Delhi District Court
Rahisuddin vs Fatima & Others 1/24 on 19 October, 2020
IN THE COURT OF DR. SUDHIR KUMAR JAIN
PRINCIPAL DISTRICT & SESSIONS JUDGE, NORTH-EAST
KARKARDOOMA COURTS, DELHI
CS No. 76456/2015
CNR No. DLNE01-000419-2013
RAHISUDDIN
SON OF LATE HAKIM ALI @ SUKHE KHAN
R/O E-354, GALI NO 11
NEAR CHAND MASJID
SHASTRI PARK
DELHI-110053
....PLAINTIFF
V
1. FATIMA
WIFE OF LATE ISLAMUDDIN
RESIDENT OF E-354, GALI NO 11
NEAR CHAND MASJID
SHASTRI PARK
DELHI-110053
2. RAHISA
DAUGHTER OF LATE HAKIM ALI
RESIDENT OF E-161, GALI NO 3
NEW SEEMAPURI
DELHI-110095
3. FAHIMUDDIN
4. SALEEMUDDIN
5. ISHRAT
6. SHAHJAHAN
(LEGAL HAIRS OF LATE JAMILA)
R/O B-723, GALI NO 13
VEER ABDUL HAMEED ROAD
SUBHASH VIHAR, NORTH GHONDA
DELHI
....DEFENDANTS
INSTITUTION: 03.04.2013
(CONTESTING PARTIES SUBMITTED WRITTEN ARGUMENTS)
JUDGMENT:19.10.2020 CS 76456/15 RAHISUDDIN VS. FATIMA & OTHERS 1/24 SUIT FOR DECLARATION, PARTITION AND PERMANENT INJUNCTION JUDGMENT
1. Inheritance in any religion represents important way of transferring wealth from one generation to next generation. Inheritance under Islamic Law is stated to be combination of pre-Islamic customs and rules introduced by the Prophet. Muslims are broadly governed by either Hanafi (Sunni) or Shia schools/sects of personal law. When a Muslim dies four duties are generally performed which are to pay funeral and burial expenses; to pay debts of the deceased; to determine value / Will of the deceased which can only be a maximum of one third of the property and to distribute remainder of estate and property to relatives of the deceased according to Shariah Law. The plaintiff filed present suit for declaration, partition and permanent injunction by pleading as under:-
Late Hakim Ali @ Sukhe Khan was owner of the property bearing no E-354 (old no E-72), Gali no 11, E-Block, Near Chand Masjid, Shastri Park, Delhi-110053 measuring 50 sq. yards (herein after referred to as "suit property"). Nisara wife of Late Hakim Ali @ Sukhe Khan expired on 23.09.2011. Late Hakim Ali @ Sukhe Khan died intestate in year 1992 leaving behind two sons namely Rahisuddin i.e. the plaintiff and Islamuddin and two daughters namely Rahisa i.e. the defendant no 2 and Jamila. Islamuddin and Jamila have already expired. The defendant no 1 is widow of Islamuddin and defendant no 3 to 6 are legal heirs of Jamila. The plaintiff and defendant no 1 are residing in the suit property as co-sharers. The defendant no. 1 is occupying large portion of the suit property as shown in red color in site plan which is more than her entitlement/share and the plaintiff is occupying ground floor as shown in green color in site plan. Islamuddin, husband of the defendant no 1 was only given first floor of the suit property at time of marriage and remaining portion was occupied by the plaintiff and his mother. The defendant no. 1 forcibly dispossessed the plaintiff and his mother from upper portion of the suit property.
The mother of the plaintiff filed a suit for permanent injunction against the defendant no. 1 in the year 2006 which was disposed of as compromised. The defendant no 1 is claiming her owner of the suit property and prepared false and fake documents in her favor after death of Late Hakim Ali @ Sukhe Khan with an intention to sell the suit property. The defendant no 1 filed a suit for permanent injunction against the plaintiff and his mother Nisara which was withdrawn by the defendant no. 1. The plaintiff is having 1/4 th share in the suit property. The plaintiff served a legal notice on the defendant no. 1 on 15.03.2013 CS 76456/15 RAHISUDDIN VS. FATIMA & OTHERS 2/24 demanding partition of the suit property. The plaintiff and the defendants are Sunni Muslims and governed by Hanafi Law of Inheritance and being legal heirs and successors of Late Hakim Ali @ Sukhe Khan are entitled to inherit the suit property. The plaintiff being aggrieved filed the present suit for declaration, partition and permanent injunction and prayed as under:-
i. Pass a decree of Declaration thereby declare that the plaintiff is the co-sharer of the suit property i.e. property bearing no. E-354, Gali No. 11, E-Block, Near Chand Masjid, Shastri Park, Delhi-110053 as shown in red colour in the site plan annexed.
ii. Pass a decree of partition in favour of the plaintiff and against the defendants thereby directing the defendants no. 1 to 6 to partition the suit property i.e. property bearing no. E-354, Gali No. 11, E Block, Near Chand Masjid, Shastri Park, Delhi-110053 as shown in the red colour in the site plan annexed by metes and bounds in accordance with law and thereby separating the undivided share of the plaintiff in the built up suit property and after passing a preliminary decree of partition, a final decree of partition may kindly be drawn in accordance with law, in the interest of justice.
iii. Pass a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restrained the defendant no. 1, their agents, servants, assignees, attorney(s), representatives, legal heirs etc. from forcefully taking possession of the portion of the suit property, which is in the possession of the plaintiff and further restrained them from selling, transferring, alienating, disposing off and / or creating third party interest either by sell or subletting, assigning or parting with possession of the suit property i.e. the property bearing no. E-354, Gali No. 11, E-Block, Near Chand Masjid, Shastri Park, Delhi-110053 in favour of third party without giving the due share of the plaintiff in the built up suit property.
iv. Any other relief(s), which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, in the interest of justice.
2. The defendant no. 1 and 2 filed respective written statement. The defendant no.1 in preliminary objections of written statement stated that the suit is liable to be dismissed being not maintainable. The plaintiff has not appeared with clean hands and has suppressed CS 76456/15 RAHISUDDIN VS. FATIMA & OTHERS 3/24 the material facts. The suit is not properly valued for purposes of court fee and jurisdiction. The defendant no 1 is lawful owner of the suit property having purchased from Sukhe Mistri son of Ida vide registered GPA, Agreement, Receipt and Will dated 19.08.1991. The defendant no1 filed a suit for permanent injunction against the plaintiff and her mother in law Nisara. Nisara expired during pendency of said suit on 23.09.2011 and the plaintiff on pretext to perform last rituals of his mother forcibly entered the suit property and forcibly and illegally occupied one room of ground floor as trespasser without consent and permission of the defendant no 1. The defendant no.1 in reply on merits denied other allegations of the plaintiff.
The defendant no.2 stated that she was residing in the suit property with her husband even after marriage as per wish of her parent. Late Hakim Ali @ Sukhe Khan was owner of the suit property. The defendant no. 1 after death of Late Hakim Ali @ Sukhe Khan begin to disturb peaceful possession of the defendant no2 and the plaintiff so the defendant no 2 to maintain harmony in family preferred to live at place of work of husband. The defendant no 2 being one of the legal heirs of late Hakim Ali @ Sukhe Khan has legal share in the suit property.
3. The plaintiff filed the replications to written statement filed by the defendant no.1 wherein reasserted and reaffirmed the previous stand.
The defendant no 3 to 6 were ordered to be proceeded ex-parte and right to file written statement was also closed vide order dated 13.08.2013. The defendant no 1 filed an application under section 151 CPC which was treated to be filed under Order VII Rule 11 CPC by pleading that suit is not properly valued for purposes of court fee and jurisdiction which was dismissed vide order dated 24.09.2013.
4. Vide order dated 07.11.2013, following issues were framed:-
1. Whether the plaintiff is a co-sharer of the suit property and is entitled to preliminary decree for partition of 1/4th share in the same? OPP
2. Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPD
3. Whether the defendant no. 1 is the sole and exclusive owner of the suit property? OPD1
4. Whether the plaintiff has undervalued the suit property for the purposes of pecuniary jurisdiction? OPD1
5. Relief
5. The plaintiff examined her as PW1 and tendered affidavit which is Ex.PW1/A. The CS 76456/15 RAHISUDDIN VS. FATIMA & OTHERS 4/24 plaintiff relied upon the documents which are Ex.PW1/1 to Ex.PW1/3, Mark PW1/4 and Ex. PW1/5 to Ex. PW1/B. The plaintiff's evidence was ordered to be closed vide order dated 24.12.2014.
The defendant no 1 tendered affidavit Ex. DW1/A in evidence and was partly cross examined on behalf of the plaintiff. The counsel for the defendant no 1 dropped the defendant no 1 as witness and incomplete testimony of the defendant no 1 as DW1 vide order dated 28.11.2016 was ordered to be excluded and shall not be read in evidence. Avtar Singh, Record Clerk, Sub Registrar Office, Nand Nagari, Delhi was examined as DW2 on behalf of the defendant no 1 who brought record pertaining to registered Will dated 19.08.1981 executed by Sukhe Mistri in favor of the defendant no 1 and proved photocopy of Will dated 19.08.1991 as Ex. DW2/A. The defendant no 2 preferred not to lead evidence as the defendant no 2 supported case of the plaintiff as reflected from order dated 01.04.2014.
6. The counsels for the plaintiff and the defendant no 1 filed written arguments which are considered. Record perused.
7. The burden of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims against the defendant and is based on preponderance of the probabilities. Under Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it. Relevant provisions of the Evidence Act, 1872 dealing with burden of proof are produces as under:-
101. Burden of proof.--
Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
102. On whom burden of proof lies.--
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
103. Burden of proof as to particular fact.--
The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
CS 76456/15 RAHISUDDIN VS. FATIMA & OTHERS 5/24
106. Burden of proving fact especially within knowledge.--
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
The Supreme Court in R.V.E. Venkatachala Gounder V Arulmigu Viswesaraswami & V.P. Temple & another, VI(2003)SLT307 observed that whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It was observed in A. Raghavamma & another V Chenchamma & another, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. It was observed in Rangammal V Kuppuswami and others, Civil Appeal No 562 of 2003 decided on 13 th May, 2011 by the Supreme Court observed that burden of proof lies on the person who first asserts the fact and not on the one who denies that fact to be true. The responsibility of the defendant to prove a fact to be true would start only when the authenticity of the fact is proved by the plaintiff. In Anil Rishi V Gurbaksh Singh, (2006) 5 SCC 558 it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues. This view was also accepted in M/S. Gian Chand & Brothers and Another V Rattan Lal @ Rattan Singh, (2013) SCR 601.
ISSUE WISE FINDINGS ARE AS UNDER ISSUE NO 1 and 3
1. Whether the plaintiff is a co-sharer of the suit property and is entitled to preliminary decree for partition of 1/4th share in the same? OPP
3. Whether the defendant no. 1 is the sole and exclusive owner of the suit property? OPD1 Issue no 1 and 3 shall be decided by common findings as they are inter- related and connected.
8. The property which is left after death of a Muslim is heritable and can be movable or CS 76456/15 RAHISUDDIN VS. FATIMA & OTHERS 6/24 immovable and ancestral or self-acquired. Inheritance opens only after death of a Muslim and no person can be an heir of a living person. Muslim law does not recognize doctrine of representation and as such nearer heirs excludes the remoter heirs from inheritance. The distribution of the assets is per-capita under Sunni law which means an heir does not represent branch from which he inherits. Muslim law recognizes two types of heirs which are sharers and residuary. Sharers are entitled to certain share in the deceased's property and 12 in numbers. Residuary takes up share in the property which is left over after shares are taken by sharers. Residuary takes entire estate in absence of sharers and in absence of both sharers and residuary the estate devolves on distant kindred. The properties of a Muslim after his death devolve on his heirs in definite share and each heir becomes an absolute owner.
9. The burden was on the plaintiff to prove that the suit property is liable for partition and the plaintiff is entitled for 1/4th share in the suit property. The plaintiff primarily pleaded that his father Late Hakim Ali @ Sukhe Khan was owner of the suit property who died intestate in 1992 leaving behind two sons namely Rahisuddin i.e. the plaintiff and Islamuddin i.e. husband of the defendant no 1 and two daughters namely Rahisa i.e. the defendant no 2 and Jamila, predecessor in interest of the defendant no 3 to 6. The plaintiff is having 1/4th share in the suit property. The defendant no 1 is claiming her owner of the suit property on basis of false and fake documents. The plaintiff served a legal notice on the defendant no. 1 on 15.03.2013 demanding partition of the suit property. The plaintiff prayed that a decree of partition be passed for partition of the suit property. The defendant no 2 also supported claim of the plaintiff. The plaintiff to prove that his father Hakim Ali @ Sukhe Khan was owner of the suit property and the suit property is liable for partition examined him as PW1 and tendered affidavit Ex. PW1/A in evidence wherein deposed facts as stated in plaint. The plaintiff as PW1 in cross examination deposed that his father Hakim Ali @ Sukhe Khan was not having any other property except the suit property. The plaintiff was having cordial relations with his father and never quarreled with him in respect of this suit property. The plaintiff is living in the suit property since childhood and was having cordial relations with the defendant no 1. The plaintiff is living on ground floor and in occupation of area measuring 20 sq. yards. The defendant no.1 claimed ownership rights over the suit property in year 2011 when a compromise Mark Ex. PW1/4 was affected. The plaintiff admitted that he did not claim any share in the suit property before 2011 and came to know about title documents in favor of defendant no. 1 after death of his CS 76456/15 RAHISUDDIN VS. FATIMA & OTHERS 7/24 mother. The plaintiff denied suggestions that he entered in the suit property on date of death of his mother or that the defendant no.1purchased the suit property from her father in law on the basis of genuine documents or that he had knowledge about title documents so he did not file any case after the death of his father. The defendant no 2 also stated that the suit property was owned by her father Hakim Ali @ Sukhe Khan.
10. The defendant no. 1 alleged that she is owner of the suit property having purchased from Sukhe Mistri son of Ida vide registered GPA, Agreement, Receipt and Will dated 19.08.1991and the plaintiff on day of death of his mother on pretext to perform last rituals of forcibly and illegally occupied one room of ground floor as trespasser without consent and permission of the defendant no 1. The defendant proved photocopy of Will dated 19.08.1991 as Ex. DW2/A.
11. The counsel for the plaintiff in written arguments mainly submitted that the defendant no 1 is not owner of the suit property. The plaintiff became co-sharer in the suit property after death of his father Hakim Ali @ Sukhe Khan who was owner of the suit property to extent of 1/4th share but the defendant no 1 has not given share of the plaintiff. The defendant no 1 is claiming ownership on basis of forged documents. The counsel for the defendant no 1 in written arguments mainly submitted that the defendant no 1 is owner of the suit property having purchased from Late Hakim Ali @ Sukhe Khan on execution of documents dated 19.08.1991. The plaintiff was not residing in the suit property and relied on Ex. DW1/3 to Ex. DW1/5. The plaintiff does not have any right, title or interest in the suit property. The plaintiff in cross examination admitted that he did not claim any share in the suit property till 2011 after death of his father i.e. Hakim Ali @ Sukhe Khan. The suit is liable to be dismissed.
It is not disputed between the contesting parties that Late Hakim Ali @ Sukhe Khan was owner of the suit property and he did not own any other property except the suit property. The plaintiff is in possession of portion situated at ground floor of the suit property as shown in green color in site plan Ex. PW1/1 and rest of portion of the suit property as shown in site plan Ex. PW1/1 is in possession of the defendant no 1. The plaintiff claimed that Late Hakim Ali @ Sukhe Khan died intestate while the defendant no 1 is claiming ownership of the suit property on basis of documents which are General Power of Attorney, Agreement, Receipt dated 19.08.2011 as referred Ex. DW1/1 in affidavit Ex. DW1/A submitted by the defendant no 1 in evidence and registered Will dated 19.08.2011 Ex. DW2/A stated to be executed by Late Hakim Ali @ Sukhe Khan who CS 76456/15 RAHISUDDIN VS. FATIMA & OTHERS 8/24 is referred and mentioned as Sukhe Mistri son of Ida in documents dated 19.08.2011. General Power of Attorney, Agreement, Receipt dated 19.08.2011 as referred Ex. DW1/1 in affidavit Ex. DW1/A submitted by the defendant no 1 in evidence are not proved in evidence as incomplete testimony of the defendant no 1 as DW1 was ordered to be excluded and shall not be read in evidence vide order dated 28.11.2016.
12. Sukhe Mistri Mistri did not execute any sale deed in favor of the defendant no 1. Issue which needs consideration is that whether General Power of Attorney, Agreement to Sell, Will etc. conferred any ownership rights in absence of sale deed. The law gives a person who acquires or owns an immovable property right to use, lease, sell, rent or transfer/gift of the land. The transactions for purchasing/selling/transferring/creating an interest in immovable property and transmission of title in respect of a property are governed by various legal provisions. The transfer of property between two parties is governed by the Transfer of Property Act, 1882. Section 5 defines Transfer of Property. An immovable property can be transferred by different modes which are sale, mortgage, lease, gift, exchange etc. The essential elements of a sale are parties to a sale, subject matter of sale, price or consideration and mode of execution of sale. Section 54 of the transfer of Property Act, 1982 defines sale.
13. The Supreme Court in Suraj Lamp & Industries Private Limited V State of Haryana & another, 2009 (7) SCC 363 referred to the ill - effects of sales through General Power of Attorney or Sale Agreement/General Power of Attorney/Will transfers (for short `SA/GPA/WILL' transfers) and observed that there cannot be a sale by execution of a power of attorney nor can there be a transfer by execution of an agreement of sale and a power of attorney and will. The Supreme Court of India again in Suraj Lamp & Industries Private Limited V State of Haryana & another, Special Leave Petition (C) No 13917 of 2009 decided on 11th October, 2011 highlighted modus operandi in SA/GPA/WILL transactions and observed as under:-
The modus operandi in such SA/GPA/WILL transactions is for the vendor or person claiming to be the owner to receive the agreed consideration, deliver possession of the property to the purchaser and execute the following documents or variations thereof:
(a) An Agreement of sale by the vendor in favour of the purchaser confirming the terms of sale, delivery of possession and payment of full consideration and undertaking to execute any document as and when required in future.
Or CS 76456/15 RAHISUDDIN VS. FATIMA & OTHERS 9/24 An agreement of sale agreeing to sell the property, with a separate affidavit confirming receipt of full price and delivery of possession and undertaking to execute sale deed whenever required.
(b) An Irrevocable General Power of Attorney by the vendor in favour of the purchaser or his nominee authorizing him to manage, deal with and dispose of the property without reference to the vendor.
Or A General Power of Attorney by the vendor in favour of the purchaser or his nominee authorizing the attorney holder to sell or transfer the property and a Special Power of Attorney to manage the property.
(c) A will bequeathing the property to the purchaser (as a safeguard against the consequences of death of the vendor before transfer is effected).
It was also observed that these transactions are not to be confused or equated with genuine transactions where the owner of a property grants a power of Attorney in favor of a family member or friend to manage or sell his property as he is not able to manage the property or execute the sale, personally. These are transactions where a purchaser pays the full price but instead of getting a deed of conveyance gets a SA/GPA/WILL as a mode of transfer either at the instance of the vendor or at his own instance.
14. The Supreme Court after considered relevant provisions of the Transfer of Property Act, 1882(hereinafter referred to as "the Act") to examine validity and legality of SA/GPA/WILL transactions. Section 5 of the Act defines transfer of property reads as under:-
Transfer of Property defined : In the following sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself or to himself and one or more other living persons; and "to transfer property" is to perform such act.
Section 54 of the Act defines sales and reads as under:-
"Sale" defined.--''Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made.--Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a CS 76456/15 RAHISUDDIN VS. FATIMA & OTHERS 10/24 registered instrument.
In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale.--A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property.
Section 53A of the Act defines part performance and reads as under:-
Part Performance. - Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract :
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
15. The Supreme Court also referred other relevant legal provisions. Section 27 of the Indian Stamp Act, 1899 casts upon the party, liable to pay stamp duty, an obligation to set forth in the instrument all facts and circumstances which affect the chargeability of duty on that instrument. Article 23 prescribes stamp duty on Conveyance. Section 17 of the Registration Act, 1908 makes a deed of conveyance compulsorily registrable. The Supreme CS 76456/15 RAHISUDDIN VS. FATIMA & OTHERS 11/24 Court considered Scope of an Agreement of sale and observed that Section 54 makes it clear that a contract of sale i.e. an agreement of sale does not create any interest in or charge on property and referred Narandas Karsondas V S.A. Kamtam and another, (1977) 3 SCC 247 wherein it was observed that a contract of sale does not of itself create any interest in or charge on the property as expressly declared in Section 54 of the Act. Regarding protection under section 53A of the Act the Supreme Court referred Rambhau Namdeo Gajre V Narayan Bapuji Dhotra, 2004 (8) SCC 614 wherein it was held under:-
Protection provided under Section 53A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party.
The Supreme Court held that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed) and in absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of the Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of the Act). An agreement of sale whether with possession or without possession is not a conveyance. Section 54 of the Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter. The Andhra High Court in Gaddam Laxmaiah and others V The Commissioner and Inspector General, Registration and Stamps Department, WP No 20683/2012 and WP No 2192/ 2013 decided on 30 th April, 2013 observed that the transfer of property from one person to another is governed by different statutory enactments. The Indian Contract Act, 1872, the Specific Relief Act, 1963 and the Transfer of Property Act, 1882 are substantive laws governing transfer of property. The Indian Evidence Act, 1872, the Registration Act, 1908 and the Indian Stamp Act, 1899 are the procedural or adjutant laws which also govern the transactions involving transfer of CS 76456/15 RAHISUDDIN VS. FATIMA & OTHERS 12/24 immovable property. Section 54 of the Transfer of Property Act, 1882 defined "sale" which made clear that a contract for the sale of immovable property does not by itself create any interest or charge on such property. The Agreements to Sell dated 19.08.1991 as referred Ex. DW1/1 in affidavit Ex. DW1/A submitted by the defendant no 1 stated to be executed by Sukhe Mistri in favor of the defendant no1 does not confer any right, title or interest in respect of the suit property.
16. The defendant no 1 to claim ownership of the suit property also relied on General Power of Attorney dated 19.08.1991 as referred Ex. DW1/1 in affidavit Ex. DW1/A stated to be executed by Sukhe Mistri in favor of the defendant no 1. A Power of Attorney may be General Power of Attorney whereby the principal grants the Power of Attorney holder all such powers which are necessary to accomplish the objects for which such Power of Attorney is given and Special Power of Attorney whereby the principal wants the Power of Attorney holder to exercise only such powers as are specified in the Power of Attorney deed. The Supreme Court regarding scope of Power of Attorney in Suraj Lamp & Industries Private Limited V State of Haryana & another, Special Leave Petition (C) No 13917 of 2009 decided on 11th October, 2011 held that a power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him as per sections 1A and section 2 of the Powers of Attorney Act, 1882. It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. The decision in State of Rajasthan V Basant Nehata , 2005 (12) SCC 77 was referred wherein it was observed that a grant of power of attorney is essentially governed by Chapter X of the Contract Act. A deed of power of attorney is executed by the principal in favor of the agent. An attorney holder may execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor. The Andhra High Court in Gaddam Laxmaiah and others V The Commissioner and Inspector General, Registration and Stamps Department, WP No 20683/2012 and WP No 2192/ 2013 decided on 30th April, 2013 also took similar view. General Power of Attorneys dated 19.08.1991 stated to be executed by Sukhen Mistri in favor of the defendant no 1 does not confer any right, title and interest or ownership in respect of the suit property in favor of the defendant no 1.
CS 76456/15 RAHISUDDIN VS. FATIMA & OTHERS 13/24
17. The Supreme Court regarding validity of transaction through General Power of Attorney, Agreement to Sale and Will in Suraj Lamp & Industries Private Limited V State of Haryana & another, Special Leave Petition (C) No 13917 of 2009 decided on 11th October, 2011 concluded that a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. It was reiterated that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. It was held as under:-
Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property.
They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.
It has been submitted that making declaration that GPA sales and SA/GPA/WILL transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularize the transactions by obtaining deeds of conveyance. It is also submitted that this decision should be made applicable prospectively to avoid hardship.
We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WILL transactions are not `transfers' or `sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale.
The defendant no 1 as such on basis of General Power of Attorney, Agreement to Sell and receipt dated 19.08.1991 cannot claim any ownership in respect of the suit property.
18. The Supreme Court regarding scope of Will in Suraj Lamp & Industries Private Limited V State of Haryana & another, Special Leave Petition (C) No 13917 of 2009 CS 76456/15 RAHISUDDIN VS. FATIMA & OTHERS 14/24 decided on 11th October, 2011 observed that a Will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivos. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator. The defendant no 1 also alleged that her father in law Late Hakim Ali @ Sukhe Khan also executed registered Will dated 19.08.1991 Ex. DW2/A in her favor in respect of the suit property. Hakim Ali @ Sukhe Khan is already expired and there is no evidence that Late Hakim Ali @ Sukhe Khan during his life time revoked Will dated 19.08.1991 Ex. DW2/A. The plaintiff pleaded that documents stated to be executed by Late Hakim Ali @ Sukhe Khan are forged and fabricated but there is no evidence that Will dated 19.08.1991 is forged and fabricated.
19. The perusal of Will dated 19.08.1991 Ex. DW2/A reflects that it was executed by Sukhe Mistri son of Ida (Late Hakim Ali @ Sukhe Khan was referred and mentioned as Sukhe Mistri) in favor of the defendant no 1 whereby Late Hakim Ali @ Sukhe Khan bequeathed the suit property (referred as E-72, Gali no 11, Shastri Park, Delhi-110053) in favor of the defendant no 1 voluntarily and without any force. The relevant portion of Will dated 19.08.1991 Ex. DW2/A is reproduced verbatim as under:-
Whereas I (testator) am the actual owner and in possession of a property bearing no. E-72, a piece of land measuring 50 sq. yards consisting of two rooms, verandah fitted with Elect (sic) & hand pump situated at Vill. Ghonda Chohan Khadar in abadi of Gali no 11, Shastri Park, Delhi.
Whereas I (testator) do hereby bequeath that after my death the abovesaid property shall go and devolve to Smt. Fatima Begum w/o Islamuddin resident of E-72, Gali no.11, Shastri Park, Delhi. She shall be the sole and absolute owner of the above said property and there is no any claimant except the above said beneficiary.
This deed of Will is executed by me in full sense without any pressure, coercion, undue influence from any kind of others executed voluntarily.
20. There is no codified law regarding execution of Wills by Muslims. It can be made as per their religious texts. The Muslim law of Wills is not uniform and there are differences amongst the Shias and the Sunnis relating to Will. Muslim testamentary succession is entirely governed by the Muslim Personal Law which covers the powers to make Will, the nature of Will, the execution procedure, conditions of validity etc. The term Wasiyat means CS 76456/15 RAHISUDDIN VS. FATIMA & OTHERS 15/24 an endowment with the property of anyone after death. The making of a Wasiyat is not subject to any formalities. It can be made orally and no writing is required under law. A Will must be made with free consent. A Will made under compulsion or mistake is invalid. Mohammedan law does not make any exception as to the competency to receive a bequest except in the case of an apostate (a former Muslim who has renounced Islam) and a murderer of the testator. Any person who is capable of holding property may be made a beneficiary. The estate of a Mohammedan testator vests in the executor from the time of the testator's death. The option of revocation or modification of the Will is available to the testator at any point during his lifetime. The essential condition for a valid Will in Muslim law is that only property with absolute ownership of the testator can be bequeathed. A bequest which is contingent, or conditional or in the future or is alternative to another, pre- existing one, would be void. The whole estate of a deceased Mohammedan if he has died intestate or so much of it as has not been disposed of by Will, if he has left a Will devolves on his heirs at the moment of his death. Under Muslim Law every adult Muslim of sound mind can make a will. Wills may be made by both males and females. A Muslim cannot by Will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Mohammedan law does not allow him to show any undue preference towards any particular heir and a bequest to some of his heirs without the consent of the other heirs will be altogether invalid. The policy of the law requiring consent of other heirs, when a bequest to an heir is made, is to prevent the testator from interfering by Will with the course of devolution of property according to law among his heirs. The reason is that a bequest in favor of an heir would be an injury to the other heirs, as it would reduce their share, and would consequently induce a breach of the ties of kindred. A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator. The bequest in excess of the legal third cannot take effect unless the heirs consent thereto after the death of the testator. Bequeaths in excess of the bequeathable one-third and/or in favor of any heir, are validated and will be given effect to, if after the death of the testator, the heirs whose rights are affected by such dispositions consent thereto expressly or impliedly. The consent of other heirs would validate a Will. The entire Will would be binding on all heirs. A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator.
21. The Supreme Court in Shehammal V Hasan Khani Rawther & Others, 2011(4) CTC 790 held as under:-
CS 76456/15 RAHISUDDIN VS. FATIMA & OTHERS 16/24 Paragraph 118 of Mulla's "Principles of Mohammedan Law"
embodies the concept of the limit of testamentary power by a Mohammedan. It records that a Mohammedan cannot by Will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of one- third cannot take effect unless the heirs consent thereto after the death of the testator. The said principle of testamentary disposition of property has been the subject matter of various decisions rendered by this Court from time to time and it has been consistently stated and reaffirmed that a testamentary disposition by a Mohammedan is binding upon the heirs if the heirs consent to the disposition of the entire property and such consent could either be express or implied. Thus, a Mohammedan may also make a disposition of his entire property if all the heirs signified their consent to the same. In other words, the general principle that a Mohammedan cannot by Will dispose of more than a third of his estate after payment of funeral expenses and debts is capable of being avoided by the consent of all the heirs. In effect, the same also amounts to a right of relinquishment of future inheritance which is on the one hand forbidden and on the other accepted in the case of testamentary disposition.
A Division Bench of Madras High Court in Noorunissa alias Pichamma V Rahaman Bi and others, 2001 (3) MLJ 141 it observed as under:-
In Chapter XXIII of Mohammedan Law of Wills Second Edition 1965, by T.R.Gopalakrishnan, under the head "Limits of testamentary power in Mohammedan Law, it has been commented that the power of Mohammedan to dispose of by Will is circumscribed in two ways and the first limit is to the extent. A Mohammedan can validly bequeath only one third of his net assets, when there are heirs. This rule is based on a tradition of the prophet and the Courts in India have enforced the rule from early times. The object of the rule is to protect the rights of the heirs and where there is no heirs and when all the heirs agree and give their consent the one-third limit may be exceeded. While the rule is that a Muslim can bequeath only one-third of his assets, a bequest in excess of one-third is rendered valid by consent of the heirs whose rights are infringed thereby or where there are no heirs at all.
The same principle was followed in Asma Beevi and another V M. Ameer Ali and others , 2008(6) MLJ 92; Sajathi Bi V Fathima Bi and others, AIR 2002 Madras 484 and In re: Begum Shanti Tufail Ahmad Khan, AIR 2006 Allahabad 75. The Madras High Court in A. Inayathullah V Zulaikha Begum (Deceased), A.S.No.935 of 2005 decided on 27th March, 2013 observed as under:-
In view of the Mohammedan Law the bequest by a Mohammedan in CS 76456/15 RAHISUDDIN VS. FATIMA & OTHERS 17/24 excess to his 1/3rd estate should be accepted by other heirs. But there is no pleading nor evidence recorded on behalf of the contesting defendants whether any consent was given or not. Even though it is pleaded by 1st defendant that though the document Ex.B-1 has been captioned as "Last Will and Testament" it is virtually a family settlement. It is nowhere pleaded in the statement that for Ex.B.1 all the heirs expressed their consent. Neither the second defendant/D.W.1 has stated in his evidence that Ex.B-1 Will received consent of all the heirs nor D.W.2 who is attestor to Ex.B-1, nobody has been brought to box to say about the consent given by all the heirs for execution of Ex.B-1. In this context, the Will Ex.B.1 has no legal force.
The Gauhati High Court in Rijia Bibi & others V Abdul Kachem & another, R.S.A No. 40 of 2002 decided on 02nd January, 2013 considered substantial question of law whether the court below erred in decreeing the suit of the plaintiff-respondents by holding that the Will executed by late Abdul Khalaque was void in operative being opposed to the provisions of the personal law of the parties? The High Court relied on section 118 of the Mulla's Principles of Mahomedan Law which reads as under:-
118. Limit of testamentary power. -- A Mahomedan cannot by Will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of the legal third cannot take effect unless the heirs consent thereto after the death of the testator (e).
It was observed as under:-
Under Muslim law, a Will or 'wasiwaat', is a legal declaration of the intention of a Muslim, in respect of his property he intends, to be made effective after his death. Every adult Muslim of sound mind can make a Will or 'wasiwaat'. Such a Will may either orally or in writing, and though in writing, it does not require to be signed or attested. No particular form is necessary for making a Will or 'Wasiwaat' if the intention of the testator is sufficiently ascertained. Though oral Will is possible, the burden to establish an oral Will is very heavy and the Will should be proved by the person who asserts it with utmost precision and with every circumstance considering time and place. The person making Will, must be competent to make such Will. The legatee must be competent to take the legacy or bequest. The subject and object of the Will must be valid one under the purview of the Muslim law and the bequest must be within the prescribed limit. The property bequeathed should be in existence at the time of death of the testator, even if it was not in existence at the time of execution of the Will. The limitation to exercise the testamentary power under Muslim law is strictly restricted up to one CS 76456/15 RAHISUDDIN VS. FATIMA & OTHERS 18/24 third of the total property so that the legal heirs are not deprived of their lawful right of inheritance. A Muslim cannot bequest his property in favour of his own heir, unless the other heirs consent to the bequest after the death of the testator. The person should be legal heir at the time of the death of the testator. The consent by the heirs can be given either expressly or impliedly. If the heirs attest a Will and acquiesce in the legatee taking possession of the property bequeathed, this is considered as sufficient consent. Any consent given during life time of the testator is not valid consent. It must be given after the death of the testator. If the heirs do not question the Will for a very long time and the legatees take and enjoy the property, the conduct of heirs will amount to consent. If some heirs give their consent, the shares of the consenting heirs will be bound and the legacy in excess is payable out of the shares of the consenting heirs. When the heir gives his consent to the bequest, he cannot rescind it later on.
Will executed by the deceased Abdul Khalaque was held to be invalid and it was void and inoperative.
22. Late Hakim Ali @ Sukhe Khan executed Will dated 19.08.1991 Ex.DW2/A in writing out of his free consent in favor of the defendant no 1 and there is no evidence that Late Hakim Ali @ Sukhe Khan executed Will dated 19.08.1991 Ex.DW2/A under compulsion or mistake. The suit property was under absolute ownership of Late Hakim Ali @ Sukhe Khan and as such can be bequeathed. The bequest in terms of Will dated 19.08.1991 Ex.DW2/A was not contingent or conditional. There is no evidence that Late Hakim Ali @ Sukhe Khan was not in sound disposing mind at the time of execution of Will dated 19.08.1991 Ex.DW2/A. Late Hakim Ali @ Sukhe Khan however executed Will dated 19.08.1991 Ex.DW2/A in respect of his entire immoveable property which is more than one third of his estate. Mohammedan law does not allow to bequest his entire properties in favor of one legal heir without the consent either expressed or implied of the other heirs.
23. Consent is voluntary acquiescence of act of others. It is an act of reason and deliberation. A person who possesses and exercises sufficient mental capacity to make an intelligent decision demonstrates consent by performing an act recommended by another.
Consent assumes a physical power to act. It is unaffected by fraud, duress etc. Express consent is given either in writing or orally. It is clear and direct. Implied consent is based on inference drawn from the conduct of the parties. Implied consent occurs through the actions or conduct of the parties rather than direct communication through words. It is inferred from signs, actions, or facts, or by inaction or silence.
CS 76456/15 RAHISUDDIN VS. FATIMA & OTHERS 19/24
24. There is no evidence to prove that surviving legal heirs of Late Hakim Ali @ Sukhe Khan i.e. the plaintiff and the defendant no 2 to 6 other than the defendant no 1 expressly consented in favor of the defendant no 1 after death of Hakim Ali @ Sukhe Khan for bequeath of entire suit property. Issue which needs consideration is that whether other legal heirs of Late Hakim Ali @ Sukhe Khan impliedly consented to bequest of suit property in more than 1/3rd share by implied consent. Although this issue is not controversy between the parties but it is duty of the court to find the truth which is foundation of justice. The entire journey of the judicial process is to find the truth from the pleadings, documents and evidence of the parties. Truth is the basis of the justice. The Supreme Court in A.S. Narayana Deekshitulu V State of A.P., (1996) 9 SCC 548 observed that from the ancient times, the constitutional system depends on the foundation of truth. In Zahira Habibullah Sheikh V State of Gujarat, (2006) 3 SCC 374 it was observed that right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The Supreme Court in Dalip Singh V State of UP, (2010)2SCC114 observed that truth constituted an integral part of the justice delivery system. In Maria Margarida Sequeria Fernandes V Erasmo Jack de Sequeria, (2012)5SCC370, it was observed that the truth should be guiding star in the entire judicial process. Truth alone has to be the foundation of justice. This view was reiterated in A. Shanmugam V Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, (2012)6SCC430.
25. Late Hakim Ali @ Sukhe Khan executed Will dated 19.08.1991 Ex. DW2/A in year of 1991 and he died in year 1992. The plaintiff filed present suit in year 2013. The defendant no 3 to 6 who are legal heirs of Jamila, the deceased daughter of Late Hakim Ali @ Sukhe Khan preferred not to contest present suit. The defendant no 2 only pleaded that she was residing in the suit property even after marriage but this plea is not supported by evidence. The plaintiff also not pleaded that that the defendant no 2 was residing in the suit property even after her marriage. Admittedly the defendant no 1 filed a suit for permanent injunction titled as Fatima V Nisara and others bearing no 159/2011 in which the plaintiff was one of the parties. The defendant no 1 in said suit claimed ownership in respect of the suit property on basis of General Power of Attorney, Agreement to Sell, Receipt dated 19.08.1991 and Will dated 19.08.1991 Ex. DW2/A but validity of Will dated 19.08.1991 Ex. DW2/A was not disputed or objected by the plaintiff. It is also apparent that Nisara, mother of the plaintiff filed a suit for injunction against the defendant no 1 and thereafter CS 76456/15 RAHISUDDIN VS. FATIMA & OTHERS 20/24 Nisara also filed a complaint against the defendant no 1 which was compromised in Delhi Govt. Mediation Centre vide settlement dated 01.04.2011 Ex. PW1/4. In these proceedings validity of Will dated 19.08.1991 Ex. DW2/A was not disputed or objected. The cross examination of the plaintiff is also important to infer implied consent of the plaintiff. The plaintiff in cross examination deposed that he was living in the suit property at the time of death of Late Hakim Ali @ Sukhe Khan and the plaintiff was having cordial relations with Late Hakim Ali @ Sukhe Khan. The plaintiff is living in the suit property since childhood. No quarrel took place with defendant no. 1 in respect of partition of the suit property. The plaintiff admitted that defendant no. 1 in year 2011 claimed her to be the owner of the suit property and the plaintiff never claimed any share in the suit property before year 2011. He had signed on the compromise Ex.PW1/4 after understanding its contents which was explained to him in Hindi. The plaintiff came to know about the documents in favor of defendant no. 1 after the death of his mother namely Nisara. The plaintiff did not file any case for cancellation of the alleged forged documents nor made any police complaint. The plaintiff denied suggestion that the defendant no.1 had purchased the suit property from her father in law i.e. Late Hakim Ali @ Sukhe Khan on the basis of genuine documents or that the plaintiff had knowledge about these documents. The cross examination of the plaintiff proved that the plaintiff was having knowledge of documents dated 19.08.1991 including Will dated 19.08.1991 Ex. PW2/A much before filing present suit. The plaintiff did not raise any objection regarding documents dated 19.08.1991 included Will dated 19.08.1991 Ex. DW2/A executed by Late Hakim Ali @ Sukhe Khan in favor of the defendant no 1. It is proved from critical and analytical analysis of pleadings and evidence on record that the plaintiff and the defendant no 2 to 6 by their conduct, inaction and silence impliedly consented to bequest of entire suit property by Late Hakim Ali @ Sukhe Khan in favor of the defendant no 1. The defendant no 1 became owner of the suit property on basis of Will dated 19.08.1991 Ex. DW2/A. The plaintiff is not entitled for any share in the suit property. Issue no 1 and 3 are decided in favor of the defendant no 1 and against the plaintiff.
ISSUE NO 2 Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPD
26. Section 37(2) of the Specific Relief Act, 1963 lays down that a permanent injunction can only be granted by a decree at the hearing and upon the merits of the case. In simple CS 76456/15 RAHISUDDIN VS. FATIMA & OTHERS 21/24 words, for obtaining a permanent injunction, a regular suit is to be filed in which the right claimed is examined upon merits and finally, the injunction is granted by means of judgment. A permanent injunction therefore finally decides the rights of a person whereas a temporary injunction does not do so. A permanent injunction completely forbids the defendant to assert a right which would be contrary to the rights of the plaintiff specifies certain circumstances under which permanent injunction may be granted. Section 38 reads as under:-
38. Perpetual injunction when granted.--
(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:--
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
27. The plaintiff pleaded and deposed that Late Hakim Ali @ Sukhe Khan was owner of the suit property and died intestate in year 1992 leaving behind two sons namely Rahisuddin i.e. the plaintiff and Islamuddin and two daughters namely Rahisa i.e. the defendant no 2 and Jamila. The plaintiff is occupying portion of ground floor as shown in green color in site plan Ex. PW1/1. The plaintiff prayed that the defendant no 1 be restrained from taking forceful possession of the portion of ground floor of the suit property as shown in green color in site plan Ex. PW1/1 and from selling, transferring, alienating, disposing of and creating third party interest either by sell or subletting, assigning or parting with possession of the suit property without giving due share of the plaintiff. The plaintiff to show his possession relied on copies of ration card Ex. PW1/2 and Adhar Card Ex. PW1/3. The plaintiff in cross examination deposed that he is residing on portion of ground floor measuring 20 sq. yards along with family and denied suggestion that he has fabricated ration card to show his possession prior to the year 2011 in the suit property or that he entered in the suit property on day of death of his mother and prior to CS 76456/15 RAHISUDDIN VS. FATIMA & OTHERS 22/24 that he was not residing in the suit property. The defendant no.1 stated that the plaintiff at time of death of his mother on pretext to perform her last rituals forcibly and illegally occupied one room of ground floor as trespasser without consent and permission of the defendant no 1. It is proved that at time of institution of present suit the plaintiff was in possession of portion of ground floor of the suit property as shown in green color in site plan Ex. PW1/1 and still the plaintiff is in possession of said portion. The plaintiff cannot be dispossessed from portion of ground floor of the suit property as shown in green color in site plan Ex. PW1/1 without following procedure established by law. However the defendant no 1 is owner of the suit property in pursuance of Will dated 19.08.1991 Ex. DW2/A and as such the defendant no 1 cannot be restrained from creating third party interest by selling, transferring, alienating, subletting, assigning or parting with possession of the suit property. The issue no 2 is decided accordingly ISSUE NO 4 Whether the plaintiff has undervalued the suit property for the purposes of pecuniary jurisdiction? OPD-1
28. The defendant no 1 alleged that the plaintiff has not paid requisite court fee and undervalued the suit as value of the suit property is more than Rs.20,00,000/. The plaintiff as PW1 in cross examination denied suggestion that value of the suit property is more than Rs.30,00,000/. The defendant did no lead appropriate evidence to prove that how the suit is undervalued. The defendant no 1 moved an application under section 151 CPC which was treated as filed under Order VII Rule 11 CPC by alleging that the plaintiff has not valued the suit property for purposes of court fee and jurisdiction as market value of the suit property is more than Rs. 30,00,000/ which was dismissed vide order dated 24.09.2013 by observing that the defendant no 1 can prove that the suit is not valued properly by leading appropriate evidence. The burden was on the defendant no 1 to prove that the plaintiff has undervalued suit property for purpose of pecuniary jurisdiction which the defendant no 1 could not discharged. Issue no is decided in favor of the plaintiff and against the defendant no 1.
ISSUE NO.5
RELIEF
CS 76456/15 RAHISUDDIN VS. FATIMA & OTHERS 23/24
29. The plaintiff could not prove that he is entitled share in the suit property. In view of findings on issue no 1 and 3 suit is dismissed. However the defendant no 1 is restrained from dispossessing the plaintiff from portion as shown in green color in site plan Ex. PW1/1 without following procedure established by law. The plaintiff and the defendants shall bear their own cost. Decree sheet be prepared accordingly. File be consigned to record room.
ANNOUNCED IN THE OPEN
COURT ON 19TH OCTOBER, 2020
(DR. SUDHIR KUMAR JAIN)
PRINCIPAL DISTRICT AND SESSIONS JUDGE
Digitally signed NORTH EAST
by Sudhir
Sudhir Kumar Jain
Location:
KARKARDOOMA COURTS, DELHI
Kumar Karkardooma
courts, Delhi
Jain Date:
2020.10.19
14:51:30 +0530
CS 76456/15 RAHISUDDIN VS. FATIMA & OTHERS 24/24