Delhi District Court
Smt. Shanti Devi Tomar vs Smt. Kamlesh Tomar on 26 September, 2016
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER,
SCJ-Cum-RC, (NE) KARKARDOOMA COURTS, DELHI
CIS/S No. 5543/2015
In the matter of:
SMT. SHANTI DEVI TOMAR
W/o Late Sh. Rohtash Singh,
R/o H. No. 19, Maya Gali, No.3,
Near Chaupal, Babarpur,
Shahdara, Delhi-110032
.......Plaintiff
Through Sh. Arvind Bhardwaj
Advocate
Versus
SMT. KAMLESH TOMAR
W/o Late Sh. Rajinder Singh,
R/o H. No. 105, Maya Gali, No.3,
Babarppur, Shahdara, Delhi-32
.........Defendant
Through Sh. R.C. Sharma
Advocate
Date of Institution : 29.01.2007
Date of Final Argument : 23.08.2016
Date of Pronouncement : 26.09.2016
JUDGMENT
(Suit for permanent injunction, declaration and mesne profit)
1. PLAINT Plaintiff has filed the present suit for permanent injunction, declaration and mesne profit against the defendant, who is wife of brother of husband of plaintiff. Facts briefly stated are herein below:-
1.1. That plaintiff is wife of late Sh. Rohtash Singh who is son of Late Sh. Kadam Singh, who owns lot of plots including the property in question i.e. # 41, Gali No.3, West Gorakh Park, Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 1 of 27 Shahdara, Delhi-32.
1.2. That defendant is wife of Late Sh. Rajender Singh, who happened to be the brother of Late Sh. Rohtash Singh the other son of Late Sh. Kadam Singh.
1.3. That Sh. Kadam Singh expired on 27.05.198 and his son Rohtash Singh died on 16.08.1969 and Rajender Singh died in the year 1983.
1.4. That after death of Sh. Kadam Singh, plaintiff Smt. Ram Kali (wife of Sh. Kadam Singh) and defendant became the absolute owner of the properties owned by him. 1.5. That Smt. Ram Kali died on 03.02.2001 but she had executed a WILL on 30.12.1994 registered with office of Sub-
Registrar, Seelampur, bequeathing therein her entire movable and immovable properties in the name of plaintiff and this fact came to the knowledge of the plaintiff when she was searching some document in her almirah in March 2004. 1.6. Thereafter, plaintiff made efforts to make defendant abide by the will of Late Smt Ram Kali and requested her to surrender share of late Smt. Ram Kali, but defendant refused to surrender, which under tenancy and tenants are enjoying the property. Hence, plaintiff has filed the present suit.
2. WRITTEN STATEMENT Defendant in the written statement has inter alia submitted as under:-
2.1. That plaintiff had earlier filed same suit before Sh. Sudesh Kumar, Ld. Civil Judge, which had been dismissed as withdrawn subject to cost of Rs.500/-. However, the said ld.
Court had not given any liberty to file a fresh suit on the same cause of action and present suit is barred under Sec. 12 Order XXII of CPC.
Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 2 of 272.2. That upon execution of Will dated 25.01.1995, Smt. Ram Kali had bequeathed her property in favour of Sh. Shyam Singh and Sh. Parvinder Singh prior to her date of death i.e. 03.01.2001.
2.3. That in addition to Will dated 25.01.1995, Smt. Ram Kali executed registered Relinquishment deed dated 16.02.1995 in favour of defendant and in the name of sons namely Parvinder Singh.
2.4. That upon execution of Will dated 25.01.1995 and Relinquishment Deed dated 16.02.1995, the right of the plaintiff, which accrued vide Will dated 30.12.1994 was superseded and thereby plaintiff has no right or interest in any property of Smt. Ram Kali.
2.5. That the contention of the plaintiff that she came to know about Will dated 30.12.1994 in March 2004, when she was searching some documents/papers in her almirah is false plea taken by the plaintiff and further that no meeting of Biradari at the residence of plaintiff was ever closed in July 2004. 2.6. That no notice dated 17.12.2005 was affixed outside the property.
3. REPLICATION Plaintiff has not filed replication to the WS of the defendant.
4. ISSUES Following issues were framed on 04.03.2009:-
4.1. Whether the suit of the plaintiff is not maintainable in view of the provisions of Order 23 CPC, Order 7 Rule 11 Code of Civil Procedure, 1908 and Section 12 CPC? OPD 4.2. Whether the plaintiff has no right, title or interest in the suit property? OPD 4.3. Whether the suit is barred by limitation? OPD Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 3 of 27 4.4. Whether the suit is barred under the provisions of Specific Relief Act? OPD 4.5. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? OPP 4.6. Whether the plaintiff is entitled for the relief of declaration as prayed for? OPP 4.7. Whether the plaintiff is entitled for the relief of mesne profits? If so, at what rate and for which period? OPP 4.8. Relief.
5. EVIDENCE
5.1. Plaintiff's evidence: The only witness examined in plaintiff's evidence is plaintiff herself as PW-1. 5.2. Defendant's evidence: Defendant Ms. Kamlesh Tomar testified as DW-1 and examined Hukum Singh as DW-2 and Janki, LDC as DW-3 in defendant's evidence. JUDICIAL RESOLUTION- FINDINGS ON THE ISSUES
6. ISSUE No.1: Whether the suit of the plaintiff is not maintainable in view of the provisions of Order 23 CPC, Order 7 Rule 11 Code of Civil Procedure, 1908 and Section 12 CPC? OPD 6.1. Issue No.1 has arisen from Para 1 of the written statement. The said para is reproduced as under: -
"That the suit of the Plaintiff is not maintainable under Section 12, Order 23 and Order 7 Rule 11 of Code of Civil Procedure, 1908. It is submitted that earlier the Plaintiff has filed the same suit in respect of the suit property against the Defendants which was assigned to the court of Shri Sudesh Kumar, CJ, KKD, Delhi. The Defendant No.1 have filed the written statement taking the various defence in her Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 4 of 27 written statement and the Plaintiff has filed the replication in the said case. After filing the replication the Plaintiff, as the suit was filed without any locus standi, has moved an application under Order 23 Rule 1 Read With Sec.151 CPC seeking therein the permission to withdraw the said suit with the liberty to file the fresh suit on the same cause of action. The replying Defendant has filed the reply of the said application and after hearing the arguments on behalf of both the parties, the Ld. Court of Shri Sudesh Kumar, CJ, KKD, Delhi was pleased to dismiss the suit as withdrawn subject to cost of Rs.500/-. However, the said Ld. Court has not given any liberty to file the fresh suit on the same cause of action as Plaintiff failed to satisfy the said Ld. Court regarding the formal defect as alleged by the Plaintiff. In view of the above facts and circumstances the suit of the Plaintiff is barred under Sec.12 and Order 23 of Code of Civil Procedure, 1908, hence the same is not maintainable and is liable to rejected with cost."
6.2. As replication has not been filed, hence, there is no direct admission or denial of the facts mentioned in the aforesaid paragraph.
6.3. However, in the cross examination of plaintiff/PW-1, questions were put with respect to this issue and deposition of plaintiff is as under:-
"I do not identify the signatures of Smt. Ram Kali. It is correct that I had filed the suit for permanent injunction and declaration against Smt. Kamlesh, the certified Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 5 of 27 copy of the same is Ex. PW 1/D1. The defendant has filed the WS, the certified copy of the same is Ex. PW 1/D2. I had filed the application U/o 23 of CPC, the certified copy of the said application is Ex. PW 1/D3. The reply of the said application is Ex. PW 1/D4. The said application was dismissed and the certified copy of the said order is Ex. PW 1/D5."
6.4. As per Ex. PW 1/D1 (plaint of earlier suit), the plaintiff had filed a suit for permanent injunction, declaration and mesne profits against Smt. Kamlesh Tomar (defendant in this case) and Ram Bachan, Mukesh and Chhinu on 23.12.2004 with almost the same reliefs, as have been sought in the present suit.
6.5. The relevant paragraphs with respect to the cause of action and relief are reproduced as under:-
CAUSE OF ACTION Para 9 & 10 of plaint in suit filed Para 14, 15 & 16 of the present on 23.12.2004 plaint
9. That the cause of action arose in 14. That the cause of action arose the month of March 2004 when in the month of March 2004 when defendant No.1 refused to accept defendant refused to accept the the WILL executed by Late Smt. WILL executed by Late Smt. Ram Ram Kali in favour of the plaintiff Kali in favour of the plaintiff and and again on 05.05.2004 when the again 5.5.04 when the plaintiff plaintiff again tried to convince again tried to convince defendant defendant no.1 to surrender the to surrender the share of property share of property of Late Smt. Ram of Late Smt. Ram Kali in her favour Kali in her favour but defendant but defendant did not accept the No.1 did not accept the co- co-ownership of the plaintiff as one ownership of the plaintiff and the of the co-owners of the property in defendant No.2 to 4 also refused to question.
accept the plaintiff as one of the 15. That the cause of action arose co-owners of the property in in favour of the plaintiff for the question. purpose of filing the present suit in the month of July 2004 when again
10. That the cause of action arose a biradari meeting was convened in favour of the plaintiff for the by the plaintiff at her residence in purpose of filing the present suit in which the defendant and other the month of July, 2004 when defendant refused to attend the again a biradari meeting was meeting.
Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 6 of 27convened by the plaintiff at her 16. That the cause of action again residence in which the defendant arose in favour of plaintiff and No.1 and other defendants refused against the defendant when a legal to attend the metting, not only this notice dated 17.12.05 got issued the cause of action is continuing by the plaintiff and the same was the still subsists. served through affixation outside the property in question and nothing was replied by the defendant till the filing of the suit and the cause of action further arose when a notice pertaining to dispute was published in DAINIK JAGRAN and RASHTRIYA SAHARA in Jan. 2006 not only this the cause of action is continuing and still subsists.
PRAYER
Prayer clause Prayer clause
It is, therefore prayed that the It is therefore, prayed that the
Hon'ble Court may kindly be Hon'ble court may kindly be
pleased to pass a decree of pleased to pass a decree of
permanent injunction in favour of permanent injunction in favour of
the plaintiff and against the the plaintiff and against the
defendants. defendant restraining thereby the
defendant from selling, alienating,
It is further prayed that the Hon'ble creating third party interest etc. in Court may be pleased to pass a the suit property shown in red color decree declaring therein the in the site plan annexed with the plaintiff as one of the co-owners of suit. the property as shown in red in site plan. It is, further prayed that the Hon'ble court may be pleased to pass a And the defendants No.2 to 4 may decree declaring therein the kindly be ordered to tender the half plaintiff as one of the co-owners of of the mesne profit in the shape of the property as shown in red in site rent to the plaintiff, in the interest of plan. justice.
And the defendant may kindly be ordered to share proportionately the Mesne profit received and being received in the shape of rent to the plaintiff, in the interest of justice.
Any other order, which this Hon'ble court deems fit and proper, may kindly be passed in favour of the plaintiff and against the defendant.
Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 7 of 276.6. Para 9 and 10 of the earlier suit and para 14 & 15 of the present suit are almost verbatim. Para 16 with respect to cause of action has been added in the present suit, which mentions that cause of action further arose when the plaintiff issued legal notice dated 17.12.2005 and when notice with the dispute was published in newspaper.
6.7. In the opinion of the court merely issuing of legal notice dated 17.12.2005 and publishing a notice of dispute in the newspaper does not give rise to a new cause of action or any new claim. There is no semblance of distinction between the bundle of facts which are the basis of the relief sought for by the plaintiff in the earlier suit as also in the present suit. 6.8. The said earlier suit was withdrawn by moving an application, which was decided on 29.08.2005 and the operative operation of the said order is reproduced herein below:-
"The plaintiff has submitted that she has mentioned the conventional address of the defendant in the suit which might result in dismissal of his suit, however, in my considered view the said defect can be rectified by filing of an amendment application as the suit is at its preliminary stage. The plaintiff has filed 10 suits against about 90 defendants wherein defendant no.1 was same in all the 10 suits. The defendant no.1 hasfiled WS in all the suits. The plaintiff has failed to mention any special circumstance for grant of leave to file a fresh suit. No cogent reason is made out for grant of leave to file a fresh suit. There is no formal defect raised by the plaintiff in the application which may result in failure of the suit as the defect raised by him can be Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 8 of 27 cured through amendment. Hence, in my considered view no leave to file a fresh suit can be granted to the plaintiff, however, the plaintiff is within her suit at any stage. Hence, the suit of the plaintiff is hereby dismissed as withdrawn subject to costs of Rs.500/-."
6.9. The court, by the said order, specifically denied leave to the plaintiff to file a fresh suit.
6.10. The said order attained finality, but despite that the present suit on the same bundle of facts with respect to the same subject matter, arising out of same cause of action and with identical reliefs was filed on 27.01.2007 i.e. after more than a year of withdrawing the earlier suit and that too without mentioning that the earlier suit was dismissed without leave to file a fresh suit. The relevant para of plaint in para 10 and is reproduced as under:-
"That finding no other way plaintiff had to file suit for permanent injunction and declaration in the court of competent jurisdiction but due to some formal defects she had to withdraw the same."
6.11. Thus, the plaintiff concealed from the court the fact, that the earlier suit was dismissed as withdrawn without leave to institute fresh suit in respect of the subject matter of such suit or such part of the claim.
6.12. In the opinion of the court, in view of order dated 28.08.2005 in the earlier suit filed by the plaintiff, the present suit is barred by Order 23 Rule 1 (4) (b) of Code of Civil Procedure, 1908 read with Section 12 of Code of Civil Procedure, 1908.
6.13. Accordingly, issue No.1 is decided in favour of the defendant and against the plaintiff.
Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 9 of 277. ISSUE No.2: Whether the plaintiff has no right title or interest in the suit property? OPD 7.1. The onus to prove the said issue is upon the defendant. 7.2. The said issue has arisen because the defendant claimed that Smt. Ram Kali during her life time relinquished her entire share in the property to defendant and Sh. Parvinder Singh Tomar.
7.3. The list of documents that the parties claim were executed by Smt. Ram Kali with respect to her share in the property are as under:
Plaintiff Defendant
Registered Will dated 30.12.1994 Registered Will dated
in favour of plaintiff (Ex. PW 1/3) 19.07.1993 in favour of Shyam Singh and Parvinder Singh, both sons of the defendant (Ex. DW 1/4) Notarized Will dated 25.01.1995 in favour of shyam Singh and Parvinder Singh and Parvinder singh, both sons of the defendant (Ex. DW 1/5) Registered relinquishment deed dated 16.02.1995 in favour of defendant and son of defendant namely Parvinder Singh Tomar (Ex. DW 1/6) 7.4. The last document executed by Smt. Ram Kali is the registered relinquishment deed dated 16.02.1995 and if the said relinquishment deed stands proved, then all the earlier Wills dated 19.07.1993, 30.12.1994 and 25.01.1995 will become insignificant.
7.5. Thus, the relevant question at this stage is: Whether the registered relinquishment deed dated 16.02.1995 stands Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 10 of 27 proved?
a) Before coming to evidence in this regard, the court would like to point out something about pleadings:-
Earlier suit was filed by plaintiff on 23.12.2004 with respect to the same property. (Ex. PW 1/D1). WS in the said suit was filed by defendant in April 2005 and in para 7 on page 4 of the WS, the defendant mentioned about the execution of relinquishment deed dated 16.02.1995, registered with Sub-Registrar on 17.02.1995. (Ex. PW 1/D2).
However, instead of challenging the execution of the said relinquishment deed in replication, the plaintiff moved an application under Order 23 of CPC to withdraw the said suit. (Ex. PW 1/D3) Hence, in the earlier suit, despite opportunity, the relinquishment deed was not challenged as forged by the plaintiff.
Further, when the plaintiff filed the present suit on 27.01.2007, she was aware of the contents of relinquishment deed dated 16.02.1995, but in the instant plaint, she made no reference to the said relinquishment deed. Thus, the plaintiff again at the time of drafting the present plaint, for the reasons best known to her, said nothing about the relinquishment deed.
Written statement to the present plaint was filed on 25.07.2007 and again the defendant mentioned about the relinquishment deed in para 9 on page 6 of WS. Plaintiff had the opportunity to challenge the said relinquishment deed in the replication, but despite Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 11 of 27 several opportunities which were given by the court as per order dated 25.07.2007, 30.08.2007, 17.10.2007, 10.03.2008, 26.05.2008, 30.07.2008, 06.09.2008, 08.09.2008, 22.11.2008 and 01.12.2008, replication was not filed and issues were framed finally on 04.03.2009.
Hence, there is no pleadings on record, on behalf of the plaintiff, challenging the aforesaid relinquishment deed dated 16.02.1995.
The court is thus not aware as to whether the plaintiff is at all challenging the said relinquishment deed or not, and if yes, then whether she is challenging it on the ground that the same is forged or on the ground that it was signed by Smt. Ramkali, when she was not in proper state of mind, so as to understand the consequences thereof.
b) Coming to the evidence of plaintiff in this regard, it is found that the plaintiff in her testimony by way of affidavit Ex. PW 1/A, has not challenged the relinquishment deed dated 16.02.1995. In her entire affidavit she has not mentioned anything about the relinquishment deed. She has merely reiterated that there is a registered will in her favour dated 30.12.1994 and has not challenged the subsequent will dated 25.01.1995 (Ex. DW 1/5) or the relinquishment deed dated 16.02.1995 (Ex. DW 1/6). In her cross examination the plaintiff was specifically questioned as regards the relinquishment deed and she testified as under:-
"I am not aware if Smt. Ram Kali executed a registered relinquishment deed dated 16.02.1995 in favour of Smt. Kamlesh and Sh. Parvinder Singh. It is correct to Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 12 of 27 suggest that after the relinquishment deed dated 16.02.1995, I have no right, title or interest in the property of Smt. Ram Kali."
Therefore, despite the written statement in the earlier suit and again in the present suit, the plaintiff opted to remain silent as regards the relinquishment deed and when she was specifically questioned in this regard, she merely stated that she is not aware of any such relinquishment deed.
c) However, as the onus to prove this issue is upon the defendant, hence, we come to the evidence lead by defendant in this regard.
Defendant as DW-1, tender her evidence by way of affidavit as Ex. DW 1/A and the relinquishment deed was duly exhibited as Ex. DW 1/6 without any objection as to mode of proof.
The cross examination of DW-1 as regards relinquishment deed is as under:-
"The relinquishment deed Ex DW 1/6 was witnessed by Hukam Singh and Suraj Prakash Sharma, Advocate. Sh. Hukam Singh and Suraj Pal Sharma are my neighbours. They were not my tenants at the time of attesting the will and witnessing the relinquishment deed..........................It is also incorrect to suggest that the relinquishment deed Ex. DW 1/6 was also obtained from Smt. Ram Kali under pressure and coercion. It is incorrect to suggest that I got those documents executed as I had come to know about the will executed in favour of plaintiff................. I have four children namely Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 13 of 27 Parvinder, Shyam Singh, Laxmi Devi and Uma. My daughters were unmarried at the time of execution of relinquishment deed Ex. DW 1/6. My daughters were unmarried at the time of execution of relinquishment deed Ex. DW 1/6. The names of my daughters were not mentioned in the relinquishment deed Ex. DW 1/6 by Smt. Ram Kali and there is no reason for not mentioning their names as legal heirs. It is incorrect to suggest that the names of daughters were deliberately not mentioned as I wanted to grab the properties of Late Sh. Kadam Sing. Smt. Ram Kali was illiterate. She was aged more than 90 years at the time of execution of relinquishment deed Ex. DW 1/6. It is incorrect to suggest that Smt. Ram Kali was not in a sound mental health at that time or that she was incapable of moving around or that thumb impression of Smt. Ram Kali on the relinquishment deed and the will executed in the year 1995 were obtained under duress."
From the said cross examination, one can make out that the plaintiff is challenging the relinquishment deed on the ground that the same was executed by Smt. Ram Kali under duress/coercion at the time when she was very old and not in a sound mental health. However, the plaintiff by giving such suggestions has failed to prove that the relinquishment deed was executed under duress/coercion or at a time when Smt. Ram Kali was not in a sound mental health. Defendant has also examined Hukam Singh as DW 2, Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 14 of 27 who is a witness to relinquishment deed Ex. DW 1/6. He testified para 5 of his affidavit Ex. DW 2/A that the relinquishment deed was executed by Smt. Ram Kali in his presence and that he also signed the said relinquishment deed as a witness, besides Sh. Suraj Sharma who is also a witness to the relinquishment deed.
The cross examination as regards the relinquishment deed is as under:-
"It is correct that the document Ex. DW 1/5 and Ex.
DW 1/6 were executed in my presence. The document Ex. DW 1/4 was executed in my presence. It is correct that document Ex. DW 1/4 does not bear my signature. Smt. Ram Kali hand executed one Will and one Gift Deed in my presence. Except these documents Smt. Ram kali had not executed any document in respect of the suit property in my presence. I cannot tell the Khasra number as well as the property number for which the above documents were executed by late Smt. Ram Kali. It is wrong to suggest that no document as stated was ever executed in my presence or that I have signed those documents as witness at the instance of Smt. Kamlesh Tomar whose sons were/are the beneficiaries. Besides me Mr. Sharma ji Advocate was the witness to the abovesaid documents. The above said documents have been prepared by some Sharma Ji Advocate at Seelampur Court. It is wrong to suggest that I am deposing falsely being interested witness."Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 15 of 27
It may be noted that in the cross examination of this witness there is no suggestion that Smt. Ram Kali executed the relinquishment deed under duress/coercion or that she was not in sound mind at the time of execution of relinquishment deed. Therefore, even through the cross examination of DW- 2, the plaintiff has failed to bring forth any contradiction, which may give reason to the court to doubt the authenticity and genuineness of relinquishment deed Ex. DW 1/6.
Defendant as a last witness, summoned the record pertaining to the relinquishment deed from the Sub- Registrar Office and Smt. Janki, LDC came with the requisite record and DW-3 proved that the relinquishment deed Ex. DW 1/6 was duly registered at the Sub-Registrar Office on 17.02.1995 vide document No. 664, Additional Book No.1, Volume No. 2662 at Page 177 to 178.
d) Therefore, from the evidence on record it stands proved that Late Smt. Ram Kali, during her life time duly executed a relinquishment deed dated 16.02.1995 registered on 17.02.1995 in favour of defendant and her son Parvinder Singh Tomar, thereby relinquishing her entire share in the properties as mentioned in relinquishment deed. 7.6. However, there is an interesting twist in the case at this point i.e. with respect to the identity number of the property in dispute i.e. whether property in dispute falls within the khasra Nos. mentioned in the relinquishment deed Ex. DW 1/6 or not?
a) Neither the plaintiff, nor the defendant has mentioned as to Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 16 of 27 in which khasra no. the property No.41, Gali No.3, West Gorakh Park, Shahdara, Delhi is situated, and the relinquishment deed Ex. DW 1/6 only mentions khasra nos.
b) In order to find the khasra number of the property, the court went through evidence in detail and found tha the plaintiff in her testimony as PW-1 relied upon a khatoni Ex. PW 1/2 in which various khasra nos. are mentioned, which were owned by Late Sh. Kadam Singh, husband of Smt. Ram Kali and father in law of the plaintiff and defendant, however, from the said documents the court is unable to make out as to in which khasra no. the disputed property is situated.
c) Further, neither in the will in favour of plaintiff, nor in the wills exhibited by defendant, it is mentioned that in which khasra no. the property is situated.
d) Therefore, the notarized will dated 25.01.1995 becomes relevant, because if the property is situated in khasra no. other than those mentioned in relinquishment deed, then the said khasra no. (in which the property is situated) would be governed by this last testament of Smt. Ram Kali, subject to it being proved as per law.
7.7. Hence, another question which has cropped up before the court is: whether the will dated 25.01.1995 (which is purportedly the last Will) was duly executed by Smt. Ram Kali?
a) As stated earlier, there are three Wills before the court i.e. chronologically, registered Will dated 19.07.1993 in favour of the sons of the defendant, registered Will dated 30.12.1994 in favour of the plaintiff and notarized Will dated 25.01.1995 in favour of sons of defendant.
Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 17 of 27b) If the last Will i.e. notarized Will dated 25.01.1995 is proved to have been duly executed by late Smt. Ram Kali, then there would be no requirement to discuss the earlier two Will which are prior in time to Will dated 25.01.1995.
c) The onus to prove the said Will dated 25.01.1995 is also upon the defendant, firstly, because the onus to prove the issue under consideration is upon the defendant and secondly because it is the defendant who has produced the said Will and is relying upon the same to defeat the claim of the plaintiff.
d) Defendant as DW-1, tender her evidence by way of affidavit as Ex. DW 1/A and the Will dated 25.01.1995 was duly exhibited as Ex. DW 1/5 without any objection as to mode of proof.
e) The cross examination of DW-1 as regards Will dated 25.01.1995 is as under:-
"....................Smt. Ram Kali had executed a Will in my favour and in favour of my children on 19.07.1993. Ram Kali had not executed any Will in favour of the plaintiff. It is incorrect to suggest that Smt. Ram Kali had executed a registered Will in favour of the plaintiff on 30.12.1994. Smt. Ram Kali had executed another Will on 25.01.1994 and lastly on 16.02.1995. Smt. Ram Kali had not executed any Will in my name but in the names of Pravinder Singh and Shyam Singh...........In the Will dated 19.07.1993 Ex. DW -1/6 I and the counsel Sh. Dinesh Gautam were the witnesses. In the Will dated 25.01.1995 Ex. DW 1/5, Hukum Singh and Suraj Pal were the witnesses...........Hukum Singh and Suraj Pal are my neighbour. They were not my tenants Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 18 of 27 at the time of attesting the Will and witnessesing the reliquishment deed. It is correct that both the Wills Ex. DW 1/5 and Ex. DW ¼ were executed by Smt. Ram Kali in favour of my sons Sh. Parvinder Singh and Sh. Shyam Singh. The Will Ex. DW ¼ is a registered Will the Will Ex. DW 1/5 was not got registered. Smt. Ram Kali herself had taken it for executing the Will Ex. DW 1/5. I did not said to have that a registered Will a already executed and there is no requirement of the second Will. It is incorrect to suggest that Smt. Ram Kali had executed a Will in favour of the plaintiff in the year 1994 and on coming t0 know of this fact, I pressurize Smt. Ram Kali to execute a fresh Will in the year 1995. It is also incorrect to suggest that the Will Ex. DW 1/5 was not registered as Smt. Ram kali did not go to the office of Sub-Registrar. It is incorrect to sugges that since Smt. Ram Kali was unwilling I foribly obtained her thumb impressions on the Ex. DW 1/5 as she was living with me. It is also incorrect to suggest that the relinquishment deed Ex. DW 1/6 was also obtained from Smt. Ram Kali under pressure and coercion. It is incorrect to suggest that I got these documents executed as I had come to know about the Will executed in favour of plaintiff.
...........................Smt. Ram Kali was illiterate. She was aged more than 90 years at the time of execution of relinquishment deed Ex. DW 1/6. It is incorrect to suggest that Smt. Ram Kali was not in a sound mental health at that time or that she was incapable of moving around or that thumb impression of Smt. Ram Kali on Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 19 of 27 the relinquishment deed and the will executed in the year 1995 were obtained under duress."
f) From the said cross examination, one can make out that the plaintiff is challenging the Will on the ground the same was executed by Smt. Ram Kali under duress/coercion at the time when she was very old and not in a sound mental health.
g) However, the plaintiff by giving such suggestions has failed to prove that the Will dated 25.01.1995 was executed under duress/coercion or at a time when Smt. Ram Kali was not in a sound mental health.
h) Defendant has also examined Hukam Singh as DW 2, who is a witness to Will dated 25.01.1995 Ex. DW 1/5. He testified in para 5 of his affidavit Ex. DW 2/A that the Will dated 25.01.1995 was executed by Smt. Ram Kali in his presence and that he also signed the said Will dated 25.01.1995 as a witness, besides Sh. Suraj Sharma who is also a witness to the relinquishment deed.
i) The cross examination as regards the Will dated 25.01.1995 is as under:-
"It is correct that the document Ex. DW 1/5 and Ex. DW 1/6 were executed in my presence. The document Ex. DW 1/4 was executed in my presence. It is correct that document Ex. DW 1/4 does not bear my signature. Smt. Ram Kali hand executed one Will and one Gift Deed in my presence. Except these documents Smt. Ram kali had not executed any document in respect of the suit property in my presence. I cannot tell the Khasra numher as well as the property number for which the above documents were executed by late Smt. Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 20 of 27 Ram Kali. It is wrong to suggest that no document as stated was ever executed in my presence or that I have signed those documents as witness at the instance of Smt. Kamlesh Tomar whose sons were/are the beneficiaries. Besides me Mr. Sharma ji Advocate was the witness to the abovesaid documents. The above said documents have been prepared by some Sharma Ji Advocate at Seelampur Court. It is wrong to suggest that I am deposing falsely being interested witness."
j) It may be noted that in the cross examination of this witness there is no suggestion that Smt. Ram Kali executed the Will dated 25.01.1995 under duress/coercion or that she was not in sound mind at the time of execution of Will dated 25.01.1995.
k) Therefore, even through the cross examination of DW-2, the plaintiff has failed to bring forth any contradiction, which may give reason to the court to doubt the authenticity and genuineness of Will dated 25.01.1995 Ex. DW 1/5.
l) Therefore, from the evidence on record it stands proved that Late Smt. Ram Kali, during her life time duly executed a Will dated 25.01.1995 in favour of sons of defendant, thereby bequeathing her share in "all movable and immovable properties"1, which she may have left at the time of her death.
7.8. Therefore, harmonious reading of the Will dated 25.01.1995 Ex. DW 1/5 and relinquishment deed dated 16.02.1995 Ex. DW 1/6 leads to the conclusion that late Smt. Ram Kali relinquished her share in the immovable property/land, as mentioned in the relinquishment deed, in favour of the defendant and her son Parvinder Singh Tomar on 1 Line 3 of Para 5 of Will Ex. DW 1/5.
Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 21 of 2716.02.1995 and all the properties whether movable or immovable, which were left in her name on 03.02.2001 2, except the immovable properties mentioned in the relinquishment deed, devolved upon the sons of defendant namely Parvinder Singh and Shyam Singh by way of Will dated 25.01.1995.
7.9. Therefore, irrespective of the fact as to in which Khasra number the suit property is located, it is clear that the plaintiff has no right title or interest in the suit property qua the share of Late Smt Ram Kali.
7.10. This issue is accordingly decided in favour of the plaintiff and against the plaintiff.
8. Issue No: 5,6 & 7:-
Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? OPP & Whether the plaintiff is entitled for the relief of declaration as prayed for? OPP & Whether the plaintiff is entitled for the relief of mesne profits? If so, at what rate and for which period? OPP 8.1. In view of finding of this court on issue No.2 to the effect that plaintiff has no right title or interest in the suit property, hence, she can neither be granted relief of declaration that she is owner of the property nor she is entitled to any mesne profits from the defendant with respect to the suit property.
Further as she has no right title or interest in the suit property, hence, no restraint order can be passed in her favour and against the defendant from selling, alienating the suit property and from creating any third party interest. 2 That is the date of death of late Smt. Ram Kali.
Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 22 of 278.2. Accordingly, issue no.5,6 and 7 are decided against the plaintiff and in favour of the defendant.
9. ISSUE No: 3:- Whether the suit is barred by limitation? OPD 9.1. The said issue has arisen out of para 4 on page 4 of the written statement, which is reproduced as under:-
"that the suit of the plaintiff is barred by law of limitation, as the suit of declaration can be filed within three years, from the cause of action, if any. However, it is submitted that the suit has been filed against the replying defendant on baseless and false ground".
9.2. The question before the court is therefore, whether the suit is barred by limitation?
9.3. At this stage, it would be relevant to reproduced para 6 of the plaint, which reads as under:-
"that Smt. Ram Kali W/o Late Sh. Kadam Singh expired on 3.2.01 but she had executed a WILL on 30.12.94 bequeathing therein her entire moveable and immovable properties in the name of plaintiff by virtue of which plaintiff became the absolute owner of the entire properties of Smt. Ram Kali i.e. 1/3 share of the properties owned by Late Sh. Kadam Singh. It is worth to mention that this fact came to the knowledge of plaintiff in the month of March, 2004 when she was searching some documents in her Almirah."
9.4. As per the said paragraph the plaintiff came to know about the registered Will dated 30.12.1994 in the month of March 2004, while she was searching some documents in her almirah. As per the plaintiff the suit is well within the limitation, as the suit was filed within 3 years from March 2004 i.e. 29.01.2007.
Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 23 of 279.5. However, in her deposition the plaintiff testified contrary to the averments made in para 6 of the plaint, because in a cross examination she testified that she was aware of the Will dated 30.12.1994 on the date of its execution. The relevant portion of her cross examination is reproduced as under:-
"Ex. PW 1/3 was executed about 20 years ago by Smt. Ram Kali. At the time of registration of the documents Smt. Ram Kali accompanied with me and my son in law Sh. Munninder Singh. I had knowledge from the first date that Smt. Ram Kali has executed the Will in my favour. I and Smt. Ram Kali had told regarding the execution of the Will to the defendant just after the execution of the said Will dated 30.12.1994. I started demanding my rights due to the execution of the Will from the defendant prior to about 20 years. The Will dated 30.12.1994 is in my custody since the date of registration. The said document Ex. PW 1/3 is not misplaced from me."
9.6. The said testimony of PW-1 is directly contrary to para 6 of the plaint, wherein she has stated that she came to know about the Will dated 30.12.1994, "in the month of March 2004, when she was searching some documents in her almirah". 9.7. From the aforesaid cross examination it is clear that plaintiff was very well aware about the Will dated 30.12.1994 on the date of its registration itself and the said document remained in her custody and was never misplaced by her till the filing of the suit. The plaintiff has also admitted in the aforesaid cross examination that she had told about the execution of the Will to the defendant just after the execution of the said Will dated 30.12.1994. It shows that the plaintiff not only was herself Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 24 of 27 aware about the execution of the Will, rather she informed about the same to the defendant in 1994.
9.8. Admittedly, Smt. Ram Kali expired on 03.02.2001 and as per the plaintiff she made efforts to convince the defendant and her tenants to acknowledge her as co-owner of the property, but, they did not agree to it.
Para 7 & 8 of the plaint, as well as that of affidavit of plaintiff are verbatim the same and reproduced as under:-
"That I say that I made so many efforts to convince defendant by showing WILL and requested her to surrender the share of the properties of Late Smt. Ram Kali but defendant did not agree to it.
That I say that I also made efforts a number of times to make defendant understand but defendant did not agree to it rather demanded the share of the property in my possession. I also made efforts to convince to the tenants enjoying the property under tenancy that I am also one of the co-owners of the properties mentioned hereinabove and as such I am entitled for the rent of the tenanted premises according to the proportion but the tenants under possession of the properties mentioned hereinabove did not agree to accept me as one of the co-owners of the properties mentioned hereinabove and refused to pay rent to me."
9.9. In the said two paragraphs the plaintiff, it seems, has deliberately concealed the dates on which she approached the defendant or her tenants to convince them to give the share of the plaintiff to her as per Will of 1994.
9.10. In para 14 of the plaint and affidavit, the plaintiff stated that cause of action arose in March 2014 when defendant used to Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 25 of 27 accept the Will, but she has not stated as to whether it was the first time that the defendant had refused to accept the Will or whether even on earlier occasions also the defendant had refused to accept he Will dated 30.12.1994. 9.11. At this stage, it is relevant to reproduce three sentences from the cross examination of plaintiff: -
"I had knowledge from the first day that Smt. Ram Kali has executed the Will in my favour......................I started demanding my right due to execution of the Will from the defendant prior to about 20 years. The Will dated 30.12.1994 is in my custody since the date of registration."
9.12. The plaintiff admittedly knew about the execution of Will in 1994 and since then she started demanding her right in the property from the defendant, which means that upon death of Smt. Ram Kali, she demanded her rights from the defendant in 2001, 2002 and also in 2003, and it was only to bring the suit within limitation that she falsely mentioned in para 6 of plaint and affidavit, that she came to know about the Will in March 2004.
9.13. As the plaintiff was continuously demanding her rights on the basis of Will since 1994, hence, immediately after the death of Smt. Ram Kali on 03.02.2001 when she demanded her rights in property and the same were not granted by defendant, the right to sue accrued. If the right to sue first accrued sometime in 2001, then the suit should have been filed within three years from the said date, as per Article 58 of Limitation Act, whereas the suit has been filed in 2007. 9.14. Accordingly, the averment in para 6 of plaint regarding gaining knowledge of Will in March 2004 is false and Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 26 of 27 consequently the suit is barred by limitation.
10. ISSUE No.4: Whether the suit is barred under the provisions of Specific Relief Act? OPD 10.1. The onus to prove the said issue is upon the defendant. 10.2. The present suit is barred by the provisions of Specific Relief Act as the plaintiff has not sought the relief of partition, possession and also the relief of declaration that the subsequent notarized Will dated 25.01.1995 and registered Relinquishment deed dated 16.02.1995 are null and void, though she was aware about the said documents prior to the filing of the present suit. Moreover, if the entire suit of the plaintiff was based on registered will dated 30.12.1994, then she the alternative relief available to her was to approach Probate Court for the probate of the will, in which she could have prayed for the consequential reliefs. 10.3. The suit is thus barred by section 41(h) and Proviso to Section 34 of the Specific Relief Act.
10.4. The issue is decided in favour of the defendant and against the plaintiff.
11. Relief:
In view of the findings of the Court on aforesaid issues, the suit of the plaintiff is dismissed.
No order as to costs.
Decree-sheet be prepared accordingly. File be consigned to record room.
Announced in the open court Dated:26.09.2016 (Saurabh Partap Singh Laler) SCJ-Cum-RC(NE)KKD/26.09.2016 Judgment CIS/S No.5543/15 Shanti Devi Vs. Kamlesh Tomer Page 27 of 27