Delhi District Court
Ms. Neeraj vs Shanti Devi on 27 July, 2024
IN THE COURT OF SENIOR CIVIL JUDGE CUM RENT
CONTROLLER (WEST), TIS HAZARI COURTS, DELHI
Presided by : Sh. Himanshu Raman Singh
Civil Suit No.9351/16
CNR No.DLWT-03-000868-2014
Ms. Neeraj
Widow of Late Sh. Gavender Singh
R/o 136-137, C-Block,
J.J.Colony, Hastsal,
Uttam Nagar, Delhi-110059. ..... Plaintiff
Versus
1. Smt. Shanti Devi (now deceased)
W/o Sh. Rajpal Singh
2. Sh. Jitender Singh
S/o Rajpal Singh
Both R/o 136-137, C-Block,
J.J.Colony, Hastsal, Uttam Nagar,
Delhi-110059. ...... Defendants
SUIT UNDER SECTION 31 OF THE SPECIFIC RELIEF ACT,
1963, FOR CANCELLATION AND FOR DECLARATION WITH
PERMANENT & MANDATORY INJUNCTION.
Date of Filing : 04.09.2014.
Date of Judgment : 27.07.2024
Decision : Dismissed
JUDGMENT
_________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 1 of 44 RELIEF SOUGHT
1. The present suit has been instituted by the plaintiff seeking decree of cancellation of the written instrument ad-judging the documents fraudulently obtained by the defendants from the plaintiff and subsequent acts and deed made by the defendants against the interest of the plaintiff and for declaration with permanent & mandatory injunction. The plaintiff has prayed for the following reliefs :-
(a). A decree of cancellation of the documents bearing signatures of the Plaintiff which are in possession of the Defendants in respect of suit property no.136-137, C-Block, J.J. Colony, Hastsal, Uttam Nagar, Delhi-110059, thereby adjudging the same to be void and the defendant be directed to deliver up the sald documents and destroy the same before this Court and same be canceled.
(b). A decree of permanent injunction restraining the Defendants from entering into any Agreement, alienating, parting with the possession, transferring, executing sale documents or create third party interest in respect of property bearing No. 136-137, C Block, J.J. Colony, Hastsal, Uttam Nagar, Delhi- 110059 measuring 50 Sq Yds by forcibly dispossessing the Plaintiff from the same.
(c). A decree of mandatory injunction directing the Defendants to release the common possession of the suit property to the plaintiff being licensee at the Will of the Plaintiff.
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(d). A decree of declaration declaring the sale transaction dated 05.11.2004 between Sh. Nathu Khan son of Sh. Ghasi Khan and Defendant no.1 to be Benami thereby declaring the Defendant no.1 as Benamidar and accordingly, the Plaintiff be declared to be the sole and exclusive owner of the suit property bearing No. 136-137, C-Block, J.J. Colony, Hastsal, Uttam Nagar, Delhi-110059.
(e). Cost of the suit.
FACTS STATED IN THE PLAINT
2. The Plaintiff is residing at the property bearing No.136-137, C-Block, J.J. Colony, Hastsal, Uttam Nagar, Delhi-110059 (hereinafter called the 'suit property') along with her three school going daughters. The aforesaid property was purchased by her deceased husband on 05.11.2004 vide Registered Agreement to Sell and other transfer documents including possession letter and receipt. The husband of the Plaintiff was a Govt. Employee in Royal Netherlands' Embassy at Chanakya Puri, New Delhi. The said property was the self acquired property of the husband of the Plaintiff, however due to love and affection the same was purchased in the name of defendant no.1 mother of the husband of the plaintiff. The defendant no.1 was bound to protect right of the family of the Plaintiff being trustee of the suit property.
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3. It has been stated that the defendants are living in the suit property being licensee at the will of the plaintiff, who is owner by virtue of the rights devolved upon her after the death of her husband since 29.03.2014. It has been further stated that at the time of execution of the transfer documents in favour of the defendant no.1, the intention of late Sh. Gavender Singh was clear to the effect to create the documents for love and affection and for the benefit of the plaintiff and his three daughters. It has been further stated that the plaintiff is in uninterrupted possession in the suit property and the defendants have no authority or competence to create disturbance in the peaceful enjoyment of the suit property by the Plaintiff and her children. It is stated that the transfer documents in favour of defendant no.1 which are in the possession of defendant no.1 & 2 is the result of benami transaction and the defendant no.1 is the benamidan in the said transaction.
4. It has been further stated that none of the defendant was having any capacity and fiscal soundness to purchase the suit property. It has been further stated that after the death of husband of the plaintiff, the defendants adopted dishonest way and the intention of the defendants became malafide and defendant no.1 turned dishonest and is trying to defeat right, title or interest of the plaintiff in respect of suit property with _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 4 of 44 evil eyes. It has been submitted that the defendants are trying to misuse the transfer documents and accordingly, they started harassing the plaintiff by creating different tactics and criminal modus-operandi in order to dispossess the plaintiff from the suit property. It has been stated that the defendant no.2 has also obtained signatures of the plaintiff on some blank papers on 02.08.2014 on the pretext that same are required for house tax purposes. It has been further stated that the Plaintiff has become the owner and there is sound evidence of definite character of direct nature of the factum of Benami and to establish circumstances raising the inference of the fact that the transaction dated 05.11.2004 between the Defendant no.1 and Sh. Nathu Khan son of Ghasi Khan was Benami. The intention and surrounding circumstances, which the essence of Benami and same is shrouded, in a thick wheel which cannot, be easily pierced through.
5. It has been further stated that all the ingredients to prove the sale transaction of suit property dated 05.11.2004 are (i) the source from which the purchase money came; (ii) the nature and possession of the property, after the purchase; (iii) motive, if any, for giving the transaction a Benami colour; (iv) the position of the parties and relationship, between Defendant no.1, Plaintiff and her husband late Sh. Gavender Singh; (v) the custody of the title deeds after the sale; (vi) the conduct of _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 5 of 44 the parties concerned dealing with the property after the sale transaction. It is stated that all these circumstances are heavily in favour of the Plaintiff.
6. It is stated that it is well settled that the benami transactions are generally recognized, where a person like late Sh. Gavender Singh purchases the property for the benefit of his family members by paying consideration amount to the vendor, in such case the transferee (like Defendant no.1 herein) holds the property for the benefit of the family of the actual purchaser (like late Sh. Gavender Singh and after his death, the Plaintiff), the said transaction is called as Benami.
7. It has been further stated that on 06.08.2014 at about 9.30pm, the Defendants used their extraordinary force by taking help of local anti-social elements in order to dispossess the Plaintiff from the suit property forcibly. Somehow, due to intervention of the neighbours, the Plaintiff could hardly save her possession. The Plaintiff is a destitute lady having three daughters of tender age who are innocent and the Plaintiff has no physical courage to face the Defendants and their henchmen who are trying to grab the property of the husband of the Plaintiff by dispossessing the Plaintiff. It has been further stated that the Plaintiff lodged a police complaint by way of Regd. Post on 07.08.2014 but due to the influential _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 6 of 44 force of the Defendants, the police showed their reluctance to take any action against the Defendants and their henchmen.
8. It has been further stated that on 11.08.2014, some persons known as Thekedar and Pehalwanji and their associates and friends visited the premises of the plaintiff. The plaintiff asked them the reason for their visit, and on enquiry the said Thekedar told the plaintiff that he is going to purchase this property from Defendant no.2 who is going to enter into an Agreement to sell of the suit property and sale transaction is to take place by 20.09.2014. The plaintiff was shocked to know that the defendants are trying to sell the entire property of the Plaintiff. It has been further stated that the cause of action arose on 05.11.2004 when the property was purchased by the husband of the Plaintiff in the name of Defendant no.1 being Benami; it further arose on 29.03.2014 when the husband of the Plaintiff died; it also arose on 06.08.2014 when the Defendants tried to dispossess the Plaintiff; it further arose on 11/08/2014 when the property dealers visited the property of the Plaintiff for illegal purchase and transfer.
PLEAS TAKEN IN WRITTEN STATEMENT
9. Joint Written Statement has been filed by the defendants.
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10. It has been averred that the suit, in the present form, is neither maintainable nor sustainable in the eyes of law and the plaintiff has no locus standi to file the present suit. It has been averred that the plaintiff in no way concerned either with the answering defendants or with the deceased son of the defendant No.1. It has been further submitted that the identity proof as filed by the plaintiff is not of the widow of deceased son of the defendant No.1 as the person whose I.D. Proof has been placed on record, in the garb of to be the plaintiff, is not of Smt. Neeraj, rather it is of a lady named Smt. Pinki, who had never been married with the deceased son defendant No.1. It has been averred that on the basis of misrepresentation and falsehood, the present suit has been filed, which is neither maintainable nor legally enforceable in the eyes of law and the photocopy of the true identity proof of the widow of deceased son of the defendant No.1 namely Smt. Neeraj was placed on record.
11. It has been averred that the defendant No.1 is the lawful and absolute owner of the suit property, having in possession of the complete chain of title documents in respect of the suit property and as such, the defendant No.1 has got all legal rights to deal with the suit property, in any manner, she likes. It has been averred that plaintiff has got no right, title or interest to raise any objection in respect of the lawful _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 8 of 44 ownership rights of the defendant No.1 in respect of the suit property and hence the present suit merits dismissal under provisions of Order VII Rule 11 CPC.
12. It has been averred that suit property was purchased by the defendant No.1 from her own funds and one Sh. Rajender Singh had withdrawn the amount of sale consideration to be paid to the seller, from the account of the defendant No.1. This fact can be ascertained from the Statement of Account of the defendant No.1. It has been averred that sale documents, showing the sale of the suit property in favour of the defendant No.1, were executed on 05.11.2004 and the sale consideration was settled at Rs.80,000/- and defendant no. 1 had given a cheque to Sh. Rajender Singh, who withdrew the money from her account bearing No. 9410 maintained with Canara Bank, G.T. Road, Etah (U.P.) and accordingly, amount of Rs.80,000/- was withdrawn on on 29.10.2004.
13. It has been averred that the deceased Late. Sh. Gavender Singh was not the husband of the plaintiff, as the person who has filed the present suit, is not the wife of the plaintiff. Furthermore, the suit property was purchased by the defendant No.1 in her name, after making the payment of valid sale consideration from her bank account. It is further denied that the suit property was the self acquired property of the husband _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 9 of 44 of the plaintiff. It is averred that the entire story put forward by the plaintiff is baseless, misleading and concocted one.
14. It has been denied that the defendant No.1 is mother in law of the plaintiff and defendant No.2 is brother in law of the plaintiff, as alleged. On the contrary it is stated that the plaintiff, who allegedly claims herself to be the wife of the deceased son of defendant No.1, has never been married with the deceased. Rather Smt. Neeraj is the widow of Late. Sh. Gavender Singh, but the person who purports herself to be the wife of Late. Sh. Gavender Singh, is not Smt. Neeraj, rather she is Smt. Pinki. It is further denied that the defendants are living in the suit property being licensee at the Will of the plaintiff who is owner by virtue of the rights devolved upon her after the death of her husband since 29.03.2014. It is also denied that with the intention of well being of the children and the plaintiff, Late. Sh. Gavender Singh husband of the plaintiff made different assets for his family comprising of plaintiff alleged, and her three daughters. It is also denied that the suit property was purchased in the name of the defendant No.1 due to love and affection and respect towards the defendant No.1 by Late. Sh. Gavender Singh, husband of the plaintiff, as alleged. It is also denied that it follows that the property in suit is the personal property of Late. Sh. Gavender Singh, husband of the plaintiff, as alleged.
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15. It has also been denied that the defendants have no authority competence to create disturbance in or the peaceful enjoyment of the suit property by the plaintiff and her children, as alleged. It is also denied that the transfer documents in favour of defendant No.1 which are in the possession et defendant No.1 result of benami transaction & 2 is the and the defendant No.1 is the benamidar in the said transaction. It has been denied that the defendants are trying to misuse the transfer documents, as alleged. It is also denied that accordingly, they started harassing the plaintiff by creating different tactics and criminal modus-operandi in order dispossess the plaintiff from the suit property, as alleged.
ISSUES
16. From the pleadings of the parties, following issues were framed on 30.09.2015:-
1. Whether the plaintiff has no locus standi to file the present suit? OPD
2. Whether the plaintiff is entitled to a decree of cancellations of documents as prayed para (a) of prayer clause? OPP
3. Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendant from entering into agreement, alienating, parting with possession, transferring or creating any third party interest in respect of property _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 11 of 44 bearing No.136-137, C-Block, J.J. Colony, Hastsal, Uttam Nagar, Delhi-110059? OPP
4. Whether the plaintiff is entitled to a decree of Mandatory Injunction, directing the defendants to release the common possession of the suit property? OPP
5. Whether the plaintiff is entitled to a decree of Declaration, declaring the sales transaction dated 5.11.2014 between Sh.
Nathu Ram and defendant No.1 as benami transaction? OPP
6. Whether the plaintiff is entitled to a decree of sole and exclusive owner of the suit property? OPP
7. Relief.
EVIDENCE ADDUCED
17. In order to prove her case, the plaintiff examined herself as PW-1, who led his evidence by way of affidavit Ex.PW-1/A. She has relied upon the following documents:-
Ex.PW1/1 Copy of voter Card.
Ex.PW1/2 Copy of office I card of husband of the
plaintiff.
Ex.PW1/3 Copy of death certificate of husband of
the plaintiff
Ex.PW1/4 Copy of registered agreement to sell
Ex.PW1/5 Copy of receipt dated 05.11.2004
_________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 12 of 44 Ex.PW1/6 Copy of affidavit of Nathu Khan Ex.PW1/7 Copy of possession letter Ex.PW1/8 Copy of Will of Nathu Khan Ex.PW1/9 Copy of Complaint dated 07.08.2014 lodged by plaintiff against the defendant Ex.PW1/10 Two postal receipts & Ex.PW1/11 Ex.PW1/12 Copy of insurance policy Ex.PW1/13 Copy of receipt of payment of insurance premium Ex.PW1/14 Copy of receipt of insurance policy Ex.PW1/15 Coloured copy of the photographs of the to marriage of plaintiff Ex.PW1/36 Ex.PW1/37 Coloured copy of delivery of memo of and dead body of husband of plaintiff and Ex.PW1/38 postmortem report.
18. PW-1 was cross-examined by the Learned Counsel for the defendant at length.
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19. In support of her case, the plaintiff has also examined Sh. Jograj Singh as PW2 and Sh. Rajeev Tiwari @ Rajbir Tiwari as PW3. They were also cross-examined by the Learned Counsel for the defendant at length.
20. In order to prove their case, the defendants examined Sh.
Jitender Singh as DW1, who led his evidence by way of affidavit Ex.DW-1/A. He has relied upon the documents :-
Ex.DW1/1 Photocopy of election I card of one
Neeraj Devi
Ex.DW1/2 Statement of account of mother of DW1
Ex.DW1/3 (OSR) Photocopy of death certificate of Smt.
Shanti Devi
Ex.DW1/4 (OSR) Copy of Scholar's Register and transfer
certificate form of Swami Deen
Bandhu Inter College Sirauli
Ex.DW1/5 (OSR) Photocopy of receipt of premium policy
of bond
Mark B Copy of Election I card of one Pinki
Ex.DW1/7 (OSR) Copy of registered Will dated
23.12.2017
21. Defendants have also examined Sh. Jai Prakash Narain Dubey, Assistant to Principal, Swami Deen Bandhu Inter College _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 14 of 44 Sirauli, as DW2. He had brought the summoned record that is Scholar's Register and transfer certificate form of one Pinki. Copy of the same was Ex.DW2/1.
22. Sh. Kapil Bhardwaj, AO, LIC, was examined as DW3, who brought the record of LIC Policy No. 563325419 in the name of Gavender Singh Chauhan S/o. Sh. Raj Pal Singh. The same was Ex.DW3/1 (colly).
23. Sh. Alok Shankhvar, Clerk, Sadar Tehsil, Registry Office, Etah, U.P., was examined DW4 and he has brought the record of Will dated 23.12.2014 executed by Smt. Shanti Devi, which was registered in Vol. No. 108 pages 31 to 40 at S. No. 551.
24. Smt. Niraj was examined as DW5 who filed her affidavit-in- evidence Ex.DW5/A and relied upon the following documents :-
Ex.DW5/1 Copy of photograph
Ex.DW5/2 Identity card i.e. Sarvoday Ashram of Smt.
Shanti Devi
Ex.DW5/3 Voter I Card of DW5
Ex.DW5/4 Aadhar card of her son namely Goldi
Mark X Voter Slip of DW5
Mary Y Complaint to Royal Netherland Embassy
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25. Thereafter, the defence evidence was closed.
ISSUE WISE FINDINGS
26. All issues are taken up together as interwoven questions of law and facts are involved in the issues:
1. Whether the plaintiff has no locus standi to file the present suit? OPD
2. Whether the plaintiff is entitled to a decree of cancellations of documents as prayed para (a) of prayer clause? OPP
3. Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendant from entering into agreement, alienating, parting with possession, transferring or creating any third party interest in respect of property bearing No.136-137, C-Block, J.J. Colony, Hastsal, Uttam Nagar, Delhi-110059? OPP
4. Whether the plaintiff is entitled to a decree of Mandatory Injunction, directing the defendants to release the common possession of the suit property? OPP
5. Whether the plaintiff is entitled to a decree of Declaration, declaring the sales transaction dated 5.11.2014 between Sh.
Nathu Ram and defendant No.1 as benami transaction? OPP
6. Whether the plaintiff is entitled to a decree of sole and exclusive owner of the suit property? OPP _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 16 of 44
27. I have heard the final arguments at length and gone through the entire record carefully. Except issue no 1, onus to prove other issues was upon the plaintiff.
ARGUMENTS ADVANCED BY THE PLAINTIFF
28. It has been argued by Learned Counsel for the plaintiff that the suit property i.e. 136-137, C-block, J.J. Colony Hastsal Uttam Nagar, Delhi-110059, was purchased by the deceased husband of the plaintiff on 05.11.2004 vide registered agreement to sell and others transfer documents. The husband of the plaintiff was a Govt. Employee in Royal Netherlands Embassy at Chanakya Puri, New Delhi. The said property was self acquired property of the husband of the plaintiff, however due to love and affection the same was purchased through the name of the defendant no.1 i.e. mother in law of the plaintiff. It is contended that the suit property is the personal property of late Sh. Gavender Singh, husband of the plaintiff. It has been argued by Learned Counsel for the plaintiff that the plaintiff is in uninterrupted possession in the suit property. The defendants have no authority or competence to create disturbance in the peaceful enjoyment of the suit property by the plaintiff and her children.
29. It has been argued by Learned Counsel for the plaintiff that the defendant no. 2 submitted in his WS that the plaintiff in no _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 17 of 44 way concerned either with the answering defendants nor with the deceased son of the defendant no.1. It is further mentioned that the plaintiff is not the widow and plaintiff has proved her marriage through photographs. It has been argued by Learned Counsel for the plaintiff that the plaintiff has become the owner and there is sound evidence of definite character of direct nature of the factum of Benami and to establish circumstances raising the inference of the fact that the transaction dated 05.11.2004 between the defendant no.1 and Mr. Nathu Khan was benami.
30. It has been argued by Learned Counsel for the plaintiff that it is well settled that two kinds of Benami transitions are generally recognized where a person like late. Sh. Gavender Singh purchased the property for the benefit of his family members by paying consideration amount to the vender and in in case the transferee(defendant no.1) holds the property for the benefit of the family of the family of the actual purchaser (late Sh. Gavender Singh) and the said transaction is called as Benami.
31. It has been argued by Learned Counsel for the plaintiff that the only defense of the defendant is that the plaintiff has no connection of any kind with the defendants or deceased Gavender Singh whereas the plaintiff is physical possession _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 18 of 44 since 05.11.2004 and defendants were living there only being as a licensee and after the death of deceased son of the defendant no.1 and the plaintiff not of Smt. Neeraj rather it is that of a lady named Smt. Pinki who has never been married with the deceased son of the defendant no.1. It is further mentioned in WS that the suit property was purchased by the defendant no.1 in which process one Mr. Rajender singh had withdrawn the amount of sale consideration to be paid to the seller. It has been argued by Learned Counsel for the plaintiff that the plaintiff is legally wedded wife of the deceased Gavender Singh on 03.03.2003 as per Hindu rites and ceremonies and three daughter is born out to this marriage and there after the death of the husband of the plaintiff on 29.03.2014 the plaintiff has become owner of the suit property being successor of the true owner of the suit property. Further it has been submitted that section 7 of the Hindu Marriage Act, 1955 talks about the "ceremonies for a Hindu marriage" and its essential requirement is "Saptpadi" for the solemnization of marriage among Hindus and as the complainant has stated that the marriage was performed, which means rites and ceremonies has been performed. It has been argued by Learned Counsel for the plaintiff that the husband of the plaintiff died on 29.03.2014 and after his death the defendants adopted dishonest way. The defendants were trying to misuse the transfer documents. The defendant no.2 had also obtained _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 19 of 44 signatures of the plaintiff on some blank papers on 02.08.2014 on the pretext that same are required for house tax purposes. It has been argued by Learned Counsel for the plaintiff that the defendant no.2 produced a woman as witness who identified herself as Gavender's wife but she did not provide any proof of her marriage whereas the first wife was divorced on 05.12.2000 from Court of Etah, UP. Before this no one ever come to the plaintiff or anywhere to make any kind of claim, she has only come to give false statement before this Court due to deception of the defendant no.2.
32. It has been argued by Learned Counsel for the plaintiff that the plaintiff has been living alongwith her children on the suit property since 05.11.2004 except for the incident of 06.08.2014 no one has ever disturbed her peaceful possession. It is also mentioned that the plaintiff is getting compensation after her husband's death only because of her husband and not the plaintiff herself has done anything.
ARGUMENTS ADVANCED BY THE DEFENDANT
33. Per Contra, it has been argued by Learned Counsel for the defendants that defendants raised relevant and substantial objections as no locus standi, no cause of action, not coming of the plaintiff with clean hands before this Court and the plaintiff is guilty of suppression of the real facts of the case as _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 20 of 44 the plaintiff is not the real wife of Late Sh.Gavender Singh and she is guilty of personating her name as Ms. Neeraj in place of Pinki. The defendants not only proved that the property in question was purchased by defendant No.1 from her own funds and savings from Sh.Nathu Khan S/o Ghasi Khan on 5.11.2004 but also proved that neither the plaintiff is the real wife of Late Sh. Gavender Singh by the name of Ms. Neeraj, as she is personating herself in place of Pinki and not the property in question was purchased by her alleged husband from his own income and savings.
34. It has been argued by Learned Counsel for the defendants that in the entire plaint or affidavit of the plaintiff she nowhere whispered her dual name, i.e. Ms. Neeraj and Pinki. Even Her father who has appeared as PW-2 Sh.Jograj Singh did not disclose the real name of his daughter and avoided to call his daughter either by her original or nickname or personated name as Ms. Neeraj. It is submitted that no person from the side of Late Sh. Gavender Singh can be seen in the alleged photographs of marriage of the plaintiff. Therefore, there is no existence of alleged marriage with Late Sh.Gavender Singh. It is submitted that after the separation from his first wife whose actual name is Neeraj Devi(DW-5), the plaintiff developed intimacy with Sh. Gavender Singh and started living with him in live-in relationship. For the sake of argument if it is _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 21 of 44 supposed that there was a marriage between the plaintiff and Late Sh. Gavender Singh then the said marriage is void being the first wife, because there is no proof of divorce between the first wife and Sh. Gavender Singh, therefore, the alleged marriage from all corners is void or the same is not in existence. Although the plaintiff has filed an Order dated 5.12.2000 titled as Sh. Gavender Singh Vs. Smt.Neeraj decided from the court of Sh. Omkar Singh Yadav, Sr.CJM-I, Etah, U.P. along with an Application under Order 7, Rule 14 (2), read with Section 151 CPC dated and attested on 24.1.2023. The same is not free from reasonable doubts because it has not been supported by any decree and the same lacks identification of parties, i.e. photographs, signatures of the parties, etc. Further, no endorsement of copying section as who and when it has been applied and who paid copying fee, etc. Further, the same is not corroborated by the cross examination of DW5 (who is the real wife of Late Sh. Gavender Singh) dated 7.5.2022 and re-cross examination of PW-1 dated 4.1.2023 to corroborate the same and waited for final arguments stage with ill intention, to take the benefit for non corroboration of the same, which creates a lot of doubt on the copy of the Order dated 5.12.2000. In the cross examination of PW-1 17.12.2018 and 04.01.2023 the plaintiff stated that it is wrong to suggest that Mr. Gavender Singh has earlier disclosed about the first marriage with Smt. Neeraj _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 22 of 44 Devi and having one son viz. Goldie out of that wedlock.
"After my marriage I came to know that Sh. Gavender Singh had married earlier with a woman, viz. Neeraj Devi and having a son viz. Goldie. I have not taken any action in respect of marriage with Sh. Gavender Singh." It is contended that it is very much clear from the other statement that Sh. Gavender Singh was earlier married with a lady viz. Neeraj Devi and having a son viz. Goldie and the same was confirmed from the cross of PW-2(father of the plaintiff) who has stated that this fact came into his knowledge in 2014. It is submitted that the plaintiff had taken benefits somewhere by the name of Ms. Neeraj and somewhere by the name of Pinki. She has taken all the funds. Gratuity, P.F., Pension, etc. After the death of Sh. Gavender Singh by the name of Neeraj Devi which is clearly reflected from Para No.8 of the application filed by the plaintiff against her husband before Tehsildar Etah for mutation, submitted by the defendant alongwith an application U/O 8, Rule 1 (3) R/s Sec. 151 CPC dated 8.5.2023 which was decided on the last date of hearing and LIC claim from the District Etah, U.P. by the name of Pinki. The DW-2 Sh.Jaiprakash Narain Dubey produced the record i.e. School Register and Transfer Certificate from Swami Deen Bandhu Inter College, Sirauli, Distt. Farukhabad, U.P. Ex.DW-2/1 where the plaintiff studied upto VIIIth Class. On the other hand the plaintiff herself admitted that she has Studied in the _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 23 of 44 said school upto VIIth Class and got admission by the name of Pinki. It is contended that now there remains nothing to say that the plaintiff named Pinki but she is not Ms. Neeraj and moreover Page No. Ex.PW-3/1 record produced by Kapil Bhardwaj, A.O. LIC regional office, Massodabad, Aligarh, U.P. having the copy of Aadhar Card by the name of Pinki and Ex.PW-1/D2 which is a copy of a civil suit pending between the parties in the name and title. "Ms. Neeraj Devi Pinki Vs. Jitender Singh & Ors." It is contended that it is clear that the plaintiff's name is Pinki rather than Neeraj or Neeraj Devi, as she kept changing her name according to her own choice with a view to take undue advantage from the above said offices, therefore, the plaintiff has no locus standi to file the present suit by the name of Ms. Neeraj and she is also liable to be prosecuted Under section 340 of Cr.P.C.
35. It has been argued by Learned Counsel for the defendants that the name of Sh. Gavender's wife Pinki in document PW-1/37 (Receipt Hawalgi Nash). Ex.PW-1/14 (LIC documents) where Pinki is shown as nominee, Ex.PW-1/13 (a Letter from Regional Office of LIC, Jeewan Prakash, Masoodabad, G.T. Road, Aligarh addressed to Pinki Kumar, V.P.O. Rar Patti, Etah. U.P.) and in document post-mortem report Ex.PW-1/38 against Item No.3 the name as Pinki W/o Sh. Gavender Singh is mentioned there. The documents mentioned herein above, _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 24 of 44 exhibited by the Plaintiff herself are itself explanatory that the actual name of the plaintiff is Pinki not Neeraj or Neeraj Devi. Therefore, the plaintiff has no locus standi or cause of action in her favour. The plaintiff stated that the property in question was purchased from Sh. Nathu Khan by way of registered Agreement to Sell, Receipt, Affidavit, Possession Letter and Will dated 5.11.2004 by her deceased husband through mother/Defendant No.1 due to love and affection from the income and savings of plaintiff's husband as he was employed in Royal Netherland Embassy as Gardener and getting salary Rs. 19,500/- at the time of his death in March, 2014. It is submitted that the plaintiff admitted that her alleged husband was hard drinker and due to that he died. He was continuously drinking all days and he used to drink daily 3-4 bottles of liquor. It is submitted that salary of a person is around Rs.20,000/- in the year 2014 then what was the salary of that person before 10 years in 2004 and the property in question is said to have been purchased. Certainly it might not have been more than Rs.7,000/- to Rs.8000/- and moreover he was a hard drinker and used to consume 2-3 bottles of liquor per day, it means he has to spend Rs.100/- to Rs.150/- per day on consuming of liquor. Therefore, the savings of her husband was not more than Rs.5000/- per month in the year 2004, when the property is said to have been purchased. It is contended that a prudent man can imagine how much savings of Late Sh.
_________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 25 of 44 Gavender Singh was left after supporting his family, consisting of four members. Further, the plaintiff failed to show any proof of savings from which source consideration of Rs.4,80,000/- was paid to the seller. The actual consideration amount has nowhere stated by the plaintiff. On the other hand the defendant proved that the property in question was purchased from Sh.Nathu Khan S/o Sh.Ghasi Khan on 05.11.2004 by way of above said documents for a sum of Rs.80,000/-. Whereas the plaintiff has stated in her cross examination that the said property was purchased from one Sh. Pappan for a sum of Rs.4,80,000/- and whereas the defendant No.2/DW-1 Sh. Jitender Singh has proved that the sale consideration amount was paid from mother's account and savings, Passbook of his mother Ex.DW-1/2 where it appears that one of her neighbour Mr. Rajinder Singh (to whom the plaintiff known as her neighbour) has withdrawn Rs.80,000/- on 29.10.2004 for the defendant No.1 to be paid to the seller and despite that the plaintiff admitted in her cross examination that Smt. Shanti Devi Defendant No.1 was owing 6 Bighas land in the native village and the defendant No.2 was working as Security Guard who used to live with his mother. It is contended that therefore there is no reason that the defendant had no source of income in capacity of paying the consideration amount of Rs.80,000/-. Moreover, the defendant No.2 Smt. Shanti Devi was working as Charkha Spinner in _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 26 of 44 Sarvodaya Ashram, Distt. Etah, UP From there she used to earn Rs.2500/- to Rs.3000/- per month. It is contended that the plaintiff further admitted that no one from the side of the plaintiff was present at the time of purchase of the property in question because her husband was injured.
36. It has been argued by Learned Counsel for the defendants that PW-2 father of the plaintiff stated in his Cross Examination that he was made witness in those documents of sale transaction and do not know about other witnesses. He was present at the time of execution and preparation of sale documents of suit property, whereas the document itself shows that the name and signature of PW-2 Sh.Joginder Singh was not there. It is submitted that two witnesses, viz. Wahid Khan S/o Mushtaq Ali and another witness Sh.K. Wahid, Advocate and in his affidavit Ex.PW-2/A, in Para No.2 stated that the property in question was purchased by Late Sh. Gavender Singh on 5.4.2004 whereas the documents itself show that the same was purchased and executed on 5.11.2004 and as per his cross examination the sale amount of Rs.4,80,000/- shown but the real purchase amount is shown in document as Rs.80,000.
37. It has been argued by Learned Counsel for the defendants that the defendant No.1 Smt.Shanti Devi/defendant No.1 has executed a registered Will dated 23.12.2017 in favour of her _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 27 of 44 son defendant No.2 in her life time in respect of the property in question. In this regard a Clerk from Sadar Tehil Etah, U.P. already was produced as DW-4 who exhibited the said Will Ex.DW-4/7. This shows that the defendant No.2 is the exclusive owner of the property in question.
ANALYSIS AND FINDINGS
38. It is the claim of the defendant that the plaintiff is impersonating as Smt. Neeraj Wife of Late Sh. Gavender Singh Chauhan. On 27.08.2019, the Learned Predecessor of this court had issued a notice to Smt. Neeraj at request of the defendant. On 19.09.2019, a lady claiming herself to be Ms. Neeraj appeared in the court, however they were not carrying any original ID proof. She was directed to produce original identity proof on the next date of hearing, however on the next date of hearing i.e. on 09.10.20219, the Counsel for the defendant stated that the original identity proof that is aadhar card and voter ID card of Ms. Neeraj are lying with Sh. R. K. Tomar, the earlier counsel of the defendants. Thereafter, no original documents have been produced by the defendant to substantiate their claim.
39. The plaintiff claim herself to be the lawfully wedded wife of Sh. Gavender Singh Chauhan and further claims to be in possession of the suit property. The plaintiff appeared as PW1 _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 28 of 44 and deposed on the same lines as in the plaint. The plaintiff produced the copy of her I Card as Ex.PW1/1 which shows her name as Neeraj. The plaintiff also produced photocopy of registered agreement to sell, receipt, affidavit, possession letter and will Ex.PW1/4 to Ex.PW1/8, however, did not produce the originals. Thereafter, vide order dated 14.05.2024, it has been recorded that the documents Ex.PW1/4 to Ex.PW1/8 were produced in the court on 24.04.2023 and there is no dispute regarding the existence and proof of the documents. The plaintiff was in possession of the copy of the Identity Card and death certificate of Late Gavender Singh.
40. Perusal of the agreement to sell shows that the same has been executed on 05.11.2004 by Mr. Nathu Khan in favour of Smt. Shanti Devi, mother of Mr. Gavender for Rs. 80,000/-. The agreement is a duly registered agreement in the Sub Registrar Office. The receipt Ex.PW1/5 shows the receipt of Rs. 80,000/- in cash from Smt. Shanti Devi. The possession letter Ex.PW1/7 shows that possession has been handed over to Smt. Shanti Devi. As per the death certificate, Late Gavender Singh passed away on 29.03.2014. The plaintiff has produced complaint given to the SHO PS Uttam Nagar on 07.08.2014 against Smt. Shanti Devi and Jitender Singh for giving threat of dispossession. The plaintiff has also produced the coloured photographs of marriage Ex.PW1/15 to Ex.PW1/36.
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41. PW1 was cross-examined at length, in which she stated that her name is Neeraj and Pinki both. She stated that her husband Mr. Gavender married to her after taking a decree of divorce from his previous wife Mrs. Neeraj. In her entire affidavit, PW1 has nowhere deposed the date of her marriage with Mr. Gavender. It is also important to note that the dead body of Mr. Gavender was handed over to PW1, which proves that PW1 was living with Mr. Gavender. In her cross- examination, PW1 stated that she was married to Mr. Gavender in the year 2003. In her cross-examination, she further stated that at the time of preparation of documents, a cash amount of Rs.4,80,000/- was given to the seller and the property was purchased from Sh. Pappan. She deposed that the cash amount was taken by her brother-in-law Sh. Jitender from her for making the sale consideration of the suit property and the cash amount was arranged by her husband Mr. Gavender Singh. She deposed that at the time of death of her husband, nobody was present. PW1 was further cross- examination for the third time on 04.01.2003. She admitted that she had taken admission in Swami Deen Bandhu Inter College, Sirauli, in the name of Pinki. She admitted that she signed memo of handing over of dead body Ex.PW1/37 by the name of Neeraj @ Pinki. She admitted that she has filed a suit titled Neeraj Devi @ Pinki Vs. Jitender Singh in the District _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 30 of 44 Court Etah. She admitted that after her marriage, she came to know that Mr. Gavender Singh had married earlier with a woman namely Neeraj Devi and having a son namely Goldi. She also admitted that there is no document that is school certificate or birth certificate in her favour by the name of Neeraj Devi.
42. Mr. Jograj Singh was examined as PW2. He deposed that her daughter, the plaintiff was married to Sh. Gavender Singh according to hindu rite and ceremonies and he was present at the time of solemnization of the marriage. He has relied upon photographs Ex.PW1/15 to Ex.PW1/36. A perusal of the photographs show the various ceremonies in the performance of marriage. He was cross-examined at length. In his cross- examination, he deposed that he was present at the time of preparation of sale documents of the suit property and Sh. Gavender Singh paid the amount of sale document. He deposed that the sale transaction was amounting to Rs. 4,80,000/- and he does not know any person in the name of Sh. Rajender Singh. He deposed that he was made a witness in the documents of sale transaction.
43. Plaintiff examined Mr. Rajiv Tiwar as PW3. He was the pandit who had solemnized the marriage between the plaintiff and Sh. Gavender Singh on 03.03.2003. He was also cross-
_________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 31 of 44 examined at length. In his cross-examination, he deposed that he is a neighbour of the plaintiff and prior to 2005, before shifting to Delhi, he was doing the job of Panditai. He deposed that minimum 100 persons were present from groom's side in the functions, however the father of groom was not present.
44. The brother of Mr. Gavender, Mr. Jitender Singh was examined as DW1. He deposed that the plaintiff is Pinki and is never married with Mr. Gavender Singh. He produced on record election ID Card of the original Neeraj Devi as Ex.DW1/1. Perusal of the copy of the I card shows that the same has been prepared on 10.05.2014. DW1 has further stated that he is in possession of the complete chain of title documents and the suit property was purchased by his mother. DW1 produced the statement of account of her mother as Ex.DW1/2. DW1 has deposed that amount of Rs. 80,000/- was withdrawn on 29.10.2004 and the same was handed over to family friend Sh. Rajender Singh for the sale transaction. He deposed that the plaintiff changed her name from Pinki to Neeraj to take benefits of the service of Gavender Singh. He deposed that plaintiff married to Sh. Gavender Singh without the consent and knowledge of his mother and him. DW1 proved the Will executed by Smt. Shanti Devi as Ex.DW1/7. DW1 was cross-examined at length. In his cross-examination, _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 32 of 44 he stated that document Ex.DW1/1 that is I card of original Neeraj Devi was handed over by Smt. Neeraj Devi two years back that is around 2019. Suggestion was given to the witness that the signatures on Ex.DW1/7 that is the Will is not of Smt. Shanti Devi. He admitted that he has not filed any document regarding the first marriage between Smt. Neeraj Devi and late Gavender Singh.
45. DW2 Sh. Jai Prakash from Swami Deen Bandhu Inter College brought the summoned record i.e. register and proved that the name of the plaintiff is Ms. Pinki and has studied upto class 8th.
46. DW3 Sh. Kapil Bhardwaj proved that the LIC policy in the name of Sh. Gavender Singh Chauhan was made to Smt. Pinki.
47. DW4 proved the registered Will Ex.DW1/7 executed by Smt. Shanti Devi.
48. DW5, who is a very important witness, the original Niraj Devi as claimed by the defendant was also examined. She deposed that she was married to late Gavender Singh in 1988 and she exhibited the copy of the family photograph Ex.DW4/1 on the occasion of solemnization of marriage of Sh. Jitender Singh. She admitted that she got separated from her husband in the _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 33 of 44 year 2000 and since then, has been living separately. She deposed that after her separation, the alleged plaintiff impersonating herself as Neeraj starting living with Sh. Gavender Singh in the year 2003. She deposed that since her name was already entered as a nominee in the records of the embassy, the plaintiff had no option except to change her name from Pinki to Neeraj. She further deposed that the plaintiff got prepared the election I card in the name of Neeraj by misusing the photo of the defendant and other documents in order to grab the property of Sh. Gavender Singh. She deposed that she has never been divorced and she is still the real widow of late Sh. Gavender Singh. She produced her original voter Card as Ex.DW5/3 and copy of the voter slip Ex.DW5/5. She was cross-examined at length. She deposed that she does not have any proof of marriage. Her election I card was got prepared by her mother in law. She could not tell the date and year in which her mother in law Smt. Shanti Devi has passed away. She admitted that she came to know about the death of Sh. Gavender Singh in the year 2017. Suggestion was given to the witness that she is the wife of Sh. Suresh Singh. The witness was confronted with a copy of electoral list of Panchayat Election of Zila Kashganj, U.P., Village Ram Nagar, Mark Z at S. No. 1927 at Point A, in which it has been mentioned that Neeraj W/o. Sh. Suresh Singh to which the witness stated that she is not the same person. This document _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 34 of 44 cannot be considered in evidence as the same is neither being proved properly nor any photograph of said Neeraj has been filed on record.
49. The present case is a very strange case. The so-called original wife of Sh. Gavender Singh that is DW5 was not aware about the death of her so-called husband even after three years and became aware of the same only in the year 2017. On the other hand, we have a plaintiff, who changed her name from Pinki to Neeraj Devi, which appears to have been done only to take advantage of the death benefits of Mr. Gavender Singh. Although, DW5 could not produce any document of her marriage, the same is not disputed by the plaintiff. The plaintiff simply claims that she is the lawfully wedded wife of Late Gavender Singh and she is not aware as to whether there was any earlier wife or not.
50. An application under Order 8 Rule 1 (3) CPC was filed by the defendant to place on record report of Naib Tehsildar and similar application was also filed by the plaintiff for placing on record additional document under Order 7 Rule 14 (2) CPC. The plaintiff filed on record the judgment passed by Sh. Onkar Singh Yadav, Learned ACJM, Etah, in Case No. 513/2000 in the case titled as Gavender Singh Vs. Smt. Neeraj. As per the said judgment, the marriage between late Gavender Singh and _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 35 of 44 Smt. Neeraj has been dissolved. The certified copy of the judgment has been placed on record, which is opposed by the defendant on the mode of proof. This court is of the view that there is no reason as to why the said order be not considered in evidence.
51. The defendant has filed order of the Tehsildar Etah passed in the case of Smt. Neeraj Devi @ Pinki Vs. Gajender Singh @ Gavender Singh and Land Management Committee. The order disposed off the application for mutation as successor with respect to cultivated property, which was duly allowed by the Tehsildar. The reading of the above-mentioned document shows that infact the name of the plaintiff was Neeraj Devi @ Pinki.
52. After going through the evidence adduced and documents produced by the parties, this court is of the considered view that the plaintiff is the lawfully wedded wife of late Sh. Gavender Singh and DW5 Ms. Niraj was the earlier wife of late Sh. Gavender Singh. The marriage of DW5 was dissolved in the year 2000 by the Order of Learned ACJM as detailed above. It is, therefore, held that the plaintiff has locus standi to file the present suit. Issue no. 1 is accordingly decided in favour of the plaintiff and against the defendant.
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53. The case of the plaintiff is that she paid Rs. 4,80,000/- in cash to Sh. Nathu Khan. The plaintiff has however failed to placed on record any document to show the same. In the cross- examination, PW1 stated that the property was purchased from Sh. Pappan Kumar. However, in her examination in chief, she stated that the property was purchased from Sh. Nathu Khan. The plaintiff has failed to produce on record any document to show that Sh. Pappan Kumar was the owner of the property in question. The plaintiff has also failed to show that any documentary proof to prove that infact, late Sh. Gavender Singh had the resources to pay the amount of Rs. 4,80,000/-.
54. The issues in civil cases are to be decided on the scale of preponderance of probabilities. The doctrine of preponderance of probabilities was discussed in the judgment titled Postgraduate Institute of Medical Education and Research v. Jaspal Singh, (2009) 7 SCC 330 which reads as under:
17. In Syad Akbar v. State of Karnataka (1980) 1 SCC 30 this curt dealt with in details the distinction between negligence in civil law n din criminal law. It has been held that there is marked difference as to the effect of evidence, namely, the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the court, as a _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 37 of 44 reasonable man, beyond all reasonable doubt".
55. In Dr. N.G. Dastane Vs. Mrs. S. Dastane on 19 th March, 1975 AIR 1975 SC 1534, (1975), SCC 326, Hon'ble Supreme Court held as under:-
"24. The normal rule which governs civil proceedings is that a fact can be said to be established if it proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either either believes it to exist or considers its existence so probably that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he links that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note : "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue "Per Dixon, J. In Wright v. Wright (1948) 77 C.L.R. 191 at p. 210; or as said by Lord Denning, "the degree of probability depends on the subject-matter. In proportion as the offence is _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 38 of 44 grave, so ought the proof to be clear" Blyth v.
Blyth (1966) 1 A.E.R. 534 at 536. But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged."
56. On the other hand, the defendant no.2 has the entire original chain of the property in his possession that is document Ex.PW1/4 to Ex.PW1/8. The defendant has further produced the statement of account of Smt. Shanti Devi (now deceaed) as Ex.DW1/2. A perusal of the record shows that the amount of Rs. 80,000/- was infact withdrawn which corresponds with the documents relied upon by the both plaintiff and the defendant. The defendant has further relied upon the registered will in his favour Ex.DW1/7.
57. In the case titled as Om Prakash Versus IOCL Officers Welfare Society in CS(OS) 590/2016 decided on 11th January,2019, , the Hon'ble High court of Delhi laid down the law with respect to declaration of documents as null and void, as under:-
"27. However, since the plaintiff has used the word 'fraud' in the plaint, it needs to be seen whether the pleas in the plaint constitute a plea of fraud. 'Fraud' is defined in Section 17 of the Indian Contract Act, 1872. A party to a contract, is defined in Section 17 of the Indian Contract Act to have committed a fraud, when that party, with the intent to deceive another party or to induce him to enter into the _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 39 of 44 contract, suggests something which is not true and which act the other party would not do without believing the same to be true or a promise made without any intention of performing it or any other act fitted to deceive. The plaintiff in the present case admits having found out at the time of execution of the Sale Deed that the consideration being paid to him was short by Rs.3,72,00,000/-. The plaintiff was thus not under any deception in this respect. Still the plaintiff went ahead and executed and registered the Sale Deed which recorded that the entire sale consideration has been paid. The only explanation is, that the plaintiff did so on the assurance of the defendant that the balance sale consideration will be paid after mutation. What falls for consideration is, whether the plaintiff is to be permitted to prove such promise made by the defendants and which the defendants made without any intention of performing it.
28. As far back as in Bishundeo Narain Vs. Seogeni Rai AIR 1951 SC 280, it was held that if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid; there can be no departure from them in evidence; general allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice however strong the language in which they are couched may be. To the same effect is Varanaseya Sanskrit Vishwavidyalaya Vs. Dr. Rajkishore Tripathi (1997) 1 SCC 279. Again, in Bijendra Nath Srivastava Vs. Mayank Srivastava (1994) 6 SCC 117, it was observed that the High Court, whose judgment was under consideration, had lost sight of the well recognized distinction between statement of material facts which is required under Order 6 Rule 2 CPC and particulars which are required to be stated under Order 6 Rule 4 CPC. It was held that omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad and it is not permissible to _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 40 of 44 introduce by way of particulars, a plea of fraud or misconduct other than that raised in the pleadings.
The Division Bench of this Court also, in Dipak Arora Vs. Vijay Bhushan Arora 2016 SCC OnLine Del 4401 (SLP Diary No.20828/2017 whereagainst was dismissed in limine on 28th August, 2017) held that mere statement that signatures on the MOU were obtained by fraud and misrepresentation did not suffice inasmuch as what was the fraud and what was the misrepresentation had not been pleaded. It was reiterated that unless the particulars of fraud and misrepresentation are disclosed, the plea of fraud has to be ignored."
Further, in the case titled as Rattan Singh vs Nirmal Gill in Civil Appeal Nos. 36813682 Of 2020 (Arising out of SLP (C) Nos. 21326- 21327 Of 2019) decided on 16 November, 2020, the Hon'ble Supreme court held as under:-
"77. Before analysing the correctness of the decisions arrived at, let us see the settled legal position as to effect of fraud on limitation as prescribed in Section 17 of the Limitation Act, 96315. The said provision reads as under:
for short, "the 1963 Act" "17.- Effect of fraud or mistake. (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,--
(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or
(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or
(c) the suit or application is for relief from the consequences of a mistake; or
(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 41 of 44 document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production ......."
(emphasis supplied)
78. Therefore, for invoking Section 17 of the 1963 Act, two ingredients have to be pleaded and duly proved. One is existence of a fraud and the other is discovery of such fraud. In the present case, since the plaintiff failed to establish the existence of fraud, there is no occasion for its discovery. Thus, the plaintiff cannot be extended the benefit under the said provision.
79. It must be noted that the trial Court was in error to hold that the person who has disclosed the information was not examined by the plaintiff, when it had come on record through the testimony of Kultar Singh (DW2), that Rustam Singh expired before the suits came up for trial. If so, the finding of the High Court that the testimony of Rustam Singh strengthened the case of plaintiff is exfacie erroneous and manifestly wrong. In as much as, the said person was never examined before the Court in these proceedings. Further, the trial Court and the first appellate Court had erroneously assumed the date of function in December, 2001 in place of February, 2001.
However, that will have no bearing on the finding on the factum of nonexistence of fraud. The concurring findings recorded by the trial Court and the first appellate Court that the documents were executed by the plaintiff belies and demolishes the case of the plaintiff, as to having acquired knowledge of alleged fraud in 2001.
Therefore, the High Court committed manifest error in reversing the concurrent findings of the trial Court and the first appellate Court in that regard.
CONCLUSION
80. It is settled that the standard of proof required in a civil dispute is preponderance of probabilities and not beyond reasonable doubt. In the present _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 42 of 44 cases, though the discrepancies in the 1990 GPA are bound to create some doubt, however, in absence of any tangible evidence produced by the plaintiff to support the plea of fraud, it does not take the matter further. Rather, in this case the testimony of the attesting witness, scribe and other independent witnesses plainly support the case of the defendants. That evidence dispels the doubt if any; and tilt the balance in favour of the defendants.
81. Suffice it to observe that since the plaintiff could not establish the existence of fraud, it must follow that the suits are exfacie barred by limitation."
(Emphasis supplied)
58. Learned Counsel for the defendant has also relied upon section 4 of the Prohibition of Benami Property Transactions Act, 1988, which is reproduced as under :-
Prohibition of the right to recover property held benami.
(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
59. The onus was upon the plaintiff to discharge the burden of proof for the Issues no. 2, 3, 4, 5 and 6. In light of the detailed discussion above, it is held that the plaintiff has failed to prove _________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 43 of 44 and substantiate her averments regarding the payment of money of rupees four lakhs and eighty thousand for the suit property by her on the scale of preponderance of probabilities. The plaintiff has also failed to raise any other ground like fraud or misrepresentation for setting aside the sale transaction. As a result, issues no. 2, 3, 4, 5 and 6 are decided against the plaintiff and in favour of the defendant no. 2 (defendant no. 1 has already passed away and is survived by defendant no. 2 only).
RELIEF :
60. Keeping in view the detailed discussion and laws cited above, the suit of the plaintiff is dismissed. Parties to bear their own costs. Decree sheet be prepared.
61. File be consigned to record room after necessary compliance.
Digitally signed by HIMANSHU HIMANSHU RAMAN SINGH
Announced in open Court RAMAN
SINGH
Date:
2024.07.27
on 27.07.2024. 15:48:34
+0530
(Himanshu Raman Singh)
SCJ-cum-RC (West)
Tis Hazari Courts, Delhi
_________________________________________________________________________________________________ Civil Suit No.9351/2016 Ms. Neeraj Vs. Smt. Shanti & Anr. Page 44 of 44