Delhi District Court
Reena Jain vs Shri Rajiv Kumar Saxena on 7 June, 2014
In the Court of Pawan Kumar Matto
Additional District Judge01 (East)
Karkardooma Courts, Delhi.
RCA No.44/2009
Unique Case ID No.: 02402C0146882009
Date of Institution : 13.5.2009
Date of Reserving Judgment : 26.05.2014
Date on which judgment was pronounced: 07.06.2014
In the matter of :
1. Reena Jain
W/o Shri Pradeep Jain
R/o H.no.408, 1st Floor,
Gagan Vihar, Delhi 110051.
2. Shri Pradeep Jain
r/o H.no.408, Ist Floor,
Gagan Vihar, Delhi 110051. ............Appellants/defendants
Versus
Shri Rajiv Kumar Saxena
S/o late Shri Jagdish Prasad Saxena
R/o H.no. 408, Ground Floor,
Gagan Vihar, Delhi110051. ...........Respondent/Plaintiff
J U D G M E N T
07.06.2014
1. This is an appeal against the impugned judgment and decree dated 6.4.2009 passed by Shri Naresh Kumar Malhotra, Administrative Civil Judge, KKD,Delhi, vide which, the suit of the plaintiff was decreed by the ld. Trial court. RCA No.44/2009 Page No.1 of 26
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2. Briefly stating, the facts of the case, relevant for the disposal of the present appeal are that the plaintiff/respondent has filed a suit for declaration and mandatory injunction against the defendants/appellants, on the averments that the father of the plaintiff had purchased a plot bearing no. 408, Gagan Vihar, Delhi measuring 272 square yards (herein referred as the suit property) and constructed the same out of his income and the father of the plaintiff had bequeathed the said house to the plaintiff by executing a WILL dated 28.4.1995 and the right, title and interest in the property were devolved upon the plaintiff and the mother of the plaintiff was only having the right of residence in the suit property.
3. It is further averred that the father of the plaintiff had expired on 22.3.1996 and the mother of the plaintiff had expired in October,1999. It is further averred that before the death of the parents of the plaintiff, the defendant no.1 was permanently living in her matrimonial home at Ghaziabad alongwith her husband and the plaintiff was the only owner of the suit property as per WILL executed by the father of the plaintiff. It is further averred that the defendant no.1 came to the house of the plaintiff for temporary stay, but later on she started living permanently in the house of plaintiff with her husband and children and thereafter the defendants had started raising the RCA No.44/2009 Page No.2 of 26 07.06.2014 construction on the first floor and on the second floor of the building and whenever the plaintiff raised objection, the defendants persuaded him not to raise any resistance and promised to show the plaintiff a WILL executed by father of the plaintiff, authorizing them to raise the construction. It is further averred that the plaintiff is residing on the ground floor with his wife and children.
4. It is further averred that on 16.8.2002, when the plaintiff had insisted to the defendants to show the plaintiff the document, the defendants called the police by levelling false allegation and gave the plaintiff a copy of settlement deed, which does not bear the signatures of the plaintiff, as the plaintiff never appeared before a Notary Public and further averred that the defendants also got site plan sanctioned from the office of the MCD by forging certain documents and fabricating the signatures of father of the plaintiff. It is further averred that before the death of the mother of the plaintiff, the defendant no.1 and her mother induced to the plaintiff to execute a relinquishment deed dated 3.2.1998, vide which, he was asked to relinquish his right, title and interest in the suit property in favour of mother of the plaintiff. It is further averred that the defendant no.1 and his mother were aware that there was a WILL executed by father of plaintiff and it came to knowledge of the plaintiff in May, 2002, RCA No.44/2009 Page No.3 of 26 07.06.2014 when the wife of the plaintiff found the WILL wrapped inside a cloth, when the wife of the plaintiff was setting the household articles. It is further averred that as per the relinquishment deed, the suit property was mutated in the office of the DDA in the name of the mother of defendant no.1 and the mother of the defendant no.1 had also executed a WILL, whereby right, title and interest in the suit property devolved upon the plaintiff and the said WILL was stolen by the defendant no.1. It is further averred that the defendant no.1 also removed jewellery and belongings of mother of the plaintiff. It is further averred that the defendants are running business activity on the second floor of the suit property and the defendants have restricted the entry and exit of the plaintiff and his wife from May,2002 on the roof of the suit property by putting a lock on the door for gaining entry on the roof.
5. It is further averred that the plaintiff and the defendants were consuming the electricity from the same meter till 17.8.2002 and thereafter the plaintiff has got installed a separate meter for himself. The defendants had also refused to pay the electricity bill amounting to Rs.14,440/.
6. The plaintiff sent a legal notice dated 10.9.2002 to the defendants to vacate the suit property and prayed that the settlement deed (Annexure P2) may be declared as forged RCA No.44/2009 Page No.4 of 26 07.06.2014 document, having no force in the eye of law and prayed that the relinquishment deed (annexure P3) may also be declared as void and a consequential relief of decree of possession be passed in respect of the first floor and second floor of the suit property (shown red in colour in the site plan), in favour of the plaintiff and against the defendants their agents and servants, assignees, legal representatives.
7. The ld. Trial court had issued the summons to the defendants and the defendants appeared before the ld. Trial court and filed the written statement and contested the case on the grounds interalia that the WILL is forged and fabricated. They have further stated that the WILL was never executed by the father of the plaintiff and the defendant no.1, as Shri J P Saxena, father of the plaintiff and the defendant no.1, was very much against the plaintiff due to misconduct and bad habits of the plaintiff and Shri J P Saxena had moved to house of the defendants, few days before his death. It is further stated that the mother of the defendant no.1 and the plaintiff became the undisputed owner of the suit property, as the plaintiff and the defendant no.1 had executed a relinquishment deed in favour of their mother and further stated that the plaintiff had also filed an application in the office of the Deputy / Assistant Collector, MCD, on 20.2.2001 for sanctioning of mutation of ground floor of the suit RCA No.44/2009 Page No.5 of 26 07.06.2014 property, in which he has mentioned that his mother Smt. Urmila Saxena is the recorded owner of the suit property. They have further stated that the plaintiff also executed an affidavit and family settlement deed dated 18.12.2000 and the plaintiff had also signed an indemnity bond in the presence of the witnesses and further stated that no WILL was left by Smt. Urmila Saxena. They have further stated that Shri J P Saxena had executed a WILL in favour of the defendant and against the plaintiff in the presence of the two witnesses, but after the death of Shri J P Saxena, the mother of the plaintiff and the plaintiff asked to the defendant no.1 to forget about the WILL executed in her favour and the plaintiff had also requested to the defendants not to use the WILL against him and he is ready to execute all the necessary documents in favour of his mother.
8. It is further stated that the WILL dated 7.2.1996 executed by the deceased Shri J P Saxena, which was in the possession of the defendant no.1 is not available, as it was given to some person for its safety, but the said person is unable to trace out the same and the present suit is hit by section 105 of the Transfer of Property Act.
9. The defendants have denied that Shri J P Saxena had executed the WILL dated 28.4.1995. It is stated that the WILL is forged and fabricated. The plaintiff has executed the RCA No.44/2009 Page No.6 of 26 07.06.2014 relinquishment deed dated 3.2.1998 in favour of Smt Urmila Saxena and the plaintiff and the defendant no.1 had executed indemnity bond and the same is registered with Sub Registrar VIII. The defendants have denied that on 16.8.2002 the plaintiff had insisted to the defendants to show him the documents or that the defendants had called the police on 16.8.2002 or that the defendant no.1 and her mother induced the plaintiff to execute a relinquishment deed in respect of the suit property in favour of his mother or that the WILL was found to the wife of the plaintiff in May, 2002 or that the plaintiff used to pay the electricity bill. It is also stated that the plaintiff had signed the settlement deed and the settlement deed was duly notarized and further stated that the relinquishment deed was signed by the plaintiff and the same was registered in the office of the Sub RegistrarVIII on 3.2.1998 and the relinquishment deed cannot be declared null and void and further stated that the first and second floor of the house was duly constructed by the defendants, thus, no consequential relief of decree of possession in respect of first and second floor can be granted in favour of the plaintiff and prayed for the dismissal of the suit.
10. Plaintiff has filed the replication and denied the contentions of the defendants in their written statement and reiterated the RCA No.44/2009 Page No.7 of 26 07.06.2014 contents of the plaint.
11. From the pleadings of the parties, the ld. trial court was pleased to frame the following issues:
(i) Whether the plaintiff is entitled for decree of declaration as prayed for? OPP.
(ii) Whether the plaintiff is entitled for decree of possession as prayed for? OPP.
(iii) Whether the WILL dated 28.4.1995 is false, forged and fabricated? OPD.
(vi) Relief.
12. In order to prove his case the plaintiff has examined Shri J. K. Chopra as PW1 and Shri Naresh Chand Jain, who were the attesting witnesses of the WILL dated 28.4.1995. The plaintiff had also examined himself as PW3 and his wife Smt Rita as PW4 and closed his evidence.
13. Whereas, the defendants have examined Shri C L Madan, one of the attesting witness of family settlement deed dated 18.12.2000 as DW1, Shri Subhash Sharma, Assistant Zonal Inspector as DW2, Shri Dalip Singh as DW3. The defendant no.1 has examined herself as DW4 and the defendant no.2 has examined himself as DW5 and Shri J K Chopra as DW5A and Shri Harji lal as DW6 and Shri V C Mishra as DW7 and closed their evidence.
14. The ld. Trial court had decided all the issues in favour of the plaintiff and decreed the suit of the plaintiff. RCA No.44/2009 Page No.8 of 26
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15. Feeling aggrieved with the impugned judgment and decree dated 6.4.2009, the defendants have filed the present appeal against the impugned judgment and decree.
16. The notice of the appeal was issued to the respondent, who has put his appearance through his counsel.
17. The record of the trial court is also requestioned and perused.
18. I have heard the ld. counsels for the parties and perused the record.
19. The ld. counsel for the appellants has submitted that Sh. J P Saxena is alleged to have executed a WILL dated 28.04.1995 in favour of respondent herein. He has also submitted that the attesting witnesses of the WILL namely Sh. J K Chopra and Sh. Naresh Chand Jain have stated in their examination in chief that the WILL dated 28.04.1995 executed by the father of the appellant no.1 and respondent no.1 was crossed after its execution and thus the clouds of suspicion are created, as the WILL Ex.PW1/1 which is placed on the record is not found to be crossed, as stated by the witnesses. He has also submitted that the respondent had already executed a relinquishment deed in favour of the mother of the appellant no.1 and the respondent on the basis of which, mutation has been sanctioned in the name of the deceased mother of the appellant no.1 and the respondent. RCA No.44/2009 Page No.9 of 26
07.06.2014 He has also submitted that even if, the WILL is deemed to be correct even then, Sh. J P Saxena i.e. the father of the appellant no.1 and respondent, could not create lifetime interest of the mother of the appellant no.1 and respondent in the suit property and even if, he had created lifetime interest of deceased Mrs. Urmila Saxena, so, such condition, vide which, the lifetime interest of Mrs. Urmila Saxena were created in the suit property itself is null and void in accordance with section 14(1) of the Hindu Succession Act. He has relied upon the judgment passed by their lordship in case Vadeboyina Tulasamma and ors. v. Vadeboyina Seshareddi (died) by LRs, AIR 1977 SC 1944(1). He has also submitted that since the respondent had executed a relinquishment deed and deed of family settlement and on the basis of the settlement, the respondent cannot claim absolute right in the suit property, as it is the appellants, who have raised construction of first floor and second floor of the suit property and spent huge money thereon and submitted that the ld. Trial court has committed grave error while decreeing the suit of the plaintiff and the impugned judgment and decree under appeal are liable to be set aside. He has further submitted that the settlement was arrived at between the parties, so the said family settlement is binding upon the parties. He has also relied upon the judgment passed by their lordship of Supreme Court in case RCA No.44/2009 Page No.10 of 26 07.06.2014 Kale and ors v. Dy. Director Consolidation and ors., AIR 1976 SC 807 and prayed for the dismissal of the suit of the plaintiff and for allowing the appeal of the appellant.
20. On the other hand, the ld. counsel for the respondent has submitted that admittedly Sh. J P Saxena i.e. the father of the appellant no.1 and respondent was the absolute owner of the suit property and he has also submitted that Sh. J P Saxena had executed a WILL dated 28.04.1995, which is proved on the record as Ex.PW1/1. He has also submitted that the execution of the WILL has been proved by two attesting witnesses of the said WILL namely Sh. J K Chopra PW1 and Sh.Naresh Chand Jain PW2, who have been examined as PW1 and PW2. He has also submitted that no doubt that these attesting witnesses of the WILL have stated in their examination in chief that the Will was crossed after its execution by the testator and the testator had stated that he would execute another WILL, but at the same time he has also submitted that since no WILL was crossed by Sh. J P Saxena and the WILL is proved on the record being Ex.PW1/1 and both the attesting witnesses have identified their signatures and signature of the testator thereon, so, the same WILL, which is proved on the record as Ex.PW1/1, it cannot be held to be suspicious WILL at all. He has also submitted that during the cross examination of Sh. J K Chopra, he has stated that at the RCA No.44/2009 Page No.11 of 26 07.06.2014 time of his signing the WILL the another witness was not present and similarly Sh. Naresh Chand Jain has also deposed that another witness namely Sh. Chopra was not present, when he signed the WILL and thus, from the testimony of PW1 and PW2, it is clear that no WILL was crossed nor it could be done so twice times, as deposed by the PW1 and PW2 nor these witnesses have proved on the record that in whose presence the WILL was crossed. He has also submitted that the deed of family settlement Ex.DW1/1 is a fabricated document and the attesting witnesses of the same has also deposed in his testimony that the respondent had not signed the same in his presence and the said witness has also testified that it was the appellant no.1, who had brought the same for signing, so, the family settlement is not proved on the record. He has also submitted that since the WILL is found in the month of May, 2002, when the wife of the respondent was setting the household articles and submitted that as per the WILL Ex.PW1/1, Smt. Urmila Saxena i.e. the mother of the appellant no.1 and respondent, was given lifetime interest in the suit property and he could do so being absolute owner, so, Mrs. Urmila Saxena cannot be held as absolute owner of the suit property, as the right given to a Hindu female in a WILL cannot be held as absolute right and the judgment passed by their lordship of RCA No.44/2009 Page No.12 of 26 07.06.2014 Hon'ble Supreme Court of India in case V. Tulsamma Reddy v. V. Sesha Redddy (supra), which is relied upon by the ld. Counsel for the appellants, is of no help for the appellants, rather the same judgment goes against the appellants. He has also submitted that as per WILL, Smt. Urmila was having limited lifetime interest in the suit property and since the relinquishment deed Annexure P3 relied upon by the appellants, was executed by the appellant no.1 and respondent and at the time of execution thereof, the appellant no.1 was not the owner of the suit property, so, she could not relinquish anything, which she did not own and thus, the relinquishment deed relied upon by the appellants, is no document in the eyes of law nor it affected to the rights of the respondent in the suit property. He has also submitted that even otherwise at the time of execution of relinquishment deed and family settlement, the respondent was not aware about the execution of the WILL executed by Shri J P Saxena in his favour and he has come to understand about the execution of WILL on dated 28.04.1995 in accordance with which the respondent was declared the absolute owner of the suit property by the testator. He has also submitted that the family settlement Ex.DW1/1 is also not proved on the record nor it can affect to the rights of the respondent in the suit property and also submitted that since the execution of the RCA No.44/2009 Page No.13 of 26 07.06.2014 WILL Ex.PW1/1 by Sh. J P Saxena is proved on the record and conduct of the appellant is full of maliciousness, so, the judgment passed by their lordship of Supreme Court in case Kale and ors v. Dy. Director Consolidation and ors., AIR 1976 SC 807 is of no help. So, the ld. Trial court has rightly passed the impugned judgment under appeal and there is no infirmity in the judgment and decree of the ld. Trial court which may require any interference therein and prayed for dismissal of the appeal, being devoid of merit, as the respondent has successfully proved on the record the WILL Ex.PW1/1 in his favour and prayed for the dismissal of the appeal.
21. I have given thoughtful consideration to the submissions made by the ld. counsels for the parties and perused the record.
22. Perusal of the record shows that the plaintiff has filed the suit for declaration and mandatory injunction and the plaintiff has relied upon the WILL executed by Sh. J P Saxena in his favour and in order to prove his case, the plaintiff has examined Sh. J K Chopra as PW1 vide his affidavit Ex.P1 and he has testified that deceased testator Sh. J P Saxena was working with him in Indian Airlines, New Delhi in different departments of Indian Airlines and also proved that the WILL Ex.PW1/1 was executed in his presence and he has identified his signature at point A on Ex.PW1/1 and this witness in his examination in RCA No.44/2009 Page No.14 of 26 07.06.2014 chief has also stated that he remembers that the WILL was crossed by the executant and he wanted to write another WILL and further testified that he does not know whether Sh. J P Saxena had written any other WILL or not subsequent to WILL Ex.PW1/1 and similarly another attesting witness namely Sh. Naresh Chand Jain has also been examined as PW2 vide his affidavit Ex.P2. He has testified that he has signed the WILL dated 28.04.1995, which is Ex.PW1/1 and he has identified his signature at point B and also identified the signature of deceased testator at point X and this witness has also deposed that the WILL was crossed in his presence. Whereas, the plaintiff has examined himself as PW3 vide his affidavit Ex.P3 and in one way or other, he has reiterated the contents of the plaint in his affidavit. Whereas, Smt. Rita wife of the plaintiff has been examined as PW4 vide her affidavit Ex.P4, who has deposed that she has found the WILL wrapped inside a cloth in the month of May, 2002 and from the said WILL, she has come to understand that suit property has been bequeathed to her husband i.e. plaintiff and she has handed over the said WILL to the plaintiff. All these four witnesses were cross examined by the ld. counsel for the defendants. The ld. counsel for the appellants has submitted that since the attesting witnesses to the WILL Ex.PW1/1 namely Sh. J K Chopra and Sh. Naresh Chand RCA No.44/2009 Page No.15 of 26 07.06.2014 Jain have deposed that the WILL executed by testator was crossed, so, it creates clouds of suspicion regarding execution of the WILL, but, as this court finds that both the attesting witnesses have identified their signatures and signature of the testator namely Sh. J P Saxena on the said WILL and the WILL is proved on record, being Ex.PW1/1, and neither it is found to be crossed nor any other WILL has been brought or proved on record and since these attesting witnesses have identified their signatures, as well as, signature of testator on the said WILL and during the cross examination of both these attesting witnesses, ld. counsel for the defendants has not given even single suggestion to both these witnesses that the WILL Ex.PW1/1 was not signed by the testator Sh. J P Saxena nor they have disputed the signature of the deceased thereon. So, in the given circumstances, this court is of the considered view that from the testimonies of PW1&2, it is proved on the record that Sh. J P Saxena had executed the WILL Ex.PW1/1 and bequeathed his entire property in favour of the plaintiff. No doubt that there is a bit discrepancy in the statements of PW3&4 regarding finding of the WILL, but, in view of proving of execution of the WILL by the PW1&2, I do not find any such discrepancy regarding finding of the WILL, which may create clouds of suspicion regarding the execution of the WILL.
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23. It is worthwhile to mention here that plaintiff has sought declaration that relinquishment deed may be declared as null and void and the settlement deed is a forged document and has no force in the eyes of law. So, far as relinquishment deed is concerned, the same is alleged to have been executed by the appellant no.1 and respondent and DW3 has proved the relinquishment deed, vide which, the plaintiff and defendant no. 1 have relinquished their rights in favour of Smt. Urmila Saxena. The plaintiff has claimed that since he was not aware about the execution of WILL Ex.PW1/1 on the date of execution of relinquishment deed on dated 03.02.1998, so, in the absence of any such knowledge regarding execution of the WILL by the father of the plaintiff in his favour, the relinquishment deed was executed by him and defendant no.1 in favour of their mother and defendants have claimed that after execution of the said relinquishment deed Ex.DW3/1 on dated 31.01.1998, Smt. Urmila Saxena i.e. mother of the plaintiff and defendant no.1, had become the owner of the suit property and Smt. Urmila Saxena expired in the month of October, 1999 and after the demise of Smt. Urmila Saxena, a deed of family settlement was executed between plaintiff and defendant no.1 in accordance with which the ground floor of the suit property was given to the plaintiff, whereas, first floor of the suit property was given to RCA No.44/2009 Page No.17 of 26 07.06.2014 the defendant no.1 and defendant no.1 was given right to raise construction on the first floor in the suit property.
24. It is pertinent to mention here that plaintiff has denied his signature on this deed of family settlement, but, the defendants have successfully proved on record that said family settlement bears the signatures of the plaintiff and DW7 has also testified that plaintiff has signed on the family settlement at point A1 and further testified that the signatures at point A1&A2 are of the same person, who has filed the plaint, replication, affidavit and vakalatnama and in order to rebut such testimonies of the defendants or DW7, the plaintiff has failed to lead any evidence that the family settlement deed Ex.DW1/1 was not signed by him nor plaintiff has chosen to examine any forensic expert to disprove his signature on the family settlement deed. The plaintiff has claimed in his plaint that when the defendant started construction on the first floor and second floor of the suit property, both the defendants promised to the plaintiff to show him the documents executed by the father of the plaintiff, vide which, they were authorized to raise such construction and in the Written statement, the defendants have taken the plea that the father of the plaintiff and defendant no.1 had executed the WILL in favour of the defendant no.1 in the presence of the witnesses and defendants have further stated in their Written RCA No.44/2009 Page No.18 of 26 07.06.2014 statement that the said WILL was given to some person for its safety, but, the said person has forgotten the place of keeping the said WILL. Thus, in the given circumstances, the ld. Trial court has drawn an inference that defendants have fortified the contention of the plaintiff that the WILL was really executed by the deceased testator, as the execution of WILL by the testator Sh. J P Saxena is well admitted by the defendants in their Written statement and defendants have failed to disclose the name of the person to whom the said WILL was given by them nor the defendants have produced or proved the said WILL on the record of the trial court. Since it is proved on the record at at the time of execution of the relinquishment deed by the plaintiff and defendant no.1, the plaintiff was not aware about the execution of the WILL and perusal of the relinquishment deed shows that, it is executed by the plaintiff and defendant no.
1. Whereas, it is settled principle of law that a person who owns anything, he can relinquish the same and from the perusal of the WILL Ex.PW1/1, it is proved on the record that Sh. J P Saxena has bequeathed his entire property vide his WILL in favour of the plaintiff. Meaning thereby that the defendant no.1 did not own anything, then how could she relinquish anything in favour of Smt. Urmila Saxena and similarly perusal of the record shows that Smt. Urmila Saxena was given only lifetime interest by the RCA No.44/2009 Page No.19 of 26 07.06.2014 deceased testator and the ld. counsel for the appellants has submitted that since Smt. Urmila Saxena is the widow of deceased testator, so, in view of section 14(1) of the Hindu Succession Act, she had become the absolute owner and he has relied upon the judgment passed by their lordship of Hon'ble Apex Court in case V. Tulsamma Reddy v. V. Sesha Redddy (supra). This court has perused the judgment relied upon by the ld. counsel for the appellants and found that their lordship of Hon'ble Apex Court in the said judgment is pleased to hold that any property received by a Hindu Female under the WILL cannot held as her absolute estate and since the testator was absolute owner and he had bequeathed only lifetime interest in favour of Smt. Urmila Saxena, so, after the demise of Smt. Urmila Saxena, the right of such legatee had come to an end as per section 14(2) of the Hindu Succession Act and the plaintiff had become an absolute owner, so, in view of the above discussion, this court finds that judgment passed by their lordship of Apex Court in case V. Tulsamma Reddy v. V. Sesha Redddy (supra) is of no help for the appellants. As from the perusal of the said judgment, it is clear that even the hon'ble Supreme Court of India is pleased to hold that sub section (2) of 14 of the Hindu Succession Act provides that nothing contained in sub section (1) shall apply to any property acquired by way of RCA No.44/2009 Page No.20 of 26 07.06.2014 gift or under WILL or under any instrument or under the decree of any court or under any award where the terms of the gift, WILL or other instrument or decree order award prescribe restricted estate in such a property and further held that this provision is more in nature of proviso or exception to sub section (1).
25. The ld. counsel for the appellant has submitted that in the revenue record of the MCD, the names of the parties to the present lis as tax payer has been recorded on the basis of the family settlement, so the family settlement cannot be declared, as null and void. But, I do not find any force in the submissions of the ld. counsel for the appellant, as with the incorporation of the name of appellant no.1 as a tax payer in the record of the MCD, she cannot be declared as owner and even otherwise, in the said document it is well mentioned that the said record has been prepared for the purpose of payment of the house tax and it can be cancelled on the raising of the objections qua the same.
26. It is further pertinent to mention here that appellants have taken the plea that since the mutation has already been sanctioned in favour of the mother of the plaintiff on the basis of the relinquishment deed executed by the plaintiff and defendant no.1 and in furtherance thereof, a family settlement was also RCA No.44/2009 Page No.21 of 26 07.06.2014 arrived at between the parties and in compliance thereof, the construction has been raised by the defendant no.1 in the suit property. It is pertinent to mention here that since on the date of execution of the family settlement Ex.DW1/1, the plaintiff / respondent was not aware about the execution of the WILL and in the absence of any categorical knowledge regarding execution of the said WILL, the relinquishment deed was executed by the plaintiff under the inducement and since from the perusal of the Written statement filed by the defendants, it is clear that the execution of the WILL was well within the contemplation of the defendants and intention of the defendants was malafide from the very beginning, as they have well averred that the WILL was executed by the testator Sh. J P Saxena and the WILL has been proved on record by the plaintiff, which has been executed in his favour and ld. counsel for the appellants has submitted that in view of law laid down by the Apex Court in the judgment Kale and ors v. Dy. Director Consolidation and ors., AIR 1976 SC 807, the respondent is bound with the said family settlement. No doubt that the family settlement is well proved by the defendants and DW7 and at the same time, the attesting witness to the said family settlement has also stated that the said family settlement was not signed by the plaintiff in the presence of the attesting witness to the said RCA No.44/2009 Page No.22 of 26 07.06.2014 family settlement and he had signed the same at the instance of the defendant no.1, who had brought him for signing the same. Since it is proved on the record that the WILL is found in the month of May, 2002 to the wife of the plaintiff and at the time of execution of the family settlement and relinquishment deed, the plaintiff was not aware about the execution of the WILL by the deceased testator in his favour and these were not voluntary acts of the plaintiff and had he has such knowledge regarding the execution of said WILL in his favour, the plaintiff could never relinquish or signed the family settlement and since the defendants have well admitted that the testator had executed the WILL, but, they have failed to bring or prove on record any WILL and the plaintiff has successfully proved on record the WILL executed by the deceased testator in favour of the plaintiff. Since relinquishment deed was executed by the plaintiff and defendant no.1, whereas, it has already been observed that defendant no.1 was not having any right, title or interest in the suit property, so, she could not relinquish any right in the suit property in favour of Smt. Urmila Saxena and from the perusal of the WILL Ex.PW1/1, it is crystal clear that deceased testator had bequeathed the suit property in favour of Smt Urmila Saxena only for her lifetime, whereas, after the demise of Smt. Urmila Saxena, the plaintiff had become the RCA No.44/2009 Page No.23 of 26 07.06.2014 absolute owner. So, in the given circumstances, this court is of the firmed view that the WILL and wish of the deceased testator cannot be ignored or disregarded in view of relinquishment deed and family settlement arrived at between the parties, which is found to be in violation of the WILL of the deceased testator and both the documents were executed, when the plaintiff was not aware of the execution of the WILL by the deceased testator in his favour. Since from the facts and circumstances of the case, it is proved on the record that the intention of the defendants was not bonafide and they have suppressed the material facts regarding having categorical knowledge of the execution of WILL by Sh. J P Saxena in favour of the plaintiff and the appellant has suppressed the material facts, thus, the intention of the appellant is not found to be bonafide. Even otherwise, their lordship of Supreme Court in case Kale and ors v. Dy. Director Consolidation and ors., AIR 1976 SC 807 is pleased to hold that in case any family settlement is reduced into writing, it is required to be registered compulsorily and in the case in hand from the alleged document i.e. the deed of family settlement, created new rights in favour of the appellant, so it was required to be registered compulsorily and in the absence of its registration, it is held to be an inadmissible document, so, it cannot be relied upon, so the judgment relied upon by the RCA No.44/2009 Page No.24 of 26 07.06.2014 counsel for the appellant is of no help for the appellant. It is not disputed that Sh. J P Saxena was the absolute owner of the suit property, so, he was competent to execute the WILL in favour of the plaintiff. Since Smt. Urmila Saxena was given only lifetime interest by the deceased testator and as per the law laid down by Apex Court in Vadeboyina Tulasamma and ors. v. Vadeboyina Seshareddi (died) by LRs, AIR 1977 SC 1944(1). Smt. Urmila Saxena could never get absolute right in the suit property, as no cogent evidence has been brought on record to show that WILL has been executed by deceased testator in favour of Smt. Urmila Saxena, vide which, lifetime interests were given to her, in view of any pre existing right. So, in the absence of any pre existing right of Smt. Urmila Saxena, her right in the property granted by the testator Sh. J P Saxena in his WILL cannot be held as her absolute estate.
27. So, in view of the above discussion, this court is of the firmed view that the ld. Trial court has committed no error while declaring that relinquishment deed dated 03.02.1998 and family settlement dated 18.12.2000 are null and void and they have no force in the eyes of law.
28. Since it is proved on the record that the defendants have raised the construction of the first and second floor of the suit property, so, the ld. trial court has rightly directed to the RCA No.44/2009 Page No.25 of 26 07.06.2014 respondent to give the amount of Rs.5 lacs to the defendants.
29. Cumulative effect of the above discussion is that, I do not find any force in the submissions made by the ld. counsel for the appellants. Whereas, I am having full inclination with the submissions made by the ld. counsel for the respondent. I do not find any infirmity or illegality in the findings of the ld. Trial court. Accordingly, the findings given by the ld. Trial court on all the issues while passing the impugned judgment and decree under appeal, are upheld. The appeal filed by the appellant is hereby dismissed, being devoid of merit. Decree Sheet be prepared accordingly. Parties are left to bear their own costs. File be consigned to the record room. Record of trial court is ordered to be returned.
Pronounced in the open Court on 07.06.2014 ( Pawan Kumar Matto ) Additional District Judge01 (East)/KKD Courts/Delhi.
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