Delhi District Court
Ms. Honey Kapoor vs Smt. Geeta Kapoor on 29 October, 2020
Honey Kapoor V. Geeta Kapoor & Ors.
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
SUIT NO.: 333/2015
UNIQUE CASE ID NO.: 615903/2016
IN THE MATTER OF :
Ms. Honey Kapoor
D/o Late Satish Kapoor
R/o B454, Pandav Nagar,
New Delhi110008. ....Plaintiff
VERSUS
1. Smt. Geeta Kapoor
Widow of Mukesh Kapoor
2. Master Deepanshu Kapoor
Son of Late Mukesh Kapoor
(initially he was defending through
his natural guardian/ mother Geeta
Kapoor, however, during pendency
of the suit, he had attained the majority)
3. Master Sumran Kapoor
Son of Late Mukesh Kapoor
(minor through his natural guardian/
mother Geeta Kapoor)
All R/o D160, First Floor,
West Patel Nagar, New Delhi110008. ....Defendants
SUIT FOR POSSESSION MESNE PROFIT AND INJUNCTION
Date of institution of the Suit : 06/06/2012
Date on which Judgment was reserved : 08/10/2020
Date of Judgment : 29/10/2020
:: J U D G M E N T ::
By way of present judgment, this court shall adjudicate upon
suit for possession, mesne profit and injunction filed by the plaintiff
against the defendants.
Suit No.333/2015 Page 1 of 45
Honey Kapoor V. Geeta Kapoor & Ors.
CASE OF THE PLAINTIFFS AS PER PLAINT
Succinctly, the necessary facts for just adjudication of the
present suit, as stated in the plaint, are as under:
(1) The plaintiff is the granddaughter of deceased Soma Rani
Kapoor, who has since died on 24.02.2012. The defendants no. 2
& 3 are the minors and they are represented through their
mother defendant No.1, who is natural guardian, who has no
adverse interest to their rights. The father of defendants no. 2 &
3 has already died. During the pendency of the suit defendant
No.2 became major.
(2) Late husband of Smt. Soma Rani Kapoor acquired property no.
D160, West Patel Nagar, New Delhi through a Deed dated
05.01.1981, duly registered vide document no. 25, entered in
Addl. Book No.1, Volume No. 3927, on pages 62 to 66 with the
Office of SubRegistrar no.1, Delhi. During the lifetime of Sh.
Ram Lal Kapoor, husband of Late Soma Rani Kapoor, duly
executed a Will, which was registered as document no. 4A, in
Addl. Book No.111, Vol. No. 36, entered at pages no. 133134 on
04.01.1999 with the SubRegistrar, Civil Lines, Delhi
bequeathing property no. D160, West Patel Nagar, New Delhi in
favour of his wife Smt. Soma Rani.
(3) The husband of Late Soma Rani died on 14.09.2000 and after
his death, property no. D160, West Patel Nagar, New Delhi was
transferred and mutated in the name of Late Soma Rani. She,
thus, became its full owner for all intents and purposes. Late
Soma Rani Kapoor, during her lifetime, wished and desired to
give and transfer the first floor of property bearing no. D160,
West Patel Nagar, New Delhi (hereinafter referred to as the "suit
property") to the plaintiff and hence, Smt. Soma Rani Kapoor
executed a Will dated 05.01.2011 in favour of the plaintiff, which
was got registered with the SubRegistrar, Janakpuri, New Delhi
as document no. 115, entered in Book No.3, Vol. No. 7911, at
pages 3940 on 05.01.2011 itself.
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Honey Kapoor V. Geeta Kapoor & Ors.
(4) In order to further secure the rights of the plaintiff, Smt. Soma
Rani Kapoor also executed more documents so that in future,
the title ad inheritance of the plaintiff be not challenged in any
respect. The documents so executed comprised of Special Power
of Attorney dated 07.01.2011, Gift Deed also on 07.01.2011
alongwith Indemnity Bond and a General Power of Attorney,
dated 05.01.2011, duly registered as document no. 597, in Book
No.4, Volume No.12,911, on pages 47 to 50, on 25.01.2011, in
the office of SubRegistrar, New Delhi. Apart from these
documents, possession was also delivered to the plaintiff.
Further, due to understandings, the plaintiff asked his
grandmother to remain in the property so transferred to the
plaintiff. At times, the plaintiff also resided with her
grandmother in order to look after her at her advance age. On
this very day i.e. 05.01.2011, Late Soma Rani Kapoor executed
documents for transferring the Second Floor of property no. D
160, West Patel Nagar, New Delhi in favour of her other son Sh.
Kamal Kapoor, which were also got registered.
(5) During the lifetime of Smt. Soma Rani, the plaintiff, as per family
needs, agreed to sell the first floor of property no. D160, West
Patel Nagar, New Delhi to Shri Gurdeepak Chawla and
subsequently also, executed an Agreement of Sale containing the
terms & conditions. The Sale Deeds were not executed, so, a suit
for Specific Performance was filed by Shri Gurdeepak Chawla. In
the meantime, Smt. Soma Rani expired on 24.02.2012. The said
case was referred and settled in Mediation and it was agreed by
Sh. Gurdeepak Chawla to withdraw his suit. After the death of
Smt. Som Rani Kapoor, the defendants have illegally and
unauthorizedly occupied the first floor of the property bearing
no. D360, West Patel Nagar, New Delhi. In fact, during the
lifetime of Smt. Soma Rani Kapoor, this portion of the property
was in control and management of the plaintiff only.
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Honey Kapoor V. Geeta Kapoor & Ors.
(6) On 27.02.2012, when the plaintiff visited the suit property in
order to get the premises cleaned and also put everything in
order after the demise of Smt. Soma Rani, found that the
defendants were there. When the plaintiff enquired from the
defendants about their presence there, they simply informed
that the defendants were just keeping every belongings of
plaintiff's grandmother in order. Again on 08.03.2012, the
plaintiff visited the suit property and found the defendants in
occupation of this premises. The defendants were using the
kitchen also. When the plaintiff protested, the defendants
promised to vacate the same in a week and informed that they
are arranging some other place nearby the suit property. Now,
on 02.06.2012, to the utter surprise of the plaintiff, the
defendants, who have no right to remain in this premises, have
refused to vacate the suit property. Thereafter, the defendants
started threatening the plaintiff to create third party interest in
the suit premises. The defendants have not vacated the suit
premises, so, they are liable to pay Rs.20,000/ per month as
mesne profit/ damages being the prevalent rate w.e.f. the date of
filing of the suit till the date of handingover the actual
possession.
CASE OF THE DEFENDANTS AS PER WRITTEN STATEMENT
Summons for settlement of issues were issued to the defendants
and the defendants have filed their joint written statement in the
present case. Succinctly, the case of the defendants is as under:
(1) The possession of Defendants no. 1 & 2 is protected as per
Section 53 A of the Transfer of Property Act. The suit has not
been valued properly for the purposes of court fees and
jurisdiction.
(2) On merits, the contents of the plaint have been denied. It is
submitted that the alleged Will dated 05.01.2011 shown to have
been executed and registered by Smt. Soma Rani Kapoor is not
legal and valid and further, was not executed by Smt. Soma Rani
voluntarily and with her sound disposing mind and health and
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Honey Kapoor V. Geeta Kapoor & Ors.
further, is an outcome of undue influence and
misrepresentations and plaintiff cannot rely on the same.
(3) The documents executed on 07.01.2011 have been fabricated
and were not executed by Smt. Soma Rani in her sound state of
health and mind and are the outcome of fraud and
misrepresentations and plaintiff cannot rely on the same. These
documents are not legal and valid and do not confer any right on
the plaintiff and nor the plaintiff can rely on the same for any
purpose.
(4) The plaintiff has always been residing in property no. B454,
Pandav Nagar, New Delhi110008 and not in the suit property.
The plaintiff never looked after Smt. Soma Rani, who was always
looked after by defendant no.1 and Smt. Soma Rani was
absolutely pleased with the services so rendered by defendant
no.1 and her husband. Smt. Soma Rani was also very
affectionate qua defendant no.1, her husband and her children
and was also very much pleased with the overall attitude of
defendant no.1 and her family members and had always liked to
live with defendant no.1.
(5) The plaintiff had no right to sell the first floor of the suit property
or any part thereof to anyone and it is due to collusion and
conspiracy between the plaintiff and Gurdeepak Chawla that
arrangement to sell is being shown and then due to collusion,
the suit for specific performance was filed and the same was
referred and settled in Mediation. The plaintiff was not
competent to sell the suit property during lifetime of Smt. Soma
Rani as the same was not belonging to her and further, as on
05.01.2011, Smt. Soma Rani was alive and plaintiff had no right
to agree to sell suit property. Sh. Gurdeepak Chawla is none else
but the same person who is witness to the documents such as
family GPA, Deed of Will dated 05.01.2011 and agreement to gift
and SPA dated 07.01.2011, which shows that both were in
league with each other and it was because of the conspiracy
between them that the suit property was shown as agreed to be
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Honey Kapoor V. Geeta Kapoor & Ors.
sold by plaintiff and agreed to be purchased by Sh. Gurdeepak
Chawla, which was a clear case of manipulation that suit for
specific performance was filed and later on, the same was
withdrawn by Sh. Gurdeepak Chawla after the receipt of
Rs.7,80,000/ from the plaintiff and taking the money by Sh.
Gurdeepak Chawla is for paper transaction only.
(6) At no point of time, the plaintiff was having any control and
authority over the suit property, which was always in the use
and occupation of the defendants, wherein, children of
defendant no.1 were born, defendant no.1 was got married,
defendant no.1 and her family members have ration card
showing the address of the suit property, election ICard of
defendant no.1 etc. are of the suit property, house tax of the suit
property has been paid by defendant no.1, School Certificate and
Report Card of children of defendant no.1 also reveal the address
of suit property and even Aadhar Card of defendant no.1 is of
the suit property besides number of other documents showing
that defendant no.1 and her family have been residing in the
suit property since long.
(7) The plaintiff has no right, title and interest in the suit property
and hence, has no locus standi to file the present suit. The
defendants no. 1 & 2 are owners in possession of the suit
property having purchased the same from Smt. Soma Rani on
the basis of registered General Power of Attorney, registered
Agreement to Sell, two Special Power of Attorney Four Affidavits
Receipt, Possession Slip, Will and Indemnity Bond, all dated
09.09.2011 and possession of the same was also handedover to
the defendants, although, the defendants were already
occupying the same and in view of the above, the alleged
documents so set up by the plaintiff carry no value and have lost
their legal value and worth for all purposes and the defendants
being owners in possession of the suit property, the plaintiff
cannot maintain the present suit. It has been prayed by the
defendants to dismiss the suit of the plaintiff with cost.
Suit No.333/2015 Page 6 of 45
Honey Kapoor V. Geeta Kapoor & Ors.
REPLICATION AND ISSUES
The plaintiff has filed the replication controverting the
allegations/ contentions in the written statement of the defendants
and contents of the plaint have been reiterated and reaffirmed.
From the pleadings of the parties, following issues were framed
vide order dated 14/05/2013:
ISSUES
(1) Whether the plaintiff is guilty of suppressing of material
facts? If so, its effect? OPD.
(2) Whether the plaint is liable to be rejected for want of
cause of action? OPD.
(3) Whether possession of defendants is protected by Section
53A of Transfer of Property Act? OPD.
(4) Whether the suit is bad for the purpose of court fees and
jurisdiction? OPD.
(5) Whether this court has no pecuniary jurisdiction to
entertain and try this suit? OPD.
(6) Whether the plaintiff is entitled for decree of possession in
respect of the suit property? OPP.
(7) Whether the plaintiff is entitled for mesne profits/
damages? If so, at what rate and which period? OPP.
(8) Relief.
From the pleadings of the parties, following issues were
again framed vide order dated 12/02/2014:
ISSUES
(1) Whether the plaint is liable to be rejected for want of cause
of action? OPP.
(2) Whether the suit of the plaintiff is not properly valued for the
purpose of Court fees and jurisdiction? OPD.
(3) Whether this court has no pecuniary jurisdiction to entertain
and try this suit? OPD.
(4) Whether the plaintiff is entitled for decree of recovery of
possession of the suit property? OPP.
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Honey Kapoor V. Geeta Kapoor & Ors.
(5) Whether the plaintiff is entitled for mesne profit/ damages?
If so, at what rate and for what period? OPP.
(6) Whether the plaintiff is entitled for permanent injunction as
prayed? OPP.
(7) Relief.
The predecessor of this Court has nowhere commented about
issues framed on 14.05.2013 and specifically Issue No.3 i.e.
whether possession of defendants is protected by Section 53A of
Transfer of Property Act?
Both the parties during the arguments have admitted that the
said Issue is also required to be considered and adjudicated as the
defendant has taken specific plea. The other issues are more or less
covered under the issues framed as on 12.02.2014. The issue no.3
which was framed on 14.05.2013 is now treated as Issue No.6A and
to be considered alongwith other issues which were framed on
12.02.2014.
EVIDENCE OF THE PLAINTIFF AND DEFENDANTS AND
DOCUMENTS RELIED UPON BY THEM
The plaintiff, in order to prove her case, led plaintiff's evidence
filed her evidence by way of affidavit Ex.PW1/A, wherein she
reiterated and reaffirmed the contents of the plaint. PW1 was cross
examined by counsel for the defendants. PW1 in her testimony has
relied upon the documents:
(i) Copies of documents i.e. Will dated 05.01.2011, Special Power of
Attorney, Gift Deed alongwith Indemnity Bond, dated
07.01.2011 and General Power of Attorney dated 05.01.2011 are
mentioned in the affidavit of evidence as Ex.PW1/1 to Ex.PW1/5
but in the examinationinchief recorded in the Court, they were
marked as MarkA to MarkD.
(ii) Copies of documents i.e. Agreement of Sale containing terms and
conditions, Certified copy of plaint and Mediation Order are
mentioned in the affidavit of evidence as Ex.PW1/7 to
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Honey Kapoor V. Geeta Kapoor & Ors.
Ex.PW1/11 but in the examinationinchief recorded in the
Court, they were marked as MarkE to MarkI.
(iii) Medical record as Ex.PW1/6.
(iv) Certificate of the Bank as Ex.PW1/12
The plaintiff also got examined Sh. Gurdeepak Chawla as
PW5, who filed his evidence by way of affidavit Ex.PW5/A. PW5
relied upon the documents Ex.PW4/1, Ex.PW4/4 and Gift Deed
Ex.PW5/1, SPA executed and thumb marked by Soma Rani and
Honey is Ex.PW5/2 and the Agreement containing terms and
conditions, which bears signatures of Gurdeepak Chawla at pointA,
that of Honey Kapoor at pointY and that of witnesses at pointZ is
Ex.PW5/3.
During crossexamination of PW5, the copy of PAN Card and
Visiting Card were exhibited as Ex.PW5/D1 (OSR) and Ex.PW5/D2
(OSR).
The plaintiff also summoned and examined the following
witnesses:
(a) Sh. Sanjeet Kumar, JJA, Record Room (S), Tis Hazari
Courts, Delhi as PW2, who brought the summoned record i.e.
court file bearing no. CS NO. 36/2012, titled as Gurdeepak
Chawla Vs. Soma Rani Kapoor, date of decision01.06.2012,
Ghoswara No. 137/D and certified copy of the plaint in the
aforementioned suit is Ex.PW2/1 (OSR) and certified copy of
Mediation Order is Ex.PW2/2 (OSR).
(b) Sh. K.K. Sachdeva, Manager, PNB, West Patel Nagar, New
Delhi as PW3, who brought the summoned record i.e.
Statement of Account no. 0604000101132217 of Smt. Honey
Kapoor for the period w.e.f. 01.03.2011 to 30.09.2011 and the
same is Ex.PW3/1 alongwith Certificate under Section 65B of
the Indian Evidence and the same is Ex.PW3/2.
(c)Sh. Gaurav Kumar, LDC from the office of esubregistrar, Basai
Darapur, Delhi as PW4, who brought the summoned record i.e.
(1) General Power of Attorney registered on 25.01.2011,
registration no. 597 in book no.4 of volume no. 12911 of pages
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Honey Kapoor V. Geeta Kapoor & Ors.
number 47 to 50, executed by Smt. Soma Rani Kapoor in favour
of Ms. Honey Kapoor and the copy of the same is Ex.PW4/1
(OSR); (2) General Power of Attorney registered on 05.01.2011,
registration no. 48 in book no.4 of volume no. 12899 of pages
no. 179 to 183, which is executed by Smt. Soma Rani Kapoor in
favour of Sh. Kamal Kapoor and the cop of the same is Ex.PW
4/2 (OSR); (3) Deed of Will registered on 05.01.2011, registration
no. 112 in book no. 3 of volume no. 7911 of pages no. 33 to 34,
executed by Smt. Soma Rani Kapoor in favour of Sh. Kamal
Kapoor and the copy of the same is Ex.PW4/3 (OSR) and (4)
Deed of Will registered on 05.01.2011, registration no. 115 in
book no.3 of volume no. 7911 of pages no. 39 to 40, executed by
Smt. Soma Rani Kapoor in favour of Ms. Honey Kapoor and copy
of the same is Ex.PW4/4 (OSR).
On the other hand, the defendants have examined defendant
no.1 Ms. Geeta Kapoor, who filed her evidence by way of affidavit
Ex.DW1/A, wherein she reiterated and reaffirmed the contents of the
Written Statement. DW1 in her testimony has relied upon the
documents:
1. Registered Agreement to Sale is Ex.DW1/1.
2. Two Special Power of Attorneys are Ex.DW1/2 and Ex.DW1/3.
3. Affidavits are Ex.DW1/4 to Ex.DW1/7.
4. Receipt is Ex.DW1/8.
5. Possession Slip is Ex.DW1/9.
6. Deed of Will is Ex.DW1/10.
7. Indemnity Bond dated 09.09.2011 is Ex.DW1/11.
8. Aadhar Card (OSR) is Ex.DW1/13.
9. Copy of Receipt dated 04.06.2011 of Gas Agency is MarkA.
10. Copy of Passbook (OSR) is Ex.DW1/15.
11. Birth Certificate of Simran is Ex.DW1/16 (OSR).
12. House Tax Receipt is Ex.DW1/17 (OSR).
13. Copy of Election ICard of Soma Rani is MarkB.
14. Copy of Election Icard of defendant no.1 is MarkC.
15. Copy of PAN number of defendant no.1 is MarkD.
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16. Acknowledgement Receipt is Ex.DW1/21 (OSR).
17. Copy of Self Property Tax Return is MarkE.
18. Copy of School Leaving Certificate of Deepanshu is MarkF.
19. Death Certificate of Mukesh Kapoor is Ex.DW1/24 (OSR).
20. Election Card of Mukesh Kapoor is Ex.DW1/25 (OSR).
21. Copy of Property Tax Return is MarkG.
22. Copy of Progress Report of Deepanshu is MarkH.
23. Mutation application dated 28.11.2011 is Ex.DW1/28.
24. Copy of ICard of DAV School of Deepanshu is MarkI.
25. Original receipt dated 02.09.2011 is Ex.DW1/30 and
26. Original receipt dated 05.09.2011 is Ex.DW1/31.
(Note: In examination in chief it is recorded that Exhibit PW
1/12 i.e. Registered GPA is not on record)
During crossexamination of DW1, photocopy of the entries
made in the pass book are Ex.DW1/X1 (OSR) and Property Tax
Return is Ex.DW1/X2 (MarkG in the examinationinchief).
The defendants also got examined the Sh. Chanan Lal and Sh.
Vinay Kumar as DW2 and DW3, who filed evidence by way of
affidavit Ex.DW2/A and Ex.DW3/A respectively.
The defendants also summoned and examined the following
witnesses:
(1) Sh. Vivek Yadav, LDC, Office of SubRegistrarII, Basai Darapur,
New Delhi as DW4, who brought on record copy of GPA as
Ex.DW4/1 (office copy seen and returned) and copy of
Agreement to Sell Ex.DW4/2 (office copy seen and returned).
(2) Sh. Dev Dutt, Mechanic C/o Deepak Gas as DW5, who filed on
record the receipt no. 32516 Ex.DW5/1 (OSR) of LPG gas supply
issued by Deepak Gas Agency and
(3) Sh. Chander Bhan, UDC, House Tax Department, Karol Bagh
Zone, NDMC, Delhi, who brought the summoned record in
respect of the entire property no. D160, Double Storey, West
Patel Nagar and copy of the same, which includes PTR Form
(SelfAssessment Property Tax Form), House Tax Receipt &
Scheme Form are Ex.DW6/1 (Colly.) (OSR).
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This Court heard final arguments, as advanced by Ld. Counsels
for the parties through video conferencing. I have perused the
material available on record.
ISSUE WISE FINDINGS
ISSUES NO.2 and 3
(2) Whether the suit of the plaintiff is not properly valued for the
purpose of Court fees and jurisdiction? OPD.
(3) Whether this court has no pecuniary jurisdiction to entertain
and try this suit? OPD.
The aforesaid issues no.2 and 3 are interrelated and
interconnected with each other. Moreover, the discussion on the
aforesaid issues may have overlapping discussion of the pleadings,
arguments and evidence led by the parties. Accordingly, they are
dealt with and decided together.
FINDINGS AND CONCLUSIONS OF THE COURT
The plaintiff has valued the suit property for sum of
Rs.10,00,000/ for the purpose of court fee and jurisdiction.. The
onus to prove the aforesaid issues was upon the defendants. The
defendants have not led any independent evidence to show that what
was the market value of suit property at the time of filing of the suit.
The suit was filed on 06.06.2012. The defendant has also relied upon
registered Agreement to Sell dated 09.09.2011 (Exhibit DW1/1),
wherein the defendants have claimed to purchase the suit property
from Late Smt. Soma Rani Kapoor for consideration of
Rs.10,00,000/. The said document was alleged to be executed just
nine months prior to filing of the suit. There is no other document
which has been placed by the defendant to show that the value of the
suit property was increased from Rs.10,00,000/. The Ld. Counsel for
defendant has argued that even if, for the purpose of Suit for
possession the said value is considered still the plaintiff has not
valued the suit property for the relief of mesne profits and permanent
injunction. The mesne profits have been claimed from the date of filing
of the suit till the date of handing over the actual possession. In case,
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Honey Kapoor V. Geeta Kapoor & Ors.
the Court will pass the relief of mesne profits, then the necessary
direction of payment of Court fee will be passed accordingly.
As far as the relief of possession is concerned, the perusal of the
record reveals that the plaintiff has paid sum of Rs.12,068/ as Court
Fee. The amount of Court fee which was required to be paid on
Rs.10,00,000/ was Rs.12,104/. The suit for the relief of permanent
injunction was required to be valued for the minimum sum of
Rs.130/ and the plaintiff was required to pay a sum of Rs.13/ on the
said relief also. Thus, the plaintiff was required to pay a sum of
Rs.12,117/ at the time of filing of the suit, however, the plaintiff had
paid sum of Rs.12,068/, therefore, there is deficiency of Rs.49/ in
payment of Court fee. In terms of Order 7 Rule 11 CPC, the
opportunity must be given to the plaintiff to make up the deficiency,
therefore, the plaintiff is granted 30 days' time to make up the
deficiency, failing which the suit will be deemed to be rejected on this
ground alone. There is no other infirmity as far as the valuation of suit
for the purpose of Court fee and jurisdiction.
Now coming to issue of pecuniary jurisdiction, this Court has
jurisdiction to entertain and try the suit of the value of more than
Three Lakhs and upto two crores. Even if, the valuation of Rs.130/ is
added to Rs.10,00,000/, still this Court has pecuniary jurisdiction to
decide the present case.
Accordingly, the issue No.2 and 3 are decided in aforesaid terms.
ISSUES NO.6A
6A. Whether possession of defendants is protected by Section 53A of
Transfer of Property Act? OPD
FINDINGS AND CONCLUSIONS OF THE COURT
There is no dispute that in order to claim the protection under
Section 53A of Transfer of Property Act, the defendants were required
to prove Agreement to Sell dated 09/09/2011 (Ex.DW1/1) and
Possession Slip (Ex.DW1/9). The Defendants have also relied upon
two Special Power of Attorneys Ex.DW1/2 and Ex.DW1/3 respectively,
Affidavits Ex.DW1/4 to Ex.DW1/7 respectively, Receipt Ex.DW1/8, ,
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Honey Kapoor V. Geeta Kapoor & Ors.
Deed of Will Ex.DW1/10 and Indemnity Bond dated 09.09.2011
Ex.DW1/11.
There is no dispute between the parties that Late Smt. Soma
Rani Kapoor was an uneducated lady. Furthermore, on the documents
as relied upon by the parties including the defendants, it appears from
alleged signatures of the Late Smt. Soma Rani Kapoor that she was
illiterate lady and she only knows how to sign and that too in Hindi.
The entire documents were in English Language and it is nobody case
that she was literate and even if, she was literate that she had
knowledge about the English Language. The signatures, in the
documents as relied upon by the Plaintiff as well as relied upon by the
defendants, are alleged to be of Late Smt Soma Rani Kapoor. The
formation of the said signatures is totally shaky and formation of each
strokes of alphabets shows the consciousness which has been put on
while signing the documents. It is also not disputed that at the time of
execution of the aforesaid documents Late Smt. Soma Rani Kapoor
was senior citizen and old aged widowed lady. Thus, the onus to prove
the alleged sale and purchase documents between Late Smt. Soma
Rani Kapoor and defendants No.1 and defendant No.2 was heavy and
the defendants was required to prove that Late Smt. Soma Rani
Kapoor had understood the contents of the said documents and
thereafter out of her own free will, wish and volition had executed the
aforesaid documents. Although, the defendants in the written
statement have set up the case that as if, the documents were
executed by Late Smt. Soma Rani Kapoor out love and affection and
day to day service which was rendered by defendant No.1 towards her,
however, the nature of documents which are relied upon by the
defendants reveals that the same are Sale and purchase documents
which are usually made in the transaction of Agreement to Sell. Thus,
the defendants were first of all required to prove that the entire
payment of Rs.10,00,000/ was made to Late Smt. Soma Rani Kapoor
while executing the said documents and in execution thereof, Late
Smt. Soma Rani Kapoor has also handed over the possession to
defendants No.1 and 2. As per the defendants the documents were
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executed on 09.09.2011 and Smt. Soma Rani Kapoor had expired
within a period of 6 months from the said date. At that time the old
aged widowed lady was not expected to keep such a huge amount with
her and more particularly when it is the case of the defendants that
only defendants were residing with the old aged lady. As per the case
of the defendants that they were residing with Smt. Soma Rani Kapoor
therefore it was expected that they ought to prove where the said
money had gone. The old aged woman must have kept the said
amount in some safe custody be that a Locker or in her bank account,
however, the defendants have not brought anything on the record that
where the said huge amount had gone which was according to them
given to Late Smt. Soma Rani Kapoor just six months prior to her
death. The defendants have also not brought any cogent, convincing
and authentic document to show that defendants specifically
defendant No.1, as defendant No.2 was minor at that time, was
possessed the amount of Rs.10,00,000/ at the time of execution of
the documents dated 09.09.2011. The defendant No.1 has also failed
to prove that she had taken gift or borrowed or taken loan from some
outsider including her father. The DW2, the father of defendant No.1
has also not brought any cogent, convincing and authentic
document(s) which could elicit out that he has handed over the
consideration amount to Smt. Soma Rani Kapoor. The father of
defendant No.1 had also not brought anything on the record that he
was possessed with the said amount. The source of possessing the
amount of Rs.10,00,000/ by defendants No.1 and 2 is also a missing
link in the present case. The Ld. Counsel for the Plaintiff has rightly
pointed that the defendants were not able to prove the transfer
payment as neither her bank statement nor her income tax record
proves the amount of Rs.10,00,000/ was paid in cash to Late Smt.
Soma Rani Kapoor for purchase of the suit property. The Ld. Counsel
for the Plaintiff has also rightly pointed out as under:
In page number 4 of the alleged Agreement to Sell Ex. DW
1/1, it is mentioned that the amount of Rs.10,00,000/
has been received previously. The said document is dated
Suit No.333/2015 Page 15 of 45
Honey Kapoor V. Geeta Kapoor & Ors.
09.09.2011. This averment is contrary to the alleged
receipt Exhibit DW1/8 in which it is mentioned that the
payment was made today i.e. 09.09.2011 whereas DW1 in
her cross examination dated 24.11.2016 stated that her
father had given amount to Smt. Soma Rani Kapoor in the
morning of 09.09.2011. She further stated in the cross
examination dated 20.12.2016 that she herself had also
paid amount in cash on 05.09.2011. The DW3 (Attesting
witness) stated that no amount was paid in his presence.
The defendant No.1 and her witnesses failed to justify that
if the payment was made prior to 09092011 then how
can receipt be of 09.09.2011. The witnesses of defendants
have contradicted each other. The documents i.e. alleged
jewelry receipts Ex. DW1/30 and DW1/31 are not proved
in accordance with law. The said documents are only
Estimate and not the bill/invoice/receipt which
established the jewelry was sold by the defendant No.1.
The DW1/30 which is dated 02.09.2011 is having
numbered as 101 whereas DW1/31 is dated 05.09.2011
numbered as 001. The serial number of the bills instead of
increasing is decreased. In the documents Ex.DW1/1 to
DW1/11, the description of the property is mentioned as
"Entire First Floor without roof terrace Floor" whereas it is
admitted by DW1 that over the first floor there is second
and third floor not the terrace floor which shows that the
description of the property is also not correct in the
documents of the defendants. The Will Exhibit DW1/10 is
not having the photograph of the testator. It is admitted by
the witnesses of the defendant that the documents were
prepared under the instructions of defendant No.1 who
had paid all the expenses of the documents. It is also
admitted that beneficiary defendant No.1 was also present
at the time of execution and preparation of the will. The
alleged Will Ex. DW1/1 was not prepared by and under
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Honey Kapoor V. Geeta Kapoor & Ors.
the instructions of the testator and the beneficiary was
present there. In Ex.DW1/10, the father's name and
address of the witnesses have also not mentioned. DW1 in
her cross examination has stated that she, Soma Rani and
two witnesses Arun Kumar and Vinay Kumar were present
at the time of execution of the documents Ex.DW1/1 to
DW1/11. DW2 states in his cross examination that he, his
son and daughter and one another witness Vinay Kumar
were present. DW3 states that defendant No.1, son of
defendant No.1 and other witness Arun Kumar were
present. As per DW1 her father was not present but as per
DW2 and DW3 father of DW1 was present. As per DW1
Soma Rani was present but as per DW2 and DW3 Soma
Rani was not present. DW3 one of the witnesses to
document knows Shri Chaman Lal -father of defendant
No.1 and is residing in same colony where Shri Chaman
Lal resides. The witness does not know Soma Rani and is
known to father of defendant No.1 on whose request he
made himself as witness to the document. It is an admitted
fact that Soma Rani Kapoor is uneducated and witness
had not stated that the documents (which are in English)
were read over and explained to Soma Rani.
In view of the discussions made hereinabove, in my considered
opinion, the defendants have failed to prove the documents Exhibit
DW1/1 to DW1/11 by cogent, convincing and authentic documents
and witnesses. Accordingly, defendants No.1 and 2 cannot claim any
right, title and interest in the suit property by way of said documents.
In view of discussions made hereinabove, Issue No.6A is decided
in favour of the Plaintiff and against the defendants in the aforesaid
terms.
ISSUES NO.1, 4 to 6
(1) Whether the plaint is liable to be rejected for want of cause of
action? OPP.
Suit No.333/2015 Page 17 of 45
Honey Kapoor V. Geeta Kapoor & Ors.
(4) Whether the plaintiff is entitled for decree of recovery of
possession of the suit property? OPP.
(5) Whether the plaintiff is entitled for mesne profit/ damages? If
so, at what rate and for what period? OPP.
(6) Whether the plaintiff is entitled for permanent injunction as
prayed? OPP.
The aforesaid issues no.1 to 4 and 6 are interrelated and
interconnected with each other. Moreover, the discussion on the
aforesaid issues may have overlapping discussion of the pleadings,
arguments and evidence led by the parties. Accordingly, they are dealt
with and decided together.
FINDINGS AND CONCLUSIONS OF THE COURT
As per the case of the Plaintiff herself, the alleged Family General
Power of Attorney dated 05.01.2011 and also the Special Power of
Attorney dated 07.01.2011, was executed by Late Smt. Soma Rani
Kapoor out of love and affection and not for any consideration
amount, therefore the said documents stands terminated and came to
end on the death of Smt. Soma Rani Kapoor. The Gift Deed dated
07.01.2011 alleged to be executed by Late Smt. Soma Rani Kapoor, in
terms of Section 122 and 123 of the Transfer of Property Act, 1882
and also in terms of Section 25 of the Indian Contract Act, 1872, was
required to registered, however, the same is unregistered document.
As per Section 49 of the Registration Act,1908, the said Gift Deed
cannot confer any right in the immovable property and the same also
cannot be read into evidence. As far as Family Deed of Will dated
05.01.2011, the Ld. Counsel for the defendants has raised interalia
following arguments and suspicious circumstances:
1. The witness who came from the office of Sub Registrar only
proved registration of the will and he could not have been
cross examined on execution and attestation of the will.
Even otherwise the said will was not a conscious document
of Smt. Soma Rani as she was not aware about the nature
and contents of the same.
Suit No.333/2015 Page 18 of 45
Honey Kapoor V. Geeta Kapoor & Ors.
2. Smt. Soma Rani was not identified before Sub Registrar by
any independent witness, her physical presence before the
Sub Registrar remained in doubt as her photographs are
not clearly visible on the backside of documents which
were taken for the purpose of registration. Her old photo
graphs having bindi on her forehead was used on the will
and other documents. She was Hindu widowed lady and
was not expected to have Bindi on her forehead. PW5 has
wrongly admitted that her photographs were taken on
05.01.2011 in the office of Sub Registrar. PW5 was not
aware about the other witness of the will as admitted by
him in his cross examination dated 02.08.2016.
3. PW5 was in conspiracy with plaintiff and was shown as
witness on all other documents in favour of plaintiff and
had committed several wrongs and perjury as he had filed
a suit for specific performance against Smt. Soma Rani
through plaintiff as her attorney on 25.02.2012 which
came up for hearing on 27.02.2012 on which date, Smt.
Soma Rani had died on 24.02.2012, hence summons is
sued by court were not to be received by Smt. Soma Rani
but the same was received by plaintiff, plaintiff never in
formed the court about death of Soma Rani but still got the
matter fixed before mediation cell on 31.05.2012 and both
plaintiff and PW5 compromised the matter and suit was
withdrawn on 01.06.2012 and in this manner, both played
fraud with court and with everyone and hence will is illegal
and cannot be relied upon and hence fact of filing suit for
specific performance, compromise before mediation cell
and withdrawal of suit do not give any strength to the case
set up by plaintiff. The conduct of plaintiff and PW5 Gur
deepak chawla, it is clear that both were in collusion with
each other and PW5 was out to help the plaintiff by hook
or by crook being her employer. Although witness no.1
stated that he had intimacy with Soma Rani but filing of
suit for specific performance on 25.02.2012 which came up
before the assignee court on 27.02.2012, the said witness
was not aware that Soma Rani had died on 24.02.2012
and he was filing a suit against a dead person which was
further pursued upto 31.05.2012 when the suit was re
ferred to mediation and thereafter compromised, the suit
was withdrawn on 01.06.2012.
Suit No.333/2015 Page 19 of 45
Honey Kapoor V. Geeta Kapoor & Ors.
4. Mr. Kamal Kapoor son of Soma Rani Kapoor i.e. Testatrix
was present in the office of Sub Registrar on 05.01.2011
in connection with registration of another Will dated
05.01.2011 in his favour in respect of the second floor of
property no. D160 West Patel Nagar, New Delhi, hence
why he was not made a witness to the said will set up by
the plaintiff. Several other relatives of Soma Rani were alive
as admitted by plaintiff in court proceedings but no such
relative was made witness to the Will set up by the plain
tiff. No relative of Soma Rani Kapoor though alive was
aware about any such Will in favour of the plaintiff and
even no such witness has been produced in court by the
plaintiff. It is clear from the court record, only plaintiff and
Gurdeepak Chawla PW5 who has been witness no. 1 to the
Will were only knowing the Will as set up by the plaintiff.
5. The Will dated 05.01.2011 set up by the plaintiff was not
acted upon by the plaintiff anywhere and in any manner,
no mutation obtained by plaintiff in MCD record, no prop
erty tax paid, no electricity and water connections got
changed and even no probate was obtained.
6. Smt. Soma Rani was aware that the plaintiff was of mar
riageable age and will be married shortly and hence will
join the family of her in laws hence no such Will was to be
executed in favour of the plaintiff by Soma Rani. No reason
has been shown in the Will as to why the plaintiff was pre
ferred in the Will and even it is not mentioned in the Will
that the plaintiff was residing with the deceased and
looked after her. No reason has been shown in the will as
to why the defendants who are natural legal heirs and who
were residing with Soma Rani were ignored in the Will and
were looking after Soma Rani. In fact, the defendants being
natural legal heirs were to be preferred as Shri Kamal
Kapoor who was the son of the deceased was preferred in
other registered Will dated 05.01.2011.
7. Even otherwise, FF & SF of D160, West Patel Nagar were
subject matter of both Wills registered on 05.01.2011. First
Floor was given to plaintiff and SF was given to Kamal
Kapoor but one Will could have been executed as per law.
The Will set up by the plaintiff is with respect to FF of
property no. D160, West Patel Nagar and do not relate to
D160, West Patel Nagar which is owned and possessed by
defendant no. 1 and 2. In this regard it is relevant to note
Suit No.333/2015 Page 20 of 45
Honey Kapoor V. Geeta Kapoor & Ors.
that there exist D160, West Patel Nagar, FF of D160 and
SF of D160 and FF AND SF have been made subject mat
ter of both the Wills regd. On 05.01.2011 in favour of Ka
mal Kapoor and plaintiff.
8. There are incorrect recitals in Will set up by the plaintiff
and in Will in favour of Kamal Kapoor. Even date and age
of Soma Rani have not been shown and the address of
Soma Rani mentioned in the Wills are in contradiction to
each other which all show that the Will set up by plaintiff
was not read over by Soma Rani and was not read over to
her by anyone otherwise Soma Rani must have found out
the mistakes and given her age and corrected those mis
takes.
9. The Will set up by plaintiff was not read over by witness
no.2 who was the other witness and even was not read over
by Kamal Kapoor s/o Soma Rani but was read over by wit
ness no. 1 Gurdeepak Chawla who was the employer of the
plaintiff and was interested witness who was out to help
the plaintiff in all manners and who had committed all
sorts of illegalities in collusion with the plaintiff. Even the
plaintiff has not mentioned that the Will so set up by her
was read over to Soma Rani, she admitted the same to be
correct and then was signed and thumb marked by her
and witnesses in her presence. However, the plaintiff ad
mits that she was present at the time of signing the Will by
Soma Rani and witnesses. Nothing has come on record as
to which Will was explained and read over by witness no.1
to Soma Rani since two Wills were registered on
05.01.2011 and contents of which Will were understood
and admitted to be correct by Soma Rani Kapoor.
10. That solitary statement of one witness specially Gur
deepak Chawla who has been the interested witness, was
not sufficient to prove due execution of the Will. The plain
tiff who has propounded the Will has not proved the Will as
is clear from her affidavit filed as evidence who marked the
said Will but PW4 who was the witness from the office of
sub Registrar has only proved registration of the said Will.
Even PW5 Gurdeepak Chawla who has been shown as wit
ness no. 1 to the said Will has not proved the Will set up
by the plaintiff but he has simply relied on Will PW4/4.
The earlier affidavit was filed by PW5 showing the said Will
Suit No.333/2015 Page 21 of 45
Honey Kapoor V. Geeta Kapoor & Ors.
as PW5/1 but PW5 did not tender the said affidavit and
tendered another affidavit and PW5 relied on Will PW4/4
without proving the same.
11. On 05.01.2011, Will and GPA were registered in
favour of Kamal Kapoor s/o Soma Rani and it appears that
in garb of obtaining signatures of Soma Rani on those doc
uments, the plaintiff also secretly got the signature of
Soma Rani on her own documents.
12. Nothing has come on the record as to who typed this
said Will, who went to the said typist along with Soma Rani
who was not to go alone being quiet aged, at whose in
structions the said Will was typed and whether the said
typist had read over and explained the contents of the Will
to Soma Rani and even the said typist has not been pro
duced. The agreement to sell dated 05.05.2011 shown to
be executed by Soma Rani through plaintiff as attorney, it
is mentioned in Para 6 of the said agreement that there is
no Will executed by Soma Rani.
13. There is no endorsement on the bottom of the Will set
up by the plaintiff explaining the manner adopted at the
relevant time as to how the Will was executed by Soma
Rani and how the same was signed by witnesses and it
would have sufficient to show due attestation of the Will
set up by the plaintiff.
14. The signature of Soma Rani on the Will set up by the
plaintiff are absolutely shaky and does not match with
each other available on record. Even the thumb impression
of Soma Rani and her signature have not been examined
and proved by any handwriting expert.
15. The registration of the Will so set up by the plaintiff
has not made the Will more effective as it is not mandatory
to get the Will registered.
16. That showing of execution of gift deed, bond, SPA all
dated 07.01.2011 i.e. after execution of Will regd. on
05.01.2011 and set up by plaintiff and agreement to sell
dated 05.05.2011 by Soma Rani through plaintiff as attor
ney in favour of Gurdeepak Chawla, value and worth of the
said Will has been made zero.
Suit No.333/2015 Page 22 of 45
Honey Kapoor V. Geeta Kapoor & Ors.
17. That although there are several suspicious circum
stances arising out of the Will set up by the plaintiff but as
per law even one suspicious circumstance is enough to dis
card the well.
The Ld. Counsel for the Plaintiff has interalia addressed the fol
lowing arguments and replied to suspicious circumstances:
(1) The defendants had argued and tried to set up their case
that D160, 1st Floor, West Patel Nagar, Delhi is a separate prop
erty than the property no. D160 West Patel Nagar, Delhi. The
Defendants had argued that they had no concern with the prop
erty bearing no. D160, 1st Floor, West Patel Nagar, Delhi
whereas the Plaintiff has filed the present case in respect of
property bearing no. D160, 1st Floor, West Patel Nagar, Delhi.
To substantiate the claim of the Plaintiff in respect of property
bearing no. D160, 1st Floor, West Patel Nagar, Delhi following
pleadings and documents were relied upon:
a) Para 6, 7 and Prayer Clause of Plaint in which property
bearing no. D160, 1st Floor, West Patel Nagar, Delhi is
mentioned which is not refuted by the Defendants in
their Written Statement. No cross examination was con
ducted upon Plaintiff's witnesses nor any evidence was
led by Defendants in respect of their plea that D160
and D160, 1st Floor are different properties.
b) In documents of the Defendant such as Agreement to
Sell, Will etc the property is described as D160, 1 st
Floor, West Patel Nagar, Delhi.
c) Defendant has taken false submissions as in documents
such as Adhar Card, Gas receipt, bank passbook, MCD
house tax, DAV School receipt filed by Defendants the
address is mentioned as D160, 1 st Floor, West Patel Na
gar, Delhi.
d) The Plaintiff Witnesses have mentioned D160, 1 st Floor,
West Patel Nagar, Delhi in their evidence on which no
suggestion was put to the witnesses that the property
number is not correct. Further, in cross examination of
PW1 dated 14052015 (after lunch at page 1) and fur
ther cross dared 08072015 suit property was men
tioned as D160, 1st Floor, West Patel Nagar, Delhi. Even
in the evidence by way of affidavit of DW1, D160, 1 st
Floor, West Patel Nagar, Delhi was described as suit
property same as DW2 and DW3 also admitted D160,
1st Floor, West Patel Nagar, Delhi. None of the witness
stated that D160, 1st Floor, West Patel Nagar, Delhi and
Suit No.333/2015 Page 23 of 45
Honey Kapoor V. Geeta Kapoor & Ors.
D160, West Patel Nagar, Delhi are two different proper
ties.
So there is not dispute left that the suit property is D
160, 1st Floor, West Patel Nagar, Delhi. As per the sub
missions made by the Defendants that they have no
concern with D160, 1st Floor, West Patel Nagar, Delhi
and the Plaintiff had filed the suit in respect of D160,
1st Floor, West Patel Nagar, Delhi so the suit of the
Plaintiff be decreed.
2. The Plaintiff has filed the present suit on the basis of the doc
uments such as Regd. Will, Regd. GPA, Indemnity bond, SPA
and Gift Deed these all documents were executed by Late
Soma Rani Kapoor in favor of Plaintiff in love and affection.
On the basis of Regd. GPA Plaintiff had already executed
Agreement to Sell in respect of suit property in favor of Shri
Gurdeepak Chawla and also received substantial sale amount
from the purchaser. This Agreement to Sell was executed
when Smt. Soma Rani Kapoor was alive. Since the Defendant
had taken the illegal and unauthorized possession of the suit
property so the Plaintiff could not execute Sale Deed in favor
of Shri Gurdeepak Chawla who then filed suit for specific per
formance. In that suit matter was referred to mediation, set
tled and then the Hon'ble Court decided the suit on the basis
of the mediation settlement. The mediator and Court were
duly informed about the death of Smt. Soma Rani Kapoor and
pleaded that as per regd. Will Plaintiff became the owner of
the suit property. It was settled that after taking possession
from the Defendants, Gurdeepak Chawla will pay the balance
sale amount and Plaintiff will execute sale documents in his
favour and the Plaintiff filed the present suit against the De
fendants.
3. As per law Will has to be proved by the attesting Witness. So
the argument of the Defendants that Will is to be proved by
the Plaintiff and not exhibited by her during her evidence is
frivolous arguments. Authorized person summoned from sub
registrar office had duly proved the Will in favor of Plaintiff
who had also brought original Regd. Will. This witness was
not cross examined by Defendant in respect of suspicion exe
cution and registration of the Will. Smt. Soma Rani Kapoor
was duly identified by the sub registrar and attesting wit
nesses. No suggestion or cross examination was conducted by
the Defendants in this aspect. It is neither the defence of the
Defendant nor Defendants are able to prove that Smt. Soma
Rani Kapoor was not wearing Bindi after the demise of her
husband. PW5 has rightly admitted that photograph of Smt.
Soma Rani Kapoor was taken in the office of Sub registrar
which is affixed on the last page of Will by the Sub Registrar
office.
Suit No.333/2015 Page 24 of 45
Honey Kapoor V. Geeta Kapoor & Ors.
4. The Defendants have not taken any sort of objection in their
Written Statement and even have not proved the contentions
of not conscious documents of Smt. Soma Rani Kapoor.
5. No conspiracy between PW5 and Plaintiff. Documents in
favour of the Plaintiff were witnessed by Gurdeepak Chawla
and Sunil Pahuja who is brother in law of Kamal Kapoor. Me
diator and Court both were informed about death of Smt.
Soma Rani Kapoor. Mediation and Court order not chal
lenged by anyone till date. DW5 had signed and attested the
affidavit of the plaint of the suit filed against the Plaintiff on
22022012 (which is evident from the certified copy of that
suit) so was prepared before the death of Smt. Soma Rani
Kapoor even otherwise DW5 was not aware the death of Smt.
Soma Rani Kapoor before filing of Suit and has came to the
knowledge only when Plaintiff appeared and informed about
her death in the court. After information the death was in
formed to mediator and court so there was no conspiracy
played upon court.
6. There was no need in the eyes of law to make Shri Kamal
Kapoor who is beneficiary of other Will as a witness to the Will
executed in favor of Plaintiff. Late Soma Rani Kapoor had exe
cuted two sets of documents in favour Plaintiff and Kamal
Kapoor in respect of two properties i.e. D160, 1 st Floor, West
Patel Nagar, Delhi and D160, 2nd floor West Patel Nagar,
Delhi so that both the beneficiaries have their independent
ownership and title documents of their respective properties.
7. There was no need in law to make Shri Kamal Kapoor as wit
ness to Plaintiff's Will. However, Shri Sunil Pahuja (brother in
law of Kamal Kapoor) was present and signed as witness on
both Wills of Plaintiff and Kamal Kapoor.
8. There was no need to examine relatives as witness in the
present case to prove the Will. The Will is to be proved only by
attesting witness of the Will, who had examined as DW5 in
the present case. The Defendant did not even examine any
witness from relatives who are aware the factum of the Defen
dants documents.
9. The other relatives of Smt. Soma Rani Kapoor too had the
knowledge of the Will which is also admitted by the Defen
dants. So this submission has no legs to stand. This fact has
also been proved by the Plaintiff in the matter.
10. In Delhi no probate is necessary in respect of Will. However,
Will was already acted upon the previous case filed by Gur
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Honey Kapoor V. Geeta Kapoor & Ors.
deepak Chawla and thereafter present case was filed by the
Plaintiff.
11. The Will was executed in favour of Plaintiff out of love and af
fection as her granddaughter. There is no need and require
ment of law to mention residence of Plaintiff in the Will.
12. Defendants were not looking after Soma Rani and even her
husband. Soma Rani had executed and bequeathed her prop
erties in favour of his son Kamal Kapoor and his late son's
daughter Honey Kapoor.
13. No need to prefer Defendant and Plaintiff is daughter of Soma
Rani's son who is natural legal heir and Wills were executed
in favour of her son Kamal Kapoor and Plaintiff who is daugh
ter of late son.
14. Soma Rani had executed two Wills on the same date 0501
2011 in favour of Plaintiff and Kamal Kapoor for two different
floors. The Defendants submitted that Will of Kamal Kapoor
is proved. If this Will is proved then the Will of the Plaintiff
also stands proved since executed on the same date, by same
witnesses and same recitals except different floors. Two Wills
were executed for two different floors meaning thereby two dif
ferent properties and also with the reason that both the bene
ficiaries have their set of documents for their respective floors
and ownership and may not depend upon other for their own
rights. Both properties under the Will are independent. Law
does not bar testator from making separate Wills for different
properties.
15. The Defendants failed to show which recital was incorrect.
Further, also failed to show or prove contradictions. As such
the contention of age missing in Wills is concerned is incor
rect. The age of Soma Rani Kapoor is mentioned by Sub Reg
istrar on the Will registered when she and witnesses appeared
before him and he mentioned the same on the first page next
to photo Soma Rani Kapoor by hand. It is proved that Will
was read over by DW5 and SubRegistrar. SubRegistrar had
mentioned that same while registering the Will. Will was read
over by PW5. No illegalities or collusion was there and even
not proved by Defendants. Will is to be proved by attesting
witness and not by Plaintiff.
16. No need to produce typist. No requirement of law to read the
Will typist to Soma Rani. No cross examination conducted by
Defendants on these point. Will was read over by attesting
witness.
17. Will is to come in play only after the death of Soma Rani
Kapoor and at the time Agreement to Sell there was no need
Suit No.333/2015 Page 26 of 45
Honey Kapoor V. Geeta Kapoor & Ors.
to mention of Will. As such no Will was executed by the exe
cutant Ms. Honey Kapoor in the present case and the same is
mentioned in the Agreement to Sell. Gurdeepak Chawla is
one of the witnesses of the Will who already deposed and
proved the documents. It is incorrect that Gurdeepak Chawla
was interested witness. The Defendants have failed to prove
that Gurdeepak Chawla was interested witness.
18. Even Defendant/DW1 admit the signatures of Soma Rani
Kapoor. Defendants are now trying to take pleas which have
no legs to stand. If the documents are registered then it cer
tainly had more value in the eyes of law. Until and unless the
property is sold by executing registered sale deed, the value of
registered Will has all the values and weightage in the eyes of
law.
19. The photograph of Soma Rani was taken in the office of Sub
Registrar also and the same was also affixed on the back page
of the Will and Attorney. The Defendants had not cross exam
ined the Plaintiff's witness (including witness from Sub Regis
trar office) on this point. No suspicious circumstances have
been proved by the Defendants in respect of Will of the Plain
tiff.
20. The Defendants have admitted the signatures, thumb impres
sions and photograph of Smt. Soma Rani Kapoor on the docu
ments filed and relied by the Plaintiff. The Defendants have
taken only objection of voluntary, health and unsound mind
of Smt. Soma Rani Kapoor which is not proved by them. Even
if one presumes that she was of unsound mind at the time of
execution of documents of Plaintiff then the documents of De
fendants have also same fate and cannot be considered.
21. The defendant had relied upon following judgments:
i) Prakash Soni Versus Deepak Kumar; Decided on 1509
2017
The facts of this case are entirely different from the facts of
the present case. In the case relied the signatures of the
testator affixed on the Will did not correspond with other
documents of the testator. Testator was suffering from var
ious ailments and was not in a position to take decision by
her own free will (Para 4).
There was no cordial relation between the deceased and
the appellant (Para 6).
The signatures of the testator were allegedly taken on the
death bed so the Hon'ble Court concluded that the Will
was not executed by the testator by own free Will and
mind. (Para 9)
So, the Defendant cannot take benefit of this judgment for
the present case.
Suit No.333/2015 Page 27 of 45
Honey Kapoor V. Geeta Kapoor & Ors.
ii) Jarnail Singh versus Bhagwanti ; Decided on 29112018
The facts of this case are entirely different from the facts of
the present case. It was held in this case that only one at
testing witness can prove the Will. In the case relied the
testator had executed the Will in favor of Petitioner in lieu
of service rendered by him. Petitioner was in army from
19601079 whereas the Will was executed in 1970, even
the relations between the parties also created doubt (Para
16) so Hon'be Court had held the Will is of suspicious cir
cumstances and rejected the same.
So, the Defendant cannot take benefit of this judgment for
the present case.
iii) Mala Bhagat versus State; Decided on 22082016
The facts of this case are entirely different from the facts of
the present case. In this case Section 63 C, 64, 68 of In
dian Succession Act were discussed. The Plaintiff had ful
filled all the requirements of law and had proved the docu
ments relied by her in the present case.
It was held in the case relied that "The burden of proof
that the Will has been validly executed and is a genuine
document is on the propounder. The propounder is also
required to prove that the testator has signed the Will and
that he had pout his signature out of his own free will
having a sound disposing of mind and understood the
nature and effect thereof. If sufficient evidence in this
behalf is brought on record, the onus of the propounder
may be held to have been discharged. But, the onus would
be on the applicant to remove the suspicion by leading
sufficient and cogent evidence if there exists any. In the
case of proof of Will, a signature of a testator alone would
not prove the execution thereof, if his mind may appear to
be very feeble and debilitated. However, if a defence of
fraud, coercion or undue influence is raised, the burden
would be on the caveator. (Para 19)
From the answers given by PW3 to the questions put to
her in cross examination by Respondent No.2, it does not
appear to the Court that Respondent No.2 succeeded in showing that the testatrix either did not sign the Will voluntarily or was not in a sound frame of mind when she did so or that she was unable to understand the nature and effect of what was stated in the Will. In other words, nothing has been elicited by Respondent No.2 in the cross examination of PW3 which persuades the Court to conclude that any doubt has been created as to the genuineness of the Will." (Para 22) In this matter the apex Court had allowed the Petition and granted the letter of Administration in respect of the Will.
Suit No.333/2015 Page 28 of 45Honey Kapoor V. Geeta Kapoor & Ors.
In the case relied the defendants had failed to prove that the Will was not signed in free will and sound disposing mind and understood the nature and effect thereof. No ma terial cross examination was conducted to prove the con tentions of the objector. In the case of the plaintiff also the Defendant has failed to establish that Will was not signed in free will and sound disposing mind and understood the nature and effect thereof. So the Will executed in favour of Plaintiff stands proved.
This judgment supports the case of the plaintiff.
iv) Neeraj Katyal Versus State; Decided on 11022016 The facts of this case are entirely different from the facts of the present case.
In this case Mr. Aggarwal, has contended that learned Additional District Judge has passed an erroneous finding by rejecting the Will dated 21.7.1998 without deciding upon the genuineness of the Will. It was contended by him that the probate court has to consider the proof of Will in order to see whether it is genuine or not. It was contended that it does not lie within the domain of the learned trial judge to comment upon the contents of the Will and state that the same is surrounded with suspicious circumstance. Mr. Aggarwal has stated that the reason for inclusion of name of Vidya Wati in the Will in question, was an inadvertent mistake which had occurred on account of the fact that before making the Will dated 21.7.1998, the respondent had executed a Will dated 12.3.1997 (Ex. PW 2/DC in favour of the present appellant when his wife was alive. Mr. Aggarwal has further stated that as the deceased testator was informed that in case the Will is registered, it has a greater probative value, therefore, he asked the entire Will to be retyped in verbatim which was subsequently got registered with the office of the SubRegistrar on 21.7.1998. But in the meantime, his wife had died and therefore, this inadvertent mistake had occurred in the Will. (Para 7) Section 63 of Indian Succession Act and Section 86 of In dian Evidence Act were discussed.
In my view, this singular fact is fatal to the case of the grant of probate to the appellants because the very fact that the name of the deceased testator's wife is included and life interest is given to her while as she was actually dead, it only cuts at the root of the Will itself and makes the Will a suspect. Under these circumstances, it is not safe to rely upon the Will. (Para 16) The facts of this case are entirely different from the facts of the present case.
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So, the Defendant cannot take benefit of this judgment for the present case.
v) Kishan Vs Tulki Ram decided on 04012013 In this judgment Section 63 of Indian Succession Act was discussed in para no.11 and 13. The requirements of prov ing the Will as mentioned in this relied judgment were duly completed in the case of the Plaintiff such as Will is wit nessed by two witnesses, each have signed in presence of the testator.
This judgment supports the case of the plaintiff.
vi) Sujata Kohli versus State; Decided on 16042019 The facts of this case are entirely different from the facts of the present case.
In this case Section 63 of the "ISA‟ enlists the requirements to execute a will as under:
"63. Execution of unprivileged wills.Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of 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."
From a bare reading of the above provision, it is clear that one of the mandatory requirements of due execution of a Will is its attestation by two or more witnesses. Proof of a Will shall strictly be in terms of the above said provision. To say that a Will has been duly executed, the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the "ISA" are to be complied with i.e., (a) Suit No.333/2015 Page 30 of 45 Honey Kapoor V. Geeta Kapoor & Ors.
the testator has to sign or affix his mark to the Will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a Will; and (c) the most important prerequisite being that that the Will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgment of signature or mark, or of the signature of such other person, and each of the witnesses has to sign the Will in the presence of the testator.
Section 68 of the "IEA" elaborates the way by which a document, which is required to be attested, is to be proved. It reads as under:
"68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
According to the above provision, a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution.
In this case, the Will was declined by the Hon'ble Apex Court because in the cross examination witness stated that "xxxxxxx At the time of execution of Will, apart from me and testator, there was one advocate and one or two other persons, whom I did not know. After signing by me, said Will was signed by that advocate and none else." (Para 11) But in the case filed by the Plaintiff witnesses stated that they have signed Will in presence of testator which was also confirmed by the sub Registrar while confirming the Will.
Vii Jagdambe Builders versus J.S Vohra; Decided on 0202 2016 Suit No.333/2015 Page 31 of 45 Honey Kapoor V. Geeta Kapoor & Ors.
The facts of this case are entirely different from the facts of the present case.
The property bearing No. D160, West Patel Nagar, New Delhi is basically a Flat which is on the first floor and therefore in the documents as relied upon by the Plaintiff and defendants, the property has been described as First Floor of D160,West Patel Nagar, Delhi. I am fully in agreement with the arguments of the Ld. Counsel for Plaintiff in this respect. The defendants during the arguments have taken frivolous defence regarding the identification of the suit property as if D160, West Patel Nagar, Delhi is different property from the Suit property. The defendants have neither disputed the identification of the suit property in the pleadings nor in the evidence. The said arguments of the defendants sans merit and the same are hereby rejected.
The Ld. Counsel for the defendant has strenuously argued that there is collusion between the Plaintiff and Shri Gurdeepak Chawla. The collusion and connivance between the Plaintiff and Shri Gurdeepak Chawla is very relevant and important to decide the entire controversy between the parties as there is no dispute that Plaintiff was the employee of Shri Gurdeepak Chawla. The collusion and connivance is generally hatched in secrecy, therefore, the same can only be inferred from the attending facts and circumstances of case.
It is the case of the Plaintiff that Shri Gurdeepak Chawla has agreed to purchase the suit property by means of Agreement to sell dated 05.05.2011. It is also the case of the Plaintiff that Shri Gurdeepak Chawla had filed Suit for Specific Performance against Smt. Soma Rani Kapoor through Plaintiff as Attorney and in which suit the compromise was arrived between Plaintiff and Shri Gurdeepak Chawla before the Mediation Centre and in view thereof Shri Gurdeepak Chawla had withdrawn the suit. It is further the case of the Plaintiff that Shri Gurdeepak Chawla is also the witness in the documents executed by Smt. Soma Rani Kapoor in favour of the Plaintiff. Shri Gurdeepak Chawla has also appeared as witness on Suit No.333/2015 Page 32 of 45 Honey Kapoor V. Geeta Kapoor & Ors.
behalf of the Plaintiff to prove the documents in favour of the Plaintiff which is alleged to be executed by Smt. Soma Rani Kapoor.
In order to answer this controversy, this Court will first of all examine the Agreement to sell dated 05.05.2011 executed between Plaintiff as Attorney of Soma Rani Kapoor and Shri Gurdeepak Chawla and thereafter this Court will examine the suit filed by Shri Gurdeepak Chawla against Soma Rani Kapoor through her alleged Attorney i.e. Honey Kapoor.
As per the case of the Plaintiff, the Plaintiff has agreed to sell the suit property to Shri Gurdeepak Chawla for a total consideration of Rs.10,00,000/ and it is important to reproduce para No.2(a) of Agreement to Sell dated 05.05.2011 (Exhibit PW5/3), where the payment of Rs.7,80,000/ was alleged to be paid to the Plaintiff by Shri Gurdeepak Chawla: "2.(a) That out of the total consideration of Rs.10,00,000/ the Vendee has paid to the Vendor a sum of Rs.7,80,000/ from time to time as part sale consideration, in the following manner: Rs.1,90,000/ paid by cheque No.16009 dated 2nd March 2011 Rs.90,000/ paid by Cheque No.16026 dated 30th April,2011 Rs.5,00,000/ paid by RTGS on 17th May 2011."
It is very strange that in the Agreement to sell dated 05.05.2011 executed between the Plaintiff and Shri Gurdeepak Chawla, no amount was paid to the Plaintiff at the time of execution of the Agreement to sell dated 05.05.2011. The amount of Rs.1,90,000/ was shown to be more than 2 months prior to execution of the Agreement to Sell and Rs.90,000/ was shown to be five days prior to execution of Agreement. In none of the recitals of the said Agreement to sell dated 05.05.2011, it is shown that the plaintiff as attorney of Smt. Soma Rani Kapoor has orally agreed to Sell the suit property at the time of making the alleged payment of Rs.1,90,000/ on 02.03.2011 or on the alleged payment of Rs.90,000/ on 30.04.2011. There is no dispute that Plaintiff and Shri Gurdeepak Chawla were having the employee and employer relationship respectively and this Court cannot rule out Suit No.333/2015 Page 33 of 45 Honey Kapoor V. Geeta Kapoor & Ors.
the possibility that the payment of the said amount was for some other purpose than that of the Sale and Purchase of the suit property. Moreso, for the reason that in the Agreement to Sell dated 05.05.2011, the Plaintiff and Shri Gurdeepak Chawla was aware that amount of Rs.5,00,000/ has been transferred to the account of Plaintiff through RTGS on 17.05.2011 i.e. the date which was to arrive after 11 days from the execution of the Agreement to Sell dated 05.05.2011. The perusal of para No.2(a) as incorporated hereinabove clearly reveals that the word is "the Vendee has paid" and the amount of Rs.5,00,000/ was alleged to be paid by RTGS and not by way of any postdated cheque. Furthermore, the perusal of Exhibit PW3/1 reveals that an amount of Rs.5,00,000/ was shown to be transferred to the account of plaintiff on 17.06.2011 and not on 17.05.2011. The Plaintiff herself had summoned the witness from the bank and he has produced the Statement of Account Exhibit PW3/1. Thus, there was no transfer of amount of Rs.5,00,000/ on the alleged date of 17.05.2011, which was otherwise to arrive after 11 days of the said Agreement dated 05.05.2011. The Plaintiff has not produce the back portion of the stamp paper of Agreement to Sell (Exhibit PW5/3). Therefore, there is no material before this Court whether the Stamp paper was purchased on or prior to 05.05.2011 or thereafter. However, definitely no one can know the transfer entry through RTGS has occurred prior to its happening. The RTGS entry of Rs.5,00,000/ shown from the account of Emerald, of which PW5 Shri Gurdeepak Chawla claimed to be proprietor, is shown to be 17.06.2011, therefore, prior to that Plaintiff and Shri Gurdeepak Chawla could not have known that there was transfer of amount of Rs.5,00,000/ through RTGS but as per the said Agreement dated 05.05.2011, the Plaintiff and Shri Gurdeepak Chawla was aware that Rs.5,00,000/ was transferred through RTGS and that too the entry which was occurred on 17.06.2011 i.e. about 45 days from the date of Agreement dated 05.05.2011. Furthermore, the Ld. Counsel for the defendants have also rightly pointed out that even as per Exhibit PW3/1, the amount of Rs.5,00,000/ which was alleged to be paid to Plaintiff by Shri Suit No.333/2015 Page 34 of 45 Honey Kapoor V. Geeta Kapoor & Ors.
Gurdeepak Chawla on 17.06.2011 was immediately withdrawn in cash on the very next day i.e. 18.06.2011. The cross examination of PW1 and PW4 clearly disseminates that Plaintiff and Shri Gurdeepak Chawla was having the employee and employer relationship respectively. Even as per PW5, Shri Gurdeepak Chawla, he used to drop plaintiff to the suit property. The Plaintiff has not placed a single document on the record showing her residence at the suit property. There is not even iota of evidence that plaintiff remained in suit property at any point time. The arguments of the Ld. Counsel for defendants appears to be convincing that the transfer of amount of Rs.5,00,000/ on 17.06.2011 was also an eye wash just to create the false evidence as on 18.06.2011 the plaintiff has withdrawn the same and appears to have done to handover the same to PW5 Shri Gurdeepak Chawla. The Agreement to sell alleged to be shown to be dated 05.05.2011 of the sale and purchase between the plaintiff and Shri Gurdeepak Chawla is apparently and palpably sham, manipulated and concocted document by Plaintiff and Shri Gurdeepak Chawla.
Now coming to Suit for Specific Performance, which was filed by PW5 i.e. Shri Gurdeepak Chawla against Smt. Soma Rani Kapoor through Ms. Honey Kapoor (Plaintiff). It is the case of the plaintiff and also supported by Shri Gurdeepak Chawla in his evidence that Plaintiff is also residence of the suit property. PW5 has tried to show in his evidence that he used to drop the Plaintiff in the suit property and he does not know much about the Pandav Nagar address. However, strange enough in the alleged Agreement to sell dated 05.05.2011 (Exhibit PW5/3), the address of the Plaintiff was shown as B454, Pandav Nagar, Delhi and not of the suit property. At the cost of repetition, there is not even scintilla of evidence that plaintiff was in possession of any part of suit property. Furthermore, the alleged documents by means of which the Plaintiff claims to be owner of the suit property, the address of the Plaintiff has been shown as Pandav Nagar address. The said documents were also alleged to be Suit No.333/2015 Page 35 of 45 Honey Kapoor V. Geeta Kapoor & Ors.
witnessed by Shri Gurdeepak Chawla (PW5) and he has tried to prove the said documents.
Shri Gurdeepak Chawla has filed the suit against Smt. Soma Rani Kapoor although through Attorney i.e. Plaintiff but not shown of Suit property for service of summons. Shri Gurdeepak Chawla, in his evidence, has tried to show that Plaintiff was basically resident of suit property and not of the pandav Nagar address still in the said Suit for Specific Performance he has given the address of Pandav Nagar only. It is also not the case of the Plaintiff as well as evidence of Shri Gurdeepak Chawla that Smt. Soma Rani Kapoor was the resident of Pandav Nagar address. In the Suit for Specific Performance, the suit property was involved, and even in the said Suit, Shri Gurdeepak Chawla has shown the address of service of Pandav Nagar, Delhi and not the suit property. Shri Gurdeepak Chawla claims to be witness of the documents executed in favour of the Plaintiff and further as per him he was very well know that Smt. Soma Rani Kapoor was residing in the suit property then why Shri Gurdeepak Chawla had not mentioned the address of Soma Rani Kapoor in the said suit.
The perusal of Exhibit PW2/1 i.e. certified copy of suit for specific performance filed by Shri Gurdeepak Chawla also reveals that the same was filed on 26.02.2012 and the same was marked to the court of Shri Mukesh Kumar Gupta, the then Ld. ADJ, for the date of hearing on 27.02.2012. Para No.8 of Exhibit PW2/1 further reveals that since Soma Rani Kapoor or her attorney was not complying the terms and conditions of the Agreement dated 05.05.2011, therefore, notice dated 21.01.2012 was given to defendant of that suit. It is not alleged in said para no.8 of the said plaint that whether notice was given to Smt. Soma Rani Kapoor through attorney or it was given to Smt. Soma Rani Kapoor. However, the perusal of cross examination of PW5 reveals that the said notice appears to have given to Smt. Soma Rani Kapoor. If, the notice dated 21.01.2012 was produced before this Court, it could have elicit out that Shri Gurdeepak Chawla had given the notice at which address of Smt. Soma Rani Kapoor, however, the said notice has also not seen the light of the day.
Suit No.333/2015 Page 36 of 45Honey Kapoor V. Geeta Kapoor & Ors.
There is no dispute between the parties that Smt. Soma Rani Kapoor had expired on 24.02.2012, therefore, the suit which was filed on 26.02.2012 was against the dead person. The entire evidence by way of Affidavit of PW5 reveals that as if, Smt. Soma Rani Kapoor was very well known to him. As per the version of PW5, Soma Rani Kapoor had asked him to become witness in the documents which were alleged to be executed by Soma Rani Kapoor in favour of the Plaintiff. If, Soma Rani Kapoor had asked Shri Gurdeepak Chawla to become witness in the said documents, which documents were very personal in nature, then inference can be drawn that as per him he was trusted person of Smt. Soma Rani Kapoor.
If, PW5 was trusted person and very well known to Smt. Soma Rani Kapoor then he ought to have known that on 24.02.2012, Smt. Soma Rani Kapoor had expired and he ought to have attended her cremation or last rites. Furthermore, it is not either the case of the Plaintiff or Shri Gurdeepak Chawla in his evidence that the relationship between Plaintiff and Shri Gurdeepak Chawla was not cordial. As per Plaintiff and PW5, Shri Gurdeepak Chawla was introduced to Smt. Soma Rani Kapoor by Plaintiff then the Plaintiff must have informed him at the relevant time that Smt. Soma Rani Kapoor had expired. However, strange enough Shri Gurdeepak Chawla, in the said suit, had neither shown the address of Smt. Soma Rani Kapoor nor he has apprised the Court on 27.02.2012 that Smt. Soma Rani Kapoor had expired on 24.02.2012.
The judicial proprietary demands that in the said suit for specific performance, he was immediately after knowing the factum of the death of Smt. Soma Rani Kapoor, required to file an appropriate application for bringing on record the LRs of Smt. Soma Rani Kapoor, as the alleged attorney in favour of the Plaintiff alleged to be executed by Smt. Soma Rani Kapoor came to end on the death of Smt. Soma Rani Kapoor. As per the case of the Plaintiff herself the alleged General Power of Attorney (Exhibit PW4/1) was executed out of love and affection and not for consideration thus the same would stand terminated and came to end at the death of Smt. Soma Rani Kapoor.
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As per Shri Gurdeepak Chawla, he was also aware about the fact that said Power of Attorney was executed without consideration.
Even if, it is presumed for the sake of arguments that Shri Gurdeepak Chawla was not aware about the death of Smt. Soma Rani Kapoor but definitely the Plaintiff who is the granddaughter of Smt. Soma Rani Kapoor was very well know that Smt. Soma Rani Kapoor had expired and it is not the case of the Plaintiff that she was also not aware on 24.02.2012 about the death of her grandmother. The Plaintiff has not produced any record which reveals that either Shri Gurdeepak Chawla or the plaintiff had revealed the said Court before referring to the Mediation Centre that Smt. Soma Rani Kapoor had expired on 24.2.2012 as after the compromise before Mediation Centre the said suit was simply withdrawn. In my considered opinion the plaintiff has further perpetuated the fraud upon the said Court by not disclosing the fact that Smt. Soma Rani Kapoor had expired on 24.02.2012 and instead got referred the matter to the Mediation Centre on the basis of alleged Attorney which was terminated and came to end on the death of Smt. Soma Rani Kapoor. If, Shri Gurdeepak Chawla or the plaintiff had informed the said Court that Smt. Soma Rani Kapoor had expired on 24.02.2012 then definitely the said court ought to have asked the plaintiff to implead the LRs of Smt. Soma Rani Kapoor or dismissed the suit as the same was filed against the dead person. Furthermore, if the plaintiff could have filed the plaint and Mediation order then what stopped the Plaintiff to place on record the various orders passed by the said Court before referring the matter to Mediation. The Plaintiff, despite of summoning the records of the said Suit for Specific Performance, has not placed the orders of the said Court. However, during the cross examination PW5 has admitted that in the said suit the Plaintiff has not filed any application for impleading the LRs of Smt. Soma Rani Kapoor. Interestingly, the Mediator before recording the compromise agreement (Exhibit PW 2/2) has not even asked the plaintiff to implead the LRs of Smt. Soma Rani Kapoor before the referral court and then to record the said compromise agreement. The perusal of Exhibit PW2/2 further reveals Suit No.333/2015 Page 38 of 45 Honey Kapoor V. Geeta Kapoor & Ors.
that Plaintiff was also identified by Shri Gurdeepak Chawla and it appears that Plaintiff has not even engaged the counsel for contesting the said case. It is admitted case by PW5 that present case is also pursued by the same counsel who had represented Gurdeepak Chawla in the suit for specific performance.
Admittedly, the LRs of the defendant was not brought on record in the said Suit for Specific Performance and the entire proceedings in the said suit for Specific Performance have emanated against the dead person and in my considered opinion the said proceedings are nullity in the eyes of law. It appears from the sequence of events that the said suit for specific performance was another move of the plaintiff and Shri Gurdeepak Chawla in order to create the evidence at the back of Soma Rani Kapoor and other LRs of Smt. Soma Rani Kapoor. However, the alleged Agreement (Exhibit PW2/2) was executed between the Plaintiff and Shri Gurdeepak Chawla and the defendants were not party to said Agreement, accordingly, the defendants are not bound by the said Agreement. Shri Gurdeepak Chawla has withdrawn the suit for specific performance and he has not made other LRs of Smt. Soma Rani Kapoor as party in the said suit and in my considered view, the alleged Agreement Exhibit PW2/2, although, executed in the proceedings which were continuing against the dead person, may at best be binding against Plaintiff and not against any of other LRs of Late Smt. Soma Rani Kapoor as they were not party to the said Suit for Specific Performance.
The aforesaid facts and cross examination of PW1 and PW5 clearly shows that they were collusion and connivance with each other. Accordingly, PW1 and PW5 are not reliable and credit worthy witnesses. Moreover, as per the case of the Plaintiff, the Plaintiff had instituted the suit for the benefit of Shri Gurdeepak Chawla as he was the beneficiary in terms of Exhibit PW2/2. As per the said agreement the plaintiff is only interested to the tune of Rs.2,20,000/ and actual beneficiary of the suit property is basically Shri Gurdeepak Chawla. Therefore, considering the fact that there was collusion and connivance between Shri Gurdeepak Chawla and further Gurdeepak Suit No.333/2015 Page 39 of 45 Honey Kapoor V. Geeta Kapoor & Ors.
Chawla is also beneficiary and interested witness in the present suit, it was incumbent upon the plaintiff to examine another witness of Will to dispel various suspicious circumstances which was raised by the Ld. Counsel for defendants.
As per the case of the Plaintiff herself, the present suit is nothing but proxy litigation filed by her for benefit of Shri Gurdeepak Chawla. No doubt, DW1 has admitted signatures on certain documents but mere admission of DW1 would not prove the documents in favour of the plaintiff as there is no dispute between the parties and per contra admitted by the Plaintiff that Late Smt. Soma Rani Kapoor was an uneducated lady. Furthermore, at the cost of repetition, on the documents as relied upon by the parties including the defendants, it appears from alleged signatures of the Late Smt. Soma Rani Kapoor that she was illiterate lady and she only knows how to sign and that too in Hindi. The entire documents were in English Language and it is nobody case that she was literate and even if, she was literate that she had knowledge about the English Language. The signatures, in the documents as relied upon by the Plaintiff as well as relied upon by the defendants, are alleged to be of Late Smt Soma Rani Kapoor. The formation of the said signatures is totally shaky and formation of each strokes of alphabets shows the consciousness which has been put on while signing the documents. It is also not disputed that at the time of execution of the aforesaid documents Late Smt. Soma Rani Kapoor was senior citizen and old aged widowed lady. Thus, the onus to prove the alleged documents in favour of the Plaintiff was heavy and the Plaintiff was required to prove that Late Smt. Soma Rani Kapoor had understood the contents of the said documents and thereafter out of her own free will, wish and volition had executed the aforesaid documents. In my considered opinion the plaintiff has also failed to prove their documents including the Will by cogent, convincing and authentic witnesses and failed to dispel the various suspicious circumstances as raised by the Ld. Counsel for the defendants. The Judgments relied upon the defendants also supports the version of defendants.
Suit No.333/2015 Page 40 of 45Honey Kapoor V. Geeta Kapoor & Ors.
The Ld. Counsel for Plaintiff has also argued that the Will has been proved by official from SubRegistrar Office. The said witness was not the witness to the Will. Mere Registration of the Will does not mean that the same has been proved in accordance with law. The said aspect has been considered in detail by our Hon'ble High Court in the case titled as MANMOHAN (DECEASED) THROUGH LR'S & ANR. Versus BALDEV RAJ & ORS decided on 18th November 2013 in RFA 450/2010. The paras No.13 to 22 are reproduced herein for apt understanding: "13. A Bench of two Judges of the Supreme Court in Pentakota Satyanarayana supra undoubtedly held that the signatures of the Registering Officer and of the identifying witnesses affixed to the registration endorsement on a Will are sufficient attestation within the meaning of Section 68 of the Evidence Act. It was held that the endorsement by the Sub Registrar that the executants have acknowledged execution before him also amounts to attestation; the signatures of the executants and of the identifying witnesses are taken by the Sub Registrar and thereafter the Sub Registrar signs the document; this aspect introduces an element of solemnity in the decision of the question as to whether the document propounded is proved or not.
14. Though the senior counsel for the respondents / plaintiffs was satisfied with the proposition of law laid down in Pentakota Satyanarayana supra and chose only to distinguish the same on facts but finding the proposition laid down therein to be out of the ordinary and in conflict with Section 63 of the Succession Act, 1975, I have looked further and find that a Bench of three Judges of the Supreme Court, as far back as in M.L. Abdul Jabbar Sahib Vs. M.V. Venkata Sastri and Sons (1969) 1 SCC 573, though not in the context of a Will, to have held that the essential conditions of a valid attestation under Section 3 of the Transfer of Property Act, 1882 are, (1) that the attesting witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature and; (2) that they have put their signatures on the document with a view to attest or to bear witness to this fact, in the presence of the executant. It was emphasized that it is essential that the witness should have put his signature animo attestandi, i.e. for the purpose of attesting that he has seen the executant sign or has received from him a personal Suit No.333/2015 Page 41 of 45 Honey Kapoor V. Geeta Kapoor & Ors.
acknowledgment of his signature. It was yet further held that if the person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or as an identifier or a registering officer, he is not an attesting witness. Reliance was placed on Girja Datt Singh Vs. Gangotri Datt Singh A.I.R. 1955 SC 346 also by a Bench of three Judges, holding that the two persons who had identified the testator at the time of the registration of the Will and had appended their signatures at the foot of the endorsement by the SubRegistrar, were not attesting witnesses as their signatures were not put animo attestandi. It was yet further held after examining the provisions of The Indian Registration Act, 1908 that the registering officer puts his signature on the document in discharge of his statutory duty and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature and thus cannot be recorded as an attesting witness.
15. The aforesaid view was reaffirmed in Dharam Singh Vs. Aso 1990 Supp (1) SCC 684, also of a three Judges Bench.
16. The question again came up in Bhagat Ram Vs. Suresh (2003) 12 SCC 35 before a bench of two Judges. After noticing the earlier judgments in Dharam Singh & M.L. Abdul Jabbar Sahib (supra), it was held that in those cases, the Registrar had signed the document in discharge of his statutory duty and the evidence adduced in those cases did not show the registering officer having signed the document with the intention of attesting it or that the registering officer signed it in the presence of the executant. However, finding that in the facts and circumstances of some other judgments of the High Court of Punjab and Haryana, it had been held that the Registrar may fulfil the character of an attesting witness if on entering into the witness box as required by Section 68 of the Evidence Act, he proves by his testimony the execution of document by deposing to have witnessed himself the proceedings as contemplated by Section 63 of the Succession Act, he can be a attesting witness and it was further held that the certificate of registration under Section 60 of the Registration Act raises a presumption under Section 114 (e) of the Evidence Act that the Registrar had regularly performed his duty and therefore the facts spelled out by the endorsement made under Section 58 and 59 of the Registration Act may be presumed to be correct without formal proof thereof. It was further held that the Registrar of Deeds who has registered a document in discharge of his statutory duty, does not become an Suit No.333/2015 Page 42 of 45 Honey Kapoor V. Geeta Kapoor & Ors.
attesting witness to the deed solely on account of his having discharged the statutory duty relating to the registration of a document; however, a Registrar can be treated as having attested to a Will if his signature or mark appears on the document akin to the one placed by an attesting witness and he has seen the testator sign or affix his mark to the Will or has received from the testator a personal acknowledgement of his signatures. It was thus held, that to be an attesting witness, the Registrar should have attested the signature of testator in manner contemplated by Section 63(c) of Succession Act. It was yet further held that a Registrar of Deeds before he can be termed as an attesting witness shall have to be called in the witness box and the Court must feel satisfied by his testimony that what he did satisfies the requirement of being an attesting witness.
17. Unfortunately, the aforesaid earlier judgments were not noticed in Pentakota Satyanarayana and even though a reading of the said judgment does not show the registering officer to have been summoned as a witness in that case, the Registrar was held to be an attesting witness.
18. In the aforesaid state, I am unable to accept the proposition as laid down in Pentakota Satyanarayana that mere registration of a Will makes the Registrar an attesting witness and even without being examined in the Court, the factum of registration can be a proof of valid attestation of the Will.
19. I also find another two Judge Bench of the Supreme Court in Benga Behera Vs. Braja Kishore Nanda (2007) 9 SCC 728 to have, faced with the question whether a certificate by Sub Registrar at the time of registration proved attestation, held that in view of Sections 52 & 58 of the Registration Act the only duty cast on the Registering authority is to endorse on the Will, i.e. to endorse only the admission of execution by the person who presented the document for registration; the compliance with that provision leads to the legal presumption that the document was registered and nothing else; if an authority in performance of a statutory duty signs a document, he does not become an attesting witness within the meaning of Section 3 of the Transfer of Property Act, 1882 and Section 63 of the Succession Act; to „attest‟ is to bear witness to a fact; "animus attestandi" is a necessary ingredient for proving the attestation; if a person puts his signature on a document only in discharge of his statutory duty, he may not be treated to be an attesting witness. No doubt the Suit No.333/2015 Page 43 of 45 Honey Kapoor V. Geeta Kapoor & Ors.
earlier judgment in Pentakota Satyanarayana was not noticed.
20. The view taken in Benga Behera supra is also in consonance with M.B. Ramesh supra which holds that Section 71 of the Evidence Act which permits a party to lead other evidence in certain circumstances cannot be read to absolve a party of his obligation under Section 68 of the Evidence Act r/w Section 63 of the Succession Act and that aid of Section 71 can be taken only when the attesting witnesses deny or fail to recollect execution of the document, to prove it by other evidence and not when the attesting witness has failed to prove the execution of the Will.
21. I may with respect add, that a Will under Section 41 of the Registration Act when presented for registration by the testator is registrable in the same manner as any other document. Sections 32 to 35 prescribe the procedure for registration of documents and permit presentation of a document for registration not only by the person executing the document but also by the representative or attorney of such person and the Registrar is only required to satisfy that they admit its execution. The requirements of Section 63 of the Succession Act are different. The Will is required to be attested by two or more witnesses, each of whom seen the testator sign and who have themselves signed in the presence of and at the direction of the testator at the same time. An admission by the person signing the Will and by the witnesses of having signed the Will is not an admission of the fulfilment of the conditions of Section 63 of the Evidence Act; more importantly, the Registrar cannot be said to be signing "at the direction of the testator". The said requirement of Section 63(c) has not been discussed in Pentakota Satyanarayana.
22. In the facts of the present case, though the appellants / defendants had summoned a witness from the office of the SubRegistrar to prove the factum of registration, but have not examined the Registrar who has registered the document. In the absence of his testimony satisfying the conditions of proof of Will, he cannot be considered as an attesting witness. The argument of the counsel for the appellants / defendants of the Will having been proved under Section 68 of the Act, has thus but to be rejected."
The ratio as expounded by our Hon'ble High Court is squarely applicable to the facts and circumstances of the present case. The Suit No.333/2015 Page 44 of 45 Honey Kapoor V. Geeta Kapoor & Ors.
Registrar/SubRegistrar was neither the witness to the Will nor summoned in order to prove the Will. The Official who had appeared at best may prove registration of the said Will. This Court has already held that Plaintiff and PW5 are not reliable and credit worthy witnesses and their evidence does not inspire the confidence of this Court.
There is no dispute that Plaintiff as well defendants are some of Class I heirs of Late Smt. Soma Rani Kapoor and accordingly they may have the coownership right in the suit property and they may file appropriate proceedings in accordance with law, however, in my considered opinion neither the Plaintiff nor the defendants have proved their documents in order to claim their exclusive rights in the suit property.
Accordingly, in view of discussions made hereinabove, issues No.1 to 4 and 6 are decided in favour of the defendants and against the Plaintiff in the aforesaid terms.
RELIEF:
From the discussions, as adumbrated hereinabove, I hereby pass the following FINAL ORDER
(i) The suit of the Plaintiff is hereby dismissed.
(ii) The parties shall bear their respective costs of litigation.
Decreesheet be prepared accordingly in terms of this decision.
File be consigned to Record Room after due compliance.
Announced through Video Conferencing On this 29th Day of October, 2020.
(ARUN SUKHIJA) ADJ07 (Central) Tis Hazari Courts, Delhi Suit No.333/2015 Page 45 of 45