Delhi District Court
Ms. Shilawanti (Since Deceased) ... vs S. Kuldeep Singh on 30 November, 2011
IN THE COURT OF SH. RAKESH KUMAR : ADJ03 (C): DELHI
Suit No.364/08
Ms. Shilawanti (since deceased) through LR:
Sh. Amarjeet Singh, S/o Sh. Sh. Arjan Singh,
R/o E216, New Rajinder Nagar,
New Delhi - 110060. .....Plaintiff.
Versus
1. S. Kuldeep Singh, S/o S. Arjan Singh,
R/o E216, New Rajinder Nagar,
(First Floor), New Delhi - 110060.
2. S. Gurbachan Singh (since deceased)
Through LRs:
(i).Smt. Charanjeet Kaur (wife)
(ii).Ms. Harmeet Kaur (daughter)
(iii).Ms. Jasleen Kaur (daughter)
R/o E216, New Rajinder Nagar,
(Second Floor), New Delhi. .....Defendants.
Date of filing of suit. : 26.07.1994.
Date of decision. : 30.11.2011.
J U D G M E N T
1. The instant suit for possession and recovery of damages/ mesne profits has been filed by the aforesaid plaintiff [(since deceased) (through her husband and GPA S.Arjan Singh)] against Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.1 of pages 42 the above named defendants wherein the plaintiff has prayed for grant of following reliefs:
(i) to pass a decree for possession in favour of plaintiff against the defendants with respect to the first and second floor portions of the premises No.E216, New Delhi as shown in red and yellow colour in the site plan annexed with the plaint in favour of plaintiff against the defendant.
(ii)to pass a decree in favour of plaintiff and against the defendants thereby directing the defendants to pay damages for each day of their stay in the premises under reference.
(iii)to pass any other relief which Court deems fit in the circumstances of the case.
2. As per plaint, the plaintiff [i.e. Smt. Shilawanti (since deceased)] was the owner of property No.E216, New Rajinder Nagar, New Delhi, vide Deed of Conveyance executed in her favour by the President of India, through the land & Development Office, on 22.09.1961, which document is registered as Sl. No. 2040 in Additional Book No. 1 volume No. 708 on pages 226 to 230 in the Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.2 of pages 42 office of SubRegistrar, New Delhi. The lease deed with respect to the aforesaid property was executed vide document No. 2039 in Additional Book No.708 on Volume No. 708 on pages 221 to 225 in the office of Sub Registrar, New Delhi on 22.09.61. The said property was purchased by the plaintiff from her own resources and from the resources and earning of her husband, Sh. Arjan Singh. The plaintiff and her husband with their earnings subsequently constructed a house consisting ground floor, first and second floor on the said plot of land. The ground floor portion was in occupation of the plaintiff, and nd the defendants No.1 & 2 have been staying in first floor and 2 floor respectively. The occupation of the defendants, who are the sons of the plaintiff, is that of licensees. It has been claimed that the plaintiff and her husband disposed off whatever assets they had for purchasing the said property and in raising construction thereof in the year 1962. The husband of the plaintiff had wholesale business of bangles in Ballimaran, Delhi and to settle his sons, he sold of his business assets about 10 years prior to the filing of the suit. The husband of the plaintiff gave the money i.e. the sale proceeds to the defendants to enable them to establish their shops at Sadar Bazar, Delhi. The defendants were allowed her to stay by the plaintiff, as her Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.3 of pages 42 children, on license basis. It was incumbent duty upon the defendants to look after their aged parents, i.e the plaintiff and her husband. It was claimed that the defendants being the sons of the plaintiff were not only under an obligation to look after their aged parents but were also required to provide them food and other facilities as plaintiff and her husband had passed on their life savings and investments in the business to the defendants. At that time the defendant had promised that they would provide Rs. 10000/ every month to the plaintiff and her husband for their livelihood and for meeting their old expenses but they were not taking care of the plaintiff therefore the plaintiff asked the defendants to remove their goods from the said property of the plaintiff so that they could rent out for earning the livelihood by the plaintiff but the defendants were failed to do so. Thereafter the plaintiff got public notice issued in the newspaper disinheriting the defendants from all her assets. She also got a legal notice served upon the defendant thereby directing them to remove their goods and handover the respective portions of the premises under their occupation but they had failed to do so. Since the defendants are in unauthorized occupation of the property, the plaintiff is entitled to damages of Rs. 7500/ per month each of the defendants, which was Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.4 of pages 42 the prevalent market rate of rent for the said portions of the property. The defendants did not vacate the demise premises required in the notice dated 17.05.94. The occupation of the defendants is illegal and as such they are liable to pay the damages at the aforesaid rate of Rs. 7500/ per month of their respective premises(under their illegal occupation) w.e.f. 23.05.1994. Further since the defendants have not complied with the lawful demand of the plaintiff so they are liable to pay damages @ 15000/ per month w.e.f 24.05.94 till the actual vacation of the demise premises from them. The cause of action firstly arose in favour of the plaintiff and against the defendant when nd the plaintiff allowed them to stay in the first and 2 floor of the said premises on license basis. It further arose when the plaintiff and her husband transferred their business interests in favour of the defendants. It also arose when the defendants were failed to pay the sum of Rs. 10000/ per month as promised by them. It further arose when defendants were asked to vacate and handover the possession of the premises to the plaintiff but they were failed to do so. The cause of action is still continued as the unauthorized occupation of the defendants in the said premises is still continuing. This court has territorial and pecuniary jurisdiction to try and entertain the suit. The Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.5 of pages 42 suit has been properly valued for the purposes of court fee and jurisdiction and appropriate court fee has been paid.
3. The defendants contested the suit by filing their joint written statement wherein they took the following preliminary objections:
(i) The suit is vaxatious and absolutely frivolous. The plaintiff does not have either cause of action or the right of action to bring the present suit as she has divested herself of all rights, title and interest in the suit property who vested absolutely in defendant No. 1 & 2 respectively and they are in possession thereof in their own right.
(ii)The present suit purportedly filed by the plaintiff is, infact, result of the evil design of the younger son of the plaintiff and brother of the defendants namely Amarjeet Singh who has his eyes set on the property. The husband of the plaintiff who is puppet in the hands of his youngest son has been actively supporting him to achieve (his youngest son) illegal objectives.
(iii)The plaintiff has suppressed from this court the true fact i.e having received sale consideration and also having Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.6 of pages 42 executed documents confirming the independent right, title and interest of the defendants in the first, second floor and terrace of the property. Equally silent is the plaint that defendants No. 1 & 2 making additions and alterations, structural or otherwise, in their respective portions from their own sources. The additions and alterations are of permanent nature and they were carried out prior to the year 1985. Defendant No. 2 took nd possession of the 2 floor of the property with ½ of the terrace above in the year 1976 whereas defendant No. 1 took possession of the first floor of the property around 1981 with ½ of the terrace except for providing common facility to the ground floor like water tank, Antena. It is claimed that at the instance of plaintiff in 1981, defendant No. 1 & 2 together paid a sum of Rs. 2 lacs as consideration and in recognition of their possession and independent right and interest in the said portions of the property. The said amount was paid in cash. The defendants did not insist upon execution of documents as the relationship between defendants and their parents Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.7 of pages 42 and also with their younger brother were pleasant and amicable. Due to goodwill, trust and faith then prevalent among the family members, the defendants did not ask the plaintiff to even execute a receipt for the payment aforesaid, however, after the marriage of Sh. Amarjeet Singh, the younger brother of the defendants and the youngest son of the plaintiff, the relationship amongst family members became sour and atmosphere of one knit family started shaking. Mr. Amarjeet Singh crossed all limits and started creating obstacles and harassment for the defendants and their families for by using parents as a front at the instance of his wife. The plaintiff approached the defendants in JuneJuly, 1987 and persuaded defendant No. 1 & 2 to part with Rs. 1.5 lacs and to give the same to their father in cash so that they could buy peace at their hands. She in turn agreed to execute the requisite documents in favour of the defendants which would safeguard their interest against their younger brother and the father, however, on her suggestion it was agreed that the execution of the Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.8 of pages 42 documents, shall not be disclosed either to the father or to Sh. Amarjeet Singh as the same is the same would aggravate the illtreatment and torture that was being meted out to her by her younger son, daughter in law and her own husband. Defendant No.1 paid a sum of Rs. 80000/ to the father in the presence of the plaintiff rd on 23 July, 1987 and the plaintiff executed documents interalia an agreement to sell, receipt, will, GPA on 23.07.87. She also confirmed the receipt of payment by executing a receipt and also affirmed the same on an affidavit. Likewise a sum of Rs.70000/ was given by defendant no.2 in pursuance of the above arrangement was given to the father in the presence of the plaintiff and the plaintiff acknowledged the receipt of the said amount and executed interalia agreement to sell, receipt, Will, GPA on 17.08.87. The plaintiff admitted that defendants were in possession of their respective portions of the property in their own right and that she had not been left with any right, title or interest and that defendants were absolute owners of the demise portion Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.9 of pages 42 of the property in the suit. The documents were not got registered as that would have involved the plaintiff to be taken to the SubRegistrar's office and the father and younger brother would have then come to know of the execution of the documents and would have compelled and created obstacles in the execution of the documents. There remained peace in the family for some time till the year 1993 when the younger son and/or the father came to know about the execution of the documents confirming the ownership of the defendants with respect to the said portions that once again they started making false police complaints to attain their ulterior and unlawful object of dispossessing the defendants from their own houses and grab the property. All kinds of illegal and coercive attempts were made by the plaintiff and Mr. Amarjeet Singh. The present suit is yet another attempt in the same direction to dispossess the defendant and their family. Further present suit is not maintainable as the same has not been properly valued for the purposes of court fee and Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.10 of pages 42 also method of valuation adopted by the plaintiff is faulty. Moreover, without prejudice to the above, it is claimed that defendants have purported their title by adverse possession. Defendants are in actual physical possession of the portions of the property and have carried out additions and alterations of permanent nature and as such portion stood vested in the defendants irrevocably and an irrevocable interest was got created in their favour. The plaintiff is bound by her acknowledge and her occupation. She is stopped by her own conduct. It is denied that Mr. Arjan Singh is the power of attorney of the plaintiff. There is not a scintella of evidence on record to even prima facie establish that Mr. Arjun Singh is the GPA of the plaintiff. The suit as laid is, therefore, liable to be dismissed as the same has not been verified in accordance with the law.
On merits it is claimed that the plaintiff has already disvested her right, title and interest in the floors other than the ground floor of the property in question in favour defendant No. 1 & 2 respectively for valuable consideration so the plaintiff has no locus standi to file and Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.11 of pages 42 maintain the suit. It is denied that the entire property as it exists was purchased by the plaintiff and her husband from their own resources and money. Defendant No. 1 & 2 had made substantial additions, alterations, structural or otherwise of permanent character in their respective floors. The defendants are in enjoyment and in possession as owners in respect of their portion of the suit property. They have carried out the intensive additions and alterations ever since they came in respective possession of the properties. The plaintiff after selling the portions to the defendants for consideration cannot take a turn around and claim the revocation of the said grant. Defendant No. nd 1 & 2 are in occupation of the entire first and 2 floor with terrace in their absolute right. However, the defendants do not dispute that the parents of the defendants have performed their parental duty. However, husband of the plaintiff sold his business assets at the time when defendant No. 1 & 2 were well settled in their respective business to which they started in 1970 and 1971 respectively with their own means. The defendants are duty bound to look after their aged parents and they have always been eager to continue to take care of the parents. They have no objection to the plaintiff and their father to shift to the defendants. The plaintiff has sufficient movable Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.12 of pages 42 assets and deposits. Even then defendants have no objection to the plaintiff shifting to the defendants and their family and the defendants shall look after them completely. It is denied that the plaintiff asked the defendants to remove their goods from the property in their respective occupation. In any case the plaintiff has no right to make such demand as the defendants have purchased respective portion of the property against valuable consideration. It is denied that the alleged public notice is of any consequence. The question of plaintiff disinheriting the defendants does not arise inasmuch as the defendants are in possession of their respective portion in their own rights. It is denied that the plaintiff got legal notice served upon the defendants. It is denied that the plaintiff is entitled to any damages much less damages of Rs.7500/ per month. It is also denied that the said rate is the prevalent market rate of rent for the portions of the property in question. It is denied that the plaintiff ever asked the defendant to vacate the premises in any event she has no right to do so. There is no cause of action for the present suit. It is denied that the defendants ever became liable to pay damages to the plaintiff. The suit of the plaintiff is misconceived, baseless and devoid of any cause of action.
Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.13 of pages 42
4. The plaintiff filed the replication to the Written Statement of defendant, wherein he denied the claim/allegations raised in the Written Statement and the averments those were raised in the plaint of the suit were reaffirmed and reasserted. It is specifically denied that plaintiff has divested herself of all rights, title and interest in the suit property or that the first and second floors of the suit property stood absolutely in defendant No.1 and defendant No.2 respectively or they are in possession thereof in their own right or that the husband of plaintiff is a puppet in the hands of her younger son. It was claimed that it was only the younger son who was looking after plaintiff and her husband in their old age and it was shameful and unethical for the defendants to have eaten away all the money of the parents and then even failed to look after them financially or otherwise. It was denied that any addition or alteration structural or otherwise carried out by the defendant from their alleged sources.
5. It is pertinent to mention here that during the pendency of the suit, the original plaintiff namely Smt. Shilawanti died and her younger son namely Sh. Amarjeet Singh was allowed to be substituted in place of the deceased plaintiff by virtue of Rule 10 Order 22 of CPC vide order dated 20.08.02 passed by Hon'ble High Court. Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.14 of pages 42
6. Vide the order dated 25.11.03, the following issues were framed:
(i) Whether the plaintiff is the owner of the suit property? If so to what effect ? OPP
(ii)Whether the plaintiff executed documents regarding sale, through affidavit, agreement to sell, receipt, will, GPA dated 23.07.1987 in favour of the defendant No.1 & 2? OPD.
(iii)Whether the plaintiff is entitled to recover any amount on account of damages, mesne profits from the defendant. If so at what rate and for what period? OPP.
(iv)Relief.
7. In support of the plaintiff, following witnesses appeared in the witness box:
(i) Amarjeet Singh (Son of plaintiff),
(ii)Arjan Singh (husband of defendant),
(iii)Rajesh Kumar, LDC, A&C department, Karol Bagh Zone, MCD.
(iv)PW4 S.R.Singh, Asstt, L & DO
(v)PW5 Sandeep Malhotra Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.15 of pages 42
(vi)PW6 Ramesh Chand
(vii)PW7 Ajit Singh Thereafter, the defendants got examined below mentioned six witnesses in their defence namely:
(i). DW1 Kuldeep Singh
(ii). DW2 Gurubachan Singh
(iii). DW3 Mohan Lal
(iv). DW4 Narender Kaur
(v). DW5 Harish Bhalla and
(vi). ADW1 Sh. Gopi Chand and than the defendants' evidence was also closed.
8. In his examination in chief tendered by way of affidavit, PW1 Amarjeet Singh has reiterated the contents of the plaint. He has also placed reliance on the following documents:
(i) Site plan ExPW1/1.
(ii)Public notice ExPW1/2.
(iii)Legal Notice ExPW1/3.
(iv)35 copies of gift deed dated 23.10.98 ExPW1/4.
(v)Copy of mutation letter ExPW1/5.
(vi)Copy of mutation letter issued by MCD ExPW1/6. Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.16 of pages 42 During cross examination he conceded that the plaint bears the signatures of his father at point A and B and defendant No. 1 & 2 are his real brother. He claimed that the property belongs to him 34 years prior to death of his mother. He used to bear all the expenses of her day to day medical treatment which used to be in the range of Rs.2000 to 4000/ per month. He was in service with LUSA Group but his service was terminated in the year 2000. He was doing the business also. His income from the business was between 40005000 per month. He conceded that in the plaint the factum rearding gifting of the suit property by his mother has not been mentioned. He conceded that he took his mother to the office of Sub Registrar for registration of gift deed and the stamp papers were purchased by him in advance as per instructions of his counsel. He also admitted that his mother used to talk to him as well as to the defendants. He admitted that except his father, his mother and himself there was no other person at the time of execution of registered gift deed. He also signed the gift deed. Firstly his mother, than his father and thereafter his friend had signed the gift deed. His mother had not consulted anybody except himself, his father and advocate at the time of execution of gift deed.
Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.17 of pages 42 PW2 Sh. Arjan Singh in his examination in chief tendered by way of affidavit ExPW2/X testified that he is the husband of Late Smt Shilawanti (the plaintiff in the case), who was the owner of the suit property which was duly registered at the office of Sub Registrar, New Delhi. The said property was purchased by the plaintiff from her own savings. She also got constructed a house on the said property nd consisting of ground floor, first floor and 2 floor. The ground floor remained in the occupation of the plaintiff and Amarjeet Singh besides himself whereas defendant No. 1 & 2 were residing on first nd and 2 floor respectively. The occupation of the defendant was that of a licensee. He also proved the site plan ExPW1/1. He confirmed that defendant No. 1 & 2 were provided sufficient funds to raise their respective business and in return they promised to pay the monthly expenses of Rs. 10000/ to him and the plaintiff to meet their expenses but subsequently defendants were failed to discharge their moral obligation and they started harassing, abusing and hurting him and his wife. Vide the legal notice ExPW1/2 the plaintiff asked the defendant to remove their goods from the property of the plaintiff. He also gave public notice in the newspaper. He also exhibited gift deed ExPW1/4. He denied that the plaintiff had received any sale Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.18 of pages 42 consideration or executed any document in favour of defendant No. 1 & 2 confirming any independent right, title or interest in the defendants in respect of the first floor, second floor and terrace of the property. He also denied that defendants are in possession of first nd and 2 floor in their own right and they made additions or alteration of permanent nature in the property in their occupation from their own funds. He confirmed that his son Amarjeet Singh has become the absolute exclusive owner of the property in question by way of gift deed. The defendants have been failed to pay mesne profits @ 7000/ per month despite of issuance of notice. They are liable to pay mesne profits at the said rate and also @ 15000/ per month till the vacation of the property by the defendant.
In additional evidence by way of affidavit he stated that Late Smt. Shilawanti executed GPA in his favour ExPW2/1 which was registered with Sub Registrar, Delhi on 05.01.94.
During cross examination he confirmed that plaint bears his signatures. He also conceded that he used to sign the application filed in the court but sometimes plaintiff also used to sign the same. He also conceded that his wife filed the suit after consulting him. He conceded that he has not stated to his counsel that defendants used Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.19 of pages 42 to beat and abuse his wife. He conceded that his wife might have not singed any paper or application regarding suit. He has not seen his wife writing and signing. He after seeing the affidavit of Smt. Shilawanti marked A claimed that it does not bear the signature of his wife on mark at point A, B & C but he claimed that gift deed Ex PW1/4 bears the signature of his wife, however, at point Mark D the said document does not bear the signature of his wife. His wife was having a joint bank account with him in Indian Oversees Bank, Rajinder Nagar. He did not recollect the account number. He stated that he was not having any dispute with his daughter. His wife had not consulted anybody before executing the Gift Deed. He also admitted that he was residing with the plaintiff Amarjeet Singh. He confirmed that at the time of registration at the office of Sub Registrar, Asaf Ali Road his wife, one advocate and one witness were present but he did not recollect the name of said witness and the said witness was not residing on the opposite to his house. He claimed that his wife signed the documents ExPW2/1 but he could not tell as to whether the witness Sh. Jitender Oberoi signed the GPA ExPW2/1. The power of attorney was signed by Shilawanti in his presence and two other persons at the office of Sub Registrar but he could not tell whether it Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.20 of pages 42 was signed by Sh. Jitender Oberoi. He denied that at the time of execution of ExPW2/1 he used to sit at the shop of Jitender Oberoi which was situated in front of their house.
PW3 Sh. Rajesh Kumar LDC brought original record of house tax of the suit property which is ExPW1/6. He, however, conceded that he does not have any personal knowledge of the case nor he dealt with mutation of the property in dispute. He claimed that letter dated 03.01.85 bears the signature of Smt. Shilawanti which is Ex PW3/D1.
PW4 Sh. S.R.Singh brought record of L & DO office, Nirman Bhawan ExPW1/5.
During cross examination he stated that there is no letter on record purported to be written by Smt. Shilawanti to the extent that she had gifted property to her son. He also proved lease deed Ex PW4/D3.
PW5 Sandeep Malhotra, a property dealer, confirmed that rent of adjoining area of the suit property varies from 10000/ to 15000/ and the certificate dated 15.03.04 ExPW5/1 was issued by him under his signature. He also proved the registered lease deed ExPW5/2.
Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.21 of pages 42 During cross examination he claimed that in the year 1990 the rent was Rs. 80009000. He denied that he was deposing at the instance of plaintiff.
PW6 brought the record ExPW1/5 from the office of Sub Registar, Asaf Ali Road, but he claimed that he had no knowledge about the said document as it was not registered in his presence. He also claimed that he was not having any knowledge as to whether the documents was written in the language which was not known to Smt. Shilawanti or the contents were not explained to her before registration. He also could not tell as to if the endorsement to that effect was made on the back of the document.
PW7 Ajit Singh brought GPA executed by Smt. Shilawanti Ex PW2/1 but he confirmed that the same was not executed in his presence, nor it was signed in his presence nor it was registered in his presence. He conceded that as per rules one copy of the documents is pasted in book IV under the Registration Act and he produced the register during cross examination. He admitted that the signature of Smt. Shilawanti at point A ExPW2/1 is at the bottom of page No. 1 and ExPW2/1 bears the signatures at point B,C,D,E,F & G at bottom of each page. He also admitted that ExPW2/1 bears the Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.22 of pages 42 signature of Smt. Shilawanti at point A, B, C, D, E, F & G at the left side of the page. He admitted that when he came to the court he had brought copy of ExPW2/1 in a loose form. He conceded that he does not know how to maintain the registered document in the office of Sub Registrar. He has not brought any written authority from HOD for giving his evidence in the court.
9. In his examination in chief tendered by way of affidavit Ex.DW1 Sh. Kuldeep Singh testified that after marriage of Sh. Amarjeet Singh in October, 1980 he was having growing family, and therefore desired to shift to the first floor of the suit premises to which Sh. Amarjeet Singh was agreed on the condition that he should part with the sum of Rs.30000/ towards the expenses of marriage of Sh. Amarjeet Singh. He agreed but there was no writing to that effect in view of the fact that it was a family affair. The plaintiff accordingly shifted to first floor during December 19080 to January 1981. In all he and defendant No. 2 together from time to time paid a sum of Rs. 2 lacs to Sh. Arjan Singh and Amarjeet Singh to meet out the expenses of parents of the witness. The said amount was paid out of affection, trust and faith. However, after taking aforesaid amount Sh. Amarjeet Singh and Sh. Arjan Singh continued to create problem by raising Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.23 of pages 42 illegal demands which was not acceptable to the witness. The mother of the witness was also not happy with the behaviour of Sh. Arjan Singh and Amarjeet Singh towards the defendants. However, in order to bring peace amongst family members a sum of Rs.1,50,000/ was given by defendant No. 1 & 2 to Smt. Shilawanti to avoid all controversies in future. Smt. Shilawanti suggested to sell first floor of the property to the witness for a sum of Rs.80000/ and the amount was to be paid to Sh. Amarjeet Singh. He prepared documents in the year 1987 and it was placed before Smt. Shilawanti and Arjan Singh, husband of Smt. Shilawanti. Sh. Arjan Singh gave approval to the said document as suggested. He also got signatures of two independent persons namely Harish Bhalla and M.S.Batra on the agreement of sale. Smt. Shilawanti signed the agreement to sell Ex DW1/1 at point A, B & C. Sh. Harish Bhalla signed the said document at point D whereas M.S.Batra put his signature at point E. Similarly, Shilawanti signed the receipt ExDW1/2 at point A. She also signed the affidavit acknowledging the correctness of the transaction at point A & B. The affidavit is ExDW1/3. She also signed the will ExDW1/4 at point A and GPA ExDW1/5 at point A & B. He performed his part of contract by making the further payment completely. Similarly Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.24 of pages 42 Shilawanti executed the document of sale in favour of defendant No. 2 Sh. Gurubachan Singh in the same pattern in the month of August, 1987. However, before accepting the above said amount Sh. Arjan Singh in connivance with Sh. Amarjit Singh continued to create problem for the witness. They also harassed Smt. Shilawanti by raising demands for more money but Smt. Shilawanti was not agreed. Due to continuous harassment Smt. Shilawanti suffered mental disorder. The gift deed in favour of Sh. Amarjeet Singh was executed under coercion, threat and undue influence. He was having cordial relations with his mother till her death. Sh. Arjan Singh has filed the present suit without the consent of Smt. Shilawanti who never wanted to file the suit against the witness.
During cross examination he confirmed that affidavit ExP1 was prepared by his counsel and he signed it and he had filed written statement to the claim of the plaintiff under his signature. He claimed rd that in 1980, he had contributed 1/3 of the house tax of the suit property. However, the house tax was paid by Smt. Shilawanti. He added that he filed nothing in the court regarding additions/alterations made by him. He admitted that his father was having a shop in Chandni Chowk whereas he himself has a shop at Sadarbazar. His Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.25 of pages 42 father has also ancestral property in the village. The agreement to sell was witnessed by Sh. Harish Bhalla and M.S.Batra. He signed the register of stamp vendor. The document was prepared at the instance of Smt. Shilawanti at ground floor. He conceded that Mark 'X' of Ex DW1/1 bears the signature of his mother.
In his additional affidavit of examination in chief ExADW2/A the witness further testified that Smt. Shilawanti never executed any power of attorney in favour of Arjan Singh. The power of attorney filed by the plaintiff was forged and fabricated. He purchased stationary items as per bill from Sh. Jitender Oberoi as per will ExADW2/1.
During cross examination in respect of ExADW2/A he stated that his father was more than 80 years old but he denied the suggestion that his father was keeping good health. He conceded that Jitender Singh is his close friend and ExX1 bears the photographs of his mother and in the year 1994 her age was 75 years.
DW2 Sh. Gurbachan Singh in his examination in chief tendered by way of affidavit ExP2 confirmed that he alongwith his brother defendant No. 1, Amarjeet Singh, father Sh. Arjan Singh and mother Smt. Shilawanti were living together at ground floor of suit nd premises. The 2 floor was comprised of one room with temporary Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.26 of pages 42 nd kitchen etc. In the year 1976 he shifted to 2 floor due to shortage of nd accommodation and at that time tenant had also vacated 2 floor. Father of witness demanded a sum of Rs.15000/ for shifting the nd defendant to the 2 floor to which he agreed and paid in cash but there was no writing to that effect. Thereafter he and defendant No. 1 from time to time paid a sum of Rs. 2 lacs to Sh. Arjan Singh and Amarjeet Singh to meet out the expenses of father and mother of the witness and to maintain affluent trust and faith in the family. The mother of the witness never had any differences with the defendants but Sh. Arjan Singh conspired together to extract money from the defendants. After having the said amount of Rs. 2 lacs their greed did not satisfy and they kept on demanding illegal money from the nd defendants. He got constructed entire 2 floor by covering 100% area of plot and the said construction was carried out wih the knowledge of Amarjeet Singh, Arjan Singh and Smt. Shilanwanti. Thereafter in order to bring peace in the family Smt. Shilawanti invited nd the witness and defendant No. 1 to purchase 2 floor and first floor respectively for the total consideration amount of Rs. 1,50,000/. She nd offered to sell 2 floor to him for a sum of Rs. 70000/ whereas Rs.80000/ was to be paid by defendant No. 1. The said proposal Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.27 of pages 42 was accepted and the transaction was executed in August, 1987. The documents of sale were prepared upon which independent witnesses namely Sh. Harish Bhall and M.S.Batra were called to sign. Smt. Shilawanti signed agreement to sell ExDW1/1. The same was also signed by Sh. Harish Bhalla and M.S.Batra. Smt. Shilawanti signed the payment receipt ExDW1/2 and affidavit ExDW1/3. She also signed Will ExDW1/4 and GPA ExDW1/5. The will was also bearing the signature of Sh. Harish Bhalla and M.S.Batra as witnesses. He performed his part of the contract by making full payment of the consideration amount but despite that father of Sh. Arjan Singh in connivance with Sh. Amarjeet Singh continued to create problem for him and demand of money started again. He is in actual, physical nd possession of the 2 floor which was stood vested in him irrevocably and irrevocable interest was also created in his favour. He and defendant No.1 carried out various additions, alterations in their respective portions in their occupation to make into workable condition. Sh. Amarjeet singh and Sh. Arjan Singh also started harassing Smt. Shilawanti due to which her health got deteriorated and she suffered from high blood pressure and also mental disorder. Taking benefit of mental state of Smt. Shilawanti the gift deed was Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.28 of pages 42 prepared by Sh. Amarjeet Singh and got executed by Smt. Shilawanti under fear, coercion, threat and undue influence. The gift deed is illegal and fabricated. He was having cordial relations with his mother till his death.
During cross examination he stated that in 1976, he was in possession of one room, tin shed, kitchen with open courtyard. From the beginning, the house was owned by his mother Smt. Shilawanti. Prior to 1976, the portion under his possession was on tenancy and rent was paid to his mother. He claimed that he mentioned the factum of payment of Rs. 2 lacs in installments by him and his brother in the written statement but he has not filed any accounts relating to the renovation expenses born by him. He could not tell as to whether any house tax was paid by his mother. To his knowledge his father was not doing any work after 1984 but prior to that he was having a shop at Chandni Chowk. His father did not contribute anything in the shop owned by him in the year 1973. Mr. M.S.Batra is the brother in law of both the defendants. He conceded that his father used to live with Amarjeet Singh. The Written Statement filed by him in the Hon'ble High Court bears his signature. He did not produce any document relating to the illness of his mother. He could not tell the name of the Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.29 of pages 42 stamp vendor from whom he purchased the stamp papers. Documents ExDW2/1 to ExDW2/5 was got prepared by him in the month of August, 1987. The stamp papers were five in numbers. The agreement to sell was signed by his mother and then by him and thereafter it was signed by Mr. Bhalla and Mr. Batra respectively. His father was also present there. He conceded that documents Ex DW2/1 to ExDW2/5 were not registered. He denied that PW Amarjeet Singh is the owner of the suit property.
DW3, official of the Indian Oversees Bank by bringing the account opening form of joint account No.S/F 7266 Ex.DW3/1 (colly.) confirmed that the said account was jointly opened by Smt. Shilawanti and S. Arjan Singh. He brought the account opening form alongwith the specimen signatures of account holders. He claimed that he was posted in the branch as record keeper in 1997.
DW4 Smt. Narender Kaur in her examination in chief confirmed that she was having visiting terms with the parties of the suit and also with S.Arjan Singh. For years together Smt. Shilawanti used to travel with her in the same bus for going to Bangla Sahib Gurudwara. Smt. Shilawanti was suffering from diabetes and higher blood pressure and later on she was suffering from mental disorder Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.30 of pages 42 also. She used to become violent and started crying and shouting. During cross examination she confirmed that she signed the affidavit which was already prepared. Smt. Shilawanti was her just neighbour and between their houses there was one house i.e E213. He could not said as to whether Smt. Shilawanti visited the office of Sub Registrar, Delhi. He could not tell as to who paid the house tax of property in dispute. She also could not tell about the eating habits of Shilawanti. She confirmed that she used to meet Arjan Singh also. She never visited to the doctor alongwith Shilawanti and she could not tell what medicines she was using.
DW5 in his affidavit in evidence confirmed that he knew the parties to the suit with whom he had visiting terms. At the relevant time he visited Smt. Shilawanti where he was asked to sign the documents relating to first floor of the property bearing No.E216, New Rajinder Nagar, New Delhi in favour of defendant No.1. Smt. Shilawanti signed agreement to sell ExDW1/1 in his presence. She also signed payment receipt ExDW1/2, affidavit ExDW1/3, Will Ex DW1/4 and GPA ExDW1/5 bearing his signature on those documents. He also witnessed the construction of the first floor property. At that time both the defendants were also residing in their Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.31 of pages 42 respective portions of the premises. Smt. Shilawanti was not keep in good health and prior to her death she was suffering from mental disorder. Her behaviour was strange.
During cross examination he confirmed that his affidavit was prepared at his instance and he used to visit for preparation of the affidavit. The renovation of the first floor was conducted by defendant No. 1. All the three occupants of the building used to pay house tax.
nd The 2 floor is in possession of defendant No. 2 which is fully constructed. He had attested at that time three documents. First of all documents relating to Kuldeep Singh were prepared, upon which Shilawanti put her signatures and then Kuldeep Singh signed. The signature on ExDW1/1 at point 'X' does not appear to be that of Shilawanti. At mark 'D' of ExDW1/1 bears her signatures. The documents relating to agreement to sell which was witnessed by him was not prepared in his presence. He could not tell the name of the doctor under whose treatment Shilawanti was there. Arjan Singh did not sign document relating to the sale of property. He had good relations with Amarjeet Singh also.
ADW1 Sh. Gopi Chand confirmed that he used to distribute registered post articles. He distributed registered post articles in 'E' Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.32 of pages 42 block, new Rajinder Nagar, New Delhi. He proved AD card Ex ADW1/2. He personally delivered the same to Sh. Jitender Oberoi who was present in the premises.
10. I have carefully heard the rival submissions of Ld. counsels for the parties. I have also perused the entire material placed before me.
11. My issue wise findings are as under:
12. Issue No.1: Whether the plaintiff is the owner of the suit property? If so to what effect ? OPP The onus to prove this issue has been placed upon the plaintiff.
As per submissions of Ld. counsel for plaintiff, original plaintiff namely late Smt. Shilawanti was the absolute owner of the suit property and as such she was competent to sell, transfer or otherwise dispose off the suit property and the present plaintiff, who has stepped into her shoes by virtue of Gift Deed validly executed by Smt. Shilawanti has acquired the absolute title in the suit property and thus he being the absolute owner is entitled to get the possession of the property illegally occupied by the defendants. The present plaintiff has produced sufficient evidence to establish that the property was Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.33 of pages 42 gifted by his mother, later Smt. Shilawanti in the year 1998 and the interest in the property has devolved upon the present plaintiff. A Gift Deed has also been executed in his favour and later on, it was also mutated in favour of the present plaintiff. The evidence in this behalf i.e. PW1, PW2 & PW3 in unequivocal terms has proved that the property has been gifted in favour of the applicant, the same is registered in the records of the office of the SubRegistrar, Asaf Ali Road, New Delhi and the same has been proved by PW6 i.e. Ex.PW1/4.
Per contra, as per submissions of Ld. counsel for defendants, though it is not in dispute that Smt. Shilawanti, the mother of the defendants was the absolute owner of the suit property and she was well competent to sell, transfer or alienate the same being its absolute owner and she had validly executed the documents of sale like Affidavit, Agreement to Sell, Receipt, Will, GPA dated 23.07.1987 & 17.08.1987 in favour of defendants no.1 & 2 respectively after receiving the due consideration amount from them and therefore, the defendants no.1 & 2 are the absolute owners and in possession of their respective portions of the suit property. In their respective testimonies DW1, DW2, DW3, DW4 & DW5 have proved the case Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.34 of pages 42 of the defendants. The documents were further proved by the DW5 Harish Bhatt. There was no rebuttal to the said exhibited documents relating to Agreement to Sell, GPA, Will, Receipt etc. Sh. Amarjeet Singh (LR plaintiff) has relied his claim of his ownership on the basis of Gift Deed executed by the deceased (mother of the parties) in his favour but the said Gift Deed is not the document upon which the reliance can be placed safely, firstly the Gift was not voluntary act of the deceased as it is established from the evidence of DW4 that the Doner was sick old lady and suffering from Mental Disorder. Further the Donee took active steps in the preparation of Gift Deed. The plaintiff in his cross examination had admitted the drafting of Gift Deed at their instructions and the Donee had taken active participation in the Gift Deed. Moreover, the witness of the Gift Deed Sh. Arjan Singh had admitted that he has not seen his wife, the deceased signing the Gift Deed. In these circumstances, the Gift Deed can not be relied upon.
Having heard the rival submissions of Ld. counsels for the parties, I find that the LR plaintiff namely Sh. Amarjit Singh has been failed to discharge the onus of proving the issue in his favour. The document (the Gift Deed) upon which he is relying his claim is not the Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.35 of pages 42 document which can be relied upon as the LR plaintiff has been failed to establish that the said Gift Deed was validly executed by the mother of the parties in his favour. Moreover, the instant suit which has been filed by late Sh. Arjan Singh, the husband of Smt. Shilawanti (since deceased) has been filed without having any valid authorization from the plaintiff, so the suit as filed is not maintainable as the same has not been validly instituted. The suit is liable to fail for the reason that initially the suit was filed by the husband of the deceased on the basis of Power of Attorney but the said document is not a valid document as the Power of Attorney was not registered in accordance with the provisions of Registration Act. The said Attorney has no value because the document was not maintained as per Sec.51, Sec.52(C) of the Registration Act. As per the evidence of Clerk PW7, the alleged Attorney Ex.PW2/1 is a loose sheet and the original and copy of the said attorney are not same. Moreover no attesting witness was produced to prove the Attorney. One of the witnesses Sh. Jatinder Oberio, who has been living just opposite to the house of the plaintiff has not been produced by the plaintiff and fact that he has been living in front of house of plaintiff has been proved by defendants by examining the official of Post Office as Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.36 of pages 42 ADW1, who had categorically proved that Sh. Jatinder Oberio is living in the same house. Further PW7, who brought the GPA in the court conceded that the same was neither signed nor executed nor registered in his presence and he brought the copy of Ex.PW2/1 in a loose form.
For the aforesaid, the issue is liable to be decided against the plaintiff and same stands decided accordingly.
13. Issue No.2: Whether the plaintiff executed documents regarding sale, through affidavit, agreement to sell, receipt, will, GPA dated 23.07.87 in favour of the defendant No.1 & 2? OPD.
The onus to prove this issue has been placed upon the defendants no.1 & 2.
As per defendants, the deceased Smt. Shilawanti, the absolute owner of the suit property entered into an Agreement to Sell with the defendant no.1 in respect of the first floor of the property in dispute. Similarly, the deceased entered into an Agreement to Sell during her lifetime with the defendant no.2 in respect of the barsati floor. The defendants raised construction on their respective floors with the knowledge of the plaintiffs. The Agreement to Sell, Power of Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.37 of pages 42 Attorneys, Wills, Receipts, duly executed by the deceased Smt. Shilawanti are already on record and the same have been duly exhibited and proved by the defendants. The defendants are the absolute owner in occupation of their portions of the suit property and the plaintiff has no cause of action or right of action to bring the suit as the original plaintiff has divested herself of all rights, title and interest in the suit property after having receiving the consideration and having executed the documents confirming the independent rights, title and interest of the defendants which vested absolutely in defendants no.1 & 2 respectively and they are in their possession thereof in their own right. Further the defendants have made structural changes, construction, alteration etc. of permanent nature in their respective portions from their own sources and the said construction and alteration were carried out prior to 1985.
On the other hand according to plaintiff, the documents upon which the defendants are relying upon are not admissible in evidence and cannot be taken in support. The documents have not been even otherwise registered nor any attesting witness has been produced to show as to who has written the documents. In the absence of any proof to show that the documents have been executed by the Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.38 of pages 42 Executant and the same have been registered in accordance with law, they can not be relied upon. They are also not duly registered as per the requirement of law. Thus the defendant are in unauthorized occupation of their respective portions of the suit property and they are liable to vacate the same.
Having heard the respective rival submissions of the counsels for the parties, I have come to the considered opinion that this issue is liable to be decided in favour of defendants and against the plaintiff as the defendants have been able to establish that they are the absolute owner in occupation of their portions of the suit property and the plaintiff has no cause of action or right of action to bring the suit as the original plaintiff has divested herself of all rights, title and interest in the suit property after having receiving the consideration and having executed the documents confirming the independent rights, title and interest of the defendants. in their testimonies the DW1 and DW2 have exhibited and proved the documents of sale i.e Ex.DW1/1 to Ex.DW1/5. The documents were further proved by the DW5, the independent witness. There was no rebuttal to the said exhibited documents Ex.DW1/1 to Ex.DW1/5 and therefore, the defendants are entitled to protect their possession U/s 53A of Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.39 of pages 42 Transfer of Property Act. On the other hand the plaintiff has been failed to prove that the Gift Deed dated 23.10.1998 was validly executed by Smt. Shilawanti in his favour without any force, undue influence or coercion and as such it can not be termed as the voluntary act of deceased. The plaintiff in his cross examination conceded that he took active steps in getting the Gift Deed drafted/ prepared. Further it is established from the evidence of DW4 that the Doner of Gift Deed was sick and illiterate old lady and she was also suffering from mental disorder. The witness of Gift Deed Sh. Arjan Singh had admitted that he has not seen his wife, the deceased signing the Gift Deed. Therefore, the Gift Deed can not relied upon. Thus, the Gift Deed is not a valid document and it does not satisfy the requirement of valid attestation.
Hon'ble Supreme Court of India in a case reported as AIR 1965 SC 1788 has laid down that for a valid Gift Deed:
(i).there must be two witnesses.
(ii).each one has been the executant signing.
(iii).each of two witnesses must have signed in the presence of the executant.
Thus, the issue is liable to be decided in favour of defendants Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.40 of pages 42 and against the plaintiff. Issue stands decided accordingly.
14. Issue No.3: Whether the plaintiff is entitled to recover any amount on account of damages, mesne profits from the defendant. If so at what rate and for what period ? OPP.
In the light of my findings on foregoing issues, the plaintiff is not entitled to any relief including the relief of possession. Issue stands decided accordingly.
15. RELIEF: In view of my findings on the foregoing issues, suit of the plaintiff is dismissed. No order as to cost.
16. Decree Sheet be prepared accordingly.
17. File be consigned to Record Room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR)
court today on 30.11.2011) ADDL. DISTRICT JUDGE03(C)
DELHI
Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.41 of pages 42
Suit No.364/08
Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr.
30.11.2011 Present: As before.
Vide a separate judgment, suit of the plaintiff is dismissed. Decree Sheet be prepared.
File be consigned to Record Room after completion of necessary formalities.
(RAKESH KUMAR) ADJ03(C)/DELHI/30.11.2011 Shilawanti (since deceased) through LR Vs. Kuldeep Singh & Anr. Page No.42 of pages 42