Delhi District Court
Sh. Kapil Magoon vs Sh. Jagjit Kumar Sikka on 6 October, 2018
IN THE COURT OF SHRI VISHAL SINGH
ADDITIONAL DISTRICT JUDGE 06: CENTRAL : DELHI
CS No. 10562/16
IN THE MATTER OF:
Sh. Harbans Lal Sikka
S/o. Late Sh. Jai Gopal Sikka
R/o. 3509, Laddie Cres.
Mississauga Ontario.
Canada, L4T1N2.
Through his Attorney:
Sh. Kapil Magoon
R/o. B97, B.K. Dutt Colony,
Lodhi Road, New Delhi - 110 003. ....PLAINTIFF
VERSUS
Sh. Jagjit Kumar Sikka
R/o. D62, Ajay Enclave,
Najafgarh Road,
New Delhi - 110 018.
And also at:
C/o. State Bank of India
Moti Nagar Branch,
Moti Nagar, Delhi. ....DEFENDANT
Other Details:
Date of Institution : 21.07.1998
Date of Reserving Judgment : 11.09.2018
Date of Judgment : 06.10.2018
CS No. 10562/16 Harbans Lal Sikka Vs. Jagjit Kumar Sikka Page No.1/24
SUIT FOR DECLARATION, INJUNCTION, RECOVERY OF
POSSESSION AND MESNE PROFITS
JUDGMENT
1. This suit concerns issue of ownership of suit property between two brothers. Plaintiff is a resident of Canada and has instituted the suit through his attorney. He asserts that he is absolute owner of suit property bearing no.158, Gupta Colony, Delhi09. Defendant is brother of plaintiff and is stated to have illegally and unauthorizedly taken over possession of the suit premises.
2. The parties to the suit are sons of late Sh. Jai Gopal Sikka, who was erstwhile owner of the suit property by virtue of Will dated 30/01/1981, executed in his favour by his wife Smt. Raj Kaur, who expired on 11/07/1992. Sh. Jai Gopal Sikka had five children-two sons (parties to this suit) and three daughters.
3. In his lifetime, Jai Gopal Sikka executed a Will dated 27/05/1993, registered on 30/08/1993 in favour of plaintiff. Thereafter, Sh. Jai Gopal Sikka executed a registered Gift Deed dated 16/12/1993, whereby he CS No. 10562/16 Harbans Lal Sikka Vs. Jagjit Kumar Sikka Page No.2/24 gifted the suit property bearing old house number 15/A and new number 158, Gupta Colony, near Vijay Nagar, Delhi, equally to his three daughters namely Smt. Sudesh Magoon, Smt. Ramesh Batra and Smt. Ranjana Anand, who, in turn, gifted the suit property to plaintiff vide Gift Deed dated 22/11/1995. By virtue of Gift Deed dated 22/11/1995, plaintiff became sole and absolute owner of the suit property.
4. Earlier, in the year 1989 Sh. Jai Gopal Sikka shifted to his new home i.e. H. No. D62, Ajay Enclave, New Delhi18. After a few months thereof, the defendant trespassed into and wrongfully occupied the suit premises. He did not vacate it despite requests of Sh. Jai Gopal Sikka and service of legal notice dated 25/07/1994.
5. Plaintiff has prayed for relief of declaration of ownership over the suit property, decree of recovery of possession and past, pendente lite and future mesne profits.
6. In response to the suit, defendant Jagjit Kumar Sikka filed his written statement. He raised the objection that the relief of declaration CS No. 10562/16 Harbans Lal Sikka Vs. Jagjit Kumar Sikka Page No.3/24 sought by the plaintiff was barred by limitation. He asserted that the Will dated 27/05/1993 of late Sh. Jai Gopal Sikka was defective and inoperative. He raised the objection that Sh. Ram Kishan Magoon, one of the attesting witnesses to the Will dated 27/05/1993 had not signed it. He asserted that the said Will was a forged and fabricated document.
7. Defendant asserted that the purported Will dated 27/05/1993 was revoked by Sh. Jai Gopal Sikka in his lifetime and he executed his last and final Will dated 22/03/1995, whereby he bequeathed the first floor of suit property with roof rights to him and his wife. Defendant denied having received the legal notice dated 25/07/1994 from the plaintiff. Defendant asserted that the plaintiff could not have become owner of entire suit property by virtue of the Gift Deed dated 22/11/1995 executed in his favour by his three sisters. It is because Sh. Jai Gopal Sikka had gifted only ground floor of the suit property to his daughters through the Gift Deed dated 16/12/1993. The sisters of plaintiff could not have gifted to him more than what they themselves had i.e. ground floor of the suit property. The defendant asserted that he was in possession of the CS No. 10562/16 Harbans Lal Sikka Vs. Jagjit Kumar Sikka Page No.4/24 entire suit property on the basis of his own right as well as with the consent and permission of his above mentioned three sisters.
8. Defendant denied that his father late Sh. Jai Gopal Sikka shifted to his new house bearing no. D62, Ajay Enclave, New Delhi, in 1989. He averred that Sh. Jai Gopal Sikka stayed with him at F162, Flat1, State Bank of India Flats, Rajouri Garden, New Delhi, upto 1975 and thereafter shifted to H. No. D62, Ajay Enclave, New Delhi. This fact was discernible from the letters dated 31/07/1979 and 07/08/1979 written by Sh. Jai Gopal Sikka. Defendant denied the entire claim of the plaintiff.
9. In pursuance of rival pleadings of the parties, following issues were framed on 04/10/2002:
(i) Whether the suit filed by plaintiff is barred by limitation? OPD.
(ii) Whether the plaintiff is entitled to a decree of declaration and possession, as prayed? OPP.
(iii) Whether deceased Jai Gopal Sikka had executed a Will dated 22/03/1995, which is his last validly executed Will? OPD. CS No. 10562/16 Harbans Lal Sikka Vs. Jagjit Kumar Sikka Page No.5/24
(iv) Whether the plaintiff is entitled to a decree of mesne profits, as prayed? OPP.
(v) Whether the plaintiff is liable to be nonsuited on the grounds stated in preliminary objections nos. D, E and F of the written statement? OPD.
10. Vide order dated 11/04/2018, following two additional issues were also framed by the Court:
(vi) What is the effect of Gift Deed dated 16/12/1993, executed by late Sh. Jai Gopal Sikka in favour of his three daughters? OPP.
(vii) Whether late Sh. Jai Gopal Sikka executed a Will dated 27/05/1993? OPP.
11. Mr. Kapil Magoon, attorney of the plaintiff, deposed as PW1 to prove the averments of the suit. PW2 Mr. Surinder Anand is soninlaw of late Sh. Jai Gopal Sikka and also one of the attesting witness to the Will dated 27/05/1993 propounded by the plaintiff. PW3 Smt. Ranjana Anand and PW4 Smt. Sudesh Magoon are daughters of late Sh. Jai Gopal Sikka and sisters of parties to the suit.
CS No. 10562/16 Harbans Lal Sikka Vs. Jagjit Kumar Sikka Page No.6/24 On the other hand, Smt. Saroj Sikka, wife of defendant Sh. Jagjit Sikka deposed as DW1, whereas, Mr. S.P. Sharma, one of the attesting witnesses to the Will dated 22/03/1995 of late Sh. Jai Gopal Sikka, deposed as DW2.
12. I have heard the final arguments and analyzed the pleadings and evidence adduced by the parties. Now my issuewise findings are as under:
13. Issue No. (iii): Whether deceased Jai Gopal Sikka had executed a Will dated 22/03/1995, which is his last validly executed Will? OPD.
13(i). Defendant Jagjit Sikka asserted in his written statement that during his lifetime his father late Sh. Jai Gopal Sikka executed his last and final Will dated 22/03/1995 vide which he bequeathed first floor with roof rights of the suit property to him and his wife Smt. Saroj Sikka. To prove the execution of Will dated 22/03/1995, defendant examined DW2 Mr. S.P. Sharma who was one of its attesting witnesses.
CS No. 10562/16 Harbans Lal Sikka Vs. Jagjit Kumar Sikka Page No.7/24 13(ii). DW2 deposed that he scribed the Will, Ex. DW2/1, dated 22/03/1995 in his handwriting at the behest and dictation of testator late Sh. Jai Gopal Sikka at his residence. He deposed that he knew testator Sh. Jai Gopal Sikka and his family since long. He identified signature of Sh. Jai Gopal Sikka at point 'A' on both pages and his own signature at point 'B'. He stated that another witness Mr. Om Prakash Magoon also signed the Will as its attesting witness at point 'C'. The testimony of DW2 S.P. Sharma does not inspire confidence and the execution of the Will Ex. DW2/1 remained enshrouded in suspicion because of following reasons: 13(ii)(a). The Will Ex. DW2/1 comprises of two pages, both of different colour and size; the first page is of pale yellow colour, whereas, second page is of light pink colour. The pages are of nonstandard size and seem to have been specially cut to size. DW2 admitted that the Will Ex. DW2/1 comprised of two pages of two different colours. He sought to explain that these were the only pages available on 22/03/1995 at the relevant time when the Will was executed. The Will itself does not explain this strange method of execution in crammed handwriting in two pages of different colour which have been cut to size.
CS No. 10562/16 Harbans Lal Sikka Vs. Jagjit Kumar Sikka Page No.8/24 13(ii)(b). The signatures of testator appearing at the bottom right on both pages of the Will Ex. DW2/1 are in fluent handwriting, without any hesitation or tremors, which is reflection of good health of the executant. That being so, there could be no logical reason for the testator to use the facility of a scribe to write a Will on his behalf; the testator could have scribed the Will himself if he was in such good health, as is reflected by the appended signatures.
13(ii)(c). It evades reason that at the time of execution of the Will Ex. DW2/1 only two pages were available at home, that too of different colour due to which DW2 had to write the Will in very compact and crammed space. The signatures of the two witnesses have been appended in even more crammed space, in order to fit in the very limited space left for signatures. It is worth noticing that below the signatures of the witnesses, their name as well as address have been mentioned, whereas, below the signatures of the testator, his name and address have not been mentioned. Needless to mention, the Will seem to have been executed in rather unnatural manner that required proper explanation from its propounder. The explanation was not offered by the defendant. CS No. 10562/16 Harbans Lal Sikka Vs. Jagjit Kumar Sikka Page No.9/24 13(ii)(d). DW2 S.P. Sharma replied that on 22/03/1995 defendant Mr. Jagjit Sikka talked to him if he could write a Will which he replied in affirmative. He replied that his discussion with defendant Mr. Jagjit Sikka continued for 2½ hours at his first floor residence in H. No. D62, Ajay Enclave, and they finalized what was to be written in the Will. The discussion was between him and defendant Jagjit Sikka, whereas, other persons present there listened to them. He replied that he met Sh. Jai Gopal Sikka in the evening hours on 22/03/1995. The testimony of DW2 unequivocally reflects that he scribed the Will Ex. DW2/1 at the behest of defendant Jagjit Sikka, rather than as per wish of Sh. Jai Gopal Sikka. 13(ii)(e). DW2 replied that he got his affidavit of evidence Ex. DW2/A prepared through Smt. Saroj Sikka, wife of defendant Jagjit Sikka. He stated that Smt. Saroj Sikka brought the affidavit to his residence at Noida, U.P., where he signed and delivered it to her. She brought the type written affidavit to his residence which he read and signed. He replied that Smt. Saroj Sikka had been frequently visiting him at his residence once or twice in a month and he had old family relations with Smt. Saroj CS No. 10562/16 Harbans Lal Sikka Vs. Jagjit Kumar Sikka Page No.10/24 Sikka and her husband Sh. Jagjit Sikka for more than 30 years. The testimony of DW2 reflects that he was a close acquaintance of defendant and his wife, rather than Sh. Jai Gopal Sikka. He deposed that Sh. Jai Gopal Sikka was suffering from cancer relating to stomach, although, it is admitted case of parties that Sh. Jai Gopal Sikka had been suffering from throat cancer. DW2 would have known this fact if he was very close to Sh. Jai Gopal Sikka.
13(ii)(f). DW2 replied that he had family relations with Mr. Om Prakash Magoon for more than 30 years and had been meeting him regularly and frequently. Mr. Om Prakash Magoon is another attesting witness to the Will Ex. DW2/1. He stated that Mr. Om Prakash Magoon is husband of Mrs. Geeta, sister of defendant Jagjit Sikka. As per record, defendant and plaintiff have three sisters namely (i) Mrs. Sudesh Magoon W/o. Sh. Surinder Nath Magoon, (ii) Smt. Ramesh Batra W/o. Sh. H.K. Batra and
(iii) Smt. Ranjana Anand W/o. Sh. Surinder Anand. It is apparent that Smt. Geeta is not the sister of defendant Jagjit Sikka. DW2 patently lied that he knew the family of testator Sh. Jai Gopal Sikka well and had long CS No. 10562/16 Harbans Lal Sikka Vs. Jagjit Kumar Sikka Page No.11/24 standing family relations with him. He only knew the defendant and his wife and seems to have scribed the Will Ex. DW2/1 at their behest. 13(ii)(g). The mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of Indian Succession Act, 1925. The 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 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. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court by completely removing all legitimate suspicion [ref: Smt. Indu Bala Bose & Ors. Vs. Manindra Chandra Bose & Anr. (1982) 1 SCC 20]. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions in the CS No. 10562/16 Harbans Lal Sikka Vs. Jagjit Kumar Sikka Page No.12/24 Will being unnatural, improbable or unfair in the light of the relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free.
In the present case, defendant failed to remove the legitimate suspicion surrounding the execution of Will dated 22/03/1995, Ex. DW2/1. Issue no.(iii) is decided against the defendant.
14. Issue No.(vii): Whether late Sh. Jai Gopal Sikka executed a Will dated 27/05/1993? OPP.
14(i). As per plaint, late Sh. Jai Gopal Sikka executed a Will dated 27/05/1993 that was registered on 30/08/1993. The defendant asserted that the said Will was a forged and fabricated document. He also asserted that even otherwise the said Will was defective and inoperative as one of the attesting witnesses Sh. Ram Kishan Magoon had not signed it. Plaintiff examined Mr. Surinder Anand, another attesting witness to the Will dated 27/05/1993, as PW2. He deposed that on 27/05/1993 testator CS No. 10562/16 Harbans Lal Sikka Vs. Jagjit Kumar Sikka Page No.13/24 Sh. Jai Gopal Sikka executed the Will dated 27/05/1993, Ex. PW2/1, and signed it at point 'A' on all pages in his presence and in presence of Mr. Ram Kishan Magoon and Mr. H.K. Babbar, advocate. Thereafter, Mr. Ram Kishan Magoon signed it at point 'B', he signed it at point 'C', whereas, Mr. H.K. Babbar, advocate, signed it at point 'D1' and 'D2' in his presence and in the presence of each other. The testimony of PW2 does not inspire confidence because of following reasons: 14(i)(a). PW2 deposed that in his presence Mr. Ram Kishan Magoon signed the Will dated 27/05/1993, Ex. PW2/1, at point 'B' but the said Will does not bear the signature of Mr. Ram Kishan Magoon as an attesting witness; only his name and address has been mentioned as a witness to the Will. The Will itself belies the testimony of PW2. Mr. Ram Kishan Magoon was not examined as a witness by the plaintiff. 14(i)(b). The Will dated 27/05/1993, Ex. PW2/1, has been signed by one Mr. H.K. Babbar, advocate, at two places, purportedly as its scribe as well as its witness. It does not bear his full signature but only small initials. His complete address has not been mentioned on his stamp, as per which his address is SubRegistrarII, Janak Puri, New Delhi. PW2 deposed that on CS No. 10562/16 Harbans Lal Sikka Vs. Jagjit Kumar Sikka Page No.14/24 27/05/1993 he alongwith Sh. Jai Gopal Sikka and Mr. Ram Kishan Magoon reached at the table of advocate Mr. H.K. Babbar in the office of SubRegistrar, Janak Puri, Delhi. Late Sh. Jai Gopal Sikka took out a type written Will and he read over the said Will in their presence and signed it. The testimony of PW2 clearly reflects that the Will dated 27/05/1993 was not scribed by Mr. H.K. Babbar, advocate. Rather, Sh. Jai Gopal Sikka took the pretyped Will to the table of advocate Mr. H.K. Babbar. Thus, Mr. H.K. Babbar could not have signed it as a scribe. Plaintiff did not examine Mr. H.K. Babbar in the Court to clear the confusion. In the absence of full signature with date and complete address, telephone number and enrollment number of Mr. H.K. Babbar on his stamp, it remained doubtful if any such person actually signed the Will as an attesting witness. PW2 Surinder Anand did not even know the seat/table number of Mr. H.K. Babbar where he allegedly went alongwith Mr. Jai Gopal Sikka on 27/05/1993.
14(i)(c). The Will Ex. PW2/1 does not mention any serial number 3 in the serial of intended attesting witnesses. Serial number 1 and 2 meant for attesting witnesses have been occupied by Mr. Ram Kishan Magoon and CS No. 10562/16 Harbans Lal Sikka Vs. Jagjit Kumar Sikka Page No.15/24 Mr. Surinder Anand. There is no serial number 3, reflecting that there was no intention of the testator to get the Will attested by three witnesses. The stamp and initials of Mr. H.K. Babbar, advocate seems to be an attempt to fill up the lacuna in the Will. In the absence of examination of Mr. H.K. Babbar by the plaintiff, his participation in the execution of the Will remained shrouded in suspicion. The legal requirement of attestation of the Will by at least two witnesses remained unsatisfied. The signature of Mr. H.K. Babbar at the back of the Will at the time of its registration on 30/08/1993 does not, in any manner, help to prove the Will as registration thereof is neither a necessary nor a sufficient condition of execution of the Will.
14(i)(d). PW2 Mr. Surinder Anand was a resident of Panchkula, Haryana. He stated that his fatherinlaw Sh. Jai Gopal Sikka called him to Delhi through a letter but did not call him to visit Delhi specifically on 27/05/1993. He stated that he came to Delhi by bus at 05:00am-06:00am, as a routine. Similarly, he came to Delhi on 30/08/1993 at 05:00am as a routine, although, Mr. Jai Gopal Sikka called him on telephone in first week of August to come to Delhi. On 30/08/1993, they went to get the CS No. 10562/16 Harbans Lal Sikka Vs. Jagjit Kumar Sikka Page No.16/24 Will dated 27/05/1993 registered. Mr. Jai Gopal Sikka had not fixed any time of visit with Mr. H.K. Babbar.
It seems highly improbable that PW2 came to Delhi from Panchkula, Haryana, as a routine on 27/05/1993 and 30/08/1993 at 05:00am-06:00am and went with him for execution of the Will and its registration in the office of SubRegistrar, Delhi. He could not reply why Mr. Jai Gopal Sikka did not get the Will registered on 27/05/1993 itself. 14(i)(e). The testimony of PW3 Smt. Ranjana Anand regarding execution of Will dated 27/05/1993 by her father Sh. Jai Gopal Sikka is irrelevant and inconsequential as she did not see her father executing the said Will. However, PW4 Smt. Sudesh Magoon strangely deposed that her fatherin law Sh. Ram Kishan Magoon and Mr. Surinder Anand signed the document (Will) in her presence, although she could not tell if they signed it in the morning, afternoon or in the evening. She stated that she did not see any document on 27/05/1993 neither did her father sign any document in her presence on the said date. It is neither the case of plaintiff nor the testimony of PW4 Smt. Sudesh Magoon that on 27/05/1993 she went alongwith her father Sh. Jai Gopal Sikka and attesting witnesses Sh. Ram CS No. 10562/16 Harbans Lal Sikka Vs. Jagjit Kumar Sikka Page No.17/24 Kishan Magoon and Sh. Surinder Anand to the seat/table of Mr. H.K. Babbar, advocate, situated in the office complex of SubRegistrar, Janak Puri, for execution of the Will. It remained unexplained when she saw Sh. Ram Kishan Magoon and Sh. Surinder Anand signing the Will. Her testimony that she did not see her father or Mr. H.K. Babbar sign the Will dated 27/05/1993 but saw Sh. Ram Kishan Magoon and Sh. Surinder Anand signing it rendered the Will suspicious.
14(i)(f). The plaintiff failed to remove the suspicion surrounding the execution of the Will dated 27/05/1993, Ex. PW2/1. The Will propounded by the plaintiff too does not satisfy conscience of this Court. Issue No.
(vii) is decided against the plaintiff.
15. Issue No.(vi): What is the effect of Gift Deed dated 16/12/1993, executed by late Sh. Jai Gopal Sikka in favour of his three daughters? OPP.
15(i). The registered Gift Deed dated 16/12/1993, the certified copy of which is on record, executed by late Sh. Jai Gopal Sikka in favour of his daughters Smt. Sudesh Magoon, Smt. Ramesh Batra and Smt. Ranjana CS No. 10562/16 Harbans Lal Sikka Vs. Jagjit Kumar Sikka Page No.18/24 Anand is not in dispute. Through the said Gift Deed, donor Sh. Jai Gopal Sikka gifted entire ground floor without roof rights in property no. 15A (old) and 158 (new), Gupta Colony, near Vijay Nagar, Delhi, to his daughters. On the strength of the Gift Deed dated 16/12/1993, Smt. Sudesh Magoon, Smt. Ramesh Batra and Smt. Ranjana Anand executed the Gift Deed dated 22/11/1995 in favour of their brother i.e. plaintiff Harbans Lal Sikka, whereby they gifted to him entire property no.158, Gupta Colony, Delhi. The donors i.e. Smt. Sudesh Magoon, Smt. Ramesh Batra and Smt. Ranjana Anand did not explain in the Gift Deed dated 22/11/1995 how they became absolute joint owners of the above said property, although, they themselves received only ground floor thereof from their father late Sh. Jai Gopal Sikka. The donors could not have gifted more than what they themselves had.
15(ii). Plaintiff has propounded the Will dated 27/05/1993 of his father late Sh. Jai Gopal Sikka as per which the testator bequeathed entire property no.158, Gupta Colony, Delhi, equally to all his daughters. Thereafter, Sh. Jai Gopal Sikka gifted ground floor of property no.158, Gupta Colony, Delhi, without terrace/roof rights equally to his daughters, CS No. 10562/16 Harbans Lal Sikka Vs. Jagjit Kumar Sikka Page No.19/24 through registered Gift Deed dated 16/12/1993. In view of the Gift Deed dated 16/12/1993, the Will dated 27/05/1993, if executed by Sh. Jai Gopal Sikka, would have required reconsideration and execution of a fresh / amended Will by him in respect of remaining portion of property no.158, Gupta Colony, Delhi, which was never done. This fact also renders the Will dated 27/05/1993 suspicious.
15(iii). Anyhow, it was a false fact to mention in the Gift Deed dated 22/11/1995 by donors Smt. Sudesh Magoon, Smt. Ramesh Batra and Smt. Ranjana Anand that they were exclusive and absolute joint owners of entire property no.158, Gupta Colony, Delhi, which they gifted to plaintiff Harbans Lal Sikka. In the Gift Deed dated 22/11/1995, the donors could not have mentioned more than that they were owners of ground floor of property no.158 (supra), by virtue of Gift Deed dated 16/12/1993 executed by their father. Or else, the donors should have also mentioned in the Gift Deed dated 22/11/1995 that they became owners of the rest of the portion, except ground floor, of property no.158 (supra) by virtue of the Will dated 27/05/1993, executed by their father. The falsehood of the Gift Deed dated 22/11/1995 rendered it inoperative and void. Issue no. (vi) is CS No. 10562/16 Harbans Lal Sikka Vs. Jagjit Kumar Sikka Page No.20/24 answered accordingly. A part of issue no.(v) that deals with preliminary objection no. 'E' raised by the defendant in his written statement regarding falsehood in the Gift Deed dated 22/11/1995, is also addressed herein, although, it could not be a ground to reject the plaint.
16. Issue No.(i): Whether the suit filed by plaintiff is barred by limitation? OPD.
16(i). In his written statement, the defendant raised the objection that the relief of declaration sought by plaintiff is barred by limitation. Defendant asserted that the right of plaintiff to sue, if any, under Gift Deed dated 16/12/1993 accrued with effect from 16/12/1993. The right to sue by virtue of purported Will dated 27/05/1993 accrued on 26/03/1995 when Sh. Jai Gopal Sikka expired. The present suit being instituted on 05/04/1998, was barred by limitation for the relief of declaration. 16(ii). The plaintiff's right to sue for declaration and possession in respect of property no.158, Gupta Colony, Delhi, accrued by virtue of Gift Deed dated 22/11/1995, executed in his favour by his sisters Smt. Sudesh Magoon, Smt. Ramesh Batra and Smt. Ranjana Anand. The plaintiff was CS No. 10562/16 Harbans Lal Sikka Vs. Jagjit Kumar Sikka Page No.21/24 not a beneficiary in respect of property no. 158 (supra) in the Will dated 27/05/1993, propounded by him. The suit having been instituted on 21/07/1998, it was well within limitation period if it is considered to be three years w.e.f. 22/11/1995. However, the limitation period in this case would be considered to be twelve years in terms of Article 65 of the Limitation Act, 1963, as it is a suit for declaration of title as well as for possession based on title, which shall be considered together and not separately. The present suit is not governed by Article 58 of the Limitation Act, which pertains to the simplicitor suit for declaration, for which limitation period is three years. Issue No.(i) is decided in favour of plaintiff and against the defendant.
17. Issue No.(v): Whether the plaintiff is liable to be nonsuited on the grounds stated in preliminary objections nos. D, E and F of the written statement? OPD.
17(i). In preliminary objection no. 'D' of written statement, the defendant mentioned that the plaintiff had neither issued nor was he entitled to issue legal notice dated 25/07/1994 to him and the plaint was liable to be rejected on this ground.
CS No. 10562/16 Harbans Lal Sikka Vs. Jagjit Kumar Sikka Page No.22/24 In preliminary objection no. 'E' of written statement, the defendant asserted that in the Gift Deed dated 22/11/1995, sisters of the parties could not have mentioned that they were owners of entire property no.158, Gupta Colony, Delhi, although, they were owners of only ground floor of the said property. The plaintiff's case being based on Gift Deed dated 22/11/1995, which contained false assertion of ownership of the donors, the suit was liable to be rejected.
In preliminary objection no. 'F' of written statement, the defendant asserted that no power of attorney was executed by plaintiff in favour of Mr. Kapil Magoon, who instituted the suit as attorney of the plaintiff and mentioned it in para no.2 of the plaint. For this reason, the suit was liable to be rejected.
17(ii). In my considered opinion, the ground of objections raised by the defendant were amenable to decision on merits, on the basis of evidence to be adduced by parties during trial of the suit; they could not be the basis for rejection of the plaint. Issue No.(v) is decided accordingly.
18. Issue No.(ii): Whether the plaintiff is entitled to a decree of CS No. 10562/16 Harbans Lal Sikka Vs. Jagjit Kumar Sikka Page No.23/24 declaration and possession, as prayed? OPP.
Issue No.(iv): Whether the plaintiff is entitled to a decree of mesne profits, as prayed? OPP.
18(i). In the decision upon issues no. (vi) and (vii), the Will dated 27/05/1993 (supra) has been rejected as suspicious, whereas, the Gift Deed dated 22/11/1995 (supra) has been declared void due to falsehood, plaintiff is not entitled to declaration of ownership of property no.158, Gupta Colony, Delhi, or possession thereof. Similarly, plaintiff is not entitled to mesne profits. Issue no. (ii) and (iv) are decided accordingly.
19. Relief: In view of forgoing analyses and observation, the suit fails and is dismissed. No order for costs. Decree sheet be prepared accordingly.
20. File be consigned to record room after completion of all legal Digitally formalities. signed by VISHAL VISHAL SINGH Announced in open Court SINGH Date:
2018.10.06 15:42:31 Dated: 06.10.2018 +0530 (VISHAL SINGH) Addl. District Judge06 (Central) Tis Hazari Courts, Delhi CS No. 10562/16 Harbans Lal Sikka Vs. Jagjit Kumar Sikka Page No.24/24