Delhi District Court
Geeta @ Nilofer vs Ram Beti on 19 October, 2020
IN THE COURT OF DR. SUDHIR KUMAR JAIN
PRINCIPAL DISTRICT & SESSIONS JUDGE, NORTH-EAST
KARKARDOOMA COURTS, DELHI
CS No. 476537/2015
CNR No. DLNE01-000464-2013
GEETA @ NILOFER
WIFE OF ASLAM KHAN
RESIDENT OF 1172, RAKAB GANJ
BEHIND DELITE CINEMA
DELHI-110006
....PLAINTIFF
V
1. RAM BETI
WIFE OF THE DECEASED
2. RANVEER SINGH
3. RAVI SINGH
SONS OF THE DECEASED
RESIDENT OF A-26,
NEW SEELAMPUR MARKET
DELHI-110053
4. REKHA
WIFE OF VINOD KUMAR
RESIDENT OF HOUSE NO 224, KACHI COLONY
KARDAM PURI, GALI NO 45
DELHI-110045
5. NIRMALA
WIFE OF MANOJ SINGH
RESIDENT OF B-261, GALI NO 5
NEHRU VIHAR, BHAJAN PURA
DELHI-110094
......DEFENDANTS
INSTITUTION: 27.05.2013
ARGUMENTS: 21.09.2020
JUDGMENT:19.10.2020 SUIT FOR PERMANENT AND MANDATORY INJUNCTION AND DECLARATION CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 1/26 JUDGMENT
1. The plaintiff filed present suit under title of permanent and mandatory injunctions and declaration. The plaintiff also claimed relief of partition. The plaintiff pleaded as under:-
The father of the plaintiff namely The deceased (hereinafter referred to as "the deceased") was owner of house bearing no A-26, New Seelampur, Delhi-110053 and shop bearing no 27, Loha Market, Welcome, Delhi (hereinafter referred to as "the suit properties"). The plaintiff performed inter-religion marriage with Aslam Khan in year 1991. The deceased died intestate on 11.07.1998. The plaintiff being one of legal heirs of the deceased is entitled for 1/6th share of the suit properties. The defendants were planning to dispose of share of the plaintiff in the suit properties without effecting partition of the suit properties. The plaintiff came to know on 02.11.2012 and 02.02.2013 that the defendants along with associates intended to create third party interest in the suit properties. The plaintiff being aggrieved filed present suit and prayed as under:-
A. A Decree of permanent injunction may kindly be passed in favour of the plaintiff and against the defendant, restraining the defendants, attorneys, employees, agents from selling, transferring/alienating the property bearing no A-26, New Seelampur Market, Delhi and shop no 27, Loha Market, Welcome Delhi shown red in the site plan attached in the interest of justice.
B. A Decree of declaration may kindly be passed in favour of the plaintiff and against the defendants, declaring the plaintiff as the co-owner/co-sharer of 1/6 share/portion of the above mentioned ancestral property no A-26, New Seelampur, New Delhi and shop no 27, Loha Market, Welcome, Delhi shown in the site plan. C. A Decree of partition may kindly be passed in favour of the plaintiff and against the defendant for 1/6 th share of the plaintiff in whole of the property bearing no A-26, New Seelampur, New Delhi and shop no 27, Loha Market, Welcome, Delhi. D. Any other relief which this Hon'ble Court may deem fit and proper may also be awarded to the plaintiff under circumstances of the case to the plaintiff.
E. Cost of the suit may allow be awarded to the plaintiff and against the defendant accordingly.
2. The defendant no 1 and the defendant no 2 and 3 filed respective written statement and contested the claims of the plaintiff. The defendant no 1 and the defendant no 2 and 3 in preliminary objections stated that one daughter of the defendant no 1 ran away in year 1991 and since then there is no information about said daughter. The deceased during his CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 2/26 life time transferred the suit properties in favor of the defendant no 1. The defendant no 1 already transferred the suit properties in favor of the defendant no 2 and 3. The plaintiff send a notice to the defendant no 1 which was replied vide reply dated 20.06.2012. The suit is liable to be dismissed. The defendant no 1 and the defendant no 2 and 3 on reply on merits denied other pleas taken by the plaintiff. The defendant 4 and 5 were ordered to be proceeded ex parte vide orders dated 02.12.2013 and 26.05.2014 respectively.
3. The plaintiff filed the replications to respective written statement of the defendant no 1 and the defendant no 2 and 3 wherein reasserted and reaffirmed the previous stand.
4. Vide order dated 20.12.2016 following issues were framed:-
1. Whether the plaintiff is entitled for decree of declaration and partition upon 1/6th share prayed in the suit? OPP
2. Whether the plaintiff is entitled for decree of permanent injunction as prayed in the suit? OPP
3. Relief.
5. The plaintiff examined her as PW1 and tendered affidavit which is Ex.PW1/A. The plaintiff relied on documents which are Ex. PW1/1 to Ex. PW1/4, Ex. PW1/6 and Mark A. The plaintiff's evidence was ordered to be closed vide order dated 01.03.2016. The plaintiff as PW1 in cross examination was confronted with documents which are Ex. PW1/X to Ex. PW1/X2. The plaintiff also filed an application under section 151 CPC on 17.04.2018 to lead additional evidence which was dismissed vide order dated 14.01.2019. The plaintiff as reflected from proceedings dated 27.05.2019 filed CM (M) bearing no 613/2019 in High Court of Delhi which was dismissed vide order dated 14.01.2019. The plaintiff thereafter filed a Special Leave Petition bearing no 30922/2019 before the Supreme Court which was disposed of vide order dated 11.09.2019 by holding that contentions of the parties to be decided at appropriate stage by the concerned court.
The defendant no 1 to 3 examined defendant no 1 as DW1, the defendant no 2 as DW2, the defendant no 3 as DW3 and Trivender Singh as DW4 who tendered their respective affidavit which are Ex.DW1/1, Ex.DW2/1, DW3/1 and Ex.DW4/A. The defendant no 1as DW1 relied on documents which are Ex. Ex. DW1/A, DW1/B, Mark A, Ex. DW1/D and Ex. PW1/X1. The defendant no 2 as DW2 and the defendant no 3 as DW3 relied on documents which are Ex. DW2/A and Mark A. Trivender Singh as DW4 referred document which is Ex. PW1/X2. The evidence of the defendants was ordered to be closed CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 3/26 vide order dated 17.09.2016.
6. Sh. Y. S. Chauhan, Advocate for the plaintiff and Sh. Dhananjay Sharma, Advocate for the defendant no 1 to 3 advanced arguments. The respective counsel for the plaintiff and the defendant no 2 and 3 also submitted written arguments which are considered. Record perused.
7. The burden of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims against the defendant and is based on preponderance of the probabilities. Under Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it. Relevant provisions of the Evidence Act, 1872 dealing with burden of proof are produces as under:-
101. Burden of proof.--
Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
102. On whom burden of proof lies.--
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
103. Burden of proof as to particular fact.--
The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
106. Burden of proving fact especially within knowledge.--
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
The Supreme Court in R.V.E. Venkatachala Gounder V Arulmigu Viswesaraswami & V.P. Temple & another,VI(2003)SLT307 observed that whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It was observed in A. Raghavamma & another V Chenchamma & another, AIR 1964 SC 136, there is an CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 4/26 essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. It was observed in Rangammal V Kuppuswami and others, Civil Appeal No 562 of 2003 decided on 13 th May, 2011 by the Supreme Court observed that burden of proof lies on the person who first asserts the fact and not on the one who denies that fact to be true. The responsibility of the defendant to prove a fact to be true would start only when the authenticity of the fact is proved by the plaintiff. In Anil Rishi V Gurbaksh Singh, (2006) 5 SCC 558 it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues. This view was also accepted in M/S. Gian Chand & Brothers and Another V Rattan Lal @ Rattan Singh, (2013) SCR 601.
ISSUE WISE FINDINGS ARE AS UNDER ISSUE NO 1 Whether the plaintiff is entitled for decree of declaration and partition upon 1/6th share prayed in the suit? OPP
8. Partition is an eventuality through which the joint status of a family comes to an end. Partition gives rise to new joint families or nuclear families. Each coparcener has an inherent title to the joint property and all the coparceners together own the whole property. Partition generally means that joint ownership has transformed to separate ownership of the individual coparceners. Partition is also defined as the crystallization of the fluctuating interest of a coparcenary property into a specific share in the joint family estate. It is important that a coparcener must form an intention to partition. There must not be any doubt and ambiguity regarding his intention to partition and get separated from the Hindu joint family property. Once an intention to get separated is formed, it must be followed by an unequivocal, definite and unilateral declaration of partition from the family and enjoy his share in severalty.
9. There appears to be a dispute between contesting parties regarding relationship of the plaintiff with the defendants and the deceased. The plaintiff is pleading her as one of legal heirs of the deceased who was owner of the suit properties. The defendant no 1 and the defendant no 2 and 3 in respective written statement alleged that the plaintiff is not daughter of the deceased and stated that one of daughters of the defendant no 1 ran away CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 5/26 from home and her present whereabouts are not known. The counsel for the plaintiff argued that the plaintiff failed to prove that she was daughter of the deceased and documents relied on by the plaintiff are forged documents.
The plaintiff to prove that she is daughter of the deceased in affidavit Ex. PW1/A deposed that the deceased died on 11.07.1998 leaving behind her and the defendants as first class legal heirs. The plaintiff performed inter religion marriage with Aslam Khan under Special Marriage Act, 1954 vide marriage certificate Ex. PW1/6 and still profess Hindu religion. The plaintiff relied on copies of Delhi Secondary School Examination Certificate Ex. PW1/3, Birth Certificate Ex. PW1/4 and Ration Card Mark A. The plaintiff was cross examined at length to establish that she is not daughter of the deceased and the defendant no 1 and in cross examination denied suggestions that Delhi Secondary School Examination Certificate Ex. PW1/3, Birth Certificate Ex. PW1/4 and Ration Card Mark A are forged and fabricated or that she tried to take benefit of missing of daughter namely Geeta of The deceased. The plaintiff after marriage visited once at parental home at time of death of the deceased. The plaintiff in cross examination conducted on behalf of the defendant no 1 deposed that the defendant no 1 is her mother and denied suggestions that she is not daughter of the deceased and the defendant no 1or that Geeta, daughter of the deceased and the defendant no 1 got married with a Muslim boy after running away from home or that the deceased disowned said Geeta from his properties. The plaintiff admitted that the defendant no 1 vide publication dated 12.03.2013 debarred Geeta from her properties. The defendant no 1 to 3 in their respective affidavit Ex. DW1/1, Ex. DW2/1 and Ex. DW3/1 tendered in evidence deposed that the plaintiff is not daughter of the defendant no 1 and one daughter of the defendant no 1 ran away from house and since then there is no information about her. The defendant no 1 in cross examination deposed that she is having only two daughters i.e. the defendant no 4 and 5 and two sons i.e. the defendant no 2 and 3.The defendant no 1 made complaint Ex. DW1/X1 against her daughter. The defendant no 1 denied suggestions that the plaintiff got married under Special Marriage Act, 1954 after she became major or that the plaintiff expressed to marry with a Muslim boy without converting religion. The defendant no 2 as DW2 in cross examination deposed that the plaintiff ran away from home during life time of the deceased. The defendant no 3 as DW3 was not cross examine regarding relation of the plaintiff with the deceased and the defendants.
10. It is reflecting from material placed and proved on record that the deceased and the CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 6/26 defendant no 1 were husband and wife and out of their marriage two sons i.e. the defendant no 2 and 3 and three daughters i.e. the plaintiff and the defendant no 4 and 5 were born. The plaintiff in year 1991 performed inter religion marriage under Special Marriage Act, 1954 vide Marriage Certificate Ex. PW1/6 which was not consented by the deceased and the defendants. The deceased and the defendants and the plaintiff did not and could not maintain good family relations with each other. However it is proved from evidence on record including documents Ex. PW1/3 and Ex. PW1/4 that the plaintiff is daughter of the deceased and the defendant no 1.
11. The counsel for the defendant no 1 to 3 argued that the present suit is barred under section 19 of Special Marriage Act, 1954. The counsel for the plaintiff argued to contrary. Section 19 reads as under:-
19. Effect of marriage on member of undivided family.--The marriage solemnized under this Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religions shall be deemed to effect his severance from such family.
However section 20 of Special Marriage Act, 1954 provides that rights and disabilities as to right of succession to any property are not affected by the Act. It reads as under:-
20. Rights and disabilities not affected by Act.--Subject to the provisions of section 19, any person whose marriage is solemnized under this Act shall have the same rights and shall be subject to the same disabilities in regard to the right of succession to any property as a person to whom the Caste Disabilities Removal Act, 1850 (21 of 1850), applies.
The perusal of section 20 reflects that severance within ambit of section 19 does not affect rights and liabilities to succession to any property. The present suit is not barred under section 19 of Special Marriage Act, 1954.
12. The plaintiff is claiming 1/6th share in the suit properties owned by the deceased being his one of legal hairs by pleading that the deceased died intestate on 11.07.1998. The burden was on the plaintiff to prove that she is entitled to 1/6 th share in the suit properties. The plaintiff to prove her case deposed above facts in affidavit Ex. PW1/A. The defendant no 1 and the defendant no 2 and 3 alleged that the deceased during his life time transferred the suit properties in name of the defendant no 1 and thereafter the defendant no 1 transferred the suit properties in favor of the defendant no 2 and 3. Issues which need judicial determination and adjudication is that whether the deceased executed Will CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 7/26 dated 25.03.1997 Ex. PW1/X2 in favor of the defendant no 1 and thereafter the defendant no 1 sold the suit properties to the defendant no 2 and 3 by executing title documents Ex. DW2/A and Mark A and whether the defendant no 2 and 3 acquired right, title and interest in the suit properties on basis of title documents Ex. DW2/A and Mark A. The counsel for the plaintiff argued that the deceased who was owner of the suit properties died intestate and as such the plaintiff is entitled to 1/6 th share in the suit properties. The deceased never executed any Will in favor of the defendant no 1 and Will relied on by the defendant no 1 to 3 is forged and fabricated by them. The defendant no 1 to 3 did not refer Will dated 25.03.1997 Ex. PW1/X2 in their respective written statement. The plaintiff as PW1 was not cross examined as to execution of Will dated 25.03.1997 Ex. PW1/X2 by the deceased in favor of the defendant no 1. The defendant no 1 did not mention about execution of Will dated 25.03.1997 Ex.PW1/X2 in documents Ex. DW2/A. The counsel for the defendant no 1 to 3 argued that the plaintiff could not prove that the deceased was owner of the suit properties. The defendant no 1 to 3 proved execution of Will dated 25.03.1997 Ex. PW1/X2 by examining them as well as by examining attesting witness Trivender Singh as DW4. The plaintiff did not seek cancellation of documents executed by the defendant no 1 in favor of the defendant no 2 and 3. The plaintiff also concealed material facts.
13. It is apparent that neither the plaintiff nor the defendant no 1 to 3 place and prove title documents in favor of the deceased in respect of the suit properties. The defendant no 1 to 3 on one hand disputing ownership of The deceased in respect of the suit properties and on other hand the defendant no 1 to 3 are relying on Will dated 25.03.1997 Ex. PW1/X2 executed by the deceased in favor of the defendant no 1. The defendant no 1 to 3 even in respective written statement did not deny ownership of the deceased in respect of the suit properties. The defendant no 3 as DW3 in cross examination admitted that the deceased was owner of the suit properties. It is proved from respective pleadings and evidence of the plaintiff and the defendant no 1 to 3 that the deceased was owner of the suit properties. There is no force in arguments advanced by counsel for the defendant no 1 to 3 that the deceased was not owner of the suit properties.
14. Any person can make Will in his life. Will is a unilateral document and legal declaration of intention of a person with respect to his property for disposition to take effect after his death. It can be revoked or altered by the maker of it at any time and is CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 8/26 enforceable only after death of a testator. A Will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the Indian Succession Act, 1925. Section 2(h) of the Act defines Will which means the legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death. Section 63 of the Act mandates that the testator has to sign or affix his mark in the presence of two or more attesting witnesses. It is not necessary that the two attesting witnesses should simultaneously be present to witness the execution of the Will. The combined reading of Section 63 of the Act and Section 68 of the Indian Evidence Act, 1872 makes clear that a person propounding Will must prove that Will was duly and validly executed and this cannot be done by simply proving that the signature on the Will is that of the testator but by also proving that the attestations made on Will are in the manner as required by clause (c) of Section 63 of the Act.
15. A Will has to be proved like any other document except as to the special requirements of attestation prescribed by section 63 of the Act. In H. Venkatachala Iyengar V B. N. Thimmajamma & Others, 1959 SCR Supl (1) 426 the Supreme Court considered true legal position regarding proof of Wills. It was observed that it would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by section 63 of the Act and it would be ideal to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. It was further observed as under:-
(T)here is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will.
Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 9/26 taken to be discharged on proof of the essential facts just indicated. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence.
In Jaswant Kaur V Amrit Kaur, (1977)1SCC369 the Supreme Court regarding suspicion in execution of Will observed that suspicion generated by the distrustful circumstances cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory when the Will was made or that those like the wife and children of the testator, who would normally receive their due share in the estate, were disinherited because the testator might have had seen reasons for excluding them. It was underscored that it was obligatory for the propounder to remove all legitimate suspicions before the document could be accepted as the last Will of the testator.
CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 10/26 In Jagdish Chand Sharma V Narain Singh Saini (Dead) through Legal Representatives and others, (2015) 8 SCC 615, the Supreme Court observed as under:-
A propounder has to demonstrate that the Will was signed by the testator and that he was at the relevant time in a sound disposing state of mind and that he understood the nature and effect of the disposition and further that he had put his signature to the testament on his own free will and that he had signed it in presence of two witnesses who had attested it in presence and in the presence of each other. . . . though on the proof of the above facts, the onus of the propounder gets discharged, there could be situations where the execution of a Will may be shrouded by suspicious circumstances such as doubtful signature, feeble mind of the testator, overawed state induced by powerful and interested quarters, prominent role of the propounder, unnatural, improbable and unfair bequests indicative of lack of testator's free will and mind etc. In all such eventualities, the conscience of the Court has to be satisfied and thus the nature and quality of proof must be commensurate to such essentiality so much so to remove any suspicion which may be entertained by any reasonable and prudent man in the prevailing circumstances. It was propounded further that where the caveator alleges undue influence, fraud and coercion, the onus, however, would be on him to prove the same, and on his failure, probate of the Will must necessarily be granted if it is established that the testator had full testamentary capacity and had in fact executed it validly with a free will and mind.
16. In Prakash Soni V Deepak Kumar, Civil Appeal No 6388 of 2009 decided on 15 September, 2017 decided by the Supreme Court, the entire case centers around the proof of due execution of the alleged executed by the deceased who died on 18.11.2001. The deceased allegedly executed Will in question before the Oath Commissioner on 18.11.2001 in the early hours. The witnesses on behalf of the respondents deposed that there was no cordial relationship between the appellant and the deceased for ten years prior to her death. They also deposed about the cancellation of the nomination made earlier in favor of the appellant. Admittedly Will was executed between 7 to 8 a.m. on 18.11.2001 and after few hours she expired on the very same date. The attesting witness and other witnesses who were allegedly present at the time of the execution of the Will admitted that the hands of the deceased were shivering while signing Will and the deceased was very weak and was administered drip. The health condition of the deceased had deteriorated when the drip was being administered. It was observed as under:-
The propounder of the will was not successful in proving that the will CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 11/26 was executed in a healthy state of mind as well as body of the deceased and without any pressure. The will is surrounded by suspicious circumstances. The condition of the testator's mind and body was very feeble and debilitated. The signature of the testator was allegedly taken on the death bed while she was administered drip. The dispositions made in the will may not be the result of the testator's free will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. Since there are many suspicious circumstances narrated above, and as we are satisfied that the dispositions made in the alleged will may not be as a result of testator's free will and mind, the Civil Court as well as the High Court are not justified in coming to the conclusion that the will is duly executed by the deceased. The respondents being the propounders of the will have failed to satisfy the judicial conscience of this Court regarding due execution of the will. Since the suspicious circumstances relate to the genuineness of the signatures of the testator, as well as the condition of the testator's mind and the dispositions made in the will being unfair, the judgment of the High Court restoring the judgment of the Civil Court is liable to be set aside.
In Sanjeev Juneja V State & Others, FAO 368/1999 decided on 27 September, 2017 by the High Court of Delhi the appellant was one of the sons of the testator who passed away on 15.02.1991 leaving behind Will and testament executed and registered on 19.10.1990. The appellant filed a petition for grant of probate in respect of Will. The petition was contested by some legal heirs of the deceased. The petition was dismissed. Hence Appeal. The testator was aged about 77 years in October, 1990 was a well-educated person holding the degrees of B.A. and LL.B and was conversant with different language. The testator served till about 1974 as Section Officer with Life Insurance Corporation (LIC) and was the owner of immoveable property. The testator suffered paralytic stroke in July, 1987. The High Court of Delhi referred H.Venkatachala Iyengar V B.N. Thimmajamma, AIR 1959 SC 443 and Shashi Kumar Banerjee V Subodh Kumar Banerjee, AIR 1964 SC 529 wherein principles governing mode of proof of a Will before a probate court were discussed and it was held that onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 12/26 required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same.
The Patna High Court in Shri Devi V Dewanti Devi, MA No.449 of 2012 decided on 26 July, 2016; the Madhya Pradesh High Court in Ramjilal & another V Mahila Hargobai & another, S.A. No.14/2002 decided on 4 July, 2019; The High Court of Delhi in Desh Raj Gupta V State & others, FAO (OS) No.237 OF 2009 decided on 14 July, 2010; the Kerala High Court in Devassykutty V Visalakshy Amma, RSA.No. 1128 of 2003(A) decided on 29 June, 2010 also made similar observations.
17. The plaintiff pleaded and deposed in affidavit Ex. PW1/A that her father the deceased was owner of the suit properties who died intestate on 11.07.1998. The plaintiff as PW1 in cross examination conducted on behalf of the defendant no 1 denied suggestions that the deceased transferred the suit properties in name of the defendant no 1 by way of documents and Will and in cross examination conducted on behalf of the defendant no 2 and 3 deposed that Will Ex. PW1/X2 does not bear signature of the deceased and denied suggestion that the deceased transferred the suit properties in favor of the defendant no 1.
The defendant no 1 to 3 alleged that the deceased executed Will dated 25.03.1997 in favor of the defendant no 1 in respect of the suit properties and also deposed in their respective affidavits tendered in evidence about execution of Will dated 25.03.1997 Ex. PW1/X2. The defendant no 1 as DW1 in cross examination deposed that the deceased executed registered sale deed in her favor and denied suggestion that the deceased did not execute any Will and due to this reason she did not refer Will in reply to notice. The defendant no 2 in cross examination deposed that no probate petition was filed in respect of Will Ex. PW1/X2 and denied suggestion that Will Ex. PW1/X2 is a forged and fabricated. The defendant no 2 as DW2 admitted that Will Ex. PW1/X2 is not mentioned in documents Ex. DW2/A. The defendant no 3 in cross examination deposed that the suit properties were owned by the deceased who did not execute any sale deed during his life time but deposed that he executed Will in favor of the defendant no 1. Will Ex. PW1/X2 was not referred in reply to notice and written statement. DW4 Trivender Singh was an attesting witness in execution of Will dated 25.03.1997 Ex. PW1/X2 and in affidavit Ex. DW4/A deposed that he was a witness to execution of Will dated 25.03.1997 Ex. PW1/X2 which was executed by the deceased in his presence and he also signed at point B. DW4 Trivender Singh in CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 13/26 cross examination deposed that the deceased signed Will Ex. PW1/X2 in his presence and one more witness was also present at time of execution of Will Ex. PW1/X2. DW4 Trivender Singh denied suggestions that Will dated 25.03.1997 Ex. PW1/X2 was not executed or that Will dated 25.03.1997 Ex. PW1/X2 is a forged and fabricated and was prepared from back date or that Will dated 25.03.1997 Ex. PW1/X2 was never executed by The deceased.
18. The defendant no 1 to 3 in respective written statement did not specifically mention about execution of Will dated 25.03.1997 Ex. PW1/X2 in favor of the defendant no 1 by the deceased. The plaintiff sent a legal notice Ex. PW1/X to the defendant no 1 for seeking partition of the suit properties which was replied by the defendant no 1 vide reply dated 20.06.2012 Ex. PW1/X1. The perusal of reply dated 26.06.2012 Ex. PW1/X1 reflects that the defendant no 1 did not specifically mention about execution of Will dated 25.03.1997 Ex. PW1/X2 in her favor by the deceased in respect of the suit properties. However the defendant no 1 in reply dated 26.06.2012 Ex. PW1/X1 specifically mentioned that she is owner of the suit properties. The defendant no 1 to 3 in respective written statement mentioned that the deceased during his life time transferred the suit properties in favor of the defendant no 1. The defendant no 1 to 3 were cross examined by the plaintiff regarding execution of Will dated 25.03.1997 Ex. PW1/X2. The defendant no 1 in cross examination denied suggestion that the deceased did not execute Will in her favor. The defendant no 2 as DW2 denied suggestion that Will Ex. PW1/X2 is a forged and fabricated. The defendant no 3 in cross examination deposed that the deceased did not execute any sale deed during his life time but deposed that he executed Will in favor of the defendant no 1. There is nothing in cross examination of the defendant no 1 to 3 which can raise doubts about execution of Will dated 25.03.1997 Ex. PW1/X2.
19. Will dated 25.03.1997 Ex. PW1/X2 is perused. The perusal of Will dated 25.03.1997 Ex. PW1/X2 reflects that it was executed by the deceased in favor of the defendant no 1 in presence of two witnesses including DW4 Trivender Singh in respect of the suit properties. The relevant portion of Will dated 25.03.1997 Ex. PW1/X2 is reproduced verbatim as under:-
a) Whereas the testator is the absolute owner of a built up property bearing no A-26, land measuring area 40 sq. yards construction right up to the last storey, situated at New Seelampur, Delhi-53.
b) Whereas the testator is the absolute owner and alsi in possession of a built up shop no 27, land measuring area 50 sq. yards, situated at CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 14/26 Welcome Loha Market, Seelampur-IIIrd, Illaqa Shahdara, Delhi-53.
Till the testator is alive he will remain the absolute owner of the above said property and after the death of the said Testator the said Beneficiary shall be owner of the above said property. I have executed this will without any pressure of any person. This is my first and last will in respect of the above said property.
20. DW4 Trivender Singh in affidavit Ex. DW4/A deposed about execution of Will dated dated 25.03.1997 Ex. PW1/X2 in his presence by the deceased. DW4 Trivender Singh in cross examination also deposed that the deceased signed Will Ex. PW1/X2 in his presence and one more witness was also present at time of execution of Will Ex. PW1/X2. DW4 Trivender Singh was cross examined by giving suggestions that Will Ex. PW1/X2 was not executed by The deceased and Will Ex. PW1/X2 is a forged and fabricated which were denied by DW4 Trivender Singh. There is nothing in cross examination of DW4 Trivender Singh which can shake credibility and reliability of testimony of DW4 Trivender Singh. The critical and analytical analysis of evidence led by the contesting parties proved that the deceased executed Will dated 25.03.1997 Ex. PW1/X2 in favor of the defendant no 1 in respect of the suit properties and the suit properties were bequeathed in favor of the defendant no 1. There is no evidence to prove that the deceased was not in sound disposing mind at time of execution of Will dated 25.03.1997 Ex.PW1/X2.
21. If the deceased bequeathed the suit properties in favor of the defendant no 1 to exclusion of other legal heirs it does not put Will dated 25.03.1997 Ex. PW1/X2 in suspicious circumstances. The Supreme Court in Uma Devi Nambiar V T.C. Sidhan, (2004) 2 SCC 321, and Pentakota Satyanarayana V Pentakota Seetharatnam, (2005) 8 SCC 67 observed that active participation of the propounder or beneficiary in the execution of the Will or exclusion of the natural heirs need not or necessarily lead to an inference that the Will was not genuine. It was observed in Uma Devi Nambiar that a will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favor of an offspring. In P.P.K. Gopalan Nambiar V P.P.K. Balakrishnan Nambiar, 1995 Supp CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 15/26 (2) SCC 664 it was observed that it is the duty of the propounder of the will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstance, the court has to give effect to the will, even if the will might be unnatural in the sense that it has cut off wholly or in part near relations. In Rabindra Nath Mukherjee V Panchanan Banerjee,(1995) 4 SCC 459 it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of will. The Supreme Court in Mahesh Kumar (dead) by LRs. V Vinod Kumar & Others, (2012) 4 SCC 387 observed that the evidence unmistakably showing that the objectors had separated from the family, taking their respective shares, not bothering to look after the parents in their old age, there was "nothing unnatural or unusual" in the decision of the testator (the father) to give his share in the joint family property to the son who, along with his wife and children, had taken care of the parents. The High Court of Delhi in Hari Singh & another V State & another, 2010 (120) DRJ 716 after following Uma Devi Nambiar observed as under:-
Courts are not expected to be satisfied that a bequeathal is rational or not; what has to be considered is whether the bequest was so unnatural that the testator could not have made it. ... There is nothing in law that prescribes that the testamentary document has to be made and executed on the same day. Law does not mandate that each of the witnesses must be aware of the contents of the Will and the nature of the bequests. The rigours of attestation endeavour to eradicate manipulation and fabrication of such a testament by mandating that the testator as well as the witnesses should be simultaneously present at the time of its execution; nothing more and nothing less. Though there is no categorical evidence coming forth on the record, we do not find this fact to be legally anomalous or suspicious as to impeach the entire case of the appellant/petitioner.
22. There are no material contradictions in the testimonies of witnesses examined by the defendant no 1 to 3 sufficient to create suspicion regarding execution of Will dated 25.03.1997 Ex. PW1/X2. The defendant no 1 to 3 by leading appropriate evidence removed all suspicious circumstances regarding execution of Will dated 25.03.1997 Ex. PW1/X2. The plaintiff could not raise real, germane and valid suspicious features regarding execution of Will dated 25.03.1997 Ex. PW1/X2. There is nothing unnatural or unusual in the decision of the deceased to give the suit properties to the defendant no 1 to exclusion of other legal heirs. The plaintiff could not prove any suspicious circumstance in CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 16/26 execution of Will dated 25.03.1997 Ex. PW1/X2. The deceased executed a valid Will dated 25.03.1997 Ex.PW1/X2 in favor of the defendant no1.
23. The defendant no 1 and the defendant no 2 and 3 in respective written statement alleged that the defendant no 1 transferred the suit properties in favor of the defendant no 2 and 3 which was also in knowledge of the plaintiff. The defendant no 1 in affidavit Ex. DW1/1 deposed that she has transferred the suit properties in favor of the defendant no 2 and 3. The defendant no 2 and 3 in respective affidavit Ex. DW2/1 and Ex. DW3/1 deposed that the defendant no 1 transferred the suit properties in their favor on execution of General Power of Attorney, Agreement to Sell, Possession Letter etc. which are Ex. DW2/A and Mark A. The defendant no 2 as DW2 in cross examination deposed that he paid sale consideration amounting to Rs. 9,50,000/- in cash to the defendant no 1. The defendant no 1 did not execute any sale deed either registered or unregistered in favor of the defendant no 2 and 3. The defendant no 3 in cross examination admitted that the defendant no1 is still residing in house bearing no A-26 i.e. one of the suit properties. The defendant no 1 executed a sale deed in favor of the defendant no 2 and 3 but later improved testimony by deposing that he cannot tell nature of documents. The defendant no 1 has taken sale consideration from the defendant no 2 and 3 which was paid in cash. The evidence led by the defendant no 1 and the defendant no 2 and 3 reflects that the defendant no 2 and 3 are claiming to be present owners of the suit properties having purchased from the defendant no 1 on payment of sale consideration and relied on two different General Power of Attorney and one Will Ex. DW2/A (collectively) and two different Agreements to Sell, Affidavits, Possession Letters and Receipts Mark A (collectively) in respect of the suit properties as title documents stated to be executed by the defendant no 1. The counsel for the plaintiff argued that the defendant no 1 was not legally competent to transfer the suit properties in favor of the defendant no 2 and 3 and General Power of Attorneys Ex. DW2/A do not confer ownership right in respect of the suit properties.
24. The law gives a person who acquires or owns an immovable property right to use, lease, sell, rent or transfer/gift of the land. The transactions for purchasing/selling/transferring/creating an interest in immovable property and transmission of title in respect of a property are governed by various legal provisions. The transfer of property between two parties is governed by the Transfer of Property Act, 1882. Section 5 defines Transfer of Property. An immovable property can be transferred by different modes which are sale, mortgage, lease, gift, exchange etc. The essential elements of a sale are CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 17/26 parties to a sale, subject matter of sale, price or consideration and mode of execution of sale. Section 54 of the transfer of Property Act, 1982 defines sale.
25. Admittedly the defendant no 1 did not execute sale deed in favor of the defendant no 2 and 3. The issue which needs judicial consideration and determination is that whether General Power of Attorney, Agreement to Sale and other documents constitute valid transfer of the immovable property in absence of execution of sale deed. The Supreme Court in Suraj Lamp & Industries Private Limited V State of Haryana & another, 2009 (7) SCC 363 referred to the ill - effects of sales through General Power of Attorney or Sale Agreement/General Power of Attorney/Will transfers (for short `SA/GPA/WILL' transfers) and observed that there cannot be a sale by execution of a power of attorney nor can there be a transfer by execution of an agreement of sale and a power of attorney and will. The Supreme Court of India again in Suraj Lamp & Industries Private Limited V State of Haryana & another, Special Leave Petition (C) No 13917 of 2009 decided on 11th October, 2011 highlighted modus operandi in SA/GPA/WILL transactions and observed as under:-
The modus operandi in such SA/GPA/WILL transactions is for the vendor or person claiming to be the owner to receive the agreed consideration, deliver possession of the property to the purchaser and execute the following documents or variations thereof:
(a) An Agreement of sale by the vendor in favour of the purchaser confirming the terms of sale, delivery of possession and payment of full consideration and undertaking to execute any document as and when required in future.
Or An agreement of sale agreeing to sell the property, with a separate affidavit confirming receipt of full price and delivery of possession and undertaking to execute sale deed whenever required.
(b) An Irrevocable General Power of Attorney by the vendor in favour of the purchaser or his nominee authorizing him to manage, deal with and dispose of the property without reference to the vendor.
Or A General Power of Attorney by the vendor in favour of the purchaser or his nominee authorizing the attorney holder to sell or transfer the property and a Special Power of Attorney to manage the property.
(c) A will bequeathing the property to the purchaser (as a safeguard against the consequences of death of the vendor before transfer is CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 18/26 effected).
It was also observed that these transactions are not to be confused or equated with genuine transactions where the owner of a property grants a power of Attorney in favor of a family member or friend to manage or sell his property as he is not able to manage the property or execute the sale, personally. These are transactions where a purchaser pays the full price but instead of getting a deed of conveyance gets a SA/GPA/WILL as a mode of transfer either at the instance of the vendor or at his own instance.
26. The Supreme Court after considered relevant provisions of the Transfer of Property Act, 1882(hereinafter referred to as "the Act") to examine validity and legality of SA/GPA/WILL transactions. Section 5 of the Act defines transfer of property reads as under:-
Transfer of Property defined : In the following sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself or to himself and one or more other living persons; and "to transfer property" is to perform such act.
Section 54 of the Act defines sales and reads as under:-
"Sale" defined.--''Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made.--Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale.--A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property.
CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 19/26 Section 53A of the Act defines part performance and reads as under:-
Part Performance. - Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract :
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
27. The Supreme Court also referred other relevant legal provisions. Section 27 of the Indian Stamp Act, 1899 casts upon the party, liable to pay stamp duty, an obligation to set forth in the instrument all facts and circumstances which affect the chargeability of duty on that instrument. Article 23 prescribes stamp duty on Conveyance. Section 17 of the Registration Act, 1908 makes a deed of conveyance compulsorily registrable. The Supreme Court considered Scope of an Agreement of sale and observed that Section 54 makes it clear that a contract of sale i.e. an agreement of sale does not create any interest in or charge on property and referred Narandas Karsondas V S.A. Kamtam and another, (1977) 3 SCC 247 wherein it was observed that a contract of sale does not of itself create any interest in or charge on the property as expressly declared in Section 54 of the Act. Regarding protection under section 53A of the Act the Supreme Court referred Rambhau Namdeo Gajre V Narayan Bapuji Dhotra, 2004 (8) SCC 614 wherein it was held under:-
Protection provided under Section 53A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 20/26 who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party.
The Supreme Court held that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed) and in absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of the Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of the Act). An agreement of sale whether with possession or without possession is not a conveyance. Section 54 of the Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter. The Andhra High Court in Gaddam Laxmaiah and others V The Commissioner and Inspector General, Registration and Stamps Department, WP No 20683/2012 and WP No 2192/ 2013 decided on 30 th April, 2013 observed that the transfer of property from one person to another is governed by different statutory enactments. The Indian Contract Act, 1872, the Specific Relief Act, 1963 and the Transfer of Property Act, 1882 are substantive laws governing transfer of property. The Indian Evidence Act, 1872, the Registration Act, 1908 and the Indian Stamp Act, 1899 are the procedural or adjutant laws which also govern the transactions involving transfer of immovable property. Section 54 of the Transfer of Property Act, 1882 defined "sale" which made clear that a contract for the sale of immovable property does not by itself create any interest or charge on such property. The Agreements to Sell Mark A as such stated to be executed by the defendant no1 in favor of the defendant no 2 and 3 do not confer any right, title or interest in respect of the suit property.
28. The defendant no 2 and 3 also relied on two General Power of Attorney Ex. DW2/A stated to be executed by the defendant no 1 in their favor for claiming ownership in respect of the suit properties. A Power of Attorney may be General Power of Attorney whereby the principal grants the Power of Attorney holder all such powers which are necessary to accomplish the objects for which such Power of Attorney is given and Special Power of CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 21/26 Attorney whereby the principal wants the Power of Attorney holder to exercise only such powers as are specified in the Power of Attorney deed. The Supreme Court regarding scope of Power of Attorney in Suraj Lamp & Industries Private Limited V State of Haryana & another, Special Leave Petition (C) No 13917 of 2009 decided on 11th October, 2011 held that a power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him as per sections 1A and section 2 of the Powers of Attorney Act, 1882. It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. The decision in State of Rajasthan V Basant Nehata , 2005 (12) SCC 77 was referred wherein it was observed that a grant of power of attorney is essentially governed by Chapter X of the Contract Act. A deed of power of attorney is executed by the principal in favor of the agent. An attorney holder may execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor. The Andhra High Court in Gaddam Laxmaiah and others V The Commissioner and Inspector General, Registration and Stamps Department, WP No 20683/2012 and WP No 2192/ 2013 decided on 30th April, 2013 also took similar view. Two General Power of Attorneys Ex. DW2/A stated to be executed by the defendant no 1 in favor of the defendant no 2 and 3 do not confer any right, title and interest or ownership in respect of the suit properties.
29. The defendant no 2 and 3 also relied on Will Ex. DW2/A stated to be executed by the defendant no 1 in their favor for claiming ownership in respect of the suit properties. The Supreme Court regarding scope of Will in Suraj Lamp & Industries Private Limited V State of Haryana & another, Special Leave Petition (C) No 13917 of 2009 decided on 11th October, 2011 observed that a Will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivos. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator. Will Ex. DW2/A stated to be executed by the defendant no 1 in favor of the defendant no 2 and 3 does not confer any right, title and interest or ownership in respect of the suit properties.
30. The Supreme Court regarding validity of transaction through General Power of CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 22/26 Attorney, Agreement to Sale and Will in Suraj Lamp & Industries Private Limited V State of Haryana & another, Special Leave Petition (C) No 13917 of 2009 decided on 11th October, 2011 concluded that a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. It was reiterated that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. It was held as under:-
Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property.
They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.
It has been submitted that making declaration that GPA sales and SA/GPA/WILL transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularize the transactions by obtaining deeds of conveyance. It is also submitted that this decision should be made applicable prospectively to avoid hardship.
We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WILL transactions are not `transfers' or `sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale.
The defendant no 2 and 3 as such on basis of title documents Ex. DW2/A and Mark A cannot claim any ownership in respect of the suit properties.
31. The plaintiff is seeking declaration for declaring her as the co-owner/co-sharer of the suit properties as shown in site plans Ex. PW1/1 and Ex. PW1/2 to extent of 1/6 th share. Section 34 of Specific Relief Act, 1963 deals with relief of declaration. It reads as under:-
CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 23/26 Section 34.-- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Section 34 provides that a suit against any person denying or interested to deny the plaintiffs' title to the legal character or right to any property can be filed. To obtain the relief of declaration the plaintiff must establish that (1) the plaintiff was at the time of the suit entitled to any legal character or any right to any property (ii) the defendant had denied or was interested in denying the character or the title of the plaintiff, (iii) the declaration asked for was a declaration that the plaintiff was entitled to a legal character or to a right to property (iv) the plaintiff was not in a position to claim a further relief than a bare declaration of his title. It is a discretionary relief.
32. It is proved that the deceased during his life time executed Will dated 25.03.1997 Ex. PW1/X2 whereby bequeathed the suit properties in favor of the defendant no1. The plaintiff is not entitled to be declared as one of the co-owners in respect of the suit properties to extent of 1/6th share and partition of the suit properties as shown in site plans Ex. PW1/1 and Ex. PW1/2 as prayed for. Issue no 1 is decided against the plaintiff and in favor of the defendant no 1 to 3.
ISSUE NO 2 Whether the plaintiff is entitled for decree of permanent injunction as prayed in the suit? OPP
33. The plaintiff pleaded and deposed that the defendants were planning to dispose of share of the plaintiff in the suit properties as shown in site plans Ex. PW1/1 and Ex. PW1/2 without effecting partition. The plaintiff came to know on 02.11.2012 and 02.02.2013 that the defendants along with associates intended to create third party interest in the suit properties. The plaintiff prayed that a decree of permanent injunction be passed against the defendants for restraining the defendants and their attorneys, employees, agents etc from selling or transferring/alienating the suit properties as shown in site plans Ex. PW1/1 and Ex. PW1/2.
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34. Section 37(2) of the Specific Relief Act, 1963 lays down that a permanent injunction can only be granted by a decree at the hearing and upon the merits of the case. In simple words, for obtaining a permanent injunction, a regular suit is to be filed in which the right claimed is examined upon merits and finally, the injunction is granted by means of judgment. A permanent injunction therefore finally decides the rights of a person whereas a temporary injunction does not do so. A permanent injunction completely forbids the defendant to assert a right which would be contrary to the rights of the plaintiff specifies certain circumstances under which permanent injunction may be granted. Section 38 reads as under:-
38. Perpetual injunction when granted.--
(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:--
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
35. The plaintiff could not prove that the suit properties as shown in site plans Ex. PW1/1 and Ex. PW1/2 are liable for partition and the plaintiff is entitled for 1/6 th share in the suit properties as shown in site plans Ex. PW1/1 and Ex. PW1/2 being legal heir of the deceased. It is proved that the deceased was owner of the suit properties and during his life time bequeathed the suit properties in favor of the defendant no 1 by executing Will dated 25.03.1997 Ex. PW1/X2. The plaintiff is not entitled for relief of permanent injunction. Issue no 2 is decided against the plaintiff and in favor of the defendant no 1 to 3.
ISSUE NO 3 RELIEF
36. The entire journey of the judicial process is to find the truth from the pleadings, CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 25/26 documents and evidence of the parties. Truth is the basis of the justice. The Supreme Court in A.S. Narayana Deekshitulu V State of A.P., (1996) 9 SCC 548 observed that from the ancient times, the constitutional system depends on the foundation of truth. In Zahira Habibullah Sheikh V State of Gujarat, (2006) 3 SCC 374 it was observed that right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The Supreme Court in Dalip Singh V State of UP, (2010)2SCC114 observed that truth constituted an integral part of the justice delivery system. In Maria Margarida Sequeria Fernandes V Erasmo Jack de Sequeria, (2012)5SCC370, it was observed that the truth should be guiding star in the entire judicial process. Truth alone has to be the foundation of justice. This view was reiterated in A. Shanmugam V Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, (2012)6SCC430. In view of findings on issue no 1 and 2 the suit of the plaintiff is dismissed. The plaintiff and the defendant no 1 to 3 shall bear their own costs. Decree-sheet be prepared accordingly. File be consigned to record room.
ANNOUNCED IN THE OPEN
COURT ON 19TH OCTOBER, 2020
Digitally signed (DR. SUDHIR KUMAR JAIN)
by Sudhir
PRINCIPAL DISTRICT AND SESSIONS JUDGE
Sudhir Kumar Jain
Location: NORTH EAST
Kumar Karkardooma
courts, Delhi
KARKARDOOMA COURTS, DELHI
Date:
Jain 2020.10.19
14:51:53
+0530
CS 476537/15 GEETA @ NILOFAR V RAM BETI AND OTHERS 26/26