Delhi District Court
Arjun Singh vs Kamlesh Tomar on 18 July, 2018
Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
IN THE COURT OF MAYANK MITTAL: CIVIL JUDGE08 (CENTRAL),
ROOM NO.231, TIS HAZARI COURTS, DELHI
SUIT NO. : 93590/16 (OLD NO. : 97/16)
In the matter of :
1.Arjun Singh S/o Sh. J. Singh R/o B/42/C, Dilshad Colony, Delhi.
Presently at: C/o Sh. S.B. Singh, Flat No.7, Plot No.G - 37, Laxmi Nagar, Delhi.
2. Veena Singh W/o Sh. J. Singh, D/o B/42/C, Dilshad Colony, Delhi.
Also at: C - 905, Gandharva Aptt.
Plot No.1, Section Omega - 1,
Greater Noida, U.P. ...PLAINTIFF
VERSUS
1. Kamlesh Tomar
W/o Late Sh. S.S. Tomar,
R/o S - 187, Venus Apartment,
Plot No.43, Sector - 9,
Rohini, Delhi.
CS No. : 93590/16 (old No. : 97/16) Pg 1 of 32
Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
2. Bikram Tomar
S/o Late Sh. S.S. Tomar
R/o S - 187, Venus Apartment,
Plot No.43, Sector - 9,
Rohini, Delhi.
3. Archana Gehlot
W/o Sh. Sanjit Gehlot
D/o Late Sh. S.S. Tomar,
R/o H. No.301, Mohall Lohiya,
Dhampur, Binjor (UP). ...DEFENDANTS
Date of institution : 05.05.2000
Date of judgment : 18.07.2018
SUIT FOR PERMANENT AND MANDATORY
INJUNCTION
J U D G M E N T
1. Vide this judgment, I shall dispose of the suit filed by the plaintiffs for permanent and mandatory injunction.
2. The facts necessary to dispose off the present suit as alleged by the plaintiffs are that the plaintiff instituted the present suit through next friend/natural guardian as he was minor at the time of filing the suit, however, in the course of time he attained majority and now has been contesting the suit independently. The plaintiff No.2 namely Mrs. Veena Singh is mother of plaintiff No.1 and daughter of Late Sh. S.S. Tomar. The CS No. : 93590/16 (old No. : 97/16) Pg 2 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
defendant No.1 is the maternal grandmother of the plaintiff No.1 and wife of Late Sh. S.S. Tomar. The defendant No.2 is son of Late Sh. S.S. Tomar and the defendant No.3 is daughter of Late Sh. S.S. Tomar. The case is that the plaintiff No.1 is the owner of property No.S - 187, Venus Apartment, Plot No.43, Sector - 9, Rohini, Delhi by way of a Will executed in favour of the plaintiff No.1 by his maternal grandfather Late Sh. S.S. Tomar who left behind the Will written in his own writing and the same is already on record. The plaintiff No.1 became the owner of the property by operation of law after the death of Late Sh. S.S. Tomar. The said Will was executed on 25.12.1999 in presence of two witnesses who attested the same. Late Sh. S.S. Tomar was the absolute owner of the property bearing No.S - 187, Venus Apartment, Plot No.43, Sector - 9, Rohini, Delhi and the said property was acquired by Late Sh. S.S. Tomar by his own earnings and which was absolutely a self acquired property which was never challenged even during the life time of Late Sh. S.S. Tomar. Late Sh. S.S. Tomar also disowned his son Bikram Singh and did not allow his son Bikram Singh to reside in the property of Late Sh. S.S. Tomar. Late Sh. S.S. Tomar also expelled his son Sh. Bikram Singh from the residential accommodation owned by Late Sh. S.S. Tomar and for this reason Sh.
CS No. : 93590/16 (old No. : 97/16) Pg 3 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
Bikram Singh was residing separately from Late Sh. S.S. Tomar. The defendant No.1 Smt. Kamlesh Tomar was residing with Late Sh. S.S. Tomar and none else was residing with Late Sh. S.S. Tomar prior to his death. The defendants No.2 and 3 were residing separately. However, the plaintiff accompanied with his mother Smt. Veena Singh used to visit Late Sh. S.S. Tomar as and when any assistance or nursing was required by Late Sh. S.S. Tomar. The defendant No.1 was residing with Late Sh. S.S. Tomar but was not careful to look after Late Sh. S.S. Tomar. Late Sh. S.S. Tomar disowned/expelled his son Bikram Tomar, defendant No.2 herein and never permitted him to come inside his house. Late Sh. S.S. Tomar also categorically expressed his desire that after his death his son Sh. Bikram Singh must not be allowed to touch his dead body or light the pyre and further desired that the plaintiff No.1 should perform the holy duty of cremation and other religious duties. The said last wish of Sh. S.S. Tomar was written in his own handwriting and duly signed on 23.12.1999 in presence of the witnesses and the documents were also kept inside the accommodation of Late Sh. S.S. Tomar which were recovered together with the Will after the death of Late Sh. S.S. Tomar and the possession of the said documents were handed over to the plaintiff No.1 only in presence of CS No. : 93590/16 (old No. : 97/16) Pg 4 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
Sh. Bikram Singh Tomar and Smt. Kamlesh Tomar. The attempts were made to destroy the said Will but the defendants No.1 and 2 never succeeded in getting the last Will destroyed which was written by Late Sh. S.S. Tomar in his own handwriting. Late Sh. S.S. Tomar died on 25.01.2000 and as per instructions the plaintiff No.1 who is the son of the eldest daughter Mrs. Veena Singh performed the religious rites and customs and necessary death certificate was also issued. The obituary (ShokSamachar) got circulated through the plaintiff No.1. The donation slip for 'Bhandara' given to Sh. Ram Mandir, Shahdara, Delhi. Copy of ration card of Late Sh. S.S. Tomar show the details of family i.e. S.S. Tomar and Kamlesh Tomar only issued in the year 1996 show that the defendants No.2 and 3 were not residing with him at that time. The defendants No.1 and 2 in collusion were making efforts to create fabricated documents to alienate the property which is self acquired by Late Sh. S.S. Tomar. The defendant No.1 was residing in the property as a licensee and as per the Will, the defendant No.1 is entitled for the share of amount lying in bank account equally with Smt. Veena Singh, plaintiff No.2 and it is Smt. Veena Singh and defendant No.1 who were entitled to receive the amount lying the bank. After the death of Late Sh. S.S. Tomar, an offer was made by the CS No. : 93590/16 (old No. : 97/16) Pg 5 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
plaintiff No.2 to the defendant No.2 that she may stay with the plaintiffs at B42C, Dilshad Colony, Delhi - 110 095 but the defendant No.1 choose to stay alone at S - 187, Venus Apartment, Plot No.43, Sector - 9, Rohini, Delhi and the defendant No.1 is claiming that the defendant is the owner of the property. The defendant No.1 has herself recovered the said Will and has herself handed over the same in the custody of the mother of the plaintiff No.1. On 10.03.2000, the defendant No.1 intimated the plaintiff No.1 that since the plaintiff is the owner and hence the defendant No.1 will alienate the property at a throw away price and will handover the possession either to Sh. Bikram Singh or to anybody else. The plaintiff placed before the defendant No.1, the said Will and requested that since the plaintiff does not wish to make the defendant No.1 homeless and hence the defendant No.1 should not do anything which is adverse to the interest of the plaintiff but the defendant No.1 did not agree and threatened that she will alienate the property by introducing third person in the picture. On 12.04.2000, the defendant No.1 invited her son, defendant No.2 and some other persons and intimated them in presence of the mother of the plaintiff that they would be alienating the property without any document in the event the plaintiff does not handover the house to Sh. Bikram Singh. The CS No. : 93590/16 (old No. : 97/16) Pg 6 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
plaintiffs reminded the defendants that the plaintiff No.1 has performed even the rituals after the death of Sh. S.S. Tomar and Sh. Bikram Sing was directed not to touch dead body and under these circumstances, it is the sentiment of the deceased Late Sh. S.S. Tomar which has to be given protection and honour and hence the plaintiff never wanted that the defendant No.1 should allow anyone else including Sh. Bikram Singh to reside in the property together with the defendant. On 15.04.2000, the defendant No.1 again intimated the plaintiff No.1 that either the plaintiff No.1 should reside together or the plaintiff will be deprived of his rights but when the plaintiff No.1 went to stay together but the defendant No.1 started quarreling with the plaintiff and backed out from the fact that she wanted the company of the plaintiff No.1. The plaintiff No.1 is in possession of the rooms which were under the possession of Late Sh. S.S. Tomar during his lifetime. Late Sh. S.S. Tomar has disowned his son and Late Sh. S.S. Tomar died only because of the torture given by the defendant No.1 and her son Sh. Bikram Singh and hence in view of the wishes of Late Sh. S.S. Tomar the defendant No.1 has no right to introduce any other person in the possession of the suit property except the defendant No.1 herself and since the property is owned by the plaintiff No.1 and hence even the defendant CS No. : 93590/16 (old No. : 97/16) Pg 7 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
No.1 can not stay in the house unless permitted by the plaintiff No.1. The plaintiff No.1 never wants that at this age the defendant No.1 should be evicted from the premises but at the same time, it is equitable that the defendant should also honour the sentiments of Late Sh. S.S. Tomar and should not allow any other person to stay together with her including Sh. Bikram Singh and hence the suit. Late Sh. S.S. Tomar died on 25.01.2000 and hence the plaintiff No.1 became the absolute owner of the suit property. The plaintiff No.1 through his counsel terminated the license of the defendant No.1. After the termination of license, the defendant became a trespasser as earlier, the defendant was a licensee under Late Sh. S.S. Tomar but with the termination of said license, the defendant has become a trespasser and hence the suit. The plaintiff through his counsel requested the defendant No.1 to handover the possession after the license was terminated but the defendant No.1 did not give any heed on the request and despite requests in person also refused to vacate the premises and handover the same to the plaintiff No.1.
3. Defendant No.1 has contested the suit of the plaintiffs and had filed written statement. It is stated in the written statement that the defendant is the wife of Late Sh. S.S. Tomar, who died on 25.01.2000 leaving behind (i) Wife, the CS No. : 93590/16 (old No. : 97/16) Pg 8 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
defendant (ii) Son - Sh. Bikram Singh (iii) Daughters - (a) Smt. Veena Singh (Natural Guardian of present plaintiff), (b) Smt. Archana Singh. The deceased Sh. S.S. Tomar died leaving behind the following immovable properties (i) Flate No.A - 187, Venue Apartment, Sector - IX, Rohini, Delhi. (ii) Shop No.D - 14/124, Sector - VII, Rohini, Delhi.
4. The deceased has executed a Will dated 20 th July, 1999 and bequeathed all his properties in favour of the first issue of Sh. Bikram Singh his only son or the grand child of the deceased as and when he will be gotten and till then the aforesaid properties shall remain with the defendant. At the time of execution of the Will, the deceased was aged about 64 years and was seriously suffering from lung cancer. Needless to mention here that the deceased in his Will dated 20 th July, 1999 termed his eldest daughter - mother of the minor the present plaintiff, as greedy likewise, her husband was also stated specifically to be greedy. The defendant is completely a household lady and has devoted her entire life i.e. right from her marriage in the services of her deceased husband and had throughout been fully dependent for residential as well as for her maintenance purposes on her husband. The defendant at the time of execution of the Will was also aged about 60 years and the Will was witnessed by the residents of the same CS No. : 93590/16 (old No. : 97/16) Pg 9 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
society/locality. The Will dated 25.12.1999 deserves to be declared as null and void because of the following reasons: A). The Will dated 25.12.1999, hereinafter called as "Will in question" was obtained by the plaintiff under some threat to the life of the family members specifically wife of the deceased.
(B). The Will in question is not exhaustive explanatory not as comprehensive, as the deceased has expresses his last desire in his Will dated 20th July, 1999. (C). In the Will Dated 20th July, 1999 the eldest daughter of the deceased was debarred as has proved herself to be greedy in the eyes of the deceased. So, it is unbelievable that the deceased shall bequeath the entire residential house in favour of minor son of his eldest daughter, even without at least creating a life interest in favour of the defendant knowingly that she had been throughout a household lady and dependent on him for residence as well as for maintenance purpose.
(D). The Will prima facie appears to be executed under suspicion has never seen the light of the day prior to the same was filed alongwith this suit filed by the defendant herein.
(E). By the month of December, 1999 the deceased became seriously ill and weak, as by that time had sustained four massive heart attacks and lungs cancer and was thus confined to bed and thus not in a perfect position to express his last desire and/or of making a valid Will. (F). Strangely, the Will in question which was produced by the defendant herein is not signed by any residents of the locality and is shown to have been signed by the strangers.
(G). From the conduct of the deceased, it is clear that the deceased was a very disciplined, reasonable, unambiguous, clear headed and very fair as it revealed from his writing dated 20th July, 1999.
(H). The Will in question, if any, is obtained under fraud and undue influence and not under his free and sound disposing mind, and if so the deceased was CS No. : 93590/16 (old No. : 97/16) Pg 10 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
forced to write what has been dictated at the behest of the beneficiary i.e. eldest daughter of the deceased.
(I). The deceased did not give details of his Will dated 20.07.2000 of which the dictator/beneficiary did not have any knowledge with a view to leave an impression to every one that the Will in question in fact was not his last desire and he had no intention to set aside or recall his last desire as spelt out by him in his Will dated 20.07.1999 but was compelled to write the Will in question under influence. The suit in the present form is not maintainable as the plaintiff has got no right, title or interest in the suit property and the alleged Will is a false and fabricated document and as submitted hereinabove a civil suit for such declaration has already been filed by the defendant. The plaintiff is not entitled to any relief in the present suit without first applying for perfecting his title either by way of grant of probate/letter of administration in his favour by a competent court or any other mode available to him according to law. The present suit without first obtaining such a relief is thus not maintainable and the plaintiff is not entitled to any relief when the validity of the Will in question is already under challenge by way of regular civil suit detailed hereinabove.
5. The defendant No.2 also filed his written statement. It is stated in the written statement that the suit filed on the basis of Will dated 25.12.1999 is not a genuine and valid Will as Late Sh. S.S. Tomar, executant of the Will was confined to bed and was fighting with life and death and was suffering from lung cancer and was aged about 64 years, at the time of alleged Will dated 25.12.1999. It is pertinent to mention here that after the month of October, 1999, Sh. S.S. Tomar was seriously ill and weak and by that time he had sustained four massive heart attacks and on account of lungs cancer, accordingly he was not in a sound and perfect position to express his last CS No. : 93590/16 (old No. : 97/16) Pg 11 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
desire or execute any genuine Will till his death on 25.01.2000. Accordingly, the alleged Will dated 25.12.1999 alleged to have been signed and executed by Sh. S.S. Tomar, father of answering defendant No.2 is a Will executed by exercising undue influence and pressure/threats upon an ailing father lying seriously on bed and not maintaining sound disposing mind. The true facts are that deceased Sh. S.S. Tomar executed a Will dated 20 th July, 1999 whereby he bequeathed all his properties in favour of the first issue out of wedlock of answering defendant No.2 and his wife Smt. Samita Tomar, being grand child of deceased executant. It is submitted that Late Sh. S.S. Tomar was always resided and look after by the answering defendant upto his death and the son of the answering defendant become the owner by virtue of Will dated 20.07.1999 after the death of Sh. S.S. Tomar by operation of law. No prudent person can bequeath his property to the persons who are not taking care and looking after him, moreover, excluding all persons i.e. his wife, his son, grandson etc. Further, the defendants are the owners and in the possession of the suit property, hence the present suit is filed by the plaintiffs just to put pressure and blackmail the defendants without any rhyme or reason. It is submitted that the allegations leveled are totally false, frivolous and vexatious. In fact, the CS No. : 93590/16 (old No. : 97/16) Pg 12 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
defendants and Late Sh. S.S. Tomar were residing together and he was taking care and looking out by the answering defendant No.2 being his son. Plaintiff resided far away from the residence of the defendants and as admitted in the para under reply, she occasionally visited to her parents. The averments made in the para under reply just to create false and invalid cause of action to file the present suit.
6. The defendant No.3 also filed her written statement. It is stated in the written statement that the answering defendant No.3 is the daughter of Late Sh. S.S. Tomar and defendant No.1, and sister of plaintiff No.2 and defendant No.2. It is stated that Late Sh. S.S. Tomar was always taking care and looking after by the defendant No.1 and 2 only and Late Sh. S.S. Tomar executed his Will dated 20.07.1999 in favour of son of defendant No.2 out of natural love and affection towards the defendants, which is true and genuine Will. It has come to the knowledge of the answering defendant No.3 about the another alleged Will dated 25.12.1999 only after institution of the suit by the plaintiff against the defendant No.1, which was very shocking and surprising to the answering defendant. It is stated that the said Will dated 25.12.1999 was a false and frivolous Will as he was not in a sound disposing mind and not possessed good health at that relevant time, CS No. : 93590/16 (old No. : 97/16) Pg 13 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
hence he was not in a position to execute any Will or taking the right decision. It is only the outcome of the undue influence, pressure and coercion of the plaintiffs made upon the deceased Sh. S.S. Tomar as S.S. Tomar was suffering from many ailments and was very weak and by that time he had sustained four massive heart attacks on account of lungs cancer, he was not in a sound and perfect position to express his last desire or execute any genuine Will till his death on 25.01.2000. The answering defendant No.3 is also a legal heir of Late Sh. S.S. Tomar and has every right in the estate left behind by Late Sh. S.S. Tomar, however, as answering defendant is having knowledge of the last wish and desire of her Late father by virtue of Will dated 20.07.1999, she never express any demand in the said property. It is also relevant to mention here that Sh. S.S. Tomar was always being taken care and looked after by the defendants No.1 and 2 and plaintiffs only occasionally visited Late Sh. S.S. Tomar.
7. Plaintiffs filed replication to the written statement of the defendants No.1 to 3 denying the case of the defendants No.1 to 3; reiterating and reaffirming the case as set up by the plaintiffs in the plaint.
8. From the pleadings of the parties, vide order dated 07.05.2001, following CS No. : 93590/16 (old No. : 97/16) Pg 14 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
issues were framed for trial:
1. Whether the suit of the plaintiff is maintainable in its present form? OPP
2. Whether plaintiff is entitled to a decree of permanent injunction, as prayed for? OPP
3. Whether plaintiff is entitled to a decree of mandatory injunction, as prayed for? OPP
4. Relief.
9. In order to prove his case, plaintiffs examined PW1 Sh. D.S. Mittal. He was examinedinchief. He relied upon the following documents:
1. Ex.PW1/1 Will written by Testator (objected to by counsel for the defendant as to the mode of proof).
2. Ex.PW1/2 last wish (objected to by the counsel for defendant).
10. Plaintiffs have also examined PW2 Sh. R.B. Verma. He was examinedin chief. He had not relied on any documents.
11. Plaintiffs have also examined PW3 Mrs. Veena Singh, who tendered her evidence by way of affidavit Ex.PW3/A. She relied upon the following documents: CS No. : 93590/16 (old No. : 97/16) Pg 15 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
1. Ex.PW3/1 (OSR) photocopy of death certificate of Late Sh. S.S. Tomar issued by G.T.B. Hospital.
2. Ex.PW3/2 (OSR) photocopy of ration card.
3. Ex.PW3/3 is deexhibited being not on record.
4. Ex.PW3/4 (OSR) photocopy of receipt for purchase of wood.
5. Ex.PW3/5 (OSR) photocopy of receipt issued by G.T.B.
6. Ex.PW3/6 (OSR) photocopy of attendant card issued by G.T.B.
7. Ex.PW3/7 (OSR) photocopy of discharge slip issued by G.T.B. Hospital.
8. Ex.PW3/8 (OSR) photocopy of obituary card.
9. Ex.PW3/9 (OSR) photocopy of receipt of Bhandara.
10. MarkA photocopy of photograph.
11. MarkB photocopy of letter dated 23.02.2000.
12. MarkC photocopy of death certificate issued by MCD (though not mentioned in the affidavit).
12. Plaintiffs have also examined PW4 Sh. Arjun Singh, who tendered his evidence by way of affidavit Ex.PW4/A. He had not relied on any documents.
13. Plaintiffs have also examined summoned witness PW5 Sh. Bhupesh Saini, CS No. : 93590/16 (old No. : 97/16) Pg 16 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
Advocate. Vide order dated 27.11.2001, he was appointed a Local Commissioner to record the evidence of Sh. D.S. Mittal and Sh. R.B. Verma. As per the orders of the court, I visited at A3/74, Paschim Vihar, New Delhi for execution of commission. On 22.12.2001, the recording of witnesses started at about 11:15 AM and continued till 04:30 PM. His report of two pages is Ex.PW5/1 and it bears his signature at point X. He recorded the statement of both the witnesses in his handwriting running into 26 pages Ex.PW5/2 (Colly.), each page bears the signature of himself as well as counsel for plaintiff and defendant on its back side. His signature on the back side of each page is at point X.
14. On the other hand, defendants have also examined DW1 Sh. Bikram Tomar, who tendered his evidence by way of affidavit Ex.DW1/A. He relied upon the following documents:
1. Ex.DW1/1 (OSR) copy of Will dated 15.11.1999.
2. Ex.DW1/2 (OSR) copy of Will dated 20.07.1999.
3. Ex.DW1/3 (OSR) copy of ration card.
4. Ex.DW1/4 copy of property tax receipt for the year 200809.
5. Ex.DW1/5 copy of electricity ebill dated 29.07.2017.
CS No. : 93590/16 (old No. : 97/16) Pg 17 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
6. Ex.DW1/6 (OSR) copy of telephone bill dated 09.08.2015.
15. I have heard the arguments and perused the record. Issue wise findings as follow:
16. Issue No.1 has already been decided vide order dated 04.10.2016. ISSUES NO. 2 & 3
Whether plaintiff is entitled to a decree of permanent injunction, as prayed for? OPP Whether plaintiff is entitled to a decree of mandatory injunction, as prayed for? OPP
17. Both these issues are taken up together. The burden of proving these issues was on the plaintiff. The relief of mandatory injunction sought by the plaintiff is based on the alleged ownership claimed by the plaintiff No.1 on the basis of Will exhibited by Late Sh. S.S. Tomar in favour of plaintiff No.1. To prove the alleged Will Ex.PW1/1 plaintiff had examined two attesting witnesses Sh. D.S. Mittal as PW1 and Sh. R.B. Verma as PW2. It pertinent to point out that these witnesses i.e. PW1 and PW2 had not deposed only in the capacity of attesting witnesses. In their examinationin chief itself, they had deposed at length about number of other issues/aspects as well.
CS No. : 93590/16 (old No. : 97/16) Pg 18 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
18. PW1 in his examinationinchief had stated that he and Sh. S.S. Tomar were working in the same department. The Will as executed on 25.12.1999 was executed at the residence of Sh. S.S. Tomar at S187, Venus Apartment, Sector9, Rohini, Delhi. At the time of execution of said Will, Mr. R.B. Verma, Mrs. Veena and Mrs. Kamlesh Tomar were present apart from PW1 himself. The testator at the time of execution of the Will had stated that he had strained relations with his only son Sh. Bikram. PW1 had stated that Sh. S.S. Tomar had wrote the Will himself which is Ex.PW1/1. Sh. S.S. Tomar, the testator put his signatures on the said Will on 25.12.1999 at point A in the said Will. PW1 had stated that he had signed the said Will Ex.PW1/1 at point B and Sh. R.B. Verma signed the Will in his presence at point C.
19. PW1 in his crossexamination has stated that Late Sh. S.S. Tomar had cordial relations with his wife and his daughter Ms. Veena, however, he had strained relations with his son Sh. Bikram Tomar. PW1 has stated that Late Sh. S.S. Tomar had once told him about his relation with his family. PW1 had stated that Late Sh. S.S. Tomar told him that his relationship with his son got strained before the marriage of his son Sh. Bikram Tomar, on his disobedience on certain matters like purchase of motorcycle. PW1 had CS No. : 93590/16 (old No. : 97/16) Pg 19 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
stated that he does not remember exactly from when he was suffering from lung cancer exactly, may be before two years of his death. PW1 had stated that Sh. S.S. Tomar was very week for last two years before his death. However, PW1 had stated that he did not find that Sh. S.S. Tomar had become fickle minded.
20. PW2 is Sh. R.B. Verma, who is also one of the attesting witness to the Will had stated in his examinationinchief that Will exhibited as Ex.PW1/1 was written/executed by Sh. S.S. Tomar on 25.12.1999. At the time of execution of Will, Sh. S.S. Tomar, Sh. D.S. Mittal, Mrs. Kamlesh Tomar and Mrs. Veena Singh and he himself was present. PW2 had pointed out that signature of testator is at point A and his own signature is at point C. PW2 had stated that at the time of execution of Will dated 25.12.1999, Mr. S.S. Tomar was in his full senses.
21. In his crossexamination, PW2 had stated that Sh. S.S. Tomar had told him about the differences of opinion about the marriage of his son Sh. Bikram Tomar. PW2 had stated that there was no other issue between Sh. S.S. Tomar and his son. Sh. S.S. Tomar loved his son very much but issue of marriage of his son became important as his son was in love with some girl since long and wanted to marry her. PW2 had stated that for around 1.52 CS No. : 93590/16 (old No. : 97/16) Pg 20 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
years before his death, Sh. S.S. Tomar had been seriously ill. He was suffering from lung cancer but mentally he was perfectly sound.
22. PW3 is Mrs. Veena Singh, who is also plaintiff No.2 in the present case. In her affidavit of examinationinchief, PW3 had reiterated and affirmed all the contents of plaint. In her crossexamination, PW3 had stated that her father was admitted in hospital on 10.01.2000. At the relevant time, when her father was admitted in hospital, he was in serious position, even he could not sleep without oxygen. PW3 had stated that the Will Ex.PW1/1 was not written in her presence and she had received the said Will from her mother after the death of her father. PW3 had stated that she used to attend her father and she had received dead body of her father from hospital GTB. PW3 had admitted it to be correct that her name and signatures are not mentioned in any of the documents issued by GTB Hospital. PW3 had stated that her name and signatures are not mentioned in any of the documents issued by GTB Hospital as it is not required to be mentioned on a documents issued by the GTB Hospital. PW3 had stated that she and her son i.e. plaintiff No.1 have not filed any probate case against the Will in question nor they have approached to any of the authorities such as DDA, MCD or Sub Registrar etc. for mutation of the suit CS No. : 93590/16 (old No. : 97/16) Pg 21 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
property in her name or in the name of her son. PW3 had admitted it to be correct that she had never sent any legal notice to her mother, brother or sister. PW3 had stated that she does not know in whose name the electricity connection and telephone connection in the suit property are. PW3 had stated that dues of the said property like house tax and other charges has been paid by her mother. PW3 had admitted it to be correct that she had never paid any dues of the suit property at any point of time. PW3 had stated that her mother is residing in the suit property since the date of its purchase. In an answer to a question regarding the capacity of mother residing in suit property, PW3 had stated that her mother is residing in the suit property since she is the wife of her father.
23. PW4 is Sh. Arjun Singh, who is plaintiff No.1. Evidence of PW4 can not be read and relied as PW4 had admitted in his crossexamination that all the facts and circumstances of the present case have been told to him by his mother and present case is also filed by his mother because at that time he was minor. PW4 had stated that he does not have any/much personal knowledge about the facts of case because at that time he was minor.
24. To rebut the case of plaintiff, defendant has examined DW1 Sh. Bikram Tomar who is also defendant No.2 in the present case. In his affidavit of CS No. : 93590/16 (old No. : 97/16) Pg 22 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
examinationinchief, DW1 has reiterated and reaffirmed the contents of written statement. DW1 in his crossexamination had stated that at the time of birth of his child, his address given by him was 101, Samvad Apartments, Sector Alpha I, Greater Noida. The same address was given in the school record earlier because thereafter he changed his address. DW1 had stated that his father was graduate and he was working in Punjab National Bank and retired as Chief Manager around 1994. DW1 had stated that his father was taking decision with the advise of family member. DW1 had stated that as per his knowledge, his father executed three Wills. One Will was executed on 20.07.1999, second Will was executed on 15.11.1999 and third Will was executed on 25.12.1999. DW1 had stated that he can not tell the exact date but the Will dated 25.12.1999 along with other papers were handed over to her sister Mrs. Veena Singh after few days of cremation of his father. The said documents and Will were handed over in his presence. DW1 had stated that he has driving licence in his name as well as RC of vehicle in the name of his wife with the address as 187, Venus Apartment, Plot No.43, Sector - 9, Rohini, Delhi, where he used to reside with his father.
25. After considering the pleadings, evidence and arguments advanced by the CS No. : 93590/16 (old No. : 97/16) Pg 23 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
counsel for parties, it becomes clear that the present case filed by the plaintiff is totally dependent on the validity of Will executed by Late Sh. S.S. Tomar in favour of Sh. Arjun Singh dated 25.12.1999. To prove the present Will, the plaintiff has examined Sh. D.S. Mittal and Sh. R.B. Verma as attesting witnesses who had deposed the fact of execution of the Will in question in their presence by Late Sh. S.S. Tomar. In fact, the fact of execution of Will had not been disputed on behalf of defendants.
26. The main contention on behalf of defendant challenging the ownership of Sh. Arjun Singh by way of Will executed by Late Sh. S.S. Tomar in his favour was that said Will had been executed by Late Sh. S.S. Tomar under due influence of plaintiff No.2 i.e. mother of plaintiff No.1 Sh. Arjun Tomar. The counsel for defendant had pointed out that Will in itself is unnatural as testator had excluded his wife who was totally dependent on testator and also his real son. The testator had no dispute of any sort with his wife and with his son also there can not be said to have any material dispute of Late Sh. S.S. Tomar. Whatever was there between testator and his son i.e. defendant No.2 was merely a general wear tear in life. PW1 and PW2 had been inconsistent in their version as to what was told to them by Late Sh. S.S. Tomar about his dispute with his son i.e. defendant No.2. Apart from it, CS No. : 93590/16 (old No. : 97/16) Pg 24 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
the counsel for defendant has submitted that testator had executed the Will in question just almost one month before his death when he was suffering from last stage of lung cancer and had ultimately expired due to lung cancer, when the mental state of the testator can not be said to be proper for the purposes of executing this Will, which can be inferred from the fact that testator was suffering from acute lung cancer. The counsel for defendant had also pointed out the fact that testator had executed three Wills including the disputed one within one year before his death, also points out that testator was not in his proper mental state for the purposes of execution of this Will. Apart from the mental status of testator, the counsel for defendant had also pointed out that both the attesting witnesses to the Will had pointed out that plaintiff No.2 Smt. Veena Singh was present at the time of execution of this Will, however, Smt. Veena Singh herself had denied her presence at the time of execution of Will in his plaint, affidavit of examinationinchief as well as in crossexamination. This inconsistency points out that Smt. Veena Singh had something to conceal which in itself makes the Will suspicious.
27. The Hon'ble Delhi High Court in case titled as Nirmala Handa v. Krishna Kaura (Now Deceased) through her LRs and Anr. 2015 (217) DLT 140 had CS No. : 93590/16 (old No. : 97/16) Pg 25 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
held that: It is trite law that propoundor has to prove that Will has been validly executed and is a genuine document. Propoundor is required to prove that testator had signed the Will of his own free Will in a sound disposing mind after understanding the nature and effect thereof. Testator has signed the Will in presence of the witnesses. Will has been attested by at least by two attesting witnesses in presence of the testator, inasmuch as had seen the testator signing or affixing his mark on the Will.
28. The court is of view that as per the rules of Evidence Act and also Indian Succession Act, the Will is proved when attesting witnesses deposes about the execution of Will in question by testator and its attestation by the attesting witnesses and when there is no surrounding circumstances showing that propounder had exercised undue influence on the testator for execution of Will. Apart from it, it is also required to be proved that testator was in fit mental state for the purposes of proving the Will. In the present case, the fact of execution of Will Ex.PW1/1 by Late Sh. S.S. Tomar and its attestation by PW1 and PW2 had been duly proved by the attesting witnesses PW1 and PW2. In fact, no objection has been raised from the side of defendant as far as execution of Will is concerned. With respect to the mental capacity of Late Sh. S.S. Tomar, PW2 had clearly stated in his CS No. : 93590/16 (old No. : 97/16) Pg 26 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
crossexamination that mentally he (Late Sh. S.S. Tomar) was perfectly sound at the time of execution of the Will Ex.PW1/1. PW1 had also deposed in this behalf that he did not find that he (Late Sh. S.S. Tomar) had become fickle minded at the time of execution of Will. PW1 had also said it to be incorrect that Will dated 25.12.1999 i.e. Ex.PW1/1 had been got executed by exerting pressure by Sh. J. Singh and Smt. Veena Singh. The fact that Late Sh. S.S. Tomar had executed three Wills within a year just before his death can not be a ground for assuming that he was not in a fit mental state to execute the Will Ex.PW1/1. Even otherwise, defendant had not brought any specific proof for the purposes of showing that Late Sh. S.S. Tomar was not in fit mental state to execute the Will Ex.PW1/1.
29. As far as the execution of Will Ex.PW1/1 by exerting undue influence on Late Sh. S.S. Tomar is concerned, the arguments advanced on behalf of defendants that it is unnatural that Late Sh. S.S. Tomar had excluded his wife and his real son and another real daughter from his property or that Will had been executed in a very short time before his death or that he had executed a Will in favour of his unborn grandson are totally irrelevant. With respect to the arguments advanced on behalf of defendants regarding the inconsistency in the version of PW1 and PW2 on the one hand and CS No. : 93590/16 (old No. : 97/16) Pg 27 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
plaintiff No.2 on the other hand with respect to the presence of plaintiff No.2 at the time when the Will was executed, it is pertinent to point out that DW1 had himself admitted in his crossexamination that his mother i.e. defendant No.1 had handed over this Will from her possession to the plaintiff No.2 after few days of cremation of his father. Apart from it, there had been no dispute from the side of defendant with respect to the cremation of Late Sh. S.S. Tomar by plaintiff No.1. Photographs on court record also supports that last rites of Late Sh. S.S. Tomar had been performed by plaintiff No.1. These two facts together, makes irrelevant every proposition from which an inference could have been suggested that Will was suspicious or had been executed by exerting undue influence by Sh. J. Singh and Smt. Veena Singh on Late Sh. S.S. Tomar or Will had been forged or fabricated by plaintiffs. On the basis of abovesaid discussion, it can be concluded with certainty that Will Ex.PW1/1 had been duly proved by the plaintiffs by way of which plaintiff has become the owner of suit property.
30. It had been further argued on behalf of counsel for defendant that even if it is assumed, the Will is proper, the plaintiff had not sought any relief of eviction against defendants No.2 and 3 and also that the plaintiff had not served any notice of termination of alleged licence of defendant No.1 and CS No. : 93590/16 (old No. : 97/16) Pg 28 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
asking her to vacate the suit premises. It is further argued by counsel for defendants that nowhere in pleadings, plaintiff had alleged the fact of giving notice to the defendants terminating the licence of defendants and in her crossexamination, PW3/plaintiff No.2 herself admitted that she had not served any legal notice till date on the defendants.
31. From the perusal of pleadings, it becomes clear that the plaintiff had filed the suit originally against defendant No.1 only and the gist of pleading of plaintiff was that defendant No.1 had been residing in the capacity of licencee of Late Sh. S.S. Tomar before his death and after his death, when plaintiff No.1 had become owner by virtue of Will Ex.PW1/1, the defendant No.1 had become licencee of the plaintiff No.1. It is also the case of plaintiffs that Late Sh. S.S. Tomar was not happy with defendant No.2 and defendant No.2 was residing separately. It is only during the pendency of suit, defendants No.2 and 3 had been added as defendants in the array of parties as defendants No.2 and 3. Accordingly, nothing improper had been found in not claiming any relief against defendants No.2 and 3 who were not alleged to have been residing in the suit property along with defendant No.1 from the lifetime of Late S.S. Tomar. It was only defendant No.1, who had been earlier licensee of Late Sh. S.S. Tomar and now of plaintiff No.1.
CS No. : 93590/16 (old No. : 97/16) Pg 29 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
32. With regard to the contention of the counsel for defendants that no notice had been served to the defendants for termination of license, it has to be pointed out that there has been catena of case law whereby it has been explained by Hon'ble Apex Court as well as Hon'ble High Court of Delhi that in case of lease/license, even if notice under Section 106 Transfer of Property Act had not been formally served by the landlord/licensor on the tenant/licensee, it does not vitiate the cause of action which is there otherwise in favour of landlord/licensor as valid service of summons of the suit, in itself operates as notice of termination of lease/license.
33. Hon'ble High Court of Delhi in case of Nanak Ram Jaisinghani v. Tilak Rah Salooja & Ors. 208 (2014) DLT 193 dated 20.01.2014 has relied upon on its earlier decision in case of M/s Jeevan Diesels & Electricals Ltd. v. M/s Jasbir Singh Chadha (HUF) & Anr. dated 25.03.2011 in RFA 179/2011, wherein it was held by the Hon'ble Delhi High Court that service of the summons in a suit, with a copy of the notice terminating the tenancy itself is a notice under Section 106 of the Transfer of Property Act.
34. In view of above said discussion, it can be concluded that plaintiff had been able to prove the execution of Will Ex.PW1/1 in favour of plaintiff No.1 by CS No. : 93590/16 (old No. : 97/16) Pg 30 of 32 Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
Late Sh. S.S. Tomar and also the fact that defendants are residing in the permissive capacity in the suit property. The license of defendants to reside in the suit property had been terminated by the plaintiffs at least from the date when the defendants got the summons and notice of institution of present suit. In view of these facts, the plaintiff is entitled to the relief of permanent as well as mandatory injunction; and defendant No.1 is hereby restrained from passing on/transfer of the possession of property bearing No.S187, Venus Apartment, Plot No.43, Sector - 9 , Rohini, Delhi in favour of any person including defendants No.2 and 3 and defendant No.1 is further restrained from allowing anybody to stay in the premises without written permission from plaintiff No.1 in this regard; and defendant No.1 is further directed to handover the possession of suit premises bearing No.S 187, Venus Apartment, Plot No.43, Sector - 9, Rohini, Delhi to plaintiff No.1 and to vacate the premises mentioned above and to remove the household and movable articles from the abovesaid property.
Accordingly, both the issues are decided in favour of plaintiff.
RELIEF
CS No. : 93590/16 (old No. : 97/16) Pg 31 of 32
Arjun Singh & Anr. v. Kamlesh Tomar & Ors.
35. The present suit is hereby decreed in favour of plaintiff No.1 and plaintiff No.1 is entitled to the relief of permanent as well as mandatory injunction; and defendant No.1 is hereby restrained from passing on/transfer of the possession of property bearing No.S187, Venus Apartment, Plot No.43, Sector - 9 , Rohini, Delhi in favour of any person including defendants No.2 and 3 and defendant No.1 is further restrained from allowing anybody to stay in the premises without written permission from plaintiff No.1 in this regard and defendant No.1 is further directed to handover the possession of suit premises bearing No.S187, Venus Apartment, Plot No.43, Sector - 9 , Rohini, Delhi to plaintiff No.1 and to vacate the premises mentioned above and remove the household and movable articles from the abovesaid property.
Decree sheet be prepared accordingly.
Digitally signedby MAYANK
File be consigned to Record Room. MAYANK MITTAL
MITTAL Date:
2018.07.19
16:37:22 +0530
Announced in the open court (MAYANK MITTAL)
on 18.07.2018 Civil Judge - 08 (Central)/Delhi
CS No. : 93590/16 (old No. : 97/16) Pg 32 of 32