Delhi District Court
Sheelawanti vs Naresh Kumar Dutta on 13 May, 2025
IN THE COURT OF SENIOR CIVIL JUDGE CUM RENT
CONTROLLER (WEST), TIS HAZARI COURTS, DELHI
Presided by : Richa Sharma
CS SCJ No. 1558/19
CNR No. DLWT-03-00-2852-2019
SHEELAWANTI (SINCE DECEASED)
THROUGH HER LEGAL HEIR
SHRI GULSHAN KUMAR SEHGAL
S/O LATE SHRI AMAR NATH SEHGAL
R/O A-105-106, GANESH NAGAR,
TILAK NAGAR, NEW DELHI. ...PLAINTIFF
VERSUS
SHRI NARESH KUMAR DUTTA
S/O SHRI OM PRAKASH DUTTA
C/O DUTTA TAILORS/DUTTA PROPERTIES
R/O DG-II/286, VIKASPURI, NEW DELHI.
ALSO AT:
A-105, GANESH NAGAR,
TILAK NAGAR, NEW DELHI. ...DEFENDANT
Date of Filing : 10.10.2019
Date of Judgment : 13.05.2025
SUIT FOR POSSESSION, RECOVERY OF RENT, PERMANENT
INJUNCTION AND DAMAGES
JUDGMENT
1. In brief the factual matrix of the present case as per the plaint is, that the plaintiff was the lawful owner of the property bearing No. A-105-106, Ganesh Nagar, Tilak Nagar, New Delhi. It has been _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 1 of 36 averred, that the defendant is in possession of a shop at ground floor measuring 8'-0" x 13′-3" approximately, which is part of the property bearing No. A-105, Ganesh Nagar, Tilak Nagar, New Delhi, hereinafter called the suit property, which is more particularly shown in red colour in the site plan.
2. It has been averred, that the defendant was inducted as a tenant in the year 1980. It has been averred, that in the year 1999, the plaintiff approached the defendant and requested the defendant to redevelop the property, as the same was in dilapidated and it was mutually agreed between the parties, that the monthly rent shall be Rs.4400/- per month, which cannot be enhanced for coming ten years.
3. It has been averred, that thereafter the construction was raised at the property and in the month of September 1999 after completion of the construction, the defendant started paying the agreed rate of rent at the rate of Rs.4400/- per month. It has been averred, that in the year 2012, the plaintiff approached the defendant with the request to enhance the rent and the same was enhanced to Rs.5000/- per month. Thereafter, the defendant started paying Rs.5000/- per month from November, 2012 to the plaintiff.
4. It has been averred, that plaintiff in the month of December, 2018 had requested the defendant to vacate the premises and the defendant asked for some time. However, the defendant failed to do so on the one pretext or the other and had further stopped making the payment _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 2 of 36 of monthly rent. It has been averred, that the defendant had lastly paid the rent of Rs.5000/- to the plaintiff in the month of December, 2018 and thereafter, he had not paid any rent.
5. It has been further stated, that the prevailing market rate of similar property in the vicinity is Rs.20,000/- per month. It is further averred, that the defendant is now illegally occupying the property, as the tenancy has expired by efflux of time, hence liable to pay the market rate of rent. The plaintiff has prayed for the following reliefs:-
a. Decree of possession against the defendant and in favour of the plaintiff, thereby passing a decree of possession in respect of the suit property i.e. shop at ground floor measuring 8'-0" x 13′-3″ approximately which is part of the property bearing No. A-105, Ganesh Nagar, Tilak Nagar, New Delhi, more particularly shown in red colour in the site plan.
b.Decree of recovery for a sum of Rs.50,000/- in favour of the plaintiff and against the defendant along with pendente lite and future interest @ 10% per annum from the date of filing of the present suit and till its actual realization.
c. Decree of damages in favour of the plaintiff and against the defendants, thereby directing the defendant to pay damages on account of illegal _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 3 of 36 occupation of the suit property from the date of filing of the suit till the vacation of the premises Rs.20,000/- per month to the plaintiff @ in respect of the suit/tenanted property.
d. Decree of permanent injunction, thereby restraining the defendant, his agent, successors, attorney, legal heirs etc. not to create any third party interest in the suit property.
e. Cost of the suit
6. Summons of the present suit were duly served on the defendant and thereafter, on 24.12.2019, the written statement was filed by the defendant.
7. It has been contended, that the defendant is an old lawful tenant at a monthly rent of Rs.200/-, duly protected under the provisions of Delhi Rent Control Act, in as much as, the rent of the suit premises is within the permissible limit of Rs.3500/- per month and as such this Court does not have the jurisdiction to try and entertain the present suit.
8. It has been further stated, that the defendant was inducted as a tenant at a monthly rent of Rs.200/- by Late Smt. Sheelawanti and has been regularly paying the rent of Rs.200/-per month and initially when the defendant was inducted as the tenant, he had given a refundable security amount of Rs.5000/-. It is denied, that rent was ever _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 4 of 36 increased to Rs.4400/- per month as claimed and that the plaintiff had approached the defendant in the year 1999 with request to re- develop the property as the same was in a dilapidated condition.
9. It has been contended, that the plaintiff illegally wanted to re-
construct the building and there were threats to damage the tenanted shop of the defendant and other tenants. It has been contended, that the plaintiff was trying to raise construction on public land and as such, in May, 2001, the defendant along with other tenants had reported the matter on PCR (100 number) and complaints were made to the SHO, D.C.P. as well as M.C.D. on dated 03.05.2001 and 08.05.2001. The plaintiff had attempted to raise construction only in May, 2001 and not in the year 1999.
10.It has been denied, that the defendant started paying rent of Rs.4400/- per month to the plaintiff. It has been denied, that in the year 2012, the plaintiff approached the defendant with the request to enhance the rent to Rs. 5,000/- per month from November 2012. It has been contended, that the plaintiff had never served to the defendant any kind of notice of enhancement or of termination of the tenancy. It has been denied, that the market rate of rent in the vicinity of the suit property is Rs. 20,000/-.
11.It has been contended, that as per the legal proposition of law, the defendant is tenant at a monthly rent of Rs. 200/- and the rent can only be enhanced as per the provision of Delhi Rent Control Act and the defendant cannot be thrown out of the tenanted premises at the whims and choice of the plaintiff, claiming that the defendant should pay the market rent. Hence, prayer is made for dismissal of the suit.
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12.From the pleadings of the parties, following issues were framed on 09.04.2021 :-
1. Whether the plaintiff is entitled to decree of possession of the suit property as prayed for? OPP
2. Whether the plaintiff is entitled to arrears of rent? For what period and at what rate? OPP
3. Whether the plaintiff is entitled to damages on account of illegal occupation of the suit property from the date of filing of the suit till vacation of the premises? If yes, at what rate?OPP
4. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP
5. Whether the rate of rent was Rs. 200/- per month as claimed by the defendant and the Court has no jurisdiction to try and entertain the suit as per Section 50 of DRC Act? OPD
6. Relief.
13.Thereafter, the matter was fixed for the plaintiff evidence.
14.In order to prove his case, the son of deceased plaintiff / Sh. Gulshan Kumar Sehgal examined himself as PW-1, who tendered in evidence his duly sworn in affidavit, which is exhibited as Ex.PW1/1. In his testimony, following documents were exhibited:-
1. Ex.PW1/1 is the will dated 26.07.2019 (OSR), _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 6 of 36
2. Ex.PW1/2 is the site plan,
3. Ex.PW1/3 (OSR) is registered GPA dated 27.04.2012,
4. Ex.PW1/4 (Colly) is the agreement to sell, affidavit, receipt, possession letter and will, all dated 27.04.2012,
5. Ex.PW1/5 is the certified copy of sale deed dated 06.01.1972.
15.PW1 was cross-examined at length by the Learned Counsel for the plaintiff.
16.Thereafter, plaintiff examined three more witnesses i.e. his son namely Sh. Tarun Sehgal as PW2, who was also cross-examined at length by the Learned Counsel for the plaintiff.
17.Further, the plaintiff has examined Sh. Sanjay Seth as PW3 and he was also cross-examined at length by the Learned Counsel for the plaintiff. Lastly, the plaintiff examined PW4 namely Ms. Sudha Sr. Assistant, who was the summoned witness and she brought the record of the lease deed dated 17.01.2020 and registered Wills bearing registration no. 1541 and 1542, both are in book no. 3, volume no. 211 at pages 139 to 146. The said documents were exhibited as Ex.PW4/1 and Ex.PW4/2.
18.Thereafter, the plaintiff's evidence was closed.
19.In support of his averments, the defendant examined himself as DW1, who filed his affidavit in evidence and relied upon the documents i.e. Ex.DW1/1 to Ex.DW1/3 (OSR) being the complaints _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 7 of 36 made to the MCD and Ex.DW1/4 is the complaint lodged with the SHO dated 08.05.2001.
20.Thereafter, the defendant examined Sh. Manjit Singh Kohli as DW2 and Ms. Meenakshi Bansal, Section Officer, House Tax Department, as DW3, who were the summoned witness and had brought the summoned record i.e. the assessment order dated 27.01.2004 Ex.DW3/1, undertaking cum affidavit Ex.DW3/2, valuation report Ex.DW3/3 (colly) and inspection report pertaining to 2002-2003 Ex.DW3/4 and Form A of MCD Ex.DW3/5 (OSR).
21.Thereafter the defendant's evidence was closed and the matter was listed for final arguments.
22.I have heard the submissions advanced by Ld. Counsels for the both the parties at length and have further perused the record carefully.
23.My issue-wise findings are as under :-ISSUE NO. 2, 3 AND 5
2. Whether the plaintiff is entitled to arrears of rent? For what period and at what rate? OPP
3. Whether the plaintiff is entitled to damages on account of illegal occupation of the suit property from the date of filing of the suit till vacation of the premises? If yes, at what rate?OPP
5. Whether the rate of rent was Rs. 200/- per month as claimed by the defendant and the Court has no jurisdiction to try and entertain the suit as per Section 50 of DRC Act? OPD _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 8 of 36
24.The Issue No. 2, 3 and 5 are taken up together as they are inter-
related with each other and involve common questions of law and facts.
25.Before delving into the merits of the case, this Court deems it fit to discuss in brief the law pertaining to the burden of proof as entailed under the earlier Indian Evidence Act, 1872 and the present Bhartiya Sakshya Adhiniyam 2023.
26.The burden of proof in civil trial is the obligation upon the plaintiff that the plaintiff would adduce evidence that proves his claim against the defendant and is based on preponderance of the probabilities. Under Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it. Relevant provisions of the Bhartiya Sakshya Adhiniyam 2023 dealing with burden of proof are produced as under:-
Burden of proof:-
104. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 9 of 36 existence of any fact, it is said that the burden of proof lies on that person.
105. On whom burden of proof lies.--
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
106. Burden of proof as to particular fact.-
The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
109. Burden of proving fact especially within knowledge.--
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
27.Therefore, on the basis of the law laid down as above, court proceeds with the appreciation of evidence as adduced in the present suit.
28.In order to appreciate the averments of the plaintiff, this court needs to deliberate into the examination in chief and the cross-examination _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 10 of 36 of the plaintiff's witnesses that was conducted before the court. To begin with, PW1 has categorically admitted in his cross-examination that prior to year 1999, the defendant was paying the rent of Rs. 200 per month, meaning thereby that there is a categorical admission on the part of PW1, that prior to the alleged enhanced rate of rent to Rs.4400 in the month of September 1999 as per the averment of the plaintiff, the defendant had been paying the rent at the rate of Rs. 200 per month only. It is vital to note, that as per the narrative of PW-1, the mother of PW-1 i.e. deceased Smt. Sheelawanti neither issued any receipt for the rent paid by the defendant nor did she ever keep any account of the period to which the rent stood paid by the defendant. He further admitted, that pursuant to the demise of his mother, even he did not maintain any record pertaining to the rent or the period till which the rent was paid. The relevant excerpts of the cross-examination of PW1 to this effect are reproduced as under :-
"The rent of the defendant was increased to Rs.4400/- in the year 1999, Prior to that the defendant was paying rent of Rs. 200/- per month. My mother was not issuing any rent receipt paid by the defendant. The rent was paid by defendant @Rs. 200/- per month till the year 1999. The same was paid in the month of September 1999. My mother was not keeping any account regarding rent and upto which period the same was paid. I also did not maintain any record _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 11 of 36 pertaining to the rent or the period till which the same was paid."
29.It is further the case of the plaintiff, that the rent was enhanced in September 1999, but neither did he remember the date when the rent was enhanced, nor has he placed on record any document to even remotely substantiate the affirmation that the rent was enhanced to Rs. 4400 in September 1999.
It is apposite to note, that it is only for the first time in the cross-examination of PW1, the said fact has surfaced via the admission that prior to alleged enhanced rate of rent of Rs. 4400, the defendant was paying rent at the rate of Rs. 200 per month. It is also material to note, that there is a deliberate attempt on the part of the plaintiff to not to disclose the factum regarding the payment of rent at Rs. 200 per month prior to the enhancement of the rent to Rs. 4400/- for the reasons best known to the plaintiff. It is further averred by PW-1, that talks for enhancement of rent to Rs. 4,400 had taken place between his mother and the other tenants, namely Naresh Dutta, Kawaljit Sahani, Subhash Bajaj, and the name of the fourth tenant, he did not remember. However, he was not present there at the time when the talks did transpire, meaning thereby, that the factum regarding the talks being done at his house in the presence of defendant and other tenants is only an hearsay evidence, as he simply deposed as to what had come to his knowledge and what information was given to him by others. The relevant excerpts of the cross-examination of PW1 to this effect are reproduced as under :-
_________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 12 of 36 " The rent was enhanced in September 1999 bu I do not remember the date when the rent was enhanced to Rs. 4400/- The talks regarding enhancement of rent had taken place with my mother and the tenants namely Sh. Naresh Dutta, Sh, Kawaljit Sahani, Sh, Shubhash Bajaj and the name of the fourth tenant I do not remember. The talks were held at my home however I was not present nor the talks had taken place in my presence."
30.It is apropos to note, that PW1 in his cross-examination at one place had stated, that the talks took place regarding the enhancement of rent at his house between his mother and the tenants, namely Naresh Dutta, Kawaljit Sahani, Subhash Bajaj, and the name of the fourth tenant he did not remember, who was also a part of the said talks. But in the latter extract of his cross-examination, he had deposed in contravention of his earlier deposition as in the latter part he stated, that he did not know as to who all were the persons present and it may be his mother and his younger brother namely Sh. Kimti Lal. The relevant excerpts of the cross-examination of PW1 to this effect are reproduced as under :-
" I do not know who were the persons present and it may be my mother and my younger brother namely Sh. Kimti Lal."
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31.It is also not out of place to mention, that there is an averment regarding the enhancement of rent initially at Rs. 4400/- and subsequently to Rs. 5000/- but at the same time, PW1 had categorically admitted, that the defendant had never paid any rent at the rate of Rs. 4400 or Rs. 5000/- to him. The relevant excerpts of the cross-examination of PW1 to this effect are reproduced as under :-
It is correct to suggest that the defendant has never paid any rent of Rs. 4400/- or Rs. 5000/- to me.
32.Though, it is deposed by PW1, that his mother used to receive rent at the rate of Rs. 4400/- from September 1999 onwards but he again said that he did not remember in which period she had received rent of Rs. 4400/-. He further deposed, that rent of Rs. 5000/- was paid in the year November 2012, but he also admitted, that no receipt was ever given of any such amount. He further admitted, that neither his mother was keeping the account of such amount nor any such amount was ever shown in any records of the MCD or Income Tax. The relevant excerpts of the cross-examination of PW1 to this effect are reproduced as under :-
"My mother used to received Rs. 4400/-
first time in September 1999. I do not remember in which period she had received rent of Rs. 4400/- Rent of Rs.
5000/- was paid in the year November 2021 no receipt was given to the tenant for _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 14 of 36 any such amount. My mother was not keeping any account of such amount received by me. No such amount as rent has ever been shown in any records of MCD or Income-Tax."
33.Thus, from the cross-examination of PW1, it can be safely deduced, that primarily there is principal admission with regard to the payment of the initial rent at the rate of Rs. 200/- by the defendant to the mother of the plaintiff and thereafter once the said admission has been made, a subsequent statement spurs up from the side of the defendant with regard to the enhancement of rent to Rs. 4400/- and subsequently to Rs. 5000/-. Hence, the onus shifted upon the plaintiff to prove the same. Admittedly, no document has been placed on record either in the form of any rent agreement or in the form of rent receipt or statement of account being maintained by the plaintiff or his mother or any record of the MCD or Income tax substantiating the fact that the mother of the plaintiff or the plaintiff was receiving rent at the rate of Rs. 4400 from September 1999 and thereafter at the rate of Rs. 5000 from November 2012.
34.It is pellucid to note, that PW1 in his cross-examination had further deposed, that they had many a times requested the defendant to enhance the rent amount but the defendant did not enhance the same. If so was the case, the principal averment of the plaintiff on which his case rests regarding the mutual agreement with regard to the enhancement of the rent from Rs. 200 to Rs. 4400 and subsequent to Rs. 5000 stands falsified. It is to be noted, that PW1 in his cross- _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 15 of 36 examination was put a specific question in this regard. The relevant excerpts of the cross-examination of PW1 to this effect are reproduced as under :-
"We had many times requested the defendant to enhance the rent but defendant did not enhance the rent.
Q. If the defendant was not enhancing the rent of Rs. 200/- then how was enhanced to Rs. 4400/- as claimed by you?
Ans. We requested and other tenants to vacate the shop or alternatively allow us to raise the construction and the defendant said that they will not vacate the shop and on our request they agreed to enhance the rent to Rs. 4400/- and further to Rs. 5000/-."
35.Thus, from the cross-examination of the PW1 appreciated as above, it safely stands deduced, that :-
Firstly - the admitted rate of rent as per the plaintiff's witnesses at which the rent was being paid by the defendant to the plaintiff till 1999 was Rs. 200/- and thereafter, the onus shifted upon the plaintiff to prove that the rate of rent was enhanced to Rs. 4400/- and subsequent to Rs. 5,000/-. It is further admitted by the PW1, that no rent receipt showing the enhanced amount of rent i.e. Rs. 4400 or Rs. 5000/- had been placed on record.
_________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 16 of 36 Secondly - It is the admitted case of PW1, that neither his mother nor he maintained any account or any record of the MCD or Income tax vide which he could show, that the mother of the plaintiff or the plaintiff was receiving rent at the rate of Rs. 4400 from September 1999 and thereafter at the rate of Rs. 5000 from November 2012.
36.Apart from PW1, plaintiff also got examined PW2 i.e. his son. Even PW2 admitted in his cross-examination, that no receipt was ever issued by them showing the amount of Rs. 4400 as rental amount and even he admitted, that initially the rent was Rs. 200 per month. He further stated in his cross-examination, that in september 1999, the rent was enhanced to Rs. 4400/-. There is also a categorical admission on the part of PW2, that no notice was given to defendant for enhancement, however the same was enhanced in the meeting held between the plaintiff and defendant and admittedly no written document was executed regarding the terms arrived at in the said meeting. The relevant excerpts of the cross-examination of PW2 to this effect are reproduced as under :-
"No receipt was issued by us for the said amount. Approximately in the year 1980 property was let out to the defendant.
Initially, the rate of rent was R. 200/- per month. In September, 1999 the rent was enhanced to Rs. 4400/- pr month. No notice was given to the defendant for enhancement however the same was enhanced in he meetings held between _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 17 of 36 plaintiff and defendant and no written document was executed."
37.It is further not out of place to mention, that PW2 in his cross-
examination stated, that he was not making any disclosure with regard to the rental income being received by them as a part of their income. Another discrepancy highlighted in the cross-examination of PW2 is with regard to the fact, that plaintiff in para no. 4 of the plaint averred that "in the year 1999, plaintiff approached the defendant and requested the defendant to redevelop the property as the same was in dilapidated condition". However in the cross- examination of PW2, he narrated a story which is completely opposite to the facts of the plaint, as he averred, that since the property was in dilapidated condition, it was the defendant who approached his father and his grandmother thereby agreeing to pay the enhanced rate of rent in case the property was renovated and separate electricity meter was installed at the suit property. The relevant excerpts of the cross-examination of PW2 to this effect are reproduced as under :-
"In my return I am not disclosing the rental income as part of my income. Me and my father used to receive rent at our house, at the shop or from the tenanted premises at time. I never received or saw my father receiving the rent @ Rs. 200/- per month. As the property is in dissipated condition being old construction, the defendant _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 18 of 36 approached to my father and my grandmother and shown their desire to pay their enhanced rent in case, the property is renovated and separate electricity meter be installed at the suit property."
38.Thus, from the above extract of the cross-examination of PW2, the entire framework of the plaintiff's case as to why and under what circumstances the construction was carried out stands shaken thereby putting the entire case of the plaintiff under scanner. Even PW2 did not come to the rescue of the plaintiff as the story narrated by him with regard to the alleged construction that was undertaken and the prospect on which the same was done turns out be in contravention of the basic averment of the plaintiff.
39.Thereafter, plaintiff got examined PW3, who deposed in the capacity of one of the tenants of the plaintiff, but he was oblivious of the information regarding the date on which the defendant was inducted as a tenant and the rate of rent that he was paying and categorically submitted, that he had shifted the property in the year 1995 and therefore he had no knowledge as to what was the rent that was paid by the defendant as the defendant was inducted prior to 1995. However, PW3 could not give exact date on which the rent was being paid and also stated that he had no concern about the issuance of receipt. He further stated, that he did not know as to what was the rent of defendant prior to the alleged enhanced rent of Rs. 5000/-. He further stated, that he was a close friend of plaintiff and being in the said capacity, he came to depose before this Court. He further _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 19 of 36 stated, that the rent was being paid every month but he could not give exact date and time when it was paid. He further stated, that the rent was being received by both the brothers i.e. Kimit Sehgal and Gulshan Sehgal.
40.It is further relevant to note, that PW3 was the friend of the sons of the plaintiff and used to sit in the office with them and had signed the affidavit in evidence Exhibit PW3/A at the behest of the sons of the plaintiff and all these facts are needed to be kept in mind in evaluating the deposition of PW3 as he is clearly an interested witness, being in close association with the sons of the deceased plaintiff.
41.Thus, on the basis of the examination in chief and cross-examination of the plaintiff's witnesses, this court deduces as under :-
Firstly, the plaintiff filed the present suit claiming the defendant to be an old tenant since 1980. However, plaintiff in his claim has neither disclosed the exact date on which the defendant was inducted as a tenant, nor has he anywhere disclosed initial rate of rent on which the tenancy was given. Though the said fact has surfaced in the cross-examination of the plaintiff's witnesses by way of admission, that the initial rate of rent was Rs. 200/-, but the concealment of said fact raises a question mark with regard to the claim of the plaintiff regarding the subsequent enhancement in the rate of rent and thereby this prima facie puts the case of the plaintiff under scanner.
_________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 20 of 36 Secondly, by amendment of the Delhi Rent Control Act 1988, which came into effect from 1st December 1998, all the tenancies whose monthly rent exceeded Rs. 3500 were excluded from the DRC Act. In this regard, reliance has been placed on the judgment titled as Model Press Pvt. Ltd. v. Mohammad Saeed, 155 (2008) Delhi Law Times 403 DB, in which it was held as under :-
6. In Delhi, a tenant paying rent of less than Rs.
3,500/- per month is "protected by the Delhi Rent Control Act 1958 and can be ejected only by the Rent Controller on one or more of the grounds enumerated under Section 24 of the Deli Rent Control Act, 1958. It may be noted that prior to the amendment incorporated in the Delhi Rent Control Act, 1958 by Act No. 37 of 2988 with effect from 1.12.1988 all tenancies in Delhi, irrespective of the rent payable, were covered by the provisions of the Delhi Rent Control Act 1958. By Act No. 37 of 1988 Clause 'c' was inserted in Section 3 of the Delhi Rent Control Act 1958, the effect whereof is to exclude premises whose monthily rent exceeded Rs. 3,500/- per month from the rigours of the Act.
7. It may be noted at the outset that the vires of Act No. 37/1988 and of Cinase (c) of Section 3 of the Delhi Rent Control Act 1958 was upheld by the Supreme Court in the decision reported as 56 (1994) DLT 324 (SC) 1995 (1) SOC 104, D.C. Bhatia & Ors. v. UOI & Ors.
8. The appellants suffered rejection of their plaints _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 21 of 36 because the admit-ted agreed rent of the two premises, as noted herein above was far below Rs. 3,500/- per month and thus the bar created by Section 14 of the said Act to the jurisdiction of the Civil Court has been held fatal to the suits.
Admittedly, as per the deposition made by the plaintiff's witnesses during their cross-examination, the initial rent at which the tenancy was given to the defendant was Rs. 200. Accordingly, the property in question to be begin with falls within the ambit of the Delhi Rent Control (DRC) Act.
Once, this candid admission on the part of the plaintiff's witnesses stands made that till 1999 September the rate of rent was Rs. 200, the onus most certainly shifted upon the plaintiff to prove that the rate of rent was thereafter enhanced to Rs. 4400 and subsequently to Rs. 5000, but no evidence has been led in this regard by the plaintiff, so to speak, apart from the bald oral averments.
42.At the cost of brevity, it is being stated, that PW1 and PW2 in their cross-examinations deposed that initial rate of rent was Rs. 200/- and thereafter they failed to prove the alleged subsequent enhancement in rates of rent to Rs. 4400 and Rs. 5000 by adducing any plausible evidence. They further admitted, that neither the plaintiff nor his son use to maintain any account nor any receipt was issued to the tenants even to primafacie establish that the rent was enhanced to Rs. 4400 and subsequently to Rs. 5000.
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43.It is further vital to appreciate the averments that have been specifically deposed by the DW1 in his affidavit in evidence, whereby in para no. 15 of the said affidavit, it stands claimed that the deceased Smt Sheelwanti had disclosed in MCD Department Record, that the rent with respect to the tenanted premises was Rs.200/- per month during the year 2002-2003 and the said fact has been duly proved on record vide the assessment including inspection Form 'A' bearing no. 19477 dated 11-12-1983, in which the rent of the Dutta Tailors i.e. Defendant was shown as Rs. 200/- per month. The witness was neither cross-examined on the said aspect nor any suggestion was put to the witness in this regard.
44.Thus, the defendant has duly raised a doubt with regard to the existence of rent i.e. Rs. 200/- even in the year 2002-2003, thereby bringing into the picture the protection under the Delhi Rent Control Act, thereby barring the jurisdiction of this Court.
45.At this stage, it is vital to reproduce the Section 50 of The Delhi Rent Control Act, 1958 and the same is reproduced as under :-
50. Jurisdiction of civil courts barred in respect of certain matters.
(1)Save as otherwise expressly provided in this Act, no civil court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant therefrom or to any other matter which the Controller is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under this Act shalt be- granted by any civil _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 23 of 36 court or other authority.(2)If, immediately before the commencement of this Act, there is any suit or proceeding pending in any civil court for the eviction of any tenant from any premises to which this Act applies and the construction of which has been completed after the 1st day of June, 1951, but before the 9th day of June, 1955, such suit or proceeding shall, on such commencement, abate.(3)If, in pursuance of any decree or order made by a court, any tenant has been evicted after the 16th day of August, 1958, from any premises to which this Act applies and the construction of which has been completed after the 1st day of June, 1951, but before the 9th day of June, 1955, then, notwithstanding anything contained in any other law, the Controller may, on an application made to him in this behalf by such evicted tenant within six months from the date of eviction, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit.(4)Nothing in sub-
section (1) shall be construed as preventing a civil court from entertaining any suit or proceeding for the decision of any question of title to any premises to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such premises.
46.Further, reliance has been placed on the judgment titled as Sarwan Kumar VS. Madan Lal Aggarwal, 103 (2003) Delhi Law Times 20 (SC), in which it was held as under :-
In the present case because of the operation of Section 14 of the Act the only authority to pass a decree for ejectment of the tenanted premises is the Rent Controller appointed under the Act and Section 50 of the Act specifically bars the jurisdiction of the civil court to entertain any suit or proceeding in so far as it relates to the eviction of any tenant from the premises which were covered by the Delhi Rent Control Act. The civil court lacked the inherent jurisdiction to take cognizance of the cause and to pass a decree. Challenge to such a decree on the ground of nullity could be raised _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 24 of 36 at any later stage including the execution proceedings.
Tenancy of the building was governed by a special Act and therefore the decree passed by the civil court was a nullity and therefore inexecutable. Judgment-debtors had not filed their written statement in the civil court and no issue regarding the jurisdiction of the civil court to try the suit was framed. Tenant in the special leave petition in this Court raised the contention that the eviction decree passed by the civil court could not be executed against them. This Court refused to go into that question as it was not the subject matter of the order under appeal. It was left open to the judgment- debtors to raise this ground before the appropriate forum, if available to them under law. The only forum where the judgment-debtors could raise the objection regarding the executability of the decree was in the execution proceedings which they did. Since the jurisdiction of the civil court was barred, the decree passed by it was a nullity and the judgment-debtors could successfully raise objection regarding the executability of such a decree. The executing court erred in holding that judgment-debtors could not raise the objection to the executability of the decree being nullity having been passed by a court lacking inherent jurisdiction to do so. This Court in Gian Devi Anand's case (supra) did not lay down any new law but only interpreted the existing law which was in force. As was observed by this Court in Lily Thomas's case (supra) the interpretation of a provision relates back to the date of the law itself and cannot be prospective of the judgment. When the court decides that the interpretation given to a particular provision earlier was not legal, it declares the law as it stood right from the beginning as per its decision. In Gian Devi Anand's case (supra) the interpretation given by the Delhi High Court that commercial tenancies were not heritable was overruled being erroneous. Interpretation given by the Delhi High Court was not legal. The interpretation given by this Court declaring that the commercial tenancies heritable would be the law as it stood from the beginning as per the interpretation put by this Court. It would be deemed that the law was never otherwise. Jurisdiction of the civil court has not been taken away by the interpretation given by this Court. This Court declared that the civil court had no jurisdiction to pass such a decree. It was not a question of taking away the jurisdiction it was the declaration of law by this Court to that effect. The civil court assumed the jurisdiction _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 25 of 36 on the basis of the interpretation given by the High Court in Gian Devi Anand's case, which was set aside by this Court.
For the reasons stated above, the appeal is accepted. The order passed by the High Court as well as the executing court regarding the executability of the decree passed by the civil court are set aside. It is held that the jurisdiction of the civil court to pass the decree for ejectment was barred. A decree passed by a Court having no jurisdiction over the subject matter would be a nullity and the judgment-debtor can object to the execution of such a decree being a nullity and non est. Its invalidity can be set up whenever it is sought to be enforced including the stage of execution of the decree or any other collateral proceedings. We are conscious of the fact that it would work a great hardship on the respondent-decree holder who would not be able to reap the benefit of the decree passed in his favour having won at all the stages but the vagaries of law cannot be helped. Accordingly, appeal is accepted. Orders of the High Court and the executing court are set aside. It is held that the decree obtained by the decree-holder cannot be executed being a nullity and non est. The parties are directed to bear their own costs.
47.Thus, in lieu of the law laid down as above, it can safely be culled out, that the the testimonies of witnesses of the plaintiff I.e PW1 and PW2 are vague, non-believable and are further consisting of interse contradictions thereby resulting in non-reliance. Further, it has been duly proved on record, that the rate of rent was Rs. 200 till September 1999, however the plaintiff has failed to prove that thereafter the rent was enhanced to Rs. 4400 and subsequently to Rs. 5000 and therefore, the jurisdiction of this Court to try and entertain the present suit is barred under Section 50 of the Delhi Rent Control Act.
48.Hence, this Court does not have jurisdiction to try the present suit as _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 26 of 36 per Section 50 of the Delhi Rent Control Act and thus, issue no. 5 is decided in favour of the defendant and against the plaintiff. Thus, once the Court has arrived at the conclusion, that the present suit is barred on account of jurisdiction, the question of adjudication of arrears at the rate of Rs. 4400 and Rs. 5000 and the consequential damages perse does not arise. Accordingly, issue no. 2 and 3 are also decided against the plaintiff.
ISSUE NO. 1 AND 41. Whether the plaintiff is entitled to decree of possession of the suit property as prayed for? OPP
4. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP
49.It is pellucid to note, that the present suit was filed somewhere around 03.10.2019 and the plaintiff passed away on 16.10.2019 and the son of the plaintiff namely Sh. Gulshan Kumar Sehgal relied upon a will dated 26.07.2019, which has not been proved on record as per requirement of the law. It has been stated by PW1, that the will was executed prior to one month of the death of Smt. Sheelawanti (deceased plaintiff).
50.It is vital to note, that as per mandate of Law and Evidence Act, the Will has to be proved by examining the attesting witness of the same, however no attesting witness has been examined by the plaintiff, who could prove that the alleged thumb impressions were put by the deceased Sheelawanti after reading and explaining the contents of the Will to her. Further, the Will in question contained _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 27 of 36 the thumb impressions of the deceased. It is vital to note, that one of the submissions made by the PW1 is that the deceased Sheelawanti in her last days was not able to put her signatures, even though she knew how to sign and therefore, she embossed her thumb impressions instead of signing the Will.
Admittedly, the deceased knew how to sign but the Will in question does not contain her signatures but thumb impressions, the factum and scenario in which the will was not signed due to her medical conditions ought to have been proved by the plaintiff. However, no evidence has been led by the plaintiff to this effect as neither any medical documents of deceased have been filed nor any attesting witness has been examined to prove the said fact.
Thus, in the considered opinion of this Court, PW1 is unable to prove the execution of the Will in his favour by deceased Sheelawanti, which is the principal document on which PW1 had placed reliance in respect of his claim.
51.It is even interesting to note, that no averment qua the ownership of plaintiff Gulshan Kumar Sehgal has been made anywhere in suit and the same is in total contradiction to the averments made by the plaintiff's witnesses in their examination and cross-examination. Admittedly, the suit was initially filed by Smt. Sheelawanti and in para 8 of the plaint it was claimed by her, that she had a desire to settle her family during her lifetime and requested the defendant to vacate the premises in question. Further, there is no iota of any whisper regarding the said Will allegedly been executed by her dated _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 28 of 36 26.07.2019 on the basis of which, Sh. Gulshan Kumar Sehgal has been claiming exclusive ownership.
52.Admittedly, the site plan filed by deceased Sheelawanti had shown Five shops and no shop number was given to the shop of defendant as per pleadings of the plaint, however in the alleged Will dated 26.07.2019, there is reference of 10 Shops with numbers and different shops are claimed to have been allotted to two sons namely Gulshan Lal and Sh. Kimti Lal Sehgal.
It is vital to note, that the initial contents of the plaint and the subsequent averments that are being tried to be proved by way of the alleged will are not on the same page, as vide the said will which does not stand proved on the record, PW1 has not only asserted for the partition between the two sons of the plaintiff i.e. PW1 and Sh. Kimati Lal Sehgal of the deceased Sheelawanti, but also for the ownership rights in his favour. However, the same ought to have been proved as a separate cause of action.
53.Reliance has been placed on the judgment of the Supreme Court titled as Janki Narayan Bhoir vs Narayan Namdeo Kadam, (2003)2 SCC 91, in which detail procedure has been laid down and explained in respect of the proving a Will. The relevant portion is reproduced as under :-
"........We think it appropriate to look at the relevant provisions, namely, Section 63 of the Indian Succession Act, 1925 and Sections 68 and 71 of the Indian Evidence Act, 1872 which read:
Section 63 of the Succession Act "63. Execution of _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 29 of 36 unprivileged wills.-
Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:-
(a) .....
(b) .....
(c) The will shall be attested by two or more witnesses, each of whom has 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 acknowledgement of his signature or mark, or of the signature of such other person;
and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
Section 68 of the Evidence Act "68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving it's execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided..."
Section 71 of the Evidence Act "71. Proof when attesting witness denies the execution.- If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."
To say will has been duly executed the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e., (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 30 of 36 could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witnesses has to sign the Will in the presence of the testator.
It is thus clear that one of the requirements of due execution of will is its attestation by two or more witnesses which is mandatory.
Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section
63. Although Section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 31 of 36 provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of clause
(c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.
Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68, Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling attesting witnesses, though alive. This Section provides that if an attesting witness denies _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 32 of 36 or does not recollect the execution of the will, its execution may be proved by other evidence. Aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the execution of the same, for the reasons best known, have not been summoned before the court. It is clear from the language of Section 71 that if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence.
However, in a case where an attesting witness examined fails to prove the due execution of will as required under clause (c) of Section 63 of the Succession Act, it cannot be said that the Will is proved as per Section 68 of the Evidence Act. It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of will can be proved by other evidence dispensing with the evidence of other attesting witnesses though available to be examined to prove the execution of the will. Yet, another reason as to why other available attesting witnesses should be called when the one attesting witness examined fails to prove due execution of the Will is to avert the claim of drawing adverse inference under Section 114 illustration (g) of Evidence Act. Placing the best possible evidence, in the given circumstances, before the Court for consideration, is one of the cardinal principles of Indian Evidence Act. Section 71 is permissive and an enabling Section permitting a party to lead other evidence in certain circumstances. But Section 68 is not merely an enabling Section. It lays down the necessary requirements, which the Court has to observe before holding that a document is proved. Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility cannot be let down without any other means of proving due execution by "other evidence" as well. At the same time Section 71 cannot be read so as to absolve a party of his obligation under Section _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 33 of 36 68 read with Section 63 of the Act and liberally allow him, at his will or choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the court concerned and confer a premium upon his omission or lapse, to enable him to give a go bye to the mandate of law relating to proof of execution of a will.
Turning to the facts of the case on hand, it is evident that only one attesting witness Prabhakar Sinkar, examined in the case, did not prove the execution of the Will inasmuch as he did not prove the attestation of the Will by the other attesting witness Wagle who though available was not examined. The scribe examined in the case was not an attesting witness, which is clear from the evidence on record and as rightly conceded so by learned counsel for the respondent before us. Hence, it is unnecessary to go into the question whether the scribe in this case could or could not be an attesting witness. The evidence of Sinkar, the only attesting witness, does not satisfy the mandatory requirements of Section 68 of the Evidence Act. We are not in a position to accept the contention urged on behalf of the respondent that the evidence of other witnesses, namely, that of the respondent and the scribe could be considered under Section 71 of the Evidence Act. Section 71 has no application when the one attesting witness, who alone has been summoned, has failed to prove the execution of the will and other attesting witness though available has not been examined. When the document is not proved as mandatorily required under Section 68 of the Evidence Act, the provision of Section 71 of the Evidence Act, which is permissive, and enabling in certain circumstances as discussed above does not help the respondent. In Vishnu Ramkrishna & Ors. v. Nathu Vithal & Ors. [(AIR) 1949 Bom. 266], Chagla, C.J., speaking for the Division Bench in similar circumstances has stated that although Section 63 of the Succession Act requires that a will has to be attested by two witnesses, Section 68 of the Evidence Act permits the execution of the will to be proved by only one attesting witness being called. Where the attesting witness, who is called to prove the execution, is not in a position to prove the attestation of the will by the second witness, the evidence of the witness _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 34 of 36 called falls short to the mandatory requirements of Section 68. Section 71 of the Evidence Act can only be requisitioned when the attesting witnesses who have been called failed to prove the execution of the will by reason of either denying their own signatures or denying the signature of the testator or having no recollection as to the execution of the document. This Section has no application when one attesting witness has failed to prove the execution of the will and other attesting witnesses were available who could prove the execution if they were called.
54.Thus, in the teeth of the above analysis qua the Will in question, it can be safely deduced as under :-
1. Firstly, PW has miserably failed to prove the Will in accordance with law as no attesting witness has been examined by the plaintiff to prove the same,
2. Secondly, Deceased Sheelawanti admittedly knew how to sign, but still the will in question is not embossed with her signatures but her thumb impressions and no evidence has been advanced to prove on record the circumstances and scenario that led the deceased to put her thumb impressions on the Will instead of her signatures,
3. Thirdly, vide the said will which does not stand proved on the record, PW1 has not only asserted for the partition of the shops between him and his brother i.e. the two sons of the deceased Sheelawanti (Plaintiff), but indirectly he had also sought the relief of ownership rights in his favour, which ought to have been proved as a separate cause of action as same is neither _________________________________________________________________________________________________________ CS SCJ No. 1558-2019 Smt. Sheelawanti (since deceased) Through her legal heir Vs. Naresh Kumar Dutta Page No. 35 of 36 forming a part of the pleading nor of the prayer sought for.
55.Therefore, in view of the detailed discussions and laws reproduced as above, issue no. 1and 4 also stand decided against the plaintiff.
Relief
56.As a sequel to the observations and findings made, the suit of the plaintiff stands dismissed. No separate order as to cost.
57.Decree sheet be prepared accordingly.
58.File be consigned to record room, after due compliance.
Digitally
signed by
RICHA
RICHA SHARMA
SHARMA Date:
2025.05.13
Announced in the open Court 15:46:51
on 13.05.2025 RICHA SHARMA +0530
SCJ-cum-RC (West)
THC / Delhi / 13.05.2025
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