Delhi District Court
Smt. Raj Kumari W/O Sh. Pawan Singh vs Sh. Amar Singh S/O Sh. Beni Singh on 26 September, 2013
IN THE COURT OF SH. RAKESH KUMARIII
JSCC : ASCJ : GUARDIAN JUDGE (SHAHDARA) :
KARKARDOOMA COURTS : DELHI.
Civil Suit no: 252/2007
Unique Case ID no.: 02402C0441382006
Smt. Raj Kumari W/o Sh. Pawan Singh
R/o B2/112, Nand Nagari, Shahdara, Delhi.
....... Plaintiff
Versus
Sh. Amar Singh S/o Sh. Beni Singh
R/o B2/112, Nand Nagari, Shahdara, Delhi.
...... Defendant
SUIT FOR POSSESSION AND INJUNCTION.
Date of Institution of the suit : 10.08.2006
Date on which judgment was reserved : 21.09.2013
Date of decision : 26.09.2013
Decision : Dismissed
J U D G M E N T
1. By filing the present suit plaintiff seeking possession of the portion which is shown in red colour in the site plan allegedly occupied and in possession of the defendant which is situated on the first floor of the property bearing no. B2/112, Nand Nagari, Shahdara, Delhi (herein after call suit property or property in question) on the ground that the property in question has been purchased by the plaintiff form the previous owner Smt. Civil Suit no. 252/07 Page NO. 1 / 18 Shanti Devi W/o Sh. Ram Swaroop, who was the original allottee of the property by DDA who was the motherinlaw of the plaintiff and mother of the defendant as well as husband of the plaintiff for a total consideration of Rs.1,20,000/ and Shanti Devi had executed registered GPA, registered Will, registered SPA, agreement to sell and receipt on 21.08.00.
2. It is contended that Shanti Devi was the mother of husband of the plaintiff and the defendant was the son of Sh. Beni Singh, who was the earlier husband of Shanti Devi and cousin brother of Ram Swaroop and later on Shanti Devi had remarried with the cousin brother of the Beni Singh i.e., Ram Swaroop. Out of wed lock of Shanti Devi and Beni Singh, the defendant and his three sisters have been born and out of the wed lock of Shanti Devi and the Ram Swaroop, the husband of the plaintiff and his two sisters have been born.
3. It is further contended that keeping in view the relationship of Shanti Devi with the defendant being mother and son, she had permitted to the defendant to live in first floor of the suit property till the defendant makes his own house or plot which was got purchased by Shanti Devi (out of the sale proceed of the property in question Rs.95,000/ has been spent towards the purchase of plot in favour of the defendant) in the name of defendant to settle him. But time and again defendant permitted to stay for few further month which was considered and allowed by Shanti Devi on the pretext that the defendant be allowed to stay till she was alive which was also agreed by Pawan Singh who was husband of the plaintiff but in Civil Suit no. 252/07 Page NO. 2 / 18 the midnight of 02.11.05 some one came to Shanti Devi to obtain her thumb impression while she was under influence of medicine and was not fully in conscious and when she awaken on the next day i.e, on 03.11.05 she saw ink on her thumb and she doubted that somebody has taken her thumb impression that is why a complaint dated 03.11.05 had been made to PS Nand Nagari and subsequently Shanti Devi had died on 11.02.2006.
4. It is further contended that in the month of March, 2006 plaintiff asked to defendant to vacate the first floor of the property in question, though it had been assured even on 05.06.06 the defendant instead of vacating the property in question has filed a false suit against the husband of the plaintiff on the basis of Will allegedly executed by Shanti Devi in favour of the defendant on 03.11.05 which is apparently established that the defendant was the person who had taken thumb impression of the motherinlaw of the plaintiff. Since, Shanti Devi has already executed the title documents in favour of the plaintiff on 21.08.2000, hence, there is no question arose to execute any unregistered Will allegedly executed on 03.11.05 in favour of the defendant and will dated 03.11.05 is forged and fabricated and cannot over riding the fact on the registered Will dated 21.08.00 executed by Shanti Devi in favour of the plaintiff as well as on 03.11.05 Shanti Devi was not the owner of the property in question as such the suit having been filed by defendant against the husband of the plaintiff was not maintainable and possession Civil Suit no. 252/07 Page NO. 3 / 18 of the defendant qua the portion in the property in question is illegal and unauthorized as there is no legal right in favour of the defendant.
5. Further, in furtherance of illegal designs the defendant brought a party on 01.07.06 and was showing the premises in question and also negotiating with them to sell on the premium but due intercepted and interrupted by the plaintiff he is not succeed to adamant and continue threat to possession of the property resulting into filing the present suit while valued portion of the possession of the defendant of the property in question is Rs.1,00,000/.
6. In reply, WS filed wherein preliminary objection has been taken with request to dismiss the suit on the ground that plaintiff has not approached the court with the clean hands and has suppressed the material facts, plaintiff has no cause of action, no locusstandi, suit is barred by limitation, suit has not been properly verified and signed by competent person, suit has not been properly valued and stamped and lastly suit is not maintainable as the provision of order 7 rule 14 CPC has not been complied. On merits all the contents of the plaint has been denied that Shanti Devi had executed any title documents in favour of the plaintiff and all documents seems prima facie forged and fabricated and created by the plaintiff in collusion with her husband to cause the wrongful loss to the defendant and to cause the wrongful gain to herself.
7. It is also denied that the Shanti Devi being the mother of the defendant had permitted at any time to defendant to live on the first floor of Civil Suit no. 252/07 Page NO. 4 / 18 the property in question which was also agreed by the husband of the plaintiff to allow the defendant to live in the property in question till Shanti Devi alive and now the possession qua the portion of the property in question cannot be said unauthorized in any manner and further denied that out of the sale consideration as alleged by the plaintiff, Shanti Devi had spent Rs.95,000/ towards the purchase of peace of plot in favour of the defendant to settle him.
8. It is also contended that defendant has obtained the thumb impression of Shanti Devi when she was unconscious under the influence of medicine and Shanti Devi had made a complaint on 03.11.05 with the PS Nand Nagari. However, it is contended that the Shanti Devi being the mother of the defendant had executed and bequeath a Will in favour of the defendant and the husband of the plaintiff on 03.11.2005 and after execution of the Will, it was orally settled between the husband of the plaintiff and the defendant that the entire ground floor of the property in question would be in favour of the husband of the plaintiff who would be exclusive user and owner and the entire first floor upto the roof rights would be gone in favour of the defendant who would be the user and owner of his portion after the death of Shanti Devi who was mother of the defendant and husband of the plaintiff and since then defendant has been residing in to the portion of the first floor of the property in question being the owner.
Civil Suit no. 252/07 Page NO. 5 / 18
9. It is specific contended that the factum of execution of title documents in favour of the plaintiff allegedly executed by mother of the defendant Shanti Devi on 21.08.00 came to the knowledge of the defendant when the husband of the plaintiff has filed WS in the earlier suit bearing No. VC30/2006 having been filed by himself against the husband of the plaintiff.
10. It is also contended that plaintiff and her husband who time and again tried to dispossess the defendant and threatened on 05.04.06, 05.06.06 therefore the earlier suit has been decided in favour of the defendant by Sh. A.K. Sarpal, then Ld. ADJ on 12.06.2006. Lastly, dismissal of the suit has been prayed on the ground that all the documents are forged and fabricated.
11. Replication to the written statement filed and reiterated all the averments made in the plaint.
12. After completion of the pleadings issues were framed vide order dated 13.03.2007 which are as under :
1. Whether the plaintiff has not come to the court with clean hands and suppressed the material facts? OPD
2. Whether the suit is barred by limitation?OPD
3. Whether the plaintiff has no locus standie to file the present suit? OPD
4. Whether the suit is not properly valued for the purpose of Court fee and Jurisdiction? OPD
5. Whether the plaintiff is entitled for the decree of possession as prayed for? OPP
6. Whether the plaintiff is entitled to decree of permanent Injunction, Civil Suit no. 252/07 Page NO. 6 / 18 as prayed for ? OPP
7. Relief.
13. Prior to proceed further it is not out of place to mention herein that in the case titled as Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Anr. 2011 X AD (SC) 365, it is ruled out that the transaction of the nature of GPA or Sale Agreement and Will transfer do not convey title and do not amount to transfer to another which can be recognized as a valid mode of transfer of immovable property. The court will not treat such transaction as completed or concluded transfer or as a conveyance as they neither convey the title nor create any interest in immovable property. They cannot be recognized as deed of title except to the limited extent of section 53 A of TP Act.
14. Since in the present case, it is admitted by the plaintiff that she claimed her ownership on the basis of GPA, Registered Will, Registered SPA, Agreement to Sell and receipt dated 21.08.2000, but in view of the Judgment captioned above the plaintiff cannot be said to be owner of the portion i.e. First Floor of the property in question. On the other hand the defendant claimed his ownership and seeking protection in respect to the First Floor of the property in question on the basis that Shanti Devi who was the mother of the Defendant has executed and bequeath a Will in favour of the defendant on 03.11.2005 and contended that above caption of GPA, Registered Will, Registered SPA, Agreement Civil Suit no. 252/07 Page NO. 7 / 18 to Sell and receipt are forged and fabricated. But no evidence lead as how the documents can be said to be forged and fabricated. However, title document of the plaintiff cannot be considered as a Sale transaction of the immovable property i.e. the property in question as per the judgment of Hon'ble Supreme Court captioned above and defendant has proved the Will Ex. DX being the beneficiary of the Will which is also counter opposed and contended that the Will is forged and fabricated in as much as on 03.11.2005 somebody took thumb impression of the mother of the defendant and mother in law of the plaintiff, to this effect a complaint dated 03.11.2005 has been made alleging that Will is forged and fabricated. But surprisingly no evidence has also been led by the plaintiff which can establish that the Will is forged and fabricated especially keeping in view of the fact that in the complaint dated 03.11.2005 there is nothing mentioned that the Will has been executed by playing fraud and forgery. Even no explanation come up on record as why the complaint dated 03.11.2005 has not been persuaded and even the complaint dated 03.11.2005 Ex. PW1/2 has not been proved. The Ld. Counsel for the plaintiff, however, contended that since the complaint has been filed by the motherinlaw of plaintiff, hence, she was suppose to continue the complaint and merely not pressing the complainant suit cannot be dismissed. In this regard, it is not out of mentioned to place here that bare perusal of complaint dated 03.11.05, it reveals that nothing has been mentioned that the property in question has been sold to the plaintiff on 21.08.2000. Civil Suit no. 252/07 Page NO. 8 / 18
15. Now come to the evidence led by the parties in the present case, plaintiff examined herself by way of affidavit which is Ex. P1, her husband Pawan Singh examined by way of affidavit which is Ex. P2 and closed their evidence on 06.01.2010. On the other hand defendant also examined by way of affidavit which is Ex. DW1/A, Sharda Devi his wife by way of affidavit examined herself as DW2/A and closed their evidence on 26.03.2011.
Issue No. 1 :
16. The onus has been cast upon the defendant and defendant himself examined by way of affidavit which is Ex. DW2/A wherein he reproduced all the contents of the WS. In para no. 16 there is specific deposition made that on 03.11.2005 a Will had been executed by the mother of defendant in favour of the defendant which is Ex. DW1/1 and in para no. 12 wherein it is specifically deposed that the property in question was never sold by mother of the defendant to the plaintiff and in para 9 there is specific deposed that prior to this suit the defendant has also filed a suit bearing no. 30/06 of 06.06.2006 for permanent injunction against the plaintiff and her husband from illegal deposition which has been decided in favour of the defendant vide order dt. 12.06.2006. On the basis of undertaking given by the husband of the plaintiff that he will not dispossess the defendant and his family members from the property in question without following the due process of law. On the other hand, Civil Suit no. 252/07 Page NO. 9 / 18 despite all these facts have been incorporated in para no. 6 of the plaint and similarly deposed in Plaintiff's Evidence in para no. 6 of affidavit Ex.P1 but no cross examination has been done by the defendant on this point.
17. Since, No evidence led by the defendant to establish that what fact has been concealed and suppressed as such failed to discharge onus, hence, this issue is decided against the defendant and in favour of plaintiff.
Issue no. 2 :
18. The onus to discharge this issue has been casted upon the defendant and defendant reproduced all contents of WS in his evidence.
The contention that this suit of the plaintiff stand barred being filed after the 7 years of execution of documents. On the other hand, PW1 plaintiff specifically deposed in para No.18 which is reproduced the cause of action para of the plaint and deposed that cause of action arose in favour of the plaintiff against the defendant when Late Smt. Shanti Devi has expired on 11.02.2006 i.e., motherinlaw of the plaintiff and mother of the defendant, when the request made to the defendant for possession of the property in question on 05.06.2006 and lastly on 01.07.2006 when defendant refused same but no cross examination was done on this point. Since the issue is relating to the law point and it is well settled law, a suit for possession can be filed within 12 years as per article 65 of Limitation Act from the date of cause of action arises in favour of the plaintiff. Since, it is alleged that Civil Suit no. 252/07 Page NO. 10 / 18 plaintiff has purchase the property in question in 2000 and the suit filed on 10.08.2006 as such it cannot be said time barred even from the alleged date execution of title document in favour of plaintiff, hence this suit is decided in favour of the plaintiff and against the defendant. Issue No. 3 :
19. The onus has been casted upon the defendant to discharge this issue, but no evidence has been lead by the defendant which can substantiate that the plaintiff has no locusstandi to file the present suit but it is otherwise ruled out in the judgment titled Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Anr. 2011 X AD (SC) 365, since the GPA, Agreement to sell, will, receipt does not confirm any title or ownership right to the plaintiff but such documents create certain right in an immovable property in this regard reliance can be placed on case titled Sh. Ramesh Chand Vs. Suresh Chand & Anr. 188(2012) DLT 538, hence, this issue is decided against both the parties.
Issue No. 4 :
20. The onus has been casted upon the defendant to discharge this issue but no evidence has been led by the defendant as how the suit is not properly valued for the purpose of court fees and jurisdiction. On the other hand, in para No. 20 of the plaint, the valuation of the portion of the suit property has been done or valued as Rs.1 lakh for the purpose of court fees and jurisdiction, which is even not denied by the defendant in his WS, hence, this issue is decided in favour of the plaintiff and against Civil Suit no. 252/07 Page NO. 11 / 18 the defendant.
Issue No. 5 and 6 :
21. The onus of both issues are casted upon the plaintiff and basic question is that whether on basis of GPA, Agreement to Sell, Will a possession or injunction decree can be passed or not without seeking cancellation of alleged forged Will dated 03.11.2005?
22. Since, Hon'ble Supreme Court of India in case titled Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Anr. 2011 X AD (SC) 365, it is held that GPA, Agreement to Sell, Will cannot be considered as a titled document for transfer of movable property but in the case Sh. Ramesh Chand Vs. Suresh Chand & Anr. 188(2012) DLT 538, the Hon'ble High Court of Delhi has observed in para 2 of the judgment that "a reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance (para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872 (para 13) and devolution of interest pursuant to a Will (para 14). Therefore, no doubt a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property Civil Suit no. 252/07 Page NO. 12 / 18 pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882, Section 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator in terms of a Will"
23. Further, it was observed by the Hon'ble High Court of Delhi that the object of giving validity to a power of attorney given for consideration even after the death of the executants is the ensure that entitlement under such power of attorney remains because the same is not regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of executant of power of attorney.
24. Lastly, the Hon'ble High Court of Delhi has held in para 6 of the judgment that "the respondent no. 1 / plaintiff appeared in the witness box and proved the documents dated 16051996 being the agreement to sell (Ex.PW1/2), General Power of Attorney (Ex.PW1/6), Affidavit (Ex.PW1/3), Receipt for Rs.1,40,000/ (Ex.PW1/4) and Will (Ex.PW1/5). The respondent no. 1 / plaintiff also got support of their stand from the depositions of the attesting witnesses to the documents namely Sh. Munir Ahmed who was examined as PW3 and Sh. Shri Ram was examined as PW4. Brother of the parties Sh. Ram Swaroop, deposed in favour of the respondent no. 1 / plaintiff as PW2" and in respect to the will in my opinion, the judgement of the Supreme Court in the case of Kashibai & Anr. (supra), and various Civil Suit no. 252/07 Page NO. 13 / 18 other judgements which deal with the issue of requirement of a Will having to be proved by summoning of an attesting witness, are judgements given in those cases where there are inter se disputes between the legal heirs of a deceased testator and the validity of the Will is questioned in those circumstances. Observations in the said judgments cannot have application to the facts of those cases where the disputes with regard to Will are not classical disputes between the legal heirs of the deceased testator and the Will is an instrument which really furthered an intent to transfer the rights in an immovable property by the testator to the beneficiary. I may note that in the present case, there is absolutely no cross examination at all on behalf of the appellant when the registered Will was proved and exhibited in the statement of the respondent no. 1 / plaintiff as PW1. Once there is no cross examination, in the cases such as the present, which are different than the classical disputes inter se the legal heirs of a deceased testator, I would feel that the Will should be held to be a proved document in as much as the object of the Will in cases such as the present was really to transfer rights in an immovable property after the death of the testator. Further, I may note that the observations with respect to Will having to be very strictly proved by calling the attesting witness are in probate cases where the judgment is a judgment in rem whereas in the present case the judgment on the basis of ownership rights devolving upon Civil Suit no. 252/07 Page NO. 14 / 18 the respondent no. 1/ plaintiff under a Will not be a judgment in rem but only a judgment inter se the parties.
25. Now turning to the evidence led by the parties in the present case. Admittedly in the present case, the alleged will in favour of the defendant has been executed on 03112005 and this fact came to the knowledge when the defendant filed suit for injunction against the husband of the plaintiff and disposed of after giving the statement of the husband of the plaintiff that they will not dispossess the defendant without following due process of law and filed present suit on 10082006. Despite that no declaration qua the cancellation of alleged Will dated 03.11.2005 has been prayed and at this stage, even it cannot be prayed as the period of cancellation of documents is for three years from the date of knowledge as in the present case, it was alleged that in June, 2006, defendant has filed a suit against the husband of the plaintiff. As I have earlier discussed that PW1 / plaintiff reproduced all the contents of the plaint and failed to lead evidence in respect to that how forgery has been committed by the defendant while preparing alleged Will. Even failed to prove the document Ex.PW1/2, which are genesis to the present case and raised contention that the will dated 03112005 is forged and fabricated.
26. Here it is also not out of mention to place here that the present suit has been filed by the plaintiff on 10082006 whereas the mother of the defendant has expired on 11022006. Further admittedly the complaint dated 03112005 has been filed or made by the mother in Civil Suit no. 252/07 Page NO. 15 / 18 law of the plaintiff and mother of the defendant despite that it has not been pressed either by the motherinlaw of plaintiff or by the plaintiff herself especially when the suit property has been purchased in the year 2000 which would hamper on the right, title and interest of plaintiff in respect to the property in question.
27. Further, there is no out of stress of imagination that in case a person finds that somebody has taken his/her thumb impression after executing of transfer of immovable property in favour of anyone as in the present case in favour of plaintiff, he or she would not even made or incorporate the fact of earlier execution of the documents in the subsequent complaint. Bare perusal of complaint Ex.PW1/2 as such nothing has been mentioned by the mother in law of the complaint and the mother of the defendant which can suggest that she had ever executed any document i.e. GPA, Agreement to Sell or Will in favour of the plaintiff, which casts doubt for the execution of the document in favour of the plaintiff.
28. In view of the observations made by the Hon'ble High Court of Delhi in para 12 while deciding RFA No. 865/03 on 8th May, 2012 in case titled Shri Man Mohan Batra Vs. Shri Bharat Bhushan Batra & Ors. that "A civil case is decided on balance of probabilities. In civil case, after evidence led by the parties the court put the same in a melting pot so as to decide the final picture which has to emerge therefrom", I am of the considered view that after the death of Smt. Shanti Devi, there is two will Civil Suit no. 252/07 Page NO. 16 / 18 i.e., one which is in favour of the plaintiff and the other is in favour of the defendant and both will have been exhibited by both the beneficiary as Ex.PW1/3 and Ex.DW1/1 / Ex.DX and bare perusal of both Wills, it revealed that will Ex.PW1/3 bequeath property in question only in favour of the plaintiff whereas the other will Ex.DW1/1 bequeath property in question in favour of the defendant as well as in favour of the husband of the plaintiff, and there is no stretch of out of imagination that in case a party wanted to cheat or defraud someone then why he create right or other share in the immovable property in favour of others as in the present case, the Will Ex.DW1/1 is in favour of both the brothers i.e., husband of the plaintiff and the defendant himself, hence, I declare the Will Ex.DW1/1 proved.
29. After taking into consideration the facts and circumstances of the present case, I am of the further considered view that no decree of possession and injunction can be passed in favour of the plaintiff as no cancellation of alleged will dated 03112005 has been made or prayed in the present suit and also in my opinion, the suit for declaration if now sought to be amended to claim the relief would in the peculiar facts of this case be hopelessly barred by the limitation in as much as once ouster is clear from 03.11.2005 or June, 2006 the period of 3 years expired on 03.11.2008 or June, 2009 respectively and further the plaintiff failed to prove that the will dated 3112005 Ex.DW1/1 is forged and fabricated. The registration of will does not make it anymore effective, hence, both Civil Suit no. 252/07 Page NO. 17 / 18 these issues are decided against the plaintiff and in favour of the defendant.
Relief :
30. In view of the findings given on the issues, the present suit of the plaintiff is liable to be dismissed, hence, suit of the plaintiff is dismissed. Parties are to bear their own cost. Decree sheet be prepared. Original documents, if any, on record be returned to the concerned person against receipt after obtaining the certified copies. Thereafter, File be consigned to Record Room.
Announced in the open (RAKESH KUMARIII)
Court on 26.09.2013 JSCC/ASCJ/GJ (Shahdara)
(Judgment contains 18 pages.) Karkardooma Courts,Delhi.
Civil Suit no. 252/07 Page NO. 18 / 18