Delhi District Court
Suit No. 292/ vs Sh. Bhagat Ram on 22 February, 2014
IN THE COURT OF MS. NITI PHUTELA
CIVIL JUDGE02,SOUTH DISTRICT, NEW DELHI
Suit No. 292/10
Smt. Harjit Kaur
W/o Late Sh. S Harcharan Singh, .........Plaintiff no. 1
Miss Inderjeet Kaur
D/o Late Sh. S Harcharan Singh .........Plaintiff no. 2
Both:
R/o Block 52/43, Ramjas Road,
Karol Bagh, New Delhi.
Versus
Sh. Bhagat Ram
S/o Sh. Ram Swaroop
R/o 1738, Kotla Mubarakpur Village,
New Delhi 110021 ........Defendant
Date of Institution : 06.04.2010
Date of Reserving the Order : 22.02.2014 (Pre Lunch)
Date of Pronouncement : 22.02.2014 (Post Lunch)
JUDGMENT:
1. Vide this judgment, I shall decide suit of plaintiff filed by her seeking possession, mesne profits and future damages alongwith interest.
2. Brief facts necessary for disposal of the present suit are that it is the case of the plaintiffs that plaintiffs are legal heirs of Late Sh. S Harcharan Singh being his widow and daughter respectively. The version of plaintiffs are that Sh. S Harcharan Singh expired on 16.05.2009 leaving the abovesaid plaintiffs as successorininterest and accordingly they are CS No. 292/10 Page 1/15 entitled to inherit all the movable and immovable properties of the deceased. That defendant and the deceased were childhood friends and used to visit each others residence. In pursuance of the abovesaid friendly relationship defendant alongwith his son namely Shri Rajiv Lehra approached the deceased on 10.07.2005 for extending financial help to defendant for the business of purpose of Shri Rajiv Lehra. They requested for providing three lakhs as loan to defendant. Considering the relationship between the parties the deceased agreed to the same. Feeling obliged by this gesture defendant requested the plaintiff to accept interest on the said amount so that the relationship between the parties be balanced. As per plaintiffs the deceased was initially not interested to receive any interest but on persistent request of defendant he agreed to accept monthly interest. It is further conceded by plaintiffs that as there were very good friendly terms between the parties, no document in writing was executed and it was verbally agreed that 2% rate of interest per month would be paid by defendant to deceased and plaintiff no.1. On the same very day sum of Rs. 1,00,000/ was paid to defendant as that much amount of cash was available with the deceased and rest of the amount of Rs. 2,00,000 were paid to son of defendant by way of cheque bearing no.158562 dated 10.07.2005 drawn on Kehar Sehkari Bank, Karol Bagh New Delhi.
3. Further as per plaintiffs on 20.07.2005 the defendant again approached the deceased stating thereby that his son was in urgent need for sum of Rs. 6 lacs for executing the orders in regular business transactions. In CS No. 292/10 Page 2/15 this context he requested that he was ready to sell his residential premises but for the same he will have to vacate the premises, therefore, he suggested to the deceased that deceased may purchase his residential premises and let out the same to him so that he will not have to vacate the premises and his business reputation will also not be affected. Apart from this he assured the deceased that to secure the interest of deceased he was ready to execute all the necessary documents such as title documents, rent agreement and documents pertaining to the loan received by defendant.
4. In pursuance of abovesaid discussions between the parties the total consideration amount was agreed to be Rs. 6 lacs which was paid in cash to the defendant for receiving of which a receipt was issued by him dated 23.07.2005 in presence of the witnesses. Thereafter the defendant executed GPA, agreement to sell, affidavit, possession letter and Will in favour of the deceased. The vacant physical possession of the said premises was also handed over to the deceased. At the same time, the defendant requested the deceased to let out the said property to the defendant at monthly rent of Rs. 4500/ excluding electricity and water charges. A rent agreement dated 23.07.2005 was executed for the period of 01.08.2005 to 31.07.2008. As per plaintiffs, both the parties agreed to enhance the rent by 10% in case of renewal of the lease deed. It is the version of the plaintiff that the said lease stood terminated by efflux of time on 31.07.2008 but still the defendant was occupying the suit premises without paying rent at enhanced rate. It is contended by CS No. 292/10 Page 3/15 plaintiff that after the death of deceased the defendant paid rent till August 2009 to the plaintiffs but thereafter stopped paying any rent or occupation charges.
5. Aggrieved by act of defendant the plaintiffs got issued legal demand notice dated 11.12.2009 terminating the tenancy and claiming the possession and arrears of rent w.e.f. August 2009 within 15 days from the date of receiving the said notice. Despite service of notice the defendant failed to vacate the premises and is still in unauthorised occupation of the same. Hence the present suit is filed by plaintiffs against the defendant.
6. On service of summons, the defendant appeared and filed his WS. In the WS filed by defendant the defendant has objected to the suit of plaintiff on the grounds that plaintiffs have no locus standi to file the present suit as they have not brought on record anything to show that they are the legal heirs of the estate of the deceased. As per him, going by the version of plaintiffs themselves the deceased Sh. S Harcharan died intestate, therefore, they should have obtained a letter of administration/succession certificate before filing the present suit. It is contended by him that in the absence of abovesaid document the suit is liable to be dismissed in limine. It is also alleged by him that the suit is also beyond limitation and is bad for nonjoinder and misjoinder of necessary parties and cause of action. It was also alleged by defendant that the plaint was not verified and accompanying affidavit was not filed as per law.
7. He denied all the averments of plaintiffs and further alleged that CS No. 292/10 Page 4/15 defendant had taken friendly loan from one person namely Sh. Rakesh Kumar Sofat who got various documents executed from defendant and some security cheques were also obtained by him. As per the averments of defendant Sh. Rakesh Kumar Sofat had some relationship with the deceased which is being misused by the plaintiffs. Further they had already repaid the loan to Sh. Rakesh Sofat and nothing is due against him. In this background it is prayed by him that the suit of the plaintiff be dismissed in limine.
8. No replication to the WS of defendant is filed by the plaintiffs.
9. The issues were framed in the present matter by Ld. Predecessor Judge but inadvertently the word 'Rejoinder' was used in Issue No.6 and the onus of Issue no.8 was placed upon plaintiffs and defendant both. The said issues were modified by the present court by inserting the word 'non joinder' instead of the word 'rejoinder' and placing the onus of Issue no.8 only upon defendant. Hence, issues in the present matter as follows:
Issue No.1: Whether plaintiff is entitled for decree of possession as prayed for?OPP Issue No.2: Whether plaintiff is entitled for recovery of Rs. 18,000/ towards arrears of rent as prayed for?OPP Issue No.3: Whether plaintiff is entitled for decree of damages @ Rs.10,000/ per month as prayed for?OPP Issue No.4: Whether the suit of the plaintiff is barred by law of limitation?OPD Issue No.5: Whether the plaint of the plaintiff is not as per the provision of CPC?OPD Issue No.6: Whether the suit is bad for misjoinder and nonjoinder of necessary parties?OPD Issue No.7: Whether the suit of the plaintiff is bad for misjoinder of CS No. 292/10 Page 5/15 cause of action?OPD Issue No.8: Whether plaintiff has no locus standi to file the present suit?OPD Issue No.9: Relief.
10. The plaintiffs in order to shed the onus on their shoulders got examined Sh. Krishan Kumar Sharma as PW1. He filed on record his affidavit Ex.PW1. He relied upon documents such as Ex.PW1/1 which is SPA in favour of Sh. Krishan Kumar, plaint which is ExPW1/2, original receipt is ExPW1/3, GPA, agreement to sell, affidavit etc which are ExPW1/4 (colly), the original rent agreement is ExPW1/5, legal notice which is ExPW1/6, postal receipts, AD card and UPC receipts are ExPW1/7, ExPW1/8 and ExPW1/9 respectively. He also relied upon the documents such as photocopy of ID card which is marked as Mark A, ID card of NDMC which is Mark B, copy of ration card which is Mark C, photocopy of PAN Card which is Mark D and photocopy of electricity bill which is marked as Mark E. Plaintiff no.1 got herself examined as PW1 but as she was the second witness therefore, for reference her testimony be read as testimony of PW2. She filed her affidavit Ex.PW1/A. She relied upon the documents Ex.PW1/1 to Ex.PW1/9 which were already relied upon and exhibited by PW1.
11. Apart from this no other witness was examined. The defendant despite various opportunities failed to cross examine the plaintiff's witnesses. Accordingly the opportunity of the defendant to cross examine the witness was closed by the present court on 27.11.2013. Vide separate CS No. 292/10 Page 6/15 statement of the plaintiff the plaintiff's evidence was closed on 27.11.2013.
12. No defence evidence was led by defendant despite opportunity and the same was closed by the present court on 11.12.2013. The matter was pending on seeking clarification/order when an application was moved by defendant to set aside the adverse orders against the defendant. The same was dismissed by the present court on 22.02.2014 (Pre Lunch Session). No final arguments were addressed by defendant despite opportunity.
13. Arguments addressed by Ld. counsel for plaintiff. Heard. Record perused.
14. My issue wise findings on the issues framed are as follows: Issue No. 8:Whether plaintiff has no locus standi to file the present suit?OPD
15. The onus to prove the said issue was upon defendant. The defendant failed to lead any evidence to shed the burden on his shoulders. But in this regard a legal objection was raised by him which can be dealt by the present court without considering the fact that the evidence was not led by him. In this regard it was alleged by him that the suit has to be dismissed in limine and in the absence of the succession certificate the plaintiffs cannot proceed with the case. It is relevant to mention here the provisions of Section 214 Indian Succession Act 1925 which are as follows:
Section 214:Proof of representative title a condition precedent to recovery through the Courts of debts from debtors of deceased persons. CS No. 292/10 Page 7/15 (1)No Court shall
(a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, or
(b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt, except on the production, by the person so claiming of
(i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased, or
(ii) a certificate granted under section 31 or section 32 of the Administrator General' s Act, 1913 , (3 of 1913 .) and having the debt mentioned therein, or
(iii) a succession certificate granted under Part X and having the debt specified therein, or
(iv) a certificate granted under the Succession Certificate Act, 1889 1[ , (7 of 1889 .) or
(v) a certificate granted under Bombay Regulation No. VIII of 1827 , and, if granted after the first day of May, 1889 , having the debt specified therein.
(2) The word" debt" in sub section (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes.
16. At this juncture, it is relevant to mention here rule pertaining to obtaining of the succession certificate as laid down by Hon'ble Delhi High Court under Volume I, Chapter 6, Part B and Rule No. 3(a):
Succession Certificate, etc., should be obtained by the heir for recovery of debts to a deceased person--Turning to the procedure prescribed by the Act the following points should be borne in mind
(a) A Civil Court is prohibited in all cases from passing or executing a decree in a suit by or upon the application of a person claiming to be entitled to recover a debt or decree in favour of any person deceased, without the procedure of a probate or letters of administration, or a succession certificate granted under the Succession Certificate Act of 1889, or the Indian Succession Act of 1925, or a certificate granted under the AdministratorGeneral Act, III of 1913. In this connection attention is also drawn to the provisions of Order VII, Rule 4, of the Code of Civil Procedure, as to plaintiffs suing in a representative character. The grant of a CS No. 292/10 Page 8/15 probate, letters of administration or a succession certificate is not, however, an essential condition precedent to the institution of a suit, but the requisite probate, letters or certificate must be produced before the passing of a decree.
In the case of a Joint Hindu Family when property passes by survivorship, no succession certificate is necessary (cf. 20 P. R., 1901).
(b) Definition of debt--The word „debt‟ as used in Section 214, subsection (1), is defined to include any debt except rent, revenue of profits payable in respect of land used for agricultural purposes. The prohibition imposed on the Civil Courts does not therefore extend to Revenue Courts when dealing with suits under these heads [Section 214, subsection (2)].
There was a difference of opinion amongst the High Courts as to whether a certificate could be granted with respect to a fraction of a debt but now by Act XIV of 1928 grant of such a certificate is made legal.
In view thereof, going by the abovesaid rules laid down by Hon'ble High Court it is apparent that institution/trying of the suit filed by legal heirs of the deceased is not barred and the suit can be proceeded without filing of the certificate.
17. However another important aspect is to be considered which is that as per Section 214 of Indian Succession Act it is made mandatory that the certificate is to be produced before passing of the decree only in cases where a 'debt' is involved. But there is no requirement of filing of any certificate where no debt is involved. At this juncture, it is worth mentioning the judgment of Hon'ble Delhi High Court in case titled "Shri M.R. Malhotra (Since deceased) Through LRs v. Competent Builders Pvt Ltd" decided on 25 July, 2012 "Firstly, we shall deal with the objection raised by the learned counsel for the respondent that the present execution petition is not maintainable in view of the inability of the appellants or petitioners to bring the succession certificate in view of the applicability of the Section 214(b) of the Succession Act, 1925. xxxxxxxxxxxxxxxxxxxxx CS No. 292/10 Page 9/15
17. On the mere reading of the aforementioned provision, it is clear that Section 214 (b) provides for the cases where the courts are executing the decrees involving a debt. The said aspect is also clear from reading of sub section (2) of the Section 214 which defines debt in the form of inclusive definition. The said section would therefore, not operate as bar to any execution proceeding and its ambit is confined to only cases where there is an execution seeking to recover a debt.
18. This is also clear when Madras High Court explains the underlying purpose of the section in the case of (1956) 2 MAD.L.J. 114 Venkatalakshmi v. The Central Bank where the Madras High Court held that: "The object of taking out a succession certificate under Section 214 of the Indian Succession Act is to give security to the debtors paying the debts due to the deceased and thus facilitate the collection of debts on succession. The purpose of the Act is not to enable litigant parties to have an opportunity of litigating contested questions of title to property. When a Bank is satisfied that the applicant is entitled to collect the debts it should not prescribe onerous conditions which are in no way necessary for its safety."
19. In the case of 2001 (2) ALT 513 Khader Bee And Ors. vs Mohammad Vazir And Ors. the learned Single Judge of Andhra Pradesh High Court was concerned with the question whether Succession Certificate as contemplated under Section 214 of the Indian Succession Act, 1925 is required for the purpose of executing a decree obtained in the suit for partition of immovable properties. The court answered the question in negative by observing thus:
"The question raised in this revision petition has been considered by this Court in T.Rama Seshagiri Rao And Anr. vs N.Kamalakumari :
AIR 1982 AP 107. This Court while interpreting Section 214 of the Indian Succession Act has held as under:
"Where execution petition was filed by the legal representative of the deceased decreeholder for execution of the decree for maintenance with charge the legal representative would not be required to obtain a Succession Certificate before executing the decree for maintenance and for execution of a decree for costs. XXX XXX XXX A suit to recover money due on a simple mortgage by sale of the mortgaged property is not a suit for recovery of debt, but it is a suit to enforce a charge on immovable property and no succession certificate need be obtained by the heirs of the mortgagee to CS No. 292/10 Page 10/15 recover the money, therefore,an application for execution of a mortgage decree for realisation of the amounts by sale of the mortgaged property is not an application to obtain an order for payment of debt."
4. In another case in S.Rajayalakshmi v.Smt. S. Sitamahalakshmi, this Court considered the applicability of Section 214 of the Act. This Court held that the Succession Certificate is necessary, if a debt is sought to be recovered, for the purpose of other items of the decree, Succession Certificate is not necessary. In the present case, execution proceedings have been filed in pursuance of the decree obtained in the suit for partition of immovable properties. Hence, succession certificate is not required as contemplated under Section 214; since it is not a debt within the meaning of subsection (2) of Section 214 of the Indian Succession Act."
(Emphasis Supplied).
In view of the aforementioned findings of the several courts in India and upon clear reading of Section 214 Succession Act, 1925, we find no force in the argument of the learned Senior counsel for the respondent that the Succession Certificate is a condition precedent for the executing court to proceed in the present matter. In the present matter, the appellants have to pay the sum towards the possession of the property from respondent. The appellants are not seeking to recover the debts and thus the provision clearly has no applicability. Accordingly, the judgment passed in K.T. Thumme Gowda v. Thimme Gowda (supra) would have no applicability to the facts of the present case. The objection of the respondent is thus rejected without any merit.
18. Therefore, in the light of abovesaid judgment of High Court it is apparent that there is no requirement on the part of plaintiff for obtaining any succession certificate for seeking the relief of possession and the arrears of rent are also not considered debt in the light of abovesaid judgment. Thus, the present issue is decided in favour of plaintiffs and against the defendant.
Issue No.4:Whether the suit of the plaintiffs is barred by law of limitation?OPD
19. The onus to prove the said issue was upon the defendant. Perusal of the CS No. 292/10 Page 11/15 rent agreement Ex.PW1/5 shows that on 23rd July 2005 it was agreed between the parties that the tenancy would be for the period of three years from 01.08.2005 till 31.07.2008. But the said rent agreement is not registered therefore as per the provisions of Section 17 and 49 of Registration Act the same cannot be looked into except for collateral purpose. Therefore, the tenancy in the present matter would be considered month to month tenancy which required a notice to terminate the same. In the present matter tenancy was terminated by notice dated 11.12.2009 dispatched on same date and suit was filed on 06.04.2010 therefore the same is very well within the period of limitation as per Article 67 of Limitation Act, 1963. Thus the present issue is decided in favour of plaintiffs and against the defendant.
Issue No.5: Whether the plaint of the plaintiff is not as per the provision of CPC? OPD Issue No.6: Whether the suit is bad for misjoinder and nonjoinder of necessary parties? OPD and Issue No. 7: Whether the suit of the plaintiff is bad for misjoinder of cause of action?OPD
20. The onus to prove the said issues was upon the defendant. Defendant has failed to produce any evidence in these regard, therefore, he has failed to shed the onus upon his shoulders pertaining to abovesaid issues. Hence, all the abovesaid issues are decided in favour of plaintiffs and against the defendant.
Issue No.1: Whether plaintiff is entitled for decree of possession as prayed for?OPP
21. The onus to prove the abovesaid issue was upon the plaintiffs. To shed the onus upon their shoulder in this regard they have relied upon the rent CS No. 292/10 Page 12/15 agreement dated 23.07.2005 which is Ex.PW1/5, legal notice Ex.PW1/6 and AD card and Postal receipts Ex.PW1/7, Ex.PW1/8 and Ex.PW1/9. The defendant failed to cross examine the plaintiff's witnesses therefore the averments of plaintiff in the plaint and testimonies of witnesses are unrebutted and uncontroverted.
22. As already observed by this court while deciding issue No. 4 that the document Ex.PW1/5 is not registered therefore the same cannot be looked into and tenancy in the present case would be month to month, which required a notice to terminate the same. The legal notice Ex.PW1/6 was duly served because signed AD card Ex.PW1/7 is on record. Hence from the abovesaid documents it can be safely said that the tenancy was duly terminated by plaintiffs. Thus the defendant is in unauthorized occupation of suit premises in which he has now no further right to remain in the same. Moreover the factum of tenancy as alleged by plaintiff is unchallenged therefore the defendant cannot claim that he is owner of the premises because he had already transferred all rights in the premises in favour of deceased. Thus the principle of estoppel as per the provisions of Section 116 of Indian Evidence Act would apply against him. Though no site plan is filed by plaintiff but there is no dispute regarding identification of the property and the particulars of the plaintiff are specifically provided, therefore, non filing of the site plan would not have any fatal effect on the case of the plaintiff. Hence the plaintiffs are entitled to relief of possession. The present issue is thus decided in favour of plaintiffs and against the defendants. CS No. 292/10 Page 13/15 Issue No.2: Whether plaintiff is entitled for recovery of Rs. 18,000/ towards arrears of rent as prayed for?OPP
23. The onus to prove the abovesaid issue was upon the plaintiffs. Though the rent agreement being unregistered cannot be looked into for deciding the rate of rent, but even the oral testimony of PW1 and PW2 regarding the fact that it was Rs. 4500 per month is unrebutted. The defendant has not led any evidence to to support his version. Therefore the fact regarding rate of rent and nonpayment of the same after August 2009 is deemed to be admitted. Hence the plaintiff is entitled to the relief of arrears of rent from September 2009 till December 2009 @ Rs.4500 per month. Therefore the present issue is decided in favour of plaintiffs and against the defendant.
Issue No.3: Whether plaintiff is entitled for decree of damages @ Rs.10,000/ per month as prayed for?OPP
24. The onus to prove the abovesaid issue was upon the plaintiffs. The plaintiff has shown from record that the legal notice Ex.PW1/6 was duly served upon defendant. The AD card of which is on record which shows that the tenancy was terminated w.e.f. 28.12.2009 i.e. on the lapse of 15 days from the date of receiving of the said notice which is 12.12.2009 as reflected from the AD card Ex.PW1/8. Thus since the abovesaid period the defendant is in unauthorised occupation of the suit premises. No evidence is led by plaintiff to show that the properties in vicinity of the suit property were fetching the rent equivalent to damages claimed by them for use of the suit premises. However considering the area of suit premises and the locality in which it is located this court is of the view CS No. 292/10 Page 14/15 that damages claimed by plaintiff @ Rs. 10,000/ per month are reasonable and would serve the ends of justice. The present issue is therefore decided in favour of plaintiff and against the defendant. Issue No.9: Relief.
25. In view of the abovesaid discussion on all the issues, the plaintiffs are entitled for the decree of possession in their favour against the defendant pertaining to premises bearing no. 1738, Sher Singh Bazar, Kotla Mubarakpur, New Delhi which is split in three parts measuring 86.66 Sq. yds, 11.11 Sq, yds and 70 Sq. yds. The defendant is given one month's time from today to hand over vacant peaceful physical possession of the abovesaid premises to the plaintiffs. The plaintiffs are also entitled to the decree of arrears of rent for the sum of Rs. 18,000/ alongwith interest on the same @ 12% per annum from the date of filing of the suit till realization. The plaintiff is further entitled to the relief of damages @ Rs. 10,000/ p.m from January 2010 till vacation of the premises and interest on the same @ 12% per annum from the date of filing of the suit till realization. Cost of the suit are also granted in favour of plaintiff and against the defendant.
26. No order as to cost.
27. Decree sheet be drawn accordingly.
28. File be consigned to record room after due compliance.
Announced in the open Court (NITI PHUTELA)
dated 22.02.2014. Civil Judge02 (South)
Saket Courts, New Delhi.
CS No. 292/10 Page 15/15