Delhi District Court
Sh. Ausaf Ali vs Sh. Saleem Ahmad on 15 February, 2014
IN THE COURT OF SH. SUSHANT CHANGOTRA, CIVIL JUDGE 6,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
Suit No. 107/14
Sh. Ausaf Ali
S/o Late Sh. Bashir Ahmad
R/o H. N. 18261829, 1st Floor
Chatta Agha Jan, Kalan Mahal
Darya Ganj
New Delhi110002. ............Plaintiff
Versus
1. Sh. Saleem Ahmad
S/o Late Sh. Bashir Ahmad
R/o H. No. 18261829, Ground Floor
Chatta Agha Jan, Kalan Mahal
Darya Ganj
New Delhi110002.
2. Delhi Development Authority
Through its Vice Chairman
Vikas Sadan, INA
New Delhi.
..............Defendants
Date of filing of Suit : 31.10.2001
Date of decision : 15.02.2014
Ausauf Ali Vs. Saleem Ahmed CS No. 107/14 1
JUDGMENT
1. Brief facts of the case are that Sh. Bashir Ahmad i.e. the father of plaintiff and defendant no.1 was allotted a shop bearing no. 17, Meena Bazar, Jama Masjid, Delhi11006 by defendant DDA on license basis. The father of plaintiff was paying license fee for use and occupation of the said shop. He has been running the business of cloth under the name and style of 'Adam Cloth House' as its proprietor in the said shop. The father of plaintiff passed away on 21.10.2000 and thereafter defendant no.1 started looking after the said business being run in the said shop in the name and style of 'Adam Cloth House'.
2. On 26.10.2001 at about 8.00 p.m, during the course of discussion regarding the business of said shop, defendant no.1 claimed absolute title with respect to shop and business by showing the will allegedly executed and registered by Sh. Bashir Ahmad executed before the SubRegistrar on 09.10.1996. The said Will is against the provisions of Mohammedan Law. Father of defendant no.1 had not obtained any consent of plaintiff or any other legal heirs before bequeathing the said shop in entirety to the defendant no.1. Neither any consent was given by plaintiff subsequently. The plaintiff was not even aware of the alleged bequest of the said shop. The said bequest is illegal, null and void.
3. Thus, the plaintiff prayed for decree of declaration for declaring the Will allegedly executed and got registered by Sh. Bashir Ahmad i.e father of plaintiff and defendant no.1 to the extent of bequest of Ausauf Ali Vs. Saleem Ahmed CS No. 107/14 2 shop no. 17, Meena Bazar, Jama Masjid including the business being run therein as illegal, null and void. The plaintiff also prayed for decree of permanent injunction for restraining the defendant no.1 from claiming or deriving any right, title or interest in the said shop.
4. Defendant no.1 filed written statement and took several preliminary objections. He pleaded that plaint is without any cause of action. The suit is not maintainable for declaration as no consequential relief has been claimed in the suit. The plaintiff has no locus standi to file the present suit as he cannot challenge the authenticity and legality of Will as he himself has taken the benefit which accrued to him under the Will and he has only challenged the part of Will which does not favour him. The said defendant also pleaded that suit is bad for nonjoinder of necessary parties as deceased Bashir Ahmad has left behind five daughters and four sons. The defendant also pleaded that the suit is not properly valued for the purpose of court fees and jurisdiction.
5. On merits, the defendant no.1 pleaded that Sh. Bashir Ahmad was tenant of defendant no.2. Defendant no.1 was working with his father in the shop and was assisting him in day to day working and he accordingly bequeathed the business of firm and tenancy right in favour of defendant no.
1. The said fact was also admitted and an affidavit was executed by the plaintiff. Even the other legal heirs of Sh. Bashir Ahmad did not challenge the arrangement and wishes of Late Sh. Bashir Ahmad. The execution of Will was communicated to the entire family after the death of Sh. Bashir Ausauf Ali Vs. Saleem Ahmed CS No. 107/14 3 Ahmad and the Will has been lawfully executed by Sh. Bashir Ahmad with respect to his self acquired property. On merits, the averments of plaint were denied and the facts as stated in the preliminary objections of written statement were reiterated and the said defendant prayed for the dismissal of present suit.
6. Defendant no.2 /MCD filed written statement and took several objections. It has been pleaded that plaintiff has no locus standi against the said defendant. The suit property cannot be disposed of by sale or otherwise without the permission of said defendant. The shop in question was originally allotted to Sh. Javed Ahmad and the shop no. 82 was allotted to Sh. Bashir Ahmad. They had mutually exchanged their shops and it was allowed by the DDA vide letter dated 30.11.1989. No cause of action accrued in favour of said defendant. On merits, the averments of plaint were denied and the facts as stated in the preliminary objections of written statement were reiterated and it was prayed that the suit may be dismissed.
7. The plaintiff filed separate replications to the written statements of defendant no.1 and 2 and denied the averments of written statements of each of the defendants and reiterated the averments of the plaint.
8. Vide Order dated 10.5.2006 following issues were framed by the Ld. Predecessor of this court :
1. Whether the plaintiff is entitled to relief of declaration as prayed for ?
OPP.
Ausauf Ali Vs. Saleem Ahmed CS No. 107/14 4
2. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for ? OPP.
3. Whether the plaintiff has no locus standi to file the present suit ? OPD1
4. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction ? OPD.
9. The plaintiff stepped into the witness box as PW1. He stated the facts as mentioned above and also proved the documents i.e Will as Ex. PW 1/1; notice as Ex. PW 1/ 2; original postal receipt as Ex. PW 1/ 3; postal certificate dikas Ex. PW 1/ 4; A.D card as Ex. PW 1/5. Plaintiff also examined another witness namely, Sh. Babu Lal, UDC as PW2. He proved the certified copy of Will which is already exhibited as Ex. PW 1/1. Plaintiff also examined Sh. Dinesh Chander as PW3. He proved the photocopy of letter dated 30.11.1987 as Ex. PW 3/1.
10. On the otherhand, defendant no.1 appeared as DW1, but he did not prove any document in his testimony. Defendant no. 2 examined Sh. Ram Karan as D2W1 but he also did not prove any document.
11. I have heard the arguments advanced by Ld. Counsels for parties and carefully perused the evidence on record. Ld. Counsel for plaintiff argued that the plaintiff has proved his case. Admittedly, both the parties are Sunni and the father of plaintiff and defendant no. 1 could not have executed Will of the entire property without obtaining prior consent of the legal heirs. It has been proved that the consent of the plaintiff was Ausauf Ali Vs. Saleem Ahmed CS No. 107/14 5 not taken. He placed reliance on law laid down by the Hon'ble Kerala High Court in Judgment titled as Valanhiyil Kunhi Avulla and Others v Eengayil Peetikayil Kunhi Avulla and Others AIR 1964 KERALA 200 (V) 51 & 59 wherein it was held that " A bequest to a heir is not valid unless the other heirs consent to the bequest after the death of the testator. "
Further in Abdul Rehiman v Uthumansa AIR 1925 Madras 997 it was held that " Under the Sunni Law a testamentary disposition by a Mussulman is invalid in so far as it purpots to dispose off more than one third of the testator's estate or to benefit any of his heirs unless the heirs whose rights are affected by such disposition consent to it after his death expressly or impliedly or by passive acquiescence. Consent during life is not enough under the Sunni Law. The policy of Muhammadan Law appears to be to prevent a testator from interfering by Will with the course of the devolution of property according to law among his heirs, although he may give a specified portion, as much as a thirds to a stranger. It is incumbent, however, upon those who seek to set up a proceeding of this sort, to show very clearly that the forms of the Muhammadan Law, whereby its policy is defeated, have been complied with." He also placed relance on Anjuman Islamia v Najim Ali and Others AIR 1982 Madhya Pradesh 17. wherein it has been held that, "the suit does not fall under Section 34 for the reason that it was not instituted by the society for a declaration of its own right or title to property in suit, or its right to a legal character but it was a suit , on the other hand, to challenge the defendants assertion for Ausauf Ali Vs. Saleem Ahmed CS No. 107/14 6 right to property and their legal character in respect thereof. But assuming the suit falls under the provisions of Section 34 yet it would be tenable for the declaration simplicitor because the plaintiff was not mutwalli or trustee of the alleged wakf and did not claim to possess the property in its own behalf. Therefore the plaintiff was not legally entitled to possession. The plaintiff therefore could not have asked for any further relief for possession . " He has further argued that it has also been proved that father of plaintiff was a licensee and he being a licensee could not have alienated rights in the shop. Thus, he argued that the suit may be decreed.
12. On the other hand it has been argued that the plaintiff is not entitled to decree of declaration . He has admitted the execution of Will and taken a benefit out of it by selling the portion of residential property bequeathed to him by the deceased testator and is now only seeking declaration qua shop. It has been further argued that the plaintiff in his crossexamination admitted the execution of sale deed of said portion of residential accommodation by way of sale deed Mark A. He further admitted execution of affidavit Mark B whereby he has stated that he will not make interference in the rights of defendant no.1 with respect to shop in dispute. It has also been argued that the plaintiff is not in possession and since he has not sought consequential relief, therefore, decree of declaration cannot be passed in his favour. Thus, it has been argued that the suit may be dismissed.
13. I have heard the arguments and considered the evidence on Ausauf Ali Vs. Saleem Ahmed CS No. 107/14 7 record very carefully. My issuewise findings are as follows: ISSUE NO. 1 & 3
14. Onus to prove issue no.1 was on plaintiff and issue no. 3 was on defendant no.1 . In Addagada Raghavamma and Anr vs Addagada Chenchamma and Anr 1964 AIR 136, 1964 SCR (2) 933, the Hon'ble Apex Court has held that, "There is an essential distinction between burden of proof and onus of proof. The burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts." Thus, the initial burden to prove his case rested on the shoulders of plaintiff and he had to discharge the burden to prove that he has a locus standi to seek declaration and injunction as prayed for. Since, both the issues are interconnected, therefore, I will take up their discussion together.
15. It is an admitted case that the plaintiff and defendant no.1 belong to Sunni Sect of Islam. As per law as discussed above given in Valanhiyil Kunhi Avulla and Others v Eengayil Peetikayil Kunhi Avulla and Others AIR 1964 KERALA 200 (V) 51 & 59 and Abdul Rehiman v Uthumansa AIR 1925 Madras 997, a Sunni cannot make a gift of his estate in entirity without taking prior consent of all his legal heirs or the consent of all the legal heirs affected by such disposition shall be taken after his death expressly or impliedly or by way of passive acquiescence.
16. In the present case the plaintiff has denied the execution of Will executed by his father and stated that he came to know about the Will on 21.10.2011. However, the said Will has been proved on record as Ex. PW Ausauf Ali Vs. Saleem Ahmed CS No. 107/14 8 1/1 by the plaintiff himself. As per the said Will the deceased Sh. Bashir Ahmad had bequeathed ground floor of the house to defendant no.1, first floor to plaintiff and the shop in dispute to defendant no.1.
17. The plaintiff in his crossexamination admitted the execution of affidavit Mark B. Though the said document has not been exhibited but it is a settled preposition of law as mentioned in Section 58 of Indian Evidence Act that the admitted facts need not be proved. Hence, the said affidavit can be relied upon by the court. As per the said affidavit the plaintiff had stated that he will not make any interference in the shop in dispute and the defendant no.1 will be entitled to hold and occupy the same absolutely in his own capacity. It has neither been pleaded nor it has been deposed that the said document was prepared by playing fraud upon the plaintiff.
18. The plaintiff has pleaded that he came to know about the Will on 26.10.2001, whereas, the affidavit Mark B was executed on 30.1.2001. Hence, the aforesaid document proved that plaintiff was well aware of the execution of the Will and he had given consent to the arrangement made in the Will on 30.1.2001 i.e after the death of his father. Therefore, it does not lie in the mouth of plaintiff that the Will is against the tenets of Islam or Muslim Law as he had given consent to the said will after the death of his father.
19. The plaintiff in his crossexamination also admitted having executed the sale deed of the first floor of the residential property i.e Ausauf Ali Vs. Saleem Ahmed CS No. 107/14 9 property no. 1826, 1829 in favour of Sh. Mohd. Yusuf. The plaintiff also admitted the copy of sale deed Mark A and stated that it was executed by him. Hence, it is also an admitted document. The perusal of said sale deed shows that the plaintiff had stated therein that the title of said property was vested in him due to execution of a Will dated 09.10.1996 i.e Will in dispute. Thus, the plaintiff was not just well aware of the existence and execution of Will made by his deceased father but he also took advantage of the benefit conferred upon him by the said Will. The said analogy is further strengthened by the fact that the plaintiff had only sought declaration that the Will to the extent of bequest of shop in dispute is null and void.
20. The aforesaid facts when seen in totality reveal that the plaintiff was aware of existence of Will dated 09.10.1996, thereafter he consented to the said Will by means of affidavit ' Mark B'. Then he alienated the portion of property which was bequeathed upon him. Later on when he had alienated his share conferred upon him by the Will, he again took a chance to challenge the Will as no right of the plaintiff could be injured due to declaration as prayed for.
21. In Executive Committee of Vaish Degree College, Shamli & Ors. v. Lakshmi Narayan & Ors. AIR 1976 SC 888 (1), the Hon'ble Supreme Court has held that, "the relief of declaration and injunction under the provisions of the Specific Relief Act is purely discretionary and the plaintiff cannot claim it as of right. The relief has to be granted by the Court according to sound legal principles and ex debito justitiae. Ausauf Ali Vs. Saleem Ahmed CS No. 107/14 10 The Court has to administer justice between the parties and cannot convert itself into an insrument of injustice or an engine of oppression. In these circumstances, while exercising its discretionary powers the Court must keep in mind the well settled principles of justice and fair play and should exercise the discretion only if the ends of justice require it, for justice is not an object which can be administered in vaccum." Further in Kamarbai & Ors. v. Badrinarayan & Anr. AIR 1977 Bombay 228, the Hon'ble High Court has held that , " the statutory recognition of the principle in the maximum 'pari delicto' is also to be found in S.84 of the Trusts Act, A plaintiff, in cases like the present one, is denied assistance on the ground that the Court would not assist him to benefit from his own immorality or fraud or illegality, either on the basis of the maximum 'he who seeks equity must do equity' or 'he who comes into equity must come with clean hands'; or on the basis of such doctrines like: (1) Courts do not aid a party to an illegal undertaking; or (2) that the law does not permit a party deliberately t put his property out of his control for an immoral purpose and then seek intervention of the Court to regain the same after the immoral purpose is executed or accomplished; or (3) where both parties are equally guilty law leaves the parties where it finds them and keeps itself comfortably aloof from the obligation to determine the rights as between the guilty parties; or (4) that a party who claims an equitable relief must come into court with clean hands; or (5) that the party could not be allowed to blow hot and cold; or (6) to let the mischief lie where Ausauf Ali Vs. Saleem Ahmed CS No. 107/14 11 it exists."
22. Thus, in view of the aforesaid law the relief of declaration is a discretionary relief and cannot be sought as a matter of right. The conduct of the plaintiff clearly disentitles him from seeking equitable relief of declaration. The plaintiff is trying to seek benefit by committing a wrong doing by himself. Hence, the plaintiff is not entitled to declaration on this ground as well.
23. Moreover, it is further necessary to note that the case of plaintiff is that he is entitled to share in shop and business as well as movable property of his father being his legal heir. However, admittedly plaintiff was never in possession of the suit shop. The plaintiff has not sought the consequential relief of possession of his share. The plaintiff has also not sought the consequential relief of rendition of accounts and his share in the business managed and run by his father. Therefore, in view of proviso of Section 34 of the Specific Relief Act , the decree of declaration cannot be passed in favour of plaintiff on this ground as well.
24. Thus, in view of the aforesaid discussion, the plaintiff has failed to prove issue no.1 and also failed to discharge the initial burden to prove his locus standi. Accordingly, both the issues are decided against the plaintiff and in favour of defendant no.1.
ISSUE NO.2
25. Onus to prove this issue was on plaintiff. By way of decree of permanent injunction, the plaintiff is praying for restraining the defendant Ausauf Ali Vs. Saleem Ahmed CS No. 107/14 12 from claiming any title in the shop and business being run therein. In discussion of issues no.1 and 3, it has been held that plaintiff has failed to prove that he is entitled to declaration that Will dated 09.10.1996 is null and void. Therefore, the plaintiff cannot seek injunction against defendant no.1 in respect of the aforementioned Will. Thus, this issue is also decided against the plaintiff and in favour of defendant no.1. ISSUE NO. 4
26. Onus to prove this issue was on the defendant. The plaintiff has sought relief of simplicitor declaration. Therefore, Section 7 (iv) (c ) of the Court Fees Act is not attracted to the present suit. Thus, the plaintiff could have filed the fixed court fees on the prayer for declaration so made in the plaint. Accordingly, this issue is decided against the defendants and in favour of plaintiff.
RELIEF
27. In view of discussion of issues no.1 , 2 and 3, the suit of the plaintiff is dismissed with costs. Decree Sheet be prepared. The file be consigned to record room after due compliance.
Announced in open Court (Sh. Sushant Changotra)
on 15.02.2014 Civil Judge6 (West),Delhi
Ausauf Ali Vs. Saleem Ahmed CS No. 107/14 13