Delhi District Court
(I)Shri Balwant Singh vs Balraj Sood Page No. 1/44 on 7 December, 2019
IN THE COURT OF SH. DEEPAK DABAS:
ADDITIONAL DISTRICT JUDGE-05: WEST:
TIS HAZARI COURTS: DELHI
CivDJ/609238/2016
SMT PRAKASH KAUR(SINCE DECEASED)
through her legal heirs:-
(i)SHRI BALWANT SINGH
S/O LATE SHRI FAUZA SINGH
(husband of late Smt Prakash Kaur)
R/o Link Road No.-4,
DLF Chatterpur Farms,
New Delhi.
(ii) SMT KAMALJIT KAUR
W/O SH. SUKHMINDER SINGH
(daughter of late Smt Prakash Kaur)
C/o Shri Balwant Singh,
R/o:- Not mentioned
(iii) SMT KIRANDEEP KAUR
(daughter of late Smt Prakash Kaur)
R/o Link Road No.-4,
DLF Chatterpur Farms,
New Delhi.
(iv) SHRI KARANDHIR SINGH
S/O SHRI BALWANT SINGH
(Son of late Smt Prakash Kaur)
R/o Link Road No.-4,
DLF Chatterpur Farms,
New Delhi. ............Plaintiffs
Prakash Kaur Vs. Balraj Sood Page No. 1/44
Versus
SHRI BALRAJ Sood(Since deceased)
through His Legal Representatives
(a) SMT. SANTOSH SOOD
W/o Late Shri Balraj Sood
(b) SHRI ANIL KUMAR SOOD,
S/o late Shri Balraj Sood
(c) SHRI ARUN KUMAR SOOD
S/o Late Shri Balraj Sood
All permanent residents of
45, Babar Road,
Bengali Market,
New Delhi-110001. .......Defendants
Date of institution :- 17.05.1996
Order Reserved On :- 19.10.2019
Date of Decision :- 07.12.2019
For Plaintiff:- Sh. B.D. Kaushik & Sh. Vishal Singh, Advocate(s).
For Defendant: Sh. H.L. Tikku, Advocate.
SUIT FOR PARTITION, POSSESSION AND DAMAGES.
Prakash Kaur Vs. Balraj Sood Page No. 2/44
JUDGMENT
Vide this judgment, I shall decide the present suit filed by plaintiff against defendant seeking partition, possession and damages qua property bearing no.-45, Babar Road, Bengali Market, New Delhi measuring about 287.5 sq. yds.
At the outset, it is pertinent to mention that prior to filing of present suit, defendant herein i.e. Balraj Sood had also filed one suit titled as Balraj Sood Vs. Smt. Sulakshana (wife of Late Sh. Kundan Lal Sood) & Ors. bearing no.607859/2016. The said suit was instituted on 18.01.1993. Vide order/judgment dated 31.10.2019, said suit filed by Balraj Sood was dismissed by this Court. In said suit, Balraj Sood had prayed for declaration, mandatory injunction as well as perpetual injunction qua property in question. Plaintiff herein i.e. Smt. Prakash Kaur was arrayed as defendant no.-6 in said suit. It is also pertinent to mention that vide order dated 04.04.2005, said suit was to be taken as leading case and copy of evidence recorded was ordered to be placed in both the cases. It is also pertinent to mention that two issues framed in said suit i.e. issue no.-7(a) and 7(b) are to be decided in the present suit as mentioned in judgment dated 31.10.2019. Hence, file of said suit is also taken up today alongwith present suit.
A. CASE OF PLAINTIFF IN BRIEF:-
1. According to plaintiff, Lala Nand Lal and Lala Hira Lal were the owners of property bearing no.- 45, Babar Road, Bengali Market, New Prakash Kaur Vs. Balraj Sood Page No. 3/44 Delhi measuring about 287.5 sq. yds. The said property was on lease hold basis and perpetual lease deed in respect of said property was granted vide lease deed dated 18.10.1941 supplemented by deed dated 07.10.1942.
2. According to plaintiff, said property was assessed to property tax in the name of Lala Nand Lal and Lala Hira Lal. Lala Hira Lal expired on 26.11.1964. After death of Lala Hira Lal, his estate devolved on his brother i.e. Kundan Lal Sood who became the co-owner/co-sharer in the said property to the extent of 2/3rd.
3. According to plaintiff, Lala Nand Lal was co-sharer/co-owner of the said property to the extent of 1/3rd and after death of Lala Nand Lal, his 1/3rd share was inherited by his son namely Balraj Sood i.e. defendant. Hence, Balraj Sood i.e. defendant became the co-sharer to the extent of 1/3rd and Sh. Kundan Lal Sood became the co-sharer in the said property to the extent of 2/3rd. According to plaintiff, Sh. Kundan Lal Sood during his lifetime had executed a Will dated 28.06.1980 bequeathing the said property in her favour. Sh. Kundan Lal Sood expired on 18.11.1985 and after his death, plaintiff became the co-
sharer/co-owner in the said property to the extent of 2/3rd.
4. According to plaintiff, she moved an application for mutation and substitution of her name as co-lessee to the extent of 2/3rd share in the Prakash Kaur Vs. Balraj Sood Page No. 4/44 said property in Land and Development Office, Nirman Bhawan, New Delhi. According to plaintiff, alongwith said application, she also filed affidavits of legal heirs of Sh. Kundan Lal Sood to enable L&DO for effecting mutation of said property in her favour. She also paid necessary charges for mutation of said property in her favour. On 13.04.1993, mutation was effected in favour of plaintiff in the records of L&DO whereby the plaintiff was declared to be the owner in respect of 2/3rd share in said property.
5. According to plaintiff, she is co-owner/co-sharer to the extent of 2/3rd in said property and defendant is co-owner/co-sharer to the extent of 1/3rd in said property. Said property has not been partitioned by metes and bounds. She requested the defendant to give possession of her portion of said property but defendant has been avoiding the same on one pretext or the other.
6. According to plaintiff, defendant is in possession of the entire property and she has been deprived of her share i.e. 2/3rd in said property and hence, defendant is liable to pay damages for use and occupation of plaintiff's portion @ Rs.15,000/- per month.
7. According to plaintiff, defendant has refused to partition the said property without any just and sufficient cause. Plaintiff is not interested Prakash Kaur Vs. Balraj Sood Page No. 5/44 to remain in joint possession of said property with defendant and as such plaintiff is entitled for partition of said property by metes and bounds and also possession of the same. Since defendant has refused to partition the said property, plaintiff is left with no other option but to file the present suit seeking partition, possession as well as damages.
B. CASE OF DEFENDANT IN BRIEF:-
1. Defendant in his written statement has taken some preliminary objections i.e. the suit is liable to be stayed under Section 10 of CPC.
The alleged Will is forged and fabricated. Defendant is in possession of said property to the exclusion and/or ouster of others and has acquired indefeasible title to the suit property. Plaintiff cannot claim partition of said property as she has no right or interest in the same. The alleged right claimed by plaintiff in property is non-existent. The mutation carried out in favour of plaintiff is already under challenge.
2. On merits, defendant in his written statement has stated that he is the sole successor to the estate possessed by Lala Nand Lal in said property. Lala Hira Lal co-lessee of said property died on 26.11.1964 demising his estate in said property in favour of his brother namely Kundan Lal Sood. Sh. Kundan Lal Sood succeeded to interests of Lal Hira Lal in abovementioned property.
Prakash Kaur Vs. Balraj Sood Page No. 6/443. According to defendant, he is residing in said property since birth whereas Sh. Kundan Lal Sood used to reside at Bombay. Sh. Kundan Lal Sood entered into an agreement of sale dated 08.02.1979 with the defendant. Under the said agreement, all rights, title and interest acquired by Sh. Kundan Lal Sood in said property were agreed to be transferred absolutely for a settled consideration of Rs.60,000/- only. On execution of the agreement, a sum of Rs.30,000/- was paid to Sh. Kundan Lal Sood by defendant i.e. Rs.10,000/- on account of earnest money and Rs.20,000/ on account of part payment. Balance amount was to be paid in installments commencing from 01.08.1979, 01.11.1979, 01.02.1980 and 01.05.1980. Last installment of Rs.6000/- receivable by Sh. Kundan Lal Sood consisted of Rs.5000/- on account of stamp duty charges and Rs.1000/- as balance consideration receivable on execution and registration of conveyance deed in favour of defendant. Physical possession of said property always remained with defendant and only symbolic possession of property with reference to title possessed by Sh. Kundan Lal Sood in said property was handed over to defendant with execution of such agreement.
4. According to defendant, ever since entering into aforesaid agreement, he is in exclusive use and possession of said property as an owner. The defendant has attended all improvements etc carried in said property at his expense. Property tax, lease money etc for the property all throughout has been paid by defendant as exclusive owner. All electric and water connection installed in the property are in the name of Prakash Kaur Vs. Balraj Sood Page No. 7/44 defendant. Even Ration Card issued in respect of said property is held in the name of family members of defendant.
5. According to defendant, Sh. Kundan Lal Sood filed one suit impleading defendant as sole defendant. In said suit, Sh. Kundan Lal Sood alleged cancellation of agreement to sell dated 07.02.1979 and prayed for partition of said property as well as possession. The said suit was contested by defendant. The said suit was dismissed by Ld. ADJ under Order 9 Rule 7 CPC on 17.09.1985. Even application for restoration of said suit filed under Order 9 Rule 4 CPC was also dismissed on 05.12.1985.
6. According to defendant, Sh. Kundan Lal Sood expired on 09.11.1985. Defendant continued to exercise control, possession etc over said property thereafter as well to the knowledge of plaintiff and without any obstruction. By virtue of doctrine of part performance under Section 53A of Transfer of Property Act, rights acquired by defendant though beneficial and equitable are lawfully exercisable as ownership rights.
7. According to defendant, in April 1992, the Central Government published and brought out scheme of conversion of lease hold rights into freehold rights on charging of stipulated sum. Scheme covered the abovementioned property as well. Defendant approached legal heirs of Late Sh. Kundan Lal Sood and requested them to join in submitting Prakash Kaur Vs. Balraj Sood Page No. 8/44 conversion papers. Defendant even sent such papers to them for signing the same alongwith affidavits and declaration required to be submitted under the scheme with appropriate authority. They received the papers and assured to send the papers duly filled in and accompanied by requisite documents.
8. According to defendant, he again approached them on 20.12.1992 as scheme was to close by 31.03.1993. Defendant had requested them for the same as the office of 'Lessor' (President of India) insisted for their consent since lease rights continued to be reflected in the name of Sh. Kundan Lal sood as successor in interest of Sh. Hira Lal i.e. the recorded co-lessee of the property.
9. According to defendant, legal heirs of Late Sh. Kundan Lal Sood for the first time threatened to deny defendants abovementioned legal rights in the property by alleging their interest in said property as legal heirs/successor-in-interest of Late Sh. Kundan Lal Sood on the plea that no deed of conveyance was executed by late Sh. Kundan Lal Sood and registration thereof is yet to take place. They also threatened to interfere with defendant's use, possession and enjoyment of said property.
10. According to defendant, he was left with no choice but to file a suit against legal heirs of Late Sh. Kundan Lal Sood. In its written Prakash Kaur Vs. Balraj Sood Page No. 9/44 statement filed in said suit, Union of India disclosed that mutation in favour of plaintiff herein has been carried out on the basis of aforesaid Will.
11. According to defendant, by virtue of original registered conveyance deed dated 18.10.1941, suit property was conveyed in favour of Lala Nand Lal and Lala Hira Lal in the ratio of 1/3 and 2/3 respectively. However, the same was subsequently corrected by a registered supplementary deed dated 07.10.1942 coveying the suit property in favour of Lala Nand Lal and Lala Hira Lal as joint owners in equal shares and was accordingly mutated. Plaintiff's contention that Late Sh. Kundan Lal Sood became co-owner/co-sharer in the said property to the extent of 2/3rd is wrong and false.
12. According to defendant, Sh. Kundan Lal Sood during his lifetime had not executed alleged Will dated 28.06.1980 bequeathing the said property in favour of plaintiff. The alleged document i.e. Will dated 28.06.1980 is forged and fabricated. Even otherwise, Sh. Kundan Lal Sood having entered into agreement of sale dated 08.02.1979 and having put the defendant in possession of said property in part performance of the contract and having received the sale consideration, had no surviving right to deal with or to make any alleged Will.
Prakash Kaur Vs. Balraj Sood Page No. 10/4413. According to defendant, L&DO has acted collusively, illegally and in collusion with the plaintiff in mutating 2/3rd share in the suit property in favour of plaintiff. The said mutation carried on the basis of forged and fabricated documents is fraudulent.
14. According to defendant, plaintiff has no right whatsoever in any portion of said property and therefore, she is not entitled to seek partition of the same. Plaintiff is not entitled to any damages/mesne profits and all the claims of plaintiff in this regard are misconceived and the suit filed by plaintiff is liable to be dismissed.
C. REPLICATION Plaintiff has filed replication qua written statement filed by defendant reiterating therein contents of plaint and denying the version of defendant.
D. ISSUES After completion of pleadings, the following issues were framed on 10.08.2001 :-
(1)Whether the suit has been properly valued and proper court fee has been paid by the plaintiff?
(2) Whether the plaintiff has acquired any legal/vested right in respect of suit property or any part thereof?
(3) Whether late Kundan Lal was co-lessee in respect of suit Prakash Kaur Vs. Balraj Sood Page No. 11/44 property to the extent of 2/3rd share as pleaded by the plaintiff? (4) Whether the mutation of the property effected by L & DO in favour of the plaintiff is not brought about by fraud on the defendant as mentioned in paragraph 4 of the preliminary objections raised by defendant?
(5) Relief The following two issues framed on 10.04.2001 in case titled as Balraj Sood Vs. Smt Sulakshana & Ors. i.e. Suit bearing no.-
607859/2016 are also to be decided in the present suit:-
(7)(a) Whether defendant no.-6 proves that he has 2/3rd share in the suit property? If yes, what is the effect?
(7)(b) Whether defendant no.-6 proves that deceased Kundan Lal Sood was co-lessee in respect of the suit property to the extent of 2/3rd share? If yes, what is the effect?
E. EVIDENCE LED BY PLAINTIFF i.e. PRAKASH KAUR:-
1. Plaintiff i.e. Smt Prakash Kaur produced and examined following three witnesses in support of her case:-
(1) D6W1 is Sh. Balwant Singh i.e. Husband of Smt Prakash Kaur. (2) D6W2 is Sh. Daljeet Singh i.e. Attesting witness of the Will dated 28.06.1980.
(3) D6W3 is Sh. Surender Singh i.e. Attesting witness of the Will dated 28.06.1980.Prakash Kaur Vs. Balraj Sood Page No. 12/44
No other witness has been produced/examined by plaintiff in support of her case. It is pertinent to mention that plaintiff i.e. Prakash Kaur herself never entered into witness box to depose in support of her case.
2. D6W1 i.e. Sh. Balwant Singh filed his evidence by way of affidavit i.e. Ex.D6W1/A reiterating therein the case of plaintiff. D6W1 relied upon following documents:-
A. Ex.D6W1/1 i.e. Power of attorney executed by plaintiff in his favour.
B. Ex.D6W1/2 i.e. Certified copy of Will dated 28.06.1980. C. Ex.D6W1/3 i.e. Mutation Letter dated 13.04.1993.
D6W1 was cross examined at length by Ld. Counsel for defendant.
3. D6W2 i.e. Sh. Daljeet Singh also filed his evidence by way of affidavit i.e. Ex.D6W2/1. D6W2 also relied upon said Will i.e. Ex.D6W1/2. D6W2 was also cross examined at length by Ld. Counsel for defendant.
4. D6W3 i.e. Sh. Surender Singh also filed his evidence by way of affidavit i.e. Ex.D6W3/1. D6W3 also relied upon said Will i.e. Prakash Kaur Vs. Balraj Sood Page No. 13/44 Ex.D6W1/2. D6W3 was also cross examined at length by ld. Counsel for defendant.
F. EVIDENCE LED BY DEFENDANT i.e. BALRAJ SOOD:-
1. In support of his case, defendant has produced and examined following nine witnesses:-
(1) PW-1 i.e. Sh. Balraj Sood.
(2) PW-2 i.e. Sh. Anil Sood S/o Balraj Sood.
(3) PW-3 i.e. Sh. Arun Sood S/o Balraj Sood.
(4) PW-4 i.e. Sh. Mohan Lal, Customer Care Officer, PNB Connaught Place, New Delhi.
(5) PW-5 i.e. Sh. Manoj Kumar Dahiya, LDC Record Room Sessions, Tis Hazari Court, Delhi.
(6) PW-6 i.e. Sh. Paramjeet Singh, Head Assistant, Tax Branch (Accounts) NDMC, Palika Kendra, Sansad Marg, New Delhi-110001.
(7) PW-7 i.e. Constable Ajay Kumar, PS Mathura Gate, Bharatpur, Rajasthan(wrongly numbered as PW-4).Prakash Kaur Vs. Balraj Sood Page No. 14/44
(8) PW-8 i.e. Mr. Satyapal, Record Attendant, Department of Delhi Archives, New Delhi(wrongly numbered as PW-5).
(9) PW-9 i.e. Sh. Gopal Krishan Sood S/o Sh. Shankar Das Sood.
2. PW-1 filed his evidence by way of affidavit reiterating therein his case. PW-1 also relied upon following documents:-
(1) Ex.PW-1/1 i.e. Original Perpetual Lease Deed dated 26.08.1939 executed between The Governor General in Council (Lessor) & Mr. B.N. Bhambri, Secretary, Oriental Government Security Life Assurance Company, New Delhi(Lessee) alongwith Site Plan.
(2) Ex.PW-1/2 i.e. Original Sale Deed dated 18.10.1941 executed by Sh.
B.N. Bhambri in favour of Lala Nand Lal and Lala Hira Lal (purchasers to the extent of 1/3rd and 2/3rd share respectively).
(3) Ex.PW-1/3 i.e. Original Supplemental Deed dated 07.10.1942 executed between Mr. B.N. Bhambri, Lala Nand Lal and Lala Hira Lal.
(4) Ex.PW-1/4 i.e. Letter dated 21.08.1978 written by Officer of L&DO to Sh. Balraj Sood and Sh. Kundan Lal.
(5) Ex.PW-1/5 i.e. Mutation Letter dated 20.07.1979 vide which property was mutated in the name of Balraj Sood and Kundan Lal.
Prakash Kaur Vs. Balraj Sood Page No. 15/44(6) Ex.PW-1/6 i.e. Notice dated 25.03.1990 under Section 67-A of The Punjab Municipal Act of 1911 addressed to Balraj Sood.
(7) Ex.PW-1/7 i.e. Receipt vide which Tax was paid to NDMC by Balraj Sood qua property in question.
(8) Ex.PW-1/7A i.e. Receipt vide which Tax was paid to NDMC by Balraj Sood qua property in question.
(9) Ex.PW-1/8 i.e. Agreement to sell dated 08.02.1979 executed between Kundan Lal Sood and Balraj Sood.
(10) Ex.PW-1/9 i.e. Letter dated 21.07.1979 written by Balraj Sood.
(11) Ex.PW-1/10 i.e. Letter dated 28.07.1979 written by Balraj Sood.
(12) Ex.PW-1/11 i.e. Payment receipts issued by NDMC pertaining to Deposit of Property Tax.
(13) Ex.PW-1/12 i.e. Photocopy of Passbook of defendant pertaining to PNB Janpath.
(14) Ex.PW-1/13 i.e. Letter dated 13.02.1984 written by Balraj Sood regarding payment of ground rent in respect of property in question.
Prakash Kaur Vs. Balraj Sood Page No. 16/44(15) Ex.PW-1/14 i.e. Certified copy of plaint filed by Kundan Lal Sood against Balraj Sood in High Court of Delhi seeking partition and possession of property in question.
(16) Ex.PW-1/15 i.e. Certified Copy of written statement filed by Balraj Sood in the aforesaid case.
(17) Ex.PW-1/16 i.e. Certified Copy of ordersheet dated 17.09.1985 vide which said suit was dismissed in default by Sh. G.S. Dhaka the then Ld. ADJ.
(18) Ex.PW-1/17 i.e. Certified copy of application filed by Kundan Lal Sood under Order 9 Rule 4 CPC in aforesaid suit.
(19) Ex.PW-1/18 (Colly) i.e. Copy of Ordersheets of aforesaid case.
(20) Ex.PW-1/19 i.e. Letter written by Sh. Balraj Sood to Manager, Punjab National Bank, Worli, Bombay.
(21) Ex.PW-1/20 i.e. reply received by Sh. Balraj Sood from Manager Punjab National Bank, Worli, Bombay.
(22) Mark X i.e. Copy of Bank Draft dated 07.07.1980 issued by Punjab National Bank, Bengali Market, New Delhi for a sum of Rs.24,000/- in favour of Kundan Lal(mentioned as Ex.PW-1/21 in evidence by way of Prakash Kaur Vs. Balraj Sood Page No. 17/44 affidavit of PW-1).
(23) Ex.PW-1/22 i.e. Copy of Police Report lodged at Police Station, Mathura Gate, District Bharatpur, Rajasthan.
3. Evidence by way of affidavit of PW-1 was tendered in evidence on 21.10.2005. However, PW-1 was not cross-examined on behalf of plaintiff i.e. Smt Prakash Kaur inspite of being given an opportunity for the same. Thereafter, an application was filed on behalf of plaintiff i.e. Prakash Kaur for recalling of PW-1 for his cross examination. However, PW-1 expired before disposal of said application and therefore, PW-1 could not be cross examined by/on behalf of plaintiff i.e. Prakash Kaur.
4. PW-2 i.e. Sh. Anil Sood also filed his evidence by way of affidavit i.e. Ex.PW-2/A. PW-2 also relied upon documents already exhibited as Ex.PW-1/1 to Ex.PW-1/22. PW-2 was cross examined at length by Ld. Counsel for plaintiff i.e. Prakash Kaur.
5. PW-3 i.e. Sh. Arun Sood also filed his evidence by way of affidavit i.e. Ex.PW-3/A reiterating therein version of Balraj Sood. PW-3 also relied upon documents i.e. Ex.PW-1/1 to Ex.PW-1/22. PW-3 was also cross examined at length by Ld. Counsel for plaintiff i.e. Prakash Kaur.
Prakash Kaur Vs. Balraj Sood Page No. 18/446. PW-4 i.e. Sh. Mohan Lal, Customer Care Officer, Punjab National Bank, Connaught Place, Delhi stated that summoned record has been weeded out being more than eight years old and certificate in this regard is Ex.PW-4/1.
7. PW-5 i.e. Sh. Manoj Kumar Dahiya, LDC, Record Room Sessions, Tis Hazari Courts, Delhi also stated that the summoned record has been weeded out on 16.06.2000 and photocopy of relevant register is Ex.PW- 5/2.
8. PW-6 i.e. Sh. Paramjeet Singh, Head Assistant, Tax Branch (Accounts) NDMC produced certified copy of relevant record, certified by him i.e. Ex.PW-6/1.
9. PW-7 i.e. Constable Ajay Kumar, PS Mathura Gate, Bharatpur, Rajasthan produced attested copy of FIR No.-420/98 PS Mathura Gate under Section 420/120B IPC dated 17.08.1998 i.e. Ex.PW-4/A. Attested copy of final report dated 17.01.1999 is Ex.PW-4/B.
10. PW-8 i.e. Mr. Satyapal, Record Attendant, Department of Delhi Archives produced the summoned record i.e. the agreement to sell dated 08.02.1979 executed between Sh. Kundan Lal Sood and Sh. Balraj Sood i.e. Ex.PW-1/8.
Prakash Kaur Vs. Balraj Sood Page No. 19/4411. PW-9 i.e. Sh. Gopal Krishan Sood filed his evidence by way of affidavit i.e. Ex.PW-9/A. PW-9 was also cross examined by Ld. Counsel for plaintiff i.e. Prakash Kaur.
G. I had heard Ld. Counsel for the plaintiff as well as Ld. Counsel for defendant. I have perused the record carefully. I have also perused the written arguments/submissions filed on behalf of plaintiff as well as defendant. I have also gone through the judgments relied upon by Ld. Counsel(s) for the parties.
Ld. Counsel for plaintiff i.e. Prakash Kaur has relied upon following judgments:-
(1) Krishan Kumar Birla Vs. Rajinder Singh Lodha (2008) 4 SCC 300;
(2) Vasnanthi Vs. Venugopal (Dead) through Legal Representatives (2017) 4 SCC 723;
(3) Revanasiddayya Vs. Gangamma Alias Shashikala & Anr.: (2018) 1 SC 610;
(4) Chinnaraj Vs. Sheik Davood Nachiar & Ors. AIR 2003 Madras 89;
(5) Man Kaur (Dead) by LRs Vs. Hartar Singh Sangha (2010) 10 SCC 512;
(6) Ahmadsahab Abdul Mulla (2) (Dead) Vs. Bibijan & Ors. (2009) 5 Prakash Kaur Vs. Balraj Sood Page No. 20/44 SCC 462;
(7) Fatehji & Company & Anr. Vs. L.M.Nagpal & Ors. (2015) 8 SCC 390;
(8) N.P. Thirugnanam (Dead) by LRs Vs. Dr. R. Jagan Mohan Rao & Ors. (1995) 5 SCC 115;
(9) Pushparani S. Sundaram & Ors. Vs. Pauline Manomani James (deceased) & Ors. (2002) 9 SCC 582;
(10) Rajni Tandon Vs. Dulal Ranjan Ghosh Dastidar & Anr. (2009) 14 SCC 782;
(11) Mohan Lal (Deceased) through His LRs. Kachru & Ors. Vs Mirza Abdul Gaffar & Anr. (1996) I SCC 639 (12) Sardar Govindrao Mahadik & Anr. Vs. Devi Sahai & Ors. (1982) 1 SCC 237.
Ld. Counsel for defendant i.e. Balraj Sood has relied upon following judgments:-
(1) Vidhyadhar Vs. Manikrao & Anr. 1999(3) SCC 573; (2) Soodershan Lal Maini Vs. Virender Kumar Maini:- 187(2012) DLT 414;
(3) Jaswant Singh Vs. Darshan Singh:- (1992) 102(2) PLR 29; (4) Vaneeta Khanna Vs. Rajiv Gupta & Ors.:- 2015(152) DRJ 684; (5) Vimla Devi Vs. Pushpa Devi & Anr.:- 241(2017) DLT 568; (6) Kishan Chand Vs. Amar Singh:- RSA No.326 of 1988 decided by Hon'ble High Court of Punjab & Haryana.Prakash Kaur Vs. Balraj Sood Page No. 21/44
(7) Dalmia Cement (Bharat) Ltd. Vs. Hansalaya Properties Ltd. & Ors.:- (2012)ILR4Delhi151;
(8) Shamrao Suryakavansi & Ors. Vs. Prahlad Bhairoba Suryavanshi by LRs & Ors.:- AIR 2002 SC 960 (9) Motor & General Finance Vs. Mahabir Prasad Chaudhary & Ors.:- 83(2000)DLT672 (10) Janki Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd. VII(2004) SLT 441 (11) Roop Kumar Vs. Mohan Thedani: (2003) 6 SCC 595; (12) Brahm Prakash Vs. Chando Devi & Ors.:- Manu/DE/4414/2010.
H. My findings on the issues are as under:-
1. ISSUE NO.-(1): Whether the suit has been properly valued and proper court fee has been paid by the plaintiff?
Defendant in his written statement i.e. preliminary objection no.-3 (page no.-2) has stated that the suit has not been properly valued and proper Court Fees has not been paid and as such plaint is liable to be rejected.
Since objection regarding valuation and Court Fees has been taken by defendant onus to prove the same is on defendant.
Plaintiff in para 23 of plaint has mentioned about valuation, court fees and jurisdiction. In said para plaintiff has stated that value of the suit for the relief of partition with possession is fixed at Rs.5 lacs being the approximate market value of the share of plaintiff in suit property. Relief of damages/mesne profits @ Rs.15,000/- per month for a period of three Prakash Kaur Vs. Balraj Sood Page No. 22/44 years w.e.f. 08.04.1993 till 07.04.1996 is valued at Rs.3,24,000/-. On said valuation as well as reliefs plaintiff has affixed Court Fee of Rs.12,800/-.
Section 7 of The Court Fees Act 1870 deals with computation of fees payable in certain suits. Section 7(iv) of said Act postulates that in suits to enforce a right to share in joint family property the amount of fee payable is according to the amount at which the relief sought is valued in the plaint. It further postulates that in all such suits the plaintiff shall state the amount at which he values the relief sought.
Section 7 (v) of said Act postulates that in suits for the possession of land, houses and gardens the amount of fee payable is according to the value of the subject matter and in case subject matter is a house or garden, according to the market value of the house or garden.
In a case titled as Gobind Gopal Vs. Bawari Lal: AIR 1983 Delhi 323, it has been held that the plaintiff has a discretion/right to put their own valuation as the relief for the purposes of Court Fees.
In her plaint, plaintiff has stated that approximate market value of her share in suit property is Rs.5 lacs and she is seeking relief of partition as well as possession. In addition to relief of partition with possession, plaintiff has also claimed damages/mesne profits @ Rs.15,000/- per month for a period of three years immediately preceding filing of present suit.
Defendant has failed to aver/prove as to how valuation made by plaintiff is incorrect/improper and how proper court fees has not been paid by the plaintiff on the reliefs claimed by her.
Hence, issue no.-1 is decided in favour of plaintiff and against Prakash Kaur Vs. Balraj Sood Page No. 23/44 defendant.
2. ISSUE NO.- (3): Whether late Kundan Lal was co-lessee in respect of suit property to the extent of 2/3rd share as pleaded by the plaintiff?
And:-
ISSUE NO.-(7)(B): Whether defendant no.-6 proves that deceased Kundan Lal Sood was co-lessee in respect of the suit property to the extent of 2/3rd share? If yes, what is the effect?
Issue no.-3 and issue no.-7(b) are taken up together as they are identical.
At the outset, it is pertinent to mention that aforesaid issue no.-3 was framed in present suit whereas issue no.-7(b) was framed in suit no.- 607859/2016 titled as Balraj Sood Vs. Smt. Sulakashana & Ors.(decided on 31.10.2019). It is also pertinent to mention that plaintiff herein i.e. Prakash Kaur was arrayed as defendant no.-6 in Suit No.607859/2016.
Onus of proving aforesaid issues i.e. Issue no.-3 and Issue no.-7(b) is on plaintiff i.e. Prakash Kaur.
In her plaint, plaintiff has stated that perpetual lease deed dated 18.10.1941 qua said property was executed in favour of Lala Nandlal and Lala Hira Lal, supplemented by deed dated 07.10.1942. Plaintiff has further averred that after death of Lala Hira Lal his estate devolved on his brother namely Kundan Lal Sood who became the co-owner/co-
sharer in the said property to the extent of 2/3rd. Lala Nand Lal was co- sharer to the extent of 1/3rd and after his death, his 1/3rd share was inherited by his son namely Balraj Sood. Hence, defendant became the Prakash Kaur Vs. Balraj Sood Page No. 24/44 co-sharer/co-owner to the extent of 1/3rd and Sh. Kundan Lal Sood became co-owner/co-sharer to the extent of 2/3rd. Plaintiff has further claimed that Sh. Kundan Lal Sood had executed one Will dated 28.06.1980 in her favour qua suit property/his 2/3rd share. Sh. Kundan Lal Sood expired on 18.11.1985 and by virtue of said Will, she became owner of 2/3rd share and 2/3rd share in suit property was duly mutated in her name in office of L&DO.
In his evidence by way of affidavit, D6/W1 i.e. Balwant Singh(husband of Prakash Kaur) reiterated the aforesaid facts. Though D6W1 has not exhibited the lease deed dated 18.10.1941 in favour of Lala Nand Lal and Lala Hira Lal and even supplemental deed dated 07.10.1942 but the said two documents have been admitted by both the parties. Lease deed dated 18.10.1941 is Ex.PW-1/2 and Supplemental Deed dated 07.10.1942 is Ex.PW-1/3. It is pertinent to mention that plaintiff in her plaint has stated about the aforesaid deeds i.e. dated 18.10.1941 and also 07.10.1942. Even D6W1 has stated about said deeds in his evidence by way of affidavit and no dispute regarding the same has been raised by plaintiff either in her plaint or in the evidence of the witnesses examined by her in support of her case.
A careful perusal and analysis of Ex.PW-1/2 and Ex.PW-1/3 is necessary and essential to determine whether Late Sh. Kundan Lal Sood was co-lessee in respect of suit property the extent of 2/3rd share.
Perusal of para 1 of Ex.PW-1/2 shows that the same was executed on 18.10.1941 between Mr. B.N. Bhambri on one hand and Lala Nand Lal and Lala Hira Lal on the other hand. In first para it is mentioned that Lala Nand Lal is purchaser to the extent of 1/3rd and Lala Hira Lal is Prakash Kaur Vs. Balraj Sood Page No. 25/44 purchaser to the extent of 2/3rd. Perusal of Ex.PW-1/2 further shows that except in para 1 of said document, it is nowhere stated/mentioned that Lala Hira Lal is purchaser to the extent of 2/3rd and Lala Nand Lal is purchaser to the extent of 1/3rd. Even in para 3 of Ex.PW-1/2 i.e. pertaining to consideration amount, it is not mentioned that 1/3rd consideration is paid by Lala Nand Lal and 2/3rd consideration is paid by Lala Hira Lal. Even in subsequent paragraphs of Ex.PW-1/2, it is nowhere mentioned that Lala Hira Lal had purchased 2/3rd share in said property whereas lala Nand Lal had purchased 1/3rd share in said property.
Supplemental deed i.e. Ex.PW-1/3 dated 07.10.1942 is also admitted by both the parties as Smt Prakash Kaur as well as Sh. Balraj Sood have relied upon said document. Para 3 of Ex.PW-1/3 is being reproduced herein for the sake of convenience and ready reference:-
"and whereas the intention of the parties to the original deed was to transfer the property jointly to the purchasers without mentioning their shares in the deed and the operative part of the deed also did not contain any words showing the shares of the purchasers but contrary to that intention the first paragraph of that deed by mistake contains some words in brackets after the description of the purchasers which shows that Lala Nand Lal is purchaser to the extent of one third and Lala Hira Lal is purchaser to the extent of two thirds and whereas the land and development officer New Delhi has refused to accept and agree to the transfer on the ground that it involves a sub-division of the property and it is therefore necessary to omit those unnecessary words in order to Prakash Kaur Vs. Balraj Sood Page No. 26/44 make the intention of the parties clearer so that the property may be considered to have been transferred jointly in favour of the purchasers. Now this deed witnesses that the parties to this deed hereby agree that the words "(purchaser to the extent of 1/3rd)" written after the description of the purchaser Nand Lal and the words "(purchaser to the extent of 2/3rd)" written after the description of the purchaser Hira Lal in the first paragraph of the original sale deed shall be omitted from that deed so that the original deed shall operate to transfer the property jointly in favour of the purchasers".
Ld. Counsel for Prakash Kaur i.e. plaintiff herein argued that though Ex.PW-1/3 is an admitted document but the said document does not state that the property was purchased in equal shares. It only states that the property was purchased jointly without mentioning shares. The share of Lala Nand Lal continued to be 1/3rd and that of Lala Hira Lal continued to be 2/3rd. Ld. Counsel further argued that supplementary deed was executed on account of refusal of the L&DO to accept share- wise transfer as it involves sub-division of property and therefore, mention of shares in Ex.PW-1/2 was removed and it was provided that property is transferred jointly in favour of Lala Nand Lal and Lala Hira Lal.
At this stage, reference to Section 91 & 92 of The Indian Evidence Act 1872 is necessary. Section 91 of said Act lays down that when the terms of a contract or of a grant or any other disposition of property have been reduced to the form of a document and in all cases in which any Prakash Kaur Vs. Balraj Sood Page No. 27/44 matter is required by law to be reduced to the form of a document no evidence shall be given in proof of the terms of such contract, grant or other disposition of property except the document itself.
Section 92 postulates that when the terms of any such contract, grant or other disposition of property have been proved according to Section 91 no evidence of any oral statement or agreement shall be admitted as between the parties to any such instrument for the purpose of contradicting, varying, adding to or subtracting from its terms. Proviso 4 of Section 92 lays down that the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved except in cases in which such contract, grant or disposition of property is bylaw required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
It is reiterated that only in first para of Ex.PW-1/2 it is stated in bracket that Lala Nand Lal is purchaser to the extent of 1/3rd whereas Lala Hira Lal was purchaser to the extent of 2/3rd. As far as remaining portion/operative part of Ex.PW-1/2 is concerned, it nowhere mentioned/stated that Lala Nand Lal had purchased 1/3rd share and Lala Hira Lal had purchased 2/3rd share. Even share of the parties was not demarcated/identified. Even in para pertaining to consideration, there is no mention of the fact that 1/3rd consideration has been paid by Lala Nand Lal and 2/3rd consideration has been paid by Lala Hira Lal. By executing Ex.PW-1/3 i.e. supplementary deed parties agreed to remove the words i.e. purchaser to the extent of 1/3rd and also purchaser to the extent of 2/3rd. In supplemental deed parties clarified that their intention Prakash Kaur Vs. Balraj Sood Page No. 28/44 in the original deed was to transfer the property jointly without mentioning their shares. In Ex.PW-1/3, it is mentioned that contrary to intention of the parties, the first paragraph of that deed by mistake contains some words in brackets after the description of the purchasers. Since the parties by executing registered supplemental deed dated 07.10.1942 agreed that their true intention was not to mention any share in Ex.PW-1/2 hence, the words purchaser to the extent of 1/3rd/purchaser to the extent of 2/3rd cannot be read in Ex.PW-1/2. If the words "purchaser to the extent of 1/3rd/purchaser to the extent of 2/3rd"
are omitted from Ex.PW-1/2" the parties i.e. Lala Nand Lal as well as Lala Hira Lal become joint owners of said property. Neither Lala Hira Lal nor Lala Nand Lal can claim to be owner of 1/3rd or 2/3rd share in said property. Since on omission of said words they have become joint owners of said property, they are deemed to have equal share in said property. Arguments of Ld. Counsel for Prakash Kaur i.e. plaintiff herein are without merits. It is also pertinent to mention that the aforesaid arguments advanced by Ld. Counsel for the plaintiff are beyond pleadings as no such ground/plea has been taken by plaintiff in her plaint. Since the same are beyond pleadings and even beyond the evidence led by plaintiff in support of her case, no reliance can be placed upon the same at this stage. It is also pertinent to mention that no challenge to supplemental deed dated 07.10.1942 has been made by plaintiff in her plaint and she has not prayed for declaring said supplemental deed i.e. Ex.PW-1/3 as null and void. It is pertinent to mention that supplemental deed dated 07.10.1942 i.e. Ex.PW-1/3 is in writing and the same has been duly registered as per law. Instead of Prakash Kaur Vs. Balraj Sood Page No. 29/44 challenging the same, plaintiff has relied upon it, however, at the stage of final arguments, Ld. Counsel for plaintiff has tried to explain it away. Plaintiff is blowing hot as well as cold at the same time and the same is not permissible.
Even in Ex.PW-1/4 i.e. memorandum issued by L&DO premises/plot in question has been mutated in the name of Balraj Sood and Kundan Lal jointly and severally. Even in Ex.PW-1/4, there is no mention of shares i.e. 1/3rd or 2/3rd. Even in Ex.PW-1/5, it is mentioned that property in question has been mutated in the name of Balraj Sood and Kundan Lal. Even in Ex.PW-1/5, there is no mention of shares of the parties.
In view of aforesaid facts, circumstances as well as discussion made hereinabove, I am of the considered view that plaintiff(defendant no.-6) in connected case has failed to prove that Late Kundan Lal was co-lessee in respect of suit property to the extent of 2/3rd share.
Hence, issues no.-3 as well as 7(b) are hereby decided against Prakash Kaur i.e. plaintiff herein.
3. ISSUE NO.-(2): Whether the plaintiff has acquired any legal/vested right in respect of suit property or any part thereof?
And:-
ISSUE NO.-(7)(A):- Whether defendant no.-6 proves that he has 2/3rd share in the suit property? If yes, what is the effect?Prakash Kaur Vs. Balraj Sood Page No. 30/44
Issue no.-2 as well as 7(a) are taken up together as they are almost identical.
Plaintiff herein i.e. Prakash Kaur(defendant no.-6 in suit no.- 607859/2016) has claimed that Late Sh. Kundan Lal Sood had executed one Will dated 28.06.1980 in her favour thereby bequeathing his 2/3rd share in said property in her favour. According to Prakash Kaur, Sh. Kundan Lal Sood had expired on 18.11.1985 and after his death she became the co-sharer/co-owner in the said property to the extent of 2/3rd.
On the other hand, defendant i.e. Balraj Sood has claimed that the said Will is a forged and fabricated document and no right, title or interest is transferred in favour of Prakash Kaur qua suit property on the basis of alleged Will dated 28.06.1980. Defendant has further claimed that Sh. Kundan Lal Sood had executed one agreement to sell with him and had also received Rs.30,000/- from him as earnest money as well as part consideration. Physical possession of suit property was already with him and even symbolic possession thereof was handed over to him and by virtue of Section 53A of Transfer of Property Act i.e. doctrine of part performance rights acquired by him though beneficial and equitable are lawfully exercisable as ownership rights.
In order to prove Will in question i.e. Ex.D6W1/2, Prakash Kaur has produced and examined three witnesses. It is pertinent to mention that Prakash Kaur herself never appeared in Court to prove her case. However, her husband i.e. Sh. Balwant Singh appeared and testified in support of her case as D6/W1. Sh. Balwant Singh in his evidence by way of affidavit i.e. Ex.D6W1/A reiterated the case of Prakash Kaur i.e. his Prakash Kaur Vs. Balraj Sood Page No. 31/44 wife and claimed that he is having personal knowledge of all the facts and circumstances. D6/W1 was cross examined at length by Ld. Counsel for plaintiff on various aspects. During his cross examination, Balwant Singh stated that Will in question i.e. Ex.D6W1/2 dated 28.06.1980 was not executed in his presence nor it bears his signatures(cross examination dated 12.01.2015).
Section 63 of The Indian Succession Act, 1925 deals with execution of unprivileged Wills. Section 63 lays down following rules regarding execution of unprivileged Wills:-
(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 affect 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.
Perusal of Ex.D6W1/2 i.e. Certified Copy of Will dated 28.06.1980 shows that it bears signatures of D6W2 i.e. Daljeet Singh and Prakash Kaur Vs. Balraj Sood Page No. 32/44 D6W3 i.e. Surender Singh as attesting witness.
D6W2 i.e. Daljeet Singh as well as D6W3 i.e. Surender Singh also filed their evidence by way of affidavit. Daljeet Singh as well as Surender Singh were also cross examined by Ld. Counsel for Balraj Sood i.e. Defendant herein.
It is reiterated that plaintiff i.e. Prakash Kaur never appeared in witness box to reiterate/prove her case/claim. Ld. Counsel for plaintiff argued that instead of plaintiff, her husband i.e. Balwant Singh appeared in Court as D6W1 and proved the case of plaintiff as he was having personal knowledge about all the facts and circumstances. Ld. Counsel for plaintiff has relied upon Man Kaur's case (Supra), and argued that the case of plaintiff is not liable to be dismissed/rejected merely on the ground that plaintiff failed to appear in Court to testify in support of her case.
On the other hand, Ld. Counsel for defendant i.e. Balraj Sood relied upon Vidhyadhar's Case(Supra), and argued that since plaintiff has failed to appear in witness box an adverse inference would arise against her.
In Man Kaur's Case(Supra), Hon'ble Supreme Court summarized the legal position as to who should give evidence in regard to matters involving personal knowledge.
In the present case, claim of plaintiff is based upon a Will dated 28.06.1980 i.e. Ex.D6W1/2 allegedly executed by Late Sh. Kundan Lal Sood in favour of plaintiff. D6W1 i.e. Balwant Singh in his evidence by way of affidavit i.e. Ex.D6W1/A has relied upon the same. Attorney in favour of D6W1 executed by plaintiff is Ex.D6W1/1. Balwant Singh has Prakash Kaur Vs. Balraj Sood Page No. 33/44 claimed that he is having personal knowledge of all the facts and circumstances of the present case. However, perusal of cross examination of Balwant Singh shows that he failed to give answers to some of the most material questions put to him by Ld. Counsel for Balraj Sood. Perusal of his cross examination further shows that he had given some contradictory answers also and the testimony of Balwant Singh is shaky and it fails to inspire confidence. Balwant Singh in his cross examination dated 12.01.2015 stated that "I was not present on the date when the Will dated 28.06.1980 was executed.". Balwant Singh further stated that the Will in question was handed over to his wife by executant but he failed to tell the date, month or year on which it was so handed over. In his cross examination dated 05.09.2016, Balwant Singh stated that Sh. Kundan Lal Sood was permanent resident of Delhi. On the other hand in his cross examination dated 26.09.2017, Balwant Singh stated that he do not know if Kundan Lal Sood was a permanent resident of Bombay/Mumbai. D6W1 i.e. Balwant Singh further stated in his cross examination dated 05.09.2016 that he and his wife had not attended last rites of Kundan Lal as well as his wife. Balwant Singh in his cross examination dated 05.09.2016 further stated that he cannot say when Sh. Kundan Lal had adopted his wife as his "Dharam Ki Behan". Balwant Singh even failed to tell the approximate time period of the same. However, in his cross examination dated 26.09.2017, Balwant Singh stated that his wife was adopted as Dharam Ki Behan by Sh. Kundal Lal Sood more than 20 years ago and she was adopted as Dharam Ki Behan 2/3 years prior to death of Sh. Kundan Lal Sood. It is pertinent to mention that Will in question is dated 28.06.1980 and Sh. Kundan Lal Prakash Kaur Vs. Balraj Sood Page No. 34/44 Sood had expired on 18.11.1985. If Sh. Kundan Lal Sood had adopted wife of Balwant Singh i.e. Plaintiff as his Dharam Ki Behan 2-3 years prior to his death then how said relation i.e. Dharam Ki Behan is mentioned in a Will which was allegedly executed five years before death of Kundan Lal Sood, as Will was allegedly executed on 28.06.1980. Balwant Singh in his cross examination dated 05.09.2016 stated that "it is incorrect to suggest that Sh. Daljeet Singh and Surender Singh were my employees at the taxi stand/petrol pump". However, in his cross examination dated 26.09.2017, Balwant Singh stated that "It is correct that the other ostensible witness Sh. Surender Singh was my employee".
A careful perusal and appreciation of testimony of Balwant Singh i.e. D6W1 clearly shows that though he claimed that he was having personal knowledge of all the facts and circumstances but he failed to give answers to very relevant and material questions. In addition to it, Balwant Singh gave contradictory answers to the questions put to him during cross examination and such contradictions/in consistencies have made his testimony doubtful. It is also pertinent to mention that Balwant Singh made some material improvements in his testimony vis-a-vis the plaint by incorporating some facts which are beyond pleadings. It is pertinent to mention that there is no mention of term "Dharam Ki Behan"
in the plaint but the same has been incorporated by Balwant Singh in his evidence by way of affidavit.
Ld. Counsel for Prakash Kaur i.e. Plaintiff argued that Daljeet Singh and Surender Singh i.e. attesting witnesses have duly proved the Will in question i.e. Ex.D6W1/2 and there is no reason to disbelieve the Prakash Kaur Vs. Balraj Sood Page No. 35/44 same. Ld. Counsel further argued that natural legal heirs of Late Kundan Lal Sood had also admitted said Will and had even given NOC to L&DO at the time of mutation of suit property in favour of Prakash Kaur. Ld. Counsel further argued that copy of NOC issued by Legal Heirs of Kundan Lal Sood was obtained by Prakash Kaur under RTI Act and the same has been placed on record and this Court can take judicial notice of the same being public documents.
D6W2 and D6W3 i.e. Daljeet Singh and Surender Singh have also filed their evidence by way of affidavit i.e. Ex.D6W2/1 and Ex.D6W3/1. Perusal of Ex.D6W2/1 and D6W3/1 shows that the same are almost identical. Daljeet Singh as well as Surender Singh in their evidence by way of affidavit have stated that on 28.06.1980 Sh. Kundan Lal Sood resident of 19, Shivaji Park, Road No.-2, Bombay had executed a Will dated 28.06.2016 at 832, Peshwa Road, Sector-D, New Delhi in respect of his 2/3rd share in property bearing no.-45, Babar Road, New Delhi. They have further stated that by virtue of said Will Sh. Kundan Lal had bequeathed his perpetual leasehold rights in favour of Smt Prakash Kaur i.e. his Dharam Ki Behan. Perusal of evidence by way of affidavit of Daljeet Singh as well as Surender Singh clearly shows that in their evidence by way of affidavit identical mistakes were committed and it clearly shows that the same were prepared by one of the same person. In order to decide whether Daljeet Singh and Surender Singh had in fact witnessed execution of Will in question by Sh. Kundan Lal Sood, reference to their cross examination is essential.
D6W2 i.e. Daljeet Singh in his cross examination stated that he met Kundan Lal for first time just a few days prior to the date on which Prakash Kaur Vs. Balraj Sood Page No. 36/44 the Will in question was executed by him. Daljeet Singh stated that he can identify the photographs of Sh. Kundan Lal Sood. Eight photographs were shown to Daljeet Singh but he failed to identify Kundan Lal Sood in said photographs. Daljeet Singh in his cross examination further stated that he do not remember where Kundan Lal was residing. He again stated that Kundan Lal was residing at Peshwa Road, Delhi. Daljeet Singh further stated that in 1980, he was working as taxi driver for Sulakhan Singh. In his cross examination dated 06.06.2016, Daljeet Singh admitted that he was a tyre puncture repairer at the petrol pump operated by Balwant Singh i.e. after 1990.
D6W3 i.e. Surender Singh in his cross examination dated 06.06.2016 stated that he was working as a Taxi Driver in 1980 and at that point of time, Sh. Kundan Lal was using his taxi for traveling in Delhi. According to Surender Singh, Sh. Kundan Lal had used his taxi 5- 6 times. Sh. Surender Singh also stated that he can identify the photographs of Sh. Kundan Lal Sood. Eight photographs were shown to him but even he failed to identify Sh. Kundan Lal Sood in any of said photographs. Ld. Counsel for Balraj Sood suggested to Surender Singh that his examination in chief was not drafted/typed on his instructions and the same has been handed over to him for affixing his signatures thereon by Ld. Counsel for Prakash Kaur. To this suggestion, witness answered "I do not know". Sh. Surender Singh in his cross examination further stated that he do not know and he do not remember the contents of the Will. Surender Singh further stated that he knew Balwant Singh Prakash Kaur Vs. Balraj Sood Page No. 37/44 since 1969. However, he denied the suggestion that he was working with Balwant Singh. Surender Singh also denied the suggestion that he was having business association with Balwant Singh. Ld. Counsel for Balraj Sood had asked Surender Singh as to who are the owners of property bearing no.45, Babar Road, New Delhi. To this question Surender Singh answered that "I do not know however, I am aware that Smt Prakash Kaur wife of Sh. Balwant Singh had purchased the same".
Perusal of testimony of D6W2 as well as D6W3 in totality also shows that the same are shaky and unreliable. First of all no reason has come on record as to why Sh. Kundan Lal Sood choose to get his Will attested by one Taxi Driver and one Tyre Puncture Repairer instead of his relatives with whom he was allegedly residing at House No.-832, Peshwa Road, Sector D, New Delhi(as stated by Daljeet Singh and Surender Singh). Daljeet Singh in his cross examination has stated that he met Sh. Kundan Lal Sood for the first time a few days prior to the date on which the Will in question was executed by him. Surender Singh has also stated that Sh. Kundan Lal Sood had travelled in his taxi only five to six times. Execution of a Will and its attestation are a very serious affair more particularly in view of the fact that by virtue of said Will 2/3rd share in a property measuring 287.5 sq yds and that to in Bengali Market i.e. heart of Delhi is proposed to be bequeathed. It is also pertinent to mention that Balwant Singh i.e. D6W1 in his cross examination dated 26.09.2017 had stated that Sh. Surender Singh was his employee. However, Sh. Surender Singh in his cross examination dated 06.06.2016 stated that he was not working with Balwant Singh nor he was having any business association with Balwant Singh. With regard to Prakash Kaur Vs. Balraj Sood Page No. 38/44 Daljeet Singh, Sh. Balwant Singh in his cross examination dated 26.09.2017 stated that Daljeet Singh was not his employee. However, Daljeet Singh in his cross examination dated 06.06.2016 stated that he was working as tyre puncture repairer at the petrol pump operated by Sh. Balwant Singh. Thus the testimony of the witnesses produced by plaintiff i.e. Prakash Kaur in support of her case with respect to Will in question is contradictory. It is reiterated that Daljeet Singh as well as Surender Singh even failed to identify Sh. Kundan Lal Sood in photographs shown to them by Ld. Counsel for Balraj Sood. It is also pertinent to mention that Surender Singh in his evidence by way of affidavit has stated that Sh. Kundan Lal had bequeathed his leasehold rights to the extent of 2/3 rd share in said property in favour of Smt Prakash Kaur i.e. his Dharam Ki Behan by virtue of Will dated 28.06.1980. On the other hand, Surender Singh has stated in his cross examination that Smt Prakash Kaur had purchased the said property.
In Sudershan Lal Maini's Case(Supra), it has been held that the legal burden to prove due execution always lies upon the person propounding a Will. The propounder must satisfy the judicial conscience of the Court that the instrument so propounded is last Will of a free and capable testator. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by the law. The contestant opposing the Will may bring material on record meeting such prima facie in which event the onus would shift back on the propounder to satisfy the Court affirmatively that the testator did know well the Prakash Kaur Vs. Balraj Sood Page No. 39/44 contents of the Will and in sound disposing capacity executed the same. It is further held that the nature of proof required to proof a Will is not different from those required to prove other documents except the requirement of attestation prescribed under Section 63 of The Indian Succession Act.
In Sudershan Lal Maini's Case(Supra), it is further held that in a case surrounded by suspicious circumstances the initial onus is very heavy and unless the same is satisfactorily discharged the court would be reluctant to treat the document as the last Will of the testator. Suspicious circumstances like the following may be found in the execution of a Will: (1) the signature of the testator may be very shaky and doubtful or not appear to be his usual signature; (2) the condition of testator's mind may be very feeble and debilitated at the relevant time; (3) the disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion or absence of adequate provision for the natural heirs without any reason; (4) The disposition may not appear to be the result of the testator's freewill and mind; (5) the propounder takes a prominent part in the execution of the Will; (6) the testator was in the habit of signing the blank papers; (7) delay in propounding the Will and (8) incorrect recital in the Will. The circumstances narrated hereinabove are not exhaustive.
In the present case also the disposition is unnatural, improbable and unfair as all natural heirs have been excluded without any reason. By virtue of Will in question, property in question has been allegedly given Prakash Kaur Vs. Balraj Sood Page No. 40/44 to a Dharam Ki Behan. The witnesses and even the husband of Dharam Ki Behan have failed to specify and elaborate as to under what condition and for what reasons plaintiff was made a Dharam Ki Behan by Sh. Kundan Lal Sood. Even date, month or year of the same have not been specified or proved. The choice of attesting witnesses is also very interesting and it in itself is a grave suspicion raising circumstance.
Much reliance has been placed by Counsel for plaintiff on the NOCs allegedly issued by legal heirs of Late Sh. Kundan Lal Sood in favour of plaintiff. However, perusal of record shows that copy thereof obtained by plaintiff under Right to Information Act has been filed on record and that too on 08.01.2016 i.e. at the fag end of the case. The said documents were neither filed earlier nor proved during the course of the trial. No witness has been examined or produced by plaintiff to prove said documents as per law. Even no explanation has come from plaintiff as to why the said documents were not filed earlier. Since the said documents have not been proved as per law by plaintiff no reliance can be placed upon the same. Even otherwise perusal of said affidavits/NOC shows that no date etc of the Will in question has been mentioned in said affidavits/NOCs. In the absence of same, it cannot be inferred that the LRs of deceased Kundan Lal Sood had executed said NOCs/affidavits qua Will in question.
In nutshell, plaintiff has failed to prove her case due to following reasons:-
(1) Plaintiff herself never appeared in Court to depose/testify in support of her case and due to this reason an adverse inference would arise against her.Prakash Kaur Vs. Balraj Sood Page No. 41/44
(2)D6W1 i.e. Balwant Singh (husband of plaintiff) claimed that he is having personal knowledge about all the facts of the present case.
However, as already discussed he failed to tell anything even about the most material aspects of the case. He even failed to tell as to when and how his wife was made as Dharam Ki Behan by Late Sh. Kundan Lal Sood. Other contradictions/inconsistencies in his testimony have already been discussed in detail as above.
(3)The attesting witnesses i.e. Daljeet Singh and Surender Singh have also failed to prove execution as well as attestation of the Will in question.
(4)The execution as well as attestation of the Will in question is surrounded by suspicious circumstances as property in question has been given to Dharam Ki Behan by excluding natural legal heirs and that too without specifying any reason for the same. As already discussed choice of attesting witnesses i.e. one taxi driver and one tyre puncture repairer is also very strange and fails to inspite confidence.
In view of aforesaid facts, circumstances as well as discussion made hereinabove, I am of the considered view that plaintiff has failed to prove the Will dated 28.06.1980 in her favour. Since plaintiff has failed to prove the Will in question plaintiff has not acquired any legal/vested right in respect of suit property or any part thereof.
Hence, issue no.-2 as well as 7(a) are decided against Prakash kaur and in favour of Balraj Sood.
Prakash Kaur Vs. Balraj Sood Page No. 42/444. ISSUE NO.-(4) :- Whether the mutation of the property effected by L & DO in favour of the plaintiff is not brought about by fraud on the defendant as mentioned in paragraph 4 of the preliminary objections raised by defendant?
Defendant i.e. Balraj Sood in preliminary objection no.-4 of his written statement has stated that Prakash Kaur has claimed relief in the suit on the basis of alleged Will dated 28.06.1980. The alleged Will is brought about by perpetrating fraud upon the defendant and is a forged and fabricated document.
Onus of proving the fact that Will dated 28.06.1980 is a forged and fabricated document is upon the defendant i.e. Balraj Sood. However, Balraj Sood and the witnesses examined by him in support of his case have miserably failed to show that the said Will is forged and fabricated.
The findings of this Court to the effect that Prakash Kaur has failed to prove the Will in question as per law ipso facto does not mean that Will in question is forged and fabricated document. To prove that the Will in question is a forged and fabricated document, defendant was under an obligation to lead evidence in this regard. However, no such evidence has been led by defendant.
Hence, I am of the considered view that defendant has failed to prove that Will dated 28.06.1980 is a forged and fabricated document.
Prakash Kaur Vs. Balraj Sood Page No. 43/44Hence, issue no.-4 is decided in favour of plaintiff i.e. Prakash Kaur and against defendant.
5. ISSUE NO.:-(5) RELIEF In view of aforesaid facts, circumstances as well as my findings on the aforesaid issues, plaintiff is not entitled to any relief.
The suit filed by plaintiff is hereby dismissed.
No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to record room after completion of necessary formalities. Digitally signed by DEEPAK DEEPAK DABAS DABAS Date:
2019.12.11 16:53:59 +0530 Announced in the open Court (DEEPAK DABAS) Dated : 07th December 2019 ADJ-05, WEST DISTRICT TIS HAZARI COURT, DELHI Prakash Kaur Vs. Balraj Sood Page No. 44/44