Delhi District Court
Sh. Rajender Prasad Jain vs Sh. Swatantra Kumar Jain on 9 October, 2012
IN THE COURT OF DIG VINAY SINGH
ADDITIONAL DISTRICT JUDGE, (CENTRAL) 04, THC, DELHI
Date of institution :22.05.2006
Judgment reserved on :09.10.2012
Judgment delivered on :09.10.2012
CS No.150/11/06 Unique Case ID No. 02401C0439992006
Sh. Rajender Prasad Jain
S/o Late Sh. Jagdish Prasad Jain,
R/o H. No. 3471, Ground Floor,
Gali Kartar Singh, Aryapura,
Subzi Mandi, Delhi110007. ....Plaintiff.
Versus
1. Sh. Swatantra Kumar Jain
S/o Late Sh. Jagdish Prasad Jain,
R/o H. No. 3471, First Floor,
Gali Kartar Singh, Aryapura,
Subzi Mandi, Delhi110007.
2. Smt. Dulari Jain,
W/o Sh. Pawan Kumar Jain,
R/o H. No.42, Gali Nanu Ram,
CS NO.150/11/06 Rajender Prasad Jain Vs. Swatantra Kumar Jain dt. 09.10.2012 page No. 1 of 16 h.l.
Aryapura, Subzi Mandi,
Delhi110007.
3. Smt. Shaila Jain
W/o Late Sh. M.P. Jain,
R/o H. No.C2/5, Safdarjung
Development Area, Hauz Khas,
New Delhi. ... Defendants.
J U D G M E N T
1. This is a suit for declaration, the Will dated 31.05.1985 as a void document and also its delivery and cancellation. The suit also contains a prayer for permanent injunction restraining the defendant No.1 from disposing of or parting with possession or from creating any third party interest in the property No. 3471, Gali Kartar Singhwali, near Jain Mandir, Ward No. 12, Subzi Mandi, Delhi.
2. The plaintiff and defendant No.1 are real brothers. The defendant No. 2 and 3 are their sisters.
3. The suit was contested by defendant No.1 only and the other two defendants remained exparte in the matter.
CS NO.150/11/06 Rajender Prasad Jain Vs. Swatantra Kumar Jain dt. 09.10.2012 page No. 2 of 16 h.l.
4. It is an admitted position of both sides that their father Sh. Jagdish Prasad Jain had filed a suit for partition of family properties, under Suit No.140/1957. The said suit came to be decreed, on 29.07.1957, whereby certain properties fell into the share of Jagdish Prasad Jain, including house No. 3471, regarding which the dispute is under the Will in question. It is also an admitted position of both the parties that their father executed a Will dated 31.05.1985 which was duly registered on 05.08.1985. Under the said Will the ground floor of property No. 3471, Gali Kartar Singhwali, near Jain Mandir, Ward No. 12, Subzi Mandi, Delhi measuring 200 square yards, was bequeathed to the plaintiff and the upper floor was bequeathed in favour of defendant No.1. The deceased testator desired that during the life time of his wife, she would be owner of the entire property. Admittedly father of the parties died on 02.11.1989 and mother also expired on 11.05.2004.
5. The plaintiff claims that this original Will is in the custody and possession of defendant No.1 as also the certified copy of the final judgment and decree passed in the suit for partition of properties under suit No. 140/57. Admittedly certain other litigations also took place CS NO.150/11/06 Rajender Prasad Jain Vs. Swatantra Kumar Jain dt. 09.10.2012 page No. 3 of 16 h.l. between the parties. I need not go into the details of those cases being unnecessary in the present suit.
6. The plaintiff prays that this property No. 3471, Gali Kartar Singhwali, near Jain Mandir, Ward No. 12, Subzi Mandi, Delhi was an ancestral property, therefore, the testator could not have executed the Will in question and it is void abinitio. Plaintiff thus claims that this Will be so declared as void and it be ordered to be delivered and canceled. Plaintiff also prays that the defendant No.1 who has been bequeathed upper floor of the property, besides the ground floor, be restrained from creating third party interest in the property.
7. Defendant No.1 contested the suit on the grounds; that it is barred by limitation; this court has no pecuniary jurisdiction as the value of the property was Rs.25.00 lacs and; that it is barred by resjudicata as the plaintiff has also filed a similar suit before ld. Civil Judge, which was dismissed. Admittedly the suit before Ld. Civil Judge was not finally decided and the plaint was rejected on non filing of court fees by the plaintiff.
CS NO.150/11/06 Rajender Prasad Jain Vs. Swatantra Kumar Jain dt. 09.10.2012 page No. 4 of 16 h.l.
8. The defendant No.1 claims that the plaintiff knew about the execution of this will throughout and he has also relied upon this very Will in various litigations and, therefore, he is estopped from challenging the Will. The defendant No.1 also claims that his father succeeded the property in his own legal rights and therefore, he was competent to execute the Will in question and once the plaintiff himself admitted the correctness, legality and validity of the Will in number of Civil Litigations, he cannot now be permitted to challenge the Will.
9. In replication the plaintiff reiterated the averments of the plaint.
10. Following five issues were framed in the suit on 20.02.2007.
1. Whether the suit has not been properly valued for the purposes of Court fees and jurisdiction? OPD.
2. Whether the suit is barred by limitation? OPD
3. Whether the Will dated 21.05.1985 executed by Late Jagdish Prasad Jain is null and void? OPP.
4. Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP.
5. Relief.
CS NO.150/11/06 Rajender Prasad Jain Vs. Swatantra Kumar Jain dt. 09.10.2012 page No. 5 of 16 h.l.
11. In support of their respective cases both the parties i.e. the plaintiff and the defendant No.1 examined themselves as PW1 and DW1, respectively. The depositions of both the parties are in lines to the averments contained in the plaint and written statement, respectively.
12. In his evidence, the plaintiff proved certified copy of the Will as Ex.PW1/1 and the death certificate of his mother as Ex.PW1/2. During crossexamination PW1 admitted that in the year 2002 he had filed a Civil Suit for injunction against the defendant No.1 on the basis of the Will in question. He admitted the plaint and an application under Order 39 Rules 1 and 2 CPC of the earlier suit as Ex.PW1/D1 and D2, respectively. He also admitted that the earlier Civil Suit for injunction was disposed of on settlement vide Ex.PW1/D3. The plaintiff also admitted that earlier there was a tenant on the ground floor of the property with whom there was a litigation for eviction and the eviction order was challenged by the tenant before Hon'ble High Court. During the pendency of revision, his father died and an application for impleadment, was filed upon which order Ex.PW1/D4 was passed for their CS NO.150/11/06 Rajender Prasad Jain Vs. Swatantra Kumar Jain dt. 09.10.2012 page No. 6 of 16 h.l. impleadment in the said revision petition. He admitted his signatures on reply to the application under Order 22 Rule 4 CPC, which is Ex.PW1/D5. In crossexamination he also admitted that property in question came to the share of his father under the partition allowed by the Court.
13. On the other hand the defendant No.1 in his evidence deposed the facts mentioned in the written statement. The defendant No.1 claims that before Hon'ble High Court, the plaintiff admitted execution of Will, in reply to an application under Order 22 Rule 4 CPC, and the plaintiff was aware of this Will since long. The defendant No.1 also admitted that property in question came to the share of his father in the partition decree.
14. My issue wise findings are as under:
Issue No.1 Whether the suit has not been properly valued for the purposes of Court fees and jurisdiction? OPD.
15. Onus to prove this issue was on the defendant, who had claimed that property was worth more than Rs. 25.00 lacs. But in his evidence, the CS NO.150/11/06 Rajender Prasad Jain Vs. Swatantra Kumar Jain dt. 09.10.2012 page No. 7 of 16 h.l. defendant No.1 neither deposed this fact that property was more than Rs.25.00 lacs nor he has put any question to the plaintiff as PW1, as to under valuation of the property. The defendant No.1 has not led any evidence whatsoever to prove that the value of property was more than Rs.25.00 lacs. This issue is thus liable to fail against the defendant No.1 and in favour of the plaintiff.
Issue No.2.
Whether the suit is barred by limitation? OPD
16. Admittedly the present suit was filed on 22.05.2006. The Will in question was executed on 31.05.1985 and it was registered on 05.08.1985. The plaintiff has not mentioned in the plaint as to on which date he came to know about the execution of this Will, but from certain admitted facts about earlier litigations, it is clear that the plaintiff was aware of execution of this Will at the time when he filed earlier suit for permanent and mandatory injunction on 24.05.2002 as mentioned in Ex.PW1/D1. It is also clear that plaintiff was aware of existence of this Will on 21.03.1994 as mentioned in Ex.PW1/D5. Ex.PW1/D5 is a reply given CS NO.150/11/06 Rajender Prasad Jain Vs. Swatantra Kumar Jain dt. 09.10.2012 page No. 8 of 16 h.l. by the plaintiff and other LRs before Hon'ble High Court, in Para 5 of which, it is specifically mentioned that Will in question existed. Thus, at least the plaintiff was aware of existence of this Will on 21.03.1994. Once the plaintiff has admitted his signatures on this document, his contention that other family members might have obtained his signatures and he did not go through the document is not inspiring. The plaintiff despite knowing the existence of the Will in 1993 did not file this suit within the period of limitation. The period prescribed for such suits is 3 years. The present suit having being filed on 22.05.2006 is hopelessly barred by limitation. This issue is decided against the plaintiff and in favour of the defendants.
Issue No.3.
Whether the Will dated 21.05.1985 executed by Late Jagdish Prasad Jain is null and void? OPP.
17. The onus to prove this issue was on the plaintiff. The entire case of the plaintiff is based upon the fact that the property devolved upon the father of the parties under the earlier partition decree of the year 1957 and therefore, it was an ancestral property.
CS NO.150/11/06 Rajender Prasad Jain Vs. Swatantra Kumar Jain dt. 09.10.2012 page No. 9 of 16 h.l.
18. The plaintiff claims that Section 6 read with section 30 of The Hindu Succession Act, 1956 clearly prohibited execution of the Will in question. Plaintiff relies upon following 6 cases in support of this contention.
Ramesh Verma and others Vs. Lajesh Saxena and others, AIR 1998 Madhya Pradesh 46.
Babru Vs. Basakha Singh & Ors., 1995 AIHC 5618.
Ruli Ram (deceased) through L.R. Vs. Amar Singh, AIR 1994 Himachal Pradesh 102.
Ganta Appalanaidu Vs. Ganta Narayanamma & Ors., AIR 1972 Andhra Pradesh 256.
Mara & Ors. Vs. Nikko and Ors., 430 Supreme Court Reports 1964. Kaur Singh Gajjan Singh Vs. Jaggar Singh Kehar Singh, AIR 1961 Punjab 489.
19. Section 6 of the Hindu Succession Act, 1956 provides that when any male Hindu dies after commencement of this Act having, at the time of his death, an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act.
20. In the present case section 6 of Hindu Succession Act, 1956 CS NO.150/11/06 Rajender Prasad Jain Vs. Swatantra Kumar Jain dt. 09.10.2012 page No. 10 of 16 h.l. does not get attracted at all as admittedly, the property was partitioned way back in the year 1957. Once father of the plaintiff and defendants acquired his individual share in this property pursuant to partition, the coparcenary came to an end. All the judgments relied upon by the plaintiff deals with the cases in which Section 6 of the Hindu Succession Act, 1956 is applicable. In the present case Section 6 of the Hindu Succession Act, 1956 is not applicable.
21. In the case of Bhanwar Singh v. Puran and Ors. AIR 2008 SUPREME COURT 1490, the facts were that a suit to set aside sale was filed on the ground that the land was a joint family property and the sale was not for legal necessity. Sale in question was by plaintiff's father. Plaintiff's father inherited the property along with his sister. Land was partitioned and recorded in the name of each. It was held that upon partition, it lost the character of joint family property and S. 6 of Hindu Succession Act has no application. Plaintiff's father and his sisters become tenants in common. Each had right to transfer his share of land. The Suit was dismissed. It was held by Hon'ble supreme court as follows;
CS NO.150/11/06 Rajender Prasad Jain Vs. Swatantra Kumar Jain dt. 09.10.2012 page No. 11 of 16 h.l.
" 11. The Act brought about a sea change in the matter of inheritance and succession amongst Hindus. Section 4 of the Act contains a non obstante provision in terms whereof any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act, ceased to have effect with respect to any matter for which provision is made therein save as otherwise expressly provided.
Section 6 of the Act, as it stood at the relevant time, provided for devolution of interest in the coparcenary property. Section 8 lays down the general rules of succession that the property of a male dying intestate devolve according to the provisions of the Chapter as specified in clause (1) of the Schedule. In the Schedule appended to the Act, natural sons and daughters are placed in ClassI heirs but a grandson, so long as father is alive, has not been included. Section 19 of the Act provides that in the event of succession by two or more heirs, they will take the property per capita and not per stripes, as also tenantsincommon and not as joint tenants." ...................
"14. Interpretation of Section 8 of the Hindu Succession Act came up for consideration before this Court in Commissioner of Wealth Tax, Kanpur CS NO.150/11/06 Rajender Prasad Jain Vs. Swatantra Kumar Jain dt. 09.10.2012 page No. 12 of 16 h.l. and Ors. v. Chander Sen and Ors. [(1986) 3 SCR 254]. Mukherjee, J. (as the learned Chief Justice then was) upon considering the changes effected by the Hindu Succession Act as also the implication thereof and upon taking into consideration the decisions of Calcutta High Court, Madhya Pradesh High Court, Andhra Pradesh High Court as also Madras High Court on the one hand and the Gujarat High Court on the other, opined :
"In view of the preamble to the Act, i.e., that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under Section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in Section 8. Furthermore as noted by the Andhra Pradesh High Court that the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to the preexisting Hindu law. It would be difficult to hold CS NO.150/11/06 Rajender Prasad Jain Vs. Swatantra Kumar Jain dt. 09.10.2012 page No. 13 of 16 h.l. today the property which devolved on a Hindu under Section 8 of the Hindu Succession Act would be HUF in his hand visavis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and visavis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc. Before we conclude we may state that we have noted the observations of Mulla's Commentary on Hindu law 15th Edn. dealing with Section 6 of the Hindu Succession Act at pages 92426 as well as Mayne's on Hindu Law, 12th Edition pages 918919.
The express words of Section 8 of The Hindu Succession Act, 1956 cannot be ignored and must prevail. The preamble to the Act reiterates that the Act is, inter alia, to 'amend' the law, with that background the express language which excludes son's son but included son of a predeceased son cannot be ignored."
22. The principle evolved in Chander Sen (supra) was reiterated CS NO.150/11/06 Rajender Prasad Jain Vs. Swatantra Kumar Jain dt. 09.10.2012 page No. 14 of 16 h.l. in Yodhishter v. Ashok Kumar [(1987) 1 SCR 516 at 523]; Sunderdas Thackersay and Bros. v. Commissioner of Incometax [1982 (137) ITR 646]; Commissioner of Income Tax v. P.L. Karuppan Chettiar [1993 Supp (1) SCC 580]; and Additional Commissioner of Income tax v. M. Karthikeyan [1994 Supp (2) SCC 112].
23. In view of above judgments of Hon'ble Supreme Court it is clear that the moment when the property in question was partitioned in the year 1957 and father of the plaintiff and defendants received this property, it lost the character of joint family property or ancestral property in his hands. The moment it lost character as such property in his hand, he was fully competent to execute the Will in question. The Will has not been challenged on any other ground.
24. Issue No. 3 is thus decided in favour of the defendants and against the plaintiff and it is held that the plaintiff is not entitled to a decree of declaration that the will is null and void. CS NO.150/11/06 Rajender Prasad Jain Vs. Swatantra Kumar Jain dt. 09.10.2012 page No. 15 of 16 h.l.
Issue No. 4.
Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP.
25. When the suit of the plaintiff has failed for getting the Will declared as Null and Void, its necessary consequence is that the defendant No.1 is fully competent to sell, dispose of, mortgage, create third party interest in his share of the property, which devolved upon him under the Will. This issue also fails and is decided against the plaintiff and in favour of the defendant No.1.
Relief.
26. In view of above discussion, the suit of the plaintiff is dismissed. No orders as to costs. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room.
Delivered & announced in the open Court
th
on 09 Day of October, 2012 (DIG VINAY SINGH)
Addl. District Judge,
Central04, Tis Hazari Courts.
Delhi/09.10.2012
CS NO.150/11/06 Rajender Prasad Jain Vs. Swatantra Kumar Jain dt. 09.10.2012 page No. 16 of 16 h.l.