Delhi District Court
Smt Hem Lata Bhatia vs Sarita Bhatia on 27 January, 2025
IN THE COURT OF MS. POOJA JAIN, DISTRICT JUDGE-03,
EAST DISTRICT, KARKARDOOMA COURTS, DELHI
RCA DJ 06/2024
In the matter of: -
Smt. Hem Lata Bhatia
D/o Sh. Khairati Lal Bhatia
R/o 10/196, Geeta Colony
Delhi-110031 ........... Appellant
Versus
1. Smt. Sarita Bhatia
D/o Late Khairati Lal Bhatia
R/o 10/196, Geeta Colony
Delhi-110031
2. Ms. Nidhi @ Rupali
D/o Smt. Lalita Bhatia
R/o C-5/9, Krishna Nagar
Delhi-110031
3. Smt. Promila Bhatia
W/o Sh. Surinder Bhatia
R/o C-5/9, Krishna Nagar
Delhi-110051 ..........Respondent
Appeal filed on 16.02.2024
Arguments heard on 21.11.2024
Judgment pronounced on 27.01.2025
JUDGMENT
APPEAL U/S 96 CPC AGAINST THE IMPUGNED JUDGMENT AND DECREE DATED 06.01.2024 PASSED BY MS. SHUBHI GUPTA, LD. CIVIL JUDGE, EAST DISTRICT, KARKARDOOMA COURTS IN SUIT NO.6641/2016 TITLED AS MS. ALKA BHATIA AND OTHERS VERSUS SMT. SARITA BHATIA.
RCA DJ 06/24 Hem Lata Bhatia vs. Sarita Bhatia & ors. 1
1. Plaintiff is in appeal against the impugned judgment and decree dated 06.01.2024 passed by Ld. Civil Judge (East District), Karkardooma Courts, Delhi in Civil Suit No.6641/2016 titled as Ms. Alka Bhatia and others vs. Smt. Sarita Bhatia for setting aside the impugned judgment and decree vide which the suit of the plaintiff was dismissed on the ground that suit for simplicitor injunction was not maintainable as the plaintiffs should have filed a suit for declaration alongwith injunction. Parties shall be referred to in this judgment as per their ranks before the Ld. Trial Court.
2. The brief facts of the case are as under:
That the plaintiffs are the absolute owners of the property bearing no. 10/196, Geeta Colony, Delhi-31 measuring 100 sq. yds. by virtue of registered Will dt. 11.03.1999 executed by their father namely Shri Khairati Lal Bhatia in their favour. Plaintiffs averred that defendant is in possession of one room and bathroom constructed at ground floor of the aforesaid property as permissive user/licensee. Plaintiffs further averred that due to the adamant behaviour of defendants, plaintiff does not want the defendant to reside in the afore-noted property anymore and therefore, terminated the license of defendant by way of legal notice dt. 17.08.2011. It is further averred that defendant did not reply to the legal notice and rather threatened the plaintiffs that she will create third party interest over the suit property and refused to handover the possession to the plaintiffs as the property in question is situated in prime location of Geeta Colony, Delhi. It is further averred that defendant is residing in the suit property as unauthorised occupant and therefore liable to pay Rs.12,000/- per month as RCA DJ 06/24 Hem Lata Bhatia vs. Sarita Bhatia & ors. 2 damages for the use and occupation of afore-noted property after receipt of the aforesaid legal notice. Lastly, it is averred that after termination of license, the defendant has no right to reside over the suit property.
3. Defendant filed her written statement wherein it is inter-alia stated that suit of the plaintiffs is not maintainable as plaintiffs have concealed the true facts from this Court. It has been stated that suit of the plaintiff is not maintainable under the provisions of Section 41(h) of the Specific Relief Act. Plaintiffs has not filed the appropriate court fees. Suit of the plaintiffs is bad for non joinder of parties as plaintiffs have not impleaded other legal heirs of deceased Sh. Khairati Lal who have also equal rights in the suit property by virtue of Will dated 20.12.2010. It has been further submitted that Sh. Khairati Lal after executing the Will dated 11.03.1999, executed another Will dt. 20.12.2010 and subsequently cancelled the earlier Will dt. 11.03.1999 and bequeathed his estate in favour of Smt. Promila, Smt. Sarita (defendant), Ms. Alka (plaintiff no.1) and Ms. Hemlata (plaintiff no.2) and also upon legal heirs of deceased Smt. Lalita i.e. upon Mr. Amit and Ms. Nidhi. It has been further submitted that defendant is residing in the suit property in the capacity of a co-owner under her own rights and has got equal right, title and interest in the suit property by virtue of Will dt. 20.12.2010 executed by deceased father. Defendant denied the rest of the averments made in plaint and prayed for dismissal of suit with cost.
4. Plaintiffs in replication, reiterated the averments as set out in the plaint and refuted those of the defendant as set out in latter's written RCA DJ 06/24 Hem Lata Bhatia vs. Sarita Bhatia & ors. 3 statement.
Upon completions of pleadings, following issues were framed vide order dt. 20.11.2012:
i Whether the Will dated 11.03.1999 of Late Sh. Khairati Lal Bhatia is genuine and valid? OPP ii Whether the plaintiff is entitled to relief of permanent injunction as prayed for? OPP iii Whether the plaintiff is entitled to relief of mandatory injunction as prayed for? OPP iv Whether plaintiff is entitled to decree of damages? If so, at what rate of interest and for which period? OPP v Whether the suit of the plaintiff is bad for non-joinder of necessary and proper parties? OPD vi Relief.
5. Plaintiffs in order to prove their case, examined plaintiff no.1 as PW-1, plaintiff no.2 as PW-2, Sh. Om Prakash, Assistant Manager, State Bank of India as PW-3, Sh. Puran Chand as PW-4 and Sh. Sayed Faizal Huda as PW-5. PW-1 relied on Ex.PW1/1 which is photocopy of Will dt. 11.03.1999, site plan as Ex.PW1/2, legal notice, postal receipt and delivery proof as Ex.PW1/3, Ex.PW1/4 and Ex.PW1/5 respectively.
6. Defendant examined herself as DW-1 and Sh. Sumit Bhatia as DW-2. Both the witnesses relied upon Ex.DW1/A i.e. Will dt. 20.12.2010.
7. GROUNDS OF APPEAL:
A) That Ld. Trial Court took up the issue no.1 despite RCA DJ 06/24 Hem Lata Bhatia vs. Sarita Bhatia & ors. 4 the fact that respondent in her written statement had not controverted the Will dt. 11.03.1999 and execution of said Will is also mentioned in the alleged Will dt.
20.12.2010.
failed to consider the facts in controversy and hence the impugned order/judgment is liable to be set aside. B) Ld. Trial Court while deciding the issue no.1 in fact decided an issue which was never framed and erred in holding that the Will dated 20.12.2010 as genuine last Will of deceased Khairati Lal Bhatia and failed to take note of various important aspect of the case. (C) The Will dt. 20.12.2010 was a fake Will wherein no reason has been assigned for cancellation of Will dt. 11.03.1999. The Will dt. 20.12.2010 nothing has been mentioned about possessing a sound disposing mind of deceased Khairati Lal Bhatia.
(D) On scrutiny of signatures on both the Will reveals the signatures put in a different manner PW5 specifically pointed out the instances but the Ld. Trial Court could not take note the said facts.
(E) Smt. Sarita Bhatia, Smt. Promila Bhatia and LRs of Lalita Bhatia were debarred from raising any objection regarding the Will dt. 11.03.1999 because the beneficiary of Will dt. 11.03.1999 were firstly his wife and after her death, her unmarried daughters and that RCA DJ 06/24 Hem Lata Bhatia vs. Sarita Bhatia & ors. 5 the deceased was not happy with Smt. Sarita Bhatia being a divorcee, the father only allowed her to occupy the suit portion without giving her a proprietary right therein.
(F) Defendant no.1 admitted that she lodged a complaint against her parents at the time of her marriage and that she remained with her husband only for one or two years and deceased Khairati Lal Bhatia was not happy with Smt. Sarita Bhatia and other married daughters.
(G) The Will dt. 20.12.2010 is shrouded by suspicious circumstances as the Will was allegedly signed by one son of Smt. Promila Bhatia who will be ultimate beneficiary of the Will and other witness is none other than the elder brother of the father of the so called first attesting witness. So the existence of the Will and contents of the Will are creating such suspicious circumstances which are not easily believable. (H) The reason assigned in Will dt. 20.12.2010 that deceased was facing lonely after the death of his wife and while in subsequent sentence, he stated that his three daughters namely Smt. Sarita, Smt. Alka and ms. Hemlata are residing with him, which is absolutely in contradiction with his alleged loneliness which a prudent person like Khairati Lal Bhatia cannot state.
RCA DJ 06/24 Hem Lata Bhatia vs. Sarita Bhatia & ors. 6 (I) The witnesses of the alleged Will dt. 20.10.2010 were not in such closed proximity of deceased who can be called as witnesses by the deceased Khairati Lal Bhatia.
(J) The deceased Khairati Lal Bhatia was aged about 65 years at the time of execution of Will dt. 11.03.1999 while the Will executed after about 12 years, the age of the deceased Khairati Lal Bhatia has been shown as 76 years. Report filed by PW5 clearly establishes that there is unnecessary pauses, hesitant and re-touching in the disputed signatures and also pointed out by the PW5. Ld. Trial Court ought to have compared the signatures by taking help of the report of PW5. There is clear difference between two signatures so apparent on their faces. The Ld. Trial Court instead of ignoring the report should have appreciated the various reasons mentioned in report as well as pointed out in cross-examination by PW5.
K.) That the impugned judgment has resulted in complete failure of justice and as such impugned order is liable to be set aside.
8. Ld. Trial Court returned his finding on issue no.1 to 4 in favour of defendant and against the plaintiff.
RCA DJ 06/24 Hem Lata Bhatia vs. Sarita Bhatia & ors. 7
9. Arguments heard. Record perused and considered.
10. Brief recapitulation of present case is as follows:
The plaintiffs and defendant are real sisters. Their father Sh. Khairati Lal Bhatia died on 12.06.2011 who owned the property bearing no. 10/196, Geeta Colony, Delhi-31 admeasuring 100 sq. yds.
11. The plaintiffs have filed present suit for permanent and mandatory injunction and damages thereby directing the defendant to vacate and handover the peaceful physical possession of suit property to the plaintiffs claiming themselves to be the owner of suit property. The plaintiff's claim is based on a registered Will dt. 11.03.1999 executed by their father wherein the deceased father bequeathed the suit property to the plaintiffs and gave life interest in the suit property to his wife. The execution of said Will dt. 11.03.1999 is admitted by the defendants in her written statement, however, the defendant placed on record another Will dt. 20.12.2010 allegedly executed by their father wherein the deceased father revoked his earlier Will and bequeathed the suit property in favour of plaintiffs, defendant, Smt. Promila (daughter) and legal heirs of deceased daughter Lalita in five equal shares.
12. Having perused the grounds of appeal and trial court record, the following issue arise for consideration in appeal :-
"Whether the judgment/decree dt. 06.01.2024 is suffering from any perversity, illegality and non application of mind in passing the impugned judgment/decree?"
RCA DJ 06/24 Hem Lata Bhatia vs. Sarita Bhatia & ors. 8
13. The first ground of present appeal is that the Ld. Trial Court has decided an issue i.e. "Whether in view of the Will dt. 20.12.2010 propounded by the respondent, the Will dt. 11.03.1999 of Late Sh. Khairati Lal Bhatia is not the last Will?", which was never framed.
14. Perusal of record reveals that the Ld. Trial Court has framed an issue no.1 i.e. "Whether the Will dt. 11.03.1999 by Sh. Khairati Lal Bhatia is genuine and valid Will?". It is clear that Ld. Trial Court was required to decide the validity of Will dt. 11.03.1999.
15. Here it is relevant to see the law on revocation of unpriviliged Will. It would be appropriate to reproduce Section 70 of Indian Succession Act which reads as under:
70. Revocation of unprivileged Will or codicil.-- No unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.
Illustrations
(i)A has made an unprivileged Will. Afterwards, A makes another unprivileged Will which purports to revoke the first. This is a revocation.
(ii)A has made an unprivileged Will. Afterwards, A being entitled to make a privileged Will makes a privileged Will, which purports to revoke his unprivileged Will. This is a revocation."
RCA DJ 06/24 Hem Lata Bhatia vs. Sarita Bhatia & ors. 9 Bare reading of above provision clears that one can revoke his earlier Will by executing another Will.
16. Here it is relevant to note that the defendant in her written statement has stated that after execution of the Will dt. 11.03.1999, deceased father had executed another Will dt. 20.12.2010 which was his last and final Will thereby revoking the earlier Will dt. 11.03.1999. Therefore, to see the validity of earlier Will dt. 11.03.1999, it was necessary to answer the question i.e. whether the Will dt. 11.03.1999 was revoked by deceased father Sh. Khairati Lal Bhatia by executing another Will dt. 20.12.2010. In case, the testator has executed the Will dt. 20.12.2010, it definitely questions the validity of earlier Will.
17. Ld. Trial Court has decided the validity of Will dt. 11.03.1999 by answering the questions "Whether the Will dt. 11.03.1999 was not a valid Will as it is not the last Will of the executant". This Court is of the opinion that the said question is very much relevant and inherent which was needed to be answered before answering the issue which was framed by the Ld. Trial Court with regard to the validity of the Will dt. 11.03.1999.
18. Next argument of Ld. Counsel for appellant is that the attesting witnesses in the Will dt. 20.12.2010 are interested witnesses as one of the beneficiaries is closely related to the witnesses. Therefore, these witnesses cannot be relied. This Court is of the opinion that the said submissions of Ld. Counsel are meritless as there is no law barring any person, who is closely related to the beneficiaries, to be an attesting witness in the execution of the Will. Rather, the executer of a Will, generally gets it RCA DJ 06/24 Hem Lata Bhatia vs. Sarita Bhatia & ors. 10 attested by his close relatives or friends.
19. Ld. Counsel for appellant further argued that Ld. Trial Court ignored the report of Forensic Expert and have not appreciated the various reasons mentioned in the report. It is further argued that Ld. Trial Court have not compared the signatures which can be fairly checked with naked eyes.
20. As far as it is concerned with the report of handwriting expert, this Court is itself in agreement with the opinion of the Ld. Trial Court that the report of Forensic Expert is not convincing. Firstly, the expert, in his testimony, stated that the present case is not of complete tracing and it is the case of partial tracing, however, in his report, he concluded that the disputed signature is traced and forged signature. Secondly, the expert himself admitted in his cross-examination that he has not done any specific course in photography and obtained practical training during academic education, whereas as per his testimony he used computer technology and Adobe photoshop for comparing signatures. Moreover, it is settled law that the expert opinion is only an opinion not a conclusive proof.
21. It is further worthwhile to note that Ld. Trial Court rightly relied upon the judgment of Hon'ble Supreme Court titled as Gulzar Ali vs. State of H.P. (1998) 2 SCC 192 wherein it was held by Hon'ble Supreme Court that there is a natural tendency on the part of an expert witness to support the view of the person who called him.
22. On comparison the admitted signature of Sh. Khairati Lal RCA DJ 06/24 Hem Lata Bhatia vs. Sarita Bhatia & ors. 11 Bhatia on Will dt. 11.03.1999 with his signature on Will dt. 20.12.2010 it is clear that both the signatures are similar and of same person hence there is no merit in the submissions of Ld. Counsel for appellant that Ld. Trial Court has made any error in ignoring the report of Forensic Expert or in comparing the signatures of Sh. Khairati Lal Bhatia on Ex.PW1/1 and Ex.DW1/A.
23. Ld. Counsel for appellant further argued that Ld. Trial Court has made error in holding that suit for mandatory injunction is not maintainable and suit for possession should have been filed as after the death of father, the plaintiff was competent to step into the shoes of his father and has right to revoke the license granted to the respondent to reside in the suit premises. Perusal of record reveals that the defendant took a defence in his written statement that deceased father executed his last Will dt. 20.12.2010. It is further perused that plaintiff's claim is based only on a Will dt. 11.03.1999 therefore, it is clear that after written statement came on record the defendant has disputed the claim of plaintiff by stating that the Will dt. 20.12.2010 is the last Will of deceased father whereby he has revoked the earlier Will. In view of the said averment the defendant has raised a cloud over the plaintiff's title. Despite knowing the defence of defendant the plaintiff has opted to not amend her plaint therefore, there is no error in holding that suit for simplicitor injunction is not maintainable and the plaintiffs should have filed a suit for declaration alongwith injunction. Ld. Counsel for appellant further argued that in the Will dt. 20.12.2010 nothing has been mentioned about the mental condition of the testator therefore, the Will cannot be stated to be a valid Will. Perusal of RCA DJ 06/24 Hem Lata Bhatia vs. Sarita Bhatia & ors. 12 record shows that plaintiff's have not placed any document on record to prove that the mental condition of testator was not good in the year 2010. hence, non mentioning of testator's mental condition while drafting a Will does not invalidate it. It is further argued that no reason has been assigned for cancellation of Will dt. 11.03.1999, in the Will dt. 20.12.2010, therefore, the Will dt. 20.12.2010 is a fake Will. The said arguments of Ld. Counsel for plaintiff has no substance as not supported with any legal provisions. There is no provision of law which mandates to assign reason for revocation of earlier Will. The testator is not required to give any reason .
24. In view of above discussion, this Court is of the considered view that present appeal being merit-less stands dismissed.
25. Trial Court Record together with the copy of this order be sent to Ld. Trial Court.
26. Appeal file be consigned to Record Room. Digitally signed by POOJA POOJA JAIN Date:
JAIN 2025.01.27
Pronounced in the open Court ( Pooja Jain) 04:10:52
+0530
on 27.01.2025 District Judge-03,
Court No.206, N/B, East District,
Karkardooma Courts, Delhi
RCA DJ 06/24 Hem Lata Bhatia vs. Sarita Bhatia & ors. 13