Delhi District Court
Ram Chander Dixit vs Rakesh Dixit on 21 December, 2013
IN THE COURT OF REETESH SINGH,
ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST),
KARKARDOOMA COURTS, DELHI.
CS No. 471/11
Date of institution of the case :- 03.06.2010
Date on which Judgment was reserved :- 05.12.2013
Date on which Judgment was pronounced :- 21.12.2013
I.D. NO. : 02402C0153332010
IN THE MATTER OF:-
RAM CHANDER DIXIT
S/O LATE SH. PYARE LAL DIXIT
R/O 34, SHIV MANDIR GALI, MAUJPUR,
DELHI-110053.
.......PLAINTIFF
VERSUS
RAKESH DIXIT
S/O SH. RAM CHANDRA DIXIT
R/O 34, SHIV MANDIR GALI, MAUJPUR,
DELHI-110053.
......DEFENDANT
Civil suits nos. 471/11, 472/11 and 229/11 Page 1 of 38
AND
CS No. 472/11
Date of institution of the case :- 30.09.2010
Date on which Judgment was reserved :- 05.12.2013
Date on which Judgment was pronounced :- 21.12.2013
I.D. NO. : 02402C0279252010
IN THE MATTER OF:-
RAM CHANDER DIXIT
S/O LATE SH. PYARE LAL DIXIT
R/O 34, SHIV MANDIR GALI, MAUJPUR,
DELHI-110053.
.......PLAINTIFF
VERSUS
RAKESH DIXIT
S/O SH. RAM CHANDRA DIXIT
R/O 34, SHIV MANDIR GALI, MAUJPUR,
DELHI-110053.
......DEFENDANT
Civil suits nos. 471/11, 472/11 and 229/11 Page 2 of 38
AND
CS No. 229/11
Date of institution of the case :- 13.09.2010
Date on which Judgment was reserved :- 05.12.2013
Date on which Judgment was pronounced :- 21.12.2013
I.D. NO. : 02402C0259222010
IN THE MATTER OF:-
SMT. DHANWATI DIXIT
WIFE OF SHRI RAKESH DIXIT
R/O 34, SHIV MANDIR GALI, MAUJPUR,
DELHI-110053.
.......PLAINTIFF
VERSUS
1. RAM CHANDER DIXIT
S/O LATE SH. PYARE LAL DIXIT
R/O 34, SHIV MANDIR GALI, MAUJPUR,
DELHI-110053.
2. RAJIV DIXIT
Civil suits nos. 471/11, 472/11 and 229/11 Page 3 of 38
SON OF RAM CHANDRA DIXIT
3. SORAV DIXIT
SON OF SHRI RAJIV DIXIT
4. GAURAV DIXIT
SON OF SHRI RAJIV DIXIT
5. SMT. MADHU DIXIT
WIFE OF SHRI RAJIV DIXIT
DEFENDANTS NOS. 2 TO 5
ALL RESIDENTS OF HOUSE NO.
34, Ist FLOOR SHIV MANDIR GALI
MAUJPUR DELHI.
6. SANJEEV DIXIT
SON OF SHRI RAM CHANDRA DIXIT
HOUSE NO. 11, DELHI VIDYUT BOARD COLONY
IInd FLOOR MANDWALI
DELHI.
7. COMMISSIONER MUNICIPAL
CORPORATION OF DELHI
TOWN HALL CHANDNI CHOWK
DELHI.
8. ASSESSOR AND COLLECTOR MCD
SHAHDARA ZONE
HAVING ITS OFFICE
NEAR SHYAM LAL COLLEGE
SHAHDARA DELHI.
......DEFENDANTS
Civil suits nos. 471/11, 472/11 and 229/11 Page 4 of 38
JUDGMENT
1. By this common judgment, I shall decide the following three civil suits:-
(i) Civil Suit No. 471/11 titled as Ram Chander Dixit Vs. Rakesh Dixit,
(ii) Civil Suit No. 472/11 titled as Ram Chander Dixit Vs. Rakesh Dixit & anr., and
(iii) Civil Suit No. 229/11 titled as Dhanwati Vs. Ram Chander Dixit & Ors.
2. CS NO. 471/11 and CS No.472/11 were initially filed by Sh. Ram Chander Dixit before the Court of Senior Civil Judge. CS No. 229/11 had been filed by Smt. Dhanwati Dixit in the Court of Ld. District Judge, North-East. Subsequently Smt. Dhanwati filed a transfer application in the Court of Ld. District Judge, North-East praying that CS No. 471/11 and 472/11 be transferred, heard and disposed along with CS No. 229/11. By order dated 25.02.2011, Ld. District Judge allowed the transfer application and directed that the CS NO. 471/11 and 472/11 be heard and decided along with CS No. 229/11 which was pending in the Court of Additional District Judge. In this manner all three suits have come before this Court.
FACTS IN CIVIL SUIT NO. 471/113. The Plaintiff Sh. Ram Chander Dixit is aged about 82 years and is the father of the defendant Sh. Rakesh Dixit. Plaintiff has averred that property no. 34, Shiv Mandir Gali, Maujpur, Delhi-53 consisting of two floors was owned by his wife, Smt. Munni Devi. Plaintiff has averred that his wife Smt. Munni Devi had permitted the defendant to use and occupy for his residence two rooms, one kitchen, one shop with common use of latrine and bathroom on the ground floor in the suit property shown in red in site plan (hereinafter referred to as the said property) in view of her relationship with him, being his son without charging him anything. The defendant was thus in permissive occupation of the suit property. Plaintiff has averred that Sh. Rajiv Dixit and Sh. Sanjeev Dixit other brothers of Civil suits nos. 471/11, 472/11 and 229/11 Page 5 of 38 the defendant were also permitted to reside in separate portions of the said property.
4. Plaintiff has averred that his wife Smt. Munni Devi had executed a will dated 15.05.2002 in his favour by which she bequeathed the entire property in his favour. After the death of Smt. Munni Devi, by virtue of the will plaintiff claimed that he became the owner of the entire property no. 34, Shiv Mandir Gali, Maujpur, Delhi-53.
5. Plaintiff has averred that by notice dated 07.11.2009, he withdrew permission to the defendant to continue to reside in the suit property with his family members and asked him to vacate the same. Plaintiff has averred that he had also asked his other sons Sh. Rajeev Dixit and Sh. Sanjeev Dixit to vacate their portions of the property under occupation by them. Plaintiff has averred that being in authorized occupation, defendant is liable to pay Rs.5,000/- per month to the plaintiff as mesne profits / use and occupation charges which was the market rent of the similar premises in the area. Plaintiff has averred that in order to harass him, the defendant is trying to sell the suit property to some persons without his consent. On 28.05.2010, the defendant showed the suit property to some persons with the intention to sell or sub-let the same. When the plaintiff objected, the defendant threatened him. In these circumstances, plaintiff has filed the present suit praying for the following reliefs:-
(a) for a decree for mandatory injunction to direct the defendant to vacate and hand over possession of the suit property;
(b) for a decree for recovery of mesne profits at the rate of Rs.5,000/-
per month with interest at the rate of 18% per annum from the date of filing of the suit till till the date of gaining possession of the suit property;
(c) for a decree of permanent injunction to restrain the defendant and his family members from creating third party interest in the suit property; and (d) costs of the suit.
6. Upon summons of the suit being issued, the defendant had filed his written statement in which he raised several preliminary objections. He contended that the plaintiff had concealed material facts of the case; that suit was bad on Civil suits nos. 471/11, 472/11 and 229/11 Page 6 of 38 account of non-joinder of necessary parties; that the suit was without any cause of action; that under the garb of claiming of mandatory injunction the plaintiff was seeking the relief for possession; that the plaintiff is required to pay advoleram court fee on the market value of the suit property which was not less than Rs. 50,00,000/-.
7. On merits, the defendant has claimed that his mother Smt. Munni Devi on 07.07.1998 executed a general power of attorney, agreement to sell, receipt and will in his favour for consideration of Rs.6,00,000/- in respect of H. No. 34, Shiv Mandir Gali, Maujpur, Delhi. Defendant has averred on the basis of these documents, he executed a family general power of attorney, gift deed, possession letter and family will all dated 11.08.2010 in favour of his wife Smt. Dhanwati Dixit. Therefore, Smt. Dhanwati Dixit, wife of the defendant is the owner of the suit property and the plaintiff has no right, title or interest in the same. Defendant has contended that it was his father who was in permissive occupation of two rooms on the ground floor as a licensee under the wife of the defendant. He has further averred that his elder brother Sh. Rajiv Kumar Dixit along with his family members was in use and occupation of the house as licensee of the wife of the defendant.
8. Defendant has further averred that the will dated 15.05.2002 stated to be that of Smt. Munni Devi is unattested and not admissible in the evidence. He has averred that the original documents of title are in possession of the plaintiff which were not handed over to him. Defendant has averred that it was the plaintiff and his elder brother Sh. Rajiv Kumar Dixit who were trying to dispossess the defendant and his wife from the suit property due to which he made a complaint on 04.07.2010 with the local police and on 09.07.2010 to the Women Commission but no action on the same was taken. As regards the legal notice dated 07.11.2009, defendant has averred that in view of the preliminary objections raised by him, the said notice is of no relevance as the defendant has no connection with the suit property since his wife is the owner of the suit property.
Civil suits nos. 471/11, 472/11 and 229/11 Page 7 of 389. Replication to the written statement was filed by the plaintiff in which he reiterated his contentions made in the plaint and denied the averments of the defendant made in his written statement.
10. On the pleadings of the parties, by order dated 31.08.2010, the following issues were framed:-
1. Whether suit has been properly valued for the purpose of court fees and jurisdiction? OPP
2. Whether the suit is bad for mis-joinder / non-joinder of necessary parties? OPD
3. Whether the suit is without cause of action? OPD
4. Whether the plaintiff is entitled for the decree of Possession / Ejectment, as prayed ? OPP
5. Whether the plaintiff is entitled for the decree of damages / mesne profits, if so at what rate and for what period? OPP
6. Whether the plaintiff is entitled for the decree of permanent injunction, as prayed? OPP
7. Relief FACTS IN CIVIL SUIT NO. 472/11
11. This suit has also been filed by Sh. Ram Chander Dixit against his son Sh. Rakesh Dixit (who is the defendant no. 1) and Smt. Dhanwati Dixit, wife of Sh. Rakesh Dixit (who is the is defendant no. 2). Brief facts leading to filing of this suit are identical to the facts as pleaded in CS No. 471/11 which have been narrated above. In CS No. 471/11, Sh. Rakesh Dixit has filed his written statement in which he disclosed that his other Smt. Munni Devi had executed general power of attorney, agreement to sell, receipt and will in his favour and on the basis of the same, he thereafter executed general power of attorney, gift deed, family will, possession letter all dated 11.08.2010 in favour of his wife i.e. defendant no. 2 herein. Plaintiff has averred that his wife Smt. Munni Devi was residing with him and there was no question of her executing such documents on 07.07.1998 in favour of the defendant no. 1. Plaintiff has claimed in this suit that that both these set of documents are forged and fabricated and that his wife Smt. Munni Devi never executed any such documents in favour of the defendant no. 1.
Civil suits nos. 471/11, 472/11 and 229/11 Page 8 of 38He contended that the defendants cannot claim any title to the suit property on the basis of the same. Thus, by way of this suit the plaintiff has prayed the following reliefs:-
(a) to declare the documents general power of attorney, agreement to sell, receipt all dated 07.07.1998 and will dated 11.08.2010 stated to be executed by late Munni Devi in favour of defendant no. 1 and the subsequent documents i.e. family general power of attorney, gift deed, will and possession letter dated 11.08.2010 executed by defendant no. 1 in favour of defendant no. 2 as null and void;
(b) for a decree of permanent injunction to restrain the defendants from creating third party interest in the suit property;
(c) costs of the suit.
12. Upon summons being issued, joint written statement was filed by both defendants who are husband and wife. In the written statement, it is contended that this suit was barred under the provisions of Order 2 Rule 2 CPC; that this court did not have the pecuniary jurisdiction to entertain the suit as the value of the suit property was more than Rs.15,00,000/-; that the plaintiff had not sought any decree to declare himself as the owner of the suit property; that the suit is not properly valued for the purposes of court fee and pecuniary jurisdiction; that there is no cause of action in favour of the plaintiff and against the defendants.
13. On merits, both defendants denied that the plaintiff had become the owner of the suit property on the basis of the will of Munni Devi. They averred that Smt. Munni Devi had transferred the title of the suit property in favour of the defendant no. 1 by virtue of the documents dated 07.07.1998 and thereafter defendant no. 2 transferred the title of the suit property to defendant no. 2 on the basis of the documents dated 11.08.2010. Defendant no. 2 therefore claims that the she was the owner of the suit property.
14. In the replication filed to the written statement, the plaintiff reiterated his contentions made in the plaint and denied those made by the defendants in their written statement.
15. On the pleadings of the parties, by order dated 26.11.2010, the following issues were framed:-
Civil suits nos. 471/11, 472/11 and 229/11 Page 9 of 381. Whether suit has been properly valued for the purpose of court fees and jurisdiction? OPP
2. Whether the present suit is barred U/o 2 Rule 2 CPC ? OPD
3. Whether the present suit is barred by the principal of resjudicata? OPD
4. Whether the suit is without cause of action? OPD
5. Whether the plaintiff is entitled for the relief of declaration? OPP
6. Whether the plaintiff is entitled for the decree of permanent injunction? OPP
7. Relief "FACTS IN CIVIL SUIT 229/11
16. Smt. Dhanwati Dixit is the plaintiff in this suit. Sh. Ram Chander Dixit is the defendant no.1. The defendants no. 2 and 6 are the sons of the defendant no. 1. The defendants no.3 and 4 are the sons of the defendants no. 2 and defendant no.5 is the wife of the defendant no.2. Defendant no.7 and 8 are the Municipal Corporation of Delhi.
17. Brief facts relating to the filing of this suit are common to the pleadings of CS No. 471/11 and 472/11. In the present matter the plaintiff Smt. Dhanwati Dixit has claimed that her mother-in-law Smt. Munni Devi was the owner of the property no. H.No. 34, Shiv Mandir Gali, Maujpur, Delhi. She in her lifetime on 07.07.1998 transferred the title of the said property in favour of Sh. Rakesh Dixit, husband of the plaintiff who thereafter executed documents of title in favour of the plaintiff in respect of the said property on 11.08.2010. In this manner, the plaintiff is the owner of the suit property. As per the plaintiff, the defendants no. 1-6 are in occupation of the various portions of the property with her permission / as her licensees.
18. Plaintiff has averred that the said property is duly mutated in the records of the MCD in her favour but the defendants no. 1-6 are trying to sell the same. Plaintiff has averred that the defendants no. 1-6 have falsely claimed that Smt. Munni Devi had executed a will dated 15.05.2002 in favour of the defendant no.
1. She has averred that the said documents are forged and fabricated. She has Civil suits nos. 471/11, 472/11 and 229/11 Page 10 of 38 further averred that the defendants no. 1-6 beat up the plaintiff and her husband on 04.07.20101, 05.07.2010, 06.07.201 and 09.07.2010 for which she made complaints to the local police and to the Women Commission but no action was taken on the same. In these circumstances, the plaintiff has filed this suit praying for the following reliefs:-
(a) a decree of permanent injunction to restrain the defendants no. 1-6 from dispossessing the plaintiff from the ground floor of the property no. H. No. 34, Shiv Mandir Gali, Maujpur, Delhi;
(b) a decree of permanent injunction against the defendants no. 7 and 8 to restrain them from carrying out mutation of the name of the defendant no. 1 in respect of the said property in their records;
(c) to restrain the defendants no. 1-6 from creating third party interest in the suit property;
(d) for a decree to declare that the plaintiff as the owner of the property no. H. No. 34, Shiv Mandir Gali, Maujpur, Delhi and that the defendants no. 1-6 have no right, title or interest in the same and they are only licensees under the plaintiff;
(e) for a decree for possession against the defendants no. 1-6 in respect of portions of the suit property under their occupation;
(f) a decree for damages /mesne profits against the defendants no. 1-6 at the rate of Rs.5,000/- per month from the date of fling of the suit till the date of gaining possession;
(g) decree for directing the defendants no. 1-6 to hand over original documents of title of the suit property in the name of Smt. Munni Devi to the plaintiff;
(h) costs of the suit.
19. The defendants no. 1-6 filed a joint written statement in which they raised preliminary objections that the suit was liable to be dismissed under Order 7 Rule 11 CPC; that the suit was a counter blast to the suits having been filed by Sh. Ram Chander Dixit; that the plaintiff had concealed material facts of the case; that the suit had not been properly valued for the purposes of court fee and pecuniary jurisdiction. The written statement on merits was the same as averred by the plaintiff Sh. Ram Chander Dixit in his two suits i.e. by virtue of will dated 15.05.2002, Smt. Munni Devi had bequeathed the entire two storied property no. H. No. 34, Shiv Mandir Gali, Maujpur, Delhi in favour of defendant no. 1 who was the sole owner of the same.
Civil suits nos. 471/11, 472/11 and 229/11 Page 11 of 3820. Replication to the written statement was filed by the plaintiff in which she reiterated her contentions raised in her plaint and denied the averments made by the defendants no. 1-6 in the written statement.
21. Defendants no. 7 and 8 i.e. MCD filed a joint written statement in which they raised preliminary objections that suit was barred under Section 477 and 478 of the MCD Act and that there was no cause of action against MCD.
22. On merits, MCD averred that suit property had been mutated in the name of plaintiff on the basis of documents of title dated 11.08.2010 furnished by her. It is averred that defendant no. 1 had written a letter dated 22.09.2010 to MCD for cancellation of the assessment order dated 19.08.2010 to which the MCD had replied by its letter dated 21.10.2010.
23. On the pleadings of the parties, by order dated 20.10.2011, the following issues were framed:-
1. Whether the plaintiff is entitled to a decree for permanent injunction against the defendants ? OPP
2. Whether the will dated 15.05.2002, executed by late Smt. Munni Devi, Mother-in-law of the plaintiff in favour of the defendant no. 1, is liable to be cancelled ? OPP
3. Whether the plaintiff is liable to be declared as owner of house no. 34, Shiv Mandir Gali, Maujpur, Delhi, on the basis of the GPA, Agreement to Sell, Receipt for Rs.6,00,000/- and Will all dated 07.07.1998 executed by late Smt. Munni Devi, mother-in-law of the plaintiff in favour of Shri Rakesh Kumar Dixit, husband of the plaintiff and on the basis of the family GPA, Gift Deed and family Will Deed dated 11.08.2010 executed by Shri Rakesh Kumar Dixit, husband of the plaintiff in favour of the plaintiff ? OPP
4. Whether the plaintiff is entitled to a decree of possession against the defendants no. 1 to 6 with respect to the portion marked "A,B,C,D" and "E,F,G,H" as shown in green colour in the site plan ? OPP
5. Whether the plaintiff is entitled to a decree of damages/mesne profits for use and occupation, from the defendant no. 1 to 6 ? If so, at what rate and for which period ? OPP
6. Whether the suit is not properly valued for the purposes of the court fee and jurisdiction ? OPD
7. Whether the plaintiff has no locus standi to file the present suit ? OPD
8. Whether the suit is without cause of action and is liable to be dismissed under Order 7 Rule 11 CPC ? OPD
9. Relief.Civil suits nos. 471/11, 472/11 and 229/11 Page 12 of 38
CONSOLIDATION OF EVIDENCE IN ALL THE THREE SUITS
24. All three suits pertained to the same property no. H. No. 34, Shiv Mandir Gali, Maujpur, Delhi. There was no dispute between the parties that late Munni Devi was the owner of the suit property while Sh. Ram Chander Dixit had claimed that she had bequeathed the same to him by will dated 15.05.2002. Sh. Rakesh Dixit and Smt. Dhanwati Dixit claimed otherwise. Their case was that late Munni Devi by virtue of documents dated 07.07.1998 transferred the said property to Sh. Rakesh Dixit who subsequently further transferred the same to his wife Smt. Dhanwati on 11.08.2010. While Sh. Ram Chander Dixit has prayed for a decree to direct Sh. Rakesh Dixit to hand over possession of the portion of the suit property under his occupation and also to declare the documents of title of Sh. Rakesh Dixit and Smt. Dhanwati as null and void, Smt. Dhanwati has claimed that the will dated 15.05.2002 be declared as null and void and she be granted possession of the portion of the property under the occupation of Sh. Ram Chander Dixit and other family members. In these circumstances, this Court by order dated 20.10.2011 directed that the all suit for the purposes of evidence would stand consolidated and that evidence would be led only in CS No. 471/11 which would be read as evidence for the purposes of CS No. 472/11 and CS No. 229/11.
25. The plaintiff of CS No. 471/11 and 472/11 Sh. Ram Chander Dixit led evidence first. He examined himself as PW-1 and deposed by way of affidavit Ex.PW1/A. His evidence is as per his averments made as plaintiff in CS No. 471/11 and 472/11. His evidence was also on behalf of the defendants no. 2-6 in CS no. 229/11 in which Sh. Ram Chander Dixit was defendant no. 1. Sh. Ram Chander Dixit placed reliance on the following documents:-
1. Site plan as Ex.PW1/12. will dated 15.05.2002 as Ex.PW1/2
3. Legal notice dated 7.11.2009 as Ex.PW1/3.
4. Registered post receipt as Ex.PW1/4
5. UPC receipt as Ex.PW1/5.
6. Carbon copy of complaint dated 28.05.2010 as Ex.PW1/6.
7. UPC receipt as Ex.PW1/7.Civil suits nos. 471/11, 472/11 and 229/11 Page 13 of 38
8. Reply dated 30.11.2009 of the defendant to the legal notice as Ex.PW1/8.
9. Reminder dated 17.03.2010 of the defendant as Ex.PW1/9.
10. Registered covers as Ex.PW1/10.
26. Sh. Ram Chander Dixit as PW-1 was cross examined by the counsel for the defendant Sh. Rakesh Dixit in CS No. 471/11 and 472/11 and Smt. Dhanwati Dixit, plaintiff in CS No. 229/11. In his cross-examination PW-1 deposed that his wife was illiterate but she used to sign in Hindi. He admitted that the attesting witnesses to the will dated 15.05.2002 are his daughters Smt. Madhu and Smt. Renu. He deposed that the same was drafted by his counsel Sh. S.D. Dixit, Advocate. He could not remember the name of the typist but the same was prepared in Tis Hazari Courts. He deposed that he was accompanied by his wife and his two daughters. He deposed that his wife signed the will at the seat of the Oath Commissioner which was seen by the Oath Commissioner. He deposed that he himself did not attest the will but his daughters signed the same in front of the Oath commissioner. He could not remember the name of the Oath Commissioner. He deposed that contents of the will were read over and explained in Hindi to his wife by the Oath Commissioner. He denied the suggestion that the will was forged and fabricated. He deposed that his wife had not operated any bank account. He admitted that the documents of title of the suit property were with him. He admitted that probate of the said will had not been obtained.
27. PW-1 denied the suggestion that his wife had executed documents of transfer of the suit property in favour of Sh. Rakesh Dixit on 07.07.1998. He could not remember the name of the person who drafted the site plan. He deposed that the value of the suit property was approximately Rs.60,00,000/-.
28. Sh. Ram Chander Dixit then examined his daughter Smt. Madhu as PW-2. Smt. Madhu deposed by way of affidavit Ex.PW2/A. She deposed that the will dated 15.05.2002 was executed by her mother in her presence and in the presence of Smt. Renu who was the other attesting witness to the same. She deposed that the contents of the will were read over and explained to Smt. Munni Civil suits nos. 471/11, 472/11 and 229/11 Page 14 of 38 Devi in Hindi. She deposed that Smt. Munni Devi, Smt. Renu and she herself put their signatures on the will in the presence of each other. She identified the signatures of her mother on the will at point A and her own signatures at point B.
29. PW-2 Smt. Madhu was cross examined by the counsel for the defendant Sh. Rakesh Dixit in CS No. 471/11 and 472/11 and Smt. Dhanwati Dixit, plaintiff in CS No. 229/11. In her cross-examination she admitted that her mother was illiterate but deposed that she used to sign in Hindi. She deposed that the contents of the will were explained by Advocate Sh. S.D. Dixit to her mother in his chamber. She deposed that it was correct that she and her mother put their signatures on the will in the chamber of the Advocate where her father and other sister were also present. She deposed that she did not know where the typist of the will was sitting. She could not remember the chamber number of the counsel. She denied the suggestion that the will was forged by her father with her collusion to grab the suit property as her mother was illiterate. She denied the suggestion that the will was prepared at her residence.
30. PW-3 is Smt. Renu Trivedi, the second attesting witness to the will. She deposed by way of affidavit Ex.PW3/A. Her evidence is identical to that of PW-2 Smt. Madhu. She identified her signatures on the will at point C. In her cross- examination she deposed that her mother was illiterate but could sign in Hindi. She had no certificate of education qualification of her mother. She deposed that the will was prepared in Tis Hazari Courts in chamber no. 90 of Sh. S.D. Dixit, Advocate. She could not remember the block. She deposed that the will was prepared in the presence of her parents and her sister Smt. Madhu. There was no other witness to the will. She deposed that the will was in Hindi language. She deposed that her mother, her sister and she herself signed the will after the contents of the same were read over to them. She denied the suggestion that her mother was not competent to sign the will or that the same was forged by her father in collusion with her. Sh. Ram Chander Dixit thereafter closed his evidence.
31. Sh. Rakesh Dixit, defendant in CS No. 471/11 and 472/11 examined Civil suits nos. 471/11, 472/11 and 229/11 Page 15 of 38 himself as DW-1. He deposed by way of affidavit Ex.DW1/A. His evidence is as per his pleadings. In addition, he deposed that the land on which the suit property was constructed was purchased from money generated through the sale of jewellery of late Smt. Munni Devi. He deposed that he had contributed from time to time to his mother after joining the service of DESU in 1992. He further deposed that other members of his family including his father had contributed money for construction of the house. He deposed that his father Sh. Ram Chander Dixit had purchased residential house for Sh. Rajiv Kumar Dixit, his elder brother in Loni Road, UP and for his younger brother Sh. Sanjeev Kumar Dixit in NOIDA, UP. In para 4 of his affidavit he deposed that it was decided among his family members that the suit property would be transfered in his favour by Smt. Munni Devi and therefore through the documents i.e. general power of attorney, agreement to sell, receipt and will all dated 07.07.1998, Smt. Munni Devi transferred the suit property in his favour for sale consideration of Rs. 6,00,000/-. He deposed that due to a typographical error the date of the will was typed as 07.07.2010 instead of 07.07.1998. He further deposed that in view of the good relations between the family members, a plot of land was jointly purchased in the name of Sh. Rakesh Dixit, Sh. Rajiv Dixit and Sh. Sanjeev Dixit in Haridwar vide sale deed dated 13.02.2004 but the original deed was with his father. He deposed that his mother was illiterate and could not sign in Hindi or English and used to affix thumb impression.
32. DW-1 further deposed that on the basis of documents dated 07.07.1998, he executed family GPA, Gift deed, possession letter and family will all dated 11.08.2010 in favour of his wife Smt. Dhanwati Dixit. On the basis of these documents his wife has become the owner of the suit property. DW-1 relied on the following documents:-
1. GPA dated 07.07.1998 as Mark X-1.
2. Agreement to sell dated 07.07.1998 as Ex.DW1/2.
3. Receipt dated 07.07.1998 as Mark X-2.
4. Will dated 07.07.2010 as Mark X-3.
5. Agreement to sell dated 11.08.2010 as Ex.DW1/5.Civil suits nos. 471/11, 472/11 and 229/11 Page 16 of 38
6. Gift Deed dated 11.08.2010 as Ex.DW1/6.
7. Possession letter dated 11.08.2010 as Ex.DW1/7.
33. DW-1 was cross examined by the counsel for Sh. Ram Chander Dixit. In his cross-examination he deposed that his date of birth was 01.01.1961 but could not remember the date and year of his marriage. He deposed that after his marriage he continued to live with his parents till 2004. He denied the suggestion that he started residing separately from his parents from the date of his marriage.
He deposed that the house i.e. suit property was purchased from the joint funds of his parents and that he was a minor at that time. He deposed that the second floor on this property was constructed in 1994-95 and denied the suggestion that the same was constructed before 1992. He deposed that he had contributed Rs. 40,000-50,000/- to his father for raising construction on the suit property but he did not have any documentary evidence of his contribution. He denied the suggestion that he did not contribute any such amount.
34. DW-1 deposed that his mother was unemployed but was having income from agricultural land from village Bhudha, Kashtua, District Bilaspur, UP but did not have any documentary proof of the same. He deposed that she was not having any source of income but again deposed that she got rental income from the suit property. He denied the suggestion that his mother was dependent on his father and was living separately from him at the time of her death. He deposed that there was no dispute between his parents. He denied the suggestion that the property was purchased by his father from his own income. He deposed that his mother had purchased the property from sale proceeds of her jewellery of which he did not have any documentary evidence. He deposed that his parents had informed him of the same. He deposed that he had no documentary evidence to show that his father provided funds to Sh. Rajiv Dixit and Sh. Sanjeev Dixit for purchase of properties in NOIDA. He deposed that Sh. Sanjeev Dixit was an engineer with BSES and Sh. Rajiv Dixit was an officer with Punjab National Bank. He deposed that his father had provided them funds to purchase Civil suits nos. 471/11, 472/11 and 229/11 Page 17 of 38 their properties.
35. DW-1 further deposed in his cross-examination that he could not remember the date and month in the year 1998 when settlement took place in his family for asking his mother to execute sale documents of the suit property in his favour. He deposed that his siblings and parents were present but no other relatives were called. None of the neighbours were involved. The family settlement was not reduced in writing. He deposed that money in cash was paid to his sisters and his brothers at the time of settlement. Immediately thereafter he deposed that the money was agreed to be paid to them but no amount was settled. No written consent was obtained from his siblings for execution of sale documents in his favour. He deposed that he was not aware about the amount of money paid in cash to his brothers and sisters in the year 1998. He admitted that he had not made any averments regarding any family settlement in his written statements to the suits filed by his father. He admitted that he had sent reply to the legal notice dated 07.11.2009 Ex.PW1/3 of his father. He admitted having sent the replies dated 30.11.2009 Ex.PW1/8 and 17.03.2010 Ex.PW1/9. He deposed that the signatures of his father were not obtained on any of the documents dated 07.07.1998 when he was present. He deposed that he had not averred anything regarding presence of his father at the time of execution of the documents dated 07.07.1998 in his written statement.
36. DW-1 deposed in his cross - examination that he had not sought mutation of the suit property in his name but the same had been mutated in the name of his wife in the house tax department of MCD. He deposed that his wife had not attached any no objection certificate of his father and other legal heirs of his deceased mother with the MCD.
37. DW-1 further deposed that the payment of Rs.6,00,000/- was made by him to his mother on different occasions. He paid Rs.2,00,000/- two days prior to 07.07.1998. Out of the same, he had raised Rs.75,000/- as loan from "IP Society". He deposed that he had paid Rs.1,25,000/- earlier but could not remember the date. He deposed that he paid Rs.4,00,000/- to his mother on Civil suits nos. 471/11, 472/11 and 229/11 Page 18 of 38 different occasions but could not remember the dates. He deposed that he had raised Rs.4,00,000/- from public societies and ornaments of his wife but could not remember the names of the societies. He could not remember the amount raised from sale of jewellery of his wife due to lapse of time. He deposed that the same were sold to a jeweller at Shahdara, Delhi but could not remember his name. He deposed that in 1998 he was earning Rs.6,000/- per month from his salary in DVB. He was also running a shop of electronic appliance repair from which earning Rs.2,000/- per month. He deposed that he was working as salesman of electrical appliances from which he was earning Rs.10,000/-15,000/- per month. He deposed that he did not intimate his department regarding purchase of the suit property or payment of Rs.6,00,000/- to his mother.
38. DW-1 further deposed that none of the documents were registered. He deposed that his father was present in Seelampur Courts when the documents in his favour were prepared but none of his siblings were present. He deposed that he knew Sh. Satender Sharma and Sh. Ashok Kumar from childhood who signed as witnesses to the documents on the request of his father. He deposed that he did not ask any of his neighbours to sign as witnesses. He denied the suggestion that the documents dated 07.07.1998 were forged by him in collusion with Sh. Satender Sharma and Sh. Ashok Kumar during the pendency of the proceedings initiated by his father. He deposed that he had not informed his siblings about the documents dated 07.07.1998. Voluntarily he deposed that his siblings had knowledge of the said documents. He deposed that he did not ask his siblings and father to vacate the suit property since 1998 as he was having good relations with them. He deposed that they had promised to vacate the portions under their occupation after completion of education of their children but no such agreement was there in writing. He deposed that documents dated 11.08.2010 in favour of his wife were executed by him after receiving the legal notice sent by his father.
39. Smt. Dhanwati Dixit, defendant no. 2 in CS NO. 472/11 and the plaintiff in CS No. 229/11 was examined as DW-2. She deposed by way of affidavit Civil suits nos. 471/11, 472/11 and 229/11 Page 19 of 38 Ex.DW2/A. She deposed similarly as her husband Sh. Rakesh Dixit DW-1. In her cross-examination she deposed that she got married with Sh. Rakesh Dixit on 21.02.1988. Till the year 2007, she was residing with her in-laws. She deposed that she was not present on 07.07.1998 in the office of Sub-Registrar. She deposed that an oral family settlement in regard to the suit property had taken place but could not remember the date, month and year. She deposed that it took place 2-3 months prior to 07.07.1998. She deposed that her husband had executed papers in her favour and that she was present in the office of Sub- Registrar on 11.08.2010. She deposed that she was presently the owner of the suit property. She denied the suggestion that her father in law became the owner of the suit property by virtue of will dated 15.05.2002. She deposed that she was not aware as to when the suit property was mutated in her name in the office of MCD. Rest of her cross-examination was in the form of suggestions.
40. Sh. Rakesh Dixit and Smt. Dhanwati Dixit then examined Sh. Satender Garg as DW-3. He deposed that he was known to the parties for the past twenty years and was having family relations with Sh. Rakesh Dixit. He deposed that he was the attesting witnesses to both the sets of documents dated 07.07.1998 and 11.08.2010 which were executed in his presence. He deposed that though the will was executed on 07.07.1998, due to typographical error the same was typed as 07.07.2010. In his cross-examination, he deposed that the documents dated 07.07.1998 had already been typed when he reached Seelampur Complex. He was not aware as to who prepared the same. He deposed that before coming to the Seelampur Complex Sh. Rakesh Dixit had paid Rs.2,00,000/- to his mother in their house in his presence where Sh. Ram Chander Dixit and Sh. Ashok Kumar were already present. He deposed that no separate receipt for Rs.2,00,000/- were prepared at the time of preparation of the receipt for Rs.6,00,000/- which had already been prepared. He deposed that he was not aware from where Sh. Rakesh Dixit had arranged Rs.2,00,000/-. He deposed that Rs.4,00,000/- had already been paid earlier but could not remember the date. He admitted that the receipt mark X-2 did not mention payment of Rs.6,00,000/- in two installments.
Civil suits nos. 471/11, 472/11 and 229/11 Page 20 of 3841. DW-3 further deposed that the date of the will mark X-2 was 07.07.1998 and was executed on the same date as the other documents. When the said documents was taken out from the court file he admitted that the date of the will Mark X-3 was 07.07.2010 but deposed that the same was executed along with the other documents on 07.07.1998. He deposed that Mark X-1, Ex.DW1/2 and the documents dated 11.08.2010 were executed in Nand Nagri complex which were already prepared when he signed the same. He deposed that the same were prepared by one Tauhir Siddiqui. He deposed that the family GPA was registered and rest were notarized. He deposed that he was not aware whether Sh. Rakesh Dixit and his wife were in possession of the first floor of the suit property on 11.08.2010. He deposed that he was not aware about the dimensions of the suit property. He deposed that physical possession of the suit property was not handed over though Ex.DW1/7 possession letter mentioned that possession was handed over. He deposed that he had only signed as an attesting witness. Rest of his cross-examination was only in the form of suggestions.
42. The last witness examined by Sh. Rakesh Dixit and Smt. Dhanwati Dixit is Sh. Ashok Kumar DW-4 who deposed by way of affidavit Ex.DW4/A. He deposed that he was known to the parties for the past 30 years and was having family relations with Sh. Rakesh Dixit. He deposed that he was the witness to the documents dated 07.07.1998. He deposed that though the will was executed on 07.07.1998, due to typographical error the same was typed as 07.07.2010. In his cross-examination, he deposed that he could not remember the details of the documents on which he signed as a witness. He deposed that he was not aware as to who typed the documents dated 07.07.1998. He could not remember the value of the stamp paper for the execution of these documents. He could not remember as to on how many places he signed. He deposed that Rs.2,00,000/- were paid by Sh. Rakesh Dixit to his mother in his presence on the date of the execution of the documents dated 07.07.1998. No payment was made in his presence before the office of the Sub-Registrar.
Civil suits nos. 471/11, 472/11 and 229/11 Page 21 of 3843. I have gone through the evidence on record and heard the submissions of the Ld. Counsel for the parties. Before rendering issue wise findings in each suit, I shall analyze the evidence of the parties led by them.
44. The case of Ram Chander Dixit was that his wife was owner of the suit property and she executed a will dated 15.05.2002 in his favour and upon her death, by operation of law, he became owner of the suit property. Section 63 (c) of the Succession Act 1925 requires a will to be attested. Further the same cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution. In this regard the in the case of Gopal Swaroop v. Krishna Murari Mangal reported in (2010) 14 SCC 266 the Hon'ble Supreme Court was pleased to hold as under:
"17. A careful analysis of the provisions of Section 63 would show that the proof of execution of a will would require the following aspects to be proved:
(1) That the testator has signed or affixed his mark to the will or the will has been signed by some other person in the presence and under the direction of the testator.
(2) The signature or mark of the testator or the signature of the persons signing for him is so placed has to appear that the same was intended thereby to give effect to the writing as a will. (3) That the will has been attested by two or more witnesses each one of whom has signed or affixed his mark to the will or has been seen by some other person signing the will in the presence and by the direction of the testator or has received from the testator a personal acknowledgment of the signature or mark or the signature of each other person.
(4) That each of the witnesses has signed the will in the presence of the testator."
45. PW-2 Madhu and PW-3 Renu are the attesting witnesses to the will. Both are the daughters of deceased testator Munni Devi. Both have deposed that their mother had executed the said will in favour of their father in their presence; that they signed the will as attesting witnesses to the same and their mother had also signed the same in their presence. Both were cross-examined by the counsel for Civil suits nos. 471/11, 472/11 and 229/11 Page 22 of 38 Sh. Rakesh and Smt. Dhanwati Dixit. There is nothing material in their cross examination from which their version could be doubted. The only contradiction, which if can be termed as a contradiction, is whether the contents of the will were read over and explained in Hindi to late Smt. Munni Devi prior or after signing the same. Both have deposed in their cross examination that contents were read over to their mother. There is no contradiction in the same. Whether the will was read over before or after signing is not material since the will was attested by the attesting witnesses and its contents had been read over to the testator. Thus Sh. Ram Chander Dixit has duly proved the execution of the will dated 15.05.2002 in respect of the suit property in his favour.
46. Now coming to the case set up by Sh. Rakesh Dixit and his wife Smt. Dhanwati Dixit. Sh. Rakesh Dixit has not disputed that the suit property was owned by his late mother Smt. Munni Devi. His defence is that Smt. Munni Devi in her lifetime had sold the suit property to him for a consideration of Rs. 6,00,000/- through documents General Power of Attorney, Agreement to Sell, Receipt and Will all dated 07.07.1998. On the basis of these documents, Sh. Rakesh Dixit further transferred the suit property in favour of his wife Smt. Dhanwati Dixit through documents described as family GPA, gift deed, possession letter and family will all dated 11.08.2010. Admittedly all these documents are unregistered. Before dealing with the question whether any title flowed in favour of Smt. Dhanwati Dixit, the documents of title in favour of Sh. Rakesh Dixit are to be considered.
47. As per the written statement of Sh. Rakesh Dixit filed in CS No. 471/11, all the documents General Power of Attorney, Agreement to Sell, Receipt and Will are dated 07.07.1998. There is no pleading in the said written statement of any other date in respect of all these documents. Sh. Rakesh Dixit and his wife Smt. Dhanwati Dixit are defendants in CS No. 472/11. In their joint written statement to the said suit also they have jointly pleaded execution of these documents on 07.07.1998 in favour of Sh. Rakesh Dixit by Smt. Dhanwati Dixit. No other date of execution of these documents have been pleaded by them. Smt. Dhanwati Civil suits nos. 471/11, 472/11 and 229/11 Page 23 of 38 Dixit is the plaintiff in CS No 229/11. In her plaint, she has pleaded execution of these very documents by late Smt. Munni Devi in favour of her husband on 07.07.1998. She has not pleaded any other date in respect of the same.
48. As recorded evidence in all the matters were consolidated. Sh. Rakesh Dixit as DW-1 in his evidence by way of affidavit Ex.DW1/A has deposed in para no. 4 that out of the documents executed by late Smt. Munni Devi in his favour, the GPA, agreement to sell and receipt are dated 07.07.1998. He has further deposed that even the will was executed by late Smt. Munni Devi in his favour on 07.07.1998 but due to a "typographical error" the date of the will was wrongly typed as 07.07.2010 instead of 07.07.1998. However, Smt. Dhanwati Dixit DW-2 in her affidavit Ex.DW2/A has not deposed about the said "typographical error" in the will of late Smt. Munni Devi. She has simply deposed the same was dated 07.07.1998. DW-3 Sh. Satinder Dutt in his evidence by way of affidavit Ex.DW3/A has deposed that the will of Smt. Munni Devi was executed on 07.07.1998 but due to typographical error the date was typed as 07.07.2010. Sh. Ashok Kumar DW-4 has deposed similarly.
49. Sh. Rakesh Dixit and Smt. Dhanwati Dixit in their pleadings in all the three suits have not specifically pleaded about any typographical error having crept into the will of late Smt. Munni Devi. This aspect has only been brought in at the stage of evidence. In other words there is no factual foundation laid in their pleadings to explain the discrepancy in the date of the will which according to them was executed on 07.07.1998 but bears the date of 07.07.2010. Their evidence on this aspect is beyond their pleadings and cannot be considered. More so when they have failed to examine the typist who committed this typographical error.
50. Ex.PW1/3 is a legal notice dated 07.11.2009 sent by Sh. Ram Chander Dixit to Sh. Rakesh Dixit. In the same Sh. Ram Chander Dixit claimed that he had become the absolute owner of the suit property by virtue of the will dated 15.05.2002 executed by late Smt. Munni Devi in his favour. Sh. Rakesh Dixit has admitted to have sent a reply dated 30.11.2009 Ex.PW1/8 and a reminder notice-
Civil suits nos. 471/11, 472/11 and 229/11 Page 24 of 38cum-reply dated 17.03.2010 Ex.PW1/9 to the same. The contents of Ex.PW1/8 and Ex.PW1/9 are material. Relevant portion of Ex.PW1/8 is reproduced as under:-
"It is submitted that mother of my client Smt. Munni Devi gave a share on the basis of oral partition of one shop, two rooms, one kitchen, latrine, bathroom, same is situated on the ground floor the said property."
51. Further in Ex.PW1/9, Sh. Rakesh Dixit has instructed his counsel to state as under:-
"It is submitted that mother of my client Smt. Munni Devi gave a share on the basis of oral partition of one shop, two rooms, one kitchen, latrine, bathroom, same is situated on the ground floor the said property."
52. In both the replies Ex.PW1/8 and Ex.PW1/9 Sh. Rakesh Dixit has denied that his father became owner of the suit property by virtue of the will dated 15.05.2002. He has taken a specific stand, not once but twice over, that his mother Smt. Munni Devi effected an oral partition of the suit property in her lifetime by virtue of which one shop, two rooms, one kitchen, latrine and bathroom on the ground floor came to his share. Sh. Rakesh Dixit has claimed a share in the suit property by way of an alleged oral partition. There is no whisper in these replies of any documents having been executed by late Smt. Munni Devi in his favour on 07.07.1998 by which Sh. Rakesh Dixit claims to be the owner of the entire suit property.
53. Sh. Rakesh Dixit in his cross examination has admitted sending the replies Ex.PW1/8 and Ex.PW1/9 through his counsel to Sh. Ram Chander Dixit. He has, thus, admitted that the contents of the same were incorporated on his instructions. In these documents Sh. Rakesh Dixit has claimed to have a share in the suit property on the basis of an alleged oral partition effected by his late mother in her lifetime. However his case as pleaded in these suits is based on Civil suits nos. 471/11, 472/11 and 229/11 Page 25 of 38 the documents dated 07.07.1998 executed by his mother in his favour by which he claims to have become the owner of the entire suit property. The contents of Ex.PW1/8 and Ex.PW1/9 are contradictory to his pleadings in the suits. If he was the owner of the suit property on the basis of these documents dated 07.07.1998, he could not have claimed in Ex.PW1/8 and Ex.PW1/9 that he had been given a share in the suit property on the basis of an oral partition. Ex.PW1/8 and Ex.PW1/9 are dated 30.11.2009 and 17.03.2010 respectively. They are much later than the alleged documents dated 07.07.1998.
54. The date of 7.7.2010 in the will of late Smt. Munni Devi and the specific stand by Sh. Rakesh Dixit in Ex.PW1/8 and Ex.PW1/9 lay a serious doubt on the validity and execution of the documents dated 07.07.1998. It is hard to believe that even though these documents were executed on 07.07.1998 in favour of Sh. Rakesh Dixit, he could have failed to even refer to the same in Ex.PW1/8 and Ex.PW1/9.
55. With regard to the legal validity of such documents i.e. agreement to sell, GPA, Will and receipt, the Hon'ble Supreme Court in the case of Suraj Lamps and Industries Pvt. Ltd. Vs. State of Haryana reported in AIR 2009 SC 3077 has held that such documents cannot create any right in respect of immovable property. The only way a contract of sale can create title to immovable property is by way of a deed of conveyance as defined under Section 54 of the Transfer of Property Act and registered in pursuance of the provisions of Section 17 of The Registration Act, 1908. No such document has been executed in favour of Sh. Rakesh Dixit by Smt. Munni Devi.
56. Sh. Rakesh Dixit had claimed that he had paid Rs.6,00,000/- to his mother Smt. Munni Devi as consideration for execution of the documents dated 07.07.1998 for transfer of the said property in his favour. In his cross- examination relating to this payment, he has deposed that the entire amount Rs. 6,00,000/- was paid by him in cash. He deposed that while Rs.2,00,000/- were paid by him two days prior to 07.07.1998 and that prior to the payment of the said amount he had paid Rs.4,00,000/- to his mother on different occasions but he Civil suits nos. 471/11, 472/11 and 229/11 Page 26 of 38 could not remember the dates. With regard to the source of the said amount, he deposed that he had collected Rs.4,00,000/- from public societies and sale of ornaments of his wife but he could not remember the names of the public societies or any particulars of the person to whom the ornaments were sold. There is documentary evidence produced by him regarding raising of such amounts. He further deposed that he was working with DVB at a monthly salary of Rs.6,000/- but he also used to earn about Rs.15,000/- from salesmanship and Rs.2,000/- from repair of electronics. He deposed that he had not given any information to his employers regarding purchase of the said property. The evidence led by DW-1 Sh. Rakesh Dixit regarding payment of Rs.6,00,000/- to his mother does not inspire any confidence. If Sh. Rakesh Dixit had raised such an amount, he would most definitely have recalled the source of the same. It is also to be seen that the receipt dated 07.07.1998 produced by Sh. Rakesh Dixit is for Rs.6,00,000/- whereas he had claimed that he had paid this amount to his mother on several occasions. No such record of payments of this amount on different dates has been produced. It is, therefore, doubtful whether any such amount was paid by him to Smt. Munni Devi.
57. This Court is conscious of the judgment of the Hon'ble High Court in the case of Sh. Ramesh Chand Vs. Suresh Chand reported in 188 (2012) DLT 538 in which the judgment in the case of Suraj Lamps (supra) was interpreted. In the case of Ramesh Chand (supra) the Hon'ble High Court was pleased to hold that right to possess immovable property arises not only from a complete ownership right but also by having a better title. In the present case Sh. Ram Chander Dixit has claimed title on the basis of the will dated 15.05.2002 of his wife. He has duly proved the execution of the said will. On the other hand even though Sh. Rakesh Dixit placed reliance on the documents dated 07.07.1998 including will stated to be executed on 07.07.1998 (wrongly typed as 07.07.2010), the will of late Smt. Munni Devi in favour of Sh. Ram Chander Dixit being dated 15.5.2002 is later in time and the same prevails. Even if the documents dated 07.07.1998 were executed by late Smt. Munni Devi in favour of Sh. Rakesh Dixit, the same would Civil suits nos. 471/11, 472/11 and 229/11 Page 27 of 38 not create any title in his favour. Further Sh. Ram Chander Dixit has demonstrated a better title than that of Sh. Rakesh Dixit. Thus Sh. Ram Chander Dixit will be the owner of the suit property.
58. As Sh. Ram Chander Dixit has been found to be the owner of the suit property, execution of documents of any nature by Sh. Rakesh Dixit in favour of his wife Smt. Dhanwati Dixit on 11.8.2010 will not confer any title in favour of Smt. Dhanwati Dixit. This is because no person can confer a title better than that he himself has. Since Sh. Rakesh Dixit has no title to the suit property, he himself could not confer any title in favour of his wife Dhanwati Dixit. Thus Smt. Dhanwati Dixit has no title to the suit property.
59. I shall now give my issue wise findings in respect of each suit.
FINDINGS IN CS NO. 471/11 ISSUE NO. 1Whether suit has been properly valued for the purpose of court fees and jurisdiction?
60. Onus to prove this issue was on the plaintiff. As per the plaintiff, the defendant Sh. Rakesh Dixit, his son was a licensee in the suit property. His license was terminated by the notice Ex.PW1/3 and thereafter the plaintiff filed this suit praying for, among others a decree for mandatory injunction to direct the defendant to vacate the suit property. As per the defendant the plaintiff ought to have sought a decree for possession and value this relief as per the market value of the suit property and to pay ad-valorem court fee on the same.
61. There is no dispute that late Smt. Munni Devi was the owner of the suit property. The defendant is her son and was residing in the suit property as her permissive occupier / licensee. The plaintiff became the owner of the suit property on the basis of the will of late Smt. Munni Devi and stepped into her shoes. Thus the defendant came to be a licensee under the plaintiff. In the case of Sant Lal Jain Vs. Avtar Singh reported in 2004 RLR 464 (SC) the Hon'ble Civil suits nos. 471/11, 472/11 and 229/11 Page 28 of 38 Supreme Court was pleased to hold that the status of the licensee remains that of a licensee and the licensor is entitled to bring a suit praying for a decree of mandatory injunction to direct the licesee to vacate the suit property. He is not required to file a suit for possession. The same was reiterated by the Hon'ble High Court in the case of Sh. Puneet Chadha Vs. Sh. B.K. Chadha CRP No. 152/2009 decided on 01.12.2009. In this matter the Hon'ble High Court was further pleased to hold that Section 7 (iv) (d) of the Court Fees Act permits a plaintiff in a suit for injunction to value the same at the amount deemed appropriate by the plaintiff.
62. In the present case, the plaintiff has valued his relief for mandatory injunction at Rs.130/- and affixed appropriate court fee thereon. Since the status of the defendant in the suit property is that of a licensee, the plaintiff was not required to bring a suit for possession. Hence, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 2Whether the suit is bad for mis-joinder / non-joinder of necessary parties? OPD
63. Onus to prove this issue was on the defendant. The basic objection raised in the written statement was that the defendant had transfered the suit property by documents dated 11.08.2010 in favour of his wife Smt. Dhanwati Dixit who was not impleaded as defendant in this suit. As recorded, upon filing of written statement in this suit, the plaintiff filed CS NO. 472/11 challenging the validity of the documents dated 11.08.2010 executed by the defendant in favour of his wife. Wife of the defendant was impleaded as defendant no. 2 in CS No. 472/11. Further Smt. Dhanwati Dixit herself filed a suit Cs NO. 229/11. All three suits have been tried together. As such Smt. Dhanwait Dixit has been duly represented and this objection does not survive. This issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 3 Civil suits nos. 471/11, 472/11 and 229/11 Page 29 of 38Whether the suit is without cause of action?
64. onus to prove this issue is on the defendant. Cause of action is a bundle of facts which if proved would entitle the plaintiff to the relief claimed in his suit. Plaintiff has duly proved execution of the will dated 15.05.2002 in his favour. He has a cause of action to file the present suit as the defendant did not vacate the suit property despite his licensee / permissive occupation having been terminated. This issue is therefore decided in favour of the plaintiff and against the defendant.
ISSUE NO. 4Whether the plaintiff is entitled for the decree of Possession / Ejectment, as prayed?
65. Onus to prove this issue was on the plaintiff. I have already held that the plaintiff having proved the will dated 15.05.2002 has become the owner of the suit property. The defendant has no title to the same. With the license of the defendant having been terminated, he did not have any right to continue in occupation of the suit property. Plaintiff is therefore entitled to a decree for mandatory injunction to direct the defendant to remove himself from the suit property. This issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 5Whether the plaintiff is entitled for the decree of damages / mesne profits, if so at what rate and for what period?
66. Onus to prove this issue was on the plaintiff. In his suit plaintiff has prayed for a decree for recovery of mesne profits at the rate of Rs.5,000/- per month along with interest at the rate of 18% per month from the date of filing of the suit till gaining possession of the suit property. In the case of Arya Orphanage Vs. Mr. Alfred G Wuerfel reported in MANU/DE/2446/2008, CS (OS) No. 2439/2001 decided on 27.11.2008, the Hon'ble High Court of Delhi was pleased to hold that Civil suits nos. 471/11, 472/11 and 229/11 Page 30 of 38 mesne profits are to be determined on account wrongful continuation of occupation after termination of tenancy / license and the same should be computed at the rate which the property might have fetched at the relevant time. In the case of M.C. Aggarawal Vs. Sahara India and Ors. reported in 183 (2011) DLT 105, the Hon'ble High Court of Delhi was pleased to reiterate the same principle and held that while claiming damages / mesne profits, a plaintiff has to prove the market rate of rent of similar properties in the locality. In the present matter the plaintiff has not led any specific evidence in respect of the same. Plaintiff has simply pleaded and deposed that he was entitled to damages at the rate of Rs.5,000/- per month. Hence, in the absence of any specific evidence regarding this aspect, it cannot be taken that the plaintiff is entitled to damages at the said rate. However, in the case of M.C. Aggarawal Vs. Sahara India (Supra), the Hon'ble High Court has been pleased to hold that in such circumstances, the court could take resort to the provisions of Section 57 and 114 of the Indian Evidence Act and grant appropriate relief. In the present matter the suit property consists of two rooms, one kitchen, one shop with common use of latrine and bathroom on the ground floor in property no. 34, Shiv Mandir Gali, Maujpur, Delhi-53. Thus the suit property is being used for residential purposes as well as commercial purposes. As per the site plan, the shop in the suit property is adjacent to a road. Moreover Smt. Dhanwati Dixit had also sought use and occupation charges in her suit at this rate. In the opinion of this Court, prayer for damages / mesne profits at the rate of Rs.5,000/- in respect of entire suit property which includes commercial premises is neither unreasonable nor unjustified. I am, therefore, inclined to grant damages / use and occupation charges to the plaintiff at the rate of Rs.5,000/- per month.
67. In respect of the period to which the plaintiff is entitled to mesne profits, the plaintiff has terminated the license of the defendants through notice dated 07.11.2009. However, plaintiff has prayed for mesne profits from the date of filing of the suit. Thus, plaintiff will be entitled to damages at the rate of Rs.5,000/- per month from the date of filing of the suit till the date of gaining possession of the Civil suits nos. 471/11, 472/11 and 229/11 Page 31 of 38 suit property. In respect of the claim towards interest on mesne profits, the Hon'ble High Court of Delhi in the case of Arya Orphanage (supra) was pleased to hold that interest is an integral part of mesne profits and therefore the same has to be allowed in the computation of mesne profits itself. Plaintiff would thus be entitled to grant of interest on mesne profits. Interest at the rate of 18% per annum as prayed for seems to be excessive. I, therefore, grant interest to the plaintiff at the rate of 9% per annum on the mesne profits so granted from the date of filing of the suit till the date of gaining possession. This issue is, therefore, decided accordingly.
ISSUE NO. 6Whether the plaintiff is entitled for the decree of permanent injunction?
68. Onus to prove this issue was on the plaintiff. Since plaintiff has proved his title to the suit property, the defendant would not have any right to create any third party interest in the same. Thus, plaintiff is entitled to decree for permanent injunction as prayed for.
FINDINGS IN CS NO. 472/11 ISSUE NO. 1Whether suit has been properly valued for the purpose of court fees and jurisdiction?
69. The objections raised in this issue are identical to the issue no. 1 raised in CS No. 471/11 which has already been decided in favour of the plaintiff. Hence, this issue is also decided in favour of the plaintiff.
ISSUE NO. 2Whether the present suit is barred U/o 2 Rule 2 CPC ?
Civil suits nos. 471/11, 472/11 and 229/11 Page 32 of 3870. Onus to prove this issue was on the defendant. Contention of the defendant was that this suit was barred under the provisions of Order 2 Rule 2 CPC on the ground that plaintiff having already filed CS No. 471/11, plaintiff was not entitled to file the present suit. Order 2 Rule 2 (3) CPC provides that a person entitled to more than one relief in respect of the same cause of action may sue for all on any of such reliefs but if he omits to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. CS No. 471/11 was filed by the plaintiff against the sole defendant Sh. Rakesh Dixit praying for mandatory injunction to vacate the suit property. In the said suit Sh. Rakesh Dixit disclosed that he had rights in the suit property by virtue of documents dated 07.07.1998 executed by late Smt. Munni Devi and that he had subsequently created right in favour of his wife Smt. Dhanwati Dixit by documents dated 11.08.2010. Plaintiff therefore filed CS No. 472/11 praying for a decree to declare the documents dated 07.07.1998 and 11.08.2010 as null and void. On the date of filing of CS No. 471/11, the plaintiff was not aware about the existence of the documents dated 07.07.1998 and 11.08.2010. He, therefore, did not have any cause of action to seek any relief in respect of the said documents. Hence, the present suit is not barred under the provisions of Order 2 Rule 2 CPC. This issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO. 3Whether the present suit is barred by the principle of resjudicata?
71. Defendants have claimed that this suit was barred under the principle of res-judicata. Defendants have not explained how this suit can be barred on this ground. No other suit has been decided between the parties on merits in respect of the point in controversy in the present matter. This issue is, therefore, decided against the defendants and in favour of the plaintiff.
ISSUE NO. 4Whether the suit is without cause of action?
Civil suits nos. 471/11, 472/11 and 229/11 Page 33 of 3872. This issue has already been dealt with while deciding issue no. 3 in CS No. 471/11. For the same reasons, this issue is decided in favour of the plaintiff and against the defendants.
ISSUE NO. 5Whether the plaintiff is entitled for the relief of declaration?
73. Case of the plaintiff was that the documents dated 11.08.2010 were forged and fabricated and did not confer any title as the defendant no. 1 himself did not have any title to the suit property. I have already held in CS No. 471/11 that the defendant no. 1 Sh. Rakesh Dixit did not have any title to the suit property. He, therefore could not create any title in favour of his wife on the basis of the documents dated 11.08.2010 i.e. GPA, agreement to sell, will and receipt. Thus, these documents are null and void and have no effect. This issue is decided in favour of the plaintiff and against the defendants.
ISSUE NO. 6Whether the plaintiff is entitled for the decree of permanent injunction?
74. Since plaintiff has already been held to be the owner of the suit property, the defendants will not have any right to create third party interest in the same. Plaintiff is therefore found entitled to the said relief.
FINDING IN CS NO. 229/11 ISSUE NO. 1Whether the plaintiff is entitled to a decree for permanent injunction against the defendants ?
75. Onus to prove this issue was on the plaintiff. I have already held in CS No. 471/11 that Sh. Rakesh Dixit, husband of the present plaintiff was not the Civil suits nos. 471/11, 472/11 and 229/11 Page 34 of 38 owner of the suit property and that the owner of the suit property is Sh. Ram Chander Dixit. The present plaintiff Smt. Dhanwati Dixit claimed title to the suit property through documents i.e. General Power of Attorney, agreement to sell, Receipt, Will all dated 11.08.2010 executed in her favour by her husband Sh. Rakesh Dixit. As Sh. Rakesh Dixit had no title to the suit property, he could not confer any title in favour of his wife Smt. Dhanwati Dixit in respect of the same. Thus, since Smt. Dhanwati Dixit is not found to be the owner of the suit property, she is not entitled to relief for permanent injunction as prayed for. In view thereof this issue is decided in favour of the defendants and against the plaintiff.
ISSUE NO. 2Whether the will dated 15.05.2002, executed by late Smt. Munni Devi, Mother-in-law of the plaintiff in favour of the defendant no. 1, is liable to be cancelled?
76. In CS No. 471/11, it has been held that Sh. Ram Chander Dixit had successfully proved the execution of the Will dated 15.05.2002 by late Smt. Munni Devi in his favour. It was also held that Sh. Rakesh Dixit as well as the present plaintiff Smt. Dhanwati Dixit have no title to the suit property. Thus the present plaintiff does not have any locus to challenge the execution of the Will dated 15.05.2002. This issue is decided in favour of the defendants and against the plaintiff.
ISSUE NO. 3Whether the plaintiff is liable to be declared as owner of house no. 34, Shiv Mandir Gali, Maujpur, Delhi, on the basis of the GPA, Agreement to Sell, Receipt for Rs.6,00,000/- and Will all dated 07.07.1998 executed by late Smt. Munni Devi, mother-in-law of the plaintiff in favour of Shri Rakesh Kumar Dixit, husband of the plaintiff and on the basis of the family GPA, Gift Deed and family Will Deed dated 11.08.2010 executed by Shri Rakesh Kumar Dixit, husband of the plaintiff in favour of the plaintiff ?
77. Sh. Ram Chander Dixit has been held to be the owner of the suit property on the basis of the will dated 15.05.2002 executed in his favour. Sh. Rakesh Dixit has no title to the suit property and he, therefore, could not confer any title in favour of the present plaintiff, his wife on the basis of the documents dated Civil suits nos. 471/11, 472/11 and 229/11 Page 35 of 38 11.08.2010. Thus, plaintiff is not entitled to be declared the owner of the suit property. This issue is decided against the plaintiff and in favour of the defendants.
ISSUE NO. 4Whether the plaintiff is entitled to a decree of possession against the defendants no. 1 to 6 with respect to the portion marked "A,B,C,D" and "E,F,G,H" as shown in green colour in the site plan ?
78. As the plaintiff has not been held to be the owner of the suit property, she is not entitled to decree for possession against the defendants no. 1-6 as prayed for. This issue is decided against the plaintiff and in favour of the defendants no. 1-6.
ISSUE NO. 5Whether the plaintiff is entitled to a decree of damages/mesne profits for use and occupation, from the defendant no. 1 to 6 ? If so, at what rate and for which period ?
79. Since the plaintiff has not been found to be the owner of the suit property, she is not entitled to any damages / mesne profits for use and occupation of the suit property from the defendants no. 1-6.
ISSUE NO. 6Whether the suit is not properly valued for the purposes of the court fee and jurisdiction?
80. Onus to prove this issue was on the defendants. The defendants no. 1-6 did not address any arguments on this issue. They have not pressed the same. Accordingly, this issue is decided against the defendants and in favour of the plaintiff.
ISSUE NO. 7Whether the plaintiff has no locus standi to file the present suit ?
81. Sh. Ram Chander Dixit has been found to be the owner of the suit Civil suits nos. 471/11, 472/11 and 229/11 Page 36 of 38 property. Since plaintiff has no title to the suit property, she does not have any locus to file this suit. This issue is decided in favour of the defendants and against the plaintiff.
ISSUE NO. 8Whether the suit is without cause of action and is liable to be dismissed under Order 7 Rule 11 CPC?
82. Plaintiff has not been found to be the owner of the suit property. She thus had no cause of action to file this suit. This issue is decided accordingly.
RELIEF IN CS NO. 471/1183. For the reasons recorded above, the suit of the plaintiff Sh. Ram Chander Dixit is decreed in the following manner:-
(a) Plaintiff is granted a decree for mandatory injunction by which the defendant is directed to vacate and hand over vacant possession of the suit property as described in red in the site plan forming part of ground floor of the property no. 34, Shiv Mandir Gali, Maujpur, Delhi-53;
(b) Plaintiff is granted a decree for mesne profits / use and occupation charges at the rate of Rs.5,000/- per month along with interest at the rate of 9% per annum from the date of filing of the suit till the date of gaining possession of the suit premises;
(c) Plaintiff is granted a decree for permanent injunction by which the defendant is restrained from creating third party interest in the suit property described in red forming part of ground floor of the property no. 34, Shiv Mandir Gali, Maujpur, Delhi-53;
(d) Plaintiff is also entitled to the costs of the suit.
84. Decree sheet be drawn. File be consigned to the Record Room.RELIEF IN CS NO. 472/11
85. For the reasons recorded above, the suit of the plaintiff Sh. Ram Chander Dixit is decreed in the following manner:-
(a) The documents i.e. General Power of Attorney, Agreement to sell, and Receipt all dated 07.07.1998 and Will dated 07.07.2010 alleged to be executed by late Smt. Munni Devi in favour of the defendant no. 1 and the family General Power of Attorney, Gift Deed, Family Will Deed and Civil suits nos. 471/11, 472/11 and 229/11 Page 37 of 38 Possession Letter all dated 11.08.2010 executed by the defendant no. 1 in favour of the defendant no. 2 in respect of the property no. 34, Shiv Mandir Gali, Maujpur, Delhi-53 are declared as null and void, having no effect;
(b) Plaintiff is granted a decree for permanent injunction by which the defendants are restrained from creating any third party interest in the property no. 34, Shiv Mandir Gali, Maujpur, Delhi-53;
(c) Plaintiff is also entitled costs of the suit.
86. Decree sheet be drawn. File be consigned to the Record Room.RELIEF IN CS NO. 229/11
87. For the reasons recorded above, suit of the plaintiff is dismissed with costs of Rs.10,000/- in favour of the defendants no. 1-6. Decree sheet be drawn accordingly. File be consigned to the Record Room.
Dictated to the Steno and announced in Open Court today i.e. 21.12.2013 (REETESH SINGH) Addl. Distt. Judge-01 (NE) Karkardooma Courts, Delhi Civil suits nos. 471/11, 472/11 and 229/11 Page 38 of 38