Delhi District Court
Smt. Jaishree @ Shriya Dham vs Miss Kala Sharma on 27 September, 2022
IN THE COURT OF MS. RUCHIKA SINGLA,
ADDL. DISTRICT JUDGE-03, NORTH-WEST DISTT.,
ROHINI COURTS, DELHI
CS No. : 578290/2016
CNR No. : DLNW01-0000962016
In the matter of:
1. Smt. Jaishree @ Shriya Dham
W/o Sh. Lalit Dham,
D/o Late Sh. Mahavir Sharma,
R/o A-75, Anandpur, Anandpur Dham,
Village Karala, Delhi.
........ Plaintiff
VERSUS
1. Miss Kala Sharma
D/o Late Mahavir Sharma
2. Miss Rashmi Sharma
D/o Late Mahavir Sharma
All R/o A-109,
Saraswati Vihar, Pitampura,
Delhi-110034.
....... Defendants
Date of institution : 27.04.2012
Date on which judgment was reserved : 22.09.2022
Date of pronouncement of the judgment : 27.09.2022
SUIT FOR DECLARATION, PARTITION, POSSESSION AND PERPETUAL
INJUNCTION
JUDGMENT
1. By this judgment, I shall decide present suit filed by the plaintiff for declaration, partition, possession and perpetual injunction.
2. In brief, the case of the plaintiff as per plaint is that the defendant no. 1 and 2 are sisters of the plaintiff. From the wedlock of Sh. Mahavir Sharma (since deceased) and Smt. Bhagwati Devi (parents of parties), five children were born i.e. plaintiff and defendant no. 1 and 2, one son namely Mahesh Sharma and one other daughter namely Mithlesh Sharma. Sh. Mahesh Sharma died unmarried in the year 2003 and Ms. Mithlesh Sharma died unmarried in the year 2004. Sh. Mahavir Sharma, father of the plaintiff and defendant no. 1 and 2 and husband of Smt. Bhagwati Devi, was the owner of the property bearing no. 109, Block-A, Saraswati Vihar, Delhi comprising ground floor and first floor, built on a plot of land admeasuring 231.39 sq yards, situated in the layout plan of Govt. School Teachers Cooperative Group Housing society Limited.
3. Sh. Mahavir Sharma expired intestate in the year 2004. The plaintiff had earlier impleaded her mother also as a defendant in the present suit but she also expired on 22.02.2017. Thereafter, the suit was amended. Hence, now the plaintiff and defendants are entitled to 1/3rd share each in the suit property. The plaintiff, time and again requested the defendants for her share in the suit property, which was not agreed upon by them. Hence, the plaintiff got served a legal notice dated 30.11.2006 upon the defendants through her counsel thereby calling upon the defendants to not to create any kind of obstruction/ hurdle for the plaintiff in her entry to the suit property and permit her to raise simple residential unit on the second floor. Hence, the plaintiff filed the present suit.
4. Summons of the present suit were issued to all the defendants and they were duly served. They filed their joint WS. In the written statement filed on behalf of defendants, it is mentioned that the present suit has not been valued properly for the purposes of payment of court fee and the court fee paid is insufficient. The present market value of the suit property is not less than Rs. 10 crores. It was alleged that before his death, Sh. Mahavir Sharma had executed a Will dated 06.03.2003 in the favour of the defendants, whereby he left the property to his wife Smt. Bhagwati Sharma till her death. After her death, the property was to devolve upon Ms. Duramani Sharma @ Ms. Kala Sharma and Ms. Rashmi Sharma. Hence, the plaintiff has no right to claim any interest in the suit property. The present suit is time barred with respect to the relief (a) of the prayer clause seeking declaration of Will dated 06.03.2003 is forged and fabricated. As per the defendants, since the plaintiffs have no cause of action in their favour, present suit is liable to be dismissed.
5. Replication to the written statement of defendants was filed on behalf of the plaintiffs wherein they have denied the averments of the written statement and re- affirmed the averments of the plaint.
6. After completion of pleadings of both the parties, admission/denial of the documents was conducted. Following issues were framed by Ld. Predecessor of this Court vide order dated 13.09.2013:-
(1) Is the suit barred by limitation? OPD.
(2) Has the suit been properly valued for the purposes of court fees and jurisdiction? OPD.
(3) Is the Plaintiff entitled to a declaration that Will dated 6 th March 2003 of late Shri Mahavir Sharma is null and void? OPP. (4) Is the Plaintiff entitled to declaration of 1/4th share in the property bearing no. 109, Block-A, Saraswati Vihar, Delhi? OPP. (5) Is the Plaintiff entitled to a preliminary and final decree of partition of the suit property by metes and bounds as regards her 1/4th share? OPP.
(6) Is the Plaintiff entitled to a perpetual injunction as prayed for in relation to the suit property? OPP.
(7) Relief.
7. The plaintiffs in support of their suit examined two witnesses. PW-Smt. Jaishree @ Shriya Dham was examined as PW-1 and she tendered her evidence by way of affidavit Ex.PW1/A and she relied upon the following documents:
a) The site plan of the suit property is Ex. PW1/1.
b) The certified copy of the suit bearing no. 13/07 which was filed in the court of Sh. Amit Kumar, SCJ/RC, THC, Delhi is Ex. PW1/2.
c) Certified copy of written statement and alleged Will are Ex. PW1/3 and PW1/4.
d) Certified copy of the order dated 08.12.2011 is Ex. PW1/5.
e) Certified copy of the statements made by Defendant no. 2 as DW1 in that suit is Ex. PW1/6.
8. Thereafter, the plaintiff examined PW-2 Sh. Lalit Dham. His cross examination was deferred. However, subsequently PW-2 Sh. Lalit Dham was discharged as the plaintiff stated that she did not wish to examine him in the present case. Thereafter, plaintiff evidence was closed vide order dated 16.04.2018.
9. Thereafter, the matter was listed for defendant evidence. The defendant in support of his suit examined two witnesses. DW-1 Ms. Kala Sharma was examined as DW-1 and she tendered her evidence by way of affidavit Ex.DW1/A and she relied upon the following documents:
a) Ex. DW1/1 (OSR) is the Will dated 06.03.2003 which is already Ex. PW1/4.
b) Ex. DW1/2 is the police complaint dated 29.11.2006.
c) Ex. DW1/3 is the copy of the legal notice dated 30.11.2006.
d) Ex. DW1/4 is the newspaper dated 06.12.2006.
e) Ex. DW1/5 is the certified copy of the reply dated 21.12.2006.
f) Ex. DW1/6 is the certified copy of the order dated 24.09.2007.
g) Ex. DW1/7 is the copy of police complaint dated 01.04.2011.
h) Ex. DW1/8 is the certified copy of the order dated 08.12.2011.
i) Ex. DW1/9 is the death certificate of Sh. P.K. Taluja, one of the witnesses of the Will.
10. DW-2 Sh. G.P. Goel was examined as DW-2 and he tendered his evidence by way of affidavit Ex.DW2/A.
11. Thereafter, both the witnesses were duly cross-examined on behalf of the plaintiff and hence, DE was closed vide order dated 22.05.2019. Thereafter, matter was adjourned for final arguments. After hearing of the arguments, the court was of the opinion that for the just adjudication of the present case, witness from the office of the Sub-Registrar be summoned for proving of the Will dated 06.03.2003. Hence, the said witness was summoned u/s 165 Indian Evidence Act. The witness was examined on 22.09.2022 and discharged, after giving opportunity to both the parties for cross examination.
12. I have heard arguments from Sh. Babar Ali, Ld. Counsel for plaintiff and Sh. Sunil Kumar, Ld. Counsel for the defendant no. 1 and Sh. Vijay Kumar, Ld. Counsel for the defendant no. 2 and have perused the entire material available on record carefully. Issues were framed by Ld. Predecessor of this Court vide order dated 13.09.2013. My Issue-wise findings are as under:-
Issue no. 1 "(1) Is the suit barred by limitation? OPD."
13. The present suit is a suit for declaration, partition, possession and permanent injunction filed by the plaintiff against the defendants. It is argued by Ld. Counsel for the defendants that the present suit is barred by limitation as the relief of declaration of Will dated 06.03.2003 as null and void has been sought for the first time by filing of the present suit on 27.04.2012 but the existence of the Will was in the knowledge of the plaintiff since 2007. Hence, the plaintiff can not claim the said relief.
14. Ld. Counsel for the plaintiff has argued that the plaintiff has sought not only the relief of declaration but also the relief of partition and possession. All the said reliefs are inter connected and they can not be separated. There is no period of limitation to seek partition. It is further submitted that Article 65 Limitation Act applies to the facts of the case, as the plaintiff has sought possession of the suit property. Hence, the suit is within limitation.
15. I have perused the record. The plaintiff has alleged that the property was under the ownership of the father of the parties. After his death, the plaintiff filed the present suit for permanent injunction before the court of Ld. SCJ, THC, Delhi. There, the defendant produced the Will dated 06.03.2003 and pursuant to the same, the plaintiff withdrew that suit and filed the present suit on 08.12.2011. Subsequent to that, the present suit was filed by the plaintiff on 27.04.2012. In the opinion of the court, firstly, all the reliefs being inter connected, the present suit is maintainable. This is more so because of the reason that there is no limitation for filing of a partition suit. Secondly, even if it is considered that the relief of declaration could have been sought only within 03 years from the date of cause of action, then the plaintiff shall get the benefit of Section 14 Limitation Act as she was pursuing another bonafide civil proceedings. Hence, the said period is excluded from the limitation period. Hence, in the opinion of the court, the present suit is not barred by limitation. Hence, this issue is decided in the favour of the plaintiff and against the defendants.
Issue no. 2 "(2) Has the suit been properly valued for the purposes of court fees and jurisdiction? OPD."
16. The onus to prove this issue was upon the defendants. It has been alleged by the defendants that the present suit has not been valued properly by the plaintiff and that the appropriate court fees has not been attached. It is well settled principle of law that the valuation done by the plaintiff shall be deemed to be correct, unless contrary is proved. No evidence has been led by the defendant to prove this fact that the suit property has been undervalued by the plaintiff. Further, the plaintiff has attached ad valorum court fees along with her suit. Hence, this issue is also decided in the favour of the plaintiff and against the defendants.
Issue no. 3, 4, 5 and 6 "(3) Is the Plaintiff entitled to a declaration that Will dated 6 th March 2003 of late Shri Mahavir Sharma is null and void? OPP.
(4) Is the Plaintiff entitled to declaration of 1/4th share in the property bearing no. 109, Block-A, Saraswati Vihar, Delhi? OPP.
(5) Is the Plaintiff entitled to a preliminary and final decree of partition of the suit property by metes and bounds as regards her 1/4th share? OPP.
(6) Is the Plaintiff entitled to a perpetual injunction as prayed for in relation to the suit property? OPP."
17. As these issues are inter connected, they are disposed of vide a common discussion. It is an admitted case of the parties that the erstwhile owner of the suit property was Sh. Mahavir Sharma who was the father of the parties. It is also an admitted fact that he was survived by the plaintiff and the defendants only. Now, the plaintiff has alleged that he had expired intestate and hence, the property devolved upon all the parties in equal share, while the defendants have alleged that before his death, Sh. Mahavir Sharma had executed a Will dated 06.03.2003 bequeathing the property in the favour of Smt. Bhagwati Devi, the mother of the parties till her death and subsequently upon her death, the property was devolved upon the defendants in equal shares.
18. It is a settled principle of law that the succession in respect of immovable property under the Hindu Succession Act will take place only where the owner of the property has died intestate. In case, the defendants are able to prove that a valid Will was executed by Sh. Mahavir Sharma before his death, then the claim of the plaintiff fails. Section 63 of the Indian Succession Act, 1925, provides the law regarding the execution of Wills. The provision is reproduced as under:-
"Execution of unprivileged Wills. --Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 12 [or an airman so employed or asengaged,] or a mariner at sea, shall execute his Will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
19. Further, under Section 18 of the Registration Act, 1908, it is mentioned that the registration of a Will is optional. Hence, an unregistered Will is also completely valid and shall take operation if the same has been executed in terms of Section 63 of the Indian Succession Act. Further, Section 68 of the Indian Evidence Act provides as under:-
"Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: 1[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]"
20. Hence, by virtue of the same, in case one attesting witness of an unregistered Will has been produced in evidence before the court and his evidence is admissible and reliable, then the Will is deemed to be proved. In case the Will is registered, then the attesting witness need not be produced.
21. In the present matter, it is alleged by the defendants that before his expiry, Sh. Mahavir Sharma left a Will dated 06.03.2003 in the favour of defendants which is Ex. CW1/1, which is a registered Will. The plaintiff has argued that the said Will is forged and fabricated on the ground that Sh. Mahavir Sharma was incapable to execute the said Will as he was paralytic since April,1996. The onus to prove this fact was upon the plaintiff as it was specifically alleged by her.
22. DW-1 Ms. Kala Sharma admitted in her cross examination that Sh. Mahavir Sharma was under the treatment of paralysis since April,1996. However, she has denied the suggestions of Ld. Counsel for the plaintiff that the Will was not executed by Sh. Mahavir Sharma or that the Will was forged or that he did not appear before the office of the Sub-Registrar for the execution of the said Will. Plaintiff has not placed on record any medical document to show that Sh. Mahavir Sharma was not in fit state of mental and physical health which could prohibit him from comprehending and executing the Will. Even if, he was paralytic, the same does not necessarily imply that he could not execute the Will in question. Even otherwise, the plaintiff's averment is only regards the physical health of their father. There is no such averment that Sh. Mahavir Sharma was not in the fit mental state to execute the Will. Physical capacity is immaterial for the execution of the Will. If the person is mentally fit to execute the Will, then the Will can be validly executed. No evidence has been led by the plaintiff to show that he was mentally not fit to execute the Will. Hence, in absence of any medical document to show that father of plaintiff and defendants was suffering from any such medical problem that he was not able to understand the contents of Will, it cannot be presumed that the alleged Will could not have been executed by late Sh. Mahavir Sharma. It has been mentioned by the plaintiff that the Will was executed in the presence of only the defendants. However, this reason alone is not sufficient to doubt the veracity of the Will in question.
23. The fact that the Will has been forged by the defendants has been alleged by the plaintiff. Hence, the onus to prove this fact was upon the plaintiff. However, the plaintiff has led no evidence to prove that the signatures on the Will Ex. CW1/1 are not of Sh. Mahavir Sharma. Furthermore, the Will in question is a registered Will. The concerned official from the office of the sub-registrar appeared before the court with the original record. Hence, by virtue of Section 68 of the Indian Evidence Act, the Will has been proved to have been executed by Sh. Mahavir Sharma. No other proof of the same is required. Hence, it is proved that the Will Ex. CW1/1 was executed by Sh. Mahavir Sharma prior to his death.
24. As per the Will Ex. CW1/1, the property was left to Smt. Bhagwati Devi, the mother of the parties till her death and subsequently upon her death, the property was devolved the defendants in equal shares, in case they remained unmarried. It was further mentioned that in case they got married, then the property shall devolve upon the plaintiff and the defendants in 20:40:40 ratio. Hence, in case the Will was forged by the defendants, this stipulation would not have been mentioned in the Will. The Will could have been simply worded that the property would devolve upon the defendants in equal shares. However, the same is not the case. Further, as it is proved that the Will was validly executed by Sh. Mahavir Sharma, the same shall prevail. Hence, in view of the same, the plaintiff is not entitled to the reliefs as claimed by her. Hence, these issues are decided in the favour of the defendants and against the plaintiff.
Relief
25. In view of the findings as discussed above, the suit of the plaintiff is dismissed. Both the parties shall bear their own cost. Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Digitally signed by RUCHIKAAnnounced in open court RUCHIKA SINGLA
SINGLA Date: 2022.09.27
on 27th September, 2022 16:43:09 +0530
(RUCHIKA SINGLA)
Addl. Distt. Judge-03, North-West Distt.,
Rohini Courts, Delhi.
This judgment contains 11 pages and each
page is checked and signed by me.