Delhi District Court
Smt. Phool Kumari vs Sh. Joginder Lal on 20 January, 2016
IN THE COURT OF CIVIL JUDGE-11, CENTRAL DISTRICT,
TIS HAZARI COURTS: DELHI
Civil Suit No.485/2014
In the matter of
Sh. Suraj Parkash Sharma, S/o Shri Chaman Lal
M/s Everest Electricals, Shop No.11, Pushpa Market,
Lajpat Nagar, New Delhi, (since deceased) through his L.Rs
1. Smt. Phool Kumari, W/o Sh. Suraj Prakash (widow)
2. Smt. Neena Tomar,W/o Shri R.S.Tomar,D/o Sh.Suraj Prakash
(daughter)
3. Smt. Sushma @ Suhani Punj, W/o Shri Kuldeep Punj, D/o Sh. Suraj
Prakah (daughter)
4. Sh. Vijay Kumar, S/o Sh. Suraj Prakash (son)
5. Sh. Rajive Sharma, S/o Sh. Suraj Prakash (son)
All residents of H-33, Lajpat Nagar-II, New Delhi. .....Plaintiffs
Vs.
1. Sh. Joginder Lal, S/o Sh. Waras Ram, R/o A-314, Double Storey,
Kalkaji, New Delhi, (since deceased) Through his L.Rs.
Suraj Prakash Vs. Joginder Lal 1
i. Smt. Santosh Chhabra (Now deceased), W/o Sh. Joginder Lal
ii. Sh. Sajeev Chhabra, S/o Late Sh. Joginder Lal
Both: R/o G-130, Sector-9, Vijay Nagar, Ghaziabad (U.P.)
And also at 123/2, Sector-I, Pushp Vihar, New Delhi-110017.
2. Smt. Raj Rani, D/o Sh. Rahla Ram, R/o A-314, Double Storey,
Kalkaji, New Delhi, (since deceased) through her L.Rs.
i. Sh. Joginder Lal, S/o Sh. Waras Ram, Defendant No.1 (now deceased)
ii. Sh. Satish, S/o Sh. Waras Ram
iii. Smt. Nirmala, D/o Sh. Waras Ram
iv. Smt. Usha, D/o Sh. Waras Ram
v. Smt. Bimla, D/o Sh. Waras Ram
All R/o flat No. B-621, C.R. Park, Chitranjan Park, Near Police Station,
New Delhi.
3. Sh. Kuldeep Raj Ahuja
S/o Shri Ralha Ram, Shop no.11, (back side), Pushpa Market,
Lajpat Nagar, New Delhi (since deceased) through LRs
i. Smt . Prem Rani, W/o Sh. Kuldeep Raj
ii. Rajinder Kumar, S/o Sh. Kuldeep Raj Ahuja
Suraj Prakash Vs. Joginder Lal 2
iii. Gagan Kumar, S/o Shri Kuldeep Raj Ahuja
iv. Smt. Sangeeta Rani, D/o Shri Kuldeep Raj Ahuja
v. Smt. Mamta, D/o Shri Kuldeep Raj Ahuja
vi. Smt. Sonia, D/o Shri Kuldeep Raj Ahuja
All R/o D-17, DDA Flats (Slum), Kalkaji, New Delhi
4. Krishna Kumari Popli, D/o Sh. Ralha Ram
R/o II-K-9, Lajpat Nagar, New Delhi
5. Sh. Sat Pal Ahuja, S/o Shri Ralha Ram
6. Sh. Ved Prakash Ahuja, S/o Sh. Ralha Ram
7. Smt. Vidya Wati Ahuja, W/o Sh.Ram Wadhaya
8. Sh. Ashok Kumar Ahuja, W/o Sh. Ram Wadhaya
9. Sh. Pawn Kumar Ahuja, S/o Sh. Wadhaya
10. Smt. Sharda, D/o Sh. Ram Wadhaya Ahuja
11. Smt. Manju, D/o Sh. Ram Wadhaya Ahuja
12. Smt. Veena, D/o Sh. Ram Wadhaya Ahuja
13. Miss Muni, D/o Sh. Ram Wadhaya Ahuja
14. Miss Mona, D/o Sh. Ram Wadhaya Ahuja
15. Miss Chinkoo, D/o Sh. Ram Wadhaya Ahuja.
Defendant No.5 to 15 R/o 140, Sukhdev Nagar, Kotal Mubarakpur, New
Delhi. .....Defendants
Date of institution of the Suit : 11.10.1982
Date on which judgment was reserved : 06.01.2016
Date of decision : 20.01.2016
Suraj Prakash Vs. Joginder Lal 3
SUIT FOR SPECIFIC PERFORMANCE
JUDGMENT
Doctrine of election explains that if two remedies are available, the concerned person may chose one and leave the other. In specific context of succession of property through WILL or intestate succession, it has been settled that even if a WILL in favour of one of the legal heirs is in existence, he may choose not to go by the WILL and all the legal heirs may inherit the property by way of intestate succession (see judgment of division bench of Hon'ble High Court in Vikram Singh & Anr. vs Ajit Inder Singh RFA(OS) 87/2012 dated 24.02.2014).
1.1. What is however interesting is that the doctrine of election can apply only where at least two modes are available. If only one mode is available, there cannot be any question for applicability of the aforesaid doctrine. If WILL is in favour of a person who is not the natural legal heir, the doctrine shall have no applicability. (see judgment of division bench of Hon'ble High Court in Rakesh Gupta vs Ramesh Gupta RFA(OS) 19/2015 dated 31.07.2015).
2. In terms of Section 8 of Hindu Succession Act 1956, Class-I legal heirs have the first right over the property if a person dies intestate. The schedule appended to the said act specifies the Class-I legal heirs and includes son of a predeceased daughter. However, son of living daughter of the intestate does not have any right over the property as he is not included in the Class-I legal heirs. If now this person i.e. son of the living daughter claims that there is in existence a WILL of the deceased person in his favour, there cannot be any applicability of the doctrine of election by the natural legal heirs so as to avoid the WILL and to allow all the Suraj Prakash Vs. Joginder Lal 4 legal heirs to inherit the property through intestate succession. Reason is obvious. Not being a legal heir such person would not have any alternate remedy to inherit the property.
3. It is pertinent to note that in Delhi, probate law is not applicable and, therefore, right can be claimed through WILL at any point of time without going through the probate proceeding. No doubt, a person who has any interest in the property can relinquish his right. A member of family jointly entitled for a right in the property may relinquish the right in favour of other members of the family and for that purpose a registered deed may or may not be a requirement depending on the facts. But certainly if a third person wants to relinquish his rights in the property in favour of certain persons who are legal heirs of a deceased person, same can only be done through a registered deed if the amount exceeds Rs.100/-. This is for the reason that through such relinquishment a right is to be created in another.
4. One more point may be noted. Though no one has argued on the point of WILL, I am of the opinion that the factum of WILL has to be accepted as it is. In the present case, there is no dispute that a WILL was in existence in favour of Joginder Lal. This is clear from the WS filed by the Defendants and the replication filed by the Plaintiff. Section-68 of Evidence Act though provides for mode of proving documents but it does not override Section-58 of the Evidence Act. Needless to say that necessity of evidence will only arise when a fact would be required to be proved and not otherwise and, therefore, if the necessity of proving a fact does not arise, there cannot be any necessity of evidence and as such, Section-68 of Evidence Act will not come into picture. Since both the sides have averred about the existence of WILL, this has to be treated as Suraj Prakash Vs. Joginder Lal 5 an admission for the purpose of Section-58 and as such, the fact will need no evidence and, therefore, there will be no applicability of Section-68 of Evidence Act.
5. The above discussion will show that if son of a living daughter of any deceased claims a WILL in his favour and if anyone wants to establish that the said person had agreed to forgo his right in favour of legal heirs of such deceased person, the same can only be done through a registered deed. If oral agreement is being proved or any written unregistered agreement is being proved, the same cannot be treated as sufficient.
6. The above discussion will dispose of one of the disputes of the present case. Another dispute would be as to whether a right to dispose the property can be given to another person in oral manner.
7. I am of the opinion that any person can authorize another to dispose of his property through General Power of Attorney or Special Power of Attorney but there can never be any oral authorization for such purpose. Interestingly, Article-48(f) of the Schedule appended to Indian Stamp Act mandates that if a person issues a Power of Attorney granting a right to dispose the property, the same shall be properly stamped. In such circumstances, if we accept that there can be oral authorization, the same will just negate the entire legislative dictum as by giving oral authorization any person can avoid to pay stamp duty. This provision is a clue to guide that authority to dispose immovable property is to be granted in writing. As such, it is held that there cannot be any oral authorization in a situation where the Attorney obtains a right to dispose the property.
Suraj Prakash Vs. Joginder Lal 68. Having discussed two basic disputes appearing in the present case, we can provide the factual score to the readers of present opinion. One Ralha Ram was the Allottee of the suit property. After his death, one Suraj Prakash had contracted with one Kuldeep Raj, Son of the said Ralha Ram for the sale/purchase of the said property. The version putforth is that the Kuldeep Raj was acting for himself and also on behalf of other LRs of deceased Ralha Ram. It is also the case that though one Joginder Lal i.e. son of the daughter of the Ralha Ram was claiming the existence of a WILL in his favour but had consented that he would not claim any right through WILL. On the basis of the contract entered into in writing and claiming that Rs.10,000/- was paid as a part consideration, the Plaintiff Suraj Prakash filed the present suit against 15 defendants for specific performance on the premise that he was always ready and willing to perform his part of the contract but Defendant was not willing to do so. In the suit, the defendants shown are Joginder Lal as Defendant No.1, Kuldeep Raj as Defendant No.3 and other legal heirs of deceased Ralha Ram as other Defendants. Defendant No.1 to 3 filed a joint WS raising technical objections but primarily contending that there was no agreement, the written agreement was forged, Joginder Lal was having the rights through WILL. Other Defendants did not appear.
9. During the pendency of the suit, certain parties expired and substitution took place. It was only Defendant No.1 who remained contesting the suit and as per latest amended memo of parties, the only person interested in contesting the suit was Sanjeev Chhabra i.e. the son of Defendant No.1 who expired during the pendency of the suit. Sanjeev Chhabra was represented through attorney Shyam Sunder.
Suraj Prakash Vs. Joginder Lal 710. The Ld. Predecessor on 22.01.1990 had framed following issues:
1. Whether the suit of the pltf. is barred by the law of limitation?OP Parties.
2. Whether the suit bed for non-joinder of necessary parties?OPD.
3. Whether the suit is based on forged document as alleged in para no.6 of the PO taken in the WS?OPD.
4. Whether the pltf. is entitled to the decree as prayed for?OPP.
5. Relief.
11. During the evidence, the Plaintiff side examined Vijay Kumar as PW1, official witnesses as PW2, PW3, PW4, PW5, PW6, PW7 and one Kishore Chand Sharma as PW8. Defendant side examined Shyam Sunder i.e. SPA from Defendant No.1 as DW1. Both the sides have been heard.
12. Issue no.1 & 2 both are taken up for consideration. Both the issues appears to have been framed on the basis of preliminary objection no.1 and 2 of the WS. However, it appears that no reason has been provided by the defendants for their claim about limitation and mis- joinder. This type of objection basically do not qualify for specific pleadings and do not require any issue being framed. These type of objections without any details are basically immaterial (see a judgment of division bench of Hon'ble High court of Delhi in Naveen Garg Vs. Rajrani Garg & Anr. RFA (OS) 163/2014 dated 19.08.2015). Be that as it may, the law does not provide that for a mis-joinder the suit can be Suraj Prakash Vs. Joginder Lal 8 dismissed. So far as limitation is concerned, there is no claim that any specific date was fixed for performance of agreement. In such circumstances, the limitation has to be counted from the date when plaintiff becomes aware of refusal for non performance. In the present case, the plaintiff has specifically averred that he came to know about execution of sale deed in favour of defendant no.1 in the year 1982. There is no specific denial in the WS in respect thereof. From this point, the suit is clearly within limitation. The issue no.1 & 2 are decided in favour of the plaintiff.
13. Issue no.3 is taken up for consideration. The WS shows that the defendants are claiming the agreement to be forged but have not provided any reason therefor which is a basic requirement of Order 6 Rule 4 CPC. Apparently, defendant no.1 and 3 have accepted their signatures on the last page of the agreement. It was for the defendants to establish that the agreement was forged. DW1 who is an attorney has no knowledge to the factual position prevailing at the time of execution of the agreement. He was not even present at the time of execution of this agreement or at the time of negotiation. This is clear from a bare perusal of his cross examination. As such, DW1 cannot established that the agreement was forged. Moreover, in the absence of any pleadings as to how and in what manner the forgery was claimed, no evidence can be looked into. We know that nothing can be considered which was not pleaded. Further no amount of evidence can be looked into for anything which has not been pleaded and even if it has been recorded, the same has to be just ignored. If any authority is required, I would refer to Union of India vs Ibrahim Uddin (2012) 8 SCC 148 the ratio whereof has recently been applied by the Hon'ble High Court of Delhi in New Delhi Municipal Council vs Suraj Prakash Vs. Joginder Lal 9 M/S Prominent Hotels Limited on 11 September, 2015. Further, there is no help for the defendants side from the cross examination of plaintiff's witnesses so far as forgery of agreement is concerned. It is clear that the defendants side have failed to establish the forgery. The issue no.3 is decided against the defendants.
14. Issue no.4 is taken up for consideration. Discussion held in earlier paragraphs shows that Joginder Lal could not have orally relinquished his right in the immovable property and Kuldeep Raj could not have claimed oral right of disposition of property on behalf of the other legal heirs. Now even if we accept that signature as a witness by a person interested in the property can be treated as consent to the terms of the document, in the absence of a registered document, we cannot accept that Joginder Lal had forgone his right accruing from the WILL. Similarly, in the absence of written document we cannot accept that Kuldeep Raj was acting on behalf of other legal heirs.
15. Now if we do not accept that Joginder Lal had forgone his rights, the natural legal heirs would not have any right over the property so as to make a contract for selling the same. As such, the execution of agreement by Kuldeep Raj i.e. one of the natural legal heirs cannot confer any right on the plaintiff. So far as Joginder Lal is concerned, he never executed any written agreement in favour of the plaintiff and no amount was ever paid by plaintiff to him. Record shows that the payment of Rs.10,000/- was made by the plaintiff to Kuldeep Raj. The terms of agreement do not show that Joginder Lal was selling his property. Therefore, even on the basis of the concept of assumed consent due to signature as a witness, we cannot accept that Joginder Lal was agreeing to sell his property to the plaintiff.
Suraj Prakash Vs. Joginder Lal 1016. As such, it is held that Joginder Lal who was having the right in immovable property through WILL had not agreed to sell his property to the plaintiff and Kuldeep Raj who had executed the agreement was having no right over the property at all. For the sake of argument, if we were to accept that the Joginder Lal could have forgone the rights in the WILL and this relinquishment were to be accepted as proved, it would not be claimed that without any written authority, the said Kuldeep Raj was having entitlement to contract on behalf of all the legal heirs and as such, the agreement would not have any value even in such situation except that a share of Kuldeep Raj could have been claimed by the plaintiff as the agreement was executed by him. However, in the present case, neither there is any pleading for performing the agreement to the extent of share of Kuldeep Raj nor there is any specific details about the same. So, even on such hypothetical basis, relief cannot be granted to the plaintiff. This agreement therefore cannot be specifically performed. The natural result would be a denial of relief as claimed in the plaint. The issue no.4 is, therefore, decided against the plaintiff.
17. In view of the above discussion, it is held that plaintiff is not entitled for any relief. The suit is dismissed. In the facts and circumstances of the case, parties are left to bear their own costs. Decree be prepared accordingly.
Announced in the open (RAKESH KUMAR SINGH)
court today on 20.01.2016 CJ-11/CENTRAL/DELHI
Suraj Prakash Vs. Joginder Lal 11