Delhi District Court
Sh. Hira Singh vs Sh. Ajit Singh on 25 September, 2012
IN THE COURT OF SH. DINESH BHATT, PO,MACT/ ADJ/(N)/ TIS HAZARI
COURTS, DELHI
Civil Suit No.:129/11
Unique ID no.:02401C0087792003
1. Sh. Hira Singh
S/o Late Sh. Sube Singh
R/o C5, Sector19, S.F.S. Flat,
Rohini, Delhi
2. Smt. Kamla Pawar
D/o late Sh. Sube Singh
R/o B1/407, Varuna Apartments,
Sector9, Rohini, Delhi ..........Plaintiffs
Versus
1. Sh. Ajit Singh
S/o Late Sh. Sube Singh
R/o A7A/4, Rana Partap Bagh,
Delhi
2. Sh. Ramesh Kumar
3. Sh. Narender Kumar
4. Sh. Raj Kumar
5. Sh. Ashok Kumar
6. Manoj Kumar
Civil Suit no.:129/11 Page1/12
Defendants no. 2 to 6 are son of Sh. Ajit Singh
and are resident of A7A/4, Rana Partap bagh,
Delhi
7. Smt. Raj Kumari
D/o late Sh. Sube Singh
R/o House No. 1751/129, Shanti Nagar,
Tri Nagar, Delhi
8. Smt. Chand Rani
D/o late Sh. Sube Singh
R/o Chandasu Bhawan, Ward No. 34,
Dolio Ka Baas, Behind Kayal Building,
Bajaj Road, Sikar, Rajasthan
9. Sh. Naresh Kumar
10. Rajesh Kumar
11. Sarita
Defendants no. 9 & 10 are son and defendant no. 11
is daughter of Smt. Birmati and all are
resident of A802/2, Shastri Nagar,
Delhi ..........Defendants
Date of Institution : 29/09/1999
Date on which order was reserved : 15/09/2012
Date of Decision :
J U D G M E N T: Civil Suit no.:129/11 Page2/12
1. This is a suit for partition filed by plaintiff against the defendants claiming 1/3 rd share in the suit property.
2. Plaintiff's case is that Sube Singh their father was absolute owner of the suit property. He had executed a Will on 15/04/1991 in favour of his wife Smt. Aan Kaur which was registered with Subregistrar on 16/04/1991. The said Sube Singh died on 29/04/1991. On the basis of the said Will, probate petition was filed by Smt. Aan Kaur. During the pendency Smt. Aan Kaur also died on 03/11/1994, consequently, plaintiff and defendant nos. 7 & 9 to 11 were substituted in place of the original plaintiff but on 06/07/1999 on basis of legal defect in the Will as only one witness was available on the Will. The said probate petition was withdrawn on 30/07/1989. It is stated that Late Sube Singh was survived by 09 Class I legal heirs as detailed in para 11 of the plaint. Smt. Aan Kaur also died on 03/11/1994 leaving behind 08 legal heirs. Consequently, share of plaintiff no. 1 & 2 became 1/6th each in the suit property. On 05/08/1999 legal notice dated 03/08/1999 for partition was served on defendant no. 1 but the said legal notice was returned as unclaimed. Defendants did not agreed for the partition. Consequently, the suit was filed. It is stated that plaintiffs were having 1/6th each share in the suit property consequently, suit property be partitioned.
3. Defendant no. 1 to 6 filed written statement stating that the plaintiffs had not approached the Court with clean hands. Late Sube Singh was not mentally fit to execute Will dated 16/04/1991. Late Sube Singh had in fact executed a gift deed on 21/03/1991 in favour of the defendant no. 2 to 6. Possession of the same was already handed over to the defendant no. 2 to 6. The said gift deed was later registered. It is stated that in view of this none except defendant no. 2 to 6 were having any right in the suit property.
On merits ownership of Sube Singh was admitted but it is stated that he had executed a valid gift deed in favour of defendant no. 2 to 6. Death of Sube Singh and Smt. Civil Suit no.:129/11 Page3/12 Aan Kaur as claimed by plaintiff are admitted. It is stated that after the execution of gift deed neither Sube Singh nor Smt. Aan Kaur were left with any right in the suit property.
4. Defendant no. 7 & 11 have filed separate written statement stating that Sube Singh had executed a Will in favour of Smt. Aan Kaur for which probate case was filed. It is stated that after execution of alleged gift deed by defendant no. 1 to 6 they had forcibly occupied the whole suit property and started living in the same for their own benefits. It is stated that the said gift deed was illegal, false, forged and fabricated as it was never executed by Sube Singh and reiterated the stand of plaintiffs and stated that they themselves were entitled to 1/6th & 1/18th share in the suit property.
5. Replication to the written statement reiterating the stand of plaintiff has been filed. Plaintiffs have denied validity of gift deed in favour of defendant no. 2 to 6 and stated that the same was forged and fabricated. Exclusive possession of defendant no. 2 to 6 is also denied.
6. From the pleadings of the parties following issues were framed on 13/05/2004 for consideration:
1. Whether the plaintiff has not come before the Court with clean hands? OPD
2. Whether Late Sube Singh was not in mentally fit condition to execute the will dated 16/04/19991 as alleged in the written statement? OPD.
3. Whether the suit has not been properly valued for purpose of the court fee and jurisdiction? OPD.
4. Whether the present suit is not maintainable as the Civil Suit no.:129/11 Page4/12 same is hit by provisions of Specific Relief Act? OPD
5. Whether the plaintiff is entitled to decree of partition as claimed in the plaint? OPP.
6. Relief.
7. Vide order dated 22/08/2006 issue no. 5 was modified as under:
5. Whether the parties are entitled to separate possession of their respective shares after the partition of the property? Onus on parties.
8. Vide order dated 15/09/2008 one additional issue was framed for consideration: 1A. Whether Late Sh. Sube Singh executed a registered Gift Deed in favour of defendants no. 2 to 6 as claimed in para 3 of the preliminary objections to the written statement? OPD.
Issue wise findings:
9. Issue no. 1: Defendant has stated that plaintiff has concealed material facts from the Court but has not detailed as to which facts has been concealed and have also not led any evidence to substantiated this plea. In view of absence of any specific pleading and evidence, the issue is decided against the defendants.
10. Issue no. 2: Defendant no. 1 to 6 have stated that the Will dated 16/04/1991 executed by Late Sube Singh in favour of Smt. Aan Kaur was not executed in fit condition of mind.
Civil Suit no.:129/11 Page5/12 Plaintiff has stated that the probate case in respect of the said Will was filed however, the same due to technical defect as only one witness has signed on the Will was withdrawn from the concerned court on 30/07/1999. Plaintiff has also not relied on the said Will. The issue is therefore, redundant.
11. Issue no. 3: Defendants have stated that the suit had not been properly valued for the purpose of court fee and jurisdiction but have not given their own valuation nor any evidence has been led to this effect. Defendants have further stated that none of the plaintiff were in possession of the suit property therefore, court fee on the actual value of the suit property was required to be affixed. Plaintiff has valued the suit property at Rs. 16,50,000/ and stated that they were in joint possession of the suit property alongwith defendants therefore, fixed court fee has been filed. This issue has already been decided as per order in application U/o 7 R 11 CPC on 01/05/2009 whereby the application of the defendants was dismissed with cost. Accordingly, issue already stands decided against the defendants.
12. Issue no. 4: Defendants have stated that the present suit was not maintainable as the same was hit by provisions of Specific Relief Act but has not pointed out as to which provision of the Act they were referring to and also no evidence or arguments has been addressed on this point. In absence of any specific pleadings or arguments, the issue is decided against the defendants.
13. Issue no. 5 and 1(A): Issue no. 5 and 1(A) being interconnected are taken up together. Plaintiff has stated that the suit property was owned by their father Late Sube Civil Suit no.:129/11 Page6/12 Singh. After his death on 19/04/1991 Class I legal heirs which are 09 in numbers including wife of deceased were entitled to share in the suit property. Plaintiffs were thus entitled to 1/7th share of the suit property. Wife of the deceased Smt. Aan Kaur also died interstate on 03/11/1994 therefore, her share of 1/7th was further divided among 08 L.Rs. including the plaintiffs whereby the share of the plaintiff became 1/6th each, together with this defendant no. 1, 7 to 11 were entitled to remaining portion of the suit property. Defendants 1 to 6 have stated that Late Sube Singh had executed valid gift deed of the suit property in favour of defendant no. 2 to 6 on 21/03/1991. The actual physical possession of the suit property was already handed over to the said defendants. The said gift deed after the death of Sube Singh was also registered on 12/03/1992 and in view of the registered gift deed defendant no. 2 to 6 had acquired absolute rights in the suit property. Thus none of the other parties were entitled to claim any share in the suit property. In replication plaintiff denied that Late Sube Singh had executed any gift deed or Will or any instrument of transfer in favour of defendant no. 2 to 6 on any date including 21/03/1991. It is stated that the alleged gift deed propounded by the defendants was false, forged and fabricated document. Physical possession of the suit property being handed to defendant no. 2 to 6 was also denied.
PW1 has stated that their father late Sube Singh was owner of the suit property and had purchased the same vide sale deed Ex. PW1/3. Before his death he had executed Will dated 15/04/1991 in favourof his wife Aan Kaur. Petition for grant of probate on the basis of said Will was filed but the same due to technical defect as there was only one witness of the Will was withdrawn on 30/07/1999. After the death of late Sube Singh there were 09 legal heirs entitled to the suit property and subsequently, after the death of Smt. Aan Kaur her share was further distributed among the remaining legal heirs thereby plaintiff were entitled to 1/6th share each in the suit property. On 05/08/1999 legal notice for partition Civil Suit no.:129/11 Page7/12 of the suit property was sent to defendant no. 1 but the same was received back as unclaimed. The gift deed in favour of defendant no. 2 to 6 was forged and fabricated document. It is stated that the plaintiffs are entitled to 1/6th each share in the suit property. In crossexamination PW1 admitted that since 1989 when he had left the suit property only defendant no. 1 to 6 were residing in the same but stated that upto death of his father, his parents were also residing in the suit premises. He stated that his father was illiterate and used to sign in Urdu. He further stated that he could not read Urdu but denied signatures of his father on Mark 'X'. Will Ex. PW1/5 was stated to be not bearing signatures of his father but was bearing thumb impressions. He stated that he himself had challenged the gift deed in favour of defendant no. 2 to 6 in Tis Hazari Court but could not remember the date and month. He also admitted that he was aware of the gift deed as the copy of the same was filed before the probate court. He admitted the suggestion that gift deed was executed by his father in the name of defendant no. 2 to 6 in the year 1991 which was Mark 'X'. This suggestion was however, disputed by the Ld. Counsel for the plaintiff stating that the entire case of plaintiff was that the gift deed was forged and fabricated and therefore, the suggestion was erroneously recorded.
DW1 stated that Late Sube Singh had executed gift deed in their favour on 21/03/19991. The same was signed by donor Sube Singh, the donees and the witnesses. The said gift deed was later on registered as per provision of law on 10/06/1992 and had placed on record the original and copy of gift deed Ex. DW1/1. In crossexamination he admitted the suggestion that after and at the time of death of Sube Singh he alongwith his father and other 04 brothers were residing in the suit property. He stated that the said gift deed was prepared by the Advocate on instructions of Late Sube Singh. He denied the suggestion that Late Sube Singh did not get the said gift deed dated 21/03/1991 registered as he did not want Civil Suit no.:129/11 Page8/12 to transfer the said property in favour of defendant no. 2 to 6. The witness stated that the gift deed was not registered as funds were not arranged and exact value of stamp duty was required to be calculated.
DW2 is the witness of the said gift deed who stated that he alongwith the said Late Sube Singh were present at Subregistrar office Kashmere Gate, Delhi at the time of execution of the gift deed on 21/03/19991. He stated that Sube Singh had put his signatures and thumb impression on the gift deed thereafter, defendant no. 2 to 6 had signed on the gift deed. The same was thereafter, signed by Narender Kumar and him as the witnesses. He stated that before signing, the contents of the gift deed were explained by the Advocate who had drafted the gift deed to late Sube Singh in vernacular in their presence. In cross examination he stated that he had come to depose in the Court on the basis of his relationship with defendant no. 1 & 2 but was not paid any remuneration for his evidence. He stated that he had come to Delhi in regard to gift deed only once on the previous day to the preparation of the gift deed. He had secondly come to Delhi when he was required by defendant no. 2 for signatures before the registrar. He stated that he had also signed in the registrar office at the time of registration of the gift deed. He denied that the gift deed Ex. DW1/1 was neither signed by Sube Singh nor was signed by witnesses in his presence. He also denied the suggestion that Sube Singh was so old that he could not board the Bus himself. Sube Singh had expired after about one month from the date of execution of the gift deed. He stated that Sube Singh had signed the gift deed in Urdu.
DW3 brought the summoned record in regard to the registration of the gift deed Ex. DW1/1.
DW4 stated that the summoned record in regard to details of the stamp paper had been weeded out and had filed on record report Ex. DW4/4.
Civil Suit no.:129/11 Page9/12 DW5 Naib Tehsildar Stamps produced the letter Ex. DW5/1 and stated that the summoned record had been destroyed in September, 2002. He stated that the record was being maintained in regard to documents being received by the department after impounding by the Subregistrar.
D7W1 reiterated the stand of plaintiff and stated that the gift deed propounded by defendant no. 1 to 6 was false and fabricated and was bearing forged signatures of Sube Singh. In crossexamination she stated that her father late Sube Singh expired on 19/04/1991 in Wellington Hospital. He was admitted by her and her husband. She also stated that her father used to put thumb impression mostly but was not aware if he used to sign in Urdu or not but stated that she had not seen him signing in Urdu at any point of time. She also stated that she was not aware as to how many documents were prepared by her father on 21/03/1991 in the office of Subregistrar as she was not present at the said place. She stated that a Will was prepared by her father on 15/04/1991 but was not aware if there was any mention of his prior Will or gift deed on 21/03/1991 in the said Will. She also admitted that she had not seen the gift deed at any point of time and was told about gift deed by her brother plaintiff no. 1.
No other evidence in this respect has been produced by any of the parties. The admitted facts between the parties are that the suit property was the exclusive property of Late Sube Singh. Plaintiffs' claim is that after death of their father all the L.Rs were entitled to respective shares in the suit property. Defendant no. 1 to 6 have stated that Sube Singh out of love and affection had executed a gift deed in favour of defendant no. 2 to 6 on 21/03/1991. The said gift deed was executed before the Sub registrar, Kashmere Gate, Delhi however, the said document was registered later on 10/03/1992 as stamp duty was paid later and was registered in terms of Section 35 of Indian Civil Suit no.:129/11 Page10/12 Registration Act. Defendants also stated that the registered Will was also executed on the said date but has not placed much reliance on the Will and has instead claimed their right only on the basis of the gift deed. Plaintiff and defendant no. 7 to 11 have stated that the gift deed was forged and fabricated document.
As per Section 123 of Transfer of Property Act, for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. As per Section 126 the gift can be revoked or suspended on happening of any specified event which does not depend on the will of the donor of the gift. Save and except in the above said terms gift cannot be revoked. Gift is also required to be accepted during the lifetime of the donor.
Defendants have produced the copy and the original of the gift deed which is duly registered. The witness of the said gift deed has also been examined as DW2 who has categorically stated that the gift deed was prepared by late Sube Singh signed in Urdu with his thumb impressions in his presence. He also stated that the witness Narender and the donees had also signed in his presence. The document was later registered and DW2 had also appeared before the Registrar at the time of registration of the gift deed. As per endorsement on gift deed, the said gift deed was executed on 21/03/1991, registration was allowed on 10/03/1992 and the said document was registered in terms of Section 35 of Indian Registration Act on 12/03/1992. Necessary stamp duty and formalities are also reported to have been complied by the applicants. The original gift deed is shown to be signed in Urdu by the executent alongwith thumb impressions. The gift deed is also shown to be accepted by the donees i.e. defendants no. 2 to 6. Plaintiffs and defendant no. 7 to 11 denied the execution of the gift deed and stated that it was a forged and fabricated document but PW1 admitted that his father Sube Singh was signing in Urdu. D7W1 stated that she was Civil Suit no.:129/11 Page11/12 not aware if her father Sube Singh was signing in Urdu. The gift deed also bears the thumb impressions of the donor. Thumb impressions of the donor are also available on the Will's produced by the plaintiffs and defendants. Original Will dated 15/04/1991 in favour of Smt. Aan Kaur has been produced by plaintiffs and it mentions about revoking of the registered Will dated 21/03/1991 in favour of defendant no. 2 to 6 and also bears thumb impressions of Late Sube Singh. It is also not the case of any parties that Late Sube Singh was not in fit state of mind to execute documents on 21/03/1991. In fact plaintiff and defendant no. 7 to 11 claimed Sube Singh to be in fit state of mind even on 15/04/1991. Plaintiffs could therefore, have led evidence to disprove the thumb impressions or signatures of the donor Sube Singh. But plaintiffs have not led any evidence to dispute the signatures or thumb impressions or even mental capacity of donor late Sube Singh. Plaintiff despite being aware of registered gift deed also did not take any steps for cancellation of the said gift deed. The document gift deed thus complying with Section 123 Transfer of Property Act stands proved.
Accordingly, issue no. 1(A) is decided in favour of the defendant no. 1 to 6 consequently, the suit property having been transferred by late Sube Singh to defendant no. 2 to 6 by means of gift deed, plaintiffs or defendant no. 7 to 11 are not entitled to claim any right of partition in the suit property. Accordingly, issue no. 5 is decided against the plaintiff.
14. Relief: In view of the above said findings, the suit of the plaintiff is dismissed. File be consigned to Record Room.
Announced in the open court (DINESH BHATT)
on 25/09/2012 PO,MACT/ADJ/Delhi
25/09/2012
Civil Suit no.:129/11 Page12/12