Delhi District Court
Smt. Urmila Devi W/O Sh. Puran Chand vs Smt. Kala Wati W/O Late Sh. Kali Charan on 5 May, 2011
IN THE COURT OF SH. SAURABH KULSHRESHTHA:
CCJ:ARC (EAST):KARKARDOOMA COURTS: DELHI
Civil Suit no: 257/10
ID No:02402C0486092004
Smt. Urmila Devi W/o Sh. Puran Chand
R/o T-208, Gali no.1, Gautampuri, Seelampur,
Delhi-110053.
... Plaintiff
Versus
1. Smt. Kala Wati W/o Late Sh. Kali Charan
R/o Village Chhonda PO Kanera, (Udhatgarh)
Distt.Bhind, M.P.
2. Sh. Puran Chand S/o Sh. Kali Charan,
R/o Village Chhonda PO Kanera, (Udhatgarh)
Distt. Bhind, M.P.
3. Sh. Ram Prakash Ojha S/o Sh. Ram Kishan Ojha
R/o T-209, Gali no.1, Gautampuri, Seelampur,
Delhi-110053.
....Defendants
Suit for declaration and permanent and mandatory injunction.
Date of institution of the Suit : 07.04.2001
Date on which judgment was reserved : 15.04.2011
Date of decision : 05.05.2011
Decision : Suit Dismissed
JUDGMENT:-
Page No: 1/31
1. This is a suit for Declaration and Permanent and Mandatory Injunction filed by the plaintiff. The defendant nos. 1 and 2 are the mother in law and husband of the plaintiff respectively. The defendant no. 3 is the brother of the father in law of the plaintiff.
2. Vide order dated 08.02.2005 suit no. 753/ 2007 (26/04) titled as Kalawati v. Urmila Devi and suit no. 279/2010 (41/04) titled as Ram Prakash Ojha vs. Urmila Devi were consolidated with this suit and this case was ordered to be treated as the leading/ main case and evidence was recorded in the present case.
3. The facts of the case as discernible from the pleadings of the parties are that Sh. Kali Charan and Sh. Ram Prakash Ojha (defendant no. 3) were brothers. Sh. Kali Charan and Sh. Ram Prakash Ojha (defendant no.
3) jointly purchased two properties - one T-208, Gali No. 1, Gautam Puri, Delhi measuring 200 Sq. Yds and T-209, Gali No. 1, Gautam Puri, Delhi measuring 150 Sq. Yds. out of joint funds. Sh. Kali Charan occupied property bearing no. T-208 and Sh.Ram Prakash Ojha started residing in property bearing no. T-209. However there was no formal partition between Page No: 2/31 the two brothers.
4. The dispute in the present suit primarily pertains to the persons claiming through Sh. Kali Charan who has expired. Kalawati who is the defendant no.1 is the wife of Late Sh. Kali Charan. Sh. Puran Chand who is the defendant no.2 is the son of Sh. Kali Charan and the husband of the plaintiff Urmila Devi.
5. The version of the plaintiff Mrs. Urmila Devi is that she was residing alongwith Sh. Kali Charan (her father-in-law) in the property no. T-208 from during the life time of Sh. Kali Charan and Sh. Puran Chand and Smt. Kalawati were residing separately from Late Sh. Kali Charan at their native village at M.P. Smt. Urmila Devi further pleaded that her husband Sh. Puran Chand was not on visiting terms with his father and his relations with his father Sh. Kali Charan were not cordial as there was a dispute between Sh. Kali Charan and his wife Smt. Kalawati and Smt. Kalawati also never visited Sh. Kali Charan at Delhi at property no. T-208.
6. It is further the case of the plaintiff Urmila Devi that by a set of title documents viz. General Power of Attorney, Agreement to Sell, Page No: 3/31 Affidavit, receipt all dated 07.01.1991 she had purchased property no. T-208, Gali no. 1, Gautam Puri, Seelampur, Delhi from Sh. Kali Charan for a sale consideration of Rs.45,000/-. The plaintiff has further contended that Sh. Kali Charan was the absolute owner of the property no. T-208, Gali no. 1, Gautam Puri, Seelampur, Delhi. She further pleaded that the original documents have been misplaced and she had lodged a report with Police station Seelam Pur in this respect. Se further pleaded that Sh. Kali Charan expired on 01.01.1998.
7. The plaintiff Mrs. Urmila Devi has further pleaded that another suit no.151/98 was filed by Sh. Ram Prakash Ojha against Urmila Devi and others and the said suit was disposed of as compromised by Sh. B.S. Chumbak, the then Ld. Civil Judge, vide order dated 25.10.1999. In the said suit the plaintiff Urmila Devi had been proceeded ex-parte. The compromise was arrived at between Sh. Ram Prakash Ojha, Puran Chand and Urmila Devi in the said suit on the basis of a purported family settlement arrived between Sh. Ram Prakash Ojha, Smt. Kalawati and Sh. Puran Chand.
8. Under the said family settlement dated 23.10.99 it was averred Page No: 4/31 that Sh. Ram Prakash Ojha and Sh. Kali Charan were owners to the extent of 50% each in the two properties -208 and 209. Sh. Ram Prakash Ojha was declared as absolute owner of property no. T-209 measuring 150 sq. yards and an additional area of 25 sq. yards carved out from property no. T-208 was also merged into the property no. T-209 of Sh. Ram Prakash Ojha. The remaining 175 square yards of the property bearing no. T-208 were taken by Smt. Kalawati and Sh. Puran Chand. Thus two plots of equal area of 175 sq. yards were created under the family settlement and Sh. Ram Prakash Ojha became the sole owner of property no.T-209 and the legal heirs of Sh. Kali Charan became the owners of property no.T-208.
9. The defendants claim that the said family settlement is legal and binding. As against this the plaintiff Mrs. Urmila Devi claims that the said family settlement was illegal, null and void and not binding upon her. She further averred that she came to know of the said family settlement afterwards when she obtained certified copies of the court records of suit no. 151/98. The plaintiff has also pleaded that on the intervening night of 12th and 13th January 2001 the common wall originally existing between the two properties was demolished by the defendants.
Page No: 5/31
10. The plaintiff Urmila Devi has prayed for a decree of declaration that the alleged family settlement dated 23.10.99 arrived at between Sh. Ram Prakash Ojha on the one hand and Sh. Puran Chand and Kalawati on the other hand be declared as null and void. The plaintiff Urmila Devi has further prayed for a declaration that she is the sole and absolute owner of the property no. T-208, Gali No. 1, Gautam Puri, Delhi measuring 200 sq. yards and is in possession thereof having purchased the same from Late Sh. Kali Charan. The plaintiff has further claimed a Permanent Injunction restraining the defendants from dispossessing her from the property bearing no. T-208, Gali No. 1, Gautam Puri, Delhi and a decree of mandatory injunction directing the defendant no. 3 Sh. Ram Prakash Ojha to reconstruct the original common wall between the two properties as it initially stood at his own cost.
11. The defendants have filed their written statements. The defendants have contended that Late Sh. Kali Charan and Sh. Ram Prakash Ojha were owners to the extent of 50% each in both the properties. The defendants further stated that the family settlement was rightly arrived at between Sh. Ram Prakash Ojha on one hand and the legal heirs Sh. Kali Charan on the other hand. They further contended that the said family Page No: 6/31 settlement also stood ratified by the daughter of Late Sh. Kali Charan namely Smt. Meera. They further contended that under the family settlement Sh. Ram Prakash Ojha became the absolute owner of property no.T-209 measuring 150 sq. yards and an additional area of 25 square tyards was carved out from property no. T-208 merged into property no. T-209 and Sh. Ram Prakash Ojha is therefore the owner of an area of 175 Sq. yds. The legal heirs of Sh. Kali Charan became the owners of the remaining 175 sq. yards area of property no.T-208.
12. The defendants have further contended there was originally a common wall with a height of 2 ½ ft. between the two properties and the same was demolished so that the common open area could be used bythe occupants of both the properties. However after the family settlement a new partition wall was raised dividing both the properties in a 175 sq. yards each was constructed. However the said new partition wall was demolished by the plaintiff Mrs. Urmila Devi.
13. The defendants further contended that the property no. T-208, Gali No. 1, Gautam Puri, Delhi was never sold by Sh. Kali Charan to the plaintiff Mrs. Urmila Devi. They further contended that Sh. Rameshwar Page No: 7/31 Gupta has unauthorizedly been inducted in to a portion of property no. T-208 by Smt. Urmila Devi. They have further contended that the Plaintiff Smt. Urmila Devi and her children and Sh. Rameshwar Gupta have no right, title or interest in the property no. T-208 and have no right to remain in possession of the same. The defendant nos. 1 and 2 have claimed Partition of the property no. T-208, Gali No. 1, Gautam Puri, Delhi into three shares
- one of Smt. Kalawati, one of Sh. Puran Chand and one of the Smt. Meera (daughter of Sh. Kali Charan). The defendants prayed for dismissal of the suit.
14. Plaintiff filed replication to the written statements of the defendants and denied the averments of the written statements and simultaneously reiterated and reaffirmed the contents of the plaint.
15. Vide order dated 27.08.2004, the following issues were framed in this case:
1. Whether the suit of the plaintiff is not maintainable in view of the preliminary objection no.1 to the written statement of defendant no.1 & 2? (OPD)
2. Whether the plaintiff is entitled for the declaration as she prayed for? (OPP)
3. Whether the plaintiff is entitled for relief of permanent injunction as she prayed for? (OPP) Page No: 8/31
4. Whether the plaintiff is entitled for relief of mandatory injunction as she prayed for? (OPP)
5. Relief.
16. In order to establish its case the Plaintiff Urmila Devi exam- ined five witnesses. Plaintiff Urmila Devi examined herself as PW-1 and de- posed on the lines of her pleadings. The plaintiff further examined Sh. Ram ji Lal as PW-2 who was the purported attesting witness of the sale docu- ments allegedly executed by Late Sh. Kali Charan in favour of Mrs. Urmila Devi in respect of property no. T-208, Gali No. 1, Gautam Puri, Delhi. The plaintiff examined her son Sh. Sanjay Sharma as PW-3 who corroborated the version of the plaintiff. PW-4, Sh. Narain Singh, UDC with MCD pro- duced the assessment order dated 21.05.01 in respect of property no. T-208, Gali No. 1, Gautam Puri, Delhi. PW-5 Sh. Madhav Ram Sharma, deposed that he was a tenant of Ms. Urmila Devi in a portion of property no. T-208, Gali No. 1, Gautam Puri, Delhi.
17. On the other hand the defendants examined defendant no. 2 Puran Chand as DW-1 who deposed on the lines of his pleadings. Defendant no.3 Ram Prakash Ojha also examined himself as DW3/1. He also exam- ined two witnesses namely Sh. Rameshwar Dayal Sharma as DW-3/2 and Page No: 9/31 Suresh Chand as DW-3/3 who corroborated the version of the defendant no. 3 Sh. Ram Prakash Ojha.
18. I have heard the Ld. Counsel for the parties and have given due consideration to the rival contentions and carefully perused the record. My issue-wise findings are as follows:
Issue no. 1 and 2:
19. The question to be answered is as to whether the plaintiff is entitled for a declaration as prayed for and as to whether the suit of the plaintiff is not maintainable. In order to seek the declaration prayed for the plaintiff must establish her title in respect of the property bearing no. T-208, Gautam Puri, Seelam Pur, Delhi.
20. Let us first of all examine as to who were the owners in respect of the properties bearing nos.T-208 and T-209. PW-1 has deposed that late Kali Charan was the owner of property no.T-208 and he was residing in the said property. PW-1 further deposed that the entire property no. T-208 measuring 200 sq yds was owned by Late Sh. Kali Charan and Page No: 10/31 Sh. Ram Prakash Ojha was the owner of property no. T-209 measuring 150 sq. yds. However PW-1 could not support her contention with documentary evidence.
21. As against this the defendant no.2 Sh. Puran Chand examined himself as DW-1. He deposed that Sh. Kali Charan and Sh. Ram Prakash Ojha defendant no. 3 had jointly purchased property no. T-209, measuring 150 sq. yards by way of a duly registered sale deed dated 19.04.1971. DW 3/1 Ram Prakash Ojha has also unequivocally deposed in this respect. The original registered sale deed is Ex. DW3/1/1. DW 1 further deposed that Sh. Kali Charan and Sh.Ram Prakash Ojha had also jointly purchased property no.T-208, measuring 200 sq. yds. by way of agreement to sell, GPA, receipt etc. dated 01.01.1980 and jointly paid the entire consideration. DW 3/1 Ram Prakash Ojha has also unequivocally deposed in this respect. Certified copy of the registered receipt is Ex. DW-1/2. The receipt shows that the consideration amount was paid by both Sh. Kali Charan and Sh. Ram Prakash Ojha. Copies of the GPA and agreement to sell are Mark A and Mark B. Counsel for the plaintiff could not elicit anything substantial in the cross examination of DW-1 and DW3/1 so as to discredit their testimonies on this point.
Page No: 11/31
22. Thus, there is clear documentary evidence on record to the effect that Sh. Kali Charan and Sh.Ram Prakash Ojha were joint owners of the property no.T-208 and T-209. Nothing contrary could be established by the plaintiff and the plaintiff also could not adduce any cogent and viable evidence to show that Sh. Kali Charan was the sole owner of property no.T-208. No documentary evidence was adduced by the plaintiff in this respect and her contention that Sh. Kali Charan was the sole owner of property no. T-208 is merely a bald averment totally unsupported by any viable evidence whatsoever.
23. On the basis of the material on record I therefore hold that Sh.Ram Prakash Ojha and Sh. Kali Charan were owners of one half share each in property no. T-208 and one half share each in property no.T-209.
24. As far as the property no. T-209 measuring 150 sq. yds. is concerned, there is no dispute between the parties. Sh. Ram Prakash Ojha is in possession of property no. T-209. The dispute is with respect to the property no. T-208. The dispute is primarily between the legal heirs of Sh. Kali Charan on one hand and the plaintiff Mrs. Urmila Devi on the other Page No: 12/31 hand.
25. The plaintiff Urmila Devi claims that she has purchased property no. T-208 from Sh. Kali Charan by way of a set of title documents i.e. agreement to sell, GPA, receipt etc. all dated 07.01.1991. PW-1 deposed in this respect in her testimony. PW 3 son of PW 1 also deposed in this respect. PW-2 Ramji Lal is the purported attesting witness to the said documents. He has also deposed that on 07.01.1991 Sh. Kali Charan had transferred the property no. T-208 for valuable consideration to Smt. Urmila Devi and executed General Power of attorney, Agreement to Sell, Receipt etc, which were duly notorised.
26. The prime question to be answered is as to whether plaintiff Urmila Devi has established that she has become the owner of property no. T-208 by virtue of these documents.
27. PW-1 was cross examined by the counsel for the defendant. She stated in her cross examination:
" ... ...I do not remember what all papers were prepared at the time of al - leged purchase of property bearing no. T-208 by me. I had also signed on Page No: 13/31 the sale deed (registry) at the time of purchase of this property. The Papers were prepared in Shahdara court. I do not know from where the stamp paper was purchase or by whom it was purchased (Vol.) whatever was done, was done by my father in law Kalicharan. I do not know from where the docu- ments of purchase were got attested but I was present there. I do not know anything about these documents because everything was done by my father- in-law. I had informed the authorities including house tax deptt. regarding the purchase of property T-208 by me...."
28. She further stated in her cross examination:
" ....The papers which were prepared regarding purchase of property by me i.e. T-208 were lost about 5/6 years back. Those papers were lying at my house in almirah. I had the complete original set with me. I had also got prepared the photocopy of original set. One photocopy of original set was lying with original set and one copy of the set was lying in a different box with me. The almirah and box had no lock. I did not obtain the certified copy of the said documents. I have certified copy of the said registry. I do not have the certified copy with me, it might be with my counsel. I had giv- en it when I filed the case. The registry is with my husband and the same thing was told to me by my husband when I asked him for the registry. I had told this fact to my counsel. It is wrong to suggest that I never pur- chased the property bearing no. T-208 from my father-in-law. It is further wrong to suggest that I never lost any original papers. It is further wrong to suggest that the photocopies mark-A (Colly) are false and fabricated in or- der to raise a false claim in the property bearing No. T-208... .."
Page No: 14/31
29. PW-2 is the attesting witness to the said documents. He stated in his cross examination :
" ... ... .Kalicharan had sold the property in possession of the plaintiff to her in the year 1986 for a sum of Rs.45,000/-. I do not remember the date and month of the alleged sale by Kalicharan. I had signed as a witness at 3-4 places on the documents which were prepared relating to sale transaction. The documents were got registered in Seelampur. No photographs were affixed on the papers. It is correct that no money was handed over in my presence in respect of the alleged sale. I do not know what documents were prepared regarding the alleged sale. I cannot tell the name of the person who had typed the documents but it were typed in my presence. The plaintiff was also present at that time when documents were prepared. Plaintiff had not signed the documents in my presence and I cannot say if she had signed later on. At that time only myself and Radhey Shyam had signed those documents. I have seen the said documents only once 6 months after is execution. The documents were got stolen 2 years after its date of execution when the plaintiff had gone to attend the marriage at Porsa. The plaintiff had told me about this theft. I had no personal knowledge of this fact. Plaintiff had told me that the documents were stolen from the three wheeler, the entire trunk was stolen from three wheeler. I had seen the photocopy of the documents after the incident of theft but I cannot tell date, year and month but it was two years after the incident of theft. I had seen the photocopies with the plaintiff. I had seen the photocopies two years ago also with the plaintiff. I have not seen the photocopies of the said documents in the last two years till date. I had seen photocopies of all the papers numbering 5/6. It is wrong to suggest that defendant no.2 used to Page No: 15/31 reside in this property with the plaintiff...."
30. The cross examination of PW-1 and PW-2 shows that they were not aware as to exactly what documents were prepared. PW-1 stated that one sale deed (registry) was also prepared and it was registered and she has not obtained any certified copy of the same. However, the pleadings do not show that any sale deed was executed nor do the copies of the documents on the record show that any sale deed was executed or registered. She stated that she had no knowledge as to what documents were prepared and everything was done by Sh. Kali Charan. None of the PWs have stated that what documents were prepared. PW-2 stated that plaintiff has not signed any of the documents in his presence and he did not know whether PW-1 had signed those documents. PW1 on the other hand stated that she had signed the registry. There is an apparent contradiction in the testimonies of the PW 1 and PW 2.
31. PW 2 stated that he is the real chahca of the plaintiff and is therefore an interested witness. His permanent place of abode is village Changoli, District Agra, U.P. and therefore his presence at Delhi on 07.01.1991 has also not been explained.
Page No: 16/31
32. Further it has not been pleaded by the plaintiff that she had paid any amount to Sh. Kali Charan. PW-1 also never stated that any consideration amount has been paid to Sh. Kali Charan. It has not been disclosed as to what was the source of funds for purchase of the suit property. It is not the case of the plaintiff that the plaintiff is gainfully employed and the funds were self acquired funds. From where the plaintiff acquired the funds is a question, which remains unanswered. On what date this amount was paid has not been mentioned by the plaintiff. No evidence has been led as to from where this amount of Rs. 45,000/- was procured by the plaintiff. No statement of bank account has been placed on record to show that any such amount was withdrawn by the plaintiff on or before 07.01.1991. No Income Tax returns of the plaintiff have been filed to show the source of these funds. No other explanation has come from the plaintiff.
33. There is no other evidence to show that amount of sale consideration was paid to Sh. Kali Charan. PW 2 also did not state that any consideration amount was paid to Sh. Kali Charan in his presence. In fact PW 2 stated in his cross examination that " it is correct that no money was handed over in my presence in respect of the alleged sale."
Page No: 17/31
34. PW 3 who is the son of the plaintiff admitted in his cross examination that he was a kid at that time in the year 1991 and he cannot tell whether any papers were prepared for sale of the property to the plaintiff and hence his testimony is not of much help to the plaintiff. PW 5 also did not depose any thing which establishes the title of the plaintiff in the suit property. Thus the plaintiff has failed to establish that any consideration amount was paid to Sh. Kali Charan. The plaintiff has further failed to establish the execution of the said documents by Sh. Kali Charan.
35. Further even the alleged sale documents have not been clearly proved by the plaintiff. Only photocopies were placed on record. It is pertinent to note that the originals of these documents were not produced before the court. It was contended that the originals have been lost. However no permission was sought by the plaintiff from the court to lead secondary evidence. The documents were not exhibited and were only marked as mark A (colly.). The documents comprise of Agreement to Sell, power of attorney, affidavit and receipt. The documents are not legible and are torn from various places and complete documents were not available. The said photocopies of the documents are not very legible and therefore it Page No: 18/31 is not possible to compare the signatures of Sh. Kali Charan on the said documents with the admitted signatures of Sh. Kali Charan.
36. There are no photocopies of the back side of the documents and hence the date of purchase and other details of purchase of the stamp papers cannot be verified. The stamp vendor has not been examined. The notary public who allegedly attested the documents has also not been examined by the plaintiff. The signatures of the notary public are not clear. There is no S. No. regarding entry of the said documents in the register of the notary public. Hence the authenticity and veracity of the documents has not been established.
37. A document can be proved by primary evidence i.e. producing the document itself and where the original has been lost, secondary evidence can be produced. However, permission to seek secondary evidence has to be sought from the court. Secondly the plea that the original document has been lost has to be clearly established and thereafter the photocopies have to be proved satisfactorily. Under section 65(c) of the Indian Evidence Act, Court would grant permission to lead secondary evidence only when it comes to a conclusion that the existence and execution of the original Page No: 19/31 document has been proved and it has been further established that the original document has been lost. Reference may be made to the judgments titled as Tilak Raj v. Janak Raj reported as 1998(2) R.C.R.(Civil) 348. Gurdial Kaur v. Registrar, Cooperative Societies, Punjab, reported as A.I.R. 2000 Punjab 82 and Rambhau Sadashivappa Jatkar v. Tryambak Shenfal Satbharkre reported as 2006(4) R.C.R. (Civil) 236.
38. As far as the first condition is concerned, no permission was sought from the court. The second condition is that the plaintiff should establish the existence of the original and the fact that the original has been lost. Neither the existence of the original has been satisfactorily established nor the loss has been proved. The plaintiff/PW-1 stated at the time evidence on 07.05.2005 that the documents were lost 5/6 years back. However, in the pleadings it has been stated that original documents have been misplaced and report in this respect was lodged by the plaintiff on 13.11.1998 with Seelam Pur police station. No details have been given as to how these documents were lost.
39. First of all let us examine the alleged complaint which has been lodged by the plaintiff. The said complaint has also not been properly Page No: 20/31 proved. No witness from the police station has been examined so as to prove that the said complaint was infact lodged at PS Seelampur. Moreover the original acknowledged complaint has not been placed on record. It is not the contention of the plaintiff that the original acknowledged complaint has also been lost. Thus neither the record from the police station was proved nor the original acknowledged complaint was produced before the court. The said complaint mark-B therefore has not been properly proved or exhibited. If the same is seen, the stamp of the police station is also not clear. It is not clear as to whether the said stamp is of any police station or not. No DD number etc. has been mentioned on the said complaint. The name of the person who received the said complaint is also not mentioned. The plaintiff has therefore failed to prove that any such complaint was submitted at PS Seelam Pur.
40. Now let us come to the contents of the said complaint mark-B. It has been stated in the said complaint that Urmila Devi had purchased one house on 07.01.1991 and had got prepared one GPA in that respect. It was further stated that the original registry of the said house is missing. However, the plaintiff Urmila Devi is having one photocopy of the said registry and further that the factum regarding loss of original GPA be Page No: 21/31 registered. A bare perusal of this complaint shows that it has not been mentioned that as to when and under what circumstances the original documents were lost. The complaint only talks about one GPA. However plaintiff has placed on record, copy of one agreement to sell, receipt and affidavit also. The factum of loss of this agreement to sell, receipt and affidavit has not been mentioned in the said complaint. The complaint is extremely vague. The contents of the complaint have also not been proved by the plaintiff in her evidence also. Again under what circumstances the said documents were lost has not been stated in the evidence.
41. PW-2 on the other hand stated that the said documents got stolen two years after its execution, which is totally contradictory to the stand taken by PW-1. PW-2 has stated that the said documents had got stolen when the plaintiff had gone to attend a marriage. However no FIR was lodged in respect of theft of the documents.
42. In these circumstances, I am of the opinion that the plaintiff has failed to clearly establish that the alleged original documents have been stolen and hence secondary evidence of the said documents is not admissible. The originals have not been placed before the court. Moreover Page No: 22/31 I have already held that there sufficient contradictions and lacune in the evidence of PW-1 and PW-2 regarding the execution of the said documents. I am of the opinion that the plaintiff has therefore failed to establish that said documents were in fact executed by Sh. Kali Charan in her favour. Moreover the factum of the payment of the sale consideration of Rs. 45,000/- was also not clearly averred by the plaintiff and she has failed to establish that any consideration amount was paid to Sh. Kali Charan for purchase of the suit property no. T-208. Accordingly, the GPA if any was even otherwise without consideration and does not enjoy the protection of section 202 of the Contract Act. The said GPA therefore stood revoked on the demise of Sh. Kali Charan. It is pertinent to mention that no will was executed by Sh. Kali Charan in this respect in favour of the plaintiff Urmila Devi. Hence the plaintiff acquires no right, title or interest in the property after the demise of Sh. Kali Charan.
43. Even otherwise Sh. Kali Charan was the owner of only half share in the said property no. T-208 and could not transfer the entire property to Urmila Devi. Sh. Kali Charan was well aware of the fact that he is having only half share in the said property and hence it is therefore not believable that he himself executed the documents in respect of the entire Page No: 23/31 property in favour of Urmila Devi. This also crates a doubt regarding the authenticity of the said documents.
44. The result is that the plaintiff has failed to establish that she had purchased property no. T-208 from Late Kali Charan. Thus Urmila Devi has failed to establish her ownership in respect of property no. T-208.
45. As against this DW1 and DW3/1 have deposed that Sh. Kali charan and Sh. Ram Prakash Ojha were owners of one half share each in the properties nos. T-208 and T-209. DW3/2 and DW 3/3 also corroborated their version. Their version is also supported by documentary evidence.
46. Counsel for the plaintiff could not elicit anything substantial in their testimonies so as to discredit their testimonies.
47. The inevitable conclusion therefore is that Sh. Kali Charan and Sh. Ram Prakash Ojha were the owners of one half share each in the properties nos. T-208 and T-209. It is clear that Sh. Kali Charan died intestate on 01.01.1998. Sh. Kali Charan left behind three legal heirs Smt. Kalawati (wife), Sh. Puran Chand (Son) and Smt. Meera (daughter). Half Page No: 24/31 share of Sh. Kali Charan in the aforesaid two properties devolves upon the aforesaid three legal heirs by way of intestate succession in terms of section 8 of the Hindu Succession Act.
48. Further Suit no.151/98 titled as Sh. Ram Prakash Ojha Vs. Sh. Kali Charan and ors. was disposed of by Sh. B.S. Chumbak, the then Ld. Civil Judge on the basis of a compromise. A family settlement dated 23.10.99 took place between Sh.Ram Prakash Ojha on one hand and Smt. Kalawati and Sh. Puran Chand on the other hand. The memorandum of the family settlement was filed in the court along with application for compromise and the suit was disposed of as compromised. The aforesaid documents are Ex. DW3/1/3 (colly.).
49. DW1 and DW3/1 have deposed in respect of the said family settlement. DW3/2 and DW 3/3 also corroborated their version. Their version is also supported by documentary evidence. Counsel for the plaintiff could not elicit anything substantial in their testimonies so as to discredit their testimonies.
50. It is further contended by the defendants that the said family Page No: 25/31 settlement was arrived at with the consent of Smt. Meera, daughter of Sh. Kali Charan, who is arrayed as defendant no.3 in suit no.41/04. She has filed written statement in the said suit and in the said written statement has admitted the said family settlement. Therefore the said family settlement was a legal family settlement between all the legal heirs of Sh. Kali Charan on one hand and Sh. Ram Prakash Ojha on the other hand. Since Mrs. Urmila Devi had no right, title or interest in the property in question she was not required to be made a party to the said family settlement.
51. In the judgment tiled as Kale v. Deputy Director of Consolidation reported as AIR 1976 SUPREME COURT 807 the Hon' ble Supreme Court held:
" ... ... ..In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family.
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
Page No: 26/31 (3) The family arrangements may be even oral in which case no registration is necessary;
(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17 (2) (sic) (Sec. 17 (1) (b) ?) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has not title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owners, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement... ."
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52. Further more Family settlements generally meet with approval of the Courts. Such settlements are governed by a special equity principles taking into account the well being of a family. Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. Reference may be made to the judgments titled as Ram Charan Das v. Girjanadini Dev reported as AIR 1966 SC 323 and Sahu Madho Das Ors. v Pandit Mukand Ram reported as 1955 (2) SCR 22.
53. The result is that under the said family settlement and consequent compromise decree Sh. Ram Prakash Ojha became owner of entire property no. T-209 along with 25 sq yds from property no.T-208 which was merged into the property no. T-209 so that he becomes owner of 175 sq. yds. of the property and legal heirs of Sh. Kali Charan became the owners of 175 sq yds. of property no.T-208 as per the site plan Ex. PW 1/ D1. The said site plan is the correct site plan available on record and PW 1 has also admitted the same. PW 1 has not been able to prove her site plan Ex. PW 1/A. He said family settlement was mere a memorandum prepared after the family arrangement had already been made for information of the Page No: 28/31 court for the purpose of arriving at a compromise in the suit hence the same did not require registration. It should be the endeavour of the court to give effect the said family settlement.
54. The said family settlement was a legal and binding family settlement as far as the legal heirs of Sh. Kali Charan are concerned. The daughter of Sh. Kali Charan Meera has also ratified the said agreement which shows that the said agreement was entered with her consent and approval and she was a willing party in the said family settlement. Since the plaintiff has failed to establish that she had any share in the property of Sh. Kali Charan she cannot question the said family settlement. On the basis of the said family settlement the said Suit no.151/98 titled as Sh. Ram Prakash Ojha Vs. Sh. Kali Charan was disposed of as compromised. Smt. Urmila Devi was the one of the parties in that suit, however, she was proceeded ex- parte. However, since the plaintiff has not been able to establish that she has any right, title or interest in the property no. T-208 she cannot question the said family settlement or the subsequent compromise decree. Her occupation of the property no. T-208 can only be described as a licensee of Sh. Kalicharan or in capacity of the wife of Sh. Puran Chand.
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55. Therefore the plaintiff Urmila Devi is not entitled to the relief of declaration that the said family settlement or the subsequent compromise decree were null and void or that she is the owner of property no. T-208, Gali No. 1, Gautam Puri, Delhi. Hence the suit is not maintainable and the plaintiff is not entitled for the declaration as prayed for.
56. These Issues are therefore decided in favour of the defendants and against the plaintiff.
Issue nos. 3 and 4
57. The question to be answered is as to whether the plaintiff is entitled to the relief of permanent and mandatory Injunctions as prayed for.
58. I have already held that the plaintiff has no proprietary right, title or interest in the property no. T-208, Gali No. 1, Gautam Puri, Delhi. Issue no. 2 has been decided in favour of the defendants and against the plaintiff. Since the possession of the plaintiff in the entire property no. T-208 was merely permissive being the wife of Puran Chand or the licensee of Late Sh. Kalicharan she is also not entitled to the relief of permanent injunction in respect of the property in question. She is also not entitled to a Page No: 30/31 mandatory injunction directing the defendant no.3 Sh. Ram Prakash Ojha to re construct the wall at portion AB of the site plan Ex.PW1/D1 as the said wall cannot be constructed in view of the family settlement between the parties and the subsequent compromise decree. In fact the family settlement enjoins upon the parties to construct a new partition was at point CD of the site plan Ex.PW1/D1. Hence the plaintiff is not entitled to the relief of permanent and mandatory injunctions as prayed for.
These Issues are therefore decided in favour of the defendants and against the plaintiff.
RELIEF
59. The plaintiff has failed to establish her case. The plaintiff is therefore not entitled to the relief claimed. The suit is therefore liable to be dismissed.
60. The present suit is accordingly dismissed. Parties are left to bear their own costs. File be consigned to record room.
Announced in the open (SAURABH KULSHRESHTHA)
Court on 05.05.2011. CCJ/ARC(East)
(Judgment contains 31 pages.) KARKARDOOMA COURTS,
DELHI
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