Delhi District Court
Vi)Smt. Renu Sharma vs Sunita Sharma 1/19 on 18 January, 2014
IN THE COURT OF MS. ANJU BAJAJ CHANDNA
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
C.S. No. 220/04
Unique I. D. No. 02401C06055182004
Sh. Madan Mohan Sharma (Deceased)
Through his LRs:
i)Smt. Kiran Devi (Widow),
ii)Sh. Ravinder Kumar (Son),
iii)Sh. Pawan Kumar (Son),
iv)Sh. Vishnu Dutt Sharma (Son),
All R/o D71, Shankarpur,
Delhi110092.
v)Smt. Geeta Sharma,
W/o Sh. Govind Sharma,
R/o 71, Dayanand Block,
Shakarpur, Delhi110092.
vi)Smt. Renu Sharma,
W/o Sh. Mukesh Sharma,
R/o 71, Dayanand Block,
Shakarpur, Delhi110092.
......Plaintiffs
CS No.220/04
Madan Mohan Sharma Vs. Sunita Sharma 1/19
Versus
1. Smt. Sunita,
W/o Sh. Bhuvnesar,
R/o A/31/138C, Maujpur,
Shahdara, Delhi.
2. Raj Kanta (Deceased)
Through her LRs :
i)Sh. Om Dutt Sharma (Husband),
S/o Late Sh. Som Dutt Sharma.
ii)Sh. Amit Sharma (Son)
S/o Sh. Som Dutt Sharma.
iii)Sh. Praveen Sharma (Son)
S/o Sh. Som Dutt Sharma.
iv)Sh. Sunny Sharma (Son)
S/o Sh. Som Dutt Sharma.
All R/o House no. 634,
Old Housing Board Colony,
Karnal, Haryana.
CS No.220/04
Madan Mohan Sharma Vs. Sunita Sharma 2/19
v)Smt. Ruchi Sharma (Daughter)
W/o Sh. Pawan Sharma,
R/o House No. 1933, Sector7,
Karnal, Haryana.
.......Defendants
SUIT FOR PARTITION AND INJUNCTION.
Date of institution of suit : 05.08.2004
Date of reserving the judgment : 18.01.2014
Date of pronouncement of judgment : 18.01.2014
JUDGMENT
1. The plaintiff is seeking partition with respect to property bearing no. 1/6604, Gali No4, East Rohtash Nagar, Shahdara, Delhi110032 (hereinafter referred to as suit property) by way of present suit filed against the defendants, who are the real sisters of the plaintiff. According to the plaintiff, the suit property is selfacquired property of mother of the parties late Smt. Shish Kaur, by virtue of sale deed duly registered in favour of Smt. Shish Kaur dated 24.09.1957. The mother of the parties died intestate leaving behind three legal heirs i.e. plaintiff and both the defendants and therefore they are entitled to 1/3rd share each in CS No.220/04 Madan Mohan Sharma Vs. Sunita Sharma 3/19 the property. According to the plaintiff, they are in joint and legal possession of the suit property which is mainly lying locked except one room on the first floor which is in the possession of a tenant. The parties frequently visit to the suit property, however, the rent has been collected by defendant no1 Smt. Sunita Sharma. After the death of Smt. Shish Kaur in the year 1996, defendants raised dispute regarding ownership of the property on the basis of two Wills executed in their favour and they threatened to dispose of the property. The plaintiff then preferred two suits for declaration, cancellation and permanent injunction against the defendants bearing no. 562/96 and suit no. 353/96. But during the pendency of the said suits, parties consented to settle their dispute amicably outside the court and thus the suit were disposed of on the basis of the statements vide order dated 08.04.2003. Thereafter, plaintiff repeatedly requested and approached the defendants to settle the dispute and divide the property amicably but the defendants avoided to divide the property on one pretext or the other. The plaintiff visited the suit property on 15.07.2004 but was not allowed to enter and inspect the property and it was informed by the tenant that defendants have asked him not to allow the plaintiff to enter and inspect the suit property. The CS No.220/04 Madan Mohan Sharma Vs. Sunita Sharma 4/19 plaintiff also noticed that lock of the big room on the ground floor of the property was changed. The plaintiff, thereafter visited the defendant no1 and requested her to settle the dispute but with no results. The plaintiff visited the defendant again on 20.07.2004 to settle the dispute but defendant no2 clearly expressed her intention not to settle the same. In view of the attitude and conduct of the defendants, plaintiff has filed the present suit, seeking partition to get his 1/3rd share in the suit property by metes and bounds. It is also prayed that decree for permanent injunction be granted, thereby restraining the defendants from interfering in the lawful use and enjoyment of the house by putting locks or changing the locks of the rooms.
2. The defendants filed written statement taking preliminary objections about plaintiff not approaching the court with clean hands and suit is being barred by the principles of resjudicata. It is alleged that plaintiff earlier filed two suits to get the Wills declared null and void, which were never cancelled or declared void and in fact the relief of declaration and cancellation were dismissed vide order dated 10.02.1999. The objections with respect to the valuation of the suit property have also CS No.220/04 Madan Mohan Sharma Vs. Sunita Sharma 5/19 taken. According to the defendants, the Wills are duly registered with the Subregistrar and suit of the plaintiff is based on false and incorrect facts. On merits, the relationship of the parties is not denied. It is, however, strongly refuted that mother of the parties died intestate. According to the defendants, their mother Smt. Shish Kaur executed two registered Wills in favour of defendants and plaintiff has no share in the same. The defendants have also alleged that plaintiff disposed of the shop of the father of the parties situated at Dariba Kalan, Delhi and has not given the share of the defendants and their mother. The plaintiff has also sold another property of their father bearing no. 1/6606, Gali No4, Rohtash Nagar, Delhi, illegally without the consent of the defendants. According to the defendants, they only were looking after their mother at the time of her illness and provided her with all the necessities. The possession with respect to the suit property being joint, is denied. It is admitted that there is a tenant in the property and rent is being realized by the defendant. It is strongly denied that plaintiff has got any right, title or interest in the suit property. Further denying other averments of the plaint and with the assertions that suit property is not the joint property and no question of 1/3rd share of the plaintiff arises therein, it is prayed CS No.220/04 Madan Mohan Sharma Vs. Sunita Sharma 6/19 that suit of the plaintiff be dismissed with heavy costs.
3. Plaintiff filed replication to the written statement of the defendants denying the contentions contained therein and reiterating those of the plaint.
4. From the pleadings of the parties, following issues were framed vide order dated 07.11.2005 :
1)Whether the plaintiff is not entitled to the relief claimed in the suit? OPD
2)Whether the suit is barred by resjudicata? OPD
3)Relief.
5. The defendants were first called upon to lead their evidence. DW1/Defendant no1 Smt. Sunita Sharma tendered her affidavit EX DW1/X in support of her contentions. She relied upon Wills dated 21.07.1987 EX DW1/1 and EX DW1/2, copy of the judicial order EX DW1/3 dated 08.04.2003, receipts of the dues deposited with MCD EX CS No.220/04 Madan Mohan Sharma Vs. Sunita Sharma 7/19 DW1/4 (collectively), death certificate of Smt. Shish Kaur EX DW1/5. The witness has been crossexamined at length on behalf of the plaintiff.
6. DW2/defendant no2 Smt. Raj Kanta Sharma also tendered her affidavit in evidence EX DW2/X. The witness has also been cross examined on behalf of the plaintiff.
7. DW3 Sh. Mrityunjay Kumar, Clerk from the office of Sub Registrar, Nand Nagri, Delhi, brought the summoned record to prove the registration of the Wills EX DW1/1 and DW1/2.
8. DW4 Sh. Y.L. Sachdeva had drafted the Wills EX DW1/1 and EX DW1/2. The witness deposed about the same and has also been crossexamined.
Thereafter, evidence of the defendant was closed.
9. On the other hand, plaintiff has examined himself as PW1 by tendering his affidavit EX P1 in evidence and has been cross examined.
CS No.220/04
Madan Mohan Sharma Vs. Sunita Sharma 8/19
10. PW2 Sh. Kamal Kant Khandelwal is the handwriting expert and he has given his report EX PW2/1. The witness compared thumb impression of mother appearing on EX DW1/2 with rent deed Mark X. The witness has been crossexamined.
11. PW3 Sh. Shyam Lal Verma has been the tenant under late Smt. Shish Kaur with respect to the suit property and he has proved rent agreement EX PW2/A, executed between the parties. The witness stated that he delivered the possession of tenanted portion to the plaintiff as per instruction of Shish Kaur and also deposed about cordial relations between the plaintiff and his mother. The witness has also been cross examined.
12. I have heard Sh. V.M. Issar, Ld. counsel for the plaintiff, Sh. B.S. Sharma, Ld. counsel for defendants and given due consideration to the facts and circumstances of the case, pleadings of the parties, evidence and also examined the record of the case.
CS No.220/04
Madan Mohan Sharma Vs. Sunita Sharma 9/19
13. My findings on the above mentioned issues are as follows: Issue No(1) Whether the plaintiff is not entitled to the relief claimed in the suit? OPD
14. The plaintiff sought partition of the property bearing no. 1/6604, Gali No4, East Rohtash Nagar, Shahdara, Delhi110032, by way of bringing the present suit claiming 1/3rd share in the same. It is not disputed that property in question was owned by mother of the parties Smt. Shish Kaur and at the time of her death she left three legal heirs the plaintiff and the two defendants. The plaintiff claimed that their mother died intestate without executing any Will with respect to the property but it has been the contention of the defendants that late Smt. Shish Kaur executed two Wills in their favour bequeathing the property in question to the defendants.
15. The onus to prove the Wills has been upon the defendants since they asserted their right to the suit property on the basis of the same. The wills have been placed on record and testified by the CS No.220/04 Madan Mohan Sharma Vs. Sunita Sharma 10/19 witnesses as EX DW1/1 and DW1/2. In accordance with well settled law, the Wills are to be proved strictly in accordance with section 63 of the Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872. It is now to be seen as to whether the Wills so produced on record were genuinely executed by the testator and are duly proved on record.
16. On examination of the Wills EX DW1/1 and EX DW1/2 in the light of evidence of the witnesses and the facts and circumstances of the case, I am of the opinion that the Wills are not duly executed and proved so as to grant exclusive rights to the defendants with respect to the suit property. The Wills are with respect to the property no. 1/6604, Gali No4, East Rohtash Nagar, Shahdara, Delhi110032, measuring 122.5 square yards. The testator Smt. Shish Kaur had executed two separate Wills bequeathing 61 ¼ square yards in favour of each defendant. It is interesting to note that in the Will executed in favour of the defendant no1, the defendant no2 is the attesting witness, whereas in the Will executed in favour of the defendant no2, defendant no1 is the attesting witness. It is crystal clear from the circumstances that both the attesting witnesses have been beneficary in the other Will CS No.220/04 Madan Mohan Sharma Vs. Sunita Sharma 11/19 simultaneously executed by the testator with respect to the same property. It seems unnatural as property is one and there was no need to execute two separate Wills by dividing the property. It is clear that no independent witness was available for the execution of the wills. It is further apparent from the testimony of DW4 Sh. Y.L. Sachdeva that no other independent witness had accompanied at the time of execution of the Will and therefore he became the attesting witness. DW4 has admitted in his testimony that he was not knowing the testator or her daughters and as a matter of chance they came to him for availing his professional service. It is clear that DW4 stood as a witness without confirming the identity of the testator particularly when he was not knowing the testator before hand. This create a suspicion with respect to the execution of the Wills in question.
17. Another suspicious circumstance that comes to fore is that there is no mention in the Wills about the exclusion of plaintiff Madan Mohan Sharma from the benefits of the property. Even, it is not mentioned that testator had a son and she wanted to exclude him while bequeathing the suit property much less the reason for such exclusion. CS No.220/04
Madan Mohan Sharma Vs. Sunita Sharma 12/19 There is no explanation coming forward in the Wills as to why the plaintiff has been disinherited with regard to the property in question and this conduct of testator is not natural and probable.
18. The defendants, on the other hand, have strongly asserted genuineness of the Wills. It has been the contention of Ld. counsel for defendants that evidence of the plaintiff has been beyond pleadings as there has been no mention about the Wills being forged in the pleadings. However, the replication filed by the plaintiff is clear, wherein para4 of reply on merits, the plaintiff has alleged that Wills so produced are false, fabricated and forged and do not bear the thumb impression of the executant Smt. Shish Kaur. It is further important to note that PW1 Sh. Ravinder Kumar, (LR of the plaintiff) gave detailed affidavit challenging the genuineness of the Wills and stating about suspicious circumstances in which the same was executed but during his crossexamination, the defendants have failed to controvert and challenge this portion of his affidavit, as no suggestion has been given to PW1 that Wills were duly executed in accordance with law or that the circumstances have not been suspicious. No specific suggestion or questions were put to the witness CS No.220/04 Madan Mohan Sharma Vs. Sunita Sharma 13/19 about the execution of the Wills and circumstances surrounding the execution of the Wills. The genuineness of the Wills has already been disputed in the pleadings and therefore the evidence of the PW1 in the form of the affidavit stating in detail about the suspicious circumstances cannot be said to be beyond pleadings.
19. In view of aforesaid reasons, I am of the view that Wills EX DW1/1 and EX DW1/2 have not been properly executed and it is not proved on record that testator Smt. Shish Kaur executed the same with full consciousness, knowledge and free consent. The Wills in question are not free from suspicious circumstances and the execution of the same do not appear to be natural and probable. I, therefore, hold that defendants have failed to discharge the burden of proving due execution of Wills in their favour.
20. The plaintiff is undisputedly the legal heir of late Smt. Shish Kaur, who has been the rightful owner of the property in question. The plaintiff is accordingly entitled to 1/3rd share in the property alongwith the defendants. The issue is accordingly answered with the observations CS No.220/04 Madan Mohan Sharma Vs. Sunita Sharma 14/19 that the plaintiff is entitled to the relief of partition as claimed in the suit. Issue No(2) Whether the suit is barred by resjudicata? OPD
21. It has been the objection on behalf of the defendants that suit of the plaintiff is barred by the principles of resjudicata. It is not in dispute that plaintiff filed earlier suits bearing no. 562/96 and suit no. 353/96, seeking declaration and cancellation of Wills in question and further relief of injunction against the defendants not to mortgage or dispose of the property. It is admitted position that both the suits were disposed of as satisfied vide order dated 08.04.2003. The order was made on the statements of the plaintiff and defendants made in the suit, whereby the defendants agreed not to sell, mortgage, alienate or part with the possession of the property except in accordance with law. The plaintiff consequently sought withdrawal of the suit and also sought liberty to file the appropriate suit with respect to the relief of declaration and cancellation of the wills. The said liberty was granted in suit no. 562/96.
CS No.220/04
Madan Mohan Sharma Vs. Sunita Sharma 15/19
22. In the present suit, the plaintiff is seeking partition of the suit property and also pleaded that the Wills in question are forged and fabricated. On perusal of Section 11 CPC and examining the facts and circumstances of the present case, I am of the opinion that previous suit would not operate as resjudicata to the present suit as issues therein were not heard and finally decided on merits. In other words, the said suits were not finally decided on merits and they were simply disposed of as withdrawn/satisfied on the basis of the statements of the parties. It is further important to note that with respect to the relief of declaration and cancellation of Wills, the plaintiff was granted liberty to file the appropriate suit.
23. During the course of arguments, it has also been pointed out on behalf of the defendants that the suit of the plaintiff is barred u/o 2 Rule 2 CPC according to which the plaintiff should have included the relief of partition in the previous suits and having omitted to do so, the plaintiff cannot be allowed to seek partition on the basis of same cause of action. On examining the relevant provision of Order 2 Rule 2 CPC and the legal position, I am of the opinion that earlier suit was withdrawn by CS No.220/04 Madan Mohan Sharma Vs. Sunita Sharma 16/19 the plaintiff with liberty to file fresh suit and therefore the bar of this provision would not operate to present suit. (relied upon Rajivbhai Mathurbhai Solanki Vs. Bijalbhai Devibhai Prajapati, AIR 2004 Gujrat 102 (115) (DB).
24. It has also been held in Nirmala Vs. Hari Singh, AIR 2001 HP 1 (7) that the defendant has to satisfy three conditions for applicability of Order 2 Rule 2 CPC i.e. :
(a) The previous and second suit must arise out of the same cause of action;
b) The cause of action on which the subsequent clause is founded should have arisen to the claimant where he sought for enforcement of the first claim before any court.
c) Both the suits must be between the same
parties; and
d) The earlier suit must have been decided on
merits.
It has also been held in Rikabdas A. Oswal Vs. Deepak Jewellers , (1999) 6 SCC 40 (42), the plea of bar of Order 2 Rule 2 CPC CS No.220/04 Madan Mohan Sharma Vs. Sunita Sharma 17/19 must be taken expressly, if not taken the Court should not entertain and decide the plea suo motu. In the present suit, the defendants have nowhere taken the express plea that the suit is barred u/o 2 Rule 2 CPC.
25. In view of aforesaid discussions, I come to the conclusion that suit of the plaintiff is neither barred by the principles of resjudicata nor by the provision of order 2 Rule 2 CPC. The issue is answered accordingly.
RELIEF
26. The plaintiff being the legal heir of late Smt. Shish Kaur is entitled to 1/3rd share in the property in question alongwith the defendants. I, therefore, grant preliminary decree holding the plaintiff and the defendants entitled to 1/3rd share each in the property no. 1/6604, Gali No4, East Rohtash Nagar, Shahdara, Delhi110032. The parties are directed to suggest the mode of partition within a period of 30 days by moving specific applications/affidavits.
Announced in open Court on 18th Day of January, 2014. (ANJU BAJAJ CHANDNA) Addl. Distt. Judge(Central)01, Tis Hazari Courts, Delhi.
CS No.220/04
Madan Mohan Sharma Vs. Sunita Sharma 18/19
C.S. No.220/04
18.01.2014
Present: Counsel Sh. V.M. Issar for plaintiff.
Counsel Sh. B.S. Sharma for defendant.
Arguments heard.
Put up for orders for post lunch session.
(ANJU BAJAJ CHANDNA)
ADJ (Central)01, Delhi/18.01.2014
POST LUNCH SESSION
Present. None
Vide my separate order dictated and announced in the open court, preliminary decree is passed.
The parties are directed to suggest the mode of partition within a period of 30 days of moving specific application/affidavits.
Put up on 26.03.2014 for further consideration.
(ANJU BAJAJ CHANDNA)
ADJ (Central)01, Delhi/18.01.2014
CS No.220/04
Madan Mohan Sharma Vs. Sunita Sharma 19/19