Delhi High Court
Sh. Prem Prakash vs Smt. Champa Devi & Ors. on 26 July, 2012
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No.2153/1989
% 26th JULY, 2012
SH. PREM PRAKASH ...... Plaintiff
Through: Mr. Ravi Varma, Adv.
VERSUS
SMT. CHAMPA DEVI & ORS. ...... Defendants.
Through: Mr. Ankit Jain, Adv. for D-2 to 8.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The present suit for partition, rendition of accounts and permanent injunction has been filed by Sh.Prem Prakash son of late Lala Gobind Sahai against his mother/defendant no.1/Smt. Champa Devi, defendants no.2 to 8 who are the legal heirs of Sh.Om Prakash deceased brother of the plaintiff, and, defendants no. 9 to 12 who are the sisters of the plaintiff (and the deceased Sh.Om Prakash) and daughters of Lala Gobind Sahai and the defendant no.1/Smt. Champa Devi. CS(OS) No.2153/1989 Page 1 of 21
2. The dispute in the present suit concerns the property bearing no.1729, Naya Bazar, Delhi-6 admeasuring approximately 310 sq.yds (hereinafter the 'suit property').
3. The case of the plaintiff in the suit is that the suit property was originally owned by Lala Gobind Sahai. Lala Gobind Sahai died intestate on 24.6.1959 leaving behind his widow Smt. Champa Devi/defendant no.1, the plaintiff-Sh.Prem Prakash (son) and another son-Sh.Om Prakash, and four daughters namely Smt.Sumitra Devi, Smt. Maya Devi, Smt. Sharda Devi and Smt Pushpa Devi-defendants no.9 to
12.
4. It is alleged in the plaint that on the death of Lala Gobind Sahai, his widow Smt. Champa Devi and his children being two sons and four daughters, as stated above, became equal co-owners of the suit property. It is further pleaded in the plaint that thereafter three daughters, except one daughter i.e. defendant no.11-Smt. Sharda Devi, executed relinquishment deeds dated 4.7.1986 relinquishing their shares in the suit property in favour of the plaintiff, defendant no.1 and Smt. Godavari Devi, widow of late Sh. Om Prakash. The plaintiff also in the plaint pleaded that the defendant no.11- Smt. Sharda Devi by an oral settlement had relinquished her rights in favour of her two brothers and the mother - CS(OS) No.2153/1989 Page 2 of 21 a position agreed to by the defendants no. 2 to 8 in their written statement. Plaintiff hence seeks partition of the suit property by claiming that the plaintiff had 1/3rd share in the same, 1/3rd share was to belong to the defendant no.1-Smt. Champa Devi, and, 1/3rd share was said to be jointly belonging to defendants no.2 to 8 and who are the legal heirs of the deceased Sh.Om Prakash. I may state, since the defendants no.2 to 8 agree that the defendant no.11 agreed orally to relinquish her share in favour of plaintiff and branch of the other deceased brother Sh. Om Prakash and the mother, I would be allocating no share to the said Smt. Sharda Devi inasmuch as she has not appeared in these proceedings except for filing a written statement, and therefore, I am accepting the common case of the plaintiff and defendants no. 2 to 8 that the defendant no.11 will inherit no share in the suit property.
5. It is at this stage necessary to mention an important aspect that, Smt. Champa Devi who appeared as defendant no.1 in the suit; filed her written statement supporting the plaintiff; died during the pendency of the suit. The plaintiff set up a Will dated 8.10.1987 of the mother Smt. Champa Devi, and as per which Will, the 1/3rd share of the mother Smt. Champa Devi was said to have been bequeathed in favour of the plaintiff. The plaintiff as on today thus claims 2/3rd share in the suit property. CS(OS) No.2153/1989 Page 3 of 21
6. The defendants no. 2 to 8 are the contesting defendants. As per their case, there was an oral family settlement on 31.5.1972, and as per which family settlement, their predecessor-in-interest namely Sh.Om Prakash became the sole and exclusive owner of the suit property. There is no other case existing in the pleadings of the defendants no. 2 to 8 except the plea of oral settlement dated 31.5.1972, and, even at the stage of final arguments no other plea was raised on behalf of the defendants no. 2 to 8.
7. Issues were framed in this case on 28.2.1994 and 24.1.1996. These issues read as under:-
28.2.1994
1. Whether the plaintiff is entitled to 1/3rd share of the property in dispute.
2. Relief.
24.1.1996
1. Whether the plaintiff is the heir of deceased Gobind Sahai?
2. What are the properties left by late Sh.Gobind Sahai?
3. Who are the heirs of deceased Gobind Sahai and what is the share, if any, of the heirs?
4. Whether defendants 2 to 8 are liable to render accounts to the plaintiff? If yes, from which date?
5. Whether the plaintiff and/or defendant/defendants are entitled to the share in the properties left by deceased Gobind Sahai?
6. To what relief, if any, the plaintiff/defendants is/are entitled to?
7. What order and decree?"CS(OS) No.2153/1989 Page 4 of 21
8. Issue no.1 framed on 28.2.1994 and issues no. 1, 3 and 5 framed on 24.1.1996 can be dealt with together inasmuch as the aspect is as to what is the share of the plaintiff and of the defendants no. 2 to 8 in the suit property. I now take up the same for disposal. Before doing so I dispose of issue no. 2 dated 24.1.96 by observing and holding that the suit property is admitted by the parties to be the only property which is to be dealt with in the present suit.
Issue Nos.1,3 and 5 dated 24.1.1996
9. Once it is admitted that Lala Gobind Sahai; husband of the defendant no.1-Smt. Champa Devi and father of the plaintiff-Sh.Prem Prakash and deceased Sh. Om Prakash; was the owner of the suit property and who died intestate, then naturally all the legal heirs of Sh. Lala Gobind Sahai, i.e. his widow/defendant no.1, his two sons Sh. Prem Prakash and Sh. Om Prakash, and his four daughters-defendants no. 9 to 12 would be equal 1/7th owner of the suit property. As already stated above that there is however no dispute between the parties that the three daughters of Lala Gobind Sahai namely defendants no.9, 10 and 12 had executed relinquishment deeds in favour of plaintiff, defendant no.1 and defendant no.8 thereby relinquishing their 1/7th share each in the suit property in favour of the aforesaid three persons. The 1/7th share of each CS(OS) No.2153/1989 Page 5 of 21 of these three daughters namely defendants No.9, 10 and 12 therefore would stand vested jointly in the plaintiff, defendant no.1 and defendant no.8. I take on record that defendant Nos.2 to 8 agree that defendant No.8 took this relinquishment on behalf of all the defendant Nos.2 to 8.
Defendant no. 11 also would have no share as I have already stated that the contesting parties namely the plaintiff and the defendants no.2 to 8 also agree that defendant no. 11 by an oral settlement relinquished her 1/7th share similarly in favour of the plaintiff, defendant no.1 and defendant no.8. In view of the provision of Section 9 of the Transfer of Property Act, 1882, since law does not require a written relinquishment deed, I agree with the submissions of the counsel for the parties that the defendant no.11 has relinquished her 1/7 th share in favour of plaintiff, defendant no.1 and defendant no.8. If at all any reference is required, then the same can be made to the judgment of this Court in the case of Lieutenant Col. Gaj Singh Yadav vs. Satish Chander Yadav & Ors., 1999 (51) DRJ 240. I may also additionally state that a family settlement can always be an oral one and relinquishment by a family member is really in the nature of oral family settlement which is permissible in law. A family settlement if it is in writing or is in the CS(OS) No.2153/1989 Page 6 of 21 nature of partition deed, then only it would be required to be stamped and registered.
Thus the plaintiff, defendant no.1 and defendants no.2 to 8 would be the three equal co-owners of the suit property at the time when the defendant no.1/Champa Devi/mother was alive.
10. The onus to prove that there was a family settlement dated 31.5.1972 by which all the legal heirs of late Lala Gobind Sahai agreed that the deceased Om Prakash would be sole and exclusive owner of the property, is squarely upon the defendants no. 2 to 8. This onus, the defendants no.2 to 8, in my opinion have miserably failed to discharge. For the following reasons I hold that there is no family settlement/arrangement dated 31.5.1972 and the same is not proved:-
i) Admittedly there is no document whatsoever evidencing the family settlement dated 31.5.1972.
ii) There was no reason why there should not be a
written document of the stated family settlement dated
31.5.1972 inasmuch as on the same date parties being the
plaintiff, defendant no.1 and late Sh. Om Prakash entered into a written dissolution deed with respect to their partnership-M/s.
Prakash Oil Marketing Company in which they were partners. It CS(OS) No.2153/1989 Page 7 of 21 does not stand to reason that if for a dissolution of partnership a written document could be entered why there is no written document evidencing an extremely important fact of exclusive ownership in the suit property being vested with late Sh.Om Prakash under an alleged family arrangement.
iii) Another important fact is that if there was an oral family settlement of the year 1972 whereby late Sh. Om Prakash was to be the exclusive owner of the suit property then there was no reason why the suit property even thereafter continued to be shown in the municipal records in the joint names of both the plaintiff-Sh.Prem Prakash and deceased Sh. Om Prakash (during the lifetime of Sh. Om Prakash and even after the death of Sh. Om Prakash).
I may note that the plaintiff has proved and exhibited the property tax receipts, Ex.PW1/10 to Ex. PW1/13, and which house tax bills/receipts show that the suit property continued to be in the joint names of the plaintiff and the deceased Sh. Om Prakash. The property tax bills filed in this case and exhibited on behalf of the plaintiff are from the year 1979 to 1985, i.e for the period after 1972. There was no question of Sh.Om. Prakash allowing the property to CS(OS) No.2153/1989 Page 8 of 21 remain in the joint name with the plaintiff Sh.Prem Prakash if really there was a family settlement in the year 1972.
iv) The three sisters namely the defendants 9, 10 and 12 executed relinquishment deeds, Ex.PW1/2 to Ex. PW1/4, on 4.7.1986 i.e. 14 years after 1972 when the alleged family arrangement took place. In these relinquishment deeds the sisters have relinquished their shares in favour of not only the plaintiff and defendant no.1 herein but also in favour of late Smt. Godavari Devi, widow of late Sh.Om Prakash and defendant No. 8 in this suit. If really Sh.Om Prakash would have become owner by means of the oral family arrangement of the year 1972 then much later in the year 1986 neither the sisters would have claimed ownership in the suit property and executed the relinquishment deeds qua their shares, and nor would Smt. Godavari Devi have admitted and accepted these relinquishment deeds whereby the three sisters relinquished their shares in the suit property.
v) No doubt there may not be proof of oral family settlement in the form of written document, however, surely there could have been evidence of acting upon on this family settlement. Acting upon of the family settlement can be by various ways by Sh. Om Prakash CS(OS) No.2153/1989 Page 9 of 21 or the defendants no. 2 to 8 showing this property owned by them in their income tax record or applying for and seeking mutation done in the Municipal Records or applying to any public authority claiming ownership of the suit property on the basis of the family arrangement. Admittedly, there is no evidence which could be placed on record by defendants no. 2 to 8 with respect to acting upon of the alleged family settlement/arrangement of the year 1972 whereby allegedly late Sh.Om Prakash became exclusive owner of the suit property.
11. In view of the aforesaid reasons I am constrained to hold that the plea of family arrangement of the year 1972 as urged on behalf of the defendants no. 2 to 8 has no substance whatsoever and I accordingly reject the same.
12. One of the principal arguments which was urged on behalf of the defendants no. 2 to 8 to plead existence of the family arrangement was that firstly Sh.Om Prakash and thereafter the defendants no. 2 to 8 have exclusively enjoyed the suit property i.e. they have let out the same, received rents, and maintained the same, and therefore, according to defendants no. 2 to 8 it should be held that they have become owners of the suit property by means of the family arrangement in the year 1972. CS(OS) No.2153/1989 Page 10 of 21 This argument though may appear to be attractive at the first blush, however, this argument is really of no substance because it is not unknown that out of many co-owners one co-owner remains in exclusive possession and enjoyment of a jointly owned property. Merely because one co-owner remains in exclusive possession and enjoyment of a jointly owned property cannot mean that automatically on this very basis of enjoyment and possession, the joint owner should be held as an exclusive owner allegedly because of a family arrangement. There is a difference between other co-owners not in possession, not exercising their ownership rights in an immovable property and their giving up of rights over the suit property. Merely because a person may not have claimed enjoyment and possession of a jointly owned property, (and which can be for myriad reasons) cannot mean that he will loose his co-ownership interest in the jointly owned property unless of course the other defendants/co-owners who are in possession of the jointly owned property claim and prove ouster of the person who is not in possession and enjoyment of the jointly owned property. In this case, ouster has not even been pleaded, much less proved, and what is only pleaded and proved is exclusive enjoyment and taking benefit of the suit property by Sh.Om Prakash and the defendants no.2 to 8. I must also keep in mind, CS(OS) No.2153/1989 Page 11 of 21 that if I accept the argument of extinguishing of rights of a co-owner in an admittedly joint property, merely because other persons have enjoyed the possession and benefits of the property, then it would mean that I would extinguish valuable rights in an immovable property of a co-owner merely because such co-owners may have chosen to keep quite. I do not think that such position should be countenanced otherwise many co- owners will lose their ownership rights in a property. I note that it has already come on record that the rental from this property was not much (being less than rupees two thousand), and therefore, this could be one of the reason for lack of interest of the plaintiff in seeking partitioning of this property which was yielding no return. Also merely because defendants no. 2 to 8 have spent money on the maintenance of the property, cannot mean that they have (or their predecessor-in-interest /Sh.Om Prakash) have become exclusive owners inasmuch as since they were enjoying benefits of the property, and thus they also incurred maintenance charges qua the property. In fact it is for the reason that the maintenance of the suit property was done by the defendants 2 to 8 (and before them by their predecessor-in- interest/Sh.Om Prakash) that the plaintiff did not seek rendition of accounts with respect to the rentals being received from the property during the relevant years because the CS(OS) No.2153/1989 Page 12 of 21 revenue was squared off from the maintenance of the property. I may also state that counsel for the plaintiff also agrees for not pressing for the rendition of accounts with respect to the suit property against defendants no.2 to 8 and thus issue No.4 is decided against the plaintiff as not pressed.
13. In view of the above, issue No. 1 dated 28.2.1994 and issues no. 1, 3 & 5 dated 24.1.1996 are decided by holding that at the stage of death of Lala Gobind Sahai, and due to subsequent events thereafter; however before the death of the defendant no.1-Smt. Champa Devi; the suit property would vest in 1/3rd share each of the plaintiff, defendant no.1 and late Sh.Om Prakash who is now represented by legal heirs being the defendants no. 2 to 8.
14. In a suit for partition it is the law that even after passing of a preliminary decree if the shares are to be changed a fresh preliminary decree has to be passed and Courts are duty bound to pass the same. This is now settled law in view of the judgment of the Supreme Court in the case of Phool Chand & Anr. vs. Gopal Lal AIR 1967 SC 1470. I am making this observation of my having to change the 1/3 rd share of the plaintiff inasmuch as the mother/defendant no.1/Smt. Champa Devi has died during pendency of the suit, and the plaintiff claims her share in CS(OS) No.2153/1989 Page 13 of 21 terms of her registered Will dated 8.10.1987. If shares can be changed post passing of a preliminary decree, aforetiorari the same can be done before passing of the preliminary decree. Let us now examine therefore that whether Smt. Champa Devi/defendant no.1 left behind a validly executed Will dated 8.10.1987.
15. In my opinion, this Will has been proved to have been duly executed by Smt. Champa Devi who has been found to be in a sound disposing mind on the date of execution of the Will. This I say so because one attesting witness in this Will is a doctor, namely, Smt. Rita Vohra and this doctor Smt. Rita Vohra has appeared in this Court and deposed with respect to due execution and attestation of the Will. The evidence of Dr. Rita Vohra has been recorded before this Court as PW3. This witness has deposed that the deceased Smt. Champa Devi signed in her presence and all the attesting witnesses also signed in the presence of the testator. The fact that this witness Dr. Rita Vohra being a doctor in my opinion is a strong factor to prove the due execution and attestation of the Will of Smt. Champa Devi inasmuch as a doctor is in a better position than an ordinary person to depose with respect to the soundness of the mind of the deceased testator. Dr. Rita Vohra was not a stranger to the family because she was treating not only the plaintiff but also late Smt. CS(OS) No.2153/1989 Page 14 of 21 Champa Devi. Though Smt. Champa Devi was said to have gum problems and she died of cancer however this would not mean that Smt. Champa Devi was not of sound disposing mind when she executed her Will as these diseases are not such that they automatically will lead to lack of soundness of mind. I may note an additional fact that Will has also been registered.
16. One of the ways to prove the validity of the Will is the contents of the Will and the relationship of the parties. In this case, the admitted fact is that the mother/defendant No.1 Smt. Champa Devi only lived with the plaintiff and never with Sh. Om Parkash or the other defendants No.2 to 8. That being the position there is nothing strange in the mother /defendant No.1/Smt. Champa Devi disinheriting Sh. Om Parkash and the defendant Nos.2 to 8 of her share in the suit property and bequeathing the same to the plaintiff who always lived with her and took care of her. It is perfectly natural for the mother therefore to give her share to a son whom she knew took care of her in her lifetime and especially in her old age.
17. Another reason for me to believe the Will is that the mother appeared and filed her written statement as defendant No.1 in the present suit. In this suit, she supported the plaintiff and took up the stand against CS(OS) No.2153/1989 Page 15 of 21 the defendant Nos. 2 to 8. She denied claim of the defendant Nos.2 to 8 to the suit property. Therefore even in the lifetime of the mother there is categorical evidence of the mother/defendant No.1 taking up stand with the plaintiff and against Sh. Om Parkash and his legal heirs being defendant Nos.2 to 8. In my opinion, therefore, there were sufficient reasons for the mother to disinherit her son Sh. Om Parkash and his branch and execute the Will in question.
18. With respect to the validity of the Will, counsel appearing for defendant Nos.2 to 8 argued the following points:-
(i) The testimony of Dr. Rita Vohra ought not to be believed inasmuch as her cross-examination shows lack of her credibility inasmuch as she did not remember the Will which she signed as being the one which has been proved and exhibited in this case.
There is also the argument that whereas in her examination-in-chief she talked of four attesting witnesses, but in her cross-examination she mentioned that there were only three attesting witnesses. A reference to the relevant portion of the cross-examination of Dr. Rita Vohra on 21.1.2008 shows that since many years had passed so she exactly did not remember the Will but she has stated that the Will shown to her was the one she executed because that Will had her CS(OS) No.2153/1989 Page 16 of 21 signatures. As regards the argument of lack of credibility, I may state that when an attesting witness after many years appears in the witness box, there is always a chance of the said attesting witness making some contradictions or statements which may be found to be exactly not true, however, such minor contradictions or any statements which are found to be untrue have to be read in the context of the entire testimony of the witness i.e. the examination - in-chief and the cross examination. After all, if importance has to be put to certain contradictions/lack of credibility in cross-examination, but equally weight will also have to be placed upon other affirmative evidence and that part of cross examination where the witness has stood the test of cross-examination. In my opinion, in the facts of the present case when we read the testimony as a whole, and considering that the doctrine Falsus in Uno Falsus in Omnibus does not apply in India, I am of the view that the testimony of Dr. Rita Vohra cannot be discarded for the reasons as urged on behalf of the defendant Nos.2 to 8.
(ii) One another aspect which was urged on behalf of the defendant Nos.2 to 8 to dispute the validity of the Will was that whereas in the cross examination of PW-1/plaintiff, he states that he CS(OS) No.2153/1989 Page 17 of 21 was not present at the time of execution of the Will however Dr. Rita Vohra admitted that he was present. Once again, in my opinion, I would put this deposition of PW-1 to the apprehension which some lawyers have and which then translates into evidence, and which has to do with the fact that a propounder should not be seen to be part of the process of execution and attestation of Will. Of course, a propounder in his own interest should not be seen to be part of execution and attestation of the Will, but in my opinion merely because a propounder would be a part of execution and attestation of the Will that in itself cannot mean that Will should be disbelieved on this count itself/alone. Various factors go into proving or disbelieving of a Will, and stand of a propounder in the facts of certain cases may lead to lack of due execution and attestation of the Will, but in the facts of the present case, I am of the opinion that merely because the plaintiff was present when the Will was executed cannot and ought not to mean that Will should not be believed because the Will has otherwise been proved to be validly executed and attested.
19. One argument urged on behalf of defendants no. 2 to 8 is with respect to the fact that the Will dated 8.10.1987 bears only thumb CS(OS) No.2153/1989 Page 18 of 21 impression of Smt. Champa Devi instead of her signatures and hence there is no validly executed Will. Once again, in my opinion, on this ground only it cannot be said that the Will should not be believed inasmuch as the deceased Smt. Champa Devi was about 75 years when she made the Will and possibly for that reason she would have been advised that she should put her thumb impression instead of signatures inasmuch as she had been executing documents not only with signatures but even with her thumb impression. In my opinion, there can be no doubt that the defendant No.1 used to execute documents containing her thumb impression inasmuch as admittedly the written statement filed by her in this Court does not bear her signatures but only bears her thumb impression. Thumb impression also appears on the Vakalatnama of the defendant No.1 filed in this Court. A learned Single Judge of this Court had sent the thumb impression appearing on the Vakalatnama and the written statement for being compared with the thumb impressions appearing on the Will Ex.PW1/9 to the CFSL, but the CFSL through its Senior Scientific Officer, Sh.A.D.Sah opined that no opinion can be given one way or the other in view of lack of clear characteristics for comparison, however that issue is not disputed that the written statement CS(OS) No.2153/1989 Page 19 of 21 and Vakalatnama filed in this Court do contain the thumb impression of the defendant no.1.
20. Finally, I must mention solely for the purpose of rejection a point raised on behalf of the defendant Nos.2 to 8 that the deceased Smt. Champa Devi did not know English language but since the Will is made in English, therefore, the Will should be disbelieved. All I can say is that if this argument is accepted then almost all the Wills which come to this Court will have to be rejected inasmuch as majority of the Wills are in English inasmuch as that language is preferred by lawyers who are trained in the same and who accordingly make the Will in English language. There is proper deposition of the Will having been executed and attested besides the fact that PW3 Dr. Rita Vohra has deposed that defendant no.1 had told her of the contents of the Will. I therefore reject this argument that the Will dated 8.10.1987 is not a valid Will inasmuch as defendant No.1/Smt. Champa Devi did not understand English language.
21. I therefore hold that the defendant No.1 executed a valid Will Ex.PW1/9 dated 8.10.1987 thereby bequeathing her 1/3rd share in the suit property to the plaintiff, and who will therefore become 2/3rd owner of the suit property, and I hold accordingly.
CS(OS) No.2153/1989 Page 20 of 21 Issue nos. 2 & 4
22. I have already observed that plaintiff is not pressing issue No.4 which was framed on 24.1.1996. Also as stated above, so far as issue No.2 is concerned, counsel for the plaintiff confines his relief with respect to only the suit property i.e. 1729 Naya Bazar, Delhi-6. Relief:-
23. In view of the above, suit of the plaintiff for partition is decreed by passing a preliminary decree declaring that plaintiff will be 2/3rd owner of the property bearing No. 1729 Naya Bazar, Delhi-6 admeasuring 310 sq. yds. The defendant Nos.2 to 8 will be joint owners of remaining 1/3rd share of this property. Parties are left to bear their own costs. Decree sheet be prepared.
24. List this suit on 19.9.2012 for taking proceedings with respect to passing of a final decree.
VALMIKI J. MEHTA, J JULY 26, 2012 ak CS(OS) No.2153/1989 Page 21 of 21