Delhi District Court
Dr Vanashree Banerjee vs Dr Praveer Kumar Banerjee on 7 December, 2023
IN THE COURT OF SH SACHIN JAIN, ADDL. DISTRICT
JUDGE - 02, SOUTH WEST DISTRICT, DWARKA
COURTS, DELHI
CS DJ ADJ No.515636/16
CNR No.DLSW010006972016
IN THE MATTER OF:
1. MRS. DR. VANASHREE BANERJEE
W/o late Dr. Pranav Banerjee,
R/o F-11, Nivedhitha Colony,
Banaras Hindu University Campus
Varanasi, Uttar Pradesh
... Plaintiff
versus
1. Mr. DR. PRAVEER KUMAR BANERJEE
S/o late Priyo Lal Banerjee
2. MRS. TRIPTI BANERJEE
W/o Dr. Praveer Kumar Banerjee
3. DR. AAYAM TATHAGAT BANERJEE
S/o Dr. Praveer Kumar Banerjee
(All R/o Building A-1, Flat No.702,
RNA Park, Vasi Naka, Chambur,
Mumbai, Maharashtra)
4. THE SECRETARY,
Kaveri Co-operative Group Housing
Society Ltd. Plot No.4, Sector-6,
Dwarka, New Delhi-110075
5. MR. RISHI KHANNA
S/o Shri Ashok Kumar Khanna
CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.1/47
•
R/o B-305, NPSC Society, Plot no.5
Sector-2, Dwarka, New Delhi-110075
Also at Flat No.H-202,
Kaveri Apartment, Plot No.4,
Sector-6,Dwarka, New Delhi-110075
... Defendants
Date of institution of suit 29.04.2016
Date of order reserved: 02.12.2023
Date of pronouncement of order: 07.12.2023
JUDGMENT
1. Plaintiff has preferred the present suit for the relief of declaration, permanent and mandatory injunction against the defendants.
2. Shorn of unnecessary pleadings, in brief, it is the case of the plaintiff that
(a) She is working as professor at the department of English, Banaras Hindu University;
(b) She met her late husband Dr. Pranab Kumar Banerjee through common friend Mrs. Saran Handa during the academic convention/conference and being in the academic profession and interest in literature, they came closer to each other;
(c) She got married to her late husband on 08.08.2001 at Yogmaya Mandir, Mehrauli. Marriage was registered under Hindu Marriage Act, 1955 before the Registrar of Marriage, District South West. No issue CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.2/47 was born out of their wedlock.
(d) Both of them with intention to lead their future retirement life planned and decided to invest their money in any upcoming group housing society at Delhi and ultimately the membership for purchasing the suit property with the defendant no.4 society was moved by her late husband.
(e) She had equally contributed with her late husband for the purchase of the suit flat and in September, 1999 agreement was executed with defendant no.4 society in respect of the suit flat and thereafter, both of them set up their home at the suit property.
(f) The relationship of her late husband was not cordial with any of his family members including the defendants and they did not exist for him as inasmuch as even before marriage in the year 2000, her late husband suffered paralytic attack and he was admitted to Holy Angel Hospital,Vasant Vihar and he refused to give name of any of his family members because they did not exist for him and as a responsible and caring friend, she took care of him.
(g) It is further stated that her land husband again suffered a paralytic stroke in the year 2003 and at that time she was at Varanasi and immediately called up the neighbour Mr. Sony Jose to take her husband to the hospital and due to her timely help life of her husband was saved and when he was bed ridden due to illness, she took care of his health and borne all the medical bills.
(h) After marriage with her efforts and motivation the relationship CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.3/47 between her late husband and his family members including the defendants became cordial and even she and her late husband went to Mumbai to reside with defendant nos.1 to 3.
(i) That her late husband in the year 2006 developed serious heart and kidney problem and was admitted to Army Research & Referral Hospital, New Delhi and resultantly, the health condition of her husband become almost terminally ill and he needed constant attention of a bystander at least for few months.
(j) As she was having her professional engagements at Varanasi, at the instance and assurance of defendant nos.1 to 3 that they will look after her husband at Mumbai, she agreed for the same and accordingly, her husband was taken to Mumbai by defendant nos. 1 to3.
(k) The health of her husband improved after staying for nearly 5 months at Mumbai and thereafter, he returned back to join his work place i.e. Delhi College of Arts & Commerce, Delhi. However, being diabetic from the last 25 years and health ailments, his condition deteriorated further and with great difficulty he was able to be present at his work place. Even the college administration treated him with sympathy. Thus, since 2006 onwards he was strictly prescribed constant medical aid and support for his survival. Further, since 2011 onwards, the health of her late husband deteriorated at faster pace as he was sleeping most of the day and the night and was not in a capacity to think, take any independent decision and weigh the pros. and cons. of any act or to do anything after knowing or understanding CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.4/47 the purport and consequences.
(l) After his retirement in 2012, he was keen on coming to Banaras to join the plaintiff but his health problem demanded higher level of medical care and again defendant nos.1 to 3 showed a lot of interest and convinced the plaintiff to take her late husband to Mumbai for better care of his health.
(m) Whenever, she could get vacations or holidays or even by taking leaves she used to visit her husband at Mumbai and spent time with him and it continued till his last breath.
(n) On the suggestion of defendant nos.1 and 2, suit property was given on rent through another brother of the plaintiff, namely, Shri Prashant Kumar Banerjee who is settled in Hari Nagar, Delhi with an understanding that the rental income shall be adjusted towards the medical expenses of her late husband.
(o) Late husband of plaintiff died on 28.10.2015 at Mumbai. She was present at the last rites. Thereafter, the behavior of the defendants totally altered and they stopped responding to the calls of the plaintiff.
(p) She visited Delhi on 26.04.2016 and when went to the suit property, she came to know that the suit property is rented to defendant no.5 by its owners and from further inquiry, she came to know that a gift deed dated 05.04.2013 allegedly stands executed by her late husband in favour of defendant nos.1 to 3.
(q) It is the claim of the plaintiff that her late husband was not physically, mentally and intellectually fit to execute the alleged gift CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.5/47 deed on 05.04.2013 as he was terminally ill since 2006 onwards as stated by her in the preceding paragraphs.
(r) Thus, it is her case that the gift deed dated 05.04.2013 is an outcome of planned connivance, conspiracy and undue influence with the aid and assistance of henchmen of defendant nos.1 to 3. She also challenges the validity of gift deed on the ground that the suit property was not the exclusive self acquired property of her late husband but she has also equally contributed for acquiring the said property.
3. On the basis of the above pleadings, plaintiff has sought the following reliefs:
(a) To pass a decree of Declaration in favour of the plaintiff and against the defendant no.1 to 3 thereby declaring the document named Gift Deed dated 05th April registered vide Documentn Registration No.3870 in Book No.1, Volume No.7052 on page 5 to 12 on 12.04.2013 as null and void;
(b)To pass a decree of Declaration in favour of the plaintiff and against the defendant No.1 to 3 in respect of other documents, if any, which was/were prepared in anticipation of execution of the gift deed dated 05.04.2013 or consequent to the execution of the said gift deed dated 05.04.2013, to ascertain the illegal right of the defendant No.`1 to 3 on the suit property, as null and void;
(c)Pass a decree of permanent injunction in favour of the plaintiff and against the defendants, thereby restraining the defendant nos.1 to 3, their agents, assignees, authorized persons, attorneys, etc., from CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.6/47 creating third party interest in respect of the suit property on the basis of the documents under challenge in the present suit;
(d)pass a decree of permanent injunction in favour of the plaintiff and against the defefndants thereby restraining the defendants, their agents, assignees, authorized persons, attorneys etc., from misusing the document under challenge in the present suit in any manner thereby adversely affecting the rights, title or interest of the plaintiff over the suit property;
(e)pass a decree of mandatory injunction in favour of the plaintiff and against the defendants thereby directing the defendants, their agents, assignees, authorized persons, attorneys etc., to submit all original documents, which are under challenge along with ancillary documents in the proceedings of present suit;
(f)pass a decree of mandatory injunction in favour of the plaintiff and against the defendant nos.1 to 3 thereby directing the defendants to deposit the rent received by them from defendant no.4 along with interest thereof 18% per annum in respect of the suit property in the proceedings of present suit since January 2016 and further, release of said amount in favour of the plaintiff;
(g)pass a decree of mandatory injunction in favour of the plaintiff and against the defendant no.5 thereby directing the defendant to pay the monthly rent of the suit property directly to the plaintiff henceforth in terms of the Lease Deed allegedly executed with him by the defendant nos.1 to 3/or their attorney;
CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.7/474. Pursuant to the service of summons for settlement of issues, defendant nos.1 to 3 appeared before this Court through their counsel and filed the joint written statement and denied the case of the plaintiff in totality.
5. It is contended by the defendants that the entire case of the plaintiff is primarily based on two points, firstly, that she had jointly contributed with her late husband to purchase the suit property and secondly, that since 2006 onwards, her late husband was having week memory power, his incapacity to think, take any independent decision, weigh the pros and cons of any act or to do anything after knowing or understanding the purport and consequences. However, the plaintiff has not annexed any evidence in support of her above mentioned two claims with the plaint except her own CV.
6. It is further contended that late Dr. Pranab Kumar Banerjee (hereinafter referred as PKB) was having a cordial relationship with defendant nos.1 to 3 including his mother Mrs. Kalyani Banerjee, other brother Mr. Prashant Kumar Banerjee, sister Mrs. Shivani Mukherjee and was always interacting with them and was living a normal life.
7. It is further contended that as far as the suit property is concerned, all the installments were made by late PKB only. It is also contended that he was in sound disposing mind since 2006. He was having a brilliant brain suitable for teaching in Delhi University College and he took retirement only after completing his service CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.8/47 tenure on 29.02.2012.
8. It is further contended that the plaintiff had not disclosed her marital status prior to her marriage with late PKB and she has changed her name from Vanashree Tripathi to Vanashree Upadhyay, then to Vanashree Banerjee as per own CV annexed with the plaint. It is also contended that she had abandoned PKB about 14 years back and since then he was living most of the time with his brothers in Delhi and Mumbai and during that period plaintiff never contacted her husband.
9. It is also contended that the suit of the plaintiff is barred by the law of limitation. It is also contended that the suit is bad for non joinder of the other brother Shri Prashant Kumar Banerjee who as per the plaintiff given the suit property on rent to defendant no.5. It is also contended that the plaint of the plaintiff is self contradictory as if she was so much keen regarding the property then why she did not object when the same was given on lease to defendant no.5.
10. Lastly, it is contended that PKB was in sound disposing mind and on 20.12.2010 expressed his willingness to nominate defendant no.1 as his sole nominee of the suit property and his intention was so clear that he was willing to give 100% share of his property to defendant no.1.
11. In para wise reply, the case of the plaintiff is denied and the above contentions as raised in the preliminary objections have been reiterated.
12. Defendant no.4 society in its written statement more or less CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.9/47 denied the claim of the plaintiff except to the extent that the suit flat was purchased by PKB with the society against membership no.402 vide certificate dated 26.05.1996 and allotment letter of the suit flat was issued in favour of PKB on 22.02.1999 and the agreement to take the possession was signed on 07.09.1999. PKB was having 100% exclusive share in the suit flat. On 25.09.2010 PKB submitted fresh application form for nomination of defendant no.1 as his sole nominee which was accepted on 27.10.2010. On 28.04.2013, defendant no.1 and 3 submitted the copy of registered gift deed dated 25.04.2013 along with original application form for transfer of membership of suit property and in its meeting dated 07.07.2013, the same was accepted and both of them were admitted as joint members vide new share certificate dated 08.07.2013 with new membership no.425. Thus, in nutshell, it is the case of defendant no.4 that it has acted as per the provisions of prevailing Acts, bylaws of the society and Delhi Cooperative Society Act 2003 in particular and on the basis of above averments, defendant no.4 sought deletion of its name from the array of parties.
13. Defendant no.5 also filed his separate written statement and sought rejection of plaint on the ground that no cause of action is made out against him. He stated that he was inducted as a tenant by defendant no.1 under triparte agreement dated 26.11.2015 executed between him, defendant no.1 and the society and he has no knowledge about the family affairs of the plaintiff and the defendants.
CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.10/4714. In replication to the Written Statement of defendant nos.1 to 3, plaintiff denied all the contentions of the answering defendants and reiterated and reaffirmed the stand taken by her in the plaint. Similar is the situation in the replication filed to the Writen Statement of defendant no.4 and defendant no.5.
15. On completion of pleadings of parties, the admission denial of documents was undertaken by the parties as follows:
The learned counsel for defendant No.1-3 and 5 has denied all documents filed by the plaintiff except the following:
(a) Ex.P1 Copy of gift deed dated 05.04.2013
(b) Ex.P2 Photocopy of application for membership to
the defendant No.4 society
(c) Ex.P3 Allotment letter dated 22.02.1999 issued by
the defendant No.4 society
(d) Ex.P4 Agreement dated 07.09.1999 between the
plaintiff's late husband and defendant No.4
society
(e) Ex.P5 Certificate dated 05.01.2003 issued by
defendant No.4 society
(f) Ex.P6 Copy of information of permanently staying
at defendant No.4 society
(g) Ex.P7 Certificate dated 21.12.2004 issued by
defendant No.4 society
(h) Ex.P8 Communication dated 23.09.2010 addressed
to defendant No.4 society
(i) Ex.P9 Communication dated 25.09.2010 addressed
to defendant No.4 society
The learned counsel for defendant No.4 has denied all the documents except the following:CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.11/47
(a) Ex.P1 Copy of gift deed dated
05.04.2013
(b) Ex.P2 Photocopy of application for
membership to the defendant
No.4 society
(c) Ex.P3 Allotment letter dated 22.02.1999
issued by the defendant No.4
society
(d) Ex.P4 Agreement dated 07.09.1999
between the plaintiff's late
husband and defendant No.4
society
(e) Ex.P5 Certificate dated 05.01.2003
issued by defendant No.4 society
(f) Ex.P6 Copy of information of
permanently staying at defendant
No.4 society
(g) Ex.P7 Certificate dated 21.12.2004
issued by defendant No.4 society
(h) Ex.P10 Communication dated 14.02.2006
addressed to defendant No.4
society
(i) Ex.P8 Communication dated 23.09.2010
addressed to defendant No.4
society
(j) Ex.P11 Communication dated 25.09.2010
issued by defendant No.4 society
(k) Ex.P9 Communication dated 25.09.2010
addressed to defendant No.4
society
(l) Ex.P12 Certificate dated 01.01.2011
issued by the defendant No.4
society
Learned counsel for the plaintiff has admitted the following CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.12/47 documents filed on behalf of the defendants:
(a) Ex.D4/1 Certificate dated 10.07.2016
alongwith minutes of meeting
dated 10.07.2016 of defendant
No.4
(b) Ex.D4/2 Aadhar card of Mr. K.P. Nair
(c) Ex.D4/3 Letter of allotment dated
26.05.1996
(d) Ex.D4/4 Share certificate No.402 dated
26.05.1996
(e) Ex.D4/5 Member's ledger page No.469
(f) Ex.D4/6(Colly.) Allotment letter dated 22.02.1999
and agreement dated 07.09.1999
(g) Ex.D4/7 Application for membership dated
10.05.1996
(h) Ex.D4/8(Colly.) Election ID Card of defendant
Nos.1-3
(i) Ex.D4/9 Minutes of meeting dated
07.07.2013 of defendant No.4
16. On the basis of the pleadings, documents and submissions advanced by the learned counsel for the parties, following issues were framed:
1. Whether the registered gift deed dated 05.04.2013 bearing registration No.3870, Book No.1, vol. No.7052 at page No.5-12 dated 12.04.2013 (Ex.P2) by Dr. Pranab K. Banerjee in favour of defendant Nos.1 to 3 was signed and executed under deceit and fraudulently? ...OPP
2. Whether the registered gift deed dated 05.04.2013 bearing registration No.3870, Book CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.13/47 No.1, vol. No.7052 at page No.5-12 dated 12.04.2013 (Ex.P2) by Dr. Pranab K. Banerjee was signed and executed when he was of infirm health and not in a good physical state of mind and could not comprehend the nature of the document i.e. Ex.P2?...OPP
3. Whether the plaintiff contributed towards the sale consideration of the suit property i.e. a flat bearing No.H-202, Kaveri Apartments, Plot No.4, Sector-6, Phase-I, Dwarka, New Delhi-
110075?..OPP
4. Whether the plaintiff was the lawfully wedded wife of Dr. Pranab K. Banerjee?...OPP
5. Whether the suit preferred by the plaintiff is barred by law of limitation?...OPD1-3
6. Whether the plaintiff has raised her suit on false and fabricated facts and documents? ...OPD1, D3 and D5.
7. Whether the suit preferred by the plaintiff is bad for non-joinder of parties?...OPD1, D3 and D5
8. Whether the plaintiff has no locus standi to prefer and maintain the present suit against the defendants?...OPD4
9. Whether the plaintiff is entitled for a decree of declaration with regard to the registered gift deed dated 05.04.2013 bearing registration No.3870, Book No.1, vol. No.7052 at page No.5-12 dated 12.04.2013 (Ex.P2) by Dr. Pranab K. CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.14/47 Banerjee be declared null and void?...OPP
10. Whether the plaintiff is entitled for a permanent injunction against the defendants, particularly, defendant Nos.1-3 from not creating any third party interest in the suit property i.e. a flat bearing No.H-202, Kaveri Apartments, Plot No.4, Sector-6, Phase-I, Dwarka, New Delhi-
110075?...OPP
11. Whether the plaintiff is entitled for a decree of mandatory injunction directing the defendants to submit all ancillary documents in original with regard to the title of the suit property post 05.04.2013 i.e. the date of the signing and execution of gift deed dated 05.04.2013 bearing registration No.3870, Book No.1, vol. No.7052 at page No.5-12 dated 12.04.2013 (Ex.P2) by Dr. Pranab K. Banerjee?...OPP
12. Whether the plaintiff is entitled for a decree of mandatory injunction directing the defendant Nos.1-3 to deposit the rent received by them from defendant No.5 since January 2016 until the date of the decree?...OPP
13. Whether the plaintiff is entitled for a decree of mandatory injunction directing the defendant Nos.1-3 to pay interest on the rent received by them from defendant No.5 since January 2016 until the date of the decree?...OPP
14. Relief, if any.
16. In support of her claim in the present suit, the plaintiff stepped CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.15/47 into witness box as PW1 and tendered her evidence by way of affidavit dated 19.03.2020 Ex.PW1/A. She has further relied upon the following documents:
(a) Ex.P1 Copy of gift deed dated 05.04.2013;
(b) Ex.P2 photocopy of application for membership to the defendant no.4 society;
(c ) Ex.P3 allotment letter dated 22.02.1999 issued by defendant no.4 society;
(d) Ex.P4 agreement dated 07.09.1999 between the plaintiff's late husband and defendant no.4 society;
(e) Ex.P5 certificate dated 05.01.2003 issued by defendant no.4 society;
(f) Ex.P6 copy of information of permanently staying at defendant no.4 society;
(g) Ex.P7 certificate dated 21.12.2004 issued by defendant no.4 society;
(h) Ex.P8 communication dated 23.09.2010 addressed to defendant no.4 society;
(I) Ex.P9 communication dated 25.09.2010 addressed to defendant no.4 society;
(j) Ex.P10 communication dated 14.02.2006 addressed to defendant no.4 society;
(k) Ex.P11 communication dated 25.09.2010 issued by defendant no.4 society;
CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.16/47(l) Ex.P12 certificate dated 01.01.2011 issued by defendant no.4 society;
(m) Ex.P13 original marriage photographs;
(n) Ex.P14 copy of communication dated 07.09.2003
(o) Mark-1 photocopy of certificate of marriage;
(p) Mark-2 copy of affidavit for change of name of plaintiff after marriage;
17. Vide her separate statement dated 09.09.2022, the plaintiff tendered certified copy of Marriage sertificate-Mark-1 and same was exhibited as Ex. P15.
18. During cross-examination, the following documents were relied upon by the plaintiff:
(a) Ex.P15/DX1 (Colly.)(OSR) copy of ex parte decree of divorce, account statement, PAN card, Aadhaar card and ITR;
19. Plaintiff also examined Shri Srikant Pandey, Associate Professor from Art & Commerce College, University of Delhi as PW2. This witness had brought the summoned record i.e. reply of RTI application dated 09.02.2017 pertaining to the information regarding leaves taken by deceased Dr. Pranab Kumar Banerjee and produced letter of Principal as Ex.PW2/A and copy of RTI reply as Mark-A.
20. Plaintiff also produced Ms. Sony Jose as PW3 who tendered her evidence by way of affidavit Ex.PW3/A, thereafter, she was cross- examined and discharged.
21. On the other hand, defendant nos. 1to 3 in order to prove their CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.17/47 case, produced Dr. Praveer Kumar Banerjee (defendant no.1) in the witness box. He tendered his evidence by way of affidavit Ex.DW1/1 and relied upon the following documents in support of the defence of the defendants:
1). A copy of nomination document issued by defendant no.4 is Ex.DW1/A;
2). A copy of possession letter dated 19.09.1999 as Ex.DW1/B;
3). Copies of cover page and the print page of the record of this Court as Ex.DW1/C(Colly.);
4). Photocopy of relevant passport pages as Ex.DW1/D (OSR);
5). Cover page and print page of 'Aranykand' as Ex.DW1/E(OSR);
6). A copy of relevant pages of 'Samavartan' as Ex.DW1/F(OSR);
7). Copy of leave statement of Dr. Pranab Kumar Banerjee as Ex.DW1/G, and
8). Photocopy of cover page and title/index page of 'Pashyanti' January-March 2006 issue as Ex.DW1/H. During cross examination, photocopy of relevant pages of the book 'Khabar' was put to the witness as Ex.DW1/PX1 and rent agreement was put to the witness by the learned cross examining counsel and is marked as Ex.DW1/PX2
22. I have heard the learned counsel for both the parties and have gone through the judicial record including the evidence led by both the parties and the written submissions filed by the Ld. Counsel for the parties and my issue-wise findings are as under.
CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.18/4723. It will be appropriate to start with issue no. 5 i.e.
5. Whether the suit preferred by the plaintiff is barred by law of limitation?...OPD1-3
24. It is settled position of law that limitation period for the relief of declaration to declare a document as null and void is governed by residue Art. 58 of the Limitation Act, 1963 and the same is three years from the date, when the right to sue first accrues. It is also settled position of law that if a document is duly registered, right to sue deems to have accrued when the document was registered unless the party proves that despite due diligence the document was not in his knowledge.
25. In the present case also the gift deed qua which the plaintiff is seeking the declaratory relief of nullity is a registered document dated 05.04.2013 and therefore, as a general rule the limitation period to challenge its validity began to run from the date of execution and has came to an end on 05.04.2016 but the plaintiff has filed the present suit only on 28.04.2016 i.e. after a delay of 23 days. However, it is the pleaded case of the plaintiff in para no. 17 of the plaint that she came to know about the registered Gift deed dated 05.04.2013 only when she came down to Delhi on 26.04.2016 and visited the Kaveri Apartments and when she was denied entry to the suit property, she visited the office of the society and on enquiry and request the copy of the gift deed allegedly executed by her late husband in favour of CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.19/47 defendant no. 1 to 3 was handed over to her. Thus, as per her claim she came to know about the gift deed only on 26.04.2016 and immediately filed this case on 28.04.2016. In order to prove her visit to Delhi, she had annexed copy of boarding pass of Spicejet flight Varanasi to Delhi dated 26.04.2016.
26. On the other hand, in the written statement, defendant no. 1 to 3 denied the above assertion and contended in para no. 13 of the preliminary objections that the suit of the plaintiff is barred by law of limitation as the said gift in complete alienation of the property with no strings attached and said deed is being challenged after a considerable period of time which is doubtful, and, hence, there is no force in the challenge.
27. Pertinently, in her evidence plaintiff has not relied upon the boarding pass in order to show that she came to Delhi on 26.04.2016 for the reasons best known to her. But at the same time defendant no. 4 society in its separate written statement categorically admitted the averments made by the plaintiff in para no. 17 of the plaint and it is stated by the society in para no. 7 of the written statement that ' it has been admitted that plaintiff has unofficially obtained a copy of the title deed i.e. gift deed dated 05.04.2013.
28. Therefore, from the categorical admission on the part of the society that plaintiff obtained the copy of the gift deed only on 26.04.2016, the claim of the plaintiff stands established that she came to know about the gift deed only on 26.04.2016. It is an undisputed CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.20/47 fact that the plaintiff is working at Varanasi and the gift deed was executed at Delhi and therefore, it cannot be presumed that she was aware about the gift deed from the date of its execution. It is also not the pleaded case of defendant no. 1 to 3 that on any occasion prior to the death of the donor, the execution of gift deed was brought into the notice of the plaintiff by the donor or the beneficiaries
29. In the judgment titled as Dilboo vs. Dhanraji (2000) 7 SCC 702, as relied upon by the defendant no.1 to 3, no doubt it was held by the Apex Court that where there is dispute that he suit is filed beyond the period of limitation, the plaintiff would have to aver and prove that the suit is within the period of limitation as prescribed and in the absence of any averments or proof to show that it is within time, it is the plaintiff who would fail. It is further observed that whenever a document is registered the date of registration becomes the date of knowledge. It is further observed that in other cases where a fact could be discovered by due diligence then deemed knowledge can be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge.
30. This Court is of the considered view that in absence of any contention raised by the defendant no. 1 to 3 ( hereinafter referred to as 'contesting defendants') that the plaintiff was aware about the gift deed prior to the death of Late Sh. PKB and categorical admission on the part of the defendant no.4 society that on 26.04.2016, plaintiff has taken the copy of the gift deed from the office of the society CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.21/47 unofficially, the averments of the plaintiff as made by her in para no. 17 of the plaint stands duly proved.
31. In addition thereto nothing has been brought on record by the contesting defendants in their evidence to prove that the plaintiff was having the knowledge of the gift deed from the date of its execution or any time thereafter but before 26.04.2016.
32. In written arguments contesting defendants contended that in Indian society there is nothing secret between the Husband and wife and therefore, Late Sh. PKB might have told the plaintiff about the execution of Gift deed, however, merely on assumptions and presumptions without any cogent evidence on record it cannot be said that the plaintiff was having the knowledge of the gift deed prior to 26.04.2016. Resultantly, the suit of the plaintiff is well within the period of limitation.
33. Accordingly, issue no. 3 is hereby decided in favour of the plaintiff and against the defendants.
34. Issue no. 4-
4. Whether the plaintiff was the lawfully wedded wife of Dr. Pranab K. Banerjee?...OPP
35. Both the parties have argued in detail on the issue in question and emphasized minutely on the deposition made by both the parties in their respective cross examination as pointed out in the written arguments but without going deep into the arguments of both the parties, on the basis of ex-parte divorce decree dated 16.03.2001 CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.22/47 between the plaintiff and her earlier husband which is part of Ex. 15/DX-1(colly), it stands duly proved that she had taken divorce from her earlier husband before marrying with the Late Sh. PKB. Further, on the basis of original photographs of marriage of plaintiff with late Sh. PKB (Ex. P-13), documents exchanged between late Sh. PKB and the defendant no. 4 society viz. Ex. P-5 i.e. certificate dated 05.01.2003 issued by the defendant no. 4 society in which the plaintiff has been mentioned as the wife of Late Sh. PKB, Ex. P-6 i.e. copy of information furnished to defendant no.4 society admitted by the defendant no.1 to be in the handwriting of Late Sh. PKB, in which in the relationship column plaintiff is shown as 'wife' by Late Sh. PKB, and Ex. P10 i.e. letter written by Late Sh. PKB to defendant no.4 society to allow his friend Sharan Handa and wife Mrs. Vanashree Banerjee (plaintiff) in the suit property, it stands duly established that Late Sh. PKB always represented to the society that plaintiff is his wife and thus, it stands proved that plaintiff is the legally wedded wife of Dr. Pranab Kumar Banarjee.
36. It was argued on behalf of the defendant that as there is no photograph of seven pheras (satpadi), it cannot be presumed that she is the legally wedded wife of Late Sh. PKB. It was also argued that as per the marriage certificate the age diference between the plaintiff and Late Dr. banerjee is only five years whereas in her deposition plaintiff has claimed that she is 10 years younger from Dr. banerjee and therefore, the certificate is a bogus document.
CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.23/4737. As far as the age difference is concerned, it is duly clarified by the plaintiff in her cross-examination that she has mentioned the age difference of 10 years as their age (plaintiff and Dr. Banerjee) on record is different from the actual date of birth and as per record the age difference is only five years. As already observed above once during his lifetime Late Sh. PKB himself acknowledged plaintiff as his wife in multiple communications addressed to the society, coupled with the marriage photographs, even if marriage certificate is not taken into consideration, which is otherwise also per-se not a proof of valid marriage, it stands duly proved that she is legally wedded wife of Late Sh. PKB. It is a settled position of law that when two persons are cohabiting continuously for a long period of time and represent each other as husband and wife to the society, it is a sufficient ground to raise a valid presumption that they are husband and Wife, unless the contrary is proved and in the present case contesting defendants failed to bring on record any evidence to show that plaintiff is not the wife of the deceased Dr. Banerjee.
38. Accordingly, issue no. 2 is decided in favour of the plaintiff and against the defendants.
Issue no. 3
3. Whether the plaintiff contributed towards the sale consideration of the suit property i.e. a flat bearing No. H-202, Kaveri Apartments, Plot No.4, Sector-6, Phase-I, Dwarka, New Delhi-
110075?..OPP CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.24/47
39. At the outset it is apposite to reiterate the settled position of law that as per Section 101 of the Indian Evidence Act, 1872, burden of proof is always on the person who asserts a fact in the affirmative and the onus shifts on the opposite party only once the burden is discharged by the person asserting a fact.
40. It is claimed by the plaintiff that she had equally contributed for the purchase of the suit property alongwith her late husband Sh. PKB. In her cross examination she deposed that she has contributed by withdrawing the amount from her salary account maintained with SBI bank and she is contributing since 1999 till the finalization of the woodwork in the year 2002. She was asked that whether she can produce her bank statement to prove the same and her further cross examination was deferred but on the next date of cross examination, she has placed on record the bank statement of her SBI account pertaining to the period of 23.07.2021 to 01.01.2022 and have not produced any evidence on record to prove any payment from her SBI account to her late husband therefore, the plaintiff has miserably failed to prove that she had equally contributed for the purchase of the suit property.
41. In addition thereto, as per payment ledger (Ex. D-4/5) which is maintained by the defendant no.4 society and which was admitted by the plaintiff at the stage of admission/denial of documents it shows that the payments were made to the society towards the purchase of the suit property w.e.f. 07.04.1996 till 25.02.1998 whereas in cross-
CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.25/47examination when question was put to the plaintiff that can she tell when she and her late husband decided to invest into the upcoming housing society as averred by her in para no. 6 of the plaint, she has deposed that 'it is somewhere in the year 2000 and we were contemplating since 1999 and finally decided to invest in the society in 2000'. The above deposition of the plaintiff demolished her own claim for the reasons that had it been so, how can the payments be made by Late Sh. PKB to the society way back in 1996 to 1998 if plan to purchase the suit flat was contemplated in the year 1999 as claimed by the plaintiff?
42. The ld. Counsel for the plaintiff has argued that the defendant no.1 in his evidence also failed to prove that Late Sh. PKB alone contributed for the purchase of the suit flat as he has never produced any document in this respect inasmuch as in cross-examination, he has duly admitted that in the ledger sheet it is not mentioned that cheques against payments to the society were issued by whom and he has also admitted that he has no personal knowledge about the financial transactions of his Late brother Sh. PKB.
43. However, this argument is not sustainable for the reasons already observed by this Court that it is the plaintiff who has to discharge the burden at the first instance and she cannot harp upon the weak defence of the defendant/s. Once she has herself failed to prove any contribution on her part for the purchase of the suit property in question, she cannot shift the onus on the defendant/s or can take CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.26/47 advantage of the weak defence.
44. Consequently, in view of the observations made above, the issue in question in decided against the plaintiff and in favour of the defendants.
45. At this juncture it is apposite to observe that even if it is not proved on record that the plaintiff has equally contributed for the purchase of the suit property alongwith her late husband still in the capacity of widow of late sh. PKB, she is the class I legal heir and entitled to inherit the property as per Hindu Succession Act, 1956 and still has the right and locus to challenge the validity of the impugned gift deed.
46. Accordingly, this Court proceeds further to decide the remaining issues and Issue nos. 1, 2 and 9 to 13 are taken up together being inter connected and requires appreciation of common evidence and moreover finding on one issue has direct bearing on the other.
1. Whether the registered gift deed dated 05.04.2013 bearing registration No.3870, Book No.1, vol. No.7052 at page No.5-12 dated 12.04.2013 (Ex.P2) by Dr. Pranab K. Banerjee in favour of defendant Nos.1 to 3 was signed and executed under deceit and fraudulently? ...OPP
2. Whether the registered gift deed dated 05.04.2013 bearing registration No.3870, Book No.1, vol. No.7052 at page No.5-12 dated 12.04.2013 (Ex.P2) by Dr. Pranab K. Banerjee was signed and executed when he was of infirm health CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.27/47 and not in a good physical state of mind and could not comprehend the nature of the document i.e. Ex.P2?...OPP
9. Whether the plaintiff is entitled for a decree of declaration with regard to the registered gift deed dated 05.04.2013 bearing registration No.3870, Book No.1, vol. No.7052 at page No.5-12 dated 12.04.2013 (Ex.P2) by Dr. Pranab K. Banerjee be declared null and void?...OPP
10. Whether the plaintiff is entitled for a permanent injunction against the defendants, particularly, defendant Nos.1-3 from not creating any third party interest in the suit property i.e. a flat bearing No.H-202, Kaveri Apartments, Plot No.4, Sector-6, Phase-I, Dwarka, New Delhi-
110075?...OPP
11. Whether the plaintiff is entitled for a decree of mandatory injunction directing the defendants to submit all ancillary documents in original with regard to the title of the suit property post 05.04.2013 i.e. the date of the signing and execution of gift deed dated 05.04.2013 bearing registration No.3870, Book No.1, vol. No.7052 at page No.5-12 dated 12.04.2013 (Ex.P2) by Dr. Pranab K. Banerjee?...OPP
12. Whether the plaintiff is entitled for a decree of mandatory injunction directing the defendant Nos.1- 3 to deposit the rent received by them from defendant No.5 since January 2016 until the date of the decree?...OPP
13. Whether the plaintiff is entitled for a decree of mandatory injunction directing the defendant Nos.1- CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.28/47 3 to pay interest on the rent received by them from defendant No.5 since January 2016 until the date of the decree?...OPP
47. To begin with, the plaintiff has not challenged the validity of the gift deed Ex.P1 on the ground of forgery or a manufactured documents, her entire case is based on the plea that due to multiple strokes and health problems related to heart and kidney, the health of her late husband was on deterioration and he was not in a position to know the repercussions of his acts due to feeble mind and the contesting defendants by taking advantage of the feeble mind of her late husband got the impugned gift deed executed by exercising undue influence.
48. It is the pleaded case of the plaintiff that her late husband for the first time suffered paralytic attack in the year 2000 and he was admitted to Holy Angel Hospital,Vasant Vihar and he refused to give name of any of his family members because they did not exist for him and as a responsible and caring friend, she took care of him.
49. However, in her evidence she has produced nothing except her own averments to establish the above plea.
50. Further, she has pleaded that in 2003 when she was at Varanasi, her husband again suffered another paralytic attack at the suit property and she rang up her neighbor Smt. Sony Jose (PW-3), who took her husband to the hospital and thereafter, plaintiff took care of her husband and his health condition improved.
CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.29/4751. Even though the plaintiff has not placed on record any medical document to prove the above claim but she had called Smt. Sony Jose in the witness box as PW3 and Smt. Sony jose corroborated the claim of the plaintiff that Late Sh. PKB suffered a paralytic stroke in the year 2003 and that she had taken him firstly to Dr. Pankaj Tanuja and thereafter, she took Dr. Banrajee to MRI center as per instructions of Dr. Pankaj Tanuja and thereafrer, with the report she took him to Orchid Hospital, Janakpuri. This fact is also corroborated from the letter written by Late Sh. PKB to the plaintiff regarding improvement in his health on 07.09.2003 which is exhibit Ex. P14 and this letter also proves that at that time Late Sh. PKB was at Mumbai with defendant no.1 to 3. This fact also corroborates with the leave record of Late Sh. PKB (Ex. PW2/A), which shows that Late Dr. Banarjee had remained on leave for 155 days w.e.f. 16.07.2003 to 19.12.2003. Further, it is the pleaded case of the plaintiff that the health of Late Sh. PKB was improved and lately he joined his teaching duties at Delhi College.
52. It is further pleaded by the plaintiff that in the year 2006, Late Dr. Banerje developed serious heart and kidney problem as he had been type A diabetic for the past 25 years and got admitted to Army reseach and Referral Hospital, New Delhi (R&R) and the above heart and kidney problem aggravated the health condition of her late husband and he had become almost terminally ill and requires constant attention of a bystander at least for few months.
CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.30/4753. However, in order to prove above claim, plaintiff has not produced any evidence in the shape of medical records and even not summoned the record from Army Hospital where she claimed that her husband was admitted due to claimed serious kidney and heart problem due to which he allegedly became 'terminally ill'.
54. Even PW-3, Sony Jose in para no. 10 of her evidence by way of affidavit simply deposed that in the year 2006 also husband of the plaintiff underwent hospitalization due to serious health ailment and that time also, plaintiff alone took care of her husband but she has not given any details of the 'serious health problem' and in her cross- examination she admitted that she has no personal knowledge about the health of Late Sh. PKB since 2012 onward and her deposition is based on the information given by the plaintiff while she visit at her house or (meet) in the parking area of the society.
55. Similarly, leave record Ex. PW-2/A, simply proves that Late Sh. PKB was on leave w.e.f. 06.02.2006 to 27.04.2006 (81 days) & 01.08.2006 to 21.09.2006 (52 days), the above record only establishes that Late Dr. Banerjee was suffering from health issues during the period of Medical Leave but not the nature and extent of health aliment and its effect on the body and mind of late Shri PKB.
56. Plaintiff in her cross-examination, also admitted that she cannot tell personally that whether Late Sh. PKB was in a fit state of mind or not at the date of execution of gift deed as she was not present there and during the period of January2013 till May 2013, she never met Dr. CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.31/47 PKB. Plaintiff tried to prove her claim that her Husband was not keeping good health by stating in her voluntarily statement that whenever she used to take update from her sister in law, she only utters one phrase that health of Dr. Banerjee is deteriorating, which is nothing but a self serving statement.
57. Thus, as already observed no doubt it stands established from leave record that Late Sh. PKB was suffering from health issues in the year 2006 but in absence of any documentary or circumstantial evidence on record it cannot be presumed that his health condition was of such a nature which can be termed that he was 'terminally ill'.
58. When plaintiff was confronted about the visit of Dr. Banerjee to Canada, she deposed that Dr. Banerjee used to visit Canada but not in the year 2007. "In the year 2006 & 2007 Dr. Banerjee visited Lakshadweep alone and even he brought palm jaggery for her."
59. Further in cross-examination, when plaintiff was confronted about the fact that Late Sh. PKB has wrote a Novel of 700 pages in the year 2006, which was published in the year 2010, plaintiff deposed that Novel 'Khabar' was wrote before her marriage and he was writing 'Aranya kand' on Lord Hanumana.
60. In answer to another question put to the plaintiff that whether in 2006, Dr. Banerjee edited any literary magazine? Plaintiff answered in the negative but in her voluntarily statement she again reiterated that he was also busy in completing his book titled 'Aranayakand' .
61. It is a matter of record and undisputed fact that Late Sh. PKB CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.32/47 was teaching Economics in Delhi College of Arts & Commerce and retired in the year 2012 and it is also a matter of record that post the year 2006, he had not taken any medical leave till his retirement on 29.02.2012 except earned leave of 14 days from 23.01.2006 to 05.02.2006.
62. Surprisingly, plaintiff has not called any faculty/staff member from Delhi College, to prove that post 2006, Dr. Banerjee was not keeping good health and due to deteriorating health, he was also set free from regular teaching duties by the College as claimed by her in the plaint and in para no. 20 of her evidence by way of affidavit, for the reasons best known to her.
63. On appreciation of the entire evidence of the plaintiff, no doubt it stands proved that Late Sh. PKB had suffered paralytic attack in the year 2003 but the gravity of that attack on the health of Late Sh. PKB is not proved, it is also stands established that he again suffered from some ailment in the year 2006 but the nature of ailment and its gravity on the physical & Mental Health of Late Sh. PKB is not proved.
64. Rather, It stands proved from the deposition of the plaintiff herself that after 2006, Late Sh. PKB alone visited Lakhshadweep and was also busy in writing and completing his book 'Aranyakand' on Lord Hanuman. From the leave record it also stands established that after 2006, he had taught Economics at Delhi College of Arts & Commerce regularly till his retirement 29.02.2012.
65. From the testimony of the plaintiff it also stands established that CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.33/47 she was not in contact of Late Sh. PKB since January 2013 to May 2013 and even she was not present at the time of execution of Gift deed.
66. On the other hand the defendant has placed on record the copies of passport of Late Sh. PKB as Ex. DW1/D (OSR) to prove that Late Dr. Banerjee had traveled to Canada in the year 2008. He has also placed on record the relevant pages of Novel 'Khabar' authored by Late Dr. banerjee and published in 2012 as Ex. DW1/C (OSR), Copy of Novel 'Aranyakand' published in 2010 as Ex. DW1/E (OSR), Copy of literary Magazine 'SAMVARTAN" 2012 edition in which a travel story 'Lakhydeep' written by Dr. Banerjee was published as Ex. DW1/F(OSR).
67. It was argued by the Ld. Counsel for the plaintiff that on perusal of the copy of Novels and travel blog shows that they are firstly written by one Pranav Kumar Bandopadhaya and not by Late Dr. Pranab Kumar Banerjee and secondly, merely because the Novels were published in the year 2010 did not mean that they were written during that period or sometime earlier unless the original transcript written by the author of the relevant period are not produced before the Court.
68. This Court is of the view that even for the sake of argument and without going deep into question as to who has written those Novels and travel blog and their evidentiary value, even if they are brushed aside and not taken into consideration and only the passport pages and CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.34/47 his regular presence for teaching at Delhi College post 2006 till retirement in Feb. 2012 are considered for the time being, even then it stands proved that Late Sh. PKB was keeping a good health and was regularly performing his duties at Delhi College.
69. Even otherwise, plaintiff cannot take advantage of weak defence if the defendants, which in the opinion of the Court is not that weak, however, even if it is presumed so, same is not of any help to the case of the plaintiff, as admittedly, the initial burden was on the plaintiff to prove that Late Dr. Banerjee was not in fit state of mind as claimed by her in the plaint but as already discussed in detail, she has miserably failed to discharge that burden.
70. It was also argued by the Ld. Counsel for the plaintiff that defendant no.1 in his cross-examination has categorically admitted that the suit property was given on rent and the proceeds were utilized for defraying the expenses of medicines of Dr. Banerjee and even in the admitted document Ex. P6, it is also mentioned that Dr. Banerjee was suffering from diabetes and high BP and therefore, it stands proved that Dr. Banerjee was not keeping good health.
71. This Court has already observed that there is no iota of doubt that it stands proved that Dr. Banerjee was having health issues and medical leave record also proves that he was not in good shape in the year 2003 and 2006, therefore, the deposition of defendant no.1 only corroborates this fact that late Shri PKB was suffering from ailments only and not the gravity of the ailments on the body and mind of late CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.35/47 Shri PKB.
72. Even if the testimony of PW-3 is scrutinized carefully, she has not deposed that Dr. Banerjee had suffered any major brain stroke or he was bed ridden. She categorically admitted that he himself opened the door but was bobbling and even she got his MRI conducted and taken him to Janakpuri Hospital but neither in her chief nor in her cross she had stated the gravity of the paralytic attack and its effect on the physical and mental health of Dr. Banerjee.
73. Therefore, merely it was mentioned in Ex. P6 that he was suffering from diabetes and high bp or deposition of defendant no.1 that rent was utilized in defraying the expenses of medicines of Dr. Banerjee can be seen as a corroborative evidence to prove that he was ill but not for judging the nature, gravity and extent of that illness on his body and the mind.
74. Coming to the allegation of exercising of undue influence by the defendant no. 1 to 3 on the plaintiff for the purpose of execution of gift deed.
75. Both the parties have cited various judgments in their favour on the settled position of law as reiterated by Superior Courts for the purpose of determination of exercise of undue influence in a given case. After going through the relevant portion of all the judgments, Superior Courts have held that the Court trying the case of undue influence must consider two things to start with, namely,
1. Are the relations between the donor and the donee were such that CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.36/47 the donee is in a position to dominate the Will of the donor and
2. Has the donee used that position to obtain an unfair advantage over the donor?
3. upon the determination of these two issues a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue-influence lies on the person who is in a position to dominate the Will of the other.
4. It is further held that merely because the parties were nearly related to each other or merely because the donor was old or of weak character, no presumption of undue influence can arise.
76. The legal position that follows is that when fraud, misrepresentation or undue influence is alleged by a party is a suit, normally, the burden of proof is on them to prove such frauds, undue influence and misrepresentation. However, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence, the burden of proving the absence of fraud, misrepresentation or undue influence is on the person in the dominating position.
77. The term 'fiduciary relationship' is described as "A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence"
78. Following kinds of relationships may broadly be categorized as CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.37/47 'fiduciary' a. Trustee/beneficiary (Section 88, Indian Trusts Act,1882) b. Legal Guardian/wards (Section 20, Gurdians & Wards Act,1890) c. Lawyer/client d. Executors and administrators/legatees and heirs e. Board of directors/company f. Liquidator/company g. Receivers, trustees in bankruptcy and assignee's in insolvency/creditors.
h. Doctor/patient i. Parent/child
79. Coming to the case in hand, this Court has already concluded that the plaintiff has failed to establish that since 2006 onwards, health of her late husband was such that he was not having sound memory power, capacity to think rationally, take any decision, weigh pros and cons of any act or to do anything after knowing or understanding the purport and consequences of the same and further that he was incapable to execute gift deed and has no sound disposing state of mind on 05.04.2013 as he was terminally ill since 2006 onwards as claimed by her.
80. Ld. counsel for the plaintiff has argued and urged in the written arguments that in her cross-examination, plaintiff has categorically explained as to how the defendant no. 1 to 3 had woven the web around late Sh. PKB and exercised undue-influence on him, however, after going through the relevant portions of the testimony of the plaintiff, she had only reiterated her stand as taken by her in the plaint CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.38/47 and as this Court already observed above, she has failed to produce any corroborative evidence in support of her averments.
81. Ld. Counsel for the plaintiff has also argued that it stands proved from the testimony of the defendant no.1 that the relationship of defendant no.1 to 3 was not cordial and was improved with the efforts of the plaintiff as defendant no.1 has categorically admitted that he had not participated in the marriage function of plaintiff with Late P.K. Banerjee and he also admitted that he did not know as to when late P.K. Banerjee and plaintiff started residing in the flat in question thus, once the relationship of the defendant no.1 to 3 including other family members with the deceased was not cordial, no reason exists to gift the property by the deceased in favour of the defendant n.1 to 3.
82. However, this Court is of the considered view that once it is the own case of the plaintiff that due to her efforts the relationship of her deceased husband has became cordial with the defendant no. 1 to 3 and other family members and even both of them visited and resided with the contesting defendants at Mumbai. Even, it is also her case that on both the occasions of illness of her late husband in the year 2003 and 2006, his care was taken by defendant no.1 to 3 by keeping him at their residence at Mumbai, thus, the plea of past bitterness becomes stale and is not of any help for the case of the plaintiff.
83. Ld. Counsel for the plaintiff has also drawn the attention of this Court to the relevant portion of the testimony of the defendant no.1 and argued that it stands established from the testimony of defendant CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.39/47 no.1 that the first letter dated 23.09.2010 (Ex. P10) for change of nomination in respect of the suit property which was addressed to defendant no.4 society was written by the defendant no.1 himself and even the reply sent by the defendant no.4 society dated 25.09.2010 (Ex. P-11) in response to Ex. P 10 was also received by the defendant no.1 under his signatures at point 'B' and thereafter, the fresh letter dated 25.09.2010 (Ex. P9) alongwith nomination form for change of nomination in his name by deleting the name of Smt. Saran Handa was also written by the defendant no.1 to defendant no.4 society, which shows the predominant role played by the defendant no.1 over Late Dr. Banerjee and in order to cover up his misdeeds he falsely deposed that the letter Ex. P.10 and Ex. P9 were written by him on the dictation of his late brother Dr. Banerjee.
84. Ld. counsel argued that above plea of the defendant no.1 that Ex. P 10 and Ex. P 9 were written on the dictation of Dr. Banerjee falls flat as it is not believable that Late Dr. Banerjee was not aware about the earlier nomination made by him in favour of his close friend Smt. Saran Handa and he came to know about the same only when informed by the defendant no. 4 society by reply Ex. P11 and therefore, both the letters are forged by defendant no.1 in order to grab the suit property and it is only when he came to know about the earlier nomination in favour of Smt. Saran Handa, he got the gift deed executed in his favour and in favour of his wife and son from Late Sh. PKB by exercising undue influence.
CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.40/4785. Dealing with the above argument if it is presumed that when defendant no.1 came to know from the communication of defendant no.4 society that nomination already exists in favour of Smt. Saran Handa, he got the impugned gift deed executed from the deceased, it is observed that there is a gap of almost three years between the communications (Ex.P9, 10 & 11) and the impugned gift deed (Ex.P1), as the communications were made on 25.09.2010 by the defendant no.4 society whereas Gift deed was executed only on 05.04.2013, therefore, had it been so, defendant no.1 could have got the gift deed executed in his favour immediately in the year 2010 itself rather than waiting for almost three years instead of sending the request again to the society by way Ex. P-9 dated 25.09.2010 for change of nomination in his name. Moreover, in the present suit, the challenge is made to the gift deed and not the change of nomination. Therefore, the change of nomination is a historical fact which has no bearing on the impugned gift deed executed almost after 3 years.
86. Further, as far as the plea of forgery is concerned, plaintiff was having the sufficient opportunity to disprove the signatures of her husband on both the letters by examining a handwriting expert but she has not done so for the reasons best known to her, therefore the mere plea that both the letters were forged by the defendant no.1 as well as the plea that defendant no. 1 got the impugned gift deed executed only when he came to know about the earlier nomination in the name of Smt. Saran Handa is not sustainable. It will also be gainful to mention CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.41/47 herein that certificate of change of nomination issued by the defendant no.4 society in favour of defendant no.1 (Ex.P-12) pursuant to letter Ex. P-9 also bears the signatures of deceased Dr. Banerjee and the defendant no.1 was never confronted with those signatures and even plaintiff never tried to disprove them, which shows that the nomination process was carried out at the instance of Dr. Banerjee.
87. Thus, both the conditions (a & b) of the test laid down above by the Superior Courts for determination of undue-influence are not fulfilled as in absence of any proof of feeble mind of Later Sh. PKB on record and any other suspicious circumstance, it cannot be said that the defendant no. 1 to 3 were in a position to dominate will of Late Dr. Banerjee in order to obtain an unfair advantage over him.
88. This Court is also of the considered view that after taking into consideration the entire case it emerges before this Court that starting from the date of first health issue of Late Sh. PKB in the year 2003 and then in the year 2006, it is the defendants who were looking after Late Sh. PKB. Even it is stands established by necessary implication that between the interregnum period of change of nomination in the year 2010 and execution of registered gift deed in the year 2013 i.e. almost 2 and half years, there was no communication between Late Dr. Banerjee and the plaintiff and had there been so, she would have came to know about the change of nomination in the year 2010 itself or anytime thereafter before the execution of the impugned gift deed on 05.04.2013.
CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.42/4789. Moreover, she herself admitted that she was not in touch of Dr. Banerjee since January 2013 to May 2013. Even the plaint of the plaintiff is conspicuously silent about her visits and meetings with Dr. Banerjee when his health was improved after second illness in the year 2006 and he later on joined his duties at Delhi College. Accordingly, if the transaction of gift deed is seen from this point of view, it does not seem to be unconscionable too.
90. In view of the detailed discussion and observations made above, this Court is of the view that the plaintiff miserably failed to prove her pleaded case and consequently, the issues no. 1 & 2 are hereby decided against the plaintiff and in favour of the defendant no. 1 to 3 and as a necessary corollary, issue no. 9 to 13 are also decided against the plaintiff and in favour of the defendant no. 1 to 3.
Issue no.7
7. Whether the suit preferred by the plaintiff is bad for non-joinder of parties?...OPD1, D3 and D5
91. The above issue was framed on the plea of the defendants that in the plaint it is averred by the plaintiff that the other brother namely, Prashant Kumar Banerjee, of the Late Dr. Banerjee has given the suit property on rent who was living at Hari Nagar Delhi and it was agreed that the rental income shall be adjusted towards the medical expenses of her late husband.
92. However, this Court is of the view that the said averments were made by the plaintiff falls under the category of historical facts and CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.43/47 no relief has been sought on the basis of above averments by the plaintiff and even in cross examination it is admitted by the defendant no. 1 that the suit property has been given on rent by him to the present tenant defendant no.5 under the lease agreement dated 31.08.2013.
93. Therefore, there is no requirement of impleadment of other brother of Late Dr. Banerjee in the present case either for the purpose of arriving at just decision as per the reliefs claimed or for the effective execution of the decree, if any, passed in favour of the plaintiff.
94. Accordingly, the issue in question is decided against the defendant no. 1 to 3 and in favour of the plaintiff.
95. This Court now proceeds to decide the issue no.6 i.e.
6. Whether the plaintiff has raised her suit on false and fabricated facts and documents? ...OPD1, D3 and D5.
96. As far as the issue of fabricated documents is concerned, defendant no. 1 to 3 failed to prove that any of the document relied upon by the plaintiff is false and fabricated except the challenge to the validity of the marriage certificate Ex. P15 that too in the ground that in the plaint, plaintiff has averred that her late husband was 10 years older to her whereas in the marriage certificate as per the date of birth of the plaintiff and the deceased there is difference of only 5 years. It CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.44/47 is settled position of law that documentary evidence prevails over the oral evidence and if there is inconsistency between the two, oral evidence shall yield to documentary evidence.
97. Therefore, if there is inconsistency in the plea of the plaintiff qua the age difference, date mentioned in the marriage certificate will prevail and therefore, merely because the same is not in consonance of the oral averment of the plaintiff, it does not mean that the marriage certificate is a fabricated document unless it was proved on record by leading affirmative evidence that the certificate itself is a fabricated document. Moreover, in cross-examination, plaintiff explained the reasons for claiming the age difference of 10 years on the ground that the date of birth of Late Dr. Banerjee recorded in the documents is different from his actual age.
98. As far as issue of false and fabricated facts is concerned, it is the plea of the defendant no.1 to 3 that the plaint of the plaintiff is based on mainly two points i.e. (a)the suit property was purchased out of the joint equal contribution of the plaintiff and her late husband and
(b)that since 2006 onwards, plaintiff's late husband was having weak memory power, his capacity to think, take any independent decision, weigh the pros and cons of any act or to do anything after knowing and understanding the purport and consequences of the same. It is also claimed that the plaintiff has used the word terminally ill in respect of her late husband repeatedly in the plaint but she has failed to adduce any evidence to prove any of the above averments.
CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.45/4799. This Court is of the considered view that the word 'fact' is used in two different senses. It can mean something that is true or it can mean something that is claimed to be true, but which may or may not actually be true. The case of the plaintiff falls under the latter category of the definition of the fact. Therefore, merely because the plaintiff has failed to adduce evidence before this Court in order to prove the facts which she had claimed to be true does not ipso facto leads to the inference that the said facts are false and fabricated. It cannot be denied that there is sufficient evidence on record, which proves that late Dr. Banerjee was not in good health in the year 2003 and 2006 which is clearly established from his leave record. However, as already observed by this Court while deciding the other relevant issues, the extent and the gravity of those health ailments on the mental as well as physical condition on late Dr. Banerjee is not proved as claimed by the plaintiff in her plaint.
100. Therefore, merely because the plaintiff has failed to adduce sufficient evidence before this Court does not mean that she has filed the present suit on false and fabricated facts.
101. Accordingly, the issue no.6 is decided against the defendants and in favour of the plaintiff.
102. Now, coming to the last issue i.e. issue no.8
8. Whether the plaintiff has no locus standi to prefer and maintain the present suit against the defendants?...OPD4
103. In view of the findings returned by this Court on issue no.4, CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.46/47 even though, the plaintiff has failed to prove that she has equally contributed for the purchase of the suit property but at the same time, she being the legally wedded wife of late Dr. Banerjee and class-I legal heir as per the Hindu Succession Act 1956 is very well within her right to challenge the impugned gift deed whereby she stands disinherited from the rights in the suit property.
104. Accordingly, issue no.8 is also decided against the defendants and in favour of the plaintiff.
Relief
105. In view of the findings given by this Court on issue Nos.1,2 and issue nos.9 to 13, the present suit of the plaintiff is hereby dismissed without any order as to costs.
106. Decree sheet be drawn accordingly.
107. File be consigned to record room only after due completion and necessary action, as per Rules. Sachin Digitally signed by Sachin Jain Date: 2023.12.08 Jain 16:05:16 +0530 Pronounced in the open Court (Sachin Jain) on 07.12.2023 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi dkg CS DJ ADJ No.15636/16 Dr. Vanashree Banerjee v. Dr. Praveer Kumar Banerjee & Ors Page No.47/47