Delhi District Court
Suit No. 297/2016 Satya Narain Mathur vs Rai Saheb Mathur Page No. 1 Of 21 on 28 May, 2016
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
Suit No. 297/2016
Unique ID No.02401C0064042003
In Re:-
Sh. Satya Narain Mathur
(since deceased through his LRs)
1. Smt. Prabha Mathur
W/o Late Sh. Satya Narain Mathur
R/o 2513, Naiwara, Chawri Bazar,
Delhi-110006.
2. Smt. Rajni Mathur
W/o Sh. A.D. Mathur
D/o Late Sh. Satya Narain Mathur
R/o D-68, East of Kailash,
New Delhi.
3. Sh. Yogesh Mathur
S/o Late Sh. Satya Narain Mathur
R/o 2513, Naiwara, Chawri Bazar,
Delhi-110006.
4. Smt. Meenakshi Mathur
W/o Sh. R.D. Mathur
D/o Late Sh. Satya Narain Mathur
R/o 660 Sector Type II, Sadiq Nagar,
New Delhi.
5. Smt. Shalini Mathur
D/o Late Sh. Satya Narain Mathur
R/o 126-A, Block F, GTB Enclave,
Delhi.
6. Smt. Sangeeta Mathur
W/o Sh. V.S. Mathur
D/o Late Sh. Satya Narain Mathur
R/o H.No. J-45, GTB Enclave,
Dilshad Colony, Delhi-110098.
7. Sh. Puneet Mathur
S/o Late Sh. Satya Narain Mathur
Suit No. 297/2016 Satya Narain Mathur Vs Rai Saheb Mathur Page No. 1 of 21
R/o 2513, Naiwara, Chawri Bazar,
Delhi-110006.
8. Smt. Varsha Mathur
W/o Sh. Naresh Kumar
D/o Late Sh. Satya Narain Mathur
R/o 26-A, Anarkali East,
Baldev Park, Delhi.
............... Plaintiffs
VERSUS
Sh. Rai Saheb Mathur
(since deceased through his LRs)
1. Sh. Pragesh Mathur
S/o Late Sh. Rai Saheb Mathur
2. Ms. Prageeti Mathur
D/o Late Sh. Rai Saheb Mathur
3. Smt. Usha Mathur
W/o Late Sh. Rai Sahab Mathur
All R/o A-250, Jhilmil Colony,
Vivek Vihar, Shahdara, Delhi-110032.
............ Defendants
Date of institution of present suit : 11.08.2003
Date of receiving in this court : 10.03.2016
Date of hearing arguments : 18.05.2016
Date of Judgment : 28.05.2016
Suit for Partition, Permanent and Mandatory Injunction and for
Declaration
JUDGMENT
This judgment will decide the case filed by the plaintiff against the defendants whereby plaintiff has sought decree for recovery of Possession under Section 6 of Specific Relief Act, Declaration and Permanent Injunction in his favour and against the defendants.
Suit No. 297/2016 Satya Narain Mathur Vs Rai Saheb Mathur Page No. 2 of 21 The brief facts necessary for the disposal of the present suit as set are as under:
1. The built up property bearing no. A-250, Jhilmil Colony, Near Vivek Vihar, Shahdara, Delhi (hereinafter referred as "suit property") was alloted by Delhi Development Authority in favour of Smt. Chanda Devi @ Chanda Bai W/o Sh. Ram Chander and accordingly Conveyance Deed was executed in her name by Delhi Development Authority on 29.10.1986 vide which she became the absolute owner and was in actual possession of the suit property. Smt. Chanda Devi @ Chanda Bai died on 08.09.1991. During her lifetime, Smt. Chanda Devi @ Chanda Bai by way of Will dated 19.09.1985 bequeathed the suit property in favour of her three nephews Sh. Satya Narain Mathur who was given 2/3 share, Sh. Gopal Narain Mathur and Sh. Rai Sahib Mathur were given 1/6th share each.
2. During lifetime of Smt. Chanda Devi @ Chanda Bai, since she was alone, it was decided that Sh. Rai Saheb Mathur, defendant no. 2 and his family live with her and look after her and after her death, it was decided that defendant no. 2 and his family continued living on said property in order to look after the temple constructed by her and since then defendant no. 2 with his family is living there as the licensee of the plaintiff and defendant no. 1.
The defendant no. 2 continues to be in occupation of the property in question till date. The plaintiff and defendant no. 1 requested the defendant no. 2 to act as per Will made by Smt. Chanda Devi @ Chanda Bai partition the property by meats and bounds as per the Will but the defendant no. 2 with malafide intention has not partitioned the property and is avoiding the same on one pretext or the other and defendant no. 2 is collusion of his wife Smt. Usha Mathur, defendant no. 3 are trying to dispose off the property in question and to handover the possession to some other third party, by creating third party interest. The defendant nos. 2 and 3 have no right, title or interest to get the conveyance deed issued in their name and consequently the conveyance deed Suit No. 297/2016 Satya Narain Mathur Vs Rai Saheb Mathur Page No. 3 of 21 dated 03.07.2003 is declared to be null and void. Hence, plaintiff has filed the present suit.
3. Upon being summoned, Defendant nos. 2 and 3 filed written statement raising preliminary objection that suit of the plaintiff is under valued. The plaintiff did not apply for mutation nor filed the suit since 1991 onwards therefore after a gap of approximately 12 years, he could not claim the relief at his Will on fabricated grounds. The present suit is defective by misjoinder of defendant no. 1 as well as defendant no. 3 has also been wrongly impleaded as party while she has no share as per so called Will. On merits, it has been stated that defendant nos. 2 and 3 were and are in actual possession of the suit property and also looking after and taking care of daily needs of old lady Smt. Chand Bai. It is stated that Will does not contains the photograph and thumb impression of Late Chanda Bai, therefore, the Will executed is forged and manipulated one. The plaintiff in collusion with defendant no. 1 has filed the present suit. Rest of the allegations of the plaintiff has been denied.
4. Replication was filed denying the averments of the written statement filed by defendant nos. 2 and 3 and reiterating the contents of plaint.
5. On the basis of pleadings of the parties, Ld. Predecessor of this Court was pleased to frame following issues on 21.05.2004:-
1. Whether the suit is without cause of action? OPD
2. Whether the suit is bad for misjoinder of defendant nos. 1 and 3? OPD
3. Whether the suit is barred by estoppel and acquisance? OPD
4. Whether the Will dated 19.09.1985 is forged and fabricated as no probate obtained and its effect? OPD
5. Whether a conveyance deed has been executed by the Slum and JJ department of MCD on 03.07.2003 jointly in favour of Suit No. 297/2016 Satya Narain Mathur Vs Rai Saheb Mathur Page No. 4 of 21 defendant nos. 2 and 3? OPD
6. Whether the plaintiff is entitled to a preliminary decree of partition of the suit property as prayed for? OPP
7. Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for? OPP
8. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP
9. Relief.
6. In support of his case, plaintiff examined nine witnesses including himself as PW-1 who tendered his evidence affidavit Ex. PW1/A. Plaintiff examined Smt. Prem Lata, Head Clerk, Office of Sub Registrar-IV, Seelam Pur as PW-2 who produced the record pertaining to Will dated 19.09.1985 and Conveyance Deed dated 29.10.1986 and proved the Will dated 19.09.1985 as Ex. PW1/6. Plaintiff examined Sh. A.K. Mishra, UDC, House Tax Department who produced the record pertaining to suit property. He proved the call letter sent by the department as Ex. PW1/9, certified copy of survey report as Ex. PW1/10, carbon copy of letter dated 06.05.2003 written by the plaintiff to the defendant as Ex. PW1/25, the bill no. 95859 issued by the department to Smt. Chanda Devi as Ex. PW1/27 and original receipt regarding the payment of the bill issued by the department as Ex. PW1/28. Plaintiff examined Sh. Virender Saini, Draftsman, Civil as PW-4 who prepared the site plan of the suit property and proved the same as Ex. PW1/5. Plaintiff examined Sh. Ratan Lal Gupta, Chartered Accountant as PW-5 who deposed that Ex. PW1/8 has been witnessed by him at point X where he put his signatures and bears the signatures of Smt. Chanda Devi at point P, Q and R. He further deposed that Sh. R.S. Mathur also signed the said document in his presence.
7. Plaintiff also examined Sh. M.P. Mathur as PW-6 who deposed that Will Ex. PW1/6 was written by Smt. Chanda Devi who put her thumb Suit No. 297/2016 Satya Narain Mathur Vs Rai Saheb Mathur Page No. 5 of 21 impression at point E1, E2 and E3 on each page and he witnessed the same and put his signatures at point A, B and C. He also identified the signatures of other witness Smt. Kashmiran Devi at point D1, D2 and D3. Plaintiff examined Sh. G.B. Mathur as PW-2 who deposed that Will Ex. PW1/6 was signed by the witnesses Sh. M.P. Mathur and his mother Smt. Kashmeran Devi in his presence and his maternal grand mother Smt. Chanda Devi put her thumb impression at point E1 to E3 on Ex. PW1/6 in his presence. Thereafter, he was cross-examined. Plaintiff again examined Sh. G.B. Mathur as PW-8 who tendered his evidence by way of affidavit as Ex. PW8/A. He relied upon original Will as Ex. PW8/1 and identified the signature of executant Sh. Gopal Narain Mathur at point B, signatures of Sh. M.P. Mathur at point C and his own signatures at point D. Plaintiff examined Sh. Puneet Mathur as PW-9 who tendered his evidence by way of affidavit as Ex. PW9/A. All the witnesses of the plaintiffs were also cross examined by the defendants after which plaintiffs closed their evidence.
8. In support of their case, defendants examined defendant No.2 as DW-1 who tendered his examination in chief by way of affidavit as Ex.DW1/A and additional affidavit as Ex. DW1/B and relied upon documents i.e. original Will dated 29.07.1981 registered on 31.07.1981 executed by Late Chand Bai in favour of defendant no. 1 as Ex. DW1/1, certified copy of Conveyance Deed dated as Ex. DW1/2, Will cum letter written by Chanda Bai as Ex. DW1/3, application dated 19.05.2003 given to SHO Vivek Vihar as Ex. DW1/4, death certificate of late Chanda Bai as Ex. DW1/5, cremation receipt of late Chanda Bai dated 08.09.1991 as Ex. DW1/6, sever bill dated 04.12.1991 as Ex. DW1/7, true attested copy of application for grant of perpetual leasehold rights in respect of slum rehousing flats as Ex. DW1/9 and true attested copy of the application of DDA Slum Department as Ex. DW1/10. (expired).
9. Defendants examined defendant no. 3 as DW-2 who tendered her Suit No. 297/2016 Satya Narain Mathur Vs Rai Saheb Mathur Page No. 6 of 21 evidence affidavit as Ex.DW2/A and relied upon documents i.e. Conveyance Deed as Ex. DW1/2, document written by Smt. Prabha Kocher as Ex. DW1/3 and application dated 19.05.2003 submitted at PS Vivek Vihar as Ex. DW1/4. Defendants examined Sh. Ram Narain as DW-3 who tendered his evidence affidavit as Ex.DW3/A and relied upon the letter written by Late Smt. Chanda Bai which is in the handwriting of his late wife Smt. Prabha Devi as Ex. DW3/1. Defendants examined Smt. Neelam Sharma as DW-4 who tendered her evidence affidavit as Ex.DW4/A. Defendants examined Sh. Pragesh Mathur as DW-5 who tendered his evidence affidavit as Ex.DW5/A. All the witnesses of the defendants were also cross examined by the Plaintiffs after which defendants closed their evidence.
10. Both Ld. Counsels for parties have argued in support of their respective clients' case and after hearing arguments and going through the record, evidence and material on record issue wise findings are as under:-
ISSUE NO. 1:- Whether the suit is without cause of action? OPD ISSUE NO. 4:- Whether the Will dated 19.09.1985 is forged and fabricated as no probate obtained and its effect? OPD
11. Both issues No.1 and 4 are taken up together as existence of Will dt 19.09.1985 Ex PW1/6 would have bearing on the question whether the suit is with or without of action. It is to be borne in mind that there is difference between plaint does disclose cause of action and there is no cause of action.
12. When it is alleged that plaint does not disclose cause of action then only averment made in the plaint is to be looked into and the test applied for finding if plaint discloses cause action or not is to see whether plaintiff would be entitled to the relief claimed in the plaint if he proves the averment made in the plaint. If the answer is in negative, plaint does not disclose cause of action and if answer is in affirmative then plaint dose discloses cause of Suit No. 297/2016 Satya Narain Mathur Vs Rai Saheb Mathur Page No. 7 of 21 action.
13. But in the present case issue whether the suit is without cause of action which has been equated to whether plaintiff has no cause of action to move court and answer to it would definitely depend upon the existence of the Will ExP1/6 as claimed by plaintiff and therefore both the issues are taken up together.
14. As far as the issue No.4 is concerned testimony of plaintiff as PW1 is not relevant for the reason that he admitted in the cross that Will Ex PW1/6 was not executed in his presence nor he came to know about the will during the life time of the deceased. Plaintiff has examined as many as nine witness (one witness was examined twice in two different capacity) but not all of them are relevant for the purpose of present issue. Testimony of relevant witnesses for the purpose of present issue are only being analysed and discussed.
15. PW2 Smt Prem Lata Head Clerk for Sub Registrar Office brought the record pertaining to Will dt 19.09.1985 to prove registration of Will with the office of Sub Registrar. She deposed that Ex PW1/6 was the original Will which was registered on 28.10.1995 vide registration No. 2718 in Additional Book No.3 Vol No. 143 at pages 155-157. She also deposed that Conveyance deed dt 29.10.1986 Ex PW1/1 was registered in the office of the sub Registrar on 29.10.86 vide registration No. 2128 in Additional Book No.1 Vol No.1915 on pages 38-40. Site plan registers with conveyance deed dt 29.10.86 is Ex PW1/2 and perpetual lease Deed 29.10.86 Ex PW1/3 was registered vide registration No.2130 additional book No.1 Vol No.1915 on pages 48-54. Site plan registered with perpetual lease deed ix Ex PW1/4.She was not cross examined.
16. PW6 Sh M.P.Mathur is the attesting witness to the Will dt Suit No. 297/2016 Satya Narain Mathur Vs Rai Saheb Mathur Page No. 8 of 21 19.09.1985 Ex PW1/6. He3 deposed that he was brother -in-law of both plaintiff and defendants No.1 and 2. He deposed that Chanda Devi @ Chanda Bai was related him. He deposed that Ex PW1/6 was written by Smt Chanda Bai and he was aware about the same. He deposed that Will Ex Pw1/6 was witnessed by hi and his sister-in law Smt Kashmiran Devi. He identified his signature at point A, B and C and that of Smt Kashmiran Devi at point D1, D2, and D3 on the Will. He further deposed that Chanda Bai put her left thumb impression at point E1, E2 and E3 on every pages in his presence. He further deposed that signature of Smt Kashmiran Devi and Chanda Devi was put in his presence and in the presence of each other. He further deposed that Smt Chanda Devi first put her thumb impression and thereafter they have signed. In cross examination he deposed that Will was signed by the testator at her residence on 19.09.85 at between 4 to 7 pm. Chanda Devi did not know English language. The Will was got typed by the advocate whose signature was on the Will. He admitted that Will was not prepared in his presence. He volunteered that it was already typed. She Chanda Devi could not sign in Hindi. He volunteered that she could put only her thumb impression. He did not ask the reason for unequal division of the property. He had seen signing and writing Smt Kashmiran Devi but did not know how educated she was. He did not sign anywhere after signing the Will on 19.09.1985. He denied the suggestion that Smt Chanda Devi was ill when the Will dt 19.09.1985 was executed.
17. PW7 Sh G.B Mathur is the son Smt Kashmiran Devi and maternal nephew of plaintiff and defendants No.1 and 2. He deposed that Chanda Devi was her maternal grandmother . The Will Ex Pw1/6 was signed in his presence by the witnesses M. P. Mathur and his mother Smt Kashmiran Devi. His maternal grandmother had put her thumb impression at point E1, E2 and E3 in his presence at suit property the month of September 1985. He had gone there to bring his mother back and when he reached the said Will was being read by one advocate and the person present there were talking about the Suit No. 297/2016 Satya Narain Mathur Vs Rai Saheb Mathur Page No. 9 of 21 Will. The advocate took away the said Will for registration. In cross examination he deposed that probably Will was brought by the advocate and witnesses signed the Will around 5 pm. He was unable to say whether his mother has signed any where else or had gone out on 28.10.1986. He did not know the name of the advocate. He denied the suggestion that his mother had more affection towards the plaintiff. He did not remember whether his mother had asked about the unequal distribution of the property.
18. Defendant Rai Bahadur's affidavits was tendered in examination in chief but he could not be cross examined as he unfortunately expired. Defendant No.3 Smt Usha Mathur appeared in the witness box and filed her affidavit in examination in chief and deposed on the lines of her written statement and deposed that as the conveyance deed in favour of Chanda Devi was executed on 28.10.1986 therefore on 19.09.1985 on date of Will she was not having any title in the property and the Will Ex PW1/6 was never executed by the Chanda Devi or bore he thumb impression.
19. Onus to prove issue no.4 is upon the defendant but normally in case of Will it is the propounder of who has first to prove the Will then onus shifts to one who alleges forgery. Thus simply because onus has been put upon the defendant that does not mean that Plaintiff is absolved of his duty to prove the Will in question.
20. For proving Will, the propounder has to show that the Will was signed or thumb impressed by the testator; that he/she was at the relevant time in a sound disposing state of mind; that he/she understood the nature and effect of the depositions; that he/she put his signature or thumb impression to the testament of his/her own free will and that he/she has signed/thumb impressed it in the presence of the two witnesses who attested it in his/her presence and in the presence of each other. Once these elements are established, the onus Suit No. 297/2016 Satya Narain Mathur Vs Rai Saheb Mathur Page No. 10 of 21 which rests on the propounder is discharged. In terms of Section 68 of the Indian Evidence Act, execution must be proved by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest.
21. Now tested on the above touchstone plaintiff has not been able to prove the Will Ex PW1/6. None of the witnesses of the plaintiff deposed that Will was read over to the testator. Admittedly Chanda Devi was not knowing English. None of the witness deposed at whose instruction Will was prepared and who arranged for the advocate. PW6 deposed that Will was written by Chanda Devi. He had wavered with regard to thumb impression and signature of Chanda Devi. At time he deposed that signatures of Smt Kashmiran Devi and Chanda Devi were put in his presence. In cross also he deposed that Will was signed by the testator as well as witnesses at A-250, Jhilmil Colony. Other time he deposed that it was thumb impressed. Importantly he in his examination did not depose about the physical and mental soundness of the testator nor did he say anything that she put her thumb impression after she was read over the contents and she had understood the same.
22. PW7 also in examination in chief is silent about the mental and physical condition of the testator. He deposed Will was being read by the advocate but did not depose that Will was read over to the testator. The Will is registered but no one deposed when and how it was registered and who had gone there at the time of reregistration. PW7 did depose that Will was taken away by the advocate for registration that means registration was procured or managed one. No one deposed that she put her thumb impression out of her own sweet will and wish. PW6 is completely silent about the presence of PW7. PW6 is also silent about the presence of the advocate. He simply deposed that Will was got typed by advocate whose signatures were on the Will. He did not depose that advocate was present. No one has also explained the circumstances of unequal distribution of estate.
Suit No. 297/2016 Satya Narain Mathur Vs Rai Saheb Mathur Page No. 11 of 21
22. In view of absence of material evidence/testimony necessary for proving Will, the above testimonies of witnesses do not inspire confidence, hence plaintiff failed to prove the Will dt 19.09.1985 Ex PW1/6.
23. Once plaintiff failed to prove the Will Ex PW1/6, turn of the defendants did not come to discharge the onus put upon them. Hence, issue No.4 is decided against the plaintiff and in favor of the defendants.
24. Since, there is no proved Will in favor of plaintiff bequeathing suit property or share in the property upon the plaintiff, plaintiff has no cause of action to file the present suit. Hence, issue no.1 is decided against the plaintiff and in favor of defendants.
ISSUE NO. 2:- Whether the suit is bad for misjoinder of defendant nos. 1 and 3? OPD
25. Onus to prove this issue is upon the defendants. If one proceeds according to the case set up by the plaintiff both defendants no.1 and 3 are necessary party. It has been pleaded by the plaintiff that by virtue of Will Ex PW1/6 1/6th share of the property has been devolved upon the defendant No.1. So in a suit for partition he is definitely a necessary party and his joinder in the suit cannot be said to be misjoinder in the background of the case set up by the plaintiff.
26. Similarly there is allegation against the defendant No.3 that both defendant No. 2 and defendant No.3 are trying to dispose off the suit property and any thing was left in making her necessary party was supplied by the defendants themselves by pleading that J.J. and Slum department of MCD has on the basis of survey and long possession executed conveyance deed dt 3.07.2003 in favor of defendant no.2 and 3.
27. In the background of this factual matrix both defendant No.1 and Suit No. 297/2016 Satya Narain Mathur Vs Rai Saheb Mathur Page No. 12 of 21 3 were necessary parties and defendants No.2 and 3 has not been able to point out as how they are not necessary party. However, it is matter of record that during the pendency of the case defendant No.1 expired and plaintiff came up with application that during his life time defendant No.1 had executed Will dt 18.05.2003 whereby bequeathing his share upon the plaintiff.
ISSUE NO. 3:- Whether the suit is barred by estoppal and acquiescence? OPD
28. Onus to prove this issue is upon the defendant. The ground for raising this contention as set out is that if Will dt 19.091985 was in existence then plaintiff should have sought partition or any other relief soon after the demise of Chanda Devi and since Plaintiff did not come forward for so many years therefore by his conduct he has acquiesced with the title of the defendants in the suit property and therefore he is estopped for asserting any right in the property. Although in view of findings recorded on issue No. 1 and 4, any discussion on this issue would be an academic one. Suffice will it be to say that there is no limitation prescribed for seeking partition of the property and similarly there is no limitation for petition for probate but limitation for delay latches for both shall begin to run when dispute crops up between the parties with respect to partition or about right under the Will. Immediately after the dispute a party is expected to come to the Court within reasonable time preferably within three years to seek appropriate relief of partition or probate. Nothing has come on record or brought by the defendant to show as to when real dispute arose for partition so as to find out whether plaintiff is estopped from or has acquiesced and therefore issue under discussion decided against the defendants and in favour of plaintiff. As noted above finding on this issue has only an academic interest.
ISSUE NO. 5:- Whether a conveyance deed has been executed by the Slum and JJ department of MCD on 03.07.2003 jointly in favour of defendant nos. 2 and 3? OPD Suit No. 297/2016 Satya Narain Mathur Vs Rai Saheb Mathur Page No. 13 of 21
29. Onus to prove this issue is upon the defendants. In the factual matrix of the case this should not have been framed as it has been framed. In any case since none of the parties objected to it, Court is proceeding to record finding on it.
30. Defendants have pleaded that on the basis of survey and finding defendants No.2 and 3 in long and continuous possession, J.J. and Slum Department of MCD executed the Conveyance deed 3.07.2003 Ex. DW-II in faovour of defendants No.2 and 3 and same was registered on 9.07.2003. They brought the original and placed on record the true certified copy of the Conveyance deed dt 3.07.2003. Defendant No.2 as a witness deposed on the same lines.
31. In cross examination that she and her husband had jointly applied with the Slum JJ department for getting property conveyed in their name. The survey was conducted in the year 1984-85 and they had applied during the year 1984-85 for getting the property conveyed in their name but only in 2003 property was conveyed in their names. She denied the suggestion that free hold conveyance deed has been legally executed in her favor and her husband.
32. Thus the execution and registration of Conveyance Deed dt 3.07.2003 has not been denied and defendants have successfully proved its execution and contents by placing on record true certified copy and by bringing in the court the original.
As far as present issue is concerned this is answered in affirmative and decided in favor of defendants and against the plaintiff.
ISSUE NO. 6:- Whether the plaintiff is entitled to a preliminary decree of partition of the suit property as prayed for? OPP ISSUE NO. 7:- Whether the plaintiff is entitled to a decree of mandatory Suit No. 297/2016 Satya Narain Mathur Vs Rai Saheb Mathur Page No. 14 of 21 injunction as prayed for? OPP ISSUE NO. 8:- Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP In view of findings recorder on issue No.1 and 4, plaintiff is not entitled to any of the relief claimed and therefore issues No.6, 7 and 8 are hereby decided against the plaintiff and in favour of the defendants.
COURT OBSERVATION/FINDINGS WHICH CANNOT BE IGNORED
33. It has come on record that neither plaintiff nor defendants were related to Smt Chanda Bai @ Chanda Devi who was owner of the suit property. It has also come on record that her only daughter Smt. Tejooo predeceased her. Plaintiff and Defendants are not all legal heirs in terms of Hindu Succession Act. They do not come under any class of heirs mentioned the said Act 1956. No other legal heirs belonging to any of the class mentioned in the Hindu Succession Act has come forward since her death to claim succession to her property. Section 29 of the Hindu Succession Act 1956 provides:
"29. Failure of heirs.- If an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the government; and the government shall take the property subject to all the obligations and liabilities to which an heir would have been subject."
34. It has already been held herein before that plaintiff has failed to prove Will dt 19.09.1985 Ex PW1/6.
35. Defendants have taken conflicting stand as to how the Conveyance deed Ex DW1/2 dt 3.07.2003 in their favour came to be executed. In written statement they have pleaded that they were residing in the suit property and were taking care of Smt. Chanda Bai. Plaintiff has not disputed Suit No. 297/2016 Satya Narain Mathur Vs Rai Saheb Mathur Page No. 15 of 21 defendants stay with the plaintiff but stated that it was joint decision of all as Smt Chanda Devi who was "Moohboli" (disclosed in evidence) sister of his father was alone and no one was there to take care of her. Defendants have pleaded in written statement that survey was conducted by JJ and Slum Department of MCD and on the basis of long and continuous possession Conveyance Deed Ex DW1/2 was executed. Whereas perusal of the Conveyance Deed shows that the same was got executed by Defendant No.2 and 3 as an attorney of Smt Chanda Devi in favor of purchaser who are none other than defendants No. 2 and 3 themselves. It means that defendants must have approached the JJ and Slum Department representing that Smt Chand Devi has sold the property and has executed power of attorney in their favor to get the Conveyance Deed executed in their own favor as purchaser. This fact was not disclosed to the court nor such stand was taken. In a spree of defending the case they forgot to read the negative effect of the Conveyance Deed that it would bring to their stand.
36. Defendants have also relied upon one hand written piece of paper alleged to be letter cum Will Ex DW1/3 allegedly signed by Smt Chanda Devi to convey that Smt Chanda Devi bequeathed the property upon defendant No.2. But very vague reference of the documents Ex DW1/3 was made in the written statement. At one place they say "all the Will's executed if any before her last Will according to which Conveyance Deed was executed in favor of Defendant No.2 and 3 stands null and void." Thus, as per this submission the Conveyance Deed in favour of defendant no.2 and 3 was executed on the basis of Will in their favour whereas it has already been noted that conveyance deed recites otherwise. At other place in written statement they say "annexure-5 enclosed herewith which bears the photograph and signature of late Chanda Bai, wherein she states that she gave 15 tolas of gold to the plaintiff and Rs 5,000/-in cash. She also states that plaintiff has taken away papers related to her house and had fraudulently got her thumb impression on some papers as well as she states that now she is giving her Suit No. 297/2016 Satya Narain Mathur Vs Rai Saheb Mathur Page No. 16 of 21 house, the house in question to her nephew, deft. no.2 and plaintiff has no say now."
37. The said letter cum Will Ex- DW1/3 is undated. It has not been explained to whom this letter was written. Defendants have failed to prove that Smt Chanda used to sign at all. No reliable document or witness was produced to prove that Smt Chanda Devi used to put her signature in Hindi as mentioned in the letter cum Will. Moreover Defendants himself relied upon previous Regd Will of 1981allegedly fraudulently obtained in favor of Defendants No.1 which is thumb impressed. The signatures of alleged witness namely Phoola Devi and Ram Pyari to the said letter cum Will Ex DW1/3 having expired should have been proved by reliable witness acquainted with said hand writings. Defendants have not explained how they discovered this original letter cum Will. True Defendant No.2 had deposed that the Will Ex DW1/3 was executed in his presence on the dictation of Chanda Devi to Smt Prabha Devi w/o Ram Narain but his testimony could not be tested on the touchstone of cross examination and therefore his testimony is of no help. It has been argued by defendants that since after recording of examination in chief of defendant No.2 matter was adjourned at the request of the plaintiff, therefore his testimony to the extent recorded be read. This court does not agree with the contention of the Counsel for defendants as such preposition of law is unprecedented and may become a tool in the hand of unscrupulous litigant.
38. Testimony of husband of alleged scribe Prabha could not be accepted as it has not been proved by reliable witness that the same was dictated by Smt Chanda Devi. Even if it is believed that it was written by her even then his testimony only helps in proving the writing of his wife but not that it was dictated by Smt Chanda Devi.
39. Defendants also examined DW4 Neelam Sharma to prove that Suit No. 297/2016 Satya Narain Mathur Vs Rai Saheb Mathur Page No. 17 of 21 letter cum Will was executed in her presence which was written by Smt Prabha in her presence and in the presence of Phoola and Ram Pyari who were friends of Chnada Bai and affixed their signatures in her presence. In cross examination she did not know if suit property was bequeathed upon defendant No.2 as stated by her in para 2 of her affidavit. She could not say if Chanda Devi could write in Hindi because she had never written or signed anything in Hindi before her. She did not know if Smt Prabha could write in Hindi or English. When confronted with the letter cum Will Ex DW1/3 she deposed that she could not say if Phoola Devi or Ram Pyari had written the said document. She further said that the said documents was not written in her presence. She further admitted that as Chanda Bai was unable to write therefore she used to put her thumb impression. She further deposed that she had knowledge that Chanda Devi had bequeathed the suit property to plaintiff through a Will. She also admitted that Chanda was in poor health nearly one year prior to her death and she was bed ridden. Thus, it could be seen that defendants has also failed to prove letter cum Will Ex DW1/3 as the witnesses particularly DW3 and DW4 who were examined to prove the Will failed to prove the same. Thus even defendants have no right to ownership to property and Conveyance Deed Ex DW1/2 was executed under misrepresentation and is liable to be canceled.
40. One may argue that defendant was not required to prove this letter cum Will in the suit filed by plaintiff. But once it was brought on record by the defendants themselves that neither plaintiff nor defendants are successor as per Hindu Law and that there are no legal heirs of the deceased as per Hindu Law, its become incumbent upon the defendants to show how they would over come the provision of Section 29 of Hindu Succession Act 1956. It must also be noted that defendants have availed all possible opportunity to prove this letter cum Will Ex DW1/3 and filed evidential affidavits of as many 15 witnesses and examined as many as 7 witnesses to prove the same. Therefore, defendant cannot claim that principle of natural justice has not been Suit No. 297/2016 Satya Narain Mathur Vs Rai Saheb Mathur Page No. 18 of 21 followed. Court has always to upheld the law and simply by dismissing the suit on merits cannot Court shut its eyes to stark reality that even defendants are not the owner and has made the JJ and Slum Department of MCD to execute Conveyance Deed Ex DW1/2 in their favour certainly by misrepresentation. Court has responsibility to apply law and as facts stood proved on record makes it obligatory to direct the Government to act as per Section 29 of the Hindu Succession Act 1956.
41. The lady deceased Smt Chand Devi was illiterate, old and alone and therefore possibility of getting her signature or thumb impression on documents without disclosing true nature/contents or forging thumb impression/signature cannot be ruled out. It is also possible that being known to her somehow or other, defendants might be staying with her as tenant or licensee and taking advantage of her closeness, old age, illiteracy and ignorance conspired among themselves to usurp the property which was otherwise going to Government. It was the greed versus greed that exposed the conspiracy to usurp the property which as per law devolved upon the government and thus both plaintiff and defendants are apparently guilty of cheating the government and has committed offense punishable under IPC.
42. Before parting it must be mentioned that this Court noted during appreciation of testimonies of witnesses that respective parties have given suicidal suggestion to the witnesses against their own case and therefore effect of such suggestion has of itself been got balanced.
RELIEF In view of the findings recorded on above issues, suit of the plaintiff is dismissed.
Applying Section 29 of Hindu Succession Act 1956, hereby declare Government of NCT, Delhi to be the owner of property bearing No. A- 250, Jhilmil Colony, Near Vivek Vihar, Shahdra, Delhi and Conveyance Deed Suit No. 297/2016 Satya Narain Mathur Vs Rai Saheb Mathur Page No. 19 of 21 Dt 3.07.2003 registered on 07.07.2003 as null and void having been registered at Serial No. 4302, Additional Book No.1, Volume No.938 at pages No. 33 -35.
Defendants, their heirs, agents, successor, assignees etc are permanently restrained from transferring, alienating or parting with the possession of the suit property to any one except to the Government of NCT, Delhi.
Defendants, their heirs, agents, successor, assignees etc are permanently restrained from creating any third party interest of any sort and are also restrained from making any addition alteration in the existing structure in the suit property.
This Court, therefore, direct the Principal Secretary, Government of NCT, Delhi, to take suitable action through concerned officer of the area as per law in pursuance of Section 29 of Hindu Succession Act exercising ownership right, title and interest in respect the property bearing A-250, Jhilmil Colony, Near Vivek Vihar, East Delhi and if need be criminal action may also be taken against both parties after proper enquiry. Hence, copies of this judgment be sent to Principal Secretary, Government of Delhi, Deputy Collector of the concerned area for aforesaid action, with copy mark to Principal Secretary (Law), Government of Delhi for information.
Copy of this Judgment be also sent to Commissioner of East Delhi Municipal Corporation and to HOD of JJ and Slum department EDMC to conduct proper enquiry as to how conveyance Deed was executed in favor of Defendants No. 2 and 3 and responsible officer be brought to book if found lax in his duty and further treat as canceled the Conveyance Deed dt 3.07.2003 executed in favor of Rai Sahib Mathur and Usha Mathur in repsect of property bearing No. A-250, Jhilmil Colony, Near Vivek Vihar, Shahadra Registered on 07.07.2003 at Serial No. 4302, Additional Book No.1, Volume No.938 at pages No. 33 -35.
Copy of this judgment be also sent to concerned Sub Registrar for making necessary entry in the light of this judgment in its record with Suit No. 297/2016 Satya Narain Mathur Vs Rai Saheb Mathur Page No. 20 of 21 regard to aforesaid Conveyance Deed.
Copy of this judgment be also sent to concerned SHO of the area with direction to ensure that status quo is maintained with respect to possession, title and construction in respect of property bearing No. A-250, Jhilmil Colony, Near Vivek Vihar, Shadara, Delhi till government takes suitable action commensurate with its ownership. It shall be within his discretion to notify to public the fact of property having devolved on the Government, if and only if it helps in maintaining status quo as aforesaid. He shall also ensure that parties to the litigation do not arrive at compromise so as to deprive the Government of its property having hereby devolved on it by law of escheat.
Decree sheet be prepared accordingly. Parties to bear own cost. File be consigned to Record Room after due compliance.
(Harish Kumar)
Announced in open Court ADJ-13(Central)/THC
(Judgment contains 21 pages) Delhi/28.05.2016
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