the Indian Succession Act. DW5 neither averred nor proved in his examination in chief that the said will was singed by the testator in the presence of the witnesses. He has also not testified that the will was signed by two witnesses in the presence of the testator.
During crossexamination DW5 has mentioned that he come to know about the execution of the will from Mr. Sehgal who informed him about the said will. The above testimony goes to show that DW5 was not the attesting witness of the will Ex. DW1/12 and he was informed about the Suit no. 112/11 Page 24/55 execution of the will by Mr. Sehgal. It is also relevant to point out that DW5 during crossexamination has failed to recognize the signatures of late Sh. Harsarup Narain Malhotra on a sale deed Ex. PW5/2 which admittedly bears the signatures of Sh. Har Sarup Narain Malhotra at point A. The plaintiff has placed on record a Relinquishment Deed dated 05.08.1975 executed by Smt. Sumitra Rani, W/o Sh. Harsarup Narain Malhotra and defendant no. 4 & 5 as Ex. PW5/1. Vide the said Relinquishment Deed Smt. Sumitra Rani, W/o late Sh. Harsarup Narain Malhota and defendant no. 4 & 5 had relinquished their share in the half portion of the suit property which was owned and possessed by late Sh. Harsarup Narain Malhotra in favour of the husband of plaintiff no. 1 & defendant no. 1.
36 A perusal of the said Relinquishment Deed Ex. PW5/1 make the existence of the will Ex. DW1/12 highly improbable late Sh. Harsarup Narain Malhotra had executed the will Ex. DW1/12 during his life time, there would not have been any occasion for his wife Smt. Sumitra Rani and defendant no. 4 & 5 to execute the Relinquishment Deed Ex. PW5/1 dated 5.08.1975 relinquishing their share in the half portion of the suit property in favour of defendant no. 1 and the husband of plaintiff no. 1. The execution of Relinquishment Deed by Smt. Sumitra Rani and defendant no. 4 & 5 itself goes to show that late Sh. Harsarup Narain Malhora died intestate and had Suit no. 112/11 Page 25/55 not executed any will during his life time.
In view of the above facts and circumstances, I am of the considered view that defendant no. 1 has failed to prove the execution of the will Ex. DW1/12 in accordance with law.
II The will of Smt. Sumitra Rani dated 5.08.1975, 02.02.1990 and 26.02.1999 37 The defendant no. 1 has further pleaded that Smt. Sumitra Rani executed three wills dated 5.08.1975, 02.02.1990 & 26.02.1999 Ex. DW1/14. The defendant no. 1 taken a plea that Smt. Sumitra Rani through her last will Ex. DW1/14 bequeathed her entire share in the suit property exclusively his favour. The plaintiffs however, controverted and pleaded that all the above wills have been fabricated by the defendant no. 1. 38 In order to prove the aforesaid will, defendant no. 1 examined himself as DW1 and reiterated the fact regarding the execution of the will dated 02.02.1990 Ex. DW1/13 and dated 26.02.1999 Ex. DW01/14. In para 6 and 6.1 of his examination in chief. During crossexamination DW1 briefly deposed that he got the will dated 26.02.1999 registered in the office of SubRegistrar on 24.05.1999. He further deposed that he had informed his brother late Sh. Dharamvir about the registration of this will. He admitted Suit no. 112/11 Page 26/55 that he did not tell any other family member regarding the execution and registration of the will. He further stated that he is not aware of any will of his mother of the year 1975.
39 Defendant no. 1 has also examined Sh. Rakesh Arora one of the attesting witness of the will dated 26.2.99 Ex. DW1/14 as DW4. In para 4 of his examination in chief, DW4 has deposed as under: " That I know that mother of defendant no. 1. late Smt. Sumitra Rani had executed a will during her life time on 26.02.1999 which was registered on 24.05.1999. The said will was executed in his presence and he has signed as a witness on the said will on 26.02.1999. It has been mentioned in the will that her full share in the suit property bearing no. 14/30, Shakti Nagar, Delhi and the piece of land measuring 34' x 19' on the back side of the property is exclusively and entirely belongs to defendant no. 1". 40 During crossexamination DW4 briefly deposed that and he does not recollect the date of the said will. The will executed by the mother of defendant no. 1 was drafted at her residence at 14/30, Shakti Nagar. The said will was drafted by Mr. Sehgal Mamji of defendant no. 1 and brother of Sumitra Rani. The said will was typed one. Prior to the execution of the will a day in advance he was telephonically called by Mamaji of defendant Suit no. 112/11 Page 27/55 no. 1. He further deposed that next day when he visited, Mamaji read over the said will to Smt. Sumitra Rani, thereafter, Mamaji got the signatures of Sumitta Rani on the will which was signed at the right hand side of the paper almost below the middle of the page. He further stated after the signing of the mother he cannot say who had signed the will first. At the time of signing of the same one Madan Lal was also present alongwith him and one Mamaji. Probably Madan Lal signed the will executed in February, 1999 at first. He does not know as to when defendant no. 1 came to know about the execution of the said will. The said will was got registered in the office of the Sub Registrar after the death of Smt. Sumitra Rani. He denied that Ashok Kumar Malhotra has forged and fabricated the said will on a piece of paper bearing signatures of Sumitra Rani. He does not know as to whether the mother had executed any other will except the one executed in February 1999. He also denied that mother of defendant no. 1 had not executed any will during her life time. The mother of the defendant no. 1 expired in April 1999. She was not well prior to her death. She was bedridden and not well for a period of 11.5 months i.e 45 days. He does not know the age of mother of defendant no. 1. He admitted that the mother of defendant no. 1 was about 70 years of age at the time of her death. He denied that at the time of execution of the will the mother was not well was not in her proper senses and was bedridden. He volunteered at the time of execution she was read over and explain the Suit no. 112/11 Page 28/55 will though she never knew English and never signed in English. 41 Defendant also examined Sh. Madan Lal as DW5. In para 4 of his examination in chief, DW5 has deposed as under: " I know that I also stand as a witness in the will dated 2.2.1990 executed by late Smt. Sumitra Rani, mother of defendant no. 1 in his presence and it has been declared by the deceased that the defendant no. 1 shall be the sole owner of her 1/3 share in the suit property including the absolute owner of the back side portion. The will dated 2.2.90 is Ex. DW1/13"
42 In his crossexamination DW5 deposed that mother of defendant no. 1 had executed a will but he does not recollect the date, month and year of the same. It must be 10 to 11 years ago. He further deposed that mother of defendant no. 1 phoned him at his shop at Libas pur at around 1115 a.m. She has called him at her house as she has a work. He further stated that she deposed him that she wanted to executed a will with respect to the back portion of the suit property. Then he made a phone call to one Sh. Rakesh. He further stated that then they three reached at court behind Ritiz cinema while travelling in a van. There mother of defendant no. 1 got the will drafted. He further stated that then they reached the office of Sub Suit no. 112/11 Page 29/55 Registrar and signed the will. Then they came back while dropping mother at their residence. He does not remember the exact time when he reached home or office of Sub Registrar. He further deposed that the mother of defendant no. 1 was hale and hearty when she accompanied them to the office of Sub Registrar. After getting the will drafted they directly went to the office of Sub Registrar alongwith the advocate. The will was duly signed by him, Rakesh Kumar and the mother. He does not know who has signed the first nor recollect who has signed the second or at third and forth instance. He further stated that it took around 1.1.5 hours in consultation and getting the will drafted from advocate. He further stated that he made inquiries from the mother and she replied that will is executed in favour of defendant no. 1. He denied that mother of defendant no. 1 neither executed the will nor signed the same in the office of Sub Registrar neither he had stood as a attesting witness to the same. He also denied that he is deposing at the instance of defendant no. 1 as he wants to grab the entire property. He admitted that when mother of defendant no. 1 became old she need a family member to accompany her when she used to walk out of the house. He does not know as to whether the wife of Dharamvir Malhotra/plaintiff no. 1 used to accompany her while taking a leave from the office.
43 An examination of the pleadings and the evidence led on record Suit no. 112/11 Page 30/55 shows that although in Para 5 A of the written statement although defendant no. 1 & 2 have talked about a registered will dated 5.08.1975 stated to have been executed by Smt. Sumitra Rani, however, the said will has been placed on record. The defendant no. 1 has also not made any whisper regarding the said will during his examination in chief nor defendant no. 1 & 2 have examined any witness in order to prove the due execution of the will dated 5.08.1975. In the absence of any material, the execution the will dated 5.08.1975 stated to have been executed by Smt. Sumita Rani remained unsubstantiated and unproved.
44 The defendant no. 1 has further sought to rely upon the will dated 2.2.1990 Ex. DW1/12 and dated 26.02.1999 Ex. DW1/14 executed by Smt. Sumita Rani. A perusal of Ex. DW1/14 shows that vide the said instrument the testator had revoked all her previous wills if any executed by her prior to that will.
In order to prove the execution of will dated 2.2.1990, Ex. DW1/13 defendant no. 1 has examined DW5 Sh. Madan Lal Arora and in order to prove the execution of will dated 26.02.99 Ex. DW1/14 defendant no. 1 has examined Sh. Rakesh Kumar as DW4. Sh. Madan Lal Arora, DW5 although in para 4 of his examination in chief deposed about the execution of the will dated 2.2.90, however, during his crossexamination he Suit no. 112/11 Page 31/55 has not deposed a word regarding the said will and given his entire statement with regard to the will dated 26.2.99 Ex. DW1/14 to which also he was one of the attesting witness. During crossexamination DW5 has stated that the mother of defendant no. 1 had executed one will, however, he does not recollect the date, month and year but it must be executed 1011 years ago. He has further deposed that in that will Rakesh Kumar, DW4 also signed as one of the attesting witness.
It is relevant to mention that Rakesh Kumar DW4 is the attesting witness only qua will Ex. DW1/14 dated 26.02.99 and he has not signed the will Ex. DW1/13 dated 2.2.90 as an attesting witness. The will dated 2.2.90 Ex. DW1/13 appears to have been signed as a witness only by DW5 and not by DW4, therefore, from the perusal of both the wills Ex. DW1/13 & Ex. DW1/14 it is amply clear that DW4 & DW5 have signed the will Ex. DW1/14 only as attesting witness only and not any other will. 45 A careful examination of the testimony of DW4 and DW5 regarding the execution of the will Ex. DW1/14 clearly shows that there are material inconsistency and inherent improbabilities in their testimony. DW4 Sh. Rakesh Kumar, however during his examination in chief has not deposed anything regarding the fact as to who called him for putting his signatures on the will Ex. DW1/14 as an attesting witness. However, during his cross Suit no. 112/11 Page 32/55 examination DW4 deposed that he was telephonically called by the Mamaji of defendant no. 1 on the pretext that he had some urgent piece of work. After receiving the call on the next day when he visited the house of Mamaji he read over the said will to Smt. Sumitra Rani and got the signatures of the testator on the will. He has also deposed that said will executed by the mother of defendant no. 1 was drafted at her residence at 14/30 Shakti Nagar and same was drafted by Mr. Sehgal , the Mamaji of defendant no. 1 and brother of testator. On the other hand DW5 during his crossexamination has deposed that the mother of defendant no. 1 called him at his shop at Libaspur at around 11 to 12 a.m and asked him to visit her house as she was having an urgent work. On his reaching, the testator deposed that she wanted to execute a will with respect to the back portion of the suit property. Then he made a telephone call to one Rakesh Kumar, DW4 thereafter they all three i.e testator, DW4 and DW5 reached at court behind Ritiz Cinema while traveling in a Van and there the mother of defendant no. 1 got the will drafted and visited the office of Sub Registrar and signed the same. 46 The testimony of DW4 & DW5 is contradictory with each other. Both the attesting witnesses of the will Ex. DW1/14 have given a divergent statement with regard to the preparation of the will, the signature of the will and the attestation of the will by them. As per DW4, the will was Suit no. 112/11 Page 33/55 got prepared and attested and signed by the testator at her residence whereas as per DW5 the same was prepared, signed and attested at Kashmere Gate Court behind Ritiz Cinema. The above contradiction in the testimony of DW4 & DW5 goes to the root of the matter and makes the existence of the will Ex. DW1/14 highly improbable. The aforesaid contradiction has not been explained by defendant no. 1. The defendant no. 1 has thus failed to prove on record the execution and attestation of the will Ex. DW1/14 in accordance with law.
47 In view of the above, facts and circumstances, I am of the considered view that defendant no. 1 has failed to prove the due execution and attestation of the will dated 28.10.70 Ex. DW1/12. He has failed to prove the will dated 5.8.1975, 2.2.90 Ex. DW1/13 and dated 26.2.99 as Ex. DW1/14 in accordance with the law. Defendant no. 1 has thus failed to discharge the onus of issue no. 1, same is accordingly decided against him. Issue no. 2: Whether the plaintiff is not entitled to the relief claimed in view of the settlement/agreement dated 10.01.2000 between late Sh. Dharamvir Malhotra and defendant no. 1 ( OPD1) 48 The onus to prove issue no. 2 is upon the defendant. In Para 5 of the written statement defendant no. 1 has pleaded that after the death of Smt. Suit no. 112/11 Page 34/55 Sumitra Rani, husband of plaintiff no. 1, late Sh. Dharamvir Malhotra came to know about the will dated 26.2.99 and requested the defendant no. 1 to give him some more share in the suit property in addition to 1/4th share and defendant no. 1 agreed to his request to keep harmony in the family, accordingly, defendant no. 1 and husband of plaintiff no. 1 entered into an agreement which was executed on 10.01.2000 which was duly attested by the notary public etc. The plaintiffs filed replication to the said written statement and denied the said averment in Para 5 of their replication. 49 In order to prove his case, defendant no. 1 examined himself as DW1, however, defendant no. 1 has not made even a whisper qua the above agreement dated 10.1.2000 stated to have been executed between him and late Sh. Dharamvir Malhotra in his entire examination in chief. Defendant no. 1 has not led any evidence regarding the existence, execution and validity of agreement dated 10.1.2000. The defendant no. 1 has thus failed to place any material on record to substantiate his plea that an agreement dated 10.1.2000 was ever executed between him and the husband of plaintiff no. 1.
In view of the above fact and circumstances, I am of the considered view that defendant no. 1 has failed to discharge the onus of issue no. 2 same is accordingly decided against him.
Suit no. 112/11 Page 35/55 Issue no. 3 Whether the plaintiff is entitled to the relief of declaration to the effect that the registered Sale Deed dated 27.12.1999 executed in favour of defendant no.1 by defendant no. 2 is liable to be declared as null and void? ( OPP) 50 The onus to prove issue no. 3 is upon the plaintiff. In Para 15 of the plaint it is averred that defendant no. 1 on the basis of the fabricated will dated 28.10.1970 of late Sh. Harsarup Narain Malhotra and will of Smt. Sumitra Rani dated 26.02.1999 fraudulently sold out the ground floor and the first floor of the back portion of the suit property admeasuring 71 sq yds. comprising of two rooms, one store, one bathroom cum latrine, kitchen etc, in favour of defendant no. 2 for a total sale consideration of Rs. one lac. As per the plaintiff the defendant no. 1 was not having any right, title or interest to execute the said sale deed in favour of defendant no. 2. Defendant no. 1 & 2 filed written statement and has not contradicted the said plea in corresponding para 15 of the written statement.
51 In order to prove their case plaintiffs have examined plaintiff no. 1, who reiterated the said fact in Para 16 of her examination in chief. The plaintiff has also placed on record the certified copy of the sale deed executed by defendant no. 1 in favour of defendant no. 2 as Ex. PW3/6. Suit no. 112/11 Page 36/55
A perusal of the sale deed Ex. PW3/6 clearly shows that same was executed by defendant no. 1 in favour of defendant no. 2 on the basis of the will dated 28.10.1970 Ex. DW1/12 executed by Sh. Harsarup Narain Malhotra and will dated 26.02.1999 Ex. DW1/14 executed by Smt. Sumitra Rani in favour of defendant no. 1. Thus on the basis of those will, defendant no. 1 treated himself as the sole owner of the said property and executed the sale deed Ex. PW3/6 in favour of defendant no. 2. While deciding issue no. 1 I have already hold that defendant no. 1 has failed to prove on record that late Sh. Harsarup Narain Malhotra had executed any will dated 28.10.70 Ex. DW1/12 in accordance with law. He has also failed to prove that Smt. Sumitra Rani had executed a will dated 2.2.90 Ex. DW1/13 and 26.02.99 Ex. DW1/14 in his favour as per law, consequently the defendant no. 1 was not the exclusive owner of the subject matter of the sale deed Ex. PW3/6 executed by him in favour of defendant no. 2 .
The Plaintiffs have thus proved on record that defendant no. 1 had executed the sale deed dated 27.12.99 Ex. PW3/6 without any authority under the law and same is liable to be declared as null and void. The plaintiff has thus, discharged the onus of issue no. 3 same is accordingly decided in favour of plaintiffs.
Suit no. 112/11 Page 37/55 3A Additional issue :Whether the plaintiff is entitled to relief of declaration, declaring the sale deed dated 12.12.2003 executed by defendant no. 2 in favour of defendant no. 3, registered as document no. 6397, additional book no. 1, Volume No. 922 at pages 172 to 175 dated 12.12.2003 as null 7 void? OPP 52 The plaintiff in para 19 of the plaint has mentioned that defendant no. 2 on the basis of the registered sale deed, executed by defendant no. 1 had agreed to sell the first floor with roof right and the back portion of the property admeasuring 34'x19' ft comprising two rooms, one store, bathroom cum latrin, kitchen etc with its room rights to defendant no. 3 for a total sale consideration amount of Rs. 2 lacs. Defendant no. 1 & 2 filed their written statement and have not contradicted the said plea in para 19 of their written statement.
53 Defendant no. 3 has also filed his written statement and taken a plea that he purchased the suit property from defendant no. 2 after due verification of the records of the property and after due consultation with the plaintiff as well as with the husband of the plaintiff during his life time.
It is relevant to mentioned that defendant no. 2 has not appeared as a witness before the court. Defendant no. 3 has also not examined himself in order to substantiate the plea raised by him in his written statement that the Suit no. 112/11 Page 38/55 sale deed Ex. PW3/10 was validly executed. While deciding issue no. 3, I have already hold that defendant no. 1 was not competent to execute the sale deed Ex. PW3/6 in favour of defendant no. 2 thus the said sale deed has been declared as null and void. The defendant no. 2 has executed a sale deed Ex. PW3/10 on the basis of the sale deed executed in his favour by defendant no.
1. Once the sale deed in favour of defendant no. 2 has been declared as null and void, the defendant no. 2 was thus having no right, title or interest which could have been conferred by him to defendant No. 3 on the basis of the sale deed Ex. PW3/10. Therefore, the sale deed Ex. PW3/10 executed by a person having no right or title or interest.
In view of the above, I am of the considered view that defendant no. 2 was not having any right title or interest to execute the sale deed in favour of defendant no. 3, same is liable to declare null and void. Plaintiffs have thus discharged the onus of additional issue no. 3(a), same is accordingly decided in their favour.
Issue no. 4: Whether the registered Gift Deed dated 7.5.2005 is a valid document. It not then whether it is liable to be declared as null and void? ( OP Parties) 54 In para 25 A of the plaint, plaintiff has mentioned that defendant no. 1 had further executed a Gift Deed dated 7.5.2004 in favour of defendant no. 2 Suit no. 112/11 Page 39/55 in respect of the remaining front portion of the property bearing no. 14/30, Shakti Nagar, Delhi. The defendant No. 1 & 2 filed their written statement, however, the above stipulation have not been contradicted by them. 55 Both the parties have led their respective evidence. Plaintiff has placed on record a Gift Deed Ex. PW3/11 executed by defendant no. 1 in favour of defendant no. 2. It is relevant to point out that defendant no. 2 has not examined himself as a witness in support of his case. A perusal of the Gift Deed Ex. PW3/11 shows that defendant no. 1 claimed himself to be the absolute and lawful owner of the ground floor without roof right of the suit property on the basis of the will executed by his father Sh. Harsarup Narain Malhotra and his mother Smt. Sumitra Rani.
While deciding issue no. 1, I have already hold that defendant no. 1 has failed to prove on record that late Sh. Harsarup Narain Malhotra had executed any will dated 28.10.70 Ex. DW1/12 in accordance with law. He has also failed to prove that Smt. Sumitra Rani had executed a will dated 2.2.90, DW1/13 and 26.02.99, Ex. DW1/14 in his favour as per law, consequently, defendant no. 1 has failed to prove on record that he has become the sole owner of the subject matter of the gift deed on the basis of the will Ex. DW1/12 and Ex. DW1/14. Plaintiff has thus proved on record that defendant no. 1 was not the exclusive owner of the subject matter of the Suit no. 112/11 Page 40/55 gift deed Ex. PW3/11 executed by defendant no. 1 in favour of defendant no. 2 . Plaintiff has thus proved on record that defendant no. 1 has executed the gift deed dated 9.8.2004 Ex. PW1/4 without any authority under the law and same is liable to be declared as null and void. The plaintiff has thus, discharged the onus of issue no. 4, same is accordingly decided in favour of plaintiffs.
Issue no. 5: Whether the plaintiff is entitled to the relief of partition, possession and mesneprofit as asked for the plaint? ( OPP) 56 Plaintiffs have set up a case that suit property was owned by Sh. Harsarup Narain Malhotra and Smt. Sumitra Rani, parents of defendant no. 1 and Sh. Dharamvir Malhotra, husband of plaintiff no. 1 by virture of a sale deed Ex. PW5/2. Plaintiff further pleaded that Sh. Harsarup Narain Malhora died intestate on 23.12.1972 and after his demise Smt. Sumitra Rani and defendant no. 3 & 4 had relinquished their share inherited by them after the death of Sh. Harsarup Narain Malhotra in favour of the husband of plaintiff no. 1 and defendant no. 1 vide registered Relinquishment Deed Ex. PW5/3. Plaintiff further pleaded that Smt. Sumitra Rani had also expired without executing any will and after her death the said property was inherited by the plaintiff and the defendant in equal shares, however the defendant no. 1 has not partitioned the suit property despite various requests. Suit no. 112/11 Page 41/55 57 On the other hand defendants have admitted that suit property was owned by Sh. Harsarup Narain Malhotra and Smt. Sumitra Rani, however, defendant no. 1 pleaded that Sh. Harsarup Malhotra had executed a will dated 28.10.1970 Ex. DW1/12 and thereby bequeathed the back portion of 34'x19' exclusively to defendant no. 1 and remaining portion in equal share to defendant no. 1 and husband of plaintiff no. 1. He further pleaded that Smt. Sumitra Rani also executed wills dated 2.2.90 & 26.02.99 thereby she bequeathed her entire share in the suit property in favour of defendant no. 1. They have further pleaded that a family settlement has also arrived between Smt. Sumitra Rani, defendant no. 1 and husband of plaintiff no. 1 on 8.9.1982, whereby it was agreed between the parties that defendant no. 1 shall raised construction on a piece of land measuring 34'x19' ft situated on the back portion of the suit property at his own cost and it shall be his exclusive property and shall not be claimed by Smt. Sumitra Rani and Sh. Dharamvir Malhotra. Ld. counsel for defendant no. 1 during the course of arguments has contented that a family settlement dated 8.9.1982 was entered into between the defendant and husband of plaintiff no. 1 and their late mother Smt. Sumitra Rani as Ex. DW1/11 by which the possession of the land measuring 34x19 feet situated at back portion of the suit property was given to defendant no. 1 exclusively. Ld. counsel for the plaintiff, however, contradicted the said statement and pleaded that no such settlement was ever Suit no. 112/11 Page 42/55 entered into between the husband of plaintiff no. 1 and defendant no. 1 and document Ex. DW1/11 is a forged document.
58 It is pertinent to mention that the defendant no. 1 in Para 5 of the written statement has mentioned about the family settlement dated 8.9.1982 as Ex. DW1/11. The plaintiff in Para 5 of the replication contradicted the said plea and stated that same is forged and frivolous document which does not contain the signature of deceased husband of plaintiff no. 1. 59 In order to prove his case defendant no. 1 examined himself as DW1 and reiterated the said fact in para 4 of his examination in chief. During crossexamination DW1 denied that Ex. DW1/11 does not contain the genuine signature of his brother late Sh. Dharamvir Malhotra. He further denied that the signatures of Dharamvir Malhhor encircled X on all pages are forged and not genuine.
60 The plaintiff no. 1 examined herself as PW3. During her cross examination PW3 deposed that she is not aware if any deed of settlement was executed in the year 1982 between her deceased husband, her mother in law late Smt. Sumitra Rani and Sh. Ashok Malhotra, defendant no. 1. She further deposed that she does not know her husband and mother in law had Suit no. 112/11 Page 43/55 stated in the said settlement deed that they would have no concern with the portion of coal depot and the same would be in the exclusive right and possession of Sh. Ashok Malhotra. Besides the above crossexamination, no further question was put to PW3 by the defendant that the settlement deed Ex. DW1/11 bears the signatures of Sh. Dharamvir Malhotra. The plaintiff has categorically stated in the replication that the settlement deed is a forged document and does not bear the genuine signature of her husband. She has also given such suggestion to DW1 during his crossexamination which he has denied, however, defendant has not put any question to PW3 regarding the signatures of Sh. Dharamvir Malhotra.
61 The defendant no. 1 sought to rely upon the settlement deed Ex. DW1/11 and on that basis he contended that back portion of the suit property was given exclusively to him vide the said settlement deed. The deed of settlement Ex. DW1/11 is neither registered nor notorised document.
Section 17 of Registration Act talks about the documents of which registration is compulsory. Clause B of Section 17 of Registration Act reads as under:
(b) other nontestamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contigent, of the value of Suit no. 112/11 Page 44/55 one hundred rupees and upwards, to or in immovable property" 62 A perusal of the above clearly shows that an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under Section 17(1)(b) of the Act. However, if a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction.
The Hon'ble Supreme Court in Kale Vs. Deputy Director of Consolidation reported as AIR 1976 S.C.807 has held that, " it is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also a distinction should be made between a document containing the terms and recital of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17 (2) Suit no. 112/11 Page 45/55 (sic) ( Sec. 17 (1)(b) of the Registration Act and is therefore not compulsory registrable." The aforesaid legal preposition has been reiterated by the Hon'ble Supreme Court in Roshan Singh Vs. Zile Singh, reported as AIR 1988 S.C 881, 63 In the light of the above well settled legal preposition, let me examine the stipulations of the deed of settlement Ex. DW1/11.
The Para 1 to 3 of the terms and conditions of the deed of settlement Ex. DW1/11 stipulates as under:
1. "That the first party shall raise construction on the piece of land measuring 34 ' x 19' situated on the back of plot No. 30, Block No. 14, Shakti Nagar, Delhi at his own cost and the party of the second part and third part shall not invest any amount in the construction raised on the said piece of land.
2. That the construction so raised by the first party on the said piece of land shall be the exclusive property of the first party and the second and third parties shall not claim any right, title or interest in the said construction and that shall not be treated as an accretion to the joint property and shall not be claimed by the second and third party as joint property.
3. That in case of any partition of property by metes and bounds, the Suit no. 112/11 Page 46/55 second and third party shall not claim any share in the construction so raised by the first party on the said piece of land and the first party shall be alone entitled to the said construction which shall not be formed part of the partition. In case of partition of property by metes and bounds, the first party shall be allotted the said piece of land and shall also be entitled to share in the other portion of the constructed property as per his share."
64 A careful perusal of the aforesaid settlement of deed Ex. DW1/11 clearly and unambiguously shows that same is not a memorandum of transaction which had taken place in past but itself is a source by virtue of which parties stated to have decided their share in the portion of the property subject matter of deed of settlement. The document itself is a source of creation of a right in favour of defendant no. 1, thus, it cannot be term as a memorandum of family settlement but the said document is a deed of partition by virtue of which parties have stated to have relinquished their share in the suit property. Being a source of creation of a right of the parties the settlement deed dated 8.9.1982 is required to be registered and if it is not registered Section 49 of the Act will prevent it being admitted in evidence. Section 49 prohibits the use of unregistered document in any legal proceedings in which such a document is sought to be relied upon in support Suit no. 112/11 Page 47/55 of a claim to enforce or maintain any right, title or interest to or in an immovable property.
In view of the above facts and circumstances, I am of the considered view that the settlement deed Ex. DW1/11 has not been executed in accordance with law and same being an unregistered document is hit by Section 17( 1) (b) read with Section 49 of Indian Registration Act thus cannot be taken into consideration.
65 The defendant No: 1 has further claimed that he has become the owner of 3/4th share of the suit property by vartue of the will Ex DW1/12 & DW1/14 . While deciding issue no. 1, I have already hold that defendant no. 1 has failed to prove on record the due execution of the will dated 28.10.70 stated to be executed by late Sh. Harsarup Narain Malhotra as well as the will dated 5.8.75, 2.2.90 and 26.02.99 stated to have been executed by Smt. Sumitra Rani, therefore no right, title or interest have been conferred upon the defendant no. 1 on the basis of the aforesaid wills. In the absence of any will after the demise of late Sh. Harsarup Malhotra his half share in the suit property is inherited by his all legal heirs i.e Smt. Sumitra Rani, husband of plaintiff no. 1, defendant no. 1 and defendant no. 4 & 5 being his daughters. Smt. Sumitra Rani and defendant no. 4 & 5 had executed relinquishment Deed Ex. PW5/1 by which they relinquished their share, which was inherited Suit no. 112/11 Page 48/55 by them after the demise of Sh. Harsarup Narain Malhotra in favour of husband of plaintiff no. 1 and defendant no. 1 equally. Therefore, the defendant no. 1 and husband of plaintiff no. 1 became the owner of 1/4th share of the suit property after the demise of Sh. Harsarup Narain Malhotra. Similarly after the death of Smt. Sumitra Rani her half share in the suit property has been inherited by the plaintiff, defendant no. 1 and defendant no. 4 & 5 equally. Therefore the plaintiff and defendant no. 1 is having 1/4th share plus 1/8th share in the suit property i.e plaintiff and defendant no. 1 are having 3/8th share in the suit property whereas defendant no. 4 & 5 are having 1/8th share each in the suit property after the demise of Smt. Sumitra Rani Malhotra.
Plaintiff has also claimed mesne profit against the defendant, however, they are not entitled for mesne profit as the suit property was in possession of defendant no. 1 being one of the coowner of the suit property and not an unauthorised occupant, therefore, the plaintiffs are not entitled for mesne profit claimed by them.
In view of the above facts and circumstances, issue no. 5 is accordingly decided.
Issue no. 6: Whether the plaintiff is entitled to the relief of permanent and mandatory injunction as asked for in the plaint? ( OPP) Suit no. 112/11 Page 49/55 66 The onus to prove issue no. 6 is upon the plaintiff. In para 23 of his plaint it has been averred that in the middle of January 2004 defendant no. 1 & 2 threatened the plaintiff that they had already sold out part of the property and shall dispose of the remaining portion of the suit property to any third party by illegal means and they shall be taking the forcible possession from the plaintiffs and shall teach a lesson to the plaintiff for coming forward against defendant no. 1. They have also pleaded in para 30 of the plaint that defendant no. 6 is liable to annul/cancel the mutation already effected in favour of defendant no. 1, 2 & 3. Defendant no. 1 & 2 have filed their written statement thereby contradicted the said plea in the corresponding para in the written statement.
67 Plaintiff no. 1 examined herself as PW1 and reiterated the said plea in par 24 of her examination in chief. She has been throughly cross examined however, the above testimony of PW3 has not been challenged by the defendant during her crossexamination. No suggestion whatsoever has been given to PW3 regarding the above fact that no such threat had ever extended by them. Plaintiffs have thus proved on record that they are the co owner of the suit property as they have inherited the suit property after the demise of Sh. Harsarup Narain Malhotra and Smt. Sumitra Rani. They have also proved that defendant no. 1 & 2 extended threat to them for creating Suit no. 112/11 Page 50/55 third party interest in the suit property.
It is also relevant to mention that defendant no. 6 had sanctioned the mutation in favour of defendant no. 2 & 3 . The mutation in favour of defendant no. 2 & 3 was sanctioned on the basis of the sale deed executed by defendant no. 1 in favour of defendant no. 2 and by defendant no. 2 in favour of defendant no. 3. While deciding issue no. 3 & 4. I have already hold that sale deed in favour of defendant no. 2 was executed by defendant no. 1 as well as sale deed in favour of defendant no. 3 executed by defendant no. 2 were without any authority and same have been declared as null and void, consequently the mutation sanctioned in the name of defendant no. 2 & 3 is also required to be cancelled because the exist no title document in their favour.
In view of the above facts and circumstances, I am of the considered view that plaintiffs have discharged the onus of issue no. 6, same is accordingly decided in favour of the plaintiffs.
Issue no. 7: Whether the plaintiff is entitled to the relief of rendition of account in respect of recovery of rent as asked for in the plaint ? ( OPP) 68 The onus to prove issue no. 7 is upon the plaintiffs. In para 22 of the plaint it is mentioned that they have requested to defendant no. 1 to Suit no. 112/11 Page 51/55 settle the amount of recovery of rent recovered from the tenants but defendant no. 1 had been cunningly putting off the issue on one pretext or the other. Defendants filed their written statement and in para 22 of the written statement it has been mentioned that plaintiffs are not entitled to get any rent as rented property is exclusive property of defendant no. 1 & 2. 69 Plaintiff no. 1 has examined herself as PW1 and reiterated the above fact in para 23 of her examination in chief. Defendant no. 1 has also examined himself as DW1. During his crossexamination defendant no. 1 has admitted that he has been letting out the back portion of the property to the different tenants on rent after the death of his parents and he has not tendered any statement of account in respect of recovery of rent from different tenants from time to time despite requests and reminders by the legal heirs of Sh. Harsarup Narain Malhhotra/ brother and sisters. He volunteered that he is legally entitled to do so.
The above testimony of DW1 clearly shows that he has been letting out the suit property to the tenants and has been realizing the rent amount exclusively. While deciding issue no. 5 I have already hold that after the demise of Sh. Harsarup Narain Malhotra and Smt. Sumitra Rani suit property has been inherited by plaintiffs, defendant no.1, 4 & 6 as per their shares, therefore they are entitled for their share in the rent recovered by Suit no. 112/11 Page 52/55 defendant no. 1from the tenant for which defendant no. 1 is liable to tender the true account of the rent received by him from various tenants. The plaintiff has successfully discharge the onus of issue no. 7, same is accordingly decided in favour of the plaintiffs.
Relief 70 In view of the above facts and circumstances, the suit filed by the plaintiffs against defendants for declaration, partition, permanent and mandatory injunction and rendition of account is decreed.
A decree for declaration is passed in favour of plaintiffs and against the defendants thereby declaring the registered sale deed dated 27.12.99, executed by defendant no. 1 in favour of defendant no. 2 registered with the office of Sub Registrar vide registration no. 1739, additional book no. 1, Volume No. 68 paged 136 to 149 dated 27.12.99 as null and void.
A decree for declaration is also passed in favour of the plaintiffs and against the defendants thereby declaring the sale deed dated 12.12.2003 executed by defendant no. 2 in favour of defendant no. 3 registered as document no. 6397, additional book no. 1, volume no. 92 at page no. 172 to 175 dated 12.12.2003 as null and void.
A decree for declaration is also passed in favour of the plaintiffs and against the defendants thereby declaring the registered gift deed dated Suit no. 112/11 Page 53/55 17.05.2004 executed by defendant no. 1 in favour of defendant no. 2, registered with the office of Sub Registrar as document no. 2731, additional book no. 1 volume no. 1041, pages 185 to 191 dated 7.5.2004 as null and void.
A decree for mandatory injunction is passed in favour of the plaintiff and against defendant no. 6 thereby directing the defendant no. 6 to cancel the mutation granted in favour of defendant no. 1, 2 & 3 with respect to the suit property.
A decree for permanent injunction is passed in favour of the plaintiffs and against the defendants thereby restraining the defendants permanently from selling, mortgaging, transferring or otherwise parting with the possession of the property bearing no. 14/30, Shakti Nagar, Delhi 7 as shown red in the site plan attached to any third party.
I have also hold that plaintiffs are the joint owner of the suit property alongwith defendant no. 1 and defendant no. 4 & 5. The plaintiffs are entitled to 3/8th share{ie 1/8 share of each plaintiff} of the suit property. The defendant No: 1 is also entitled to 3/8th share in the same. The defendant no. 4 & 5 are entitled for 1/8th share each in the suit property. I further hold that plaintiffs are entitle to partition of the suit property.
Plaintiffs are also entitled for the rendition of accounts of the Suit no. 112/11 Page 54/55 rental income from defendant no. 1 from the date of filing of the suit. Decree Sheets be accordingly prepared. Copy of the order be sent to the office of sub registrar as for necessary correction. File be consigned to record room.
Announced in the open court ( PITAMBER DUTT)
17, September, 2011 Additional District Judge
Delhi
Suit no. 112/11 Page 55/55