Delhi District Court
Vimal Sharma vs Mahender Sachdeva And Ors on 30 August, 2024
IN THE COURT OF VIKAS GARG, DJ-05 (EAST),
KARKARDOOMA COURTS, DELHI.
Suit No. 2672/16
CNR No. DLET01-005391-2016
Vimal Sharma
D/o Sh. Dharamvir Sachdeva
R/o D-179, Ganesh Nagar Complex
Delhi-110092.
...........Plaintiff
Versus
(i) Mahender Sachdeva
S/o Late Sh. Dharamvir Sachdeva
R/o D-308, Ganesh Nagar,
Pandav Nagar Complex, Delhi-110092
(ii) Ashok Sachdeva
S/o Late Sh. Dharamvir Sachdeva
R/o D-308, Ganesh Nagar,
Pandav Nagar Complex, Delhi-110092
...........Defendants
Date of Institution : 28.04.2016
Date of Final Arguments : 30.08.2024
Date of Judgment : 30.08.2024
SUIT FOR DECLARATION, PARTITION, PERMANENT
CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 1 of 36
Digitally signed
VIKAS byDate:VIKAS GARG
GARG 2024.08.30
18:07:28 +0530
INJUNCTION AND MESNE PROFITS/DAMAGES.
JUDGMENT
1. By this judgment, the court will adjudicate the plaintiff's suit seeking declaration, partition, permanent injunction, and mesne profits/damages.
CASE OF THE PLAINTIFF AS PER PLAINT :-
Briefly, the essential facts required for a fair adjudication of the present suit, as presented in the plaint, are as follows:
2. The plaintiff, a law-abiding citizen residing in Delhi, has filed a suit against her brothers regarding property No. D-308, land measuring 40 sq. yards, situated in Ganesh Nagar Pandav Nagar Complex, Delhi-110092. This property was originally owned by their late mother, Smt. Veena Devi, who purchased it via a registered agreement to sell and general power of attorney (document no. 12057, Volume No. 4844, pages 171-172) on 02/03/1998. Smt. Veena Devi died intestate on 25/11/2009. The plaintiff alleges that following her mother's death, she was coerced by the defendants and their father, Sh. Dharamvir Sachdeva, into signing a relinquishment deed on 02/02/2010 (registered as CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 2 of 36 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.08.30 18:07:35 +0530 no. 1657) in favor of her father. The plaintiff claims she was in a vulnerable state due to personal issues and was unduly influenced. Sh. Dharamvir Sachdeva subsequently died on 28/02/2012.
The plaintiff asserts she was unaware of a will dated 08/02/2010, which she allegedly signed under duress, and other documents (Agreement to Sell, GPA, Receipt, Possession Letter, Affidavit) executed on 28/07/2011. She discovered these through a legal notice reply dated 21/03/2016. The plaintiff states that all these documents were created under undue influence, fraud, and misrepresentation, emphasizing that her father was elderly, ailing, and of unsound mind at the time of execution. In 2016, the plaintiff formally requested her share of the property, leading to threats from the defendants. Additionally, she claims the defendants created tenancies within the property without her consent. The plaintiff seeks a declaration that the relinquishment deed, will, and other documents are null and void. She requests a decree of partition for her 1/3 share of the property, valued at Rs. 21,10,500/- (based on a circle rate of Rs. 63,000/- per 33.5 sq. mtr.), or alternatively, the sale of the property and division of proceeds. Furthermore, she seeks a permanent injunction against the defendants from creating any third-
CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 3 of 36 Digitally signed VIKAS byDate:VIKAS GARG GARG 2024.08.30 18:07:44 +0530 party interest in the property and compensation for damages/mesne profits of Rs. 300/- per day from the date of filing until actual partition. The suit is valued at Rs. 7,23,030/- for court fee purposes, with ad valorem court fees of approximately Rs. 9,500/-. The plaintiff asserts that the cause of action is ongoing, the suit is within the limitation period, and the court has jurisdiction as the property is situated in District East, Delhi.
CASE OF THE DEFENDANT No. 1 and 2 AS PER WRITTEN STATEMENT:-
Briefly, the essential facts required for a fair adjudication of the present suit, as presented in the Written Statement, are as follows:
3. The defendants assert that the plaintiff has approached the Hon'ble Court with unclean hands, filing a false, frivolous, and malicious suit without any justifiable reason. They state that the suit is not maintainable and should be dismissed under Order VII Rule 11 of the Code of Civil Procedure (CPC) as it lacks a cause of action. The defendants state that no cause of action has arisen in favor of the plaintiff, the suit is improperly valued for court fees and jurisdiction, and it is time-barred, having been filed in 2016 for a relinquishment that occurred on 02.02.2010. They state that the suit is without merit and filed with the intent to CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 4 of 36 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.08.30 18:07:52 +0530 harass the defendants and extract money.
The defendants maintain that Defendant No. 1 is the sole and absolute owner of the property in question, located at D-308, Ganesh Nagar Pandav Nagar Complex, Delhi-110092, which he purchased in 1988 in his father's name and constructed in 1989. They emphasize that the plaintiff relinquished her rights in the property through a registered Relinquishment Deed (No. 1657) dated 02.02.2010, a fact well-known to the plaintiff who is now trying to mislead the Court. The defendants deny any coercion or undue influence regarding this deed, asserting that the plaintiff signed it willingly and presented herself before the Sub-Registrar.
The defendants assert that the plaintiff was aware of and witnessed a will executed by their father on 08.02.2010 in favor of Defendant No. 1. They reveal that their father, Sh. Dharamvir Sachdeva, executed additional documents (Agreement to Sell, GPA, Receipt, Possession Letter) on 28.07.2011, all duly registered. They maintain that the plaintiff was present during the execution of these documents and her current claims are false attempts to mislead the court. The defendants emphasize that their father was of sound mind when executing the will, contrary to the plaintiff's claims.
CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 5 of 36 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.08.30 18:07:59 +0530 The defendants describe the plaintiff as a quarrelsome individual who has severed relations with them and her husband since 2010, noting she has had no visiting terms with them since then. They mention that Defendant No. 2 has been living separately at B-167, Gali No.5, Sarpanch Ka Bara, Mandawali, Delhi-110052 since 2007 and has no claim on the property. The defendants deny any intention to sell the property and argue that Defendant No. 1 has the right to use it as he wishes, including creating tenancies. They refute the plaintiff's claims of requesting her share in 2016 or being pressured to relinquish it.
The defendants highlight that the plaintiff lived in her parental home from 1997 to 2010, during which time they supported her. However, they note that she did not attend her father's last rites. They also mention a police complaint (dated 24.10.2014) filed by the plaintiff's husband alleging cruelty. The defendants maintain that all documents were properly executed and registered, and the plaintiff's claims of being unaware or influenced are false. They assert that the suit for partition and possession is not maintainable as the plaintiff has already relinquished her share and has no rights to claim partition.
CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 6 of 36 VIKAS Digitally signed by VIKAS GARG Date: 2024.08.30 GARG 18:08:05 +0530 In conclusion, the defendants pray for the dismissal of the plaintiff's suit with heavy costs, asserting that the plaintiff has no right, title, or interest in the property due to her relinquishment and their father's will. They emphasize that the suit is without merit, time-barred, improperly valued, and filed with malicious intent to mislead the Court and harass the defendants.
Replication:-
4. In the replication, the Plaintiff denied the assertions and contentions made by the Defendants in their written statement, while reaffirming and reiterating the claims and allegations set forth in the plaint.
Issues:-
5. Upon the completion of pleadings, the court on 27.04.2018 framed the following issues for trial:
1. Whether the plaintiff is entitled to the relief of declaration as prayed? OPP
2. Whether the suit property is liable to be partitioned, if so, what would be the share of the parties? OPP
3. Whether the plaintiff is entitled to the relief of permanent injunction as prayed? OPP
4. Whether the plaintiff is entitled to damages, if so, at CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 7 of 36 VIKAS Digitally signed by VIKAS GARG Date: 2024.08.30 GARG 18:08:12 +0530 what rate and for which period? OPP
5. Whether the present suit has not been valued properly for the purpose of court fees and valuation? OPD
6. Whether the present suit is time barred? OPD
7. Relief.
No further issues were raised or pressed in at that time.
Plaintiff's Evidence
6. To establish her case, the plaintiff, Ms. Vimal Sharma, testified as PW-1 and submitted her evidentiary affidavit, Ex. PW1/A, during her examination-in-chief, in which she reiterated the contents of her plaint. She also relied on the following documents: (i) Copy of legal notice dated 14.03.2016, marked as Ex. PW1/A; (ii) Reply dated 21.03.2016, marked as Ex. PW1/B; (iii) Certified copy of the relinquishment deed dated 02.02.2010, marked as Ex. PW1/C (which was not mentioned in her affidavit). PW-1 was extensively cross-examined by the counsel for the defendants.
Defendants' Evidence:
7. To support the defendants' case, Defendant No. 1, Mahender Sachdeva, was examined as DW-1 and provided his evidential affidavit, Ex. DW1/A, during his examination-
CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 8 of 36 VIKAS Digitally signed by VIKAS GARG Date: 2024.08.30 GARG 18:08:20 +0530 in-chief, wherein he reiterated the contents of the written statement. Similarly, Defendant No. 2, Ashok Sachdeva, was examined as DW-2 and presented his evidential affidavit, Ex. DW2/A, also reiterating the contents of the written statement.
DW-1 relied on the following documents:
1. Original Relinquishment Deed dated 02.02.2010, marked as Ex. DW-1/1,
2. Original Family Will dated 08.02.2010, already marked as Ex. D-1,
3. Original GPA dated 28.07.2011, marked as Ex. DW-1/2,
4. Original Agreement to Sale dated 28.07.2011, marked as Ex. DW-1/3,
5. Original Possession Letter dated 28.07.2011, marked as Ex. DW-1/4 (Colly),
6. Original Affidavit of Dharmvir Sachdeva dated 28.07.2011, marked as Ex. DW-1/5,
7. Original Receipt dated 28.07.2011, marked as Ex. DW- 1/6,
8. Copy of Will dated 28.07.2011, marked as Mark-B,
9. Certified Copy of Complaint dated 24.10.2014, already marked as Ex. D-1,
10. Copy of Details of Cash Paid to Vimal Sharma (Plaintiff) dated 11.02.2011, already marked as Mark-A,
11. Copies of Two Kishan Vikas Patra dated 22.02.2010 for Rs. 10,000/- in the name of the Plaintiff, already marked as Ex. D-3.
DW-2 relied on the following documents:
1. Original Relinquishment Deed dated 02.02.2010, already marked as Ex. DW-1/1,
2. Original Family Will dated 08.02.2010, already marked as CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 9 of 36 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.08.30 18:08:27 +0530 Ex. D-1,
3. Original GPA dated 28.07.2011, already marked as Ex. DW-1/2,
4. Original Agreement to Sale dated 28.07.2011, already marked as Ex. DW-1/3,
5. Original Possession Letter dated 28.07.2011, already marked as Ex. DW-1/4 (Colly),
6. Original Affidavit of Dharmvir Sachdeva dated 28.07.2011, already marked as Ex. DW-1/5,
7. Original Receipt dated 28.07.2011, already marked as Ex. DW-1/6,
8. Copy of Will dated 28.07.2011, already marked as Mark- B,
9. Certified Copy of Complaint dated 24.10.2014, already marked as Ex. D-1,
10. Copy of Details of Cash Paid to Vimal Sharma (Plaintiff) dated 11.02.2011, already marked as Mark-A,
11. Copies of Two Kishan Vikas Patra dated 22.02.2010 for Rs. 10,000/- in the name of the Plaintiff, already marked as Ex. D-3.
Both witnesses were subjected to thorough cross- examination by the plaintiff's counsel.
Arguments:-
8. I have heard Ld counsels of both the parties and have carefully gone through the record and considered the relevant provisions of law.
The learned counsel for the plaintiff argued in alignment with the content of the plaint, reading it line by line. He further contended that the suit has been filed within the prescribed period of limitation and asserted that the plaintiff has paid the requisite court fees. In conclusion, he prayed for CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 10 of 36 VIKAS Digitally signed by VIKAS GARG Date: 2024.08.30 GARG 18:08:36 +0530 the decree to be passed in favor of the plaintiff.
On the other hand, the learned counsel for the defendants presented an extensive argument, including submitting written submissions. He argued in accordance with the written statement and highlighted contradictions in the plaintiff's cross-examination, drawing the court's attention to these inconsistencies. The defendants' counsel contended that the plaintiff is not entitled to the relief sought, as she had relinquished her rights to the suit property through a relinquishment deed dated 02.02.2010 in favor of her father, who was the original purchaser of the property. After this relinquishment, both the plaintiff and the defendants relinquished their rights in favor of their father, Late Sh. Dharam Veer Sachdeva. Subsequently, Sh. Dharam Veer Sachdeva executed a duly registered WILL in favor of Defendant No. 1, in which the plaintiff was one of the witnesses. Therefore, the plaintiff is not entitled to partition, as her father did not die intestate, contrary to what she claims in her plaint. This is evidenced by the registered WILL exhibited as Ex. DW1. The plaintiff also admitted during cross-examination that she executed the relinquishment deed (Ex. PW1/C) dated 02.02.2010 and witnessed the WILL dated 08.02.2010 (Ex. DW1). The defendants' counsel further argued that the plaintiff has CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 11 of 36 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.08.30 18:08:46 +0530 failed to prove how she is entitled to partition of the suit property. The burden of proof lies on the plaintiff, not the defendants. The plaintiff must stand on her own merits, but she has not succeeded in doing so. Additionally, it was argued that the plaintiff is neither in possession of the suit property nor a co-owner, making her ineligible for the relief of permanent injunction. The legal principle is clear: without seeking possession and a declaration of title, a plaintiff cannot be granted a permanent injunction, especially in this case. The plaintiff admitted that she neither resides in the suit property nor has any implied possession, and further, she relinquished her title to the property through the deed dated 02.02.2010 in favor of her father.
In support of this, the defendants' counsel referenced the judgment in Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors (2008), which outlines the legal position on suits for prohibitory injunctions relating to immovable property. This judgment emphasizes that when a cloud is raised over a plaintiff's title and they lack possession, the proper remedy is a suit for declaration and possession, not merely an injunction.
The defendants' counsel further argued that the plaintiff is not entitled to damages, as she has no share in the property. Defendant No. 1, Mahender Sachdeva, is the absolute owner CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 12 of 36 VIKAS Digitally signed by VIKAS GARG Date: 2024.08.30 GARG 18:09:15 +0530 of the property by virtue of the documents executed by Late Sh. Dharam Veer Sachdeva. Consequently, Defendant No. 1 is enjoying and benefiting from the property as the rightful owner.
The defendants' counsel further contended that the plaintiff failed to file any documents with the plaint to show the actual valuation of the suit property for the purpose of court fees. Additionally, the plaintiff did not explain how the circle rate of the property was calculated for claiming partition. Therefore, this issue should be decided in favor of the defendants.
The defendants' counsel further submitted that the responses to Issues No. 1 and 2 should be considered the responses to this issue as well. The current case concerns a declaration that certain documents are null and void. The plaintiff cannot challenge these documents after the expiration of six years from their issuance date. All relevant documents were registered with the Sub-Registrar, and the plaintiff was a party to the relinquishment deed dated 02.02.2010 and a witness to the WILL dated 08.02.2010. As a result, the suit is time-barred and should be decided in favor of the defendants. The plaintiff admitted that the cause of action for filing the suit first arose in 2010, when the relinquishment CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 13 of 36 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.08.30 18:09:22 +0530 deed was executed. Consequently, the limitation period of three years to cancel the registered relinquishment deed expired in 2013. The plaintiff has failed to establish how the cause of action arose thereafter or to demonstrate that it is a continuing cause.
Ld. counsel for the defendants further contended that the Limitation Act, 1963, recognizes only the legal disabilities mentioned in Section 6 of the Act. In the absence of such legal disability, the plaintiff's alleged depression, even if it existed, is not recognized as a legal disability under the Limitation Act, 1963.
Analysis and issues wise findings:-
9. Issues No. 1:-
The plaintiff has sought a decree of declaration to declare the Relinquishment Deed dated 02.02.2010, the Will dated 08.02.2010, and the Agreement to Sell, GPA, Receipt, Possession Letter, and Affidavit, all dated 28.07.2011, as null and void.
Relinquishment Deed dated 02.02.2010: The plaintiff claimed that she was pressured into signing the Relinquishment Deed in favor of her father, asserting that it was executed without her free consent, due to undue CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 14 of 36 VIKAS Digitally signed by VIKAS GARG Date: 2024.08.30 GARG 18:09:29 +0530 influence, coercion, fraud, and misrepresentation by the defendants. She further stated that she was not of sound mind at the time. However, the plaintiff failed to provide any evidence to support her allegations that the Relinquishment Deed was obtained through such means. There is no proof that she was under any influence or that the deed was not executed willingly.
The Relinquishment Deed is a registered document, where the plaintiff acknowledged her signature as a witness. Her photograph is affixed to the deed, and she even admitted her signature on the deed in the plaint. During cross- examination, she once again confirmed her signature on the Relinquishment Deed. The plaintiff's claims of force, coercion, and fraud are unsubstantiated and lack evidence.
The deed was executed in 2010, and the present suit was filed in 2016, a significant delay. Given the circumstances, no grounds are established to declare the Relinquishment Deed as null and void.
All the documents GPA, Agreement to Sell etc except WILL: The GPA dated 28.07.2011 is a registered document. The plaintiff has failed to provide evidence that these documents were executed by his father through fraud or any CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 15 of 36 VIKAS Digitally signed by VIKAS GARG Date: 2024.08.30 GARG 18:09:36 +0530 other unlawful means. There is no proof that the documents were obtained without his father's free consent. The plaintiff's claims in this regard are merely unsubstantiated assertions. Therefore, no grounds have been established to declare these documents as null and void.
WILL: The plaintiff contends that her father was not of sound mind when the WILL dated 08.02.2010 (Ex. D1) was executed. She also alleges that her signature on the WILL was obtained through fraudulent means. The plaintiff seeks a declaration that the WILL is null and void.
It's important to distinguish between the non-proving of documents and allegations of forgery and fabrication. In this case, the defendant no. 1, as the proponent of the WILL, bears the burden of proving its validity. The defendants have failed to establish the execution of the WILL. The detailed examination of the proof of the WILL will be addressed under issue no. 2.
However, the failure to prove the WILL does not automatically mean that it is forged or was obtained through fraud. In the absence of proof, the court may choose not to act on the WILL, but this alone does not render it null and void. The plaintiff also claims that she was unaware of the CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 16 of 36 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.08.30 18:09:43 +0530 WILL and that her signature was fraudulently obtained. The burden of proving fraud lies on the plaintiff, but she has not provided any evidence to support this claim.
Considering the above discussion with respect to the preponderance of probabilities, Issue No. 1 is resolved in favor of the defendants and against the plaintiff.
Issue no. 2 to 4:-
Issues no. 2 to 4 are interconnected and will therefore be addressed together.
The Relinquishment Deed: The Relinquishment Deed dated 02.02.2010 was found to be valid as discussed under issue no. 1. As a result, the plaintiff's and defendants' father became the rightful owner of the suit property. The court will not examine the legitimacy of the father's title to the suit property, as this is not pertinent to the partition suit.
The plaintiff claims a one-third share in the suit property, arguing that she became the owner after her father's death. However, the defendants contest this claim, relying on documents such as the GPA, Agreement to Sell, Possession Letter, receipt, and WILL.
All the documents GPA, Agreement to Sell etc except CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 17 of 36 VIKAS Digitally signed by VIKAS GARG Date: 2024.08.30 GARG 18:09:50 +0530 WILL: No title was conferred upon defendant no. 1 based on these documents. As reiterated in the Suraj Lamp Case (Suraj Lamps and Industries Pvt. Ltd. v. State of Haryana and Anr., Special Leave Petition (C) No. 13917 of 2009, Supreme Court of India), documents such as the GPA and Agreement to Sell do not confer any title.
It is also pertinent to refer to the judgment of the Apex Court in the case of Shakeel Ahmad vs. Syed Akhlaq Hussain, Civil Appeal No. 1598 of 2023, dated 01 November 2023, where the Apex Court observed:
"10 Having considered the submissions at the outset, it is to be emphasized that irrespective of what was decided in the case of Suraj Lamps and Industries(supra) the fact remains that no title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis. Even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to sections 17 and 49 of the Registration Act and section 54 of the Transfer of Property Act, 1882."
CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 18 of 36 VIKAS Digitally signed by VIKAS GARG Date: 2024.08.30 GARG 18:09:57 +0530 In light of this, no title can be attributed to defendant no. 1 based on those documents.
WILL : The defendants assert that defendant no. 1 has ownership rights to the suit property through a WILL dated 08.02.2010 (Ex. D1). However, established legal principles place the burden of proving a WILL's validity on its propounder. As per Section 63 of the Indian Succession Act, the defendants are obligated to prove the WILL's authenticity.
To establish a WILL's validity, the law requires either testimony from both attesting witnesses or from one attesting witness who can confirm the other witness's signature in their presence. Mere registration of a WILL is insufficient; robust evidence of its execution is necessary. While the plaintiff's signature on the WILL is acknowledged, this alone does not constitute proof of the WILL's validity.
The plaintiff contends that her signature on the WILL was fraudulently obtained and that she was unaware of signing any such document. Furthermore, her testimony does not confirm that the testator signed the WILL in her presence. Although the plaintiff's signature may suggest her awareness CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 19 of 36 VIKAS Digitally signed by VIKAS GARG GARG Date: 2024.08.30 18:10:03 +0530 of the WILL's existence, it does not legally prove its execution as required by law. The plaintiff's acknowledgment of her signature on the WILL, without confirming the testator's or the other attesting witness's signatures in her presence, falls short of the legal standard for proving the WILL's validity.
Hon'ble Apex Court in the case of Meena Pradhan & Ors. Vs. Kamla Pradhan & Anr 2023 INSC 847, dated 21.09.2023 Hon'ble Apex Court reiterated the principles governing the proof of a WILL in the following words.
"10. Relying on H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426 (3Judge Bench), Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135 (3Judge Bench), Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91(2Judge Bench) Yumnam Ongbi Tampha Ibema Devi v.
Yumnam Joykumar Singh, (2009) 4 SCC 780 (3Judge Bench) and Shivakumar v.
Sharanabasappa, (2021) 11 SCC 277 (3Judge Bench), we can deduce/infer the following principles required for proving the validity and execution of the Will:
i. The court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him;
ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.
iii. A Will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say:
CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 20 of 36 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.08.30 18:10:10 +0530
(a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will;
(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;
(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures;
(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;
iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;
v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator;
vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with;
vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence;
viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last Will.
CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 21 of 36 VIKAS Digitally signed by VIKAS GARG GARG Date: 2024.08.30 18:10:17 +0530 In such cases, the initial onus on the propounder becomes heavier.
ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will;
x. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.
xi. Suspicious circumstances must be 'real, germane and valid' and not merely 'the fantasy of the doubting mind' 1. Whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc.
11. In short, apart from statutory compliance, broadly it has to be proved that (a) the testator signed the Will out of his own free Will, CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 22 of 36 VIKAS Digitally signed by VIKAS GARG Date: 2024.08.30 GARG 18:10:25 +0530
(b) at the time of execution he had a sound state of mind, (c) he was aware of the nature and effect thereof and (d) the Will was not executed under any suspicious circumstances.
In the case of Smt. Niyati Das Vs. Smt. Milan Debnath (Gupta) & Ors. 2023 Live Law (Tri) 10, Hon'ble Tripura High Court observed:
"[31] The burden of proof of execution of a Will as also the suspicious circumstances attached to execution of such Will always lies on the propounder of the Will who has to prove the due execution of Will and remove the suspicious circumstances from the mind of the court by cogent and satisfactory evidence. The case of the appellant is that deceased Dhruba Kanti Gupta during his lifetime had no good relationship with his wife and children for which deceased Dhruba Kanti Gupta used to reside at his own residence at Office road, Dharmanagar alone for about 14/ 15 years from the date of execution of the Will and that the respondent No.1 even did not allow her son and daughter to keep any relation with their father Dhruba Kanti Gupta (now deceased). So, from the story of the appellant itself it may safely be presumed that late Dhruba Kanti Gupta had not been passing his days in a peaceful condition. As between funeral fire and mental worry, it is the latter which is more devastating, for, funeral fire burns only the dead body while the mental worry burns the living one. This mental torment may become acute when the person with such mental worry is going to take his life's last big decision."
In the case of P. Sasikala Vs. Smt. Chandra, Original Petition No.545 of 2010 converted to Testamentary Original CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 23 of 36 VIKAS Digitally signed by VIKAS GARG Date: 2024.08.30 GARG 18:10:32 +0530 Suit No.1 of 2011, dated 08.03.2017, Hon'ble Madras High Court observed:
"........Be that as it may, the initial onus always lies on the propounder to prove the execution as well as attestation and also testamentary capacity of the testator while executing the Will. Once the Will is proved in a manner known to law by examining the attesting witnesses besides proving testamentary capacity of the testator, then the burden shifts on the defendants to establish the plea of forgery and fabrication etc. The defendants in their written statement taken a defence that K.G.Pachiappan was suffering from severe tuberculosis in the year 2006 itself and he could not move out without the assistance of these defendants. Subsequently, he was also diagnosed with cancer. Therefore, it is the contention of the defendants that the Will has been fabricated and forged by the plaintiff."
Hon'ble Apex Court in the case titled as Dhani Ram Vs. Shiv Singh 2023 OnlineSC 1263 decided on 6 October, 2023 held:
"9. The Trial Court rightly opined that mere registration of the Will would not be sufficient to prove its validity, as its lawful execution necessarily had to be proved in accordance with Section 68 of the Indian Evidence Act, 1872 (for brevity, ' the Evidence Act'), and Section 63 of the Indian Succession Act, 1925 (for brevity, 'the Succession Act'). Thereupon, the Trial Court found that the evidence of the attesting witnesses to the Will, viz., Lok Nath Attri (DW-2) and Chaman Lal (PW-4), was contradictory as they did not speak to the same effect. In these circumstances, the Trial Court held that valid execution of the Will was not CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 24 of 36 VIKAS Digitally signed by VIKAS GARG Date: 2024.08.30 GARG 18:10:39 +0530 proved."
In the present case, no evidence has been presented to prove the WILL in accordance with the law, as discussed earlier. No witness was examined to establish the validity of the WILL, and it was merely exhibited during the evidence of Defendant No. 1. The plaintiff has alleged that her signature was obtained through fraudulent means and did not admit that the WILL was signed by her father in her presence. She also raised doubts about her father's mental fitness and capacity at the time of executing the WILL.
The WILL is purportedly signed by two attesting witnesses, yet neither the second attesting witness was examined, nor were any reasons provided for their non-examination. In light of this, the defendants have failed to prove the validity of the WILL in the present case.
Claim of Suit property purchased or/and constructed with funds of defendant no.1: The defendants asserted that Defendant No. 1 had purchased the suit property in the name of his father. However, this claim lacks merit as no evidence has been presented to support it. If Defendant No. 1 were indeed the owner, there would be no need for him to rely on the Relinquishment Deed, GPA, WILL, Agreement to Sell, and other such documents. The situation becomes even more CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 25 of 36 Digitally signed VIKAS byDate:VIKAS GARG GARG 2024.08.30 18:10:46 +0530 ambiguous when considering that if Defendant No. 1 was the owner, there is no clear explanation as to why he would need to purchase the property from his father, as alleged in the Agreement to Sell, where it is stated that he paid a consideration amount of Rs. 4,50,000/- to his father.
Furthermore, it was stated in the plaint and the evidential affidavits of the defense witnesses that Defendant No. 1 constructed the suit property in 1989. However, during the cross-examination of the plaintiff, the defendants' counsel suggested that it was incorrect to claim that the suit property was jointly purchased by the plaintiff's father and Defendant No. 1 in 1989 or that they constructed it together. These contradictions weaken the defendants' case and cast doubt on their ownership claim.
Given these inconsistencies, the defendant no. 1 has failed to establish that he was the sole owner of the property.
Amount of money given to plaintiff in lieu of her Share in the Property: The defendants, in their evidential affidavits, claimed that they supported the plaintiff in various ways, including providing food, clothing, medication, and financial assistance. They also stated that the plaintiff had already received her share and that Defendant No. 2 and their parents went beyond their capacity to help her. However, CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 26 of 36 Digitally signed VIKAS byDate:VIKAS GARG GARG 2024.08.30 18:10:52 +0530 these assertions are not supported by any pleadings in the defendants' written statements, which is a crucial omission. It is a well-established principle of law that parties cannot go beyond their pleadings, and introducing such claims in the evidential affidavits without prior pleading is improper.
Moreover, the affidavits fail to clarify how the alleged share was calculated or how much was actually given to the plaintiff. No specific details or breakdowns are provided. The defendants submitted a copy of details of cash paid to Vimal Sharma dated 11.02.2011, marked as "Mark A," and two Kisan Vikas Patra dated 22.02.2010, for Rs. 10,000/- in the plaintiff's name, marked as Ex. D3. However, there are no pleadings regarding these documents, and they are not mentioned in the evidential affidavits.
Additionally, the document marked as "Mark A" is merely a photocopy and has not been formally admitted as evidence. This document suggests that the first payment was made in 2008, but it was only prepared on 11.02.2011, which raises questions about its authenticity and relevance. Therefore, no inference can be drawn that the amounts allegedly paid to Vimal Sharma were in lieu of the plaintiff's share. The plaintiff's right to partition only accrued upon the death of her father on 28.02.2012. The defendants have not CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 27 of 36 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.08.30 18:11:00 +0530 provided any clarity on how payments made to the plaintiff prior to this date can be used to undermine her right, which arose much later.
Similarly, the Kisan Vikas Patras dated 22.02.2010 for an amount of Rs. 20,000/- cannot be considered sufficient grounds to deny the plaintiff's rightful claim to the suit property. The timing of these payments and their relevance to the partition rights are not substantiated, making them inadequate to negate her entitlement.
Non claiming of declaration of ownership and possession:-
The learned counsel for the defendants contends that the plaintiff's suit is not maintainable due to the failure to claim a declaration of ownership over the suit property. However, I find no merit in this argument. The defendants have assumed that the documents they believe cast a cloud over the plaintiff's title are the same documents for which the plaintiff has sought a declaration of nullity. Even those documents have not been declared null and void, issue no. 1 has already been decided in favor of the defendants.
Furthermore, regarding the WILL, we have already discussed that there is a distinction between the non-proving of the WILL and its declaration as null and void. The CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 28 of 36 VIKAS Digitally signed by VIKAS GARG Date: 2024.08.30 GARG 18:11:07 +0530 declaration of the WILL as null and void was denied in favor of the defendants in issue no. 1. It has also been established that the defendants failed to prove the execution of the WILL as per legal requirements.
The defendants have not clarified what other factors might cloud the plaintiff's title to the suit property. The mere absence of the term "declaration of ownership" in the pleadings is inconsequential when the plaintiff has sought to have the documents, which the defendants claim cloud the title, declared null and void. A hyper-technical approach cannot be adopted in this regard.
The decision of the Hon'ble Apex Court in Anathula Sudhakar vs P. Buchi Reddy (Dead) by Lrs & Ors, cited by the defendants, does not apply to the present facts and circumstances of this case.
It is not a rule of law that an explicit prayer for possession is required when seeking partition. The relief of possession is inherently implied in the claim for partition.
Based on the preceding discussion, it is clear that the suit property was owned by the father of the parties (plaintiff and defendants) through a relinquishment deed. Since the CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 29 of 36 VIKAS Digitally signed by VIKAS GARG Date: 2024.08.30 GARG 18:11:14 +0530 defendants have failed to substantiate the validity of the will, the property must be divided according to intestate succession. Consequently, the plaintiff and the defendants, as siblings, are each entitled to an equal share of the property.
Damages/Mesne Profits:-
The preceding analysis confirms that the plaintiff is entitled to a ⅓ share in the suit property, establishing her ownership of that portion. Since defendant no. 1 has been utilizing this share, the plaintiff has been deprived of its benefits. In principle, the plaintiff is entitled to damages from the date specified in her legal notice. However, due to the absence of evidence to quantify these damages, the court is unable to make any monetary award. The lack of substantiation regarding the quantum of damages prevents the court from determining an appropriate compensation amount.
Issue no. 5:-
As per the defendants, the plaintiff has not paid sufficient court fees. It is relevant to refer to paragraph no. 21 of the plaint, which is reproduced below:
"21. Valuation (Court Fee) - That the suit is valued for the purpose of court fee at (Rs 21,10,500/- x 1/3) which comes out to be Rs. 7,03,500/- and for declaration at Rs. 200 x 7 1400 and for permanent CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 30 of 36 VIKAS Digitally signed by VIKAS GARG Date: 2024.08.30 GARG 18:11:20 +0530 injunction being valued at Rs. 130/- and for recovery of mesne profit/damages @ Rs. 300/- per day w.e.f. filing of this suit till the actual partition of the suit property total being presently calculated for 60 Days at Rs. 18,000/- totaling Rs. 7,23,030/-
on which ad valorem court fees comes out to be approximately Rs. 9500/- which has been paid/Affixed on the plaint. That plaintiff assures this Hon'ble court that she will pay any deficiency of court fees as per order/Decree."
In response, the following objection has been raised in paragraph 3 of the written statement:
"3. That the present suit has not been properly valued for the purpose of court fee and jurisdiction and no proper court fee has been affixed thereupon. Hence, the present suit being without proper valuation and court fee is not maintainable and liable to be dismissed."
In their response to the merits, specifically addressing paragraphs 20 to 22 of the plaint, the defendants articulated their objections as follows:
"20-22. That the contents of Para No. 20 to 22 of the plaint are wrong and denied. It is submitted that the contents of the Preliminary Objections be read as reply to these paras also as the same are not being repeated herein for the sake of brevity."
It is clear that the plaintiff has provided her own valuation of the suit property for the purpose of the declaration and has paid the ad valorem court fee accordingly. The burden of CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 31 of 36 VIKAS Digitally signed by VIKAS GARG GARG Date: 2024.08.30 18:11:26 +0530 proof on this issue lies with the defendants. However, they have not presented any evidence to support their claim. Moreover, the defendants have not made any specific pleadings regarding the valuation; instead, they have only offered a general denial of the plaintiff's assertions regarding the court fee in their written statement. For the purpose of damages, the plaintiff has paid the ad valorem court fee for 60 days and has also assured the court that she would pay any additional court fee as per the court's order or decree. The plaintiff calculated the total value of the suit property at Rs. 21,10,500/-, and for her 1/3 share, the suit value was calculated as Rs. 7,03,500/-. A total court fee of Rs. 9,500/- was paid, which includes the ad valorem fee for the declaration and the fee for 60 days.
Since the court has already denied the relief for damages/mesne profits, this issue is decided in favor of the plaintiff and against the defendants.
Issue no. 6:-
The learned counsel for the defendants argued that the present suit was not filed within the prescribed period of limitation. Regarding the limitation period for seeking a declaration concerning the documents such as the GPA and Agreement to Sell (except for the WILL), the plaintiff failed CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 32 of 36 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.08.30 18:11:33 +0530 to prove that these documents were forged or fabricated, as discussed under issue no. 1. Most of these documents are registered, and the plaintiff did not establish that they were unknown to her. Therefore, it can be concluded that the suit was not filed within the prescribed limitation period (qua relief of declaration of those documents as null and void), which is three years from the execution of these documents.
As for the WILL, the defendants failed to prove its execution, which would make the WILL actionable. However, the plaintiff also failed to prove that the WILL was obtained through fraud. The plaintiff's admission of her signature on the WILL suggests that she was aware of its existence, but this does not constitute proof of the WILL's execution according to the law. The plaintiff acknowledged her signature on the WILL but did not confirm that the testator or other attesting witnesses signed the WILL in her presence.
Under these circumstances, the suit seeking a declaration that the WILL is null and void cannot be said to have been filed within the prescribed limitation period of three years from the date of the WILL's execution. Consequently, the suit is not within the prescribed period of limitation qua relief of declaration of the WILL as null and void.
CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 33 of 36 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.08.30 18:11:40 +0530 In the present case, the primary relief sought is partition, while all other reliefs are consequential. Let's determine if the suit has been filed within the prescribed limitation period for the relief of partition.
Hon'ble Delhi High Court in the case titled as Mrs. Anita Kumari Gupta Vs. Late Mr. Ved Bhushan [FAO (OS) No. 357 of 2013 date of decision 06.05.2014] held:
" A suit by a co-owner for partition can be defeated on the grant of limitation, only by pleading ouster and the other co-owners having become exclusive owner of property by adverse possession and which is not the plea of the respondent / defendant".
Hon'ble Delhi High Court in the case titled as Geeta Tandon Vs. Dr. Sunil Gomber 299 (2023) DLT 171, 2023:DHC:2421 observed:
"40. The defendants have raised an objection that the present suit is barred by limitation as the plaintiff has been claiming her right in the suit property for several years but has filed the partition suit only in the year 2012. The defendants have however, neither given any details of time from when the plaintiff had begun claiming her share, nor have they led any evidence to prove that the plaintiff has been claiming her share for several years.
41. It is pertinent to note that, even CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 34 of 36 VIKAS Digitally signed by VIKAS GARG Date: 2024.08.30 GARG 18:11:47 +0530 otherwise, Article 65 to the Schedule of the Limitation Act, 1963, provides that the limitation period to file a partition suit is 12 years which begins to run only when possession of the defendant becomes adverse to the plaintiff."
In the present case, the plaintiff has not provided any pleadings regarding ouster from the suit property. Consequently, the suit has been filed within the prescribed period of limitation.
10. Relief:-
In view of above-discussion suit of the plaintiff is decreed and plaintiff is held to be entitled following reliefs:
a. Preliminary decree of partition is hereby passed and plaintiff is held to be entitled for partition for ⅓ share of the property no. D-308, land measuring area 40 sq. yards part of Khasra No. 305/212/2, situated at village Shakar Pur Khas in the abadi of Ganesh Nagar Pandav Nagar Complex, Delhi- 110092.
b. A decree of permanent injunction is also passed in favour of plaintiff and against the defendants thereby restraining defendants, his agents, associate, attorneys etc. from alienating, transferring and parting with the possession or creating third party interest in the suit property.
CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 35 of 36 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.08.30 18:11:54 +0530 11. No order of cost is made.
12. Preliminary Decree Sheet be prepared accordingly.
13. Parties are also directed to suggest ways and means by which suit property could be partitioned by metes and bounds as per share specified in the preliminary decree.
14. Put up further proceedings on 14.10.2024.Digitally signed
Pronounced in the open court VIKAS by VIKAS GARG Date: on 30.08.2024 GARG 2024.08.30 18:12:01 +0530 (Vikas Garg) District Judge-05 /EAST) KKD, Delhi/30.08.02024 CS no. 2672/16 Vimal Sharma Vs. Mahender Sachdeva & Anr. Page no. 36 of 36