Delhi District Court
Munni Devi vs Raj Kumar on 9 December, 2023
IN THE COURT OF CIVIL JUDGE-02, SHAHDARA
DISTRICT, KARKARDOOMA COURTS, DELHI
Presided by : Aman Kumar Sharma, DJS
Civil Suit No: 1087/17
Smt. Munni Devi ( Since deceased represented through LRs.)
W/o Late Sh. Prem Kumar
1. Ms. Anita
D/o Late Sh. Prem Kumar
W/o Sh. Ashok Kumar
R/o P-64, Gali no. 10, Shankar Nagar,
Delhi-110051
2. Ms. Geeta
D/o Late Sh. Prem Kumar
W/o Sh. Manoj Kumar
R/o RZ 199, Gali no. 3, Karan Vihar,
Part 1, Kirahi, Delhi-110086
3. Ms. Sita
D/o Late Sh. Prem Kumar
R/o 9/5610, Gali no. 12,
Old Seelampur, Shubhash Mohalla,
Gandhi Nagar, Delhi-110031
4. Sh. Rajkumar
S/o Late Sh. Prem Kumar (Defendant no. 1)
5. Sh. Devendar
S/o Late Sh. Prem Kumar (Defendant no. 2)
6. Sh. Amit Verma
S/o Late Sh. Prem Kumar
R/o 9/5610, Gali no. 12,
Old Seelampur, Shubhash Mohalla,
Gandhi Nagar, Delhi-110031
... Plaintiffs
Civil Suit No.1087/17
Munni Devi Vs Raj Kumar
Page No.1 of 22
Versus
1. Sh. Rajkumar Verma
S/o Late Sh. Prem Kumar
2. Sh. Devendar Verma (Since deceased represented through
LR)
S/o Late Sh. Prem Kumar
(a) Mr. Ishu Verma
Both resident of 9/5610, Gali no. 12,
Shubhash Mohalla, Old Seelampur
Gandhi Nagar, Delhi-110031
... Defendants
SUIT FOR POSSESSION, PERMANENT AND
MANDATORY INJUNCTION
DATE OF INSTITUTION : 22.09.2017
DATE OF FINAL ARGUMENTS : 30.11.2023
DATE OF DECISION : 09.12.2023
JUDGMENT
1. The plaintiff has filed the present suit against the defendants seeking reliefs of possession, permanent and mandatory injunction. The exact prayer made in the plaint of the present suit, is reproduced below:-
"(a) Pass the decree of possession of the suit premises as delineated in red in the site plan attached with the suit.
(b) Pass a decree of a permanent and mandatory injunctions against the defendants and its associates, assignee, nominee etc., who may be injuncted, restrained from interfering in the peaceful enjoyment of the premises in question and direct the defendants to Civil Suit No.1087/17 Munni Devi Vs Raj Kumar Page No.2 of 22 account the income from the shop as mentioned in the body of the suit.
(c) Any other or futher orders which may deem fit and proper in the facts and circumstances the case may also be granted in favour of the plaintiff and against the defendant."
2. In order to justify the grant of the aforesaid reliefs/prayer, it is inter-alia pleaded in the plaint of the present suit that she is a permanent resident of property bearing no. 9/5610, Gali no. 12, Shubhash Mohalla, Old Seelampur, Gandhi Nagar, Delhi-110031 (henceforth suit property); that presently, she is residing along with her youngest son, namely, Sh. Amit Verma who is catering to her daily needs; that earlier the plaintiff was deriving rental income from a portion of the suit property; that the suit property had been purchased by the husband of the plaintiff, namely, late Sh. Prem Kumar vide registered Sale Deed dated 24.11.1971; that late Sh. Prem Kumar had expired on 08.10.2016 leaving behind seven class 1 legal heirs including the plaintiff, the defendant no. 1 and 2; that pursuant to the death of late Sh. Prem Kumar, the plaintiff has become the owner of the suit property vide Will dated 17.11.2013 executed in favour of the plaintiff by late Sh. Prem Kumar; that the defendant no. 1 and 2 are the sons of the plaintiff and are presently residing at first floor and third floor of the suit property, respectively; that the defendant no. 2 has forcibly occupied the third floor of the suit property; that prior to the defendant no. 2, the third floor of the suit property was occupied by the tenants of the plaintiff who have tendered rent to her until March, 2017; that after March, Civil Suit No.1087/17 Munni Devi Vs Raj Kumar Page No.3 of 22 2017, the aforesaid tenants were forced into tendering rent to the defendant no. 2 who used withheld the same to the deteriment of the plaintiff; that the defendant no. 2 came to occupy the third floor in the suit property after having evicted the tenants from the suit property; that the defendant no. 1 and 2 are occupying the first and third floor respectively in the suit property as gratuitous licensees of the plaintiff; that the plaintiff does not wish to continue the licence of the defendant no. 1 and 2 qua their occupation of the suit property; that the defendant no. 1 and 2 have also forcefully occupied the rental shop situated at property bearing no. B-74, New Seelampur Market, Delhi which was run by the husband of the plaintiff, late Sh. Prem Kumar until his death; that pursuant to the death of late Sh. Prem Kumar, the defendant no. 1 has stopped sharing the income derived from the rental shop which consequently has compelled the plaintiff to terminate the licence of the defendants qua the suit property; that the defendants should also give account of the income derived from the rental shop since November, 2016 until the filing of the present suit; that aggrieved by the actions of the defendants, the plaintiff has filed the present suit for possession, permanent and mandatory injunction against the defendants in respect of the suit property.
3. The defendants have contested the present suit by filing their joint written statement. In order to defend the present suit, the defendants in their written statement have averred that they are providing maintenance to the plaintiff as per her requirement Civil Suit No.1087/17 Munni Devi Vs Raj Kumar Page No.4 of 22 and despite that, the plaintiff is bent upon evicting the defendants from the portion occupied by them in the suit property; that the alleged Will dated 17.11.2013 purportedly executed in favour of the plaintiff by late Sh. Prem Kumar is a forged and fabricated document as their father, late Sh. Prem Kumar at the relevant time was not keeping good health; that the defendant no. 2 has been residing at the third floor of the suit property since his marriage and no rental income was derived from the aforesaid floor at any point of time; that the defendants are residing at the suit property in the capacity of being the legal heirs of the owner of the suit property, namely, their father, late Sh. Prem Kumar who is stated to have died intestate; that the defendants have been running their individual business from the rental shop even during the life time of late Sh. Prem Kumar and the plaintiff has no right to claim a share out of the income derived from the rental shop as appropriate maintenance has been provided by the defendants to her.
4. In the replication qua the written statement, the plaintiff has made the necessary denials and reiterated and reaffirmed the contents of the plaint.
5. On the basis of the aforesaid pleadings of the parties, the following issues were framed by a Ld. Predecessor Judge, on 23.02.2018:-
"1. Whether the plaintiff is entitled to the decree of possession of suit premises from the Civil Suit No.1087/17 Munni Devi Vs Raj Kumar Page No.5 of 22 defendants as shown in red colour in the site plan? OPP
2. Whether the plaintiff is entitled to the decree of permanent and mandatory injunction against the defendant and their associates, assignee, nominee etc from interfering in the peaceful enjoyment of the premises in question and direct the defendant to account the income from the shop mentioned in the suit? OPP
3. Whether the plaintiff has not valued the suit property for the purpose of court fees and jurisdiction? OPD1 and D2
4. Whether the plaintiff has no locus to file the present suit? OPD1 and D2
5. Whether the suit is without cause of action? OPD1 and D2
6. Relief."
6. During trial of the present suit, six witnesses viz. PW1 Smt. Munni Devi, PW2, Sh. Manoj Kumar and PW3, Smt. Sita, PW4, Sh. Amit Verma, PW5, Sh. Ashok Kumar and PW6, Sh. Hari Kant Kukreti, Ahlmad in the court of Ld. ADJ-03, SHD, KKD Courts, Delhi were examined in support of the case of the plaintiff and one witness viz. DW1, Sh. Rajkumar was examined in support of the case of the defendants. No evidence could be led on behalf of the defendant no. 2 as separate statement of the Ld. Advocate for the LRs of the plaintiff was recorded to the Civil Suit No.1087/17 Munni Devi Vs Raj Kumar Page No.6 of 22 effect that they do not wish to seek any relief from the LRs. of the defendant no. 2 on 03.06.2023 and he may accordingly be struck off from the array of the parties. During the trial, the plaintiff had expired on 19.06.2019. The application for substitution of LRs of the plaintiff filed under Order XXII Rule 3 CPC was allowed vide order dated 12.10.2021 passed by the Ld. Predecessor of this court. Another application under Order XXII Rule 4 CPC was filed on behalf of the plaintiff for substitution of LRs of the defendant no. 2 who had expired on 30.01.2021. The application for substitution of LR of the defendant no. 2 was allowed by this court vide order dated 28.10.2022. The testimonies of the said witnesses are not being discussed at this stage of this judgment, for the sake of brevity.
7. I had heard Sh. Vinod Kumar Singh, Ld. Advocate for the LRs of the plaintiff and Ms. Seema Mishra, Ld. Advocate for the defendants on 30.11.2023. The issue wise findings, in this case, are as follows:-
ISSUE NO.5 Whether the suit is without cause of action? OPD1 and D2
8. Since the issue no. 5 pertains to the maintainability of the present suit for want of cause of action, accordingly, the present issue is decided first prior to giving a finding on other issues. In order to decide the present issue, only the averments of the plaint are required to be considered. Bare perusal of the Civil Suit No.1087/17 Munni Devi Vs Raj Kumar Page No.7 of 22 averments of the plaint reflects that the plaintiff has filed the present suit for possession against the defendants on the ground that their licence to reside at the suit property has been orally terminated by the plaintiff. The plaintiff has averred that she has become the owner of the suit property pursuant to the death of her husband, namely, late Sh. Prem Kumar by way of a Will dated 17.11.2013. The plaintiff has further prayed for a relief of permanent injunction restraining the defendants from interfering in the peaceful possession of the plaintiff qua the suit property and for mandatory injunction directing the defendants to account for the income derived from the rental shop. In respect of the relief of mandatory injunction, it is the case of the plaintiff that her husband used to run the family business from the rental shop and pursuant to his death, the defendants have been illegally withholding sharing of income derived from the aforesaid shop. At this stage, this court is only required to consider whether there is sufficient disclosure of cause of action in order to enable the plaintiff to file the present suit against the defendants. Having regard to the pleadings of the plaintiff and the documents filed alongwith, this court finds that the plaintiff has been able to set out sufficient cause of action in order to enable her to file the present suit for possession, mandatory and permanent injunction against the defendants.
9. In view of the aforesaid findings, the issue no. 5 is decided in favour of the plaintiff and against the defendants.
Civil Suit No.1087/17Munni Devi Vs Raj Kumar Page No.8 of 22 ISSUE NO.4 Whether the plaintiff has no locus to file the present suit? OPD1 and D2
10. Since the issue no. 4 pertains to the maintainability of the present suit for want of locus standi of the plaintiff, accordingly, the present issue is decided first prior to giving a finding on other issues. The case of the plaintiff as set out in the plaint is that she had become the owner of the suit property pursuant to the death of her husband, late Sh. Prem Kumar by virtue of a Will dated 17.11.2013 executed by the latter in favour of the plaintiff. The plaintiff has filed the present suit for possession, permanent and mandatory injunction against the defendants on the ground that they have been occupying the suit property as licencees of the plaintiff, which has been duly terminated orally by the plaintiff. In view of the aforesaid pleadings and the documents filed alongwith, this court finds that the plaintiff has locus standi to file the present suit for possession and permanent injunction agains the defendants.
11. In view of the aforesaid findings, the issue no. 4 is decided in favour of the plaintiff and against the defendants.
ISSUE NO.3 Whether the plaintiff has not valued the suit property for the purpose of court fees and jurisdiction? OPD1 and D2 Civil Suit No.1087/17 Munni Devi Vs Raj Kumar Page No.9 of 22
12. In respect of this issue, the case of the plaintiff is that she is entitled to a decree of possession against the defendants in respect of the suit property on the ground that the licence of the defendants qua their occupation of the suit property has been duly terminated by the plaintiff. Per contra, the case of the defendants qua this issue is that the plaintiff has sought the relief of possession against the defendants and the same is required to be valued in terms of Section 7 (v) of the Court Fees Act, 1870.
13. In my view, the finding qua this issue can be given without any reference to the evidence led by the parties. In respect of the aforesaid objection taken by the defendant, I find that it is untenable, on account of law laid down by the Hon'ble Supreme Court in "Sant Lal Jain v Avtar Singh", (1985) 2 SCC 332 and "Joseph Severance & Ors. v Benny Mathew & Ors.", (2005) 7 SCC 667. In said judgments, the Hon'ble Supreme Court has held that in case of licensor-licensee relationship, the licensor can file a suit for mandatory injunction against the licensee, seeking directions to the effect that the licensee be directed to vacate the licensed premises, provided the suit is filed by the licensor within reasonable time of terminating/revoking the license of the licensee. In view of the aforesaid settled position of law, the suit of the plaintiff for possession on the basis of licensor-licensee relationship is maintainable without having to value the suit property in terms of Section 7 (v) of the Court Fees Act, 1870. The relief of possession as sought by the plaintiff instead of mandatory injunction is an error of form which does Civil Suit No.1087/17 Munni Devi Vs Raj Kumar Page No.10 of 22 not affect the substance of the relief which is essentially governed by the pleadings of the plaintiff.
14. In view of the aforesaid findings, the issue no. 3 is decided in favour of the plaintiff and against the defendants.
ISSUE NO.1 Whether the plaintiff is entitled to the decree of possession of suit premises from the defendants as shown in red colour in the site plan? OPP
15. In respect of this issue, the case of the plaintiff is that she is a permanent resident of the suit property and is residing therein along with her youngest son, namely, Sh. Amit Verma who alone is maintaining her. The suit property had been purchased by her husband, namely late Sh. Prem Kumar vide registered Sale Deed dated 24.11.1971. Pursuant to the death of late Sh. Prem Kumar on 08.10.2016, she has become the owner of the suit property by way of a Will dated 17.11.2013 executed by her husband in her favour. The defendant no. 1 and 2 have been residing at the first and third floor of the suit property, respectively as licensees of the plaintiff. The defendant no. 2 has forcefully occupied the third floor after having evicted the tenants from the aforesaid portion in the suit property. On account of the unruly behaviour of the defendants, the plaintiff has orally terminated the licence of the defendants qua their occupation of the suit property and are liable to be evicted as Civil Suit No.1087/17 Munni Devi Vs Raj Kumar Page No.11 of 22 such. Per contra, the case of the defendants in their written statement is that they are providing maintenance to the plaintiff as per her requirement and despite that, the plaintiff is bent upon evicting the defendants from the portion occupied by them in the suit property. The alleged Will dated 17.11.2013 purportedly executed in favour of the plaintiff by late Sh. Prem Kumar is a forged and fabricated document as their father, late Sh. Prem Kumar at the relevant time was not keeping good health. The defendant no. 2 has been residing at the third floor of the suit property since his marriage and no rental income was derived from the aforesaid floor at any point of time. The defendants are residing at the suit property in the capacity of being the legal heirs of the owner of the suit property, namely, their father, late Sh. Prem Kumar who is stated to have died intestate.
16. In order to prove their respective cases qua this issue, six witnesses viz. PW1 Smt. Munni Devi, PW2, Sh. Manoj Kumar and PW3, Smt. Sita, PW4, Sh. Amit Verma, PW5, Sh. Ashok Kumar and PW6, Sh. Hari Kant Kukreti, Ahlmad in the court of Ld. ADJ-03, SHD, KKD Courts, Delhi were examined in support of the case of the plaintiff and one witness viz. DW1, Sh. Rajkumar was examined in support of the case of the defendant. No evidence could be led on behalf of the defendant no. 2 as separate statement of the Ld. Advocate for the LRs of the plaintiff was recorded to the effect that they do not wish to seek any relief from the LRs. of the defendant no. 2 and he may accordingly be struck off from the array of the parties.
Civil Suit No.1087/17Munni Devi Vs Raj Kumar Page No.12 of 22
17. During examination in chief, PW1, Smt. Munni Devi has deposed in line with the plaint of this suit and tendered in evidence documents viz., Voter ID card, Ex.PW1/A(OSR); Aadhaar Card, Ex.PW1/B(OSR); death certificate of Late Sh. Prem Kumar, Ex.PW1/C(OSR); Sale Deed dated 24.11.1971, Mark PW1/D; photocopy of Will dated 17.11.2013; Mark PW1/E; Site plan, Ex.PW1/F; Ration card, Ex.PW1/F-1 (OSR); Identity card of Late Sh. Prem Kumar, Ex.PW1/G; Complaint dated 21.09.2017 made by the plaintiff to SHO PS Gandhi Nagar, Ex.PW1/H(OSR); Complaint dated 21.09.2017 made by Sh. Amit Verma to SHO PS Gandhi Nagar, Ex.PW1/I(OSR); complaint dated 23.08.2017 made by Ms. Seeta to SHO PS Gandhi Nagar, Ex.PW1/J(OSR) and 8 photographs, Ex.PW1/K. During cross examination, PW1, Smt. Munni Devi has inter-alia deposed that six children were born out of her marriage with late Sh. Prem Kumar and Sh. Amit Verma is the biological son of her daughter namely, Smt. Anita. An application for probate of the Will dated 17.11.2013 has been filed by her before the court of appropriate jurisdiction. Upon being confronted with signatures of late Sh. Prem Kumar on the Will, Mark PW1/A, she has identified the signatures of her husband at Point X3. Lastly, she had stated that she was not present at the place where the Will was prepared and her husband, late Sh. Prem Kumar had returned to Delhi from Punjab for execution of the Will on 17.11.2013.
18. During examination in chief, PW2, Sh. Manoj Kumar Civil Suit No.1087/17 Munni Devi Vs Raj Kumar Page No.13 of 22 has deposed in line with the plaint of this suit and tendered his evidence by way of affidavit, Ex.PW2/A. During cross examination, PW2, Sh. Manoj Kumar has inter-alia deposed that he was a driver by profession in the year, 2013 and also used to be engaged in the printing press factory on part time basis. He has further deposed that his father-in-law, late Sh. Prem Kumar Verma had called him for the purposes of execution of the Will, Ex.PW1/E at the Karkardooma Court Premises and had come alone to the court. He had further deposed that late Sh. Prem Kumar Verma and Sh. Ashok Kumar (Saadu) were present in the court during the execution of the aforesaid Will and Late Sh. Prem Kumar Verma was the first to sign the will, followed by Ashok kumar and lastly he had signed the will.
19. During examination in chief, PW3, Smt. Sita has deposed in line with the plaint of this suit and tendered her evidence by way of affidavit, Ex.PW3/A. During cross examination, PW3, Smt. Sita has inter-alia deposed that Sh. Amit Verma is her brother and the biological son of late Smt. Munni Devi and late Sh. Prem Kumar Verma. She was at home when the alleged Will, Ex.PW1/E was executed.
20. During examination in chief, PW4, Sh. Amit Verma has deposed in line with the plaint of this suit and tendered his evidence by way of affidavit, Ex.PW4/A. During cross examination, PW4, Sh. Amit Verma has inter-alia deposed that he did not go to the court for the execution of the alleged Will, Civil Suit No.1087/17 Munni Devi Vs Raj Kumar Page No.14 of 22 Ex.PW1/E. He has further stated that he is not the biological son of late Smt. Munni Devi and late Sh. Prem Kumar Verma.
21. During examination in chief, PW5, Sh. Ashok Kumar has deposed in line with the plaint of this suit and tendered his evidence by way of affidavit, Ex.PW5/A. During cross examination, PW5, Sh. Ashok Kumar has inter-alia deposed that he is 8th Class pass and he used to work as a driver in the year, 2013. His wife's name is Smt. Anita Verma and he got married in the year, 1992. He has two children, namely, Sh. Amit and Ms. Simran. His father-in-law, late Sh. Prem Kumar Verma had called him to the court for purposes of execution of the aforesaid Will, Ex.PW1/E. He had come to the Karkardooma court for the execution of the Will along with his mother-in-law, late Smt. Munni Devi and Sh. Manoj Kumar. He had further deposed that Late Sh. Prem Kumar Verma was the first to sign the will, followed by his signatures and lastly he Manoj Kumar had signed the Will.
22. PW6, Sh. Hari Kant Kukreti, Ahlmad in the court of Ld. ADJ-03, SHD, KKD Courts, Delhi was summoned to produce the original of the document i.e. the Will dated 17.11.2013 part of judicial file in suit no. PC no. 11/18. The document i.e. the Will dated 17.11.2013 was compared with the original and marked as Ex. PW6/A (OSR).
23. During examination in chief, DW1, Sh. Raj Kumar has Civil Suit No.1087/17 Munni Devi Vs Raj Kumar Page No.15 of 22 deposed in line with the written statement and tendered in evidence by way of affidavit, Ex.DW1/A. During cross examination, DW1, Sh. Raj Kumar has inter-alia deposed that he is self employed as a driver and never got engaged himself in any business that was run from the shop bearing no. B-74, New Seelampur Market, Delhi. After the death of his father, late Sh. Prem Kumar, the defendant no. 2, namely, late Sh. Devendra Verma had started doing the business from the aforesaid shop and the possession of the tenanted shop was handed over to its landlord by him after the relaxation of the lockdown following the second wave of COVID-19. He had further deposed that no tenant used to occupy any portion in the suit property prior to 2017. He resides at the first floor in the suit property.
24. The case of the plaintiff qua the grant of possession of the suit property as against the defendant no. 1 is that he is occupying the same as her licensee. The plaintiff had expired on 19.06.2019 and her LRs were substituted vide order dated 12.10.2021 passed by the Ld. Predecessor of this court. No relief is claimed by the LRs of the plaintiff against the LR of the defendant no. 2 and separate statement to this effect of the Ld. Advocate for the LRs of the plaintiff has been recorded on 03.06.2023.
25. The defendant no. 1 in his cross-examination as DW1 has admitted to be occupying the first floor in the suit property. The plaintiff has asserted ownership qua the entire suit property Civil Suit No.1087/17 Munni Devi Vs Raj Kumar Page No.16 of 22 by virtue of a will dated 17.11.2013 having been executed by her husband late Sh. Prem Kumar in her favour, Ex. PW6/A. The burden to prove the execution of the Will dated 17.11.2013, Ex. PW6/A (OSR) by late Sh. Prem Kumar in favour of the plaintiff lay on the latter. The provisions with respect to proof of the execution of the Will need be discussed in brief. Section 59 of the Indian Succession Act, 1925 provides as follows:
"59. Person capable of making Wills.--Every person of sound mind not being a minor may dispose of his property by Will.
Explanation 1.--A married woman may dispose by Will of any property which she could alienate by her own act during her life.
Explanation 2.--Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
Explanation 3.--A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
Explanation 4.--No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing. that every person of sound mind not being a minor may dispose of his property by Will." (Emphasis supplied)
26. As per Section 114 of the Indian Evidence Act, 1872, the presumption would be of soundness rather than unsoundness of mind. In Janaki Narayan Bhoir v. Narayan Namdeo Kadam, reported in AIR 2003 SC 761 the Hon'ble Supreme Court has held as under: -
".......One of the requirements of due execution of will is its attestation by two or more witnesses which is mandatory. Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process Civil Suit No.1087/17 Munni Devi Vs Raj Kumar Page No.17 of 22 of the Court and capable of giving an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act."
27. Two attesting witnesses on behalf of the plaintiff namely Sh. Manoj Kumar, PW2 and Sh. Ashok Kumar, PW5 were examined and cross-examined during the trial of the present suit. PW2, Sh. Manoj Kumar during his cross-examination had deposed that his father-in-law, late Sh. Prem Kumar Verma had called him for the purposes of execution of the Will, Ex.PW1/E at Karkardooma Court premises and he had come alone to the court. He had further deposed that late Sh. Prem Kumar Verma and Sh. Ashok Kumar (Saadu) were present in the court during the execution of the aforesaid Will and Late Sh. Prem Kumar Verma was the first to sign the will, followed by Ashok kumar and lastly he had signed the Will. PW5, Sh. Ashok Kumar during his cross-examination had stated that his father-in-law, late Sh. Prem Kumar Verma had called him to the court for purposes of execution of the aforesaid Will, Ex.PW1/E. He had come to Karkardooma court for the execution of the Will along with his mother-in-law, late Smt. Munni Devi and Sh. Manoj Kumar. He had further deposed that Late Sh. Prem Kumar Verma was the Civil Suit No.1087/17 Munni Devi Vs Raj Kumar Page No.18 of 22 first to sign the Will, followed by his signatures and lastly, Manoj Kumar had signed the Will. Both the attesting witness to the Will dated 17.11.2013 have stated that they were present at Karkardooma court for its execution and had seen late Sh. Prem Kumar affixing his signature on the same, therefore, under the circumstances, the execution of the will dated 17.11.2013 by late Sh. Prem Kumar in favour of the deceased plaintiff has been duly proved in accordance with section 68 of the Indian Evidence Act, 1872.
28. With the execution of the Will dated 17.11.2013 having been duly proved, next question which arises for consideration is whether the LRs of the plaintiff after the death of the plaintiff are entitled to the posssession of the suit property as against the defendant no. 1. Admittedly, the LR no. 1 to 3 of the plaintiff are sisters of the defendant no. 1. LR no. 6, Sh. Amit Verma during his cross-examination has stated that he is not the biological son of the deceased plaintiff. Be that as it may, the defendant no. 1 after the death of the plaintiff, namely, late Smt. Munni Devi in the absence of any testamentary disposition having been proved by the LRs of the plaintiff has also become one of the co-owner of the entire suit property. In the present case, the LRs of the plaintiff have neither tendered in evidence nor proved any testamentary document having been executed by the plaintiff late Smt. Munni Devi in favour the LRs of the plaintiff to the exclusion of the defendant no. 1 in respect of the suit property. Under the present facts and circumstances of the case, the Civil Suit No.1087/17 Munni Devi Vs Raj Kumar Page No.19 of 22 defendant no. 1 upon the death of the plaintiff had become the co-owner of the entire suit property in the eventuality when the LRs of the plaintiff have not adduced any evidence qua the execution of any testamentary document left behind by the deceased plaintiff , late Sh. Munni Devi in favour of the LRs of the plaintiff to the exclusion of the defendant no. 1. In view of the aforesaid findings, no decree qua grant of possession of the first floor in the suit property can be passed in favour of the LRs of the plaintiff and against the defendant no. 1.
29. In view of the aforesaid findings, the issue no. 1 is decided against the LRs of the plaintiff and in favour of the defendant no. 1. The defendant no. 2 has been struck off from the array of parties vide order dated 03.06.2023.
ISSUE NO.2 Whether the plaintiff is entitled to the decree of permanent and mandatory injunction against the defendant and their associates, assignee, nominee etc from interfering in the peaceful enjoyment of the premises in question and direct the defendant to account the income from the shop mentioned in the suit? OPP
30. While deciding issue no. 1, it has been held that upon the death of the plaintiff, the defendant no. 1 had become the co- owner of the entire suit property in the eventuality when the LRs of the plaintiff have not adduced any evidence qua the execution of any testamentary document left behind by the deceased plaintiff, late Sh. Munni Devi in favour of the LRs of the plaintiff Civil Suit No.1087/17 Munni Devi Vs Raj Kumar Page No.20 of 22 to the exclusion of the defendant no. 1. In view of the aforesaid findings, the LRs of the plaintiff cannot be held entitled to a decree of permanent injunction against the defendant no. 1 as it is well settled position of law that no injunction in respect of a property can be granted against a true owner.
31. Further, the prayer of the plaintiff qua direction to the defendants to account for the income derived from the shop situated at property bearing no. B-74, New Seelampur Market, Delhi is also liable to be declined as there exists no pleadings of the plaintiff that the business allegedly carried out by the defendants from the aforesaid shop constituted business run by a Hindu Undivided Family of which the plaintiff is the Karta. In relation to the aforesaid relief, the plaintiff has not been able to prove her locus standi as to in what capacity she was entitled to the proceeds from the business allegedly carried by the defendants from the shop situated at property bearing no. B-74, New Seelampur Market, Delhi.
32. In view of the aforesaid findings, the issue no. 2 is decided against the LRs of the plaintiff and in favour of the defendant no. 1. The defendant no. 2 has been struck off from the array of parties vide order dated 03.06.2023.
RELIEF
33. As a net result of the aforesaid findings, the present suit Civil Suit No.1087/17 Munni Devi Vs Raj Kumar Page No.21 of 22 filed by the plaintiff against the defendants is dismissed with no order as to cost.
34. After preparation of the decree sheet by the Reader, the file shall be consigned to the record room.
Announced in open Court (Aman Kumar Sharma)
today on 9th December, 2023 CJ-02/Shahdara District
Karkardooma Courts/Delhi
Civil Suit No.1087/17
Munni Devi Vs Raj Kumar
Page No.22 of 22