Delhi District Court
Sh. Mahender Singh vs Smt. Kusum Lata on 31 January, 2014
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE10
(CENTRAL), TIS HAZARI COURTS, DELHI
SUIT NO. 113/07
Unique ID No. 02401C0230122007
MEMO OF PARTIES
1. Sh. Mahender Singh
2. Sh. Raj Roop Singh
3. Sh. Padam Singh
All Sons of Late Sh. Srikishan
R/o Village Chhawla,
Mohalla Kaba, New Delhi110071
...........Plaintiffs
VERSUS
1. Smt. Kusum Lata
W/o Sh. Raj Pal @ Raju
2. Smt. Rekha Rani
W/o Sh. Satish Goswami
3. Smt. Sheila
W/o Late Sh. Hari Kishan
4. Smt. Shakuntala
W/o Sh. Narender Kumar
5. Smt. Urmila
W/o Sh. Ram Mohan
All R/o Village Chhawla,
Mohalla Kaba, New Delhi - 110071
6. Smt. Nirmala
W/o Sh. Chandrasekhar
R/o 9/609, Mahadev Gali,
Moti Katra, Agra, U.P.
Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 1/29
7. Smt. Chandra Kanta
W/o Late Sh. Srikishan
R/o Village Chhawla,
Mohalla Kaba, New Delhi 110071
..........Defendants
Date of institution of the Suit: 03.03.2007
Date on which judgment was reserved: 28.01.2014
Date of pronouncement of Judgment: 31.01.2014
SUIT FOR DECLARATION/CANCELLATION OF WILL DATED 22.01.1997
AND PERMANENT INJUNCTION
JUDGMENT:
1. The plaintiffs have filed the present suit seeking the following reliefs Decree for declaration thereby declaring the alleged will dated 22.01.1997 and registered as Document No. 4826 additional book no. 3, Vol, 39191 at Page 155156 as null and void and not affecting the rights and title of the plaintiffs in respect of the agricultural land comprised in Khasra No. 13/16 (415), 17 (416), 18 (416), 19 (416), 23 (416), 24 (416), 34/2 (415), 9 (416), 12 (416), 14/29 (014) situated within the revenue estate of Village Chhawla, Delhi and also in respect of residential plots comprised in Khasra No. 320, 323 and 324 to the extent of 1/5th share and an ancestral residential house situated in the old Lal Dora of the village.
Consequently, the defendants may also be restrained by way of decree Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 2/29 for permanent injunction thereby restraining them from claiming any right, title or interest in respect of the suit properties on the basis of the alleged will and further not to interfere in the peaceful possession of the plaintiffs over any portion of the properties left behind by Late Sh. Sri Kishan.
2. The plaintiffs claim to be the sons of Late Sri Kishan from his second wife namely Smt. Ram Kali and state that the defendants no. 1 to 7 (as per the memo of parties, it should be defendants no. 1 to 6) are the daughters of Late Sri Kishan from his first wife the defendant no. 8 (as per the memo it should be defendant no. 7). A pedigree table has been provided in the plaint. It is averred that Late Sri Kishan performed Kareva marriage with the widow of Sh. Brahm Dutt in the year 1937 as was prevalent and thereafter out of this wedlock plaintiff no. 1 the eldest son was born in the year 1942, plaintiff no. 2 was born in the year 1945 and plaintiff no. 3 was born in the year 1952. Besides the plaintiffs a daughter namely Smt. Omwati was also born in the year 1948.
2A. It is averred by the plaintiffs that at the time of his death Late Sri Kishan was the exclusive Bhumidhar of agricultural land comprised in khasra no. 21/12/2 (60), 196 (102) and CoBhumidhar of the land comprised in khasra no. 13/16 (45), 17 (416), 18 (416), 19 (416), 23 (416), 24 (416), 34/2 (415), 9 (416), 12 (416), 14/29 (014) besides having residential plots comprised in th khasra no. 320, 323 and 324 to the extent of 1/5 share and ancestral Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 3/29 residential house situated in the Lal Dora of the village. The defendants no. 1 to 7 had been married by Late Sri Kishan however even though they had been married for the past many years they were still residing at village Chhawla in the residential houses provided by the late father except defendant no. 6 who was residing at Agra (U.P.).
2B. Plaintiffs claim that in the year 1997, Late Sri Kishan father of the plaintiffs and defendants no. 1 to 7 started threatening to sell, alienate and part with the ancestral residential house situated within the old Lal Dora which was jointly owned by him and the plaintiffs. The plaintiffs were compelled to file a suit for permanent injunction against him in respect of the residential house. The threats of alienation were being given by the father at the instance of the daughters. In the year 1991 for the first time the dispute between the father and sons arose on account of influence of the daughters' of his first wife. The defendants along with other cosharers threatened to carve out plots over the agricultural land and consequently the plaintiffs were compelled to file a complaint/petition U/s 81 r/w Section 3 of the Delhi Land Reforms Act against all the cosharers seeking to restrain them from selling/transferring any residential plots over the agricultural land which was otherwise prevented by the provisions of the Delhi Land Reforms Act . In the year 1997 in response to the suit filed by the plaintiffs in respect of the ancestral residential house, it was for the first time that Late Sri Kishan started Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 4/29 to claim that the plaintiffs were not his sons. The false claim was made on account of the friction generated between the father and the sons at the instance of defendants no. 1 to 7. It was averred that the defendants were jealous of the fact that Late Sri Kishan had effected a Kareva marriage with the mother of the plaintiffs in the year 1938. The defendant no. 7 always treated the plaintiffs as her step sons and the defendants never accepted the plaintiffs as members of the family of Late Sri Kishan. The defendants always tried to instigate and influence Late Sri Kishan to alienate/sell the immovable property so that all the money received by him could be misappropriated by them. It was averred that at the time of his death in the year 2004 Late Sri Kishan was 90 years old. On account of his old age he was suffering from various old age ailments i.e. he was hard of hearing and could not see properly and was not mentally in a fit condition. He was also suffering from acute diabetes and was not in good health. It is alleged that on account of his mental state the defendants were able to influence most of his decisions and for this reason only, Late Sri Kishan had claimed in the written statement filed in the suit of the plaintiffs in the year 1997 that the plaintiffs were not his sons.
2C. After the death of Late Sri Kishan the plaintiffs filed an application for mutation before the Tehsildar in respect of the agricultural land left behind by him. The Tehsildar sanctioned the mutation in favour of the plaintiffs vide his Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 5/29 order dated 03.03.2004. The defendants no. 1 to 7 filed an appeal before the Deputy Commissioner (SouthWest) wherein it was claimed that the deceased Late Sri Kishan had executed a Will in their favour and also annexed copy of the impugned Will along with the appeal. The notice of the appeal was received some time in the month of May, 2004 and thereafter the plaintiffs for the first time came to know about the alleged Will left behind by Late Sri Kishan in favour of the defendants. In fact the deceased father of the parties had never left behind any Will. Even otherwise in the year 1997 when the Will was allegedly executed by the deceased he was about 83 years of age and was not in a sound dispensing mind. The alleged Will was a result of pressure, coercion, instigation and undue influence applied by the defendants on the deceased Late Sri Kishan. It was further alleged that the Will was a fraudulent document. No reason was stated in the alleged Will as to why the sons had been disinherited by the deceased in his Will. The Will did not even mention about the litigation which was pending in respect of the residential house as well as in respect of the agricultural land. All these facts showed that the alleged Will was not the last Will of the deceased Late Sri Kishan. The plaintiffs were in exclusive cultivatory possession of the agricultural land left by the deceased to the exclusion of the defendants. They had been cultivating the land exclusively since the death of their father and even prior to his death the deceased was an old and infirm person, not physically fit to Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 6/29 cultivate the agricultural land. The defendants had never cultivated the agricultural land left behind by the deceased. The deceased never disclosed the factum of execution of the Will to any person nor did he make any mention of the Will in any proceedings pending against him in respect of the immovable properties. The Will in question was a fabricated Will and had been prepared by the defendants in collusion with each other to play a fraud upon the plaintiffs and did not confer any right, title and interest on the defendants. It was averred that the Will dated 22.01.1997 was liable to be declared null and void. The cause of action for filing the present suit was stated to have arisen in the month of May, 2004 when the notice of the appeal was served on the plaintiffs where upon they came to know about the contents of the alleged Will.
3. A joint written statement was filed on behalf of the defendants no. 1 to 5 and 7. No written statement was filed by defendant no. 6, who was proceeded exparte vide order dated 31.01.2008.
4. In the preliminary objections taken in the written statement, the defendants stated that the plaintiffs had no locus standi to file the present suit, the suit was barred by limitation and the value of the suit for the purpose of court fees and jurisdiction was more than Rs. 1 Crore. 4A. On merits, the claim of the plaintiffs was denied. It was denied that the plaintiffs were sons of Late Sri Kishan or that Smt. Ram Kali was the Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 7/29 second wife of Late Sri Kishan. It was denied that Smt. Ram Kali performed Kareva marriage with Sri Kishan. It was also averred that the plaintiffs had no locus standi to file the petition U/s 81 of the Delhi Land Reforms Act in the year 1991 and father of the defendants no. 1 to 6 Late Sri Kishan had defended the petition U/s 81 of the Delhi Land Reforms Act. It was stated that Late Sri Kishan never claimed that the plaintiffs were his sons. The defendants alleged that self contradictory statements had been made in the plaint as in para 5 it was mentioned that the Kareva marriage was performed in the year 1937 while in para7 it was mentioned that the same was performed in the year 1938. It was averred that the civil suit filed by the plaintiffs was also dismissed wherein the plaintiffs failed to prove themselves as sons of Late. Sh. Sri Kishan. It was denied that at the time his of death in the year 2004 Sri Kishan was 90 years old or that he was suffering from any old age ailments. It was submitted that in the reply to the petition filed by the plaintiffs before the S.D.M./Revenue Assistant, Nazafgarh Sri Kishan had denied any relationship with the plaintiffs in the year 1991 and the plaintiffs only wanted to grab the land of Late Sri Kishan. It was averred that Smt. Ram Kali remained a widow through out her life and in the revenue records it was so noted. It was averred that the plaintiff in collusion with the Tehsildar got land of Late Sri Kishan mutated in their favour on the basis of false documents and defendant no. 1 filed a criminal complaint in addition to the appeal against the order of the Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 8/29 mutation before the competent courts. Late Sri Kishan had no sons therefore the Will was executed in favour of the daughters. The plaintiffs had no locus standi to challenge the Will of Late Sri Kishan. The defendants were in exclusive cultivatory possession of the agricultural land as well as residential houses left behind by Late Sri Kishan and the court of Additional Collector, District SouthWest passed orders for protecting the possession of the defendants during the pendency of the appeal filed by the defendants against the plaintiffs. It was denied that the deceased never disclosed the factum of the execution of the Will to any person. One witness namely Bijender who belonged to the same village of Chhawla remained with the deceased Late Sri Kishan on the date of execution of the Will which was got signed in the presence of the attesting witness and was got registered at the Registrar's Office in the presence of Sh. Bijender. It was denied that the Will was a fabricated document.
5. The plaintiffs did not file any replication. On 16.04.2008 the following issues were framed in the present suit:
1. Whether the plaintiffs have no locusstandi to file the present suit? OPD
2. Whether the suit property has not been properly valued for the purpose of court fee and jurisdiction? OPD
3. Whether the plaintiff is entitled to a decree of declaration and cancellation as prayed for in the plaint? OPP Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 9/29
4. Whether the plaintiff is entitled a decree of permanent injunction as prayed for? OPP
5. Relief.
6. In evidence, the plaintiffs examined the plaintiff no. 2 as PW1 who was subjected to cross examination while defendants in evidence examined defendant no. 1 as DW1 and one Sh. Bijender Singh as DW2 who deposed that he was the attesting witness of the impugned Will dated 22.01.1997.
7. Upon conclusion of the trial final arguments were advanced by counsel for the parties. Ld. counsel for the plaintiffs relied on V.K. Surendra vs. Thimmaiah & Ors in Civil Appeal No. 1499 of 2004 decided on 10 April, 2013, Rohit Chauhan vs. Surinder Singh & Ors. in Civil Appeal No. 5475 of 2013 decided on 15 July, 2013 and Revanasiddappa & Anr. vs. Mallikarjun & Ors in Civil Appeal No. of 2011 decided on 31 March, 2011. Ld. counsel for defendant in support of his arguments relied on two judgments i.e. Babu Lal Vs. Nathibai & Anr. AIR 2013 Madras 134 and Nathu Vs. Hukum Singh & Anr. 21 (1982) Law Times 291.
8. Certain clarifications were sought at the stage of judgment/clarifications on 09.01.2014 from the counsel for the parties since while perusing the file for the purpose of passing judgment it was observed by me that a page containing certain paragraphs i.e. paras 8 and 9 of the plaint did not appear to be filed since while as per the numbering on the file no page was missing but Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 10/29 however the defendants in the written statement had responded to the paragraphs 8 and 9. An application U/s 151 CPC was moved by the plaintiffs for taking on record the missing page of the plaint as available with the parties. This application was allowed vide order dated 28.01.2014 and the missing page/page of the plaint not filed, containing the said paragraphs 8 and 9 was consequently taken on record.
9. I have heard the arguments advanced by counsel for the parties and perused the record and considered the relevant case law.
10. My issuewise findings are as follows: Issue No. 1 Whether the plaintiffs have no locusstandi to file the present suit? OPD
11. The defendants claim that the plaintiffs are not the sons of Late Sri Kishan and thus have no locus to file the present suit.
12. Ld. counsel for the defendants confronted the plaintiff's witness/PW1 with Ex. PW1/D1 the Khatauni Pamaish and PW1 admitted that therein his mother Ram Kali was shown as the widow of Brahm Dutt. PW1 was also confronted with a copy of the order of the Revenue Assistant, Delhi Ex. PW1/D2 which he admitted wherein also Smt. Ramkali was mentioned in the memo of parties as widow of Late Sh. Brahm Dutt. PW1 also admitted Ex. PW1/D3 certified copy of the petition and application U/o 39 R 1 & 2 CPC filed in the court of the SDM/Revenue Assistant in the year 1991 wherein again Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 11/29 Smt. Ramkali had been shown as widow of Late Sh. Brahm Dutt but PW1 voluntarily deposed that Brahm Dutt was the first husband of Smt. Ram Kali from whom she had got agricultural land by inheritance and in all revenue records the identity of Smt. Ram Kali had been recorded as Smt. Ram Kali, widow of Late Sh. Brahm Dutt. Being a mere voluntarily given statement, not much weightage can be attached to the same however it does show that PW1 stood firm to his stand that Smt. Ram Kali got married to Sri Kishan after the death of her first husband Sh. Brahm Dutt.
13. PW1 deposed in his affidavit of evidence that Sh. Brahm Dutt expired in the year 1937 and that subsequent to his death, in the year 1937 Sh. Sri Kishan performed 'Kareva Marriage' with Smt. Ram Kali and that out of this wedlock, the plaintiffs and one daughter namely Omwati were born between the years 1942 - 1952 as mentioned in the affidavit. Pertinently, PW1 exhibited and proved his Higher Secondary Examination certificate dated 31.12.1963 as Ex. PW1/2. This certificate of the year 1963 shows the name of the father of PW 1 to be Sh. Sri Kishan. It is extremely crucial to note that the defendants have not challenged the validity or genuineness of Ex. PW1/2, and have not even put a suggestion to PW1 that Ex. PW1/2 is a forged or fabricated document. Ex. PW1/2 has thus gone virtually unrebutted and can safely be relied on. Further even PW1's testimony on oath regarding the death of Sh. Brahm Dutt occurring in the year 1937 and the plaintiffs having been born Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 12/29 subsequent to the death of Sh. Brahm Dutt has gone unchallenged. No question or suggestion in this regard was put to PW1 by the defendants and PW1 stood firm to his stand of being the son of Late Sri Kishan in cross examination, denying the suggestion that his mother Smt. Ram Kali never married Sh. Sri Kishan.
14. Further, the cross examination of the defendants' witnesses in this regard is also relevant. DW1/Smt. Kusumlata deposed in regard to questions put to her about Sh. Brahm Dutt as follows: "Sh. Brahm Dutt was our 'Tau Ji'. Again said Sh. Brahm Dutt was not in our close relation but was a family member. I do not know when Sh. Brahm Dutt expired. I do not know whether Sh. Brahm Dutt died in the year 1937."
15. Thus, DW1, admitted, if a little grudgingly, the fact that Sh. Brahm Dutt was a family member, but evasively responded that she did not know when he had expired. Interestingly, the defendants in their written statement though have denied that the plaintiffs were the sons of Late Sri Kishan however have not stated the name of the person, who as per them, was the father of the plaintiffs. The plaintiffs' testimony regarding death of Sh. Brahm Dutt having occurred in the year 1937 and the plaintiffs being born between 19421952 (which is much after the death of Sh. Brahm Dutt) having gone unrebutted, it is but obvious that the plaintiffs were not born out of the wedlock of Sh. Brahm Dutt and Smt. Ram Kali. Admittedly, the plaintiffs and Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 13/29 defendants are residents of the same village i.e. Village Chhawla. Furthermore, though DW1 deposed in cross examination that she was not on visiting terms with the plaintiff and had never attended any marriage or social functions organized by the plaintiffs yet at the stage of her cross examination when DW1 was shown a photograph 'Mark Z' she apparently could not make up her mind as to how to respond; she first of all deposed that she did not recognize any one in the photograph, stating she could not see properly. Then, she said she did not know where the photograph was taken but thereafter she admitted that the photograph Mark Z was taken at the occasion of the marriage of the daughter of Sh. Anil, who was the elder son of Sh. Mahender Singh ( plaintiff no. 1) and finally identified all the persons in the photograph, including herself and her daughter, though not with certainty. Though she was not asked why she attended this wedding, she voluntarily deposed that her daughter was studying with the daughter of Sh Anil and perhaps that was why they attended the marriage. Her voluntary statement really appears to be a feeble attempt to cover up the fact that she did in fact attended a marriage organized by the plaintiffs' family members. Additionally, DW2/Sh. Bijender Singh, also a resident of village Chhawla deposed in his cross examination that as far as he knew, Sh. Sri Kishan did not have any sons and only had six daughters and he deposed that he knew the plaintiffs and that they resided in the lane at the back side of his house, which was the Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 14/29 same lane where the house of Sh. Sri Kishan was located. It is quite strange then that despite being such a close neighbour of the plaintiffs, DW2 did not know who the father of the plaintiffs was.
16. One more important thing to note is that the plaintiffs exhibited the pedigree table Ex. PW1/1 showing the name of the last known common ancestor as being Sh. Dilsukh. The defendants have not filed a pedigree table of their own, DW1 admitted Sh. Brahm Dutt as being a family member (who is shown in the plaintiffs' pedigree table) and also admitted the name of the last known common ancestor from whom the property had devolved as being Sh. Dilsukh. DW1 also deposed that she knew what was meant by 'Karewa Marriage' and testified it meant remarriage of widow but deposed that such marriages did not take place in her village. The marriage of Sh. Sri Kishan and Smt. Ram Kali is deposed by PW1 as being of the year 1937 much prior to the Hindu Marriage Act, 1955 being enacted. Therefore, the reliance placed by counsel for defendants on Babulal's case (Supra) which deals with rights acquired U/s 16 HMA, 1953 by sons born out of illegitimate relationships is misplaced. Counsel for plaintiff relied on a judgment dated 30.09.2013 passed by the Ld. Civil Judge, Delhi in suit no. 841/11 titled 'Mahender Singh & Ors. Vs. Dharam Singh' wherein the plaintiffs were held to have the locus to file the suit, being the sons of Sh. Sri Kishan. This judgment with due respect is not binding upon me and further it does not also operate as Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 15/29 res judicata since the parties in the two suits are different and it is made clear that this court has arrived at its independent finding regarding the locus of the plaintiffs. The High School Certificate of PW1 of the year 1963 Ex. PW1/2, is the most important documentary evidence which read alongwith the evasive deposition of the defendants' witnesses regarding the parentage of the plaintiffs establishes on a preponderance of probabilities that the plaintiffs are the sons of Sh. Sri Kishan. The plaintiffs therefore, do have the locus to file the present suit. The defendants have not discharged their onus of proving otherwise.
Issue is decided against the defendants.
Issue No. 2 Whether the suit property has not been properly valued for the purpose of court fee and jurisdiction? OPD
17. The defendants have not adduced any positive evidence to show that the suit is undervalued. The defendants have not even cross examined the plaintiffs' witness PW1 on this score or even put a suggestion to the witness that the suit is not properly valued. The defendants have failed to discharge their onus qua this issue, therefore, this issue is decided against the defendants.
Issues No. 3 and 4 Whether the plaintiff is entitled to a decree of declaration and cancellation as prayed for in the plaint? OPP and Whether the plaintiff is entitled a decree of permanent injunction as prayed for? OPP Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 16/29
18. It is important to note that the plaintiffs in the plaint itself plead in para two of the plaint that at the time of his death Sh. Sri Kishan was the 'exclusive bhumidhar' of agricultural land comprised in Khasra No. 21/12/2 (600, 196/2 (102) and 'cobhumidhar' of the land comprised in Khasra No. 13/16 (415), 17 (416), 18 (416), 19 (416), 23 (416), 24 (416), 34/2 (415), 9 (416), 12 (416), 14/29 (014), besides having residential plots comprised in Khasra No. 320, th 323 and 324 to the extent of 1/5 share and an ancestral residential house situated in the Old Lal Dora of the village . Now, vide the impugned Will Ex. DW1/P1, the deceased testator Sh. Sri Kishan bequeathed an old residential house to defendants Ms. Kusumlata, Rekha Rani and Sheela in equal shares, the will further mentions that the testator was the owner of a plot to the extent th of 1/5 share in the abadi of village Chhawla comprised in Khasra Nos. 320 (017) 323 (13), 324 (10) of which he had possession and it records further that he had given possession of this plot to his daughters namely Shakuntala, Nirmala, Sheela, Urmila, Rekha and they had constructed their separate houses with his financial assistance Ex. DW1/P1 further records that the testator was the exclusive Bhumidhar of land comprised in Khasra No. 21/12/2 th (60) and 196 (12) and joint Bhumidhar to the extent of 1/5 share in the land comprised in Khasra Nos. 13/16 (415), 17 (416), 18 (416), 19 (416), 23 (416), 24 (416), 34/2 (414), 9 (416), 12 (416) and 14/29 (014). These Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 17/29 properties alongwith a temple were purportedly bequeathed by him to his aforesaid six daughters. It is with respect to the agricultural lands afore mentioned, the residential plots and the residential house that the plaintiffs seek setting aside of the Will.
19. It was argued by counsel for the plaintiff referring to the provisions of the Indian Succession Act, 1925 particularly Section 59 (pertaining to the persons who were capable of making Wills) and Section 61 (which provides that a Will or any part of a Will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator is void), that two aspects were to be considered, firstly whether the Will had been proved to be genuinely executed and secondly, whether the testator actually had the competence/title to bequeath the properties vide the impugned Will. Undoubtedly, both the aspects are to be considered since it is well settled that no person can give a better title than what he has.
20. First, coming to the issue of valid execution of the Will Ex. DW1/P1. The plaintiffs averred that Sh. Sri Kishan was not in a fit state of mind, either mentally or physically to have executed the Will and that he was suffering from various old age ailments and further that the same was a result of pressure, coercion, instigation and undue influence applied by the defendants on the deceased Late Sri Kishan. The mere fact that Sh. Sri Kishan was very old when he executed the Will is certainly no reason to doubt the due execution of Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 18/29 the Will. The defendants proved the due execution of the Will by producing in evidence DW2 Sh. Bijender Singh, the attesting witness of the Will, who withstood the rigours of cross examination. DW2 deposed in cross th examination that Sh. Sri Kishan came to his house on 19/20 of January, 1997 stating that he wished to execute a Will in favour of his daughters and asked DW2 if he was willing to be a witness to the Will, to which DW2 agreed. DW2 further deposed that he was standing right next to Sh. Sri Kishan at the time he was getting the Will typed and he could hear what the testator was dictating to the person typing the Will. DW2 further testified that prior to DW2 signing the Will, Sh. Sri Kishan signed the Will and voluntarily deposed that after Sh. Sri Kishan, he signed the Will and after him one lawyer whose name he did not remember exactly, though it may have been Vinod Kumar signed on the Will. DW2 denied the suggestion that he had not accompanied Sh. Sri Kishan to the office of the Sub Registrar or that no Will was drafted in DW2's presence or hearing or that he had not seen Sh. Sri Kishan signing the Will. DW2 also testified that after the Will was executed Sh. Sri Kishan did on one occasion show him the impugned Will. Also important to note is the fact that DW2 deposed that to his knowledge DW2 was in the best of health and was not suffering from diabetes, cataract or amnesia.
21. DW1 also in her cross examination had denied the suggestion regarding Sh. Sri Kishan being mentally or physically in an unfit condition. The Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 19/29 plaintiffs have not produced any medical documentation to show that Sh. Sri Kishan was not in a fit state to execute the will and have merely made bald avements in that regard which stand falsified by the unshaken testimonies of DW1 and DW2 in that regard. Additionally, DW2's testimony also shows that Sh. Sri Kishan executed the Will Ex. DW1/P1 voluntarily without any pressure or coercion and the plaintiffs have failed to adduce any evidence to show that the Will was a result of any pressure or coercion. Even their suggestions to DW1 in regard to DW1 being able to exercise a dominion position over Sh. Sri Kishan and influence his decisions were outright denied by the witness. Sh. Sri Kishan was apparently a free agent when he executed the Will.
22. No suspicious circumstances have been brought out in relation to the execution of the Will Ex. DW1/1P1 which is a registered document. It was sought to be argued by counsel for plaintiffs that the Will was required to be witnessed by two persons and Ex. DW1/P1 was only witnessed by DW1 at point one on the witnesses column, and at point two, there was a name stamp and signature of an advocate 'Vinod Kumar Sharma, Advocate' and he argued that an advocate could not be an attesting witness and the advocate had only endorsed the Will and not witnessed it, which was not proper compliance of Section 48 (3) of the Delhi Land Reforms Act, 1954.
23. Firstly, this argument is beyond the pleadings, having nowhere been pleaded by the plaintiffs. Further, there is no bar to an advocate witnessing a Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 20/29 Will and the only requisite is that the witness should do so with 'animo attestendi' i.e. with the intention to affix his signatures as a witness. The Advocate's signatures apparently do not appear on the document as the draftsman, but at point two on the 'witnesses' column, the advocate would certainly not have signed on the witnesses column if he did not intend to sign as a witness, he being not a lay person without any knowledge of the legal import of being a witness to a Will. Further, even on the endorsement of the SubRegistrar at the back of the Will regarding identification of the executant the names of Bijender Singh (DW2) and V.K. Sharma, Advocate have been written. Clearly, Sh. V.K. Sharma Advocate signed the document as an attesting witness. Two witnesses having signed the Will, there was proper compliance of Section 48(3) of the Delhi Land Reforms Act, 1954. Further, Ex. DW1/P1 was, in view of the evidence led by defendants, duly executed by Sh. Sri Kishan, of his own volition. Thus, the due execution of the Will by Sh. Sri Kishan Ex. DW1/P1 stands proved.
24. Now, coming to the issue of the right/title of Sh. Sri Kishan to bequeath the properties in question vide the said Will. It was argued by Ld. counsel for the plaintiffs that all the suit properties were ancestral, joint family properties and the deceased Sh. Sri Kishan could not have bequeathed the entire properties including even the alleged shares of the plaintiffs to the defendants. He pointed out that DW1 admitted in her cross examination that Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 21/29 the suit property was an ancestral property and the name of the last common ancestor from whom the property had devolved was Sh. Dilsukh, and again at another point in her cross examination she had admitted that the suit property was a joint property.
25. Considering first the question of right/title of Sh. Sri Kishan to bequeath the agricultural lands/shares in the agricultural lands mentioned in the impugned Will Ex. DW1/P1 to the defendants, it was the argument of Ld. counsel for the plaintiff that at the time the devolution opened, the characteristic of the land was ancestral having been inherited by Sh. Sri Kishan. The impugned Will is of the year 1997 and Sri Kishan died in the year 2004. The plaintiffs filed a page out of a commentary purportedly titled 'The Delhi Law Times Digest', the cover page thereof has not been provided therefore its authorship is not clear wherein it was held that though HSA 1956 was not applicable to lands covered under Delhi Land Reforms Act but it was observed that the provisions of the Hindu Law as to coparcenary property had not been abrogated and it was held that the father could bequeath his bhumidhari rights only of his holding and not of other coparceners. As already earlier observed, the plaintiffs have themselves pleaded Sh. Sri Kishan to be the exclusive Bhumidhar qua some of the agricultural lands and cobhumidhar qua the others. Further, apparently the judgment cited in the commentary relied on by the plaintiff is Chander Bhan vs. Harnath Singh XX DLT (1981) Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 22/29 32 (S.N.). On the other hand is the judgment passed in 21 (1982) DLT 291, Nathu Vs. Hukam Singh & Ors. by the Division Bench of the Hon'ble Delhi High Court wherein it was held that the right of transfer of interest by a Bhumidhar of its Bhumidhari rights in the agricultural land was controlled only by the provisions of the Delhi Land Reforms Act and the provisions of the customary law relating to restrictions on transfer did not apply to the transfer of bhumidhari rights. Reference was made in the above judgment to the case of 'Ram Mehar Vs. Mst. Dakhan ILR (1972) II Delhi 922' which in fact is also mentioned in the commentary relied on by the plaintiff and in that case it was noted that the question arose before the Division Bench therein as to whether the rule of succession in the Act or the rule of succession in the Hindi Succession Act, 1956 governed the parties and it was held that the rule of succession governing Bhumidhars was to be found in Section 50 of the DLR Act and not in the Hindu Succession Act, 1956. Further in the judgment, noting that there was no material difference between the bhumidhari rights under the U.P. Zamindari Abolition & Land Reforms Act, 1950 and the Delhi Land Reforms Act, 1954, the decision in 'Rana Shen Ambar Singh vs. The Allahabad Bank Ltd. AIR 1961 SC 1790' was referred to wherein the Hon'ble Supreme Court held that the right of transfer of each member of the Joint Hindu family or his interest in Bhumidhari land was controlled only by Section 152 of U.P. Act and by no other restriction and the provisions of Hindu Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 23/29 Law relating to restriction on transfer of coparcenary land eg. existence of legal necessity was held not applicable. It is thus the judgment passed by the Division Bench of the Hon'ble Delhi High Court in Nathu's case which is to be followed which provides that the right to transfer interest by a bhumidhar of its bhumidhari rights is controlled only by the provisions of the Delhi Land Reforms Act and wherein the law laid by the Apex Court has also been cited.
26. The judgments relied on by counsel for plaintiffs i.e. V.K. Surendra Vs. V.K. Thimnaiah & Ors. (Supra), Rohit Channan Vs. Surinder Singh & Ors (Supra) and Revanasiddappa & Anr. Vs. Mallik Arjun & Ors. (Supra) are not applicable to the facts of the present case since none of them deal with cases pertaining to bhumidhari property. Thus, the discussion contained therein in relation to nature of the property of deceased being joint or separate in the hands of the parties to the suit is not relevant to the facts of the present case. Further, the mere admission of the defendants' witness DW1 that the suit land was joint property is rendered meaningless as regards the admittedly bhumidhari property of Sh. Sri Kishan in view of the settled law as lucidly explained in Nathu Vs. Hukam Singh's case (supra) regarding Bhumidhari property and it is settled that there can be no estoppel against law. Section 48 of DLR Act provides for bequeathing interest by way of Will: "48 Bequest by a Bhumidhar A Bhumidhar may by will bequeath his holding or any part thereof except as provided in subsection (2). Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 24/29 (2)No Bhumidhar entitled to any holding or part in the right of a widow, mother, stepmother, father's father, father's mother, unmarried daughter, or unmarried sister, may bequeath by will such holding or part.
(3)Every will made under provisions of subsection (1) shall, notwithstanding anything contained in any law, custom or usage, be in writing and attested by two persons."
Thus, Late Sri Kishan was entitled in law to bequeath his interest in the Bhumidhari properties by way of the impugned Will.
27. Now, coming to the other properties in regard to which also the declaration of the Will being null and void has been sought. The plaintiffs in para two of the plaint have only stated that Sh. Sri Kishan was having residential plots comprised in Khasra No. 320, 323 and 324 to the extent of th 1/5 share. It is nowhere pleaded by the plaintiffs in their entire pleadings that the said residential plots were ancestral properties let alone having proved so by cogent evidence which was extremely material and in absence of such a pleading, the admission of the defendants' witness DW1 that the 'suit property' was joint property is of no meaning. Even otherwise, assuming that th the said plot was an ancestral plot wherein Late Sh. Sri Kishan had 1/5 share, th since specific mention is made that he had 1/5 share, it implies that partition had not taken place between the coparceners. The plaintiffs have not pleaded anything about whether partition had or had not taken place as Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 25/29 regards these plots between Sh. Sri Kishan and other coparceners Section 30 of the Hindu Succession Act, 1956 provides that a Hindu may bequeath his interest in a coparcenary property by way of Will. Thus, if late Sh. Sri Kishan th bequeathed his undivided 1/5 share in the plot falling in the aforesaid Khasras he was entitled to do so in law. The plaintiffs thus cannot question the title/right of late Sh. Sri Kishan to bequeath these residential plots as well. However, as regards the ancestral residential house in village Chhawla (admeasuring 100 sq. yds., as per the description in the Will Ex. DW1/P1), the fact that in the Will Ex. DW1/P1 it is described as an 'old residential house' coupled with the admission of DW1 that the suit property was joint property it is sufficient to establish that the same is an ancestral house and the plaintiffs were coparceners therein therefore late Sh. Sri Kishan could have only bequeathed his share in the same to the defendants. However, it is pertinent to note that the plaintiffs do not plead that they are in possession of this ancestral house and have failed to adduce any evidence at all to show that they are in possession of the said ancestral house. In response to a question put to defendant no. 1 regarding the plaintiffs being in cultivatory possession of the suit property DW1 deposed that the plaintiffs were in cultivatory possession of their portion of their property which had been inherited from the mother, while she was in cultivatory possession of the portion of the property and she denied the suggestion that the plaintiffs were in possession Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 26/29 of the portion of the suit property which was the share of Sh. Sri Kishan. The plaintiffs having not established through cogent evidence that they are in possession of the suit properties, they were required to seek possession/partition apart from the decree of declaration of the Will being null and void. They have instead chosen to seek only permanent injunction restraining the defendants from claiming any right/title/interest in the suit property and further not to interfere in the peaceful possession of the plaintiffs over any portion of the respect left behind by Late Sh. Sri Kishan, to which relief they are not entitled since as observed above they have not established their possession of the properties by any cogent evidence.
Section 34 of the Specific Relief Act provides as follows: "34. Discretion of court as to declaration of status or rights Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so."
Section 41 (h) of the Specific Relief Act provides as follows Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 27/29 Section 41 Injunction when refused Ans injunction cannot be granted ...........
(h)"When equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust."
28. The appropriate remedy for the plaintiffs was to seek alongwith the declaration of the impugned Will being null and void, partition or declaration of joint ownership and/or possession. That not having been done, no relief of declaration even as regards the residential house situated in the Old Lal Dora can be granted to the plaintiffs, being barred U/s 34 read with Section 41 (h) of the Specific Relief Act.
29. Thus, to summarize, Late Sh. Sri Kishan was fully entitled in law by virtue of Section 48 of the DLR Act to bequeath his interest as regards the Bhumidhari plots to the defendants by virtue of the impugned Will and was th also entitled in law to bequeath his 1/5 share of the residential plots comprised in Khasra Nos. 320, 323 and 324 to the defendants but he was not entitled to bequeath more than his share in the ancestral residential house by way of the impugned Will however even as regards the said ancestral residential house the relief of declaration and injunction would stand barred U/s 34 & 41 (h) of the Specific Relief Act. The plaintiffs are thus not entitled to the relief of declaration as sought as regards any of the properties mentioned in the prayer clause.
Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 28/29
30. The relief of injunction as sought also cannot be granted since the plaintiffs have failed to establish their possession of the suit properties and even otherwise, being merely a consequential relief, it is bound to be disallowed since the main relief has been declined.
Issues no. 3 and 4 decided against the plaintiff.
Issue No. 5 Relief.
31. Consequent to the above discussion I hold that the plaintiffs are not entitled to the reliefs sought. The suit of the plaintiffs stands dismissed Parties to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to the Record Room.
Announced in the open court ANJANI MAHAJAN
On 31.01.2014 Civil Judge - 10 (Central)
31.01.2014
Suit No. 113/07 Sh. Mahender Singh & Ors. Vs. Smt. Kushum Lata & Ors. 29/29