Delhi District Court
Sh Basant Misra vs Triveni Misra & Ors Page1/75 on 29 July, 2017
IN THE COURT OF SH. RAKESH KUMARIV, ADJ06
WEST DISTRICT,TIS HAZARI COURTS
CS No.607749/16
1. Sh Basant Misra
S/o Late Sh C P Misra
R/o 3, Jain Mandir Road,
New Delhi110001
2. Smt Anita Misra,
W/o Sh Basant Misra
R/o 3, Jain Mandir Road,
New Delhi110001
3. Ms Namrata Misra,
D/o Sh Basant Misra
R/o 3, Jain Mandir Road,
New Delhi110001
4. Ms Roopali Misra,
D/o Sh Basant Misra
R/o 3, Jain Mandir Road,
New Delhi110001
5. M/s Basant Misra(HUF)
through Sh Basant Misra(Karta)
R/o 3, Jain Mandir Road,
New Delhi110001 .........Plaintiffs
CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page1/75
Versus
1. Smt Triveni Misra
( LR's of defendant no 3 vide order dated 29.08.2007)
W/o Sh Jagdish Misra,
R/o 3, Jain Mandir Road, (part of first floor)
New Delhi110001
2. Ms Anjana Misra,
( LR's of defendant no 3 vide order dated 29.08.2007)
D/o Sh Jagdish Misra,
through father and natural guardian,
Sh Jagdish Misra,
R/o 3, Jain Mandir Road, (part of first floor)
New Delhi110001
3. Sh Jagdish Misra (expired on 18.05.2007)
S/o Lt Sh C P Misra
R/o 3, Jain Mandir Road, (part of first floor)
New Delhi110001
...... Defendants
Date of Institution:23.09.1993
Date reserved for judgment:17.07.2017
Date of Judgment:29.07.2017
JUDGMENT
1. By filing the present suit plaintiff seeking a decree of possession
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in his favour and against the defendants i.e defendant no 1 to 3 jointly
and severly qua the property i.e first floor of the property no. 3,
Jain Mandir Road, New Delhi110001 (herein after called
property in question or suit property) which is shown in red colour
in the site plan which is Ex PW1/1 and also prayed for preliminary
decree in favour of the plaintiff and against the defendant jointly and
severly mesne profit in respect to the property in question from the
date of suit and direct the inquiry into the mesne profit from the date
of institution of the suit i.e 23.09.1993 till the delivery of the
possession or till the reliquishment of possession on the ground that
the plaintiff and defendant no. 3 who are the son of Late Sh Chandi
Prasad Mishra and the property in question comprises of plot land
measuring approximately 841 sq yard together with the residential
building constructing on ground floor, first floor and barsati along
with garages and servants quarters.
It is contented that property in question was being purchased by
the mother of the plaintiff and defendant no. 3, namely Smt Revti
Devi w/o Late Sh Chandi Prasad Mishra on 27.03.1958 by virtue of
sale deed. It is contented that mother and father of the plaintiff and
defendant no. 3 had expired in the year 1978 and 1992 (09.03.1992)
respectively. It is contented that defendant no. 3 had been taken/ given
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in the adoption to Sh Panna Lal Kaushik who was the father in law of
the elder daughter of Late Sh Chandi Prasad Mishra in the year 1954
and was used to reside in Ahmedabad and till that time defendant no.
3 developed habit of excessive alcholism and general disrespect of
sister and brother in law in Ahmedabad and when gradually the
situation become worst and even defendant no. 3 failed to look after
his family. At the death of mother of the plaintiff and defendant no. 3
in the year 1978, the defendant no. 3 with his family came to Delhi
and he (defendant no.3) who had been allowed to reside on the first
floor of the property in question only on the premisive right to stay in
property in question as such status of the defendant no. 3 is or was in
the property in question his premisive occupant in the property in
question and Late Sh Chandi Prakash Mishra out of the love,
affection, relationship and sympathy used to give him the various
money for their upbringing and education. As such defendant no. 3 is
the black mark on the family of the plaintiff and defendant and
reputation of the family. It is contented that all the medical
expenditure and basic needs were borne by the plaintiff no. 1 till the
last time of the father of the plaintiff.
2. It is also contented that after the death of the father of the
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plaintiff, the plaintiff had applied the transfer of shares to M/s
Continental Construction Co. Ltd in his favour along with death
certificate of his father being the beneficiary thereof by virture of
registered Will dated 02.09.1988 in response to the letter dated
03.04.1992 was received from the said company requesting for
original shares certificate and probate of Will. Thereafter, plaintiff
was shocked to receive another letter dated 16.04.1992 informing the
plaintiff that company had also received alleged Will dated
05.02.1992 from the defendant no 1 and defendant no. 2 and 3 with
request to transfer the shares of the above said company.
After obtaining the copy of the Will dated 05.02.1992, the
plaintiff was surprised to know that the alleged Will dated 05.02.1992
also confrim and continue the reference to the first floor of the
property in question in favour of defendant no. 3 and it appears that
alleged Will has been executed by the father of the plaintiff and
otherwise it is invalid and also has been revoked and was under trial in
the probate case and FIR No. 189/92 pending before Ld ADJ. It is
also contented that prior to the death of the mother of the plaintiff
Smt Revti Devi, she executed a Will dated 18.08.1978 in favour of
the plaintiff and devolt all the property in question in favour of
the plaintiff and in favour of the father of the plaintiff. Therefore,
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plaintiff and father of the plaintiff applied to the L&DO for the
mutation of property in question in favour of the plaintiff in
accordance with the said Will. For the purpose of mutation L&DO
required the legal heirs to give affidavit confirming the said Will, so
that property in question can be converted/ transfered/ mutated in
favour of the plaintiff.
Immediate heirs namely husband Late Sh Chedi Prakash
Mishra, defendant no 3 (son), defendant no 1 (son), Ms Asha Sharma
(daughter), Ms Shara Kaushik (daughter) gave affidavit confirming
said Will conceeding no objection to the mutation of the property
in question in favour of the plaintiff and on the basis of death
certificates of the mother of the plaintiff, affidavits of the above
captioned legal heirs and Will dated 18.08.1978, L&DO mutated the
property in question in favour of the plaintiff and informed the
same by the letter no. 219/90(1B)/87/444 dated 16.06.1987.
Accordingly, the ownership of the plaintiff in the property in question
was recognised by way of mutation by the L&DO and the said
property has been treated as HUF property of plaintiff no. 5 in which
plaintiff is Karta. The plaintiff is absolute and exclusive owner and
in possession of the property in question inclusing terrace and
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garrage and defendant being the family member being allowed to
live in the house of the family of the plaintiff/ in the property in
question as such his possession is thus purely premisive under the
pleasure of plaintiffs. It is lastly contented that in view of the
execution of alleged Will dated 05.02.1992 where as alleged will
has been revoked by Late Sh Chandi Prakash Mishra by the
documents dated 07.02.1992 and when this fact came to the
knowledge of the plaintiff, the plaintiff asked the defendant to make
some other arrangements and vacate the property in question along
with their goods and no response has been given resulting into filing
the present suit.
3. On the other hand, defendant no. 1 has filed WS in which he
took preliminary objection that the plaintiff suit is undervalued for the
purpose and Court fees and defendant does not admit the right of Rs
30,000/p.m. as mesne profit, as per allegations and contents of the
plaintiff. Defendant no. 3 is infirm mind despite that plaintiff had not
been applied for the appointment of guardian of defendant no. 3,
hence suit could not be proceeded against defendant no. 3, plaintiff
has not approached to the Court with the clean hand. On merit all the
contents of the plaint has been denied.
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It is contented that defendants are and were in possession of the
entire first floor, terrace portion and the garage portion of the plot/
property in question and the defendant no. 1 had been exclusive
possession in the portion captioned above in the property in question
as the same has been bequeathed to her by Late Sh C P Mishra vide
registered Will dated 05.02.1992 and since the time of marriage of
defendant no. 1 with defendant no. 3 have been residing together
regularly. It is also contented that plaintiff would get issued a
commission ex parte and having fixed the date, time of the inspection
by the Local Commissioner will arrange the affairs in such manner
that Local Commissioner may make a report favourable to the plaintiff
in certain respects, the plaintiff is therefore required to prove the
contents of the plaint strictly.
It is further contented and denied that Smt Revti Devi mother of
plaintiff no. 1 and defendant no. 3 was the owner of the property in
question and contented further that deceased father in law of
defendant no. 1 and father of defendant no. 3, Late Sh C P Mishra was
actual and real owner of the property in question. The entire sale
consideration of the property in question had been paid by him. The
contents of the sale deed filed by plaintiff also indicate that the
amount of Rs 10,000/ paid by Late Sh C P Mishra referred in the
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deed itself, the remaining amount was to be paid by Late Sh C P
Mishra as such Late Sh C P Mishra had been real owner of the
property in question and he remained in property in question being the
owner. It is also contented and denied that mother in law of defendant
no. 1 and mother of defendant no.3 Smt Revti Devi executed any Will
dated 18.08.1978 in favour of the plaintiff or to the family member of
plaintiff no 1 and contented that the alleged Will is forged one. It is
also contented and denied that Sh Panna Lal Kaushik had adopted
defendant no. 3 however, it is admitted that plaintiff no. 1 and
defendant no. 3 are the son's of Late Sh C P Mishra and since the
marriage of defendant no. 1 with defendant no. 3 have been residing
together in the property in question. It is contented and denied that
Smt Revti Devi had executed Will in favour of the plaintiff and
specifically denied that Revti Devi was the absolute owner of the
property in question and property in question was self acquired
property of Smt Revti Devi, W/o Late Sh C P Mishra.
It is also contented that several time it had been declared that the
portion in which the family of defendant no. 1 with defendant no. 3
had been residing, will be belonged to defendant no. 1 and defendant
no. 3 and their children. It is contented that plaintiff had not been
residing in the property in question as alleged or contented in the
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plaint since long. Plaintiff/ they had been residing either in Bombay or
in abroad, they had been visiting Delhi only to meet Late Sh C P
Mishra and to collect money from him on one pretext or the other by
making misrepresentation etc. It is also contented that wife
( defendant no. 1) of defendant no.3 used to serve her father in law
and defendant no. 3 who had been residing with defendant no. 3 and
had been looking after him to the extent to the person of the weak
mind would be able to look after. It is denied that Late Sh C P Mishra
was ever disappointed with the behaviour and conduct of defendant
no. 3, as well as the defendant no. 3 was alcoholic. It is also denied
that assets of the family were wasted by defendant no. 3 and defendant
no. 3 had never managed the business at Ahmedabad. Defendant no. 3
had executed power of attorney dated 16.02.1968 in favout of Sh
Kanhaiya Lal Kaushik and lastly it is denied that relation between
defendant no. 1 and Late Sh C P Mishra were not cordial infact Late
Sh C P Mishra wanted to protect defendant no. 3 as per his mental
condition. Rest of the para of the plaint is also denied.
On behalf of defendant no. 3, WS also filed who also took
preliminary objection that the suit is liable to be dismissed as plaintiff
has not come to the Court with clean hand as with ulterior and
malafide motive gave the address of property in question whereas the
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plaintiff has never been residing at the relevant period. It is contented
that even in probate case no. 33/94, which the plaintiff no 1 filed
sometime in August 1994, plaintiff gave the address as "R/o Cliff",
No.11, M.L. Dhanukar Marg, Bombay 400008, suit is not
maintainable against defendant no. 2 as filed against the minor even
filed any application for appoitment of guardian of defendant no. 2.
The other preliminary objection and reply on merit are as similar as to
averment has been mentioned, in the same manner, as defendant no. 1
took objection and replied in her WS.
4. Replication filed on behalf of plaintiff to the WS of the
defendant in which all the contents of the plaint reiterated and denied
the contents and allegations made in the WS.
5. Upon completion of pleadings vide order dated 08.08.2002, the
following issues are framed :
(i) Whether suit property was purchased by Smt
Revti Devi under sale deed dated 27.03.1958 as
alleged?
(ii) Whether defendant no. 3 was taken in adoption
in or around 1954 by Pannalal Kaushik? If so, its
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effect?
(iii) Whether Smit Revti Devi bequeathed the
suit property to the family of plaintiff no. 1
under Will dated 18.08.1978?
(iv) Whether defendants were allowed to
occupy the suit property after the death of Smt
Revti Devi in December 1978, as alleged?
(v) Whether the suit is undervalued?
(vi)Wherther defendants are in occupation of
accomodation over and above the portion shown
in the site plan annexed with plaintiff?
(vii) Whether Sh C P Misra was the owner of
suit property as alleged in WS of defendant no.
1?
(viii) Whether Sh CP Misra bequeathed the suit
property in favour of defendant no 1 & 2 as
alleged?
(ix) Whether Will was revoked by Sh C P Misra
by documents dated 07.02.1992 as alleged in
para 16 of plaint?
(x) Whether plaintiff is entitled to mesne
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profits ? If so, at what rate, for which period?
(xi) ISSUE NO. A : Whether plaintiff is entitled
for recovery of possession as prayed ? OPP
( framed today)
(xii) Relief.
6. In support of the case, plaintiff examined himself as PW1 Sh
Basant Misra by way of affidavit, PW2 Sh Ishwar Dass Kashyap,
PW3 Sh Avdhesh, PW4 Sh Mukesh Kumar Sharma, PW5 Sh Vikram
Dhokalia, PW6 Smt Asha Sharma, PW 7 Smt Sudha Srivastava
Saxena and on the request of plaintiff, evidence has been closed vide
order dated 22.02.2012.
7. In support of the case, defendant Smt Triveni Misra examined
herself as DW1 by way of affidavit, DW 2 Smt Anjana Misra, DW3
Sh Radhey Shyam and evidence has been closed vide order dated
06.09.2012.
8. I have heard the partied and perused the case file.
9. During the course of the day in the present case since it was
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pleaded/ admitted by the plaintiff in para no 4 of the plaint that
"defendant no 3 has tendency towards alcholism increased and
assumed obstruction and destruction proportion and he become
alcoholic which has been affect on all other matters including his
behaviour and as a result which he was rendered in such a state where
he could not either look after himself or his family not take any
rational decision."
Further in para no. 4 C "generally felt by the families that
the defendant no 3 had created a blank mark on the reputation and the
name of the family. Even after shifting to Delhi, defendant no 3
continue with his alcholic habits resulting in physical and mental
conditions, gradually further deterioated resulting into defendant
moved an application U/o 32 rule 15 CPC seeking appointment of
defendant no 1 as the guardian of defendant no 3 which was allowed
and subsequently it was challenged to the order of the appointment of
defendant no 1 as the guardian of defendant no 3 has been confirmed
in appeal vide order dated 15.02.1996 {FAO(OS) no. 109/95 }."
Further during the proceedings vide order dated 29.08.2007 it
was observed by my Ld Predecessor of this Court while allowing
defendant no 1 and 2 is the LR's of deceased defendant no 3 who had
been reported to be expired on 18.05.2007 which is as under :
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Defendant no. 2 Smt Anjana Mishra was minor at the time of
filing of suit and Sh Jagdish Mishra (defendant no 3) was
abated guardian ad litem by order dated 28.09.1993, IA no.
8475/93 till the disposal of application U/o 32 CPC and later
on this application IA no. 8475/93 was disposed vide order
dated 10.01.1994 while evoking earlier order dated
28.09.1993 and by appointing defendant no 1 Mrs Triveni
Mishra, guardian ad litem of defendant no 2.
Defendant no 3 Sh Jagdish Mishra has expired on
18.05.2007, the plaintiff has not preferred any application
under the provisions of Order 22 CPC but defendant no 1
and 2 submitted that they are the only legal representative/
heirs of deceased defendant no 3.
Considering the aspects of the case and
cirumstances as well as liability declared in Savitri Devi Vs
R S Bindra 1973 (1) ILR Delhi 98 that in the eventuality of
demise of one of the party, if the other party to the suit are
the legal representatives of such deceased, it does not
warrant any application U/o 22 CPC nor the suit can abate in
want of such application.
At the stage, the plaintiff's counsel appeared and
filed an application U/o 22 rule 4 CPC , copy of application
is given to the defendant no 1 and 2, reflecting the similar
circumstances discussed herein above but with a request that
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the defendant no 2 has attained her age of majority and
secondly, the defendant no 1 and 2 are also legal
representative of defendant no 3 and they may be impleaded
in his place, as right to sue survives in their favour, thus in
terms of aforementioned directions and facts brought in the
form of application U/o 22 rule 4 CPC, the name of the
defendant no 1 and 2 are also impleaded as legal
representative of the defendant no 3. The defendant no 2, on
her attaining majority will continue as an independent
defendant.
Here it is not out of mention to place here that further bare
perusal of the record it shows vide order dated 21.02.2009 it was
observed / apprised by the ld Predecessor that an application U/o 14
rule 5 r/w sec 151 CPC moved on behalf of plaintiff therefore, case
adjourned to the next date of hearing with further plaintiff evidence as
well as disposal of the application on 24.04.2009. On 24.04.2009,
reply to the application has been filed but thereafter, the application
has never been pressed by either of the party. In the application,
request has been made to strike down the issue no. 1 and 2 which had
been framed by the Hon'ble High Court of Delhi on 08.08.2002 ( Ld
Predecessor of the court).
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Since the application has never been preseed and the
written arguments as well as arguments have been addressed by the
both parties in respect to the issue no 1 and 2 hence, I am of the
considered view that the application has become infructuours and
accordingly disposed off. Here it is not out of mention to place here
that since the present case of the plaintiff is that the mother of the
plaintiff and defendant no 3 namely Smt Revti Devi earlier was the
owner and in possession of property in question as she has purchased
the same through registered sale deed dated 27.03.1958 and she had
executed the Will dated 18.08.1978, Ex PW1/8 or C1 in favour of
plaintiff on the basis of said Will and the NOC / affidavit of the other
legal heirs, the property in question has been mutated in favour of
plaintiff in the year 1987 by the L&DO. On the other hand, defence of
the defendant is that the mother of the plaintiff no 1 and defendant no
3 was no the some owner as the property was being purchased by Late
Sh C P Misra who was the father of plaintiff no 1 and defedant no 3 in
the name of his wife Smt Revti Devit as such property being Benami
was entered in the records of L &DO and infact the property is joint
family property. It is also contented that the Will Ex PW1/8 or C1
and the affidavit Mark C are forged and fabricated keeping in view the
averment made by the plaintiff in para no 4 A and C.
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In view of the above, I am of the considered view that
apart from other relief plaintiff is also seeking possession but the issue
in respect to the possesion has not been framed and in view of the
order 14 rule 5 CPC it would be appropriate to frame additional issue
qua entitlement of the possesion and no prejudice shall be caused to
the parties accordingly, an additional issue has been framed :
ISSUE NO. A : Whether plaintiff is entitled for recovery of
possession as prayed ? OPP
10. Before proceeded further here it is not out of mention to place
here that in the case/ judgment titled Adda Gada Raghavammpa &
Ors Vs Adda Gada Chenchamman & Ors 1964 AIR 136, 1964
SCR(2) 933, Hon'ble Apex Court has that "there is an essential
distinguish between the burdern to prove and onus to prove. Burden
of proce upon the person who has to prove the fact and it never shifts
but onus to prove shifts". Therefore, it is imperative on part of the
parties to establish their avernment made in respect to the particular
fact/ facts.
11. In the present case, the entire controversy revolves around the
execution as well as proof of Will dated 18.08.1978, Ex PW1/8 or C1
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and 02.09.1988. It is relevant to refer Section 63 of the Indian
Succession Act, 1925 and Section 68 of the Indian Evidence Act,
1872 which are as under:
Section 63 of the Indian Succession Act, 1925:
63. Execution of unprivileged Wills Every testator, not
being a soldier employed in an expedition or engaged in
actual warfara, [or an airman so emplyed or engaged,] or a
mariner at sea, shall execute his Will according to the
following rules:
(a) The testator shall sign or shall affix his mark to the
Will, or it shall be signed by some other person in his
presence and by his direction.
(b) The signature or mark of the testator, or the signature
of the person signing for him, shall be so placed that it shall
appear that it was intended thereby to give effect to the
writing as a Will.
(c) The Will shall be attested by two or more witnesses,
each of whom has seen the testator sign or affix his mark to
the Will or has seen some other person sign the Will, in the
presence and by the direction of the testator, or has received
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from the testator a personal acknowledgement of his
signature or mark, or the signature of such other person; and
each of the witnesses shall sign the Will in the presence of
the testator, but it shall not be necessary that more than one
witness be present at the same time, and no particular form
of attestation shall be necessary.
Section 68 of the Indian Evidence Act, 1872:
68. Proof of execution of document required by law to
be attested If a document is required by law to be attested,
it shall not be used as evidence until one attesting witness at
least has been called for the purpose of proving its
execution, if there be an attesting witness alive, and subject
to the process of the Court and capable of giving evidence:
3[provided that it shall not be necessary to call an attesting
witness in proof of the execution of any document, not
being a Will, which has been registered in accordance with
the provisions of the Indian Registration Act, 1908 (16 of
1908), unless its execution by the person by whom it
purports to have been executed is specifically denied]
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In the case of H. Venkatachala Iyendar Vs. B.N Thimmajamma
[1959 Supp (1) SCR 426], the Apex Court laid down the true legal
position in the matter of proof of Wills, which was later on further
clarified by the Hon'ble Chandrachud J. in the case of Jaswant Kaur
Vs. Amrit Kaur [(1977) 1 SCC 369] in following terms:
"1. Stated generally, a will has to be proved like any other
document, the test to be applied being the usual test of the
satisfaction of the prudent mind in such matter. As in the case
of proof of other documents, so in the case of proof of wills,
one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will
to be attested, it cannot be used as evidence until, as required
by Section 68 of the Evidence Act, one attesting witness at
least has been called for the purpose of proving its execution,
if there be an attesting witness alive and subject to the
process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death
of the testator and therefore the maker of the will is never
available for deposing as to the circumstances in which the
will came to be executed. This aspect introduces an element
of solemnity in the decision of the question whether the
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document propounded is proved to be the last will and
testament of the testator. Normally, the onus which lies on
the propounder can be taken to be discharged on proof of the
essential facts which go into the making of the Will."
Cases in which the execution of the will is surrounded by
suspicious circumstances stand on a different footing. A
shaky signature, a feeble mind, an unfair and unjust
disposition of property, the propounded himself taking a
leading part in the making of the will under which he receives
a substantial benefit and such other circumstances raised
suspicion about the execution of the will. That suspicion
cannot be removed by the mere assertion of the propounder
that the will bears the signature of the testator or that the
testator was in a sound and disposing state of mind and
memory at the time when the will was made, or that those
like the wife and the children of the testator who would
normally receive their due share in his estate were
disinherited because the testator might have had his own
reasons for excluding them. The presence of suspicious
circumstances makes the initial onus heavier and therefore, in
cases where the circumstances attendant upon the execution
CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page22/75
of the will excite the suspicion of the court, the propounder
must remove all legitimate suspicion before the document
can be accepted as the last will of the testator.
It is in connection with will, the execution of which is
surrounded by suspicious circumstances that the test of
satisfcation of the judicial conscience has been evolved. That
test emphasises that in determining the question as to whether
an instrument produced before the court is the last will of the
testator, the court is called upon to decide the solemn
question and by reason of suspicious circumstances the court
has to be satisfied fully that the will has been validly
executed by the testator.
If a caveator alleges fraud, undue influence, coercion etc in regard to
the execution of the will, such pleas have to be proved by him, but
even in the absence of such pleas, the very circumstances surrounding
the execution of the will may raise a doubt as to whether the testator
was acting of his own free will. And then it is a part of the initial onus
of the propounder to remove all reasonable doubts in the matter.
(Emphasis supplied)
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12. To see whether this court can go into the question of title, the
settled preposition of law is required to be dealt with. The Hon'ble
Supreme court of India in case titled as Kanwaljeet Singh Dhillon Vs
Hardayal Singh Dhillon and Ors (2007) 11 SCC 357 has observed "it
is well settled that the function of a probate court are to see that the
will executed by the testator was actually executed by him in a sound
disposing state of mind, without coercion of undue influence and the
sme was duly attested. It was, therefore, not competent for the Probate
Court to determine whether Late S K had or had not the authority to
dispose of the suit properties which he purported to have bequeathed
by his will. The Probate court is also not competent to determine the
question of title to the suit properties nor can it go into the question
whether the suit properties bequeathed by the will were joint ancestrol
properties or acquired properties or the testator."
It is further observed that in view of the judgment of Hon'ble
Supreme court of India in case titled as Kanwaljeet Singh Dhillon Vs
Hardayal Singh Dhillon and Ors (supra). This court is competent to
decide the question with respect to right, title and interest in the suit
property. The Probate court has to decide only regarding the
genuineness of the Will for which a probate petition has been filed.
The Probate court cannot go into the rights of the person who has
CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page24/75
executed the Will, whether he was having right or not to execute the
Will regarding the suit property.
To adjudicate the question of right, title and interest of the
parties the evidence on record has to be appreciated.
13. Prior to proceed further here it is important to consider that in
the matter of Sunny (Minor) and Ors. Vs Raj Singh and Ors. CS
(OS) No. 431/2006 Hon'ble High Court in para no. 6 and 7 has held
that :
" At the outset, it is necessary to refer to the ratio
of the judgment of the Supreme Court in the case of
Yudhister Vs. Ashok Kumar, MANU/
SC/0525/1986 : (1987) 1 SCC 204 and in para 10 of
the said judgment the Supreme Court has made the
necessary observations with respect to when HUF
properties can be said to exist before passing of the
Hindu Succession Act, 1956 or after passing of the
Act in 1956. This para reads as under:
"10. This question has been considered by this
Court in Commissioner of Wealth Tax, Kanpur and
Ors. Vs. Chander Sen and Ors.
CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page25/75
MANU/SC/0265/1986 : [1986] 161ITR370 (SC)
where one of us (Sabyasachi Mukherji, J) observed
that under the Hindu Law, the moment a son is
born, he gets a share in father's property and become
part of the coparcenary. His right accrues to him not
on the death of the father or inheritance from the
father but with the very fact of his birth. Normally,
therefore whenever the father gets a property from
whatever source, from the grandfather or from any
other source, be it separated property or not, , his
son should have a share in that and it will become
part of the joint Hindu family of his son and
grandson and other members who form joint Hindu
family with him. This
Court observed that this
position has been affected by Section 8 of the
Hindu Succession Act, 1956 and, therefore, after
the Act, when the son inherited the property in
the situation contemplated by Section 8, he does
not ake it as Kar(ta) of his own undivided family
but takes it in his individual capacity. At page
577 to 578 of the report, this Court dealt with the
CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page26/75
effect of Section 6 of the Hindu Succession Act,
1956 and the commentary made by Mulla, 15th Edn.
Pages924926 as well as Mayne's on Hindu Law
12th Edition pages 918 to 919. Shri Banerji replied
on the said observations of Mayne on Hindu Law,
12th Edn. at pages 918919. This Court observed in
the aforesaid decision that the view expressed by the
Allahabad High Court, the Madras High Court the
Madhya Pradesh High Court and the Adhra Pradesh
High Court appeared to be correct and unable to
accept the view of the Gujrat High Court. To the
similar effect is the observation of learned author of
Mayne's Hindu Law, 12th Edn page 919. In that
view of the matter, it would be difficult to hold that
property which developed on a Hindu under section
8 of the Hindu Succession Act, 1956 would be
HUFin his hand visavis his own sons. If that be the
position then the property which developed upon the
father of the respondent in the instant case on the
demise of his grandfather could not be said to be HUF property. If that is so, then the appellant CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page27/75 authority was right in holding that the respondent was a licensee of his father in respect to the ancestral house".
7. (i) As the ratio of the Supreme Court in the case of Yudhishter (supra) after passing of the Hindu Succession Act, 1956 the position which traditionally existed with respect to an automatic right of a person in properties inherited by his paternal predecessorsininterest from the latter's paternal ancestors upto three degrees above, has come to an end. Under the traditional Hindu Law whenever a male ancestor inherited any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him had a right in that property equal to that of the person who inherited the same. Putting it in other words when a person 'A' inherited property from his father or grandfather or great grandfather then the property in his hand was not to be treated as a selfacquired property but was to be treated as an HUF property in which his son, grandson and great grandson had a right equal to 'A'. After passing of the Hindu Succession, 1956, this position has undergone a change and if a person after 1956 inherits a property from his paternal ancestors, the said property is not an HUF property in his hands and the property CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page28/75 is to be taken as a selfacquired property of the person who inherits the same. There are two exceptions to a property inherited by such a person being and remaining selfacquired in his hands, and which will be either an HUF and its properties was existing even prior to the passing of the Hindu Succession Act, 1956 and which Hindu Undivided Family continued even after passing of the Hindu Succession Act, 1956, and in which case since HUF existed and continued before and after 1956, the property inherited by a member of an HUF even after 1956 would be HUF property in his hands to which his paternal successorsininterest upto the three degrees would have a right. The second exception to the property in the hands of a person being not self acquired property but an HUF property is if after 1956 a person who owns a selfacquired property throws the self acquired property into a common hotchpotch whereby such property or properties thrown into a common hotchpotch become Joint Hindu Family properties/HUF properties. In order to claim the properties in this second exception position as being HUF/Joint Hindu Family properties/properties, a plaintiff has to establish to the satisfaction of the court that when (ie date and year) was a particular property or properties thrown in common hotchpotch and hence HUF/Joint Hindu Family created.
CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page29/75Further in the matter of Surender Kumar Vs. Dhani Ram and others reported as 227 (2016) Delhi Law Times 2017, Hon'ble High Court has held that"
5. The Supreme Court around 30 years back in the judgment in the case of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, 1986 (SLT Soft) 14 = (1986) 3 SCC 567, held that after passing of the Hindu Succession Act , 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees, automatically an HUF came into existence, no longer remained the legal position in view of Section 8 of the Hindu Succession Act, 1956. This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter followed by the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, 1986 (SLT Soft) 209= (1987) 1 SCC 204 wherein the Supreme Court reiterated the legal position that after coming into force of Section 8 of the Hindu Succession Act, 1956 inheritance of ancestral property after 1956 does not create an HUF property and inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property.
6. In view of the ratios of the judgments in the case of Chander Sen CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page30/75 (supra) and Yudhishter (supra), in law ancestral property can only become an HUF property if inheritance is before 1956 and such HUF property therefore which came into existence before 1956 continues as such even after 1956. In such a case, since an HUF already existed prior to 1956, thereafter, since the same HUF with its properties continues, the status of joint Hindu family/HUF properties continues, and only in such a case, members of such joint Hindu family are coparceners entitling them to a share in the HUF properties.
7. On the legal position which emerges pre 1956 ie before passing of the Hindu Succession Act, 1956 and post 1956 ie after passing of the Hindu Succession Act, 1956, the same has been considered by me recently in the judgment in the case of Sunny (Minor) & Anrs. Vs Sh. Raj Singh & Ors., 225 (2015) DLT 211 = CS (OS) No. 431/2006 decided on 17.11.2015. In this judgment, I have referred to and relied upon the ratio of the judgment of the Supreme Court in the case of Yudhishter (supra) and have essentially arrived at the following conclusions:
(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of the death of such a CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page31/75 person, inheritance of an immovabe property of such a person by his successorsininterest is no doubt inheritance of an 'ancestral' property but the inheritance is as a selfacquired property in the hands of the successors and not as an HUF property although the successor(s) indeed inherits 'ancestral' property I.e a property belonging to his paternal ancestor.
(ii) The only way in which a Hindu Undivided Family/joint Hindu family can come into existence after 1956 (and when a joint Hindu family did not exist prior to 1956) is if an individual's property is thrown into a common hotchpotch. Also, once a property is thrown into a common hotchpotch, it is necessary that the exact details of the specific date/month/year etc., of creation of an HUF for the first time by throwing a property into a common hotchpotch have to be clearly pleaded and mentioned and which requirement is a legal requirement because of Order 6 Rule 4, CPC which provides that all necessary factual details of the cause of action must be clearly stated. Thus, if an HUF property exists because of its such creation by throwing of self acquired property by a person in the common hotchpotch, consequently there is entitlement in coparceners, etc to a share in such HUF property.CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page32/75
(iii) An HUF can also exist if paternal ancestral properties are inherited prior to 1956, and such status of parties qua the properties has continued after 1956 with respect to properties inherited prior to 1956 from paternal ancestors. Once that status and position continues even after 1956; of the HUF and of its properties existing; a coparceners, etc will have a right to seek partition of the properties.
(iv) Even before 1956, an HUF can come into existence even without inheritance of ancestral property from paternal ancestors, as HUF could have been created prior to 1956 by throwing of individual property into a common hotchpotch. If such an HUF continues even after 1956, then in such a case a coparcener, etc of an HUF was entitled to partition of the HUF property.
14. My issuewise finding is as hereunder :
15. ISSUE NO 5 : Whether the suit is undervalued?
This issue has been framed on the basis of preliminary objection taken in the WS and since it is touch the maintainability of the suit, CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page33/75 hence taken firstly. Since it has been averted/objected by the defendant, hence defendant supposed to discharge the present issue, the defendant took objection that content and averment of the plaint leaves no doubt that it is substantive suit for recovery of possession, attracting the provision of suit valuation Act for the purpose of Court fees and jurisdiction. As per the submission made in the para no 22 of the plaint, the plaintiff contented that for the purpose of Court fees ad voleram court fees of Rs 7,274/ has paid. As the plaintiff's are not in joint possession and in any case in the part possession, for the purpose of jurisdiction and Court fees, the suit is valued of Rs 5,05,000/ only and in correspondance reply, in the WS it has not been objected that proper Court fees has not been paid while contented that "in so far as the Court fees is concerned, the same is matter of record. It is denied that plaintiff were and are in joint possesion or in part possession of the property in question. Even as per allegations made in the plaint, suit has not been properly valued and thus the suit could not be proceeded till such time plaintiff valued the suit property on the basis of averment made in plaint.
Since the onus has been casted upon the defendant but no contrary averment and deposition made in respect to the fact that how the suit is not properly valued, as in the present case Rs 5,05,000/ is CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page34/75 not the proper value, then what was the value of the suit property for which plaintiff may ask to pay the proper Court fees. Since plaintiff himself admitted that when defendant no. 1 came to Delhi, defendant no. 3 alongwith his family i.e defendant no. 1 and 2 were allowed to reside in the portion of property in question on the basis of premisive right hence,it is established that defenadant no 3 with his family i.e defendant no 1 and 2 has been residing in the part portion of the property in question and in absence of cogent evidence in the corroboration to the averment made in the plaint, the content of the plaint are deemed to be correct and it could not be said that suit is not properly valued for the purpose of Court fees and jurisdiction. Accordingly, issue no. 5 is decided in favour of plaintiff and against defendant.
16. ISSUE NO 1 : Whether suit property was purchased by Smt Revti Devi under sale deed dated 27.03.1958 as alleged?
Since it has been averted by the plaintiff, hence plaintiff supposed to discharge the onus of the present issue. It is specifically deposed in the para no. 4 of the plaint that property in question was purchased by the mother of the plaintiff and defendant no. 3 namely Smt Revti Devi CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page35/75 W/o Late Sh Chandi Prasad Mishra dated 27.03.1958 by virtue of Registered Sale Deed which is specifically mutated in the name of mother Smt Revti Devi through letter dated no./ allotment no. 4/90(INB)(60) dated 22.02.1962. In para no. 5 of plaint, it is also contented that property in question was the absolute and self acquired property of Smt Revti Devi till her death on 10.02.1978. It is contented that since property in question , the family consisting of parents namely Late Sh Chandi Prasad Mishra, his wife Smt Revti Devi, their son( plaintiff no. 1 and defendant no. 3 ) and daughter namely Asha Sharma and Sharda Kaushik.
This fact has been vehemently denied in WS of defendant no 1 and 3 that Smt Revti Devi was the owner of the property in question and contented that the deceased Late Sh Chandi Prasad Mishra was the actual and real owner of the suit property. The entire sale consideration had been paid by him. The content of sale deed filed by the plaintiff to indicate that the amount of Rs 10,000/ had been given by the Late Sh Chandi Prasad Mishra through cheque referred in the sale deed and the remaining amount was paid by Late Sh Chandi Prasad Mishra. It is contented that Smt Revti Devi was the simple housewife who was illiterate and can only sign her name. She had no business etc. Late Sh Chandi Prasad Mishra had been the real CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page36/75 owner of property in question and he remained in possession of property in question as owner only.
On this averment, plaintiff has examined himself as PW1 and during his examination in chief, he exhibited the certified copy of sale deed dated 27.03.1958 which is in favour of Smt Revti Devi and Ex PW1/1 and also filed original mutation record/ letter of L&DO Ex PW1/2. During cross examination of PW1 it is contented that "it is correct that my father has contributed Rs 10,000/ towards the sale consideration. It is correct that it is mention in the sale deed at page no. 3 that my father had contributed towards the sale consideration. The facts of the records are correct. I have not made any false statement intentionally.
On this testimony it is contented that since property was being purchased by the fund of Late Sh Chandi Prasad Mishra who was father of parties in favour of mother Smt Revti Devi hence, it is submitted by the defendant that property in question is the joint property for which plaintiff and defendant no. 1 and 3 are the co owner from the joint owner of property in question as such defendant no. 3 with his family i.e defendant no. 1 and 2 have been residing being the coowner of the property in question not being permisive right.
CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page37/75On the other hand, counsel for plaintiff contented that property in question has been purchased by the mother Smt Revti Devi as such she was the absolute owner and have full right to execute the Will, Ex PW1/8 or C1, dated 18.08.1978 has been executed in favour of plaintiff.
17. Since it is well settled law that the Hon'ble High Court of Delhi in the matter of Leena Mehta Vs. Vijaya Myne and Ors IA no. 3160/2009 in CS (OS) No. 2118/2006 decided on 09.11.2009, in para no. 9 & 10 held as follows:
9. A perusal of Section 3 (2) of the Act (the Benami Transaction (prohibition) Act) would show that the law presumes that if the property is purchased in the name of wife or unmarried daughter, the property has been purchased for benefit of the wife and unmarried daughter. It only means that if a property is purchased in the name of wife it is for her benefit and she becomes the absolute owner of the property. It does not mean that the property would still remain a benami CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page38/75 property of the husband and every other legal heir of the husband would have a share in the property. Section 14 of the Hindu Succession Act, 1956 makes it further abundantly clear that if any property is possessed by a female Hindu whether it is acquired before or after the commencement of Act it shall be held by her as full owner and not as a limited owner unless and until the instrument by which the property has been acquired prescribes a restriction on her ownership of such property.
In the present case, the conveyance deed executed by DDA was in the name of defendant no. 1, there was no restriction placed in the conveyance deed about the right of ownership of defendant no. 1. Defendant no.1 was absolute owner of the property in terms of the title deed in her favour. The property cannot be considered to be either of her husband or of anyone else after 31 years of execution of the title deed in her favour.
CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page39/7510. The present suit is a gross misuse of the judicial process and is liable to be dismissed with exemplary costs. The suit seems to have been filed with a malafide design of depriving defendant no. 4 of his right to get the specific performance of the agreement entered by defendant no. 1 with defendant no. 4. I consider the suit should be dismissed with heavy costs so that Courts are not used as a tool of harassment and to further malafide intentions by a litigant.
After taking into consideration the facts and circumstances as well as evidence led by the parties of the present case. I am of the considered view that since, in the present case, property in question has been purchased in the name of Smt Revti Devi who was the wife of Late Sh Chandi Prasad Mishra and the mother of plaintiff and defendant no. 3 and there is no restriction on her ownership as clear from the sale deed and conveyance deed dated 27.03.1958 which is Ex PW1/1 and also in the original mutated record/ letter of L&DO Ex PW1/2. Further nothing contrary came up on record which can CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page40/75 established that property in question was not being purchased for the benefit and welfare of Smt Revti Devi as such it can be said that the plea of ownership of Revti Devi is hit by the provision of Benami Transaction Act. Further in case Prem Singh & Ors Vs Birbal & Anr, 2006 (3) RLR (Civil) Hon'ble Supreme court held that " there is a presumption that the registered document is validitly executed the registered document , therefore prima facie would be valied in law. The onus of prove thus, would be in person who leads evidence to rebut the presumption. Further in Sant Ram Vs Brij Mohan Kaur, 2006(2) RCR (Civil) 769, Hon'ble Punjab and Haryana Court held that "registration certificate shall be presumed to be genuis unless the unimpeachable evidence is produced to the contrary. The registered document receipts and prove in evidence could not be simply ignored or conjectures and surmises by the Court. Similary in the receipt, Hon'ble Punjab and Haryana Court in Raj Kumar & Ors VS Hardwari & Ors, 2007(2) PCR (Civil) is held that " whosoever desire to give the judgment as to any legal right or liable depending on the existence of the fact/ he assert, must prove existence of such fact." On the absence of any such prove he would fail, the registration of the document is a solemn Act of registering valid. The registered sale deed woudl be prove of admission of receipt of consideration made before Registrar.
CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page41/75The burden of prove that no consideration was passed over to the vendor is upon the person who denies consideration.
Thus the onus was very heavy on the defendant to prove that the property was being purchased by Sh C P Misra from his own funds and not in the welfare of his wife but the property being the joint family property whichis otherwise defendant failed to prove. Hence, issue no.1 is decided in favour of plaintiff and against the defendant.
18. ISSUE NO 7: Whether Sh C P Misra was the owner of suit property as alleged in WS of defendant no 1?
Since it has been averted by the defendant no 1, hence defendant no 1 supposed to discharge the present issue. It has been specifically deposed that plaintiff/ PW1 that property in question was purchased on 27.03.1958 by his mother Smt Revti Devi by virtue of registered sale deed dated 27.03.1958, executed by Smt Malan Devi for total consideration of Rs 86,000/. The said property / property in question lease hold property governed by the perpetual deed. The true copy of perpetual lease deed dated 15.03.1922 in respect to the said property executed by the Secretary of State of India in favour of Seth Laxman Das from whom Smt Malan Devi has purchased the property CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page42/75 in question and then by Smt Revti Devi. The certified copy of conveyance deed dated 27.03.1958 is EX PW1/1, perpetual lease deed dated 15.03.1922 Mark A and the original Mutation Letter dated 22.02.1962 is Ex PW1/2.
In discharge to this onus, defendant no 1, during cross examined PW1, developed their defence which is as under: during cross examination of PW1, it is deposed that the suit property was purchased by my mother Smt Revti Devi from her Stridhan the same has been recited in her Income Tax Return. I am not aware since when she was assessed to Income Tax. I am not aware she was assessed to Income Tax at the time of purchasing of suit property. The sale deed in respect to the suit property was not executed in my presence."
Further, it is deposed that during cross examination of PW1 "it is deposed that my father Late Sh Chandi Prasad Mishra has not contributed anything towards the sale consideration. It is correct that it is mentioned in the sale deed at page no. 3 that father had contributed Rs 10,000/ towards sale consideration. The facts on records are correct. I have not made any fale statement intentionally."
On the other hand, it is deposed by DW1 that " I say that my mother in law Smt Revti Devi had been a housewife and was not earning any income except for the income of her husband as CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page43/75 mentioned. No property moveable and immoveable had been inherited by Smt Revti Devi from her partents or from paternal side at any time. Late Sh C P Mishra had got executed sale deed dated 27.03.1958 from one Smt Malan Devi in favour of his wife Smt Revti Devi who was indeed a benami in as much as the real owner of this property was Sh C P Mishra and the said property till her death was held in trust by her for the benefit of Sh C P Mishra and later on for succession by his legal heirs. Father of Smt Revti Devi died when she was quite young and no dowry/ stridhan or money gifted or given to her by her parents.
During cross examination of DW1 it is deposed that "it is correct that I got married in the year 1964. Before my marriage I was residing at my parental house at Singhana, Rajasthan. Voluntarily, since my marriage I have been staying in the property in question." It is correct that before my marriage I did not know Sh C P Mishra, Smt Revti Devi , Sh Jagdish Mishra and Sh Basant Mishra. I do not know any family affairs of these persons prior to the year 1964 i.e at the time of marriage. During further cross examination she also admitted that " I do not (she does not ) know whether the suit property was purchased in the year 1958. I do not know the year as and when the same was purchased. The suit property was purchased by my father in law Sh C P Mishra.
CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page44/75On this testimony, counsel for defendant submitted that he has discharged the onus as PW1 admitted during the cross examination that some of the consideration of property in question was paid by Late Sh Chandi Prasad Mishra as such property in question is Joint Hindu Family property and was being purchased as Benami property of Late Sh Chandi Prasad Mishra.
Prior to proceed further here it is not out of mention to place here that it has been held by the Hon'ble High Court of Delhi in the case stated in para no. 17( Leena Mehta Vs. Vijaya Myne and Ors) since the property in question was in favour of Smt Revti Devi hence, she is absolute owner of property in question and no contrary document filed or placed against sale deed / conveyance deed, EX PW1/1.
After taking into consideration the facts and cirumstances of the present case, as well as evidence led by the parties, defendant no 1 has completely failed to discharge the onus qua the fact that Late Sh Chandi Prasad Mishra was the owner of the property in question in view of the above discussion. Hence, issue no 7 is decided in favour of plaintiff and against the defendant no1.
19. ISSUE NO 2: Whether defendant no 3 was taken in adoption CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page45/75 in or around 1954 by Pannalal Kaushik, if so its effect?
Since this everment made by the plaintiff that defendant no. 3 had been given in adoption to Sh Panna Lal Kaushik who was the father in law of the elder daughter of Late Sh Chandi Lal Mishra in 1954 and was used to reside in Ahmedabad hence, plaintiff is supposed to discharge the onus. Except this everment and deposition in respect to the fact of adoption, no documentary proof has been filed to substantiate the contention of the plaintiff. During the cross examination of PW1, it is come up on record that "it is correct that Sh Jagdish Misra (defendant no. 3) was adopted by somebody. I am not aware when the adoption was taken place and also not aware about as to how old he was at that time. I do not rememmber as to what was my age at that time. I was born at that time. It is correct that I was consious at that time. I cannot say whether school leaving certificate of my brother as I have never seen the same. I have never came across any documents which shows the name of the adopted father of Sh Jagdish Misra as his father. Sh Panna Lal Kaushik was the name of adopted father of Sh Jagdish Misra. The wife of Sh Panna Lal Kaushik was not related to me. Sh Panna Lal Kaushik was the father in law of my elder sister Sharda Kaushik. I have no relation with Sharda CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page46/75 Kaushik. I cannot recollect whether I have seen any documents shows the name of Late Sh Chandi Lal Mishra as the father of Jagdish Misra. I cannot say now whether any person of my family who can say that Sh Jagdish Misra was adopted son, I have to find out the same. I have no knowledge who were witnesses at the time of adoption. Sh Panna Lal Kaushik was having two natural sons namely Sh Dinesh Kaushik and Sh Kanhaiya Lal Kaushik. It is correct that Sh Panna Lal Kaushik had no daughter. On this testimony, the plaintiff contented that PW1 has remained firm on the point that defendant no. 3 had given any adoption to Sh Panna Lal Kaushik. On the other hand, defendant contented that it is well settled law that adoption can only be done through the adoption deed or even otherwise there is no ritual or formal Sanskar of adoption had been taken place or show any documents or averment in this regard made by the PW1 hence, plaintiff is completely failed to discharge this onus.
It is well settled law that civil suit is decided on the prepondarace of probability and the balance of probability supports the case of defendant in the present case. The plaintiff has even failed to establish that any ritual has been taken place in respect to the adoption of defendant no 3 or placed on record any documents in this CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page47/75 regard. Further adoption of son is required compulsory registeration as per Sec 17(3) of Registration Act. Moreover, he does not know as to when (means time, day, year as well as age of defenadant no 3) defendant no 3 given in adoption to the Sh Panna Lal Kaushik hence, testimony of PW1 in respect to the fact that defendant no 3 has given any adoption is not trustworthy. Hence, issue no 2 is decided in favour of defendant and against the plaintiff.
20. ISSUE NO. 4 and 6 :
(iv) Whether defendants were allowed to occupy the suit property after the death of Smt Revti Devi in December 1978, as alleged?
(vi) Whether defendants are in occupation of accomodation over and above the portion shown in the site plan annexed with plaint?
Since these two issues are interconnected hence taken together. Since it is averted in the plaint that defendant were allowed to occupy the suit property after the death of the mother Smt Revti Devi in December 1978 hence, plaintiff is supposed to discharge the onus of Issue No 4 whereas the defendant contented that defendant no 3 had CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page48/75 been residing in the portion shown in red colour attached with the plaint since the date of purchase of property in question, hence, defendant is supposed to discharge the onus of Issue No 6.
Both plaintiff and defendant no 1 filed their affidavit and reproduce the averment qua above stated facts, which are Ex PW1/1A and Ex DW1/1A respectively. During cross examination of PW1, it has been denied that it is incorrect to suggest that Sh Jagdish Misra (defendant no 3) was residing on the first floor but could not / did not answer qua the fact that the daughter(defendant no 2) of Sh Jagdish Misra had done her schooling during the stay in the property in question and she was also married from the suit property as deposed "may be the daughter of Sh Jagdish Misra had done her schooling from the suit property and she was also married from the suit property. It is further incorrect to suggest that my brother(defendant no 3) and bhabhi (defendant no 1) and their daughter Anjana ( defendant no 2) were residing in the suit property. During the arguments it has been brought to my notice the content of para no 17 of the plaint wherein plaintiff himself has averted and admitted that defendant no 3 are in continuous possession of suit property shown in red colour in the site plan of the property in question. Further, it is submitted / averted that defendant no 3 along with other defendants have been residing in the CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page49/75 property in qustion since May 1992 as such it is established that defendant no 3 alongwith family members had been residing in the property in question since the inception/ purchase of property in question.
The contrary to the submission counsel for plaintiff during arguments submitted and my attention has been drawn in respect to the para no 13 of plaint wherein it has been averted that after the death of Late Sh Chandi Prasad Misra, defendant no 1 was also allowed to use another room and as such defendant are used in occupation in portion mark in red colour in the site plan and after shown in the green color of first floor as in possession of plaintiff.
This submisssion further opposed by counsel for defendant and contented that in respect to para no. 13 of plaint, it is specifically denied in para no 13 of WS that defendant were allowed to use the occuptation of the portion shown in red color of site plan, it is submitted that truth of matter is that defendant had been in possession of property bequeathed to them ( property in question) even prior to that Late Sh Chandi Prasad Misra and they continued to be in possession after the death of Late Sh Chandi Prasad Misra. Defendant had never been in possession of this property at the instance or that permission of plaintiff no 1 or the plaintiff's. It is wrong that plaintiff CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page50/75 no 1 had opened any room after the death of Sh C P Misra and allowed the defendant's to use the occupation. Similar averment also made in his affidavit of defendant no1.
The avernment qua the fact that defendant no 3 had been given any adoption to Sh Panna Lal Kaushik who was the father in law of the elder daughter of Late Sh Chandi Prakash Mishra in the year 1954 and since then defendant no 3 used to reside in Ahmedabad. Further, it is averted in the plaint that at the time of death of the mother Smt Revti Devi of plaintiff and defendant in the year 1978, the defendant no 3 with his family came to Delhi and they had been allowed to reside in the poriton shown in red color in the site plan in respect to the property in question only on the premisive right to stay in the property in question as such status of defendant no 3 and his family are the premisive possession and being the licensee.
During arguments, ld counsel for plaintiff also submitted that he has proved the fact as the similar deposition has been made by PW1. It is contented that licensee of defendant had been terminated in the February 1992 despite that property in question has not been vacated resulting into filing the present suit.
On the other hand, it is submitted that defendant no 3 alongwith his family defendant no 1 and 2 had/ has been residing CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page51/75 being the cosharer/ LR's of Chandi Prasad Mishra and Revti Devi but informed the defendant in May 1992 they could not longer reside in the property in question ( referred as the suit property and shown in red color). In view of their dishonest and illegal activities acts and inform them that they should made other arrangement and vacate quit forthwith and remove their goods which is otherwise established that the defendant has been residing in the property since long time.
On these averment and testimony, it become relevant that whether plaintiff have even asked to the defendant no 3 and his family members to vacate and in this regard had issued any notice for termination of premisive possesssion of defendant no. 1 to 3. Admittedly, in the present case the property in question has been mutated as per letter no. LI9/90(1B)/87/444 dated 16.06.1987 which is EX PW1/5 and the present case has been filed in the year 1993. During cross examination of PW1 it is admitted that "it is correct that Sh Jagdish (defendant no 3) was adopted by someone. I am not aware when the adoption was taken place and also not aware about as to how old he was at that time. I have no knowledge who were witnesses at the time of adoption. Sh Panna Lal Kaushik was having two natural sons namely Sh Dinesh Kaushik and Sh Kanhaiya Lal Kaushik.
CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page52/75Since the ground which is taken in the present case is that defendant no 3 had been given in adoption to Sh Panna Lal Kaushik and defendant no 3 had been residing in Ahmedabad but surprisingly no document on behalf of plaintiff placed on record or exhibit which can substantiate the contention of the plaintiff that defendant no 3 had been allowed to reside in the property in question after the death of mother Smt Revti Devi in the year 1978 being the premisive possession especially when plaintiff himself is admitted during the cross examination that he had been residing in Mumbai since Mid 1970's. I am having constructive business. It is correct that I often go to Switzerland and I am the permanent resident of Switzerland. I have not come to Switzerland since 1970. It is correct that Sh Satya Narayan Sinha (Unior Health Minister) was close friends of my father. It is correct that he (defendant no 3) was not mad. However denied the suggestion that it is wrong to suggest that wife and daughter of elder brother were residing at the aforesaid address continuously however, they started residing at the aforesaid since 1964 onwards intemediately. Again said that they went to Ahmedabad sometime after 1964 and return only about 1978 when my mother expired.
Moreover, no proper reply given by PW1 qua the fact that daughter (defendant no 2) of defendant no 3 has completed her CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page53/75 education and got married from the property in question. Hence, I am of the considered view that plaintiff is completely failed to discharge the onus as testimony of PW1 is self contrary and not trust worthy in view of the discussion above. On the other hand, defendant established that he has been residing in the property in question since long back and there is no as such prove to place on record on behalf of plaintiff in support of contention that defendant no 3 and his family defendant no 1 and 2 had been allowed by the plaintiff after the death of the mother of the parties namely Revti Devi in the year 1978. Hence, I am of the considered view that plaintiff is completely failed to discharge the onus of issue no 4. Accordingly, issue no 4 is decided in favour of defendant and against the plaintiff.
So far as the issue no 6 is concerned, plaintiff contented that defendant are in occupation of the portion of first floor of the property shown in red colour in the site plan which is Ex PW1/6 whreas portion shown in the green color (room no 6 of first floor) in the site plan is in use and occupation of the plaintiff. Whereas the defendant contented that in the WS that the defenadants had been residing/ in occupation of entire first floor of the property in question including room no 6 and also claim that the defendant have in occupation of entire second floor( which is only terrace)alongwith in CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page54/75 occupation and possesion of garrage block.
It is contented / submitted that in view of the report of first Local Commissioner, Ex C1 namely Sh Vikram Dholakia which had been filed prior to filing of WS. The report had been prepared in presence of both the parties and also signed by the defendant no 1 for herself as well as on behalf of defendant no 2. In view of the admission and signature the report and particular the report EX C2 confirmed / admitted by the defendant which is as under given by the Local Commissioner "on the basis of my inspection said suit premises, I found that the defendants are in possession of entire first floor portion except one room describe as room no 6 in the proceedings." Here it is not out of mention to place here that admittedly the Local Commissioner had visited the property in question on 09.10.1993 and further here it is not out of mention to place here that on the basis of complaint of Defendant no 1, FIR bearing no 455/93, U/s 341/448/452/506 IPC, PS Mandir Marg has been registered in which it is alleged that on 10.10.1993 upon receiving the call, IO/ SI C L Meena along with Ct Jaipal reached the property in question for preliminary inquiry, investigation and got registered the above captioned FIR. It is alleged in the FIR that defendant no 1 alongwtih defendant no 2 and 3 are residing on the CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page55/75 first floor of the property in question since long back. On 08.10.1993, her brother in law, plaintiff put the lock on the garrage which was in possesion of defendant no 1 situated at the back portion of the Kothi and also put the lock on the front side back passage for the engrass and outgrass which cause lot of inconvenience to the defendant and only left the way which was situated at the back side of the kothi. It is also allegd that the plaintiff along with one advocate came on 09.10.1993 and obtain the signature of the defendant no 1 on blank paper forcefully and also force her to sign on paper alongwith other allegations. After concluding the trial the accused/ plaintiff had been acquitted vide dated 02.09.2009.
It is also contented by the plaintiff that defendant never filed any objections to the report of Local Commissioner Sh Vikram Dholakia and Ms Sudha Srivastava as such Local Commissioner as such their report Ex C1 and C2 and also similar report has been furnished by the second Local Commissioner Ms Sudha Srivastava which is Ex C4 especially para no 4 to 9 of her report which deemed to be correct and established that the portion shown in the green colour of the site plan Ex PW1/6 was in possession of the plaintiff on the date of institution of present suit in 15.09.1993.
On the other hand, defendant contented that defenadant no CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page56/75 1 and 3 had been residing in the property in question since date of its purchase and also much prior to death of Smt Revti Devi in the year 1978 and contented that para no 13 of the plaint is itself contradictory and also contradictory to the para no 17 of the plaint as such it established that defendant no 3 alongwith his family member had been residing in the property in question since inception and purchase of property in question.
After taking into consideration the facts and circumstances and evidence led by the parties, I am of the considered view that since no objection qua the report of LC which are Ex C1,C2 and C4 has been filed or lead any cogent evidence on behalf of defendant that they are residing over the entire portion of first floor and second floor including garage hence, I am of the considered view that defendant has failed to discharge the onus except to establish that he is resident of entire first floor except room no 6 accordingly, the issue no 6 is decided in favour of plaintiff and against the defendant.
21. ISSUE NO. 3 Whether Smit Revti Devi bequeathed the suit property to the family of plaintiff no. 1 under Will dated 18.08.1978 ?
CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page57/75Since the averment qua the execution of Will dated 18.08.1978 in favour of plaintiff, hence, the onus to discharge this issue is supposed to discharge by the plaintiff. Plaintiff contented that Will has been proved by PW6 who is the daughter of Sh C P Misra and Smt Revti Devi and sister of plaintiff no. 1 and defendant no 3. PW6 Usha duly proved the Will dated 18.08.1978 PW1/8 or C1. It is contented that Will has been proved not in accordance with Sec 68 but in accordance with Sec 69 to 70 of Indian Evidence Act as Sec 68 is not applicable to prove the execution of Will Ex PW1/8 or C1.
It is contented that apart from PW6, plaintiff / PW1 Sh Basant Misra also deposed that Will has been executed by his mother Smt Revti Devi on 18.08.1978 in which there are two witnesses i.e one for Sh C P Misra, father of the plaintiff who has already expired and so far as the other attesting witness is concerned i.e Smt Triveni Misra, defendant no 1 who is wife of defendant no 3, as such she has adverse interest in the property in question, hence, she could not be examined in respect to the proving of Will.
It is contented that in para no. 4 of the plaint, it is specifically averted that the property in question was being purchased in the name of Smt Revti Devi, mother of plaintiff and defendant no. 3 which is in CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page58/75 correspondance para in the WS. It is pleaded that except to the dispute that the part consideration amount of Rs 10,000/ was being paid by the father as such property was Joint Hindu Family property and could not be bequeathed by executing Will in favour of plaintiff by the mother Smt Revti Devi . Further it is contented by the plaintiff that fact of existence and execution of Will Ex PW1/8 or it has also been admitted by the defendant no 3 and other family member in the affidavit/ NOC given in L&DO for the mutation of property in question in favout of plaintiff. Affidavit are Mark C to G but failed to prove and mutation Ex PW1/4 and PW1/5.
On the other hand, it is contented by the defendant that in the plaint it is averted by the plaintiff himself that the property in question was being purchased by Smt Revti Devi, mother of plaintiff and defendant no 3 out of her own funds which is falsefy on bare perusal of the sale deed itself. Bare perusal of page no. 3 of the sale deed dated 27.03.1958, Ex PW1/1, it is specifically mentioned that agreement to sell was entered between husband of Smt Revti Devi i.e Sh C P Misra with Smt Malan Devi W/o L. Multani Ram and also mentioned the details of the payment which has been paid by the father of Sh C P Misra through cheque as such the property in question is the Joint Hindu Family property and property in question CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page59/75 should be disposed off in accordance with the law of succession between all the LR's of Sh C P Misra and Smt Revti Devi. It is contented that bare perusal of the Will, Ex PW1/8 or C1, there are so many suspicious circumstances around the alleged Will. It is contented that surprisingly the alleged Will, Ex PW1/8 or C1 never had been filed by the plaintiff alongwith the plaint and only the Will Ex PW1/8 or C1 was being filed/ injected in original in the year 2012, which is otherwise admitted by the counsel for plaintiff during arguments. It is pointed out that the photocopy which had been filed alongwith plaint does not have image / impression of stamp behind the first page of alleged Will. It is clear from the endorsement made on behind the first page of the Will, Ex PW1/8 or C1, it reveals that stamp paper upon which alleged Will has been executed was being purchased by the plaintiff and purpose for purchasing stamp has not been mentioned, as such it is proved that plaintiff himself is beneficiary, hence, cannot be proved the alleged Will, Ex PW1/8 or C 1 because plaintiff himself participate in the execution of the Will and manipulation in execution of alleged Will could not be ruled out. It is also contented that the original Will, Ex PW1/8 or C1 had been injected first time by the plaintiff when he had examined PW6. It is contented that though Will allegedly has been executed on 18.08.1978 CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page60/75 whereas the date of attestation of the attesting witness namely Sh C P Misra has been mentioned as 22.08.1979 and the date of attestation of other/ second witnesses Smt Triveni Misra has been mentioned as 22.08.1978. It is also contented that since the attestation of the Will, Ex PW1/8 or C1 is mandate in law but in the present case/ present alleged Will, the attestation has not been done in accordance with the law in as much as in the last line of the Will it has not been clarified that whether the Will, Ex PW1/8 or C1 has been signed on 18.08.1978 and also attested at the same time or whether testator had signed the alleged Will in presence of attesting witnesses who appended their signature on 22.08.1978 and 22.08.1979 and vice versa. Keeping in view the date of attestation of attesting witness as well as that the signature of the testator has been signed in presence of the attesting witness which is otherwise caste doubt in respect to the genuineness of attestation of the alleged Will. In view of the mandate law that the attesting witness must present and signed at the same time when the testator had appended his signature on the Will as per Sec 63 of Indian Succession Act. Lastly, it is contented that though the Will, Ex PW1/8 or C1 had been allegedly executed in the year 1978 but there is no out of stress of imagination that at that time the documents were being prepared or executed on computer. Bare perusal of the CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page61/75 alleged Will, Ex PW1/8 or C1 it is clearly established that the documents prima facie appears to be got prepared through computer not from typewriter or by hand.
After taking into consideration the facts and circumstances and evidence led by the parties of the present case, I am of the considered view that in view of the principle led down in para no. 11 it would become evident that Will, Ex PW1/8 or C1 dated 18.08.1978 was not duly executed and there are number of suspicious circumstances surrounding the execution of Will since the Will Ex PW1/8 or C1 is prima facie appears a computer generated Will. It would be appropriate if the entire text of the Will, Ex PW1/8 or C1 are reproduce which is as under: This is the last will and testament of me Smt Revti Devi W/o Sh C P Misra, R/o 3, Jain Mandir Road, New Delhi.
I hereby devise and bequeath my house at 3, Jain Mandir Road, New Delhi and all my movable properties including cash deposits, bank accounts, jewellery etc entirely to the family of my son Sh Basant Misra consisting of himself his wife Anita Misra and their children present and future only.
I appoint my husband Sh C P Misra and my son Sh Basant Misra both R/o 3, Jain Mandir Road, New Delhi the executors of this will, jointly or severally.
I am making this will out of my free will and CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page62/75 accord without any undue influence or coercion from anyone and in full possession of my senses.
No other relation or legal heirs except in the ones mentioned in this will all have any right, claim or interest of any kind in all my moveable and immovable propertis.
In witness whereof I have signed this will at New Delhi on the 18th August, 1978 in the presence of the following witnesses: Testator ( Revti Devi) Witnesses:
1. C P Misra 3, Jain Mandir Road, New Delhi.
2. Triveni Misra 3, Jain Mandir Road, New Delhi.
From the bare perusal of the Will, Ex PW1/8 or C1 it is evident that admittedly the signature had been appended by the attesting witness on 22.08.1978 but not at the time when the testator allegedly appended his signature and executed Will in favour of plaintiff i.e on 18.08.1978. Since the Will is the document which is not required registration as such the objection of the counsel for defendant qua the endorsement by the stamp vendor is need not to be further required any consideration. However, the other aspects which is pointed out by the counsel for defendant are relevant.
In the present case admittedly the Will, Ex PW1/8 or C1 has not CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page63/75 been produced at the time of filing of plaint and the first time the Will has been produced and got exhibited by way of examining PW6 who is sister of plaintiff no 1 and defendant no 3. Since in the present case other attesting witnesses Smt Triveni Devi also made party as defendant no 1 hence, Will, Ex PW1/8 or C1 could have been produced during the stage of admission denial of documents and in case defendant no 1 refused her signature then plaintiff may examined handwriting expert but in the present case he failed to do so. Under these circumstances, it cannot be said or admit that the Will may be proved by examining PW6 who identify the signature of his father being attesting witness and the mother being the testator of the Will, Ex PW1/8 or C1 and the testimony of PW6 may be treated/considered to prove the Will by applying Sec 69 of Evidence Act.
Further, bare perusal of the Will it cannot be denied or ruled out that the signature by the testator and the attesting witness had been appended on the different date as clear from the date of execution of Will dated 18.08.1978, Ex PW1/8 or C1 and the date of attestation of both witnesses either 22.08.1978 or 22.08.1979.
Lastly and most importantly as it is contented by counsel for defendant that Will, Ex PW1/8 or C1 seems and appears to have CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page64/75 been prepared though computer and in the year 1978 there is no out of stress of imagination that any documents might have been prepared or execute on the computer as the computer usually was being used after the year 1987 generally. Moreover, it is well settled law that the suspicious could not be removed by the mere ascertion of the propounder that the Will appears bears the signature of the testator or that the testator was in sound or disposing state of mind and memory at the time when Will was made, or that those like the wife and the children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicion before the document can be accepted as the last will of the testator, defendant no 3, who would normally receive their due share in his stay were disinherited because the testator might have his/her own reason for executing them. Admittedly, in the present case, father of the party Sh C P Misra had expired in the year 1992 whereas mother Smt Revti Devi was expired in the year 1978 and allegedly it was contented by the plaintiff that license of the defendant CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page65/75 no 3 had been terminated by the plaintiff no 1 in February, 1992 and bare perusal of the Will, Ex PW1/8 or C1 there is no as such conditional clause/ specific reason has been mentioned for which the other legal heirs excluded or disinherited in the present case. Since there is no specific reason has been mentioned in the alleged Will, Ex PW1/8 or C1 or the reason which has been pleaded by the plaintiff that due to alcholic attitude of defendant no 3 as well as defendant no 3 is being unsound mind, hence defendant no 3 had been excluded from inheritage from the property in question and thereafter, the testator executed Will in favour of plaintiff alone.
Since, it is well settled law that the presence of suspicious circumstances makes initial onus heavier and therefore, in case where the circumstances attended upon the execution of the Will excite the suspicious of the Court, propounded must remove all legitimate suspicious before the document can be accepted as the last Will of the testator, which is in the present case, plaintiff completely failed to do. Further, it cannot be said that the Will, Ex PW1/8 or C1 is the last Will of testator because the propounder plaintiff here is the himself appears to take the leading part in the making of the Will under which he / plaintiff receives the substantial benefits as in the present case is the property in question. Even otherwise Will cannot be said to be CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page66/75 proved by the alleged admission in affidavit/ NOC of defendant no. 3 Mark C especially when the defendant contented that all affidavit/ NOC of LR's of Revti Delhi are forged and fabrivatd.
So far as the other objections is concerned qua the fact that property was being purchased in the name of wife of father of plaintiff no1 and defendant no 3 hence, property itself become Joint Hindu Family is not maintainable keeping in view the law settled by our own Hon'ble High Court of Delhi in the case title Leena Mehta Vs. Vijaya Myne and Ors IA no. 3160/2009 in CS (OS) No. 2118/2006 decided on 09.11.2009 as well as discussion/ findings in issue no. 4 and 6 Hence, I am of the considered view that plaintiff is completely failed to discharge the onus and failed to prove that the Will, Ex PW1/8 or C1 is the last Will of Smt Revti Devi, mother of plaintiff and defendant no 3 therefore, issue no 3 is decided against plaintiff and in favour of defendant.
22. ISSUE NO 8 and 9 :
(viii) Whether Sh CP Misra bequeathed the suit property in favour of defendant no 1 & 2 as alleged?
(ix) Whether Will was revoked by Sh C P Misra by documents dated 07.02.1992 as alleged in para 16 of CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page67/75 plaint?
Since both these issues are interconnected, hence are taken together. The onus to discharge the issue no 8 is supposed to discharge by the defendants as they are claiming that Late Sh C P Misra bequeathd the property in question in favour of defendant no 1 and 2 whereas the onus to discharge the issue no 9 is supposed to discharge by the plaintiff as they claim vide letter dated 07.02.1992, the alleged Will of Late Sh C P Misra which is in favour of defendant no 1 and 2 has been revoked.
In discharge of issue no 8 the defendants have examined Sh Radhey Shyam as DW3 who though claim and deposed that Late Sh C P Misra has executed Will in favour of defendant no 1 and 2 but surprisingly the original Will has not been produced in the Court as such, it is submitted that the testimony of DW3 and DW1 are not trustworthy in this regard. It is also contented by the plaintiff since the original Will has not been produced in the Court, hence the onus to discharge the issue no 8 and 9 losses his all significance and may kindly be struck down or be answered accordingly. On the other hand, it is contented that defendant no 1 and 2 has discharged the onus in respect to the issue no 8 in as much as DW1/1 is placed on record i.e CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page68/75 last Will of Late Sh C P Misra executed on 05.02.1992 and which was also got registered. The execution of Will has been proved by the attesting witness i.e DW3 that the Will has been executed by the testator, he also proved his attestation by himself and also proved the fact at the time of execution of Will Late Sh C P Misra was in sound and mental capacity. It is also contented that, even otherwise, the alleged Will is properly attested which stand proven on record in terms of Indian Succession Act and Indian Evidence Act.
In respect to the Issue no 9 it is contented by the defendant that plaintiff have made the futile attempt to disprove the said Will by placing on record revocation letter dated 07.02.1992 which is Ex PW1/14. Mere execution of the document Ex PW1/14 cannot be said to be proved in as much as the signatory, Ms Kiran Sehgal and Sh G P Aggarwal have not been examined in present case to establish its factum and its existence in accordance with the law. Even otherwise, the testimony of PW1 is heresay evidence which is not admissible as it was deposed by the PW1 that PW1 had been told by Ms Kiran Sehgal that the Ex PW1/14 has been executed by Late Sh C P Misra. It is also contented that Ex PW1/14 is unregistered document and the registered Will could not be disbelived due to such unregistered document that the Will has been revoked by Late Sh C P Misra, as such plaintiff CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page69/75 failed to prove the document Ex PW1/14 and it is further submitted that the plea of revocation itself suggest the presence of valid Will Ex DW1/1 for which probate case has been filed which has been pending before Hon'ble High Court of Delhi.
After taking into consideration the facts and circumstances, I am of the considered view that in the present case admittedly the property in question had been mutated in favour of plaintiff as clear from the document Ex PW1/5 and in view of the findings of issue no 1 in which I had already hold that property was exclusively purchased in the name of Smt Revti Devi, mother of the plaintiff /PW1 and defendant no 3 which is subsequently also mutated in favour of mother Smt Revti Devi as clear from the documents which is Ex PW1/2 vide dated 22.02.1962 despite that no objections ever raised by the father of the parties (plaintiff no 1 and defendant no 3) i.e Late Sh C P Misra.
Since, it is well settled law that the person can ailenater/ transfer any property moveable or immovabe in favour of anyone but subject to the ownership right. Since in the present case, property in question admittedly and already purchased in the name of mother then it cannot be said that Sh C P Misra have any right to execute any Will Ex DW1/1 in favour of other son as in the present case in favour of CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page70/75 defendant no 3. Further, since the Will is not required mandate registeration hence, merely on the bases of fact that the Will is registered hence, it cannot be said that Will Ex DW 1/1 has been proved and so far as the testimony of DW3 Sh Radhey Shyam is concerned, I am of the view that testimony of DW3 is also not trustworthy being the interested witness as DW3 is the brother of defendant no 1. Hence, I am of the considered view that defendant has failed to discharge the onus of issue no 8, hence issue no 8 is decided against the defenadant and in favour of plaintiff.
So far as the issue no 9 is concerned, plaintiff is also failed to discharge the onus in as much as that none of the attesting witness of the revocation letter dated 07.02.1992 Ex PW1/14 has been examined by the plaintiff who can prove the contents of the documents and merely examining by the plaintiff no 1 himself does not prove the execution of document PW1/14 and the testimony of PW1 is hearsay evidence and as such no trustworthy. Hence, I am of the considered view that plaintiff is also failed to discharge the onus to prove the documents Ex PW1/14 in accordance with the law. Hence, issue no 9 is decided against the plaintiff and in favour of defendant.
23. ISSUE No. 10 : Whether plaintiff is entitled to mesne profits ?
CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page71/75If so, at what rate, for which period?
The onus to discharge this issue has been casted upon the plaintiff and plaintiff in para no.4 of his affidavit Ex.PW1/A has deposed that the suit property can easily fetch for an amount of Rs. 30,000/ per month at the time of filing of the suit despite that no cross examination has been done by defendants even no suggestion has been put to rebut testimony qua the fact that the defendant had been residing in the property in question being unlawful user as his permissive right has been terminated by the plaintiff, despite that he has not vacaed the property in question hence liable to pay mesne profit at the rate of Rs. 30,000/ w.e.f September 1993 to August 1994 and thereafter damages/mesne profit at the rate of 15 % enhancement every year.
On the other hand, it is contended by defendants that plaintiff has completely failed to discharge the onus in as much as he failed to prove that defendant has been residing in the property in question having permissive right whereas defendant has proved that he has been residing in the property in question since the date of purchase being cosharer in the property in question. After taking into consideration the facts and circumstances of present case, I am of the CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page72/75 considered view that keeping in view the finding on Issue no 4 and 6 that plaintiff has failed to prove that defendant no 3 had been allowed to reside in the property in question being licensee/ permission right, hence issue no 10 is decided in favour of defendant and against the plaintiff.
24. ISSUE NO. A : Whether plaintiff is entitled for recovery of possession as prayed ? OPP The onus to discharge this issue has been casted upon the plaintiff and plaintiff examined himself as PW1 in which he reproduce all the contents and in support of the ownership right of the property in question it is contented that plaintiff become owner by way of Will Ex PW 1/8 or C 1 executed by his mother in his favour which had been contentd to be proved by PW6 Smt Usha Sharma who has been examined in the present case who is the daughter of Sh C P Misra , father of plaintiff no 1 and defendant no 3 and Smt Revti Devi and the sister of plaintiff no 1 and defendant no 3 and also contented that the mutation in the name of plaintiff has been proved by the PW1/5 with further request to consider the affidavit of defendant no 3 which is Mark C, Affidavit of Smt Shradha Kaushik (sister of parties) which is Mark D , Affidavit of Smt Asha Sharma (sister of parties) which is CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page73/75 Mark E , Affidavit of Sh C P Misra which is Mark F and affidavit of Sh Basant Misra which is Mark G. On the other hand, it is contented by the defendant that plaintiff himself could not prove his ownership as well as execution of Will and so far as testimony of PW6 is concerned, it is also not trustworthy as admitted she was not present at the time of execution of Will EX PW1/8 or C1 and in her testimony she deposed that she has identified the signature of Sh C P Misra her father as well as Smt Triveni Misra. However, it is contented that she was present at the time of execution of Will and if it is so, Will could have been attested by herself. Further, defendant contented that family members of defendant no 3 i.e Defendant no 1 and 2 had been residing in the property in question being the cosharer since the date of purchase of property in question by mother of defendant no 3.
After taking into consideration the facts and circumstanes of present case as well as in view of the findings given in issue no 3 that the plaintiff failed to prove the Will, ExPW1/8 or C1 which is claim/ basis of the ownership right over the property in question hence, I am of the considered view that plaintiff is failed to discharge this onus as plaintiff is failed to establish that he is entitled to vacate the property in question from the defendant being the owner of the CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page74/75 property in question accordingly, the present issue is decided in favour of defendant and against the plaintiff.
25. RELIEF In the light of the above discussion an findings on issues as well as considering the facts and circumstances of the present case , I am of the considered view that the suit of the plaintiff is liable to be dismissed. Accordingly, the present suit of the plaintiff is dismissed. No order as to cost . Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Announced in the Open Court on 29.07.2017 (Rakesh KumarIV) Additional District Judge06 West District, THC CS No. 607749/16 Basant Misra & Ors Vs Triveni Misra & Ors Page75/75