Delhi District Court
Sh. Rajan vs Smt. Poonam Khullar on 28 February, 2013
In the Court of Pawan Kumar Matto,
Additional District Judge03 (East),
Karkardooma Court, Delhi
RCA No.18/2012
Unique Case ID No. : 02402C0061002012
In the matter of :
Sh. Rajan,
S/o Late Sh. Gurdayal Singh,
R/o 1/9454, Gali No.7,
West Rohtash Nagar
Shahdara, Delhi110032 ...........Appellant/Defendant
Versus
Smt. Poonam Khullar,
W/o Sh. B.B. Khullar,
R/o H.No.1083, Sector55,
Ballabhgarh, District Faridabad,
Haryana ............Respondent/Plaintiff
Date of Institution : 28.02.2012
Judgment reserved on : 27.02.2013
Judgment announced on : 28.02.2013
JUDGMENT
1. This appeal is directed against the impugned judgment and decree dated 27.01.12 passed by the court of Senoir Civil JudgecumRC(East), KKD, Delhi, vide which the suit of the plaintiff is decreed.
RCA No.18/2012 Page No.1 of 22
2. Brief facts of the case are that the plaintiff has filed the suit for partition, possession and injunction against the defendant, on the averments that defendant is the real brother of the plaintiff and the plaintiff and defendant are coowners in equal share of the property bearing No. 1/9454, Gali No.7, West Rohtash Nagar, Shahdara, Delhi and the said property is built on a plot area of which is 150 sq. yards, which is consisting of ground floor and first floor. It is further averred that the plaintiff and defendant became coowners since 08.01.06 i.e. after the death of Smt. Amrit Kaur wife of late Sh. Gurdayal Singh (i.e. mother of plaintiff) by virtue of WILL dated 15.09.2004 executed by the mother of the parties and registered vide document No. 17977 in Additional Book No.3, Volume No.3332 at page no.49 and 50 on dated 17.09.2004 in the office of concerned Sub Registrar and the division of the property to be done as per site plan annexed with the WILL. It is further averred that late Smt. Amrit Kaur was employed as Teacher in MCD School and she retired as Headmistress and she received retirement benefits and the father of the parties was working as LDC in Railway and he was having very meager income and he expired leaving behind the parties to the present lis and their mother and at that time, both the parties and their RCA No.18/2012 Page No.2 of 22 mother were living at 1531/43, Street No.8, Mohan Park, Rohtash Nagar, Shahdara, Delhi32, which was owned by the mother of the parties and the mother of the parties sold the said house for an amount of RS.44000/ vide agreement dated 16.02.1974, which was built with the assistance of loan of Rs.8000/ in the year 1965 from the Housing Commissioner, Delhi and the mother of the parties had purchased the suit property in the year 1974 for a sum of RS.14000/ and some of the portion of the suit property was given on rent @ Rs.700/ per month to Sh. Shanker Lal Sharma, by the mother of the parties and she remained in possession of the suit property being owner thereof and the parties to the present suit were allowed to reside in the suit property by their mother and the plaintiff remained in possession of the suit property and she is also having ration card prepared on the same address and it is alleged that after the retirement of the mother of the parties to the present lis, she was maltreated by the appellant / defendant and his family members and she was beaten and abused by the defendant and the mother of the plaintiff had gone to the police station Shahdara in the year 1999 and filed the complaint in the police and the proceedings U/s 107/150 of CrPC were ended by the SEM with the warning to the RCA No.18/2012 Page No.3 of 22 appellant / defendant, but, despite of the warning, the defendant did not stop filthy and abusive language and he used to beat the mother of the plaintiff alongwith his wife and daughter with the iron rods and blunt weapons and as a result of such beating, the mother of the plaintiff was admitted in the GTB Hospital and she was medically examined there and the matter was reported to the police of police station Shahdara and the matter was placed before SEM, Seelampur, Delhi and thereafter the matter was reported to the DCP, Joint Commissioner and other police officials and the police was influenced by the defendant. Hence, they were trying to hush up the matter, so, a complaint to this effect was also sent to the Human Rights Commission. It is further averred that during the lifetime of the mother of the parties, on dated 05.10.2005, when the plaintiff was not in the house, the defendant had thrown out the members of the family of the plaintiff from the suit property and her children were beaten and on returning home, she was told about the incident by her children and thus the defendant has illegally and forcibly dispossessed the plaintiff from the suit land.
3. It is further averred that the mother of the parties was exclusive and absolute owner of the suit RCA No.18/2012 Page No.4 of 22 property and she had executed the WILL dated 15.09.2004 and cancelled the WILL dated 03.06.1986 and another WILL dated 24.05.2003 and the defendant and members of his family took out the original sale deed of the suit property alongwith ornaments and cash of Rs.21000/ from the custody of the mother and keeping in mind the conduct of the defendant, the mother of the parties had debarred the defendant by executing WILL dated 26.03.2004 and cancelled her all previous WILLs and the mother had executed a GPA dated 23.08.2000 in favour of the defendant and a public notice was also published in the public newspaper and after cancellation and revocation of all previous WILLs, the mother of the parties had executed a last and final WILL dated 15.09.2004, which was registered in the office of Sub Registrar on 17.09.2004, vide which, she had bequeathed half share of the suit property to the plaintiff and remaining half to the defendant. She has alleged that defendant was harassing and torturing to the mother of the plaintiff and the plaintiff has also filed a complaint against the defendant in the court of Ld. MM, KKD, Delhi, as the defendant is desirous to deprive the plaintiff from her valuable right to possess the suit property. She has also averred that the plaintiff is the coowner of the suit property RCA No.18/2012 Page No.5 of 22 to the extent of ½ share in the suit property and she was dispossessed from the suit property on 05.10.2005 and since then, the defendant is in the illegal and unauthorized possession of the share of the plaintiff. She has also averred that prior to such dispossession, she was in possession of two rooms, bathroom, toilet, passage and space, where from she has been dispossessed by the defendant on 05.10.2005 and she had asked to the defendant on many occasions and lastly on dated 01.11.2006 to effect the partition of the property, as per site plan annexed to the WILL and to vacate the portion of the suit property given to her by the deceased mother, vide her last WILL, but, the defendant has refused and threatened to create third party interest in the suit property.
4. Feeling aggrieved, the plaintiff had filed the suit for partition, possession and permanent injunction against the defendant in the trial court and prayed for passing the decree of partition of the suit property bearing No.1/9454, Gali No.7, West Rohtash Nagar, Shahdara, Delhi by metes and bounds, as per the site plan annexed to the WILL and also prayed for passing a decree of possession of the half portion of the suit property, as per site plan annexed to the WILL and further prayed for passing a decree of RCA No.18/2012 Page No.6 of 22 permanent injunction in favour of the plaintiff and against the defendant for restraining the defendant from selling alienating or disposing off the same or creating any third party interest in the suit property.
5. Ld. Trial Court had issued the summon to the defendant and on completion of service, the defendant has filed written statement and contested the same on the grounds inter alia that the suit is not maintainable and is liable to be dismissed and the plaintiff has not paid the proper court fee and suit of the plaintiff is without any cause of action and stated that Smt. Amrit Kaur was only a benami owner of the suit property. She had no right to execute the WILL and the defendant had also spent his earning on the renovation and maintenance of the suit property. He has denied that the plaintiff is the coowner of the suit property. He has alleged that the plaintiff has already taken 200 sq. yards in her marriage from the parental family. He has alleged that plaintiff being married daughter has no right to claim partition of the suit property and denied that the plaintiff is entitled to claim any right, title or interest in the suit property on the basis of the WILL executed by Smt. Amrit Kaur. He has not denied that he is the real brother of the plaintiff and also stated that since the plaintiff is RCA No.18/2012 Page No.7 of 22 claiming share in the suit property on the basis of the WILL, so, she must obtained the probate from the court. He has also stated that Smt. Amrit Kaur had told to the wife of the defendant that she had given the property to the defendant, as the plaintiff has already taken 200 sq. yards of land in her marriage and the plaintiff has suppressed the material facts. He has stated that the father of the parties was Clerk in the Government of India and denied that Smt. Amrit Kaur was exclusive owner of the suit property and also stated that she was not entitled to execute the WILL of the suit property. He has alleged that the WILL has been prepared under the pressure of Sh. B B Khullar i.e. husband of the plaintiff. He has denied that the plaintiff was in physical possession of the suit property. He has denied that he has maltreated Smt. Amrit Kaur and alleged that Smt. Amrit Kaur was beaten by Sh. B B Khullar and his wife Poonam and his mother was pressurized by the plaintiff and also stated that his mother was looked after by him, his wife and his daughter. He has denied that he had thrown away the plaintiff and her family members from the suit property. He has also stated that plaintiff and her husband thrown away the goods from the suit property and concocted a false story and made false allegations against him. He has alleged that the WILL relied RCA No.18/2012 Page No.8 of 22 upon by the plaintiff is fictitious and executed under the pressure of plaintiff and her husband. He has denied that he had taken the jewellery of his deceased mother. He has stated that the plaintiff was not in possession of the suit property and further stated that with the mere visit to the parental house, the right of possession is not created in favour of the plaintiff. He has denied that he is in illegal possession of the suit property and he has denied that the plaintiff has any right to claim partition of the suit property and after denying the other averments made in the plaint, he has sought dismissal of the suit.
6. The plaintiff has filed the replication to the Written statement and denied the averments in the plaint and reiterated the facts, as mentioned in the plaint.
7. From the pleadings of the parties Ld. Trial Court was pleased to frame the following issues :
1. Whether the plaintiff is entitled to partition of the suit property as prayed for ? OPP
2. Whether the plaintiff is entitled to decree of possession in respect of the claimed portion of the suit property ? OPP
3. Whether the plaintiff is entitled to decree of permanent injunction restraining the defendant from alienating or creating third party interest in the suit property ? OPP RCA No.18/2012 Page No.9 of 22
4. Whether the present suit is bad for improper valuation of suit property ? OPD
5. Relief.
8. Vide order dated 23.01.2010, the Ld. Trial Court had framed two additional issues i.e. issues no.5&6 which are as follows :
5. Whether the plaintiff has not valued the suit properly for the purpose of court fee and jurisdiction and whether she has not paid the appropriate court fee ? OPD
6. Whether this court does not have pecuniary jurisdiction to try the suit ? OPD
9. The Ld. Trial Court vide its impugned judgment and decree dated 27.01.12 was pleased to decree the suit of the plaintiff.
10. Feeling aggrieved with the judgment and decree dated 27.01.12 passed by Ld. Trial Court, the appellant/defendant has filed the present appeal.
11. The notice of the appeal was issued to the respondent and on the completion of the service, the respondent has put her appearance through her counsel.
12. The record of the trial court is also requisitioned.
13. I have heard Ld. Counsel for the parties and RCA No.18/2012 Page No.10 of 22 perused the record.
14. The Ld. counsel for the appellant has submitted that the Ld. Trial Court has committed grave error when it did not follow the procedure as the Ld. Trial Court has not passed the impugned judgment and decree under appeal in compliance of provisions of order 20 rule 18 of CPC. He has further submitted that the plaintiff has filed the suit for partition, so, the Ld. Trial Court ought to have passed preliminary decree for determining the shares of the parties to the present lis and then the local commissioner was required to be appointed and thereafter on the basis of the report of local commissioner, the final decree could be passed in accordance with the provisions of the Code of Civil Procedure, but, as the Ld. Trial Court has failed to follow the procedure and effective partition cannot be done on the basis of the WILL Ex.PW1/2 and site plan annexed to the WILL, which is Ex.PW1/3, so, the impugned judgment and decree under appeal is not sustainable in the eyes of law. He has also submitted that the trial court has failed to grant sufficient opportunity to the appellant to lead evidence. He has further submitted that the respondent has relied upon the WILL but, she has never obtained any probate of the WILL, so, without probate of the WILL of the RCA No.18/2012 Page No.11 of 22 deceased namely Smt. Amrit Kaur, the WILL of the deceased could not be looked into or relied upon, as the civil court has no power to determine the validity of the WILL and prayed for setting aside the impugned judgment and decree, under appeal.
15. On the other hand, the Ld. Counsel for the respondent has submitted that since the respondent / plaintiff has relied upon the last WILL dated 15.09.2004 executed by Smt. Amrit Kaur, which is proved on record being Ex.PW1/2 by the attesting witness of WILL namely Sh. I K Nayyar, who has been examined as PW3 and despite of his cross examination his testimony has gone unimpeached and the WILL Ex.PW1/2 is a registered and last WILL of deceased Smt. Amrit Kaur and site plan annexed to the WILL has also been proved on record being Ex.PW1/3, so, there was no need to pass preliminary decree and as per site plan Ex.PW1/3, the shares were determined by the testator herself, while executed the WILL dated 15.09.2004. He has further submitted that he has failed to prove on record that WILL dated 15.09.2004 was executed by the deceased Smt. Amrit Kaur under any pressure, as alleged by the appellant / defendant. He has further submitted that the probate of the WILL is not required in Delhi. He has further submitted RCA No.18/2012 Page No.12 of 22 that since the respondent has duly proved the execution of the WILL Ex.PW1/2 by Smt. Amrit Kaur i.e. the mother of the parties to the present lis and the site plan Ex.PW1/3 annexed to the WILL has also been proved on the record and as per WILL Ex.PW1/2 and site plan annexed with the WILL, which is Ex.PW1/3, the portion shown red in colour (A & AA) has been bequeathed to the respondent and portion (B & BB) has been bequeathed to the appellant and there are two road on northern and southern sides of the shares of both the parties and there is no hurdle for effecting partition, so, as per WILL Ex.PW1/2 dated 15.09.2004, the deceased Amrit Kaur had bequeathed western side B & BB portion to the appellant and red portion shown A & AA on the eastern side in site plan annexed with the WILL Ex.PW1/3 is bequeathed to the respondent and thus the appeal of the appellant is devoid of merit, so, there is no infirmity in the impugned judgment and decree under appeal and prayed for dismissal of the present appeal.
16. I have given thoughtful considerations to the submissions made by Ld. Counsel for the parties and perused the record.
17. The perusal of the record shows that the respondent / plaintiff has filed the suit for partition, RCA No.18/2012 Page No.13 of 22 possession and injunction against the defendant, on the basis of the WILL dated 15.09.2004 executed by Smt. Amrit Kaur i.e. mother of the parties to the lis and prayed for passing the decree of partition of the suit property bearing No.1/9454, Gali No.7, West Rohtash Nagar, Shahdara, Delhi by metes and bounds, as per the site plan annexed with the WILL and also prayed for passing a decree of possession of the half portion of the suit property, as per site plan annexed with the WILL and further prayed for passing a decree of permanent injunction in favour of the plaintiff and against the defendant for restraining the defendant from selling, alienating or disposing off the same or creating any third party interest in the suit property and in order to prove her case, she has examined herself as PW1 vide her affidavit Ex.P1. In one way or the other, she has reiterated the contents of the plaint in her affidavit. She has relied upon the documents Ex.PW1/1 to PW1/5. She was subjected to cross examination by the Ld. counsel for the defendant. But, despite of her cross examination, her testimony has gone unimpeached and Sh. Munish Kumar, Record Keeper from the office of Sub RegistrarIV, Seelampur has been examined as PW2, who has proved the registration of the WILL Ex.PW1/2. He was also subjected to the cross RCA No.18/2012 Page No.14 of 22 examination by the Ld. counsel for the defendant and Sh. I K Nayyar has been examined as PW3, who is none but attesting witness of the WILL and he has proved the execution of the WILL Ex.PW1/2 and this witness was also subjected to the cross examination by the Ld. counsel for the defendant, but, the testimony of this witness has also gone unimpeached and after the completion of the evidence of the plaintiff, the matter was adjourned for the evidence of the defendant but, despite of availing sufficient time and opportunities, the defendant has failed to lead any evidence and vide order dated 02.05.2011, the evidence of the defendant was closed, by order, by the Ld. Trial Court.
18. The Ld. counsel for the appellant has submitted that the Ld. Trial Court ought to have passed preliminary decree for determining the shares of the parties to the present lis and then the local commissioner was required to be appointed and thereafter on the basis of the report of local commissioner, the final decree could be passed in accordance with the provisions of the Code of Civil Procedure.
19. Whereas, from the perusal of the last WILL dated 15.09.2004 executed by Smt. Amrit Kaur, relied upon by the plaintiff, which has been proved on record being RCA No.18/2012 Page No.15 of 22 Ex.PW1/2 by the attesting witness of WILL namely Sh. I K Nayyar, who has been examined as PW3 shows that the deceased testator namely Sh. Amrit Kaur had categorically mentioned in para no.8 of the WILL that "eastern portion of the property marked as A & AA in red ink shall devolve upon my daughter Mrs. Poonam Rani wife of Sh. B.B. Khullar. Western portion marked as B & BB shall devolve upon my son Rajan son of late Gurdayal Singh"
and perusal of the site plan Ex.PW1/3 annexed to the WILL, also makes it clear that the deceased testator had already prescribed and determined the shares of both the legatees i.e. the parties to the present lis and there are roads on both sides of the shares of the parties and the deceased testator had bequeathed equal shares to her both children i.e. the parties to the present lis. So, in the considered opinion of this court, partition can be effected between the parties in the light of Ex.PW1/3 i.e. site plan annexed to the WILL. The WILL has been duly proved by the PW3 namely Sh. I K Nayyar, who is the one of the attesting witness to the registered WILL dated 15.09.2004 and testimony of PW3 has gone unimpeached, thus, from the testimony of PW3, the execution of the WILL Ex.PW1/2 has been duly proved and site plan annexed to the WILL has also been proved on RCA No.18/2012 Page No.16 of 22 record being Ex.PW1/3 and as per mandate of provisions of order 20 rule 18(2) of CPC "The Court, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree". Whereas, in the case in hand, the effective decree of partition and possession can be passed in the light of the WILL Ex.PW1/2 and site plan annexed to the WILL Ex.PW1/3, so, there was no need to pass preliminary decree and it is settled principle of law that the probate of the WILL in DELHI is not mandatory.
20. Their lordship of Hon´ble Supreme Court in case Clarance Pais and Others etc. v. Union of India, AIR 2001 SC 1151, after discussing the provisions of section 213 and 57 of the Indian Succession Act was pleased to hold "a combined reading of section 213 and 57 of the Indian Succession Act would show that where the parties to the WILL are Hindus or the properties in dispute are not in the territories falling under section 57(a)&(b), sub section 2 of 213 of the Indian Succession Act applies and sub section 1 has no application. As consequence in probate WILL not be required to be obtained by the Hindus in respect of a WILL made outside those territories or regarding the immovable properties situate outside those territories. The provisions of section 57 and 213 of Indian Succession Act RCA No.18/2012 Page No.17 of 22 provides as follows : "57. Application of certain provisions of Part to a class of wills made by Hindus, etc. The provisions of this Part which are set out in Schedule III shall, subject to the restricts and modifications specified therein, apply
(a) to all wills and codicils made by any Hindu, Buddhist, Sikh of Jaina, on or after the first lady of September, 1870, within the territories which at the said date were subject to the Lieutanant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and
(b) to all such wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits; and
(c) to all wills and codicils made by any Hindu, Buddhist, Sikh of Jaina, on or after the first day of January, 1927, to which those provision:
Provided that marriage shall not revoke any such will or codicil."
"Section 213. Right as executor or legatee when established.
(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate or the will under which the right is claimed, or has granted letters of administration with the will or with a copy of authenticated copy of the will annexed.
(2) This section shall not apply in the case of the wills made by Muhammadans, and shall only apply RCA No.18/2012 Page No.18 of 22
(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the classes specified in clauses (a) and (b) of section 57; and
(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962, where such wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits."
21. Whereas, their lordship of Delhi High Court in case Sanjay Gupta and another v. Ved Kanti Gupta and another, 1994 IV A.D. (DELHI) 330, is pleased to hold that "it is not necessary to have the WILL probated in DELHI".
22. Their lordship of Delhi High Court in case Capt. (Retd.) O.P. Sharma and another v. Kamla Sharma, 158 (2009) Delhi Law Times 631 (DB), is pleased to hold that "as regards probate of a WILL, it is settled law that in DELHI to enforce a WILL probate is not required".
23. Their lordship of Punjab and Haryana High Court in case Behari Lal Ram Charan v. Karam Chand Sahni and others, AIR 1968 P&H 108, is pleased to hold that "we hold that in a suit instituted in DELHI, it is not RCA No.18/2012 Page No.19 of 22 necessary to obtain probate of a WILL before any claim could be based on that WILL".
24. Even otherwise, conjoint reading of section 57 & 213 of of Indian Succession Act, make it crystal clear that the probate of the WILL in DELHI is not mandatory. Since the deceased had already determined the shares of the legatees, so, in the considered opinion of this court, there was no need for passing preliminary decree and in the given circumstances, I am inclined to hold that the Ld. Trial Court has not committed any error while passing the impugned judgment and decree under appeal, without passing any preliminary decree and since the execution of the WILL dated 15.09.2004 of the deceased Amrit Kaur has been duly proved on the record of the Ld. Trial Court, so, the plaintiff is entitled for decree of partition and in view of determination of the shares of the legatees i.e. parties to the present lis by the deceased testator in her WILL Ex.PW1/2 and site plan annexed to the WILL Ex.PW1/3, the plaintiff is also entitled for the possession of her share shown red in site plan annexed to the WILL Ex.PW1/3 and in view of the entitlement of the plaintiff for decree of partition, she is also entitled to the decree of possession of her share in the suit property, as mentioned above, and the plaintiff is also RCA No.18/2012 Page No.20 of 22 entitled to the decree of permanent injunction for restraining the defendant from alienating or creating third party interest in the suit property and since the onus of proving the issues no.1,2&3 was there on the plaintiff and the plaintiff has successfully discharged her onus of proving these issues, so, the Ld. Trial Court has rightly decided the issues no.1,2&3 in favour of the plaintiff, so, this court does not find any infirmity in the findings of the Ld. Trial Court on issues no. 1,2&3, so, the same stand upheld. Since the burden of proving issues no.4,5&6 was on the defendant, but, the defendant has failed to lead any evidence to prove these issues despite of availing sufficient time and opportunities and no suggestion has been put fourth to the plaintiff regarding the valuation of the suit property during her cross examination and the evidence of the plaintiff was closed on dated 31.01.09 and thereafter number of opportunities and last opportunities were given to the defendant to lead the evidence. But, despite of availing number of opportunities and last opportunities, when the defendant failed to lead any evidence for a period of more than two years, then the Ld. Trial Court vide order dated 05.04.2011 was pleased to close the evidence of the defendant. So, in the given circumstances, I am inclined to hold that the submission of RCA No.18/2012 Page No.21 of 22 the ld. counsel for the appellant is without any substance, when he has submitted that sufficient opportunity was not granted to the appellant to lead the evidence in the trial court. The defendant has failed to bring on record any cogent evidence to prove the issues no.4,5&6, so, the Ld. Trial Court has rightly decided the issues no.4,5&6 against the defendant.
25. Accordingly, I do not find any force in the submissions made by the Ld. Counsel for the appellant. Whereas, I am having full inclination with the submissions made by the ld. counsel for the respondent. Accordingly, I do not find any infirmity in the impugned judgment and decree under appeal passed by the Ld. Trial Court. So, the same stand upheld. Accordingly, the findings of the Ld. Trial Court on the issues are confirmed. Resultantly, appeal of the appellant stands dismissed, being devoid of merit. Decree sheet be prepared accordingly. Parties are left to bear their own costs. File be consigned to the record room. The record of the trial court is ordered to be returned. Announced in the open Court on 28.02.2013 ( Pawan Kumar Matto ) Additional District Judge03 (East)/KKD/Delhi / 28.02.13 RCA No.18/2012 Page No.22 of 22