Delhi District Court
Smt Baljeet Kaur vs Shri Kanwaljeet Singh on 24 March, 2022
THE COURT OF MS. SHIVALI SHARMA
ADDITIONAL DISTRICT JUDGE03: WEST DISTRICT
TIS HAZARI COURT: DELHI
CS No. 613290/2016
In the matter of:
Smt Baljeet Kaur
D/o late Shri Gurbachan Singh
W/o Shri Lakhwinder Singh
R/o 80,Timber Lane Drive,
(Brampton),Ontario,
Canada.
Temporary address:
R/o House No. WZ374A, Gali no. 21,
Shiv Nagar, New Delhi 110 058. .................Plaintiff
Versus
1. Shri Kanwaljeet Singh
S/o Late Shri Gurbachan Singh
2. Smt Davinder Kaur
W/o Late Shri Gurbachan Singh
Both r/o WZ350,
Civ DJ: 613290/2016
Baljeet Kaur vs Kanwaljeet Singh and another Page 1 of 29
A/3, Gali no. 19,
Shiv Nagar Extn., New Delhi 110 058. .............Defendants
Date of institution : 28.11.2014
Date of Decision : 24.03.2022
JUDGMENT
Suit for partition and perpetual injunction
1. The plaintiff filed the present suit against two defendants for partition and perpetual injunction qua property bearing no. WZ350, A/3, Gali no. 19, Shiv Nagar Extension, New Delhi58 (Delhi property) and three shops including the area behind the shops in Bazar no.6, Firoz Pur Cantt, Punjab (Punjab shops) and property bearing no. 26, Gali no.6, Firoz Pur, Punjab (Punjab property) (hereinafter referred to as the suit properties). The suit is filed for partition of estate of late Shri Gurbachan Singh, being the father of plaintiff and defendant no.1 and husband of defendant no.2.
Pleadings:
2. The case of the plaintiff as per plaint is that late Shri Gurbachan Singh was lawful owner of the suit properties. Shri Gurbachan Singh expired intestate in October 1995 leaving behind the suit properties and plaintiff and defendants as his only legal heirs. After the demise of late Shri Gurbachan Singh, plaintiff and both the defendants, being daughter, son and wife have equally succeeded to the entire estate of late Shri Gurbachan Singh.
Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 2 of 29
3. Plaintiff got married on 02.12.1990 and shifted to Ludhiana at her matrimonial house and then shifted to Canada. She is also having a temporary residence in the house of her in laws in Delhi.
4. It transpired that defendant no.1 in connivance with defendant no.2 is trying to usurp and grab the immoveable properties left behind by late Shri Gurbachan Singh. Defendant no.1 also got constructed the Delhi property with malafide intentions and there is every apprehension that defendants will sell the same at a high price.
5. On 17.09.2014, plaintiff through wellwishers of the family requested the defendants to partition the immoveable estate left behind by late Shri Gurbachan Singh by metes and bounds, but the defendants, instead of acceding to the request of the plaintiff, threatened her not to visit the suit property. Plaintiff also came to know that defendant no.1 got constructed the parking space with four floor in the Delhi property and had sold one floor to some third party thereby depriving the lawful rights of the plaintiff, in Delhi property.
6. On 22.09.2014, plaintiff again requested the defendants to partition the suit properties and to distribute the same in equal share of 1/3rd but the defendants refused to do the same. Finding no other alternative, plaintiff sent a notice dated 26.09.2014 to the defendants for partition of the suit properties by metes and bound but the defendants did not respond to the request of the plaintiff. Hence, the present suit was filed seeking the following reliefs: Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 3 of 29
(i) Decree of partition of suit property bearing no. WZ350, A/3, Gali no. 19, Shiv Nagar Extension, New Delhi58, measuring 170 square yards and three shops including the area behind the shops in Bazar no.6, Firoz Pur Cantt., Punjab and property bearing no. 26, Gali no.6, Firoz Pur, Punjab by mets and bounds.
(ii) Decree of perpetual injunction in favour of the plaintiff and against the defendants, restraining the defendants from alienating, selling, entering into any lease agreement or agreement to sell or parting with possession in any manner whatsoever of the suit property bearing no. WZ350,A/3, Gali no. 19, Shiv Nagar Extension, New Delhi110 058 and three shops including the area behind the shops in Bazar no.6, Firoz Pur Cantt., Punjab and property bearing no. 26, Gali no.6, Firoz Pur, Punjab, to any third party by executing any document in any manner.
(iii) Cost of the suit.
Defendants case:
7. Defendants filed their joint written statement, wherein the suit is preliminarily objected to on the ground that the same is not maintainable as the plaintiff has no cause of action to file the present suit against the defendants. It is alleged that the plaintiff had executed a registered relinquishment deed dated 23.06.2008 alongwith defendant no.1 in favour of their mother/defendant no.2 and by virtue of the said registered relinquishment deed, the plaintiff has relinquished all her rights, title and interest in the Delhi property in favour of defendant no.2. Their late father Shri Gurbachan Singh, had also made his Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 4 of 29 registered WILL dated 17.05.1995 which was duly registered in the office of the Sub Registrar, Delhi on 18.05.1995. By virtue of the said WILL their deceased father had not given any share to the plaintiff in any of his immoveable and moveable properties.
8. Defendants also admitted of having received the legal notice dated 26.09.2014 and stated that they had sent a reply on 07.10.2014 to the legal notice whereby it was clearly mentioned about the factum of relinquishment deed and the WILL. Still these documents have not been challenged by the plaintiff. The suit is also alleged to be undervalued.
9. On merits, it is denied that plaintiff is the coowner of the Delhi property and it is reiterated that she had relinquished her rights therein vide a registered relinquishment deed dated 23.06.2008. As regards the Punjab properties, the shops are alleged to be bequeathed in favour of grandsons of late Shri Gurbachan Singh vide his registered WILL dated 17.05.1995. The Punjab house is stated to be the property of late Shri Bakshi Tara Singh, grandfather of plaintiff and defendant no.1 who had bequeathed the said property in favour of defendants no.1 & defendant no.2 equally vide his registered WILL dated 14.09.1978.
10. It is also stated that Shri Gurbachan Singh had expired on 22.10.1995 but he did not die intestate and had left a registered WILL dated 17.05.1995. With these contentions the suit has been controverted.
Replication:
Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 5 of 29
11. Plaintiff filed her replication thereby denying the allegations made in the written statement except the admissions and reiterating the contents of her plaint.
12. As regards the registered relinquishment deed it is stated that at the request of defendants for execution of the documents for giving the powers to defendant no.2 for depositing House Tax of Delhi property and for submitting papers with BSES, Delhi Jal Board and other departments, she had gone with the defendants. But by playing fraud they got executed the relinquishment deed.
Trusting the defendants she did not read the document before signing and was not aware that relinquishment deed was being executed.
13. As regards the WILL of her father dated 17.05.1995,same is denied and it is stated that the same is even otherwise in contradiction to the purported relinquishment deed. The execution of WILL by the grandfather of the parties is also denied.
Issues:
14. Vide order dated 19.09.2016, following issues were framed:
(i) Whether the suit is not maintainable in view of the fact that the plaintiff and defendant no.1 have already executed registered relinquishment deed dated 23.06.2008 in favour of defendant no.2?OPD.
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(ii) Whether the deceased father of the parties had executed a registered WILL dated 17.05.1995 in respect of the suit properties?OPD.
(iii) Whether the suit has not been properly valued for the purpose of court fees?OPD.
(iv) Whether the defendant no.2 had made registered gift deed dated 01.05.2014 in respect of suit properties in favour of her grandsons?
OPD.
(v) Whether the plaintiff is guilty of suppression of material facts and had not approached the court with clean hands?OPD.
(vi) Whether the plaintiff has no cause of action to file the present suit?OPD.
(vii) Whether the plaintiff has no interest in shop no. 11 and property nos. 9 & 13, at Bazar no. 6, Ferozpur Cant, Punjab?OPD.
(viii) Whether the plaintiff is entitled to seek relief of partition, as prayed?OPP.
(ix) Whether the plaintiff is entitled to relief of permanent injunction, as prayed?OPP.
(x) Relief.
Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 7 of 29 PLAINTIFF'S EVIDENCE:
15. On 16.03.2019, plaintiff no.1 examined herself as PW1 in her evidence by way of her affidavit Ex.PW1/A in which she reiterated and reaffirmed on oath the averments made in her plaint. Sh e relied upon the following documents:
(i) Ex.PW1/1: Legal notice dated 26.09.2014.
(ii) Ex.PW1/2 to Ex.PW1/5: Postal receipts.
(vi) Ex.PW1/6 & Ex.PW1/7: AD Card.
16. PW1 was cross examined by the Ld.counsel for the defendants.
Defendants evidence:
17. Defendants examined as many as eight witnesses including themselves.
18. Defendant no.1 Kanwaljeet Singh examined himself as DW1 vide his affidavit Ex. DW1/A and defendant no.2 Smt Davinder Kaur examined herself as DW2 vide her affidavit Ex. DW2/A. They deposed in consonance with their written statement. They relied upon the following documents:
(1) Ex.DW2/1: Certified copy of the relinquishment deed dated 23.06.2008 executed by plaintiff and defendant no.1 in favour of defendant no.2.
Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 8 of 29 (2) Ex.DW2/2: Certified copy of the WILL dated 17.05.1995 executed by late Shri Gurbachan Singh in favour of his son/defendant no.1.
(3) DW2/3: Certified copy of the registered gift deed dated 01.05.2014 of the first floor of property no. WZ350 A/3,Gali no. 19, Shiv Nagar, New Delhi58 made by defendant no.2 in favour of defendant no.1.
(4) DW2/4: Certified copy of the registered gift deed dated 01.05.2014 of the upper ground floor of property no. WZ350 A/3,Gali no. 19, Shiv Nagar, New Delhi58 made by defendant no.2 in favour of her grand sons.
(5)DW2/5: Certified copy of the registered gift deed dated 01.05.2014 of the third floor of property no. WZ350 A/3,Gali no. 19, Shiv Nagar, New Delhi58 made by defendant no.2 in favour of her grand sons.
(6) DW2/6: Certified copy of registered WILL dated 14.09.1978 executed by father in law of defendant no.2 and grandfather of defendant no.1.
Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 9 of 29 (7) DW2/7: Reply dated 07.10.2014 sent by defendants to the legal notice of the plaintiff dated 26.09.2014.
(8) DW2/8: Postal receipt.
(9) DW2/9: Tracking report.
19. Shri Harbans Singh Arora, one of the attesting witness to the WLL dated 17.05.1995 (Ex.DW2/2) was examined as DW3 vide his affidavit Ex. DW3/A. He deposed that he knew late Shri Gurbachan Singh for the last more than 810 years. He was his close friend. Late Shri Gurbachan Singh made and signed his last WILL on 17.05.1995 and he had signed on the WILL at different points. He identified the signatures of late Shri Gurbachan Singh on the WILL Ex. DW2/2 on points A to H and stated that WILL was written in hand by late Shri Gurbachan Singh.
20. Shri Vivek Yadav, LDC from the office of Sub Registrar II, Basai Darapur was examined as DW4. He proved on record the registration of Relinquishment Deed dated 23.06.2008, certified copy of which is already exhibited as Ex. D1 & Ex.DW2/1; Gift Deed dated 01.05.2014, certified copy of which is already exhibited as Ex. DW2/3; Gift Deed dated 01.05.2014, certified copy of which is already exhibited as Ex. DW2/5; Will dated 18.05.1995, certified copy of which is already exhibited as Ex.DW2/2 and Gift Deed dated 01.05.2014, certified copy of which is already exhibited as Ex. DW2/4.
21. Shri Robin Sachdeva, Adll. Head Registration Clerk, from the office of Dy. Commissioner, Ferozpur, Punjab is examined as as DW5 who proved on Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 10 of 29 record the certified copy of the registered WILL dated 14.09.1978 already exhibited as ExDW2/6.
22. Shri Harsimranjeet Singh, s/o of defendant no.1 is examined as DW6 vide his affidavit Ex. DW6/A. He stated that his grandmother Smt Devinder kaur/defendant no.2 had given upper ground floor and third floor with roof rights in the Delhi property in equal share by two gift deeds both dated 01.05.2014 registered before the Sub Registrar, Basai Darapur, in his favour and in favour of his brother, out of love and affection. The said Gift deeds are already exhibited as Ex.DW2/4 & Ex.DW2/5. He also deposed that he was an attesting witness in Gift Deed dated 01.05.2014 made by his grandmother/defendant no.2 in favour of his father/defendant no.1 which is Ex. DW2/3. He identified his signatures on the same.
23. Ms Vineet Kaur was examined as DW7 vide her affidavit Ex. DW7/A. She was one of the attesting witness to the Relinquishment Deed dated 23.06.2008 made by defendant no.1 and plaintiff in favour of Smt Davinder Kaur/her mother in law/defendant no.2. She deposed that the said Relinquishment deed was also signed by another attesting witness Shri Pardeep Kumar. The Relinquishment deed was signed in the office of Sub Registrar, Janak Puri. Vide this Relinquishment deed, her husband/defendant no.1 and her sister inlaw/plaintiff had relinquished their one third share each in the property bearing no. WZ350 A/3, Street no. 19, Shiv Nagar Extension, New Delhi - 110 058 in favour of their mother i.e. defendant no.2. The said Relinquishment Deed is already exhibited as Ex. DW2/1. She further deposed that she is also one of the attesting witness to the two gift deeds both dated 01.05.2014 made by Smt Davinder Kaur/defendant no.2 in favour of her two sons namely Shri Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 11 of 29 Harsimranjeet Singh and Karanjeet, in respect of entire upper ground floor and third floor with roof rights of the Delhi property. Defendant no.1 was also one of the attesting witness to these two gift deed. Both these gift deeds are already exhibited as Ex. DW2/4 and Ex.DW2/5.
24. Shri Vijay Bharti was examined as DW8. He was a summoned witness. He identified the signatures of his father Shri Baboo Lal Goyal at pt. A & B on the WILL dated 14.09.1978 (Ex.DW2/6) and exhibited it as (Ex. DW8/1).
25. All the defendant's witnesses were cross examined by the ld.counsel for the plaintiff.
Connected suit:
26. After filing of the present suit and receipt of written statement therein, the plaintiff filed another suit with the same title bearing Civ DJ No.1424/2017 seeking the reliefs of declaration/cancellation of Relinquishment Deed dated 23.06.2008 (Ex.DW2/1) being null and void. A decree of perpetual injunction is also sought against the defendants restraining them from creating third party interest in the Delhi property.
27. Vide order dated 19.02.2022, on the submissions of both the parties both the suits were consolidated for the purposes of evidence and the evidence led in the present suit was directed to be read in the said subsequent suit as well.
28. Final arguments have been heard and record has been carefully perused.
29. Now, I shall proceed to give my issuewise findings.
Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 12 of 29 Issue no.1: Whether the suit is not maintainable in view of the fact that the plaintiff and defendant no.1 have already executed registered relinquishment deed dated 23.06.2008 in favour of defendant no.2?OPD.
30. The onus to prove this issue was on the defendants. The plaintiff has filed the present suit seeking partition of estate left by Late Sh. Gurbachan Singh, predecessor in interest of the parties to the suit being father of the plaintiff and defendant no. 1 and husband of defendant no. 2. Among other properties, the Delhi property is alleged to be a part of the estate left by Late Sh. Gurbachan Singh. The admitted case of the parties is that the Delhi property was owned by Late Sh. Gurbachan Singh who had expired on 22.10.1995.
31. In their written statement filed by the defendants they propounded the Relinquishment Deed dated 23.06.2008 allegedly executed by plaintiff and defendant no.1 relinquishing their rights in Delhi property in favour of defendant no. 2. This Relinquishment Deed is a registered document and is Ex.DW2/1. The registration of this document has been duly proved by DW4 who is summoned witness from the office of SubRegistrarII, Basai Darapur. The defendants have also examined one of the attesting witness to the relinquishment deed namely Smt. Vineet Kaur as DW7. She deposed about the execution of relinquishment deed in the office of SubRegistrar.
32. Per contra, it is alleged by the plaintiff that the relinquishment deed Ex.DW2/1 was got prepared by defendants by playing fraud upon her. She was informed that an attorney was to be executed in favour of defendant no. 2 for handling the affairs of the Delhi property before various authority like MCD, BSES, Delhi Jal Board etc. It is her case that she was not aware about the contents of the relinquishment deed at the time of its execution and was not Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 13 of 29 permitted to even read the same. She got to know about the execution of the same only when copy of it was filed by the defendants alognwith the written statement in the present suit. Accordingly, she had also filed a separate suit seeking declaration/cancellation of the relinquishment deed Ex.DW2/1 being case no. Civ. DJ. No. 1424/2017 with the same title.
33. Since, the defendants had propounded the said relinquishment deed, the onus was placed upon them for proving the same. Only once the due execution of the relinquishment deed Ex.DW2/1 was proved, the onus will shift upon the plaintiff to prove her stand that the relinquishment deed Ex.DW2/1 was got executed by playing fraud upon her and was not a valid document.
34. Let us now examine the evidence led by the parties on relinquishment deed Ex.DW2/1. The relinquishment deed Ex.DW2/1 is a registered document, the registration of which is duly proved by DW4. There is no averment or challenge to the registration of relinquishment deed Ex.DW2/1. Defendant no. 2/DW2 is beneficiary of the relinquishment deed Ex.DW2/1 and she has relied upon this document and placed the certified copy of the same on record which is Ex.DW2/1. Defendant no. 1 is one of the releasor/executant of the said relinquishment deed and has also relied upon the same in his affidavit Ex.DW1/A. In order to prove the execution of the relinquishment deed, Smt. Vineet Kaur, one of the witness to the relinquishment deed is also examined as DW7 who has also deposed about the execution of the relinquishment deed before the office of SubRegistrar. Nothing material has come in the cross examination of these witnesses to create a doubt on the execution and registration of the relinquishment deed Ex.DW2/1. Even otherwise, the plaintiff has not challenged the execution and registration of the relinquishment deed Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 14 of 29 Ex.DW2/1. Rather her challenge is to the effect that the said relinquishment deed was got executed from her by playing fraud upon her. Considering the overall evidence on record, I have no hesitation in holding that the defendants have duly discharged the onus upon them to prove the due execution and registration of relinquishment deed Ex.DW2/1.
35. Accordingly, now the onus shifts upon the plaintiff to prove that the relinquishment deed Ex.DW2/1 was got executed from her by playing fraud as alleged by her. Let us now examine the evidence produced on record by the plaintiff for proving the alleged fraud. Perusal of pleadings show that there is no mention of the execution of the relinquishment deed Ex.DW2/1 in the entire plaint. When the defendant mentioned about the relinquishment deed in their written statement, the plaintiff stated in her replication that the said relinquishment deed was got executed by playing fraud upon her. The relevant portion of her replication is reproduced herein under for the sake of clarity: " Page 1 para2 That the contents of the para under reply are wrong and are denied. It is denied that the plaintiff executed the relinquishment deed dated 23.06.2008 along with the defendant no. 1 in favour of defendant no. 2. rest of the para is denied.
5.In this regard, factually it is submitted that as narrated in the written statement about the existence of the relinquishment deed as alleged by the defendants for depriving the rights of the plaintiff from the suit property, the plaintiff recollected and remembered that at the request of the defendant for the execution of one document for giving the powers to defendant no. 2 for depositing Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 15 of 29 the house tax with the MCD of the Delhi suit property and for signing and submitting the papers in BSES Rajdhani Pvt. Ltd. Delhi Jal Board and other departments because after marriage, it was not possible for the plaintiff to visit Delhi for signing each paper as legal heir of Late Sh.
Gurbachan Singh. By the alleged relinquishment deed, the plaintiff got astonished and lost faith in the defendants who are real mother and brother of the plaintiff. The alleged relinquishment deed was got executed and registered under fraud by the defendants in collusion of the defendants for depriving the plaintiff from her rightful co ownership for her 1/3 rd undivided share in the suit property. Being the real brother and mother, defendant took benefit of blind faith and trust of the plaintiff and the defendants got executed and registered the alleged relinquishment deed malafidely which is liable to be declared as null and void and in fact, the said alleged relinquishment deed was got executed under the fraud. It is submitted that the plaintiff never read the alleged relinquishment deed at that moment and signed under blind faith of the defendants".
36. There is similar deposition of PW1/plaintiff in para no. 12 of her affidavit in evidence Ex.PW1/A. However, in her cross examination, plaintiff/PW1 categorically admitted that she was a Graduate (B.A.) and can understand English and is a resident of Canada. She identified the photographs of herself, defendant no. 1 and defendant no. 2 at point A1 on relinquishment deed Ex.DW2/1. She also admitted her signatures at point A2 on every page on the relinquishment deed Ex.DW2/1. During the admission/denial of documents conducted on 02.09.2015, the thumb impressions of the plaintiff on the back side of relinquishment deed Ex.DW2/1 were also admitted by her. She admitted that Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 16 of 29 she had gone to the office of the SubRegistrar for execution of relinquishment deed Ex.DW2/1 and signed the document there. However, she tried to explain by volunteering that her signatures were taken on the document in a hurry which statement was beyond her pleadings. When specifically questioned as to if she had appeared before the SubRegistrar or whether her photograph, signatures and thumb impression were taken in the office of SubRegistrar, she gave a vague reply stating that she does not remember the same. She also admitted that after coming to know about the execution of the relinquishment deed Ex.DW2/1, she had not filed any complaint before SubRegistrar or the police authorities against the defendants. She stated that the suit for declaration/cancellation of the sale deed was filed by her in the year 2014 itself when she came to know about its execution. However, this is a false deposition as the connected suit for cancellation of the relinquishment deed Ex.DW2/1 has been filed only on 19.12.2017 i. e. at the fag end of three years of the admitted knowledge of the plaintiff about the relinquishment deed Ex.DW2/1.
37. Considering the overall evidence on record, the admitted qualifications and education of plaintiff/PW1 and the fact that she is a NRI staying at Canada since long, the contention of the plaintiff that she had signed the relinquishment deed before the office of SubRegistrar without reading the contents of the same and simply on the asking of the defendants that it was a document required to be submitted before various departments seems to be highly improbable. The relinquishment deed Ex.DW2/1 clearly mentions the title "RELINQUISHMENT DEED" and the words "releasor no. 1, releasor no. 2 and releasee" under the photographs of defendant no. 1 plaintiff and defendant 2 respectively on the very first page. There are signatures of plaintiff on every page Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 17 of 29 of the relinquishment deed Ex.DW2/1 and her thumb impression on the back side of the document. Even if it is believed that plaintiff was not given time to go through the entire contents of the document, it is difficult to believe that a well read person like plaintiff had not even seen the title of the document while signing it. It is not the case of the plaintiff that she is an illiterate person and was made to sign the document by playing fraud and undue influence or was made to sign blank papers. Considering the status of her education, her ocular testimony, the bald averments made by her that she was made to understand that document Ex.DW2/1 was merely an authority being given to defendant no. 2 to follow up with various authorities in respect of Delhi property appears to be highly improbable and do not inspire the confidence of the court. I find no conviction in the said statement of plaintiff/PW1 which is not supported by any document or immediate complaint or action against the defendants once she allegedly came to know about the existence of relinquishment deed Ex.DW2/1. Accordingly, I have no hesitation in holding that the plaintiff has failed to discharge the onus upon her to prove that relinquishment deed Ex.DW2/1 was executed by playing fraud upon her.
38. In view of the reasons given above and overall evidence on record, this issue is decided in favour of the defendants and against the plaintiff holding that plaintiff had already relinquished her share in the Delhi property in favour of her mother/defendant no.2 by executing a registered Relinquishment Deed dated 23.06.2008 Ex.DW2/1.
Issue no.2: Whether the deceased father of the parties had executed a registered WILL dated 17.05.1995 in respect of the suit properties?OPD.
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39. The onus to prove this issue was on the defendants who had alleged registration of a registered WILL dated 17.05.1995 by late Shri Gurbachan Singh in respect of Delhi property as well as shops no. 9/1011 and 12/13, Bazar no. 6, Ferozpur Cant, Punjab. In order to prove the WILL of late Shri Gurbachan Singh dated 17.05.1995 registered on 18.05.1995 (Ex.DW2/2), defendants have examined Shri Harbans Singh Arora, one of the attesting witness to the WILL as DW3. DW3 categorically deposed that late Shri Gurbachan Singh had prepared the WILL (Ex.DW2/2) in his own handwriting and signed the same in his presence. Thereafter, he had signed the WILL as a witness alongwith one Shri B S Bhola, the other witness to the WILL. He also identified the signatures of late Shri Gurbachan Singh on the WILL Ex.DW2/2 at pts. A to H. He also deposed that late Shri Gurbachan Singh was hale and hearty and in sound and disposing mind at the time he had made the WILL Ex.DW2/2 and was aware what he was executing and had also told them that he was making the WILL in favour of his son and two grand children through his wife. Nothing material has come in the cross examination of this witness. There is no suggestion given to DW3 that he had not witnessed the execution of the WILL Ex.DW2/2 or that late Shri Gurbachan Singh was not in a fit state of mind at the time of execution of the WILL. The only case of the plaintiff that has come on record on the basis of the suggestions given to DW3 is that the WILL Ex.DW2/2 was prepared by him in collusion with defendant no.1 and the same was forged and he had witnessed the WILL dated 17.05.1995 (Ex.DW2/2) after the demise of late Shri Gurbachan Singh. However, this contention of the plaintiff is clearly contradictory to the record as the WILL dated 17.05.1995 (Ex.DW2/2) has been duly registered on 18.05.1995 before the office of Sub Registrar as proved by DW4. Accordingly, Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 19 of 29 there is no question of forging the WILL (Ex.DW2/2) after the demise of late Shri Gurbachan Singh who expired on 22.10.1995.
40. Considering the overall evidence produced on record I have no hesitation in holding that the defendants have duly proved the execution and registration of the WILL dated 17.05.1995 executed by late Shri Gurbachan Singh which is Ex.DW2/2. Perusal of the WILL Ex.DW2/2 clearly show that it is a handwritten WILL in respect of the Delhi property, Punjab shops as well as the moveable properties of late Shri Gurbachan Singh. The plaintiff has nowhere disputed that the WILL Ex.DW2/2 is not in handwriting of her deceased father late Shri Gurbachan Singh. Rather, she had identified the photograph of her father at pt. A on the WILL Ex.DW2/2 during her cross examination as PW1. However, when she was confronted with the signatures and handwriting of her father on the WLL Ex.DW2/2, she simply stated that she cannot identify the same. However, there is no categorical deposition that the WILL Ex.DW2/2 is not in the handwriting or not signed by late Shri Gurbachan Singh.
41. In view of the reasons given and evidence on record, I have no hesitation in holding that the defendants have clearly proved on record that late Shri Gurbachan Singh had executed the WILL Ex.DW2/2 dated 17.05.1995 in respect of the Delhi property as well as shops no. 9/1011 and 12/13, Bazar no. 6, Ferozpur Cant, Punjab. This issue is accordingly, decided in favour of the defendants and against the plaintiff.
Issue no.3: Whether the suit has not been properly valued for the purpose of court fees?OPD.
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42. The onus to prove this issue was on the defendants as they had alleged in para no. 4 of preliminary objections in the written statement that the suit is undervalued for the purposes of court fees as the market value of the Delhi property is more than Rs 3 crores while the market value of the Firozpur property is Rs. 75 lacs.
43. Per contra as per paragraph no. 21 of the plaint, the plaintiff had valued the suit for the purposes of pecuniary jurisdiction in respect of Delhi property at Rs. 80,44,000/ and paid court fees on her 1/3rd share. As regards the Firozpur properties, the same is valued at Rs. 20 lacs approximately and the court fees on her 1/3rd share in the Firozpur properties had been paid by the plaintiff. None of the party has lead any evidence to prove the market value of the suit properties at the time of filing of the present suit. The onus to prove that the valuation was not proper was on the defendants and in view of their failure to produce any evidence on this issue, the valuation done by the plaintiff has to be taken as the correct valuation. This is moreso as there is no document on record on the basis of which contradictory findings can be given.
44. In view of the reasons given above, this issue is decided in favour of the plaintiff and against the defendants.
Issue no.4: Whether the defendant no.2 had made registered gift deed dated 01.05.2014 in respect of suit properties in favour of her grandsons?OPD.
45. The onus to prove this issue was on the defendants as they had propounded the gift deeds dated 01.05.2014 that are Ex. DW2/3 to Ex.DW2/5.
46. These gift deeds are relied upon by defendant no.2/DW2 that is the donee who had categorically deposed about the execution of the said gift deeds.
Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 21 of 29 All the gift deeds Ex.DW2/3 to Ex.DW2/5 are registered documents and their registration has been duly proved by DW4 who is a witness from the office of Sub Registrar. In addition to this, witness to the gift deed Ex.DW2/3 namely Shri Harsimranjeet Singh is examined as DW6 who has proved the execution of the said gift deed in his presence. Similarly, one of the witness to the gift deeds Ex. DW2/4 and Ex.DW2/5 namely Ms Vineet Kaur is examined as DW7 who has duly proved the execution of the said two gift deeds. Nothing material has come in the cross examination of DW6 or DW7 to cloud the execution of the gift deeds Ex.DW2/3 to Ex.DW2/5. Moreover, the execution of the gift deeds Ex.DW2/3 to Ex.DW2/5 is not disputed but is rather admitted by the executant/donor herself i.e. defendant no.2/DW2.
47. As per Section 123 of Transfer Property Act 1882, gift of an immovable property can be made by a registered document signed by or on behalf of donor and attested by atleast two witnesses. Proviso to Section 68 of the Indian Evidence Act 1872 also provides that there is no such necessity of calling an attesting witness in proof of execution of any document, not being a WILL, which has been registered under provisions of Indian Registration Act 1908, unless its execution by the person by whom it purports to have been executed is specifically denied. This denial also pertains to the persons who are interested in denying the execution of the document claiming under the donor.
48. In the present case, the execution of the Gift Deeds Ex.DW2/3 to Ex.DW2/5 has not been specifically denied by the plaintiff as her replication is merely claiming that the gift deeds have been prepared just to grab the ground and third floor of the Delhi property and execution of the gift deeds shows the malafide intention of the defendant no.1. But still the defendants not only proved Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 22 of 29 the registration of the gift deeds by examining DW4 but also proved their execution by examining the witnesses to the gift deeds that are DW6 and DW7. In addition to this, the donor/executant of the gift deeds Ex. DW2/3 Ex.DW2/5 has admitted their execution. Accordingly, all the three registered gift deeds dated 01.05.2014 (Ex.DW2/3 to Ex.DW2/5) have been duly proved on record by the defendants.
49. Considering the overall evidence on record and the reasons given above, this issue is decided in favour of the defendants and against the plaintiff.
Issue no.5: Whether the plaintiff is guilty of suppression of material facts and had not approached the court with clean hands?OPP.
50. The onus to prove this issue was on the defendants who are alleging that the plaintiff had filed the present suit concealing the execution of registered Relinquishment Deed Ex. DW2/1 by her thereby relinquishing her rights in the Delhi property in favour of defendant no.2 and the execution of the registered WILL dated 17.05.1995 executed by late Shri Gurbachan Singh deceased father of the plaintiff bequeathing all his moveable and immoveable properties in favour of his son and grandsons.
51. The plaintiff on the other hand, had shown ignorance about these documents and had categorically stated that she came to know about the existence of these documents only after receiving the copies of the same alongwith the WS. The defendants had not lead any evidence on the basis of which this court can come to a conclusion that the plaintiff was well aware about these documents prior to the filing of the present suit. Defendants are relying upon the reply to the legal notice of the plaintiff sent by them which is Ex.
Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 23 of 29 DW2/7. The defendants have mentioned the factum of registered WILL as well as registered Relinquishment Deed in the said reply Ex.DW2/7. The postal receipts in respect of the said reply to the legal notice is Ex. DW2/8 alongwith the tracking report Ex. DW2/9 which shows delivery of same on 10.10.2014. The receipt of this reply had been categorically denied by the plaintiff. Even otherwise it is evident from the reply Ex. DW2/7 that the same was addressed to the advocate of the plaintiff having his office at Tis Hazari and not to the plaintiff herself. It has duly come on record during the cross examination of PW1 that she had departed for Canada on 11.10.2014. Photocopy of her passport to support this fact is Ex. PW1/DX1. Whether or not prior to her departure she had come to know about the reply to the legal notice is a question which is not answered by the evidence that has come on record. Accordingly, the evidence on record is insufficient to hold that the plaintiff had deliberately concealed the said documents while filing the present suit.
52. In view of the reasons given above and the evidence on record, this issue is decided in favour of the plaintiff and against the defendants holding that defendans have failed to prove on record that plaintiff is guilty of suppression of material facts or has not approached the court with clean hands.
Issue no.6: Whether the plaintiff has no cause of action to file the present suit?OPD.
53. The onus to prove this issue was on the defendants who have alleged that the plaintiff has no cause of action to file the present suit.
54. The term of cause of action is not defined in CPC. However, as per settled law the term cause of action refers to a bundle of facts which entitle the Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 24 of 29 plaintiff to bring about an action against the other party in a Court of Law. A cause of action, in law, is a set of facts sufficient to justify suing other party to obtain money, property or enforcement of a legal right against the other party. It is also a settled law that the cause of action for filing a suit has to be seen only from the plaint and documents annexed therewith. The defence of the defendant is immaterial in arriving at a conclusion whether the plaint discloses any cause of action or not.
55. In the present case, the plaintiff is claiming herself to be the one of the legal heir of late Shri Gurbachan Singh who had died intestate and is claiming partition of the estate left by late Shri Gurbachan Singh. From the contents of the plaint, I have no hesitation in holding that it reflects the cause of action for filing the suit. Accordingly, this issue, is decided in favour of the plaintiff and against the defendants.
Issue no. 7 Whether the plaintiff has no interest in shop no. 11 and property nos. 9 & 13, at Bazar no. 6, Ferozpur Cant, Punjab?OPD.
56. The onus to prove this issue was on the defendants. As per the case of the defendants shop no. 11 and properties no. 9 and 13 at Bazar no. 6, Firozpur Cant, Punjab, belonged to the grandfather of the plaintiff and defendant no.1 and fatherinlaw of defendant no.2 namely late Shri Bakshi Tara Singh. It is also their case that late Shri Bakshi Tara Singh had executed a registered WILL dated 14.09.1978, bequeathing the shop no. 12 & 13 in favour of his son i.e. late Shri Gurbachan Singh. As regards shop no. 11, late Shri Bakshi Tara Singh had given life interest in the said shop to his daughter Smt Iqbal Kaur and thereafter the ownership rights have been transferred in favour of his son late Shri Gurbachan Singh. Similarly, plots no. 9 & 10 were bequeathed by late Shri Bakshi Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 25 of 29 Tara Sigh in favour of his son late Shri Gurbachan Singh. Thereafter, late Shri Gurbachan Singh vide his WILL dated 17.05.1995 (Ex.DW1/2) bequeathed his right in properties no. 9/1011 and 12/13 in Bazar no.6, Firozpur Cant, Punjab, in favour of his grandsons through his wife/defendant no.2.
57. Per contra the plaintiff has alleged that the said Punjab shops were a part of the estate of late Shri Gurbachan Singh and has accordingly sought a share in the same being one of the legal heir of late Shri Gurbachan Singh.However, interestingly, the plaintiff has not placed on record any document to show that the said properties of Firozpur were owned by late Shri Gurbachan Singh. During her cross examination plaintiff/PW1 admitted that the properties of Punjab were owned by her grand father thereby contradicting her own case that the Punjab properties were owned by late Shri Gurbachan Singh. Since plaintiff had admitted that the Punjab properties were owned by her grand father late Shri Bakshi Tara Chand, the said fact required no separate proof.
58. As per the case of the defendants late Shri Bakhi Tara Chand had executed a WILL Ex. DW2/6 in respect of the Punjab shops. The registration of the said WILL has been duly proved by examining DW5, a witness from the office of Dy Commissioner, Firozpur,Punjab. Since both the attesting witnesses to the WILL were not in a position to appear before the court , defendant examined Shri Vijay Bharti, son of one of the attesting witness Shri Baboo Lal Goyal as DW8. This witness duly identified the signatures of his father on the WILL Ex.DW2/6 (again exhibited as Ex.DW8/1) and also produced the contemporary signatures of his father on a blank cheque which is Ex.DW8/2. Nothing material has come on record in the cross examination of this witness to doubt his testimony.
Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 26 of 29 Accordingly, defendants have duly proved the execution and registration of the WILL Ex. DW2/6 (Ex.DW8/1). Moreover, the plaintiff/PW1 in her cross examination has not denied the execution of the said WILL and had merely stated that she was not aware about the same and she cannot identify the handwriting of her grand father.
59. Considering the overall evidence on record and the reasons given above, I have no hesitation in holding that the WILL Ex. DW2/6 executed by late Bakshi Tara Chand excluding the plaintiff herein from Punjab shops has been duly proved on record. Accordingly, plaintiff has no interest in shop no. 11 and properties no. 9 & 13 at Bazar no. 6, Firozpur Cant, Punjab. This issue is accordingly, decided in favour of the defendants and against the plaintiff.
Issue no. 8: Whether the plaintiff is entitled to seek the relief of partition, as prayed?OPP.
60. The onus to prove this issue was on the plaintiff. The plaintiff is seeking partition of the suit properties including the Delhi properties, Punjab shops and Punjab property, alleging them to be a part of the estate of her deceased father late Shri Gurbachan Singh.
61. Let us examine the status of all these three sets of properties on the basis of evidence produced on record.
62. The Delhi property was admittedly owned by late Shri Gurbachan Singh, father of plaintiff & defendant no.1 and husband of defendant no.2.
63. In view of my issuewise findings given in issue no.1 above, it is held that since the plaintiff had herself executed the Relinquishment Deed dated Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 27 of 29 23.06.2008 (Ex.DW2/1) relinquishing her rights in the Delhi property in favour of her mother/defendant no.2, she is not entitled to claim a share in the Delhi property left behind by her father.
64. As regards the Punjab shops, in view of my issuewise finding in issue no. 7 above, it is held that the said properties were the estate of grandfather of the plaintiff late Shri Bakshi Tara Chand, who had executed a registered WILL Ex. DW2/6 qua the same bequeathing them in favour of late Shri Gurbachan Singh. Late Shri Gurbachan Singh had in turn executed a Registered WILL dated 17.05.1995 Ex. DW2/2 which is also duly proved on record in view of my issuewise findings given in Issue no.2 above. By virtue of the WILL Ex. DW2/2, no portion of Punjab shops had devolved upon the plaintiff.
65. As regards the Punjab property, there is no evidence led by the plaintiff that it was the property of Late Shri Gurbachan Singh. As discussed in my findings on Issue no. 7 above, plaintiff has herself admitted that all the Punjab properties were belonging to her deceased grandfather late Shri Bakshi Tara Chand. Registered WILL of late Shri Bakshi Tara Chand Ex. DW2/6 also finds mention of the Punjab property. The WILL of late Shri Bakshi Tara Chand Ex. DW2/6 is duly proved on record in view of my issuewise findings given in Issue no. 7 above. By virtue of the said WILL Ex. DW2/6, the Punjab property was bequeathed in favour of defendants herein by Late Shri Bakshi Tara Chand Accordingly, plaintiff has no right, title or interest in the Punjab property as well.
66. In view of the above reasons, this issue is decided in favour of the defendants and against the plaintiff holding that the plaintiff is not entitled to seek the relief of partition in respect of the suit properties, as prayed.
Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 28 of 29 Issue no. 9: Whether the plaintiff is entitled to relief of permanent injunction, as prayed?OPP.
67. The onus to prove this issue was on the plaintiff. Plaintiff has sought permanent injunction restraining the defendants from creating any third party interest in the suit properties. In view of my issuewise findings given above, since it is held that the plaintiff is not entitled to claim any share in the suit properties, no relief of injunction can be granted in her favour. This issue is accordingly, decided in favour of the defendants and against the plaintiff.
Relief:
68. In view of my issue wise findings given above, the suit of the plaintiff is dismissed.
69. No orders as to cost.
70. Decree sheet be prepared accordingly.
Digitally signed71. File be consigned to record room. SHIVALI by SHIVALI SHARMA SHARMA Date: 2022.03.24 15:28:43 +0530 Announced in the open court (SHIVALI SHARMA) on: 24.03.2022 ADJ03/WEST/THC/DELHI Civ DJ: 613290/2016 Baljeet Kaur vs Kanwaljeet Singh and another Page 29 of 29