Delhi District Court
Sh. Sudheesh Chandra Anand vs Smt. Sushma Sawhney on 30 January, 2018
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Civil Suit No.- 15/17/04
Civ. DJ- 8476/16
Sh. Sudheesh Chandra Anand
S/o Sh. Jia Ram Anand,
R/o A-1 Greater Kailash Enclave-II
New Delhi- 110048
..........Plaintiff
Versus
1 Smt. Sushma Sawhney
W/o Sh. Ravinder K. Sawhney
R/o Green Acres, Block 1-B,
Flat No. 201, Lokhandwala Complex,
Andheri ( West), Mumbai
2 Sh. Sudhir K Anand
S/o Shri Jia Ram Anand,
2829, Glendower Avenue,
Los Angeles,
California-90027, USA
3 Sh. Subodh K. Anand
S/o Shri Jia Ram Anand,
1982, Rideau River Drive,
Ottawa, Ontario,
KISIT-9, Canada
4 Sh. Suresh Kumar Anand
S/o Sh. Jia Ram Anand
R/o A-1, Greater Kailash Enclave-II,
New Delhi- 110048
5 Kumari Sumati Anand
D/o Sh. Sudheesh Chandra Anand,
R/o A-1 Greater Kailash Enclave-II
New Delhi-110048
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 1/50
6 Sh. Harish Kohli
S/o Sh. Dina Nath Kohli
R/o 68, Paschimi Marg,
Vasant Vihar, New Delhi
7 Delhi Development Authority
through its Chairman,
Vikas Sadan, behind INA market,
New Delhi- 110023
(disinterested formal party, being Lessor)
......Defendants
Date of institution of the case : 02.07.2004
Date reserved for judgment on : 15.01.2018
Date of pronouncement of judgment: 30.01.2018
JUDGMENT:
1 A suit for Declaration under Section 34, of the Specific Relief Act, and Section 27 and Article 137 of the Schedule of the Limitation Act, Section 212 of the Indian Succession Act etc. and all co-related legislation, in respect of the alleged Will of the mother of the plaintiff ( & defendants No. 1 to
4) and in respect of her share under Section 45 of the Transfer of Property Act, in a part of the leasehold land and residential house at A-1, Greater Kailash Enclave-II, New Delhi-110048 2 In brief the facts are that the plaintiff born on 28.01.1939, now aged about 65 years, took the Engineering Decree from IIT in July 1961. He joined Railway service on 21.7.1961, joined the Indian Inspection Service ( Class I) on 03.12.1963 as a Director. Immediately after his retirement, he started practicing as an Advocate, mainly in the Delhi High Court.
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 2/50 3 It is stated that defendant no. 1 to 4 are the younger sisters and brothers of the plaintiff. The defendant no. 2 to 4, brothers of the plaintiff are the main beneficiaries under the alleged Will of the mother of the plaintiff relied on by defendant no. 2 to 4. Defendant no. 1, sister and defendant no. 5 daughter of the plaintiff are also beneficiary of a specified amount under the alleged Will of the mother of the plaintiff. Their interest in the subject property would ordinary be much greater without the alleged will. Being a legatee under the said will the daughter of the plaintiff has been made a party. The defendant no. 6 is the executor named in the alleged Will, therefore, he has been made a party. All the defendants residing at their respective addresses mentioned in the memo of parties hereinabove.
4 It is stated that the instant case first of all pertains to declaring that the alleged Will of the mother of the plaintiff, is not duly executed by Testatrix, not valid and operative and also not enforceable in law, by the efflux of time. It also pertains to the share of the mother of the plaintiff in a part of the residential house at A-1, Greater Kailash Enclave-II, New Delhi-110048. As the property is Leasehold, the DDA has been made a disinterested formal party, who has to follow the outcome of the case, in the matter of succession.
5 It is stated that at present a dividing wall in the middle of the courtyard, which divides the house into two Easter half and Western half, which are almost mirror images of each other. The said wall is not a part of the approved plan. It has been put up, partly demolished, and built again, depending upon the usage, at different times, and at the present time, it is only CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 3/50 relevant, that it continues to exist. It is stated that defendant no. 4 was still a student at that time and was not in a position to contribute anything towards the building of the house and was staying in the College Hostel.
6 It is stated that Plaintiff has been residing in part of the subject premises since 6.5.1973 and was never a tenant in the premises. The plaintiff entered the house as a joint owner of the entire house with the clear understanding with his parents that the Easter half of the house on the ground floor, shall belong to him, and the Western half of the house shall be in their control, so that they could let it out and derive a steady income. The plaintiff has been occupying room No. 10 alongwith its bathroom No. 9, ever since 6.5.1973 when the building of the Eastern half of the said property was completed.
7 It is stated that daughter of the plaintiff, Sumati Anand, Advocate, born on 07.05.1967 has been occupying room no. 16 as her study since 6.5.1973 when the building of the Eastern half of the said property was completed. Ever since 6.5.1973 she had been jointly using the main bedroom No. 15 along with the parents of the plaintiff, as her bedroom till their death and she is continuing to use the same. The said room has a very large loft which extends to the adjoining room No. 16 and also right to the courtyard, The excess luggage belonging to the plaintiff from his different postings was kept there in1973 and it s still there.
8 It is stated that in middle of 1973 defendant no. 4 started working in Calcutta a trainee in Metal Box. Co. and in CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 4/50 about 1980 he shifted to Delhi and started residing in a apart of the house, as a tenant through his then employers. The defendant no. 4 had always been a tenant in the premises through his different employers at different times, until 3.7.2001, when the mother of the plaintiff died. The exact nature of his occupation of the premises thereafter, is yet to be legally determined.
9 It is stated that after the death of the mother of the plaintiff, the defendant no. 2 to 4 have not filed any probate or other legal proceedings for determination of their rights in the subject property.
10 It is stated that on or about 9 th December, 1982, the brother of wife of defendant No. 4 got married, Thereafter their elder sister, namely Neena Sareen, did not have sufficient place to stay in her father's house at Sarvodaya Enclave, New Delhi-17. At that time plaintiff was working at Bombay, but he was retaining his room at New Delhi in the subject house, because he had to frequently visit Delhi, for pending litigation in Delhi and also for official meetings at his headquarters in Delhi.
11 It is stated that while the plaintiff was working at Bombay, the plaintiff's daughter continued to stay at Delhi, as she was studying at Delhi and also because the plaintiff had supervisory touring duties touring duties covering the whole of Western India, and also because there was none to look after her at Bombay.
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 5/50 12 It is stated that in 1983 the said sister of wife of defendant no. 4 was frequently staying at the subject house as a guest. She has a M.A. degree and is also a qualified Secretary. She was employed at Delhi by a Bombay firm exporting manpower to the Gulf countries and she was looking after their work in the Visa Section of the Embassies of those countries and the clearance for the workers from the Protector of Emigrants at Delhi. In her spare time she was also helping the plaintiff, his mother and wife of defendant no. 4.
13 It is stated that in the end of 1983, the said elder sister of wife of defendant no. 4, started her own employment agency, which also included the work of sending people abroad for employment. The said agency was started at the address of the subject house.
14 It is stated that in the end of 1983 the tenant Mr. Rao, who was occupying rooms No. 1, 2, 3 bathroom No. 4 and 5 and the storeroom No. 8 used as kitchen, retired and vacated the premises. Defendant no. 4 and his wife started living as tenant in the portion vacated by Mr. Rao and with effect from 1.1.1984, the said sister of wife of defendant no. 4 started living as a tenant in the room No. 7 with the bath room No. 6. The tenancy of drawing room 14 had been agreed by the parents of the plaintiff, without consultation with the plaintiff. The parents of the plaintiff had agreed to the same as the sister of wife of defendant no. 4 was very friendly with the Plaintiff's daughter and was also prospective bride for the plaintiff. Since 1984 the plaintiff and sister of wife of defendant no. 4, Ms Neena Sareen used the said drawing room, jointly, on priority.
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 6/50 15 It is stated that in May 1984, Ms Neena Sareen got registration certificate from the protector of Emigrants, under the Emigration Act, for her employment agency, at the subject address. It is stated that in the year 1985, the father of the plaintiff was about 76 years old at that time, his mental faculties were slightly impaired. In July 1986, the plaintiff was transferred to Delhi and he joint with effect from 1.8.1986 and all went well till 1988.
16 It is stated that in the year 1988, the Benami Transactions Prohibition Act was passed ever since them defendant no. 4 and his wife have been planning to oust the plaintiff from the subject property, in the name of his parents, although defendant no. 4 had not paid anything for the construction of the subject property. They failed to appreciate that the said Act specifically makes an exception for HUF property.
17 It is stated that in 1988, the father of the plaintiff was about 79 years old. He had already undergone open surgery for Prostrate and also separately for Hernia. His mental faculties, already impaired in 1985 and further deteriorated. The mother of the plaintiff was then about 74 years old. She had undergone open surgery for kidney stone in 1968. She also had Ischachemic heart disease in 1970 and had got a medical certificate to that effect which was submitted by plaintiff to Department of Supply, Government of India for permission to visit India from London. She was also suffering from high blood pressure and liver trouble for a very long time. Both of them were in poor health, and needed to be looked after.
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 7/50 18 It is stated that Ms Neena Sariin could assist them only partly, because she was busy in the work of her employment agency. And wife of defendant no. 4 was the only female who could look after the old parents of her husband and the plaintiff, which she did most grudgingly. The estranged wife of the plaintiff had already obtained judicial separation in June 1969, in London, therefore, the plaintiff was not in a position to help in the matter. Taking advantage of the situation, the wife of defendant no. 4, first quarreled with her elder sister on some flimsy pretext. Thereafter she poisoned the mind of the plaintiff's parents against her elder sister and the plaintiff. The net result was that the parents became totally dependent on defendant no. 4 and his wife.
19 The defendant no. 4 had started the litigation in the name of old parents, for eviction of the plaintiff in suit No. 1708 of 1989 in the Delhi High Court but failed to dislodge the claim of the plaintiff. The plaintiff therein was not signed or initialed by either of the plaintiff's ( in that case) on every page and it was apparently fabricated by defendant no. 4. The replication in the said suit also suffered from same defects and did not comply with Chapter VI, Rule 5 of the Delhi High Court Rules and it was invalid.The contents of the written statement filed by the plaintiff herein in the said case, are deemed to be admitted in law. The said suit was transferred to District Judge, but it was amended to make the value above Rs. 5 lakhs and, therefore, the plaint was returned, Thereafter it was again instituted in the High Court, as Suit No. 2541 of 1994. No issues have been framed in the said suit and pending on the question of its maintainability and legal representatives of the mother of the plaintiff, as the plaintiff is also one of the legal representatives.
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 8/50 20 It is stated that Neena Sareen has obtained status quo orders in 1989, regarding her tenancy of room no. 14. The Hon'ble court had also appointed a Local Commissioner who gave a report to the Hon'ble Court. As such the status quo orders became well defined.
21 It is stated that mother of the plaintiff did not know English, and the plaint and replication in the said cases did not comply with the requirements of the Rules pertaining to persons who are illiterate or do not know the concerned language. Her alleged Will, fabricated subsequent to the said plaint, also suffers from the said defect, and it does not represent her wishes and it is not enforceable in law.
22 It is stated that similarly, the defendant no. 4 and his wife, fabricated a Will, fabricated a Will of the plaintiff's father, who had poor mental faculties at that time as brought out earlier hereinabove. It is state that father of the plaintiff could not make the will, only in respect of his share in the HUF property, which share is yet to be determined.
23 It is stated that due to total lost memory of mother of the plaintiff and her treatment and family litigation resulted the poor financial condition of his parents and due to that plaintiff had to be shifted from St. Columbus School at New Delhi as his parents could not afford the school and bus fee any longer and he was shifted to DAV School. In 1947 the paternal grandfather of the plaintiff held ancestral HUF immovable property, in West Punjab, now Pakistan. In compensation for the same, he got land in Rajpura, then in Patiala and East Punjab States Union. The said CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 9/50 land was sold to avoid the possible share of the sisters of the father of the plaintiff. And actual share of the father of plaintiff of Rs. 5,000/- given to him. The aforesaid money share of Rs. 5,000/- was utilized by the father of the plaintiff to purchase a plot in Dayanand Colony, Ghaziabad and also book a plot in the East Punjab Railway Refugee Rehabilitation House Society and the subject suit house was allotted in the said society. As such the sale proceeds of the said ancestral property were used to partly finance the purchase of the subject land on which the subject house, the subject matter of the instant suit is built.
24 It is stated that in July 1962, the plaintiff took up regular employment with the Ministry of Railways, at Simla and thereafter transferred to Lucknow. Plaintiff started sending money to the parents for the increase and the interest and share in the plot of 200 sq yds booked by his father in Punjab Railway Refugee Rehabilitation Housing Society. On 3.12.1962 plaintiff joined the Indian Inspection Service ( Class I) initially at Delhi and the size of the plot had been increased to 500 sq. yds. In 1963- 64, the plaintiff was posted at Calcutta and in 1964-65 at Madras and with effect from 8.9.1965 he was posted in the High Commission of India in London and came back to Delhi on 17.03.1971.
25 It is stated that the size of the plot booked was increased at his request to the larger size of 1,000 sq. yds against which the existing plot of 833.3 sq. yards was allotted. According to bank statements, photocopies filed as documents 7 to 9 in the said suit No. 1708 of 1989 during 1963 to 1969, the plaintiff paid a total sum of Rs. 10,171/- to his father, through his mother for the said purpose. Earlier, from May to November, CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 10/50 1962, he paid them Rs. 700 @ Rs. 100/- p.m. predominantly from his lucknow bank account. Similarly in January, February, May and June 1964 the plaintiff paid them Rs. 400/0 @ Rs. 500/- p.m. predominantly from his Calcutta account. This can also be substantially corroborated, if the passbook of his mother is produced. Thus the plaintiff had paid Rs. 11,271/- out of the total land price of Rs. 20,957/- prior to its purchase. The father of the plaintiff informed the Plaintiff that as he was out of India, in 1970, his name could not be included in the Sub-Lease Deed.
26 It is stated that the father of the plaintiff admitted in the said suit that the plot size was increased on account of greater family needs, however, defendant no. 2 & defendant no. 3 were in USA and Canada, defendant no. 4 was still a student of not know whether he settled abroad, only referred to the family needs of the Plaintiff who had regular Class I employment in India.
27 It is stated that mother of plaintiff was not working and had no income of her own. She had finished all her savings in 1947 when there was large influx of relatives, marriage of defendant no. 1 in 1960, in these circumstances, plaintiff's mother did not have any money of her own to contribute to the purchase of the subject plot of land. As such her share in the plot of land was only in name. The subject plot of land is effectively joint family HUF property. In case the said plot is not considered HUF property, then the Eastern half of the subject house, got built by the plaintiff, in 1972-73 had been standing on the subject plot of land, for much more than 12 years, in 1988 and that part of the land, had already become the property of the plaintiff, under Section 27 of the Limitation Act.
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 11/50 28 It is stated that father of the plaintiff had retired in 1967 and his income was restricted to his pension and all the savings of the parents got exhausted in the education of defendant no. 3 & 4. As such, the parents of the plaintiff had no money of their own, for the construction of the house, in 1971 or 1972.
29 It is stated that plaintiff gave an air ticket from London to Canada to defendant no. 3 who left for Canada. In Canada also there was some difficulty in recognition of his Indian qualification. Therefore, it took a long time for him to get suitable employment. In 1969 defendant no. 4 was left with the parents of the plaintiff in India and he was also studying. They were living in a one room flat at N-7, Greater Kailash-I, at that time. The mother of the plaintiff came to London on or about 2 nd September 1969 and started living with the plaintiff. At that time plaintiff had sufficient savings to finance the purchase of a flat in London, West-4 for his mother. The said flat at 3-C, Geraldine Road, London West-4 was purchased which was not having any bathroom and after some time kitchen was converted to a bathroom and large dining room was converted into a kitchen cum dinning room.
30 It is stated that the plaintiff, his estranged wife and daughter, all shifted to the renovated flat of his mother on 27 th September, 1969. The mother of the plaintiff had a lot of problem, adjusting to the living conditions in England including language problem and finally she left of India in early November, 1969. In 1970 mother of the plaintiff decided that she would like to settle in India and wanted that the plaintiff should also come CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 12/50 back to India and help in building the family house. Therefor, in 1970 the flat of mother in London was transferred to defendant no. 3, for a sum of only 3000 Pounds Sterling. He did not pay any money at that time and he was to pay it by and by in installments to the mother of the plaintiff.
31 It is stated that on 17th March, 1971, the plaintiff came back to India and started the planning of the construction of the subject house at A-1, Greater Kailash Enclave-II, New Delhi- 110048. Parents of the plaintiff also partly finance, the construction of the Western half of the house. Defendant no. 3 sent only a small portion of the price of the flat in London in 1973-74 to the mother of the plaintiff. The same was given by the mother of the plaintiff to the plaintiff as the plaintiff had financed the purchase of the flat in London.
32 It is stated that Plaintiff had to sell all his costly imported Goods, except his imported car. He also had to borrow heavily for the construction of the Eastern half of the subject house. Subsequently money sent by defendant no. 3 to plaintiff's mother was given to the plaintiff and he utilized the same to pay back the loans he had taken for the construction of the Eastern half of the subject house. The plaintiff mainly borrowed about Rs. 30,000/- in installments, from his colleague Shri Ramesh Chandra Malik and his wife. Small amounts were also borrowed from a large number of other friends.
33 It is stated that plaintiff gave more than half the total cost of construction of the subject house. In these circumstances, the plaintiff entered the house as a joint owner of CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 13/50 the entire house with the clear understanding with his parents that the Eastern half of the house, on the ground floor, shall belong to him and the Western half of the house shall be in their control so that they could let it out and derive a steady income.
34 It is stated that defendant no. 4 has got both the mortise lock and Godrej night latch fitted in the main exist door of the house, changed and he has not provided the duplicate keys to the plaintiff. Plaintiff has interfered with the free entry of the plaintiff room the said main door in the staircase. The plaintiff has every right to seek free entry from the said common door in the common staircase.
35 It is stated that defendant no. 4 has not been on talking terms, with her elder sister, Ms Neena Sareen, ever since the end of 1988. In view of the same, defendant no. 4 and his family members, cannot claim any right under Ms Neena Sareen in the normal course.
36 It is stated that in the above circumstances, on or about 2.1.2002 the plaintiff filed a suit for injunction against defendant no. 4, herein and his family members, employers and security guards agency. By way of abundant caution. Defendant no. 1 to 3 were also added as parties, in case any family settlement could be arrived at in that case. Defendant no. 1 to 4 evaded filing a Written statement in that case although they were served in January 2002. In suit No. 166/2002, by order dated 17.09.2003, Ms Neena Sareen, sister of wife of defendant no. 4 was impleaded as a party. In December 2003, defendant no. 1 to 4 filed CM (M) 938/2003, in High Court of Delhi and CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 14/50 obtained stay of those proceedings, pending admission. The mother of the plaintiff had died on 3.7.2001.
37 Thereafter plaintiff mentioned the grounds for filing the present suit which are as follows:
A. It is stated that defendant no. 4 was still a student at the time of building the house and was not in a position to contribute anything towards the building of the house.
B. After the death of plaintiff's mother on 3.7.2001 the defendant no. 4 has no business to enter the Eastern half of the subject house, which was got built by the plaintiff.
C. After the death of mother of the plaintiff, the defendant no. 1 to 4 have not filed any probate or other legal proceedings for determination of their rights in the parents share in the subject house or property.
D. Defendant no. 1 to 4 can claim only under the parents and have no independent right in the subject house.
E. In terms of Section 212 of the Indian Succession Act, even the parents share in the Western half, vests in all the heirs, until otherwise determined in appropriate probate or other legal proceedings.
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 15/50
F. Defendant no. 4 is already occupying much
more than his share in the Western half of the
subject house.
G. The defendant no. 4 had started the litigation
in the name of old parents, for eviction of the plaintiff in suit No. 1708 of 1989 in the Delhi High Court but failed to dislodge the claim of the plaintiff. The plaintiff therein was not signed or initialed by either of the plaintiff's ( in that case) on every page and it was apparently fabricated by defendant no. 4. The replication in the said suit also suffered from same defects and did not comply with Chapter VI, Rule 5 of the Delhi High Court Rules and it was invalid. The contents of the written statement filed by the plaintiff herein in the said case, are deemed to be admitted in law. The said suit was transferred to District Judge, but it was amended to make the value above Rs. 5 lakhs and, therefore, the plaint was returned, Thereafter it was again instituted in the High Court, as Suit No. 2541 of 1994. No issues have been framed in the said suit and pending on the question of its maintainability and legal representatives of the mother of the plaintiff, as the plaintiff is also one of the legal representatives.
H. It is stated that subject house is not the self acquired property of the parents of the plaintiff, as alleged in Suit No. 1708 of 1989 fabricated by CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 16/50 defendant No. 4. The financial circumstances of the parents, brought out in paras 57 to 91, they had very little money to invest even in the construction of the Western half of the subject house.
I. Plaintiff has learnt from his daughter, that in her last few days the mother of the plaintiff had instructed defendant no. 4 not to evict the plaintiff from the subject house.
J. it is stated that mother of the plaintiff did not know English and the plaint and replication in the said cases did not comply with the requirements of the Rules pertaining to persons who are illiterate or do not know the concerned language.
K. Defendant fabricated a Will of the plaintiff's father, who had poor mental faculties at that time as brought out herein in above.
L. The sale of the property in Jhansi for about Rs. 5,000/- or so was the only direct contribution of the mother of the plaintiff to the construction of the Western half of the said house. Her share in the house is to be determined accordingly, under Section 45 of the Transfer of Property Act.
M. It is stated that in view of the circumstances, mentioned above, there could be no question of the mother of the plaintiff executing the alleged Will, if she was in her proper senses.
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 17/50
N. Ms Neena Sareen has obtained status quo
orders in 1989, regarding her tenancy of room no.
14. The Hon'ble Court had also appointed a Local Commissioner who gave a report to the Hon'ble court, As such the status quo orders became well defined.
O. It is stated that defendant no. 2 has not been on talking terms, with her elder sister, Ms Neena Sareen, ever since the end of 1988. in the context of same defendant no. 4 and his family members cannot claim any right under Ms Neena Saren in normal course.
P. It is stated that after the death of mother of the plaintiff on 3.7.2001, defendant no. 1 has no business to enter the Easter half of the subject house which was got built by the plaintiff in 1972- 73, except with the permission and leave of the plaintiff or his daughter claiming under him or with the permission and leave of Ms Neena Sareen who has obtained status quo orders in 1989, regarding the tenancy of room no. 14.
38 Plaintiff seeks that (A) the alleged Will of the mother of the plaintiff, relied by defendant no. 2 to 4, may be declared to be not duly executed by the alleged Testatrix not valid and operative and also not enforceable in Law by efflux of time; (B) share of the mother of the plaintiff in the Leasehold and at A-1, CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 18/50 Greater Kailash Enclave-II, New Delhi-110048 may be declared as nominal and namesake only and her share in the house built thereon, may be declared on the basis of her contribution of Rs.5,000/- only based on the construction costs as mentioned in the Income Tax assessment orders or the relevant period, filed in High Court Suit No. 1708 of 1989; (c) depending upon the outcome of Prayer A and B above, the plaintiff's share inherited from his mother may be declared and any other relief considered fit in the circumstances of the present case.
39 Defendant no. 1, 2, 4 & 5 filed filed joint written statement and taken preliminary objection that the suit of the plaintiff is barred under Order 2 Rule 2 CPC. It is stated that suit of the plaintiff is barred by law, as admittedly the plaintiff had not challenged the Will of Sh. J.R. Anand, who made Will, being owner of 50% of the suit property and remaining 50% being owned by Smt. Sushila Anand. As such by way of present suit plaintiff cannot challenge the title of late Sh. J.R. Anand and Smt. Sushila Anand.
40 It is stated that suit of the plaintiff as framed is not maintainable in law. The plaintiff is seeking declarations in the suit as mentioned above the prayer clause A to C. The suit for mere declaration is barred by virtue of the Specific Relief Act. It is stated that suit for a mere declaration is barred by virtue of the Specific Relief Act. Declaration simplicitor cannot be made where the plaintiff being able to seek further relief from a mere declaration of title omits to do so.
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 19/50 41 It is stated that in view of the allegations made in the plaint, the plaintiff could seek further relief of partition and separate possession of his alleged share in the suit property which he has not done. Therefore, the suit for a mere declaration as to the share allegedly inherited by him from his mother is barred by law and thus not maintainable.
42 It is stated that suit does not lie in the court of the Civil Judge. Value of the suit property is more than Rs. 2 crores and therefore, the suit would lie only in the High Court, if at all, since the plaintiff is seeking declaration affecting immovable property i.e the suit house. The suit is barred by the provision of the Benami Transactions ( Prohibition) Act 1988. Under Section 4 of the said Act no suit, claim or action to enforce any right in respect of any property alleged to be held Benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
43 It is stated that the claim of the plaintiff is in substance a claim that the suit property was held Benami in the names of Sh. J.Rs Anand and Smt Sushila Anand. It is thus stated that such claim and the suit based thereon as laid by the plaintiff is clearly hit by the prohibition contained in Section 4 aforesaid and is liable to be dismissed at the thresh hold.
44 It is stated that suit of the plaintiff is neither properly valued for the purpose of court fees and jurisdiction nor appropriate court fees has been affixed on the plaint. It is stated that suit is barred by time. The notice dated 02.05.1999 late Sh.
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 20/50 J.R. Anand and Smt. Sushila Anand, parents of the plaintiff had terminated the license of the plaintiff to remain on the portion of the suit property which was permitted to occupy as their licensee. The notice was followed up by filing suit No. 1708 of 1989 in the Delhi High Court in which parents of the plaintiff asserted that they were the exclusive owners of the entire suit property. The cause of action for making this claim was complete in May 1989. The present suit filed after 14 years of receiving summons of suit no. 1708 of 1989 is clearly barred by time.
45 On merit the contents of para 1 of the plaint are substantially admitted as correct. It is stated that it would be relevant to elaborate certain other facts also which would have a bearing on the averments made in the subsequents paras of the plaint.
46 It is stated that plaintiff and defendants no. 2 to 4 are the sons of late Sh. J.R. Anand and Smt. Sushila Anand. Defendant no. 1 is their daughter. The dispute in the present case centres around property bearing No. A-1, G.K. Enclave-II, New Delhi-110048. The claim of the plaintiff is that he is entitled to a declaration that will of his mother is not valid and not enforceable, that the share of his mother in the said property was nominal, and that share of plaintiff in the suit property which he inherited from his mother may be declared. Therefore, it is necessary at the outset to state the facts as to how the suit property was acquired. The relevant facts in this respect are accordingly stated hereunder:-
a) Late Sh. J.R. Anand was born 3.7.1909 in Pakistan. He was son of Sh. Barkat Ram Anand, a CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 21/50 school teacher. In the year 1932 he married Smt. Sushila Anand. From the marriage five children were born namely plaintiff in the year 1939, defendant no. 2 in the year 1943, defendant no. 3 in 1945, defendant no. 4 in 1948 and defendant no. 1 (daughter) in 1940.
b) Shri J.R.Anand got employment with the Indian Railway in early 1930's and posted in Delhi in 1943/44. Therefore, he shifted to Delhi in 1943/44 with his family and was allotted a government accommodation at 23/167, Lodhi Colony, New Delhi.
Sh Barkat Ram Anand migrated to Delhi only in
1947 and became a teacher at DAV School,
Paharganj, Delhi
c) The entire family of Sh. J.R. Anand moved to
the said quarter at Lodhi Colony comprising of three rooms. Sh. J.R Anand from his salary income as Govt. servant gave best possible education to all his children. The plaintiff was sent to IIT Kharagpur after completing his schooling at Delhi and Intermediate at Lucknow. However, the plaintiff was on the verge of being rusticated from Institute of accounts of his quarrelsome and stubborn behaviour and only with the greatest difficulty plaintiff's father and mother could persuade the Management of the Institute not to rusticate him, even though plaintiff was detained for one year in the institute and finally could get his degree only after five years instead of 4 years.
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 22/50 47 It is stated that defendant no. 2 studied medicine at MAMC College, New Delhi became a doctor in 1965 and went abroad in the year 1966 and settled there permanently though he has kept very close contact with the family and visits India frequently. Similarly, defendant no. 3 did his B.Tech, from the IIT, Bombay in 1967 and migrated to Canada in 1968. Defendant no. 3 also has maintained very close contact with the family and visits India frequently. Defendant no. 4 obtained a M. Tech decree from IIT Delhi in the year 1972 and took up service in the corporate sector. Defendant no. 1 did her graduation in Home Science and was married in the year 1960 and is settled in Bombay.
48 It is stated that plaintiff got employment in the Railway in the year 1961-62 and was married in the year 1965 with Ms Rekha. The plaintiff with his wife went to London on posting in 1965, where defendant no. 5 was born in 1967. However, acute marital discord between the plaintiff and his wife soon after going to England lead to litigation between them in England itself and they started living separately. Because of the disputes, Smt. Sushila Anand, plaintiff's mother had to undertake a trip o England in the year 1969 to bring about patch up between plaintiff and his first wife Rekha. In that process she had to bring defendant no. 5 to India, since the plaintiff refused to take care of her and he had no means to do so as he spent virtually everything that he earned, on the litigation.
49 It is stated that the conduct of the plaintiff in England lead to serious trouble in the office of the plaintiff as well with the result that the High Commission of India in England refused to CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 23/50 support him. Plaintiff was also sent to prison for breach of Court orders and defendant no. 3 had to fly from Canada to London to help him out. Defendant no. 3 had to camp for a month in London for this purpose at his own cost. The plaintiff became a fugitive from U.K. and returned to India in 1971 in a broken condition. Being a father, late Sh. J.R. Anand had to accommodate the plaintiff in rented accommodation where he was living at that time with wife and defendant no. 4. The plaintiff at that time was not even in a position to make his ends meet and it was late Sh. J.R. Anand who had to support the plaintiff. The plaintiff continued with his litigation even in India.
50 e) Meanwhile late Sh. J.R. Anand had become a member of the E.P. Railway Refugee Rehabilitation and House Building Co- operative Society Ltd. In the year 1960 or thereabouts by acquiring a share therein and his wife Smt. Sushila Anand became Associates Member of the Society. During the period March 1964 to May 1970, late J.R Anand paid a total amount of approximately Rs. 22,264/- to the said Society. Late Sh. J.R. Anand retired from the Railway Service sometime in the year 1967 and the entire amount of Rs.22,264/- utilized in purchasing the suit plot was invested by late Sh. J.R. Anand from his income with some contribution from his wife Smt. Sushila Anand.
51 f) It is stated that after retirement, Sh. J.R Anand was initially drawing pension at the rate of Rs. 326/- per month. Smt. Sushila Anand had ½ share in a plot of land situated in Civil Line, Jhansi, Uttar Pradesh which she had received as gift from her father's family and partly by purchased from her sister. She sold her share the said plot in 1966 for Rs.10,000/-. Out of this CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 24/50 amount of Rs. 10,000/- she had contributed Rs. 5,000/- towards purchase of the plot as aforesaid. Sh. J.R. Anand had purchased a plot in Ghaziabad in the year 1967 for Rs. 1808/- which was sold by him on 22.06.1972 for Rs. 14,775/-. Besides, Sh. J.R. Anand also had saved some money in the shape of FDR and he also owned a scooter. In 1972-73, Sh. J.R. Anand constructed the house on the suit plot by using all his aforesaid savings and an amount of Rs.87,000/- was contributed in this regard by his wife Smt. Sushila Anand. Besides defendant no. 2 & 3 who were by that time settled in USA and Canada respectively had been remitting from time to time ( since 1967 and 1973 respectively) very substantially amounts to their parents for more comfortable living in their old age. These run into about Rs. 2 lacs, the tabulation whereof is Annexure 1 hereto.
52 g) In view of the aforesaid details, it is stated that the entire story put forward by the plaintiff alleging that the suit property is Joint Hindu Family property and that the plaintiff had made any contribution towards the acquisition and construction of the same is wholly concocted. False and denied. The true position is that the suit property was acquired and later on constructed upon with the existing structure by late Sh. J.R Anand and his wife Smt. Sushila Anand from their own self-earned funds and savings. The plaintiff was never in a position to make any contribution towards the same. He had very little earning, and that also was spent on the litigation between the plaintiff and his first wife Ms Rekha. Rather some time Sh. J.R. Anand had to support the plaintiff even for his personal needs.
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 25/50 53 It is stated that the contents of para 2 to 5 of the plaintiff are correct to the extent that the relationship of the parties. So far as the benefits owing to the legatees under the Will of Sushila Anand are concerned, it is submitted that the contents of the Will may be perused. As regards the allegations that the share of defendant no. 5 would have been greater in the absence of the alleged Will is concerned, it is submitted that firstly the contention is hypothetical, and secondly defendant no. 5 as grand daughter would not have been an heir at all in the case of inte-state succession of the property.
54 In respect of contents of para 10 & 11 it is stated that the entire suit property is in the legal possession of defendant no. 4 and his family members, including defendant no. 5 who is also a member of the family of defendant no. 4, since the plaintiff at no stage took care of defendant no. 5 and virtually abandoned her.
55 In respect of contents of para 12 it is stated that a mere suit for declaration, where the plaintiff can claim further relief but omits to do so, is not maintainable by virtue of the bar created under Section 34 of the Specific Relief Act. It is stated that plaint is misconceived. DDA is not at all a necessary or proper party to the suit. The suit suffers from mis-joinder of parties.
56 The Contents of para 13, 14, 15 are denied. It is admitted that there is a storm water drain outside the subject house, however, other contents of para 16 of the plaint are denied. It is stated that it is the normal manner of covering the CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 26/50 storm water drain and that late Sh. J.R. Anand and Smt. Sushila Anand built the house in years1972-73 and near about that time the storm water drain was covered as per the prevailing practice and procedure.
57 Contents of para 17 are also denied. It is stated that plaintiff had neither the means nor the inclination or the time to contribute either his labour or money for the construction of the house.
58 In respect of para 19 of the plaintiff, it is stated that defendant no. 4 was studying at IIT, Hauz Khas only and was always available for the assistance of his father whenever it was desired. It is not denied that at that time, as a student of IIT, defendant no. 4 was not earning any money. However, he was getting a scholarship, which was sufficient to meet his fee, hostel expenses as well as personal expenses. Defendant no. 4 started earning in September, 1972 and contributing to the family.
59 The contents of Para 20 to 22 are emphatically denied and it is stated that the fact of the matter is that the plaintiff as also other members of the family of late Sh. J.R. Anand and Smt. Sushila Anand came to occupy the house in their capacity as family members of late Sh. J.R. Anand and Smt. Sushila Anand. At the best the occupation of the plaintiff was that of a licensee on the will and pleasure of Sh. J.R Anand and Smt. Sushil Anand, the owners of the suit property.
60 The contents of Para 23 & 24 of the plaint are also denied and it is stated that defendant no. 5 has been residing in CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 27/50 the suit premises since the date the same were constructed and has been occupying different rooms in the suit property from time to time depending on the requirement of the situation and suitability of the members of the family. It is stated that excess luggage belonging to the plaintiff from his different postings was kept in lot of rooms styled as Room No. 15 & 16 or it is still there.
61 The contents of para 25 of the plaint are also denied and it is stated that room no. 14 was in exclusive possession of late Sh. J.R Anand and Smt. Sushila Anand and after their death it is in the exclusive use and possession of defendant no. 4 and members of his family including defendant no. 5. The plaintiff, his second wife and son do not have any access to room no. 14.
62 The contents of Paras 26 and 27 of the plaint are denied except the employment of defendant no. 4, his marriage with Mrs Sartia Aand and his return to Delhi in 1979. It is stated that a portion of the house was given on company lease to the employer of defendant no. 4 from 1984 onwards, so that defendant no. 4 and his family could continue to live with defendant no. 4's parents and defendant no. 4 may also get his entitlement of benefits from his employers.
63 The contents of para 28 of the plaintiff are emphatically denied. It is stated that defendant no. 4 was never a tenant in the suit premises. Even the tenancy of the employer of defendant no. 4 was terminated in 1994. Defendant no. 4 with his family members including defendant no. 5 always lived with late Sh. J.R. Anand and Smt. Sushila Anand as family members. Defendant no. 2 & 3 also stayed with them on their frequent CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 28/50 visits to this country. Defendant no.1 also stayed with them during her frequent visits to Delhi. Defendant no. 4, 5 and the wife and children of defendant no. 4 had been taking every possible care of late Sh. J.R. Anand and Smt. Sushila Anand and met all their expenses besides giving them all the love and affection rightly due to them in their old age during this period.
64 It is stated that Sh. J.R. Anand expired in April 1997 and Smt. Sushila Anand expired in July 2001. Sh. J.R. Anand left a registered will dated 30.08.1989. Under the said will, amongst other things, bequeathed his undivided share in suit house to his wife Smt. Sushila Anand for life and thereafter to defendant no. 2 to 4. Smt. Sushila Anand also left behind her a registered Will dated 30.08.1989 with regard to her share in the said property and bequeathed her share in the suit house to her three sons defendants no. 2 to 4 in equal shares. Therefore, after the death of Sh. J.R. Anand and Smt. Sushila Anand the suit house devolved on defendants no. 2 to 4 in equal shares and they became co- owners thereof. The occupation of defendant no. 4 has been in his capacity as owner of 1/3rd share in the house in accordance with the Wills. Defendant no. 2 and 3 have ownership of 1/3 undivided share in the house in accordance with the said Wills mentioned above. The question of legal determination of nature of occupation of the premises does not arise as the rights of defendant no. 4 have been clearly specified in the two Wills. 65 It is stated that contents of para 29 of the plaint is misconceived. There is no need for defendant no. 2 to 4 to file any probate or any other legal proceedings for determination of the rights of the suit property, of which they are in proprietary possession.
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 29/50 66 The contents of para 30 of the plaint are emphatically denied. It is stated that the correct position is that Neena Sareen had left her parent's house after having married the plaintiff, some time in 1979. Prior to that the plaintiff was transferred to Bombay some time in 1977. After Neena Sareen married the plaintiff, she started living with the plaintiff in Bomay and came to Delhi much later, some time in or about 1985/1986. At that time Neena Sareen started living with the plaintiff in a portion of the suit property as wife of the plaintiff.
67 The contents of para 31 of the plaint are denied and it is stated that as and when the plaintiff visited Delhi he was accommodated in one of the rooms of the suit property as per the convenience and direction of late Sh. J.R. Anand generally in room no. 10.
68 The contents of para 32 of the plaint are also denied except that defendant no. 5 was living in Delhi throughout since 1969. It is stated that at that time the plaintiff was living in Bombay with his second wife Neena Sareen and they did not want to take the responsibility of defendant no. 5. Defendant no. 5 had always been under the care of grand-parents and at a later stage under the care of defendant no. 4 and his wife and has always been and is still a member of family of defendant no. 4.
69 The contents of para 33 & 34 are denied and it is stated that at that time the plaintiff was living in Bombay alongwith Neena Sareen, his second wife. Neena Sareen had also taken up employment in Bombay. The plaintiff was visiting Delhi once in a while, but not necessarily with Neena Sareen.
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 30/50 She would accompany the plaintiff only once in while or sometimes she visited alone also. On such visits she was staying sometimes in the suit property and sometime at Sarvodaya Enclave, with her parents.
70 The contents of para 35 of the plaint is denied. It is stated that defendant no. 4 alongwith his wife and children have lived in entire house, particularly in room nos. 10, 15, 16 as well as 7. They also had use of the attached bath rooms, kitchen and other area of the house including the Western side of the house, from time to time.
71 The contents of para 36 of the plaint is also denied and it is stated that it appears that because of disrespectful behaviour of the plaintiff towards their parents the plaintiff and Neena Sareen might have conceived with malafide intention the need for creating false evidence to ward off any future action which late Sh. J.R. Anand and Smt. Sushila Anand could take.
72 The contents of para 37 of the plaint regarding the vacation of the area occupied by the then tenant in 1983 are stated to be correct. However, so far as the specific room number are concerned the same is not admitted.
73 The contents of para 38 of the plaint are also denied. It is stated that the true position is that at that time defendant no. 4 was in employment of a company known as M/s Sriram Piston and Rings Ltd. The portion vacated by the tenant was at the given on lease by late Sh. J.R Anand to the said company with specific contract for the use of the said portion for the residence CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 31/50 of defendant no. 4 and his family. It goes without saying that at that time the family of defendant no. 4 included his parents, wife, children and defendant no. 5 had the use of entire house and not only the portion let out to the said employer of defendant no. 4.
74 The contents of para 39 of the plaint are denied. In this context it is also stated that the suit property is a residential property and cannot be used for running any employment agency etc. under the terms of the lease deed as also the provisions of the DD Act.
75 The contents of para 40 of the plaint are stated totally misconceived and denied as false and baseless. It is stated that there was never any tenancy.
76 The Contents of Para 41 & 42 of the plaint are also denied. It is stated that Ms Neena Saeen was not residing in suit house in the year 1984. If Neena Sareen got any registration certificate of her alleged employment agency showing address of the suit property, it was none with malafiled intention without the knowledge or consent of anyone else including Sh. J.R Anand and Smt. Sushila Anand.
77 The contents of para 43 of the plaint are denied and it is stated that at that time and in fact till his expiry in April 1997, the mental faculties of Sh. J.R. Anand were absolutely normal and perfect and various friends and other people were frequently approaching him for his saga advise.
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 32/50 78 The contents of para 44 of the plaint is also denied. It is stated that parents of the plaintiff were quite unhappy with the personal conduct of the plaintiff ever since he had married Neena Sareen in 1979 as also their disrespectful attitude towards them. Therefore, there was underlying tension in the family in this regard ever since then.
79 With regard to pare 45 of the plaint, it is not denied that the Benami Transactions Act, 1988 came into force some time in 1988. The other allegations are denied and it is stated that neither the plaintiff nor defendant no. 4 contributed to the construction of the property. The property was jointly owned by Sh. J.R. Anand and Smt. Sushila Anand and the question of defendant no. 4 outsting the plaintiff did not arise.
80 The contents of pare 46 of the plaint is misconceived and in fact is unintelligible. Provisions of the said Act can be read for their true scope. The present suit is barred by said Act. The exceptions in the said Act have no relevance to the instant case.
81 The contents of para 47 of the plaint are also denied and it is stated that late Sh. J.R. Anand and Smt. Sushila Anand had excellent health for their age and they were extremely active socially and were handling all their personal and social affairs themselves and both were of sound mental condition.
82 The contents of pare 48, 49, 50 & 51 of the plaint are denied. It is stated that plaintiff did not want to help in the matter nor did he care for or respect the wishes of his parents. It is stated that parents of the plaintiff were never dependant on anybody till their last days.
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 33/50 83 The contents of para 52 of the plaint are denied and it is stated that Sh. J.R. Anand and Smt. Sushila Anand were themselves very wise and they took their own decisions and they themselves filed suit No. 1708 of 1989 in the Delhi High Court after canceling the license of the plaintiff.
84 The contents of para 53 of the plaint pertain to proceedings that took place in the suit filed by Neena Sarain against parents of plaintiff and matter of record.
85 The contents of para 54 & 55, of the plaint is misconceived, baseless and is emphatically denied. In respect to contents of para 56 it is stated that apart from the conduct of the plaintiff and Neena Sareen, the rest of the family including the defendants settled abroad and their families formed a highly cohesive and strong family unit having perfectly good relations. The remaining contents of para 56 are denied.
86 The contents of para 57 of the plaint are emphatically denied. The suit mentioned in para under reply was drafted under the instructions of late Sh. J.R. Anand in consultation with Smt. Sushila Anand. Of course, defendant no. 4 being a member of the family, and since his parents reposed their full faith in him, might also have gone to the lawyer occasionally. Remaining contents are denied.
87 The contents of Para 58 of the plaint is totally denied. So far as the parents of late Sh. J.R. Anand were concerned, it is stated that they migrated to India in 1947, almost 3 to 4 years after Sh. J.R. Anand started living in Delhi in the Govt. allotted flat CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 34/50 in Lodhi Colony. The parents of Sh. J.R. Anand lived with Sh. J.R. Anand for some time and for some time they lived with their two other sons who had also migrated to Delhi by that time. In fact, late Shir J.R Anand and Sushila Anand did manage to have savings and from the savings they married their daughter ( defendant no. 1) in 1960, the plaintiff in 1965 and defendant no. 4 in 1975. They also managed to acquire the plot from EPR House Society and built it in the manner already detailed above.
88 The contents of para 59 of the plaint are partly admitted and it is stated that in 1948 the plaintiff was hardly 9 years old. In fact, after completing the schooling, plaintiff has always been staying out of Delhi first in Lucknow and then IIT, Kharagpur till 1961. Subsequently, he got his employment and was transferred soon thereafter in 1961-62 to Simla, Lucknow, Calcutta and Madras and then subsequently to England 1965.
89 The contents of para 60 of the plaint are denied being false. It is stated that the real reason for transferring plaintiff from St. Columbus to DAV School was the highly quarrelsome, arrogant and stubborn behaviour of the plaintiff. As stated, plaintiff was shifted to DAV because of his behaviour as exemplified in his later years. Shri Bakat Ram, father of Shri J.R Anand was a teacher on the DAV school. Since the plaintiff could be under constant watch and care of the said Shri Barket Ram, the family considered it advisable to keep him at DAV school.
90 The contents of para 61 of the plaint are emphatically denied. It is stated that the plot of Ghaziabad purchased by Shri J.R Anand was from his earnings as a servant of the Indian CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 35/50 Railway. Similarly, whatever, membership money and development charges were paid by Shri J.R. Anand for the suit plot were also from his self-earned funds.
91 The contents of para 62-67 of the plaint are emphatically denied except to the extent that they have been specifically admitted in this para or elsewhere in this written statement. The allegations is preposterous. So far as increase in size of plot is concerned it has nothing to do with the suggestion of the plaintiff.
92 It is stated that plaintiff never sent even a penny to his parents. The plaintiff was even imprisoned in UK and at that time the defendant no. 3 had to spend considerable time and money by coming to England from Canada for one month to help out the plaintiff. All the contents of these paras of the plaint are denied and it is stated that defendant no. 2 & 3 settled in USA and Canada respectively had from time to time been remitting (since 1967 and 1973 respectively very substantial amounts to late Sh. J.R. Anand and Smt. Sushila Anand for more comfortable living in their old age.
93 The contents of para 69 of the plaint are baseless, misconceived and are thus denied. Contents of para 70 of the plaint are denied being hypothetical, irrelevant and misconceived.
94 The contents of para 71 of the plaint are also denied. It is stated that since no such proposal was made, the question of late Shri J.R. Anand not agreeing for the same or otherwise does not arise.
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 36/50 95 In respect of the contents of Para 72 of the plaint, it is not denied that defendant no.2 migrated to USA in the year 1966. In respect of the contents of 73 it is not denied that Sh. J.R. Anand retired in 1967 and remaining all contents are denied.
96 In respect to contents of para 74 of the plaint it is stated that defendant no. 3 migrated to Canada after completing his education at the IIT, Bombay. It is denied that the plaintiff arranged for job for defendant no. 3 in Canada. It is stated that defendant no. 3 did not go to London when the plaintiff landed himself in trouble in London. Defendant no. 3 went at his own cost and had to spend one month and substantial amount to help the plaintiff, even defendant no. 3 had to give up his job in Canada.
97 The contents of Para 75 of the plaint are denied and it is stated that in at the initial stage defendant no. 3 had not made up his mind about adopting his career in England or Canada or USA etc. and in the formative time he did not go to England for a brief period before he decided to make Canada his home and settle there.
98 The contents of Para 76 & 77 of the plaint are denied and it is stated that defendant no. 3 sent substantial funds to his parents in order to help them in the course of construction of the suit property without laying any claim to it, while the plaintiff is trying to calculate pennies which he alleges to have so contributed.
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 37/50 99 With reference to contents of Para 78 it is stated that after retirement of late Sh. J.R. Anand in 1967, the parents of plaintiff shifted to a two-roomed house at N-7, Greater Kailash-I, New Delhi. Later on they shifted to a large one room apartment at the same address as they found it more suitable. It is stated that Smt. Sushila Anand never wanted to shift abroad. However, at that time the plaintiff was having very serious disputes with his first wife Rekha in England and plaintiff requested her to make an effort to patch up the relationship between them. At that time, Smt. Sushila Anand was left with no option but to make an effort as the plaintiff's mother to try to patch up between them. Due to efforts of Smt. Sushila, Rekha Anand returned to the plaintiff's home towards beginning of September. 1969.
100 The contents of para 79 of the plaint are denied. It is stated that plaintiff had no money of his own to buy any flat in London. However, plaintiff keen on acquiring some property in London and requested defendant no. 2 & 3 to finance the flat. Defendant no. 2 & 3 agreed to led the money to the plaintiff subject to the condition that the flat was purchased in the name of Smt. Sushila Anand. In this manner the flat was purchased in the name of Smt. Sushilla Anand from the money sent by defendant no. 2 & 3 from USA and Canada respectively.
101 The contents of para 80 of the plaint is stated to completely false. It is stated that Smt. Sushilla Anand was a very learned lady by the standard then prevailing and she had done a Shastri course in Sanskrit in 1930 when higher education amongst women was not even known in India. She knew workable English and could read as well as converse in English.
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 38/50 102 The contents of para 81 of the plaint is denied being false. In respect of contents of para 82 it is stated that there since the flat in London was purchased from the money belonging to defendant no. 2 & 3, it was transferred to the name of defendant no. 3. There was no understanding of making any payments to the mother of plaintiff regarding flat in London. 103 In respect of contents of Para 83 of the plaintiff, it is stated that plaintiff was having a hard time in England since not only was he having litigation with his first wife Rekha Anand, but also picked up frequent quarrels in his office. At that time defendant no. 3 had to go to London to help out the plaintiff. Defendant no,. 3 again gave plaintiff sufficient money to take care of the legal expenses and the other matter which were to be tied up at that time. Because of the conduct of the plaintiff, the Indian High Commission in England refused to extend plaintiff's service and plaintiff had no choice but to return to India.
104 The contents of para 84 of the plaint are denied. It is stated that there was never any ancestral or HUF property of the parents of the plaintiff and the plaintiff and his brothers. It is submitted that maternal grand father of the plaintiff gifted property at Civil Lines, Janshi , U.P to his three daughters, including Smt. Sushila Anand which accordingly became her property. The sale proceeds of the Jhansi Property were the personal funds of late Smt. Sushila Anand to the extent here share therein.
105 The contents of para 85 & 86 of the plaint are denied. It is stated that written statement herein above may be referred.
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 39/50 106 It is stated that contents of Para 87 of the plaint refers to the contents of Suit No. 1708/89 and the allegations under para 87 are denied. It is stated that it is not the case of defendants that defendant no. 2 had any share in the suit property prior to the bequest made in his favour under the Wills of Smt. Sushila Anand and Sh. J.R Anand or the demise of Sh. J.R Anand and Smt. Sushila Anand.
107 The contents of para 88 of the plaint is denied. It is denied that plaintiff had financed the purchase of the flat in London.
108 The contents of para 89 of the plaint is denied. It is denied that the plaintiff spent even a penny on the construction of either the eastern portion of the suit house or any other portion thereof. Therefore the question of the plaintiff selling his goods to finance the construction of the suit house does not arise. The remaining facts of Para 89 of plaint are also denied.
109 It is stated that contents of Para 90 of the plaint are misconceived. Income Tax assessment orders of late Sh. J.R Anand and Smt. Sushila Anand reflect the true position. The contents of Para 91 of the plaint are also denied.
110 The contents of Para 92 of the plaint is denied. It is stated that defendant no. 4 has much more personal knowledge than plaintiff because defendant no. 4 lived with Sh. J.R. Anand and Smt. Sushila Anand till their death and had much more opportunity to know and observe the correct facts. Plaintiff, on the other hand, lived separately most of the time, and even when CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 40/50 he lived in Delhi, there was hardly any communication between him and late Smt. Sushila Anand and Sh. J.R. Anand.
111 Contents of Para 93 & 94 are denied. Relevant reply above is referred. Regarding contents of Para 95 of the plaint, the replication in suit no. 1708/89 is referred. It is denied that the said replication has been fabricated by defendant no. 4.
112 The contents of Para 96 & 97 are denied and it is stated that Neena Sareen is the wife of plaintiff and she was never a tenant in any portion of the suit property. Therefore, the question of her attorning to anybody does not arise. The kitchen is in exclusive possession and use of defendant no. 4 and his family included defendant no. 5.
113 The contents of Para 98 of the plaint also denied and it is stated that Room no. 16 with attached bathroom No. 13 alongwith entire remaining house excluding room No. 7 and 10 and bathrooms 6 & 9 are under the exclusive use and possession of defendant no. 4 and his family including defendant no. 5.
114 The contents of Para 90 is denied. It is stated that room no. 15 alongwith bathroom no. 12 is generally being used by defendant no. 5 and Miss Punita Anand, besides defendant no. 4 etc. Further the said room is also used by defendants 1 to 3 on their visits to Delhi.
115 The contents of Para 100 & 101 of the plaint denied and reference may be made to para 22 of the written statement.
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 41/50 116 The contents of Para 102-104 are denied and it is stated that the correct position is that on Saturday, 22.12.2001, defendant no. 4 had called some workers including plumber, mason etc. to repair the leakage of water in bathroom no. 12. This was necessitated since the water pipes in this walls and floor of the bathroom had got rusted having been installed in 1972-73. For this purpose, it was necessary to dig up floor and break the wall to some extent for purposes of repair and replacement of pipes etc. as may be required.
117 It is stated that the plaintiff threatened the workers who had been engaged for the purpose and sought to push around family members as also defendant no. 4. The police were called. The copies of the Wills of late Sh. J.R. Anand and Smt. Sushila Anand were shown to the police by defendant no. 4. They were also informed about the eviction case filed by late Sh. J.R. Anand and Smt. Sushila Anand against the plaintiff. Thereafter police satisfied and instructed the plaintiff not to interfere with the work undertaken by defendant no. 4.
118 It is stated that again on 23.12.2001, plaintiff started threatening defendant no. 4 and interfered with the work. Again police was called and once again entire position was explained to the police and police again instructed to the plaintiff not to interfere with the repair work. Thus all allegations in paras 102- 104 are denied.
119 Contents of Para 105 is denied. However, it may be stated that defendant no. 4 and his family members have the right to keep dogs if they so like. The contents of Para 106 & 107 of the plaint are denied.
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 42/50 120 The contents of Para 108 is emphatically denied. It is stated that plaintiff never had the key to the entrance referred to. The plaintiff never had right to have entry from the door. The plaintiff was given a license for using the limited portion of the house accessible from the Savitri Cinema Road, which licence was terminated in the lifetime of Smt. Sushila Anand and Sh. J.R Anand. It is stated that it is not a common staircase nor the door of the starircase has a common door.
121 The contents of Para 109 are denied and it is stated that it may be that because of Neena Sareen having started living with the plaintiff in 1979, relationship between her and her younger sister stood disputed. The question of defendant no. 4 and his family claiming any right under Neena Sareen in the normal course or otherwise does not arise.
122 The contents of Para 110 of the plaint are denied. It is stated that suit against the plaintiff was filed by late Sh. J.R Anand and Smt. Sushila Anand and not by defendant no. 4.
123 The contents of Para 111 are stated to be false. It is stated that no such instructions were given by Smt. Sushila Anand to defendant no. 4, in her last days or otherwise. In fact, in view of the conduct of the plaintiff, lat Smt. Sushila Anand much wanted that the plaintiff should leave the house at the earliest and go and live on his own in his own flat/house so that Smt. Suhila Anand should spend her last days in peace.
124 The contents of Para 112 are denied and it is stated that plaintiff is not entitled to any relief as claimed.In respect of CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 43/50 contents of Para 113 of the plaint it is stated that plaint refers to some other litigation which is a matter of record. In view of the said suit this suit is barred under Order 2 Rule 2 CPC.
125 Contents of Para 114 of the plaint are denied and contents of Para 115 are stated to be refers to proceedings in other litigations which is matter of record. Contents of Para 116 of the plaint is stated to be meaningless and unintelligible and denied.
126 Contents of Para 117 of the plaint stated to be correct to the extent that Smt. Sushila Anand died on 03.7.2001 and three years expired on 3.7.2004. The present suit is barred under order 2 Rule 2 CPC.
127 It is stated that contents of Para 118, 119 & 120 of the plaint are misconceived, false and are denied. It is stated that plaintiff has no cause of action. In any event, the value of the suit property is about Rs. 2 crores and the value for purpose of jurisdiction is the value of the property even for a declaration simplicitor. It is stated that suit would lie only in the High Court. So far as it is stated that the suit is not for partition and Court Fee Act prevails. It is stated that suit is barred by law and not maintainable for declaration alone. Defendants seeks rejection/dismissal of the suit with heavy costs in favour of defendants and other relief as deemed fit.
128 On the pleadings of the parties vide order dated 18.05.2010 and dated 29.05.2010 ld. Predecessor of this court framed the following preliminary issue:-
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 44/50 "Whether this court does not have pecuniary jurisdiction to entertain and try the suit".
"Whether the present suit containing a prayer for declaration without any prayer for consequential relief of possession is maintainable?
129 I have heard plaintiff and Ms Veena Goswami, counsel for defendant no. 1 to 4 and perused the record. 130 At the outset, I would like to reproduce the prayer of the plaintiff which is as under: -
(A) That the alleged Will of the mother of the plaintiff, relied by defendant no. 2 to 4, may be declared to be not duly executed by the alleged Testatrix not valid and operative and also not enforceable in Law by efflux of time; (B) That the share of the mother of the plaintiff in the Leasehold and at A-1, Greater Kailash Enclave-
II, New Delhi-110048 may be declared as nominal and namesake only and her share in the house built thereon, may be declared on the basis of her contribution of Rs.5,000/- only based on the construction costs as mentioned in the Income Tax assessment orders or the relevant period, filed in High Court Suit No. 1708 of 1989;
(c) That depending upon the outcome of Prayer A and B above, the plaintiff's share inherited from his mother may be declared and any other relief considered fit.
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 45/50 131 Before appreciating the respective contentions of parties and pleadings let us peruse the principle of law.
Section 34 is reproduce as under:
34. Discretion of Courts as to declaration of status or right:- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief;
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
132 The essential conditions to maintain the suit under Section 34 are as follows: -
Essential conditions--- To maintain a suit under the Section the following essential must be established:
(1) That the plaintiff is a person entitled to any legal character or to any right as to property: (2) That the defendant is a person denying or interested to deny the plaintiff's titled to such character or right;
(3) the declaration sued for is a declaration that the plaintiff is entitled to a legal character or to a right to property; and (4) whether the plaintiff is able to seek further relief than a mere declaration of title, he must seek such relief.
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 46/50 133 The law is well settled that mere suit for declaration is not maintainable. The suit for mere declaration that the order/document or inheritance simpliciter is not maintainable. The principle is well established that no court shall grant the mere relief of declaration if plaintiff being in a position to claim other relief did not prayer for it. Plaintiff seeking the relief of declaration who also seeks other relief if he is able to do so the test is as to whether on the date of filing of the suit it was sufficient for the plaintiff to seek the relief of declaration alone or certain other relief also ought to have been sought for it. If on the date of filing of the suit the plaintiff did not interested to seek further relief, the suit for mere declaration is maintainable.
134 Now keeping in view of provisions and principle of law, let us examine the case in hand. The plaintiff filed the present suit admitted that already a suit between the parties filed by defendant and plaintiff's father, namely, Sh. Jia Ram Anand and mother Mrs Sushila Anand, bearing No. 1708/89 for seeking the mandatory injunction and damages from the plaintiff, herein for a specific portion of the suit property alleged to be in occupation of plaintiff.
135 The plaintiff in the present plaint has given long and lengthy details including his birth, education, his service and construction of the house bearing No. A-1, Greater Kailash Enclave-II, New Delhi. It is admitted in the plaint that the Will of the mother was filed in the above said civil suit after the death of Sh. Jia Ram Anand and Smt. Sushila Anand. The relief of declaring the alleged will of mother is not valid, operative and no enforceable in law for argument sake would devolve the suit CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 47/50 property amongst all the legal heirs. In my considered opinion, mere declaration of Will in the absence of further relief which is available to the plaintiff on the day of filing of the suit i.e partition and permanent injunction for restraining the other legal heirs from dis-possession of his share is also available but same has not been sought by the plaintiff.
136 The circumstances, established that plaintiff ought to have claim other available relief on the day of filing of the present suit. The plaintiff has not disclosed the complete facts who is the other sharer or joint owner of the suit property. He is seeking declaration on the basis of Rs. 5,000/- as per Income Tax Assessment orders, however, he is not disclosing as per the Lease Deed and the Conveyance Deed of the suit property who are the owners.
137 The plaintiff on one side is seeking the declaration of the Will as not valid, operative of his mother and at the same time he is seeking another declaration for restricting his share in the suit property without declaring the other owners of the suit property. The averments in the plaint seems to be the in continuation of the pleadings in the civil suit filed by the plaintiff's parent in the year 1989. He is further restricting the declaration to inheritance of the mother's share to him only. For argument sake he must have claimed the relief of partition which is available to him on the day of filing of the present suit with regard to alleged share of his mother.
138 It is pertinent to mention here that the civil suit titled as Jia Ram & Ors Vs Sudhish C Anand bearing No. 17/11/89 is CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 48/50 contested by the plaintiff herein. In the said civil suit specific issues were framed with regard to one will of late Sh. Jia Ram, father and Will of his mother late Sushila Anand. In the said civil suit, both the attesting witnesses, namely, Sh. Sudhir Suri and Sh. Sudhir Marwah were examined in detail and the validness of the will of mother has been decided in the said civil suit against the plaintiff herein. Therefore, civil court as per law has been decided the validity and operation of Will of the mother which binding on both parties in the present suit.
139 Plaintiff further referred to the High Court Rules, which is reproduced herein:-
(g) Suits for Declaratory Decress
1. Issue as to possession- The proviso to Section now 34 of the Specific Relief Act lays down that a declaratory decree cannot be passed in a case in which other relief than a mere declaration can be sought. Hence in a suit for declaration of title of immovable property, where the defendant denies that the plaintiff was in possessions of the property on the date of the suit, the Court should first of all decided this point. It is found that the plaintiff was not in possession of the property on the date of the institution of the suit, his suit must fail unless the court, having regard to all the circumstances allows the plaint to be amended.
2. All issues to be framed--- These instructions are not to be taken to imply that the whole of the pleadings should not be exhausted and issues drawn on all points of conflict between CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 49/50 the parties at the first hearing, but that at the trial of the issues, the issue as to possession should be first tried and disposed of where this can be conveniently done.
140 I have gone through the above said rules. In my considered opinion in the present facts and circumstances of the case it is not applicable. The plaintiff has already been litigating his right to possession the portion of the suit property on the day of the filing of the present suit. Then he ought to have claim the relief of injunction, therefore, the simpliciter suit for declaration is not maintainable.
141 On the basis of above observation and discussion, the present suit is not maintainable, therefore, preliminary issue is decided against the plaintiff and in favour of the defendants.
142 Relief In view of the finding on preliminary issue, the suit filed by the plaintiff is not maintainable and dismissed. No order as to cost. Decree Sheet be prepared accordingly. File be consigned to record room.
(Announced in the open (SANJAY KUMAR)
court on 30th January, 2018 ADJ-02 (West)
Tis Hazari Courts
Delhi
CS No.15/17/04 Sudheesh Chandra Anand Vs Sushma Sawhney &Ors. 50/50
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