Delhi District Court
Shrimati Poonam Khullar vs Rajan on 27 January, 2012
IN THE COURT OF SH. ANAND SWAROOP AGGARWAL:
SENIOR CIVIL JUDGECUMRC (EAST):
KKD COURTS: DELHI
Suit No. 1784/06
Unique Case Identification No: 02402C0622802006
IN THE MATTER OF:
Shrimati Poonam Khullar,
Wife of Shri B.B. Khullar,
daughter of late Shri Gurdayal Singh
Water Supply Department (Revenue Department)
Behind Water Tank
G.T. Road, Shahdara, Delhi 110032 .....Plaintiff
Versus
Rajan
Son of Late Shri Gurdayal Singh,
Resident of House No.1/9454, Gali No.7,
West Rohtash Nagar, Delhi ......Defendant
A. Date of Institution of Suit : 07/11/2006
B. Date when reserved for
Order : 24/12/2011
C. Date of Order : 27/01/2012
D. Final Order : Suit Decreed.
SUIT FOR PARTITION, POSSESSION AND INJUNCTIONS.
Suit No. 1784/06 ANAND SWAROOP AGGARWAL
SCJCumRC:East, Delhi
Page No. 1/26
J U D G M E N T
1. PRAYER : Plaintiff in this suit has prayed for a decree of partition in her favour and against the defendant, ordering the partition of suit property (i.e. property no.1/9454, Gali No.7, West Rohtash Nagar, Shahdara, Delhi110032) by metes and bounds as per the site plan (Ex. PW1/3) annexed to the Will (Ex. PW1/2) dated 15.09.2004 executed by the mother of the parties (Smt. Amrit Kaur) to the suit or by any other mode deemed appropriate. Also, plaintiff has prayed for a decree of possession in respect of the said portion of the property (i.e the portion from which plaintiff allegedly has been thrown out on 05.10.05?) alongwith remaining part of half share of plaintiff in property bearing No. 1/9454, Gali No. 7 West Rohtash Nagar, Shahdara, Delhi10032 as per site plan (Ex. PW1/3), wherein the half portion of the property is shown in red colour. Lastly, plaintiff has prayed for decree for permanent injunction in her favour and against defendant, thereby restraining the defendant from selling, alienating, or disposing off and also from creating third party interest in the suit property in any manner whatsoever and from permitting any third Suit No. 1784/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 2/26 person to occupy the suit property No.1/9454, Gali No.7, West Rohtash Nagar, Shahdara, Delhi 110032 in any manner whatsoever.
2. CASE OF PLAINTIFF : In brief case of plaintiff as pleaded in plaint is that plaintiff and defendant, who are real brother and sister, are coowners in equal share of property bearing No.1/9454, Gali No.7, West Rohtash Nagar, Shahdara, Delhi (hereinafter referred to as "suit property") which is built on a plot of land measuring 150 sq. yard and consists of ground floor and first floor as shown in site plan Ex. PW1/1. As alleged, plaintiff and defendant became coowners of suit property from 8.1.2006, upon the death of Shrimati Amrit Kaur wife of late Shri Gurdyal Singh (i.e. the mother of parties) by virtue of the Will dated 15.9.2004 executed by mother of the parties and registered as document No.17977 in Addl. Book No.3, Volume No.3332 at pages 49 and 50 on dated 17.9.2004 with the office of Sub Registrar concerned and alongwith the said Will a site plan (Ex. PW1/3) showing the shares of each of the legatees (i.e. the plaintiff and the defendant) was annexed.
Facts in the background of the Will (Ex. PW1/2) as pleaded in plaint are that late Shrimati Amrit Kaur, mother of the parties, was Suit No. 1784/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 3/26 employed as teacher in MCD school since long time and she retired as headmistress and received retiral benefits at the time of her retirement. Further, as alleged, father of the parties was L.D.C. in railway having very meager income and he expired leaving behind the parties and their mother when the parties and their mother were living at 1531/43, Street No.8, Mohan Park, Rohtash Nagar, Shahdara, Delhi32, which was owned by the mother of the parties out of her parental gifts at the time of her marriage and her income. The mother of the parties allegedly sold said house for Rs.44,000/ vide agreement on 16.2.1974 which was built with the assistance of loan of Rs.8,000/ in the year 1965 from Housing Commissioner, Delhi. The mother of the parties, as alleged, out of her income from various resources purchased a piece of land admeasuring 150 sq. yards in the same area in the year 1974 of the value of Rs.14,000/. The suit property is built on the same plot of land and was constructed in the year 1974 and the electricity and water connection were installed in the suit house. Ration card was also issued in the name of mother of the parties. The owner/mother of the parties had rented some portion with a rent of Rs. 700/ per month to one Shri Shankar Lal Sharma son of Shri Mohan Lal. After retirement, mother of plaintiff was receiving regular Suit No. 1784/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 4/26 pension besides family pension through Punjab National Bank Shahdara, Delhi and she was paying house tax to MCD and her name is duly entered as voter in the electoral list. Further case of plaintiff is that Smt. Amrit Kaur being the owner of suit property in her own capacity remained in possession in house in suit and plaintiff and defendant were permitted by their mother to live in said house (suit property). Plaintiff also got her ration card separately from the family so as to avoid all type of disputes among herself and her brother and his family.
As per plaintiff, after her retirement mother was being maltreated by defendant and his family members and mother was being beaten and abused by defendant. As alleged, mother had gone to Police Station Shahdara in the year 1999 under section 107/150 Cr. P.C. which was ended by the S.E.M. with the warning and scorning (same as pleaded ) . Inspite of warning and last opportunity given to defendant, allegedly, defendant did not resist to use filthy and abusive language using very ugly remarks and had beaten the mother; even his wife and daughter joined their hands to beat the mother by using iron rods and other blunt weapons. As a result of which, as alleged, the mother was admitted to G.T.B. Hospital and MLC was done which Suit No. 1784/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 5/26 has stated as "used blunt weapon". The matter was reported to P.S. Shahdara and case was placed before S.E.M. Seelampur, Delhi and, further, finding no efficacious solution, matter was reported to D.C.P., Joint Commission and other Police officials and the Police came under the wrong influence of defendant and hence they were trying to hush up the matter. A complaint to this effect was also sent to Human Right Commission.
Further plaintiff has alleged that during the life time of mother (i.e. on 5th October, 2005) on the day when the plaintiff was not in the house, plaintiff (defendant?) had thrown out the plaintiff and her family members from the suit property (i.e two rooms with other common facilities of bath room, toilet and passage and space) and beaten her children very badly in the presence of public persons and when plaintiff came back to the house, her children told unfolded and unbecoming behaviour and intolerable and ugly scene created by the defendant in the presence of public people. The defendant allegedly humiliated the entire family of plaintiff when he threw out the house hold effects including the bags containing books of the children of the plaintiff. In his way the plaintiff (defendant?) has taken forcible and illegal possession of the property without adopting due process of law.
Suit No. 1784/06 ANAND SWAROOP AGGARWAL
SCJCumRC:East, Delhi
Page No. 6/26
As per plaintiff her mother was exclusive and absolute owner of suit property and she executed the above mentioned Will duly registered thereby cancelling the Will dated 3.6.1986 and executed further Will dated 24.5.2003. The defendant and his family members, as alleged, took out the original sale deed of the suit property along with ornaments (i.e. two Gold Kangans) and cash of Rs.21000/ from the custody of the mother and seeing his conduct, the mother debarred the defendant by executing a Will dated 26.3.2004, and further considering the conduct of the defendant not congenial and full of bad intentions, mother cancelled all previous Will. Further mother had, as per plaintiff, executed a GPA dated 23.8.2000 in favour of defendant and a public notice was advertised in newspaper. As alleged, mother also cancelled and revoked all previous Wills and executed the last and final Will on 15.9.2004, which was registered with the office of Sub Registrar on 17.9.2004 whereby she bequeathed half undivided share of the suit property each to the plaintiff and the defendant.
As per plaintiff, when conduct of the defendant was not in consonance with the relation as a sister and brother between the parties and defendant was harassing and torturing the mother, the plaintiff and her family members, plaintiff filed a complaint case Suit No. 1784/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 7/26 against the defendant which is pending before M.M. Karkardooma Courts, Delhi and all such mental and physical sufferings caused by the defendant to the plaintiff are in order to gulp down the suit property and to deprive the plaintiff of her valuable rights and possession in suit property. A suit filed by defendant on, as alleged, false averments is pending before Sh. Rakesh Kumar, C.J., KKD Court, Delhi.
Further, as alleged, plaintiff has asked the defendant on so many occasions and lastly on 1.11.2006 to effect the partition of suit property as per site plan annexed to the Will and accordingly to separate the half share of the plaintiff in the suit property and to vacate and hand over the physical possession of the portion of the suit property alongwith the remaining part of the half of the plaintiff in the said property, but the defendant has flouted at her and refused. Further, as alleged, defendant has not only refused to partition the property and to vacate and hand over the possession of suit property of plaintiff, but also openly threatened that the defendant will create third party interest in the said premises by permitting third party to occupy the suit property. Hence this suit.
3. CASE OF DEFENDANT : Suit No. 1784/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 8/26 Defendant in his WS has taken certain preliminary objections, interalia, such as that plaintiff has not paid proper court fee as required under law in as much value of the suit property is more than Rs. 40 Lacs as value of the land in Rohtash Nagar is Rs. 40,000 per sq yards; that as plaintiff is claiming to be coowner/ cosharer of suit property on the basis of Will, firstly plaintiff must obtain ownership right with regard to suit property by taking probate of the said Will and then only seek and claim ownership in the suit property; that there is no cause of action for filing the present suit as plaintiff has already taken 200 sq yards of land in her marriage from the family but due to her greed plaintiff is dragging the defendant in court despite the fact that defendant is real elder brother of plaintiff and that plaintiff being a married daughter has no right to obtain partition in the suit property.
On Merits case of defendant is that suit property is not only of late Sh. Amrit Kaur and Smt. Amrit Kaur was only a benami owner of the suit property as property has been purchased by her husband late Sh. Gurdayal Singh (father of the parties) in the name of his wife Smt. Amrit Kaur. As alleged, late Sh. Gurdayal Singh was an employee of Indian Railways as a Sr. Clerk and he had taken voluntary retirement during the year 1982. As alleged, entire money taken by him has been Suit No. 1784/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 9/26 spent in the construction and renovation of suit property and as such Smt. Amrit Kaur was only a benami owner of the suit property and she has no right to execute Will as the suit property was not purchased from her own earned income but it was purchased by late Sh. Gurdayal Singh husband of Smt. Amrit Kaur. Further, as alleged, defendant also spent his earning on the renovation and maintenance of suit property yearly as without maintaining property same cannot survive and, as such, defendant is having much more ownership right in his property than Smt.Amrit Kaur. Further, as per defendant, suit property was purchased from sale consideration of property of Mohan Park, Gali No. 8 in the name of Smt Amrit Kaur by Mr. Gurdayal Singh and Mr. Gurdayal Singh has spent his entire life service benefit on the property. As such, as per defendant, Smt.Amrit Kaur was not exclusively owner of suit property and not only this Ms. Amrit Kaur had also been taking family pension amount from the employer of Mr. Gurdayal Singh after his death and that amount has also been spent on the suit property and therefore, Smt. Amrit Kaur was not exclusive owner of suit property and thus was not having any right to execute the Will in favour of anyone. Further, as per defendant, Will in question Ex. PW1/2 has been got prepared under pressure and Suit No. 1784/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 10/26 coercion by Mr. B.B. Khullar and plaintiff from late Smt. Amrit Kaur intentionally and deliberately. Further, defendant has alleged that it is malafide intention on the part of plaintiff that plaintiff is not disclosing the papers given by Smt. Amrit Kaur to plaintiff prior to her death during her ailment whereby she had clearly told the plaintiff that property has been given to her in her marriage and as such plaintiff has no right in the suit property.
Averments of plaintiff regarding Smt. Amrit Kaur, plaintiff and her family members being maltreated by defendant have been denied by defendant. As per defendant, in fact beating is always given by Mr. Khullar and her wife Smt. Poonam Khullar to the deceased mother Smt. Amrit Kaur intentionally and deliberately for putting pressure on Smt. Amrit Kaur to give the property to plaintiff as she has been so terrorized that plaintiff pressed her to make false report against the defendant inspite of the fact that during the ailment of Smt. Amrit Kaur she was being looked after in a good manner by defendant, his wife and their daughter. Further defendant has alleged that plaintiff and her husband from the very inception of the marriage were having bad eyes on the property in suit. As alleged, dispute of divorce between plaintiff and her husband was only this that Mr. Khullar Suit No. 1784/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 11/26 wanted that plaintiff should pressurize her mother Smt. Amrit Kaur for getting the property. In the initial stage, as alleged, plaintiff was very intelligent but after the dispute, problems the husband of plaintiff Mr. Khullar cleared to plaintiff that in case plaintiff remain as wife of him, plaintiff should have quarrel with her brother (defendant) and as such plaintiff was under pressure of Mr. Khullar and started claiming the right in the suit property and, further, Mr. Khullar created dispute in between plaintiff and defendant.
As regards the incident dated 05/10/2005 case of defendant is that in fact plaintiff and Mr. Khullar (husband of plaintiff) had thrown the goods from the house property and their self made a false report and acquisition against the defendant. As per defendant, present Will is fictitious one and it has been got executed under pressure and coercion by Smt. Poonam Khullar and Mr. B.B. Khullar when defendant was out of the house in family function of inlaws of defendant. Allegation of plaintiff as regards two gold Kangans and cash of Rs.21,000/ has also been denied by defendant. At last defendant has prayed for dismissal of the suit with cost.
4. Vide order dated 26/09/2007 an application moved by defendant u/o 1 rule 10 for impleading Mr. B. B. Khullar as a plaintiff Suit No. 1784/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 12/26 no. 2 in this suit was dismissed by ld. predecessor of this court.
5. ISSUES : Ld. predecessor of this court vide order dated 26/09/2007 framed the following issues:
1. Whether the plaintiff is entitled to partition of the suit property as prayed for? OPP
2. Whether the plaintiff is entitled to decree of possession in respect of the claimed portion of the suit property? OPP
3. Whether the plaintiff is entitled to decree of permanent injunction restraining the defendants from alienating or creating third party interest in the suit property? OPP
4. Whether the present suit is bad for improper valuation of suit property? OPD
5. Relief.
6. ADDITIONAL ISSUES : Vide order dated 23/01/2010 following additional issues were Suit No. 1784/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 13/26 also framed.
5. Whether the plaintiff has not valued the suit properly for purpose of court fee and jurisdiction and whether she has not paid the appropriate court fee? OPD
6. Whether this court does not have the pecuniary jurisdiction to try the suit? OPD Vide order dated 23/01/2010 above said issue no. 5 and 6 were treated as preliminary issues but vide order dated 20/07/2010 these issues were treated as additional issues for the reason that they involve mixed question of law and facts. Vide order dated 20/11/2010 an application moved by defendant u/o 14 rule 2 (2) read with 151 CPC for modification of order dated 20/7/2010 was dismissed by this court .
7. EVIDENCE : To substantiate her case on judicial file plaintiff herself appeared in the witness box as PW1 Poonam Khullar and has examined PW2 Mr. Munish Kumar from office of SubRegistrar, Seelam Pur and PW3 Mr. I.K. Nayar who is attesting witness to Will Suit No. 1784/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 14/26 Ex. PW1/2. PE was closed on 31/01/2009 on the statement of plaintiff. On 03/06/2010 two affidavits of defendant were filed in defendant's evidence. Vide order dated 05/04/2011 DE was closed by court order. However vide order dated 28/5/2011 keeping in view the order passed by Hon'ble Delhi High Court in CM(M) No. 515/11 case was adjourned for DWs. Vide order dated 24/11/2011 this court observed that unless and until defendant make payment of the cost imposed by the court vide order dated 18/10/2011 defendant cannot be permitted to proceed further with the suit by leading DE and as such case was adjourned for final arguments.
8. I have heard Sh. S.K. Jain Adv. for plaintiff on 14/12/2011. Vide order dated 14/12/2011 case was adjourned to 22/12/2011 at 12:30 PM for arguments by ld. counsel for defendant and rebuttal arguments by ld. counsel for plaintiff. On 22/12/2011 on an application of adjournment moved on behalf of defendant case was adjourned to 24/12/2011 for 12:30 PM. On 24/12/2011, request of ld. counsel for defendant vide request Mark X was declined and case was adjourned to 10/01/2012 for clarification if any/order. However, in the interest of justice, defendant was permitted to file written submission latest by 5/01/2012. Vide order dated 10/01/2012 case file was Suit No. 1784/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 15/26 ordered to be put up before ld. District Judge (East) for 11/01/2012 on the application of defendant wherein defendant had alleged that he had lost faith in this Court. Vide order dated 11/01/2012 passed by ld. DJ & ASJ (I/C) East, Karkardooma Courts, Delhi, this file was sent back to this Court. Vide order dated 12/01/2012 defendant had moved an application seeking time for filing written submissions. In the interest of justice, one more opportunity was given to defendant to file written submissions within 10 days with advance copy of the same to ld. counsel for plaintiff. But written submissions were not filed. However on 23/01/2012 an application was made by defendant under order 89 CPC for seeking settlement/reference for settlement to the Mediation. This application was ordered to be put up with file on the date fixed for consideration. This application was dismissed in as much as ld. counsel for plaintiff had not expressed consent / willingness of the plaintiff to refer the matter to Mediation. It is pertinent to note that no written submissions have been filed on behalf of defendant despite opportunity given vide order dated 24/12/2011 and 12/01/2012.
9. I have gone through the material available on judicial file very carefully.
Suit No. 1784/06 ANAND SWAROOP AGGARWAL
SCJCumRC:East, Delhi
Page No. 16/26
10. My issue wise findings are as under :
ISSUE NO.1
Whether the plaintiff is entitled to partition of the suit property as prayed for? OPP Undisputedly Smt. Amrit Kaur has expired and her death certificate is Ex. PW1/4. Defendant in his WS has taken the preliminary objection that plaintiff must obtain ownership right with regard to suit property by taking Probate of Will (Ex. PW1/2) & then only plaintiff can seek and claim ownership of suit property. This stand of defendant is without any substance in as much as it is a settled proposition of law that obtaining of a Probate is not necessary in case of Will made by a Hindu in the Union Territory of Delhi with regard to property in Delhi. As the law stands in Delhi, it is not necessary to have the Will probated or to have the Letters of Administration obtained [Sanjay Gupta & Anr. Vs. Smt. Ved Kanti Gupta & Anr. 1994 (31) DRJ 76; Capt. (Retd.) O.P. Sharma & Anr. Vs. Kamla Sharma & Ors. 158 (2009) DLT 631 (DB) relied]. Also stand of defendant that plaintiff is not entitled to obtain partition being a married daughter is without any substance in as much as plaintiff is claiming partition on basis of Will Ex. PW1/2. Also section 23 of Suit No. 1784/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 17/26 Hindu Succession Act has no application in this case as Smt. Amrit Kaur has left behind a Will (Ex. PW1/2) and because, even otherwise, defendant is the sole male heir of Smt. Amrit Kaur besides plaintiff. Also vide order dated 10/01/07 an application u/o 7 Rule 11 CPC moved by defendant taking, interalia, this stand was declined by ld. predecessor of this Court.
Further case of defendant is that Smt. Amrit Kaur was only a benami owner of the suit property and she had no authority to execute the Will Ex. PW1/2 with regard to suit property. Sale Deed Ex. PW1/4, dated 17/06/1974 is in the name of Smt. Amrit Kaur. Stand taken by plaintiff that at the time of death of father of parties to suit, parties to suit with their mother were living at 1531/43, street No.8, Mohan Park, Rohtash Nagar, Shahdara Delhi 32 which was owned by mother of parties out of her own parental gifts at the time of her marriage and her income and the said house having been constructed with the assistance loan of Rs.8,000/ in the year 1965 from Housing Commissioner, Delhi has not been denied by defendant in his WS. Rather defendant has admitted that suit property was purchased from sale consideration of property of Mohan Park Gali No.8 (which was owned by Smt. Amrit Kaur) and was in the name of Smt. Amrit Kaur.
Suit No. 1784/06 ANAND SWAROOP AGGARWAL
SCJCumRC:East, Delhi
Page No. 18/26
Also stand of plaintiff that suit property was constructed in the year 1974 has also not been controverted by defendant in his WS specifically. Stand of defendant that his father had taken voluntary retirement during the year 1982 and entire money taken by him was spent in construction has not been substantiated on judicial file by leading cogent and convincing evidence. Also, as stand of plaintiff regarding suit property having been constructed in the year 1974 has not been denied specifically in WS, defendant can be taken to have admitted the stand of plaintiff. No details of amounts, if any, spent by father of parties in construction of suit property have even been pleaded in WS. In my considered opinion, merely because mother of parties was receiving family pension it cannot be said that mother of plaintiff/ defendant was not the owner of the suit property. Defendant has not given the details of renovation allegedly carried out by him in the WS. Nor specific expenses incurred in this regard have even been pleaded by defendant in his WS.
Even otherwise, merely by reason of incurring expenses in the renovation of suit property, if it was really so, or in the maintenance of suit property, defendant cannot be said to have acquired ownership qua the suit property in negation of ownership of mother of the parties Suit No. 1784/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 19/26 to the suit. Defendant has not lead any evidence to prove the stand taken by him in his WS. Also PW1 Smt. Poonam Khullar in her cross examination has been made to depose as under : "................................. The house in question was constructed by my mother over a plot which was purchased by her. All the amount for construction was spent by my mother. My father did not help in construction of the house as my father was ill. I am aware that my father has taken VRS. I am not aware whether my father received any amount from VRS. I am not aware as to what time was taken in completing the construction as I was school going child. I do not correctly remember however the house was probably double storey when it was constructed. My mother met the expenses of my marriage. Vol. The house was constructed in 1974 and I got married in 1984.
Defendant, Sh. Rajan did not make any contribution or did not help me in my marriage.
Suit No. 1784/06 ANAND SWAROOP AGGARWAL
SCJCumRC:East, Delhi
Page No. 20/26
Vol. The differences are there since 1980 ............" In view of above discussion it can be said that mother of the parties was owner of the suit property and thus she was competent to execute the Will Ex. PW1/2. Also, in any case, it is to be kept in mind that purchases made by a husband in the name of his wife are exempted u/s. 3(2)(a) of The Benami Transactions (Prohibition) Act 1988 and defendant is debarred from taking defence of 'benami owner' as per section 4(2) of Benami Transactions (Prohibition) Act 1988.
Undisputedly Will Ex. PW1/2 has been executed by Smt. Amrit Kaur. The only stand taken by defendant is that it has been got executed under pressure and coercion by Smt. Poonam Khullar and Mr. B. B. Khullar. It was for the defendant to prove abovesaid alleged pressure and coercion but no evidence in this regard has come on judicial file from the side of defendant. At the outset it is pertinent to note that vide Will Ex. PW1/2 half share in the suit property has also been given to defendant. This fact, to some extent if not wholly, by itself falsifies the stand of defendant in as much as if pressure/ coercion was exercised as alleged by defendant, plaintiff could have got executed Will in her favour with regard to whole of the suit Suit No. 1784/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 21/26 property. But plaintiff did not do so. What was the exact pressure or terms of coercion have not even been pleaded in WS by defendant. Will Ex. PW1/2 is a registered Will and attesting witness/the person who drafted the said Will has been examined as PW3 Mr. I. K. Nayar who is an advocate by profession. Credit of this witness has not been shaken in his crossexamination. The stand of pressure/coercion taken by defendant has not been suggested/put to this witness in his cross examination despite the fact that this witness has deposed that the Will was signed at the office of SubRegistrar at the time of Registration. Also as per depositions of plaintiff and this witness plaintiff had not accompanied them to the office of SR at the time of registration of the Will. It has not been suggested to this witness that Mr. B. B. Khullar was/was not with mother of parties at the time of execution/ registration of the Will. Plaintiff as well as PW3 Mr. I. K. Nayar in their crossexamination have been made to depose that Smt. Amrit Kaur was in sound and disposing mind when the Will was signed by her and registered. Also on the basis of material on judicial file it can be said that the Will Ex. PW1/2 is the last Will of Smt. Amrit Kaur. The documents Mark A to Mark E, firstly, have not been duly proved on judicial file and, secondly, these documents by Suit No. 1784/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 22/26 themselves does not cost doubt materially/substantially regarding execution of Will Ex. PW1/2 by Smt. Amrit Kaur which Will is in favour of both the plaintiff and defendant and does not prove that coercion/pressure was exercised by plaintiff or her husband for the execution of Will Ex. PW1/2 which is to be read with Site Plan Ex. PW1/3. In the totality of facts and circumstance of this case it can be said that defendant has miserably failed to establish the stand taken by him in his WS. In my considered opinion, in view of above discussion, plaintiff has been able to discharge the onus of this issue & it is decided in favour of plaintiff. As such it is held that plaintiff is entitled to partition of "suit property" in terms of Will Ex. PW1/2 r/w Site Plan Ex. PW1/3.
ISSUE NO.2 Whether the plaintiff is entitled to decree of possession in respect of the claimed portion of the suit property? OPP In view of my finding on issue no.1, plaintiff is also held to be entitled to possession of the portion of the suit property falling to her share as per Will Ex. PW1/2 r/w Site Plan Ex. PW1/3. Issue is decided in favour of plaintiff.
ISSUE NO.3
Suit No. 1784/06 ANAND SWAROOP AGGARWAL
SCJCumRC:East, Delhi
Page No. 23/26
Whether the plaintiff is entitled to decree of permanent injunction restraining the defendants from alienating or creating third party interest in the suit property? OPP As per plaintiff, defendant had threatened to create third party interest in suit property by permitting third party to occupy the suit property. Above depositions have remained uncontroverted in the crossexamination of PW1 Smt. Poonam Khuller. Even otherwise, in view of findings on issue no.1 and 2, to avoid multiplicity of litigation, injunction as prayed for deserves to be granted to plaintiff. Issue is accordingly decided in favour of plaintiff.
ISSUE NO.4 Whether the present suit is bad for improper valuation of suit property? OPD ISSUE NO.5 Whether the plaintiff has not valued the suit properly for purpose of court fee and jurisdiction and whether she has not paid the appropriate court fee? OPD ISSUE NO.6 Whether this court does not have the pecuniary jurisdiction to try the suit? OPD All these issues are being discussed together being inter Suit No. 1784/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 24/26 connected. At the outset it is pertinent to note that onus regarding these issues was on defendant but no evidence has come on record from the side of defendant on these issues. Stand of defendant taken by him in WS that value of land in Rohtash Nagar is Rs.40,000/ per sq. yards has remained unsubstantiated on judicial file. What is even more pertinent to note is that no suggestion as to the value of land in Rohtash Nagar area at the relevant time is there in the cross examination of PW1 Ms. Poonam Khullar. When defendant has not lead any evidence regarding the issue for which onus was on defendant and defendant has even failed to put his case to plaintiff in her crossexamination, to my mind, issue deserves to be decided against the defendant & valuation put by plaintiff deserves to be accepted. Plaintiff has paid Court fee as per valuation done by her. Accordingly, all these issues are decided against the defendant. Relief In view of my findings on various issues, suit of plaintiffs is hereby decreed in her favour and against the defendant and decree of partition of suit property and possession of plaintiff qua her share in the suit property (i.e. property no. 1/9454, Gali No.7, West Rohtash Nagar, Shahdara Delhi32 as shown in Site Plan Ex. PW1/1) as per Suit No. 1784/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 25/26 Will Ex. PW1/2 read with Site Plan Ex. PW1/2, is hereby passed in her favour and against the defendant. Also decree of permanent injunction is passed in favour of plaintiff and against the defendant restraining the defendant from selling, alienating, or disposing off or creating third party interest in the suit property and from permitting any third person to occupy the suit property shown in Site Plan Ex. PW1/1 till suit property is partitioned by metes and bounds as per terms of Will Ex. PW1/2 r/w Site Plan Ex. PW1/3. Cost of suit are also awarded to plaintiff. Decree sheet be prepared. File be consigned to RR.
Pronounced in the open court on (Anand Swaroop Aggarwal)
27/01/2012 SCJCumRC/East : Delhi
Suit No. 1784/06 ANAND SWAROOP AGGARWAL
SCJCumRC:East, Delhi
Page No. 26/26