Delhi District Court
Gopal Ors vs Asha Rani Ors on 20 July, 2024
IN THE COURT OF ANURAG THAKUR
SENIOR CIVIL JUDGE-CUM-RENT CONTROLLER, EAST,
KARKARDOOMA COURTS, DELHI.
CIVIL SUIT No.:- 63626/08
CNR No.:- DLET03-000015-1989
IN THE MATTER OF:-
1. Gopal s/o Tara Chand
R/o Mohalla Ramayan (Near Barsi Gate),
Hansi, District Hissar, Haryana.
(Died on 15.01.2000)
2. Sunder Lal s/o Tara Chand
R/o H. No.536, Gali No.12,
Part-II, Khasra No.353,
Sonia Vihar, Delhi-110094
3. Smt. Santosh Kumari,
W/o Rohtash Kumar,
R/o H. No. J-77/78, Dakshin Puri,
New Delhi-110062 ... Plaintiffs
Versus
1. Smt. Asha Rani,
W/o Shri Krishan
R/o H. No. 1288, Subhash Road,
Gandhi Nagar, Delhi-110031
(Through her Power of Attorney Holder Shri Krishan)
2. Smt. Vidyawati w/o Tara Chand
R/o C/o Smt. Prem Lata @ Aaya
Opposite Shanker's Tubewell,
Sonia Vihar, Delhi-110094.
(Died on 28.12.2007)
3. Om Prakash s/o Tara Chand
R/o C/o Smt. Prem Lata @ Aaya
Opposite Shanker's Tubewell,
Sonia Vihar, Delhi-110094.
CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 1 of 30
(Died on 04.11.2002)
4. Hari Chand s/o Tara Chand
R/o C/o Smt. Prem Lata @ Aaya
Opposite Shanker's Tubewell,
Sonia Vihar, Delhi-110094.
5. Mohan Lal s/o Tara Chand
R/o C/o Smt. Prem Lata @ Aaya
Opposite Shanker's Tubewell,
Sonia Vihar, Delhi-110094.
(since deceased)
6. Smt. Lajja w/o Mahender Kumar,
R/o 1/206/18, S.D.Mandir, Sadar Bazar,
Delhi Cantt.,Delhi-110010
(Died on 13.04.2018)
7. Smt. Prem Lata @ Aaya w/o Darahan Lal,
R/o Gali No.12, Shanker's Tubewell,
Sonia Vihar, Delhi-110094.
8. Devi Charan s/o Umrao Singh,
R/o H. No. 403, Bagichi Harphool Singh,
Subhash Road, Gandhi Nagar, Delhi-110094.
Also at:- Village Khera, P.O. Pilakhua,
Distt. Ghaziabad, U.P.
(since deceased) ..........Defendants
SUIT FOR DECLARATION, PARTITION,
POSSESSION AND INJUNCTION
Date of Institution: 07.01.1989
Date on which Judgment was reserved: 05.06.2024
Date of judgment: 20.07.2024
JUDGMENT
By way of present judgment, the suit filed by plaintiffs against defendants for declaration, cancellation of instruments, possession, partition and perpetual injunction CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 2 of 30 shall be disposed of.
CASE AS PER THE LATEST AMENDED PLAINT
1. The present suit was instituted by plaintiff no.1 for himself and as next friend of plaintiff no.2 & 3 (who were minors at the time of filing of plaint) being their real elder brother as their father had died much earlier and their mother as well as other brothers were arrayed as defendants in the suit.
2. Sh. Munshi Ram @ Munshi Lal s/o Ganga Sahai was owner in possession of plot/property bearing no.336/3 (Old) and 1338 (New) measuring 210 sq. yds. approx. out of Khasra no.406/339/63 situated at Mandirwali Gali, Gandhi Nagar, in the area of Village Seelampur, Ilaqa-Shahdara, Delhi-110031. Munshi Ram died intestate in year 1938 leaving behind his two sons Tara Chand @ Panna Lal and Ram Karan. The aforementioned property devolved in equal shares to both the sons but it remained joint property. Tara Chand also died intestate at Hansi, District Hissar on 31.05.1980 leaving behind five sons (Om Prakash, Hari Chand, Mohan Lal, Gopal & Sunder Lal), three daughters (Santosh, Lajja & Prem Lata) and his wife Vidya Wati. These heirs of Tara Chand inherited his undivided share in aforesaid property.
3. In or about the year 1986/87 under an oral family settlement, a partition between Ram Karan and heirs of Tara Chand was effected and the portion of 105 sq. yds (shown as 50 sq. yds in red colour and 55 sq. yds. in blue colour in the site plan) with construction on it fell to the share of heirs of Tara CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 3 of 30 Chand. Thus, the legal heirs became co-owners and in joint possession of this 105 sq. yds area (hereinafter referred to as the 'suit property') and each one had a 1/9th share in the suit property.
4. The suit property has never been divided/partitioned by metes and bounds or by any other manner amongst the heirs of Tara Chand. In the years 1987-88, the defendant no.2 to 7 in collusion with and at instance of Sh. Brahma Nand (relative of defendant no.2 to 7) and Jaipal Singh (brother of defendant no.1) entered into an agreement to sell the suit property in favour of defendant no.1 Asha Rani and defendant no.8 Devi Charan. Defendant no.8 is brother of defendant no.1 and is her benamidar. Defendant no.1 & 8 entered into this agreement at the cost of the plaintiffs and completely disregarding and ignoring the rights of plaintiffs to suit property as its co-owners. This transaction was conducted without the consent and knowledge of plaintiffs.
5. Defendant no.2 to 7 had no right to sell, convey or otherwise transfer the suit property as it belonged to the undivided family of plaintiffs and defendant no.2 to 7, or to deliver its possession to defendant no.1 and/or defendant no.8 without the prior consent and knowledge of plaintiffs.
6. Plaintiff no.1 requested defendant no.2 to 7 not to agree to sell or transfer the suit property or any portion thereof to defendant no.1 and/or defendant no.8. However, defendant no.1 had started claiming herself to be the owner of the property measuring 50 sq. yds. in red colour in site plan, whereas this CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 4 of 30 assertion of ownership by defendant no.1 is false and incorrect as the plaintiffs still continue to be co-owners of the same with defendant no.2 to 7. The plaintiffs suspect that defendant no.1 got signed and executed certain documents like agreement to sell, power of attorney, receipt, will, affidavit etc. from defendant no.2 to 7 in her favour and also in favour of defendant no.8. The plaintiffs further came to know that defendant no.1 is determined to raise construction on the suit property after demolishing existing structure and thereafter to let or sell the same or otherwise deliver possession to interested persons for her own benefit. The defendant no.1 and her husband refused to listen to the plaintiffs and they are adamant that they will execute their illegal and nefarious designs. The local police has refused to take action against them. If the defendant no.1 and 8 succeed in making changes in the suit property then the status quo of the suit property would be disturbed which may lead to creation of third party interest and the plaintiffs would be subjected to multiplicity of proceedings.
7. Hence, the present suit seeking (i) decree declaring all agreements, deeds and transactions in connection with sale, transfers and/or delivery of possession of whole or any part of suit property in between defendant no.2 to 7 and defendant no.1 and 8 to be illegal and void and for declaration that plaintiffs as well as defendant no.2 to 7 are co-owners in possession of entire suit property, (ii) decree for cancellation of sale deeds and/or other documents, if any executed by defendant no.2 to 7 in favour of defendant no.1 and 8 qua the suit property, (iii) decree for recovery of possession of suit property, thereby taking suit CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 5 of 30 property out of possession of defendant no.1 and defendant no.8 and putting the plaintiffs as well as defendant no.2 to 7 in possession of the suit property, (iv) decree of partition dividing the suit property by metes and bounds and the respective possession of shares of plaintiffs be delivered to them and lastly,
(v) decree for restraining defendant no.1 and/or defendant no.8 from acquiring or purchasing any interest in whole or part of suit property or from getting any document of title executed and registered qua the suit property and restraining defendant no.2 to 7 from selling or transferring suit property or undivided interest therein to the defendant no.1 and/or defendant no.8 and also restraining defendant no.1 and 8 from alienating the suit property or delivering its possession to third persons.
WRITTEN STATEMENTS AND REPLICATION
8. Upon service of summons, the defendant no.1 to 7 appeared. Defendant no.1 filed her written statement whereas defendant no.2 to 7 filed a joint written statement. The defendant no.2 to 7 in their written statement pleaded that plaintiff no.1 is the son of defendant no.2 and real brother of defendant no.3 to 7. They also stated that plaintiff no.2 was born on 21.06.1975 and plaintiff no.3 was born on 17.05.1972. Defendant no.2 to 7 further averred that they had no objection in case plaintiff no.1 acted as next friend of plaintiff no.2 and 3 for the purpose of this case. They stated that defendant no.1 in collusion with her husband Shri Krishan, Brahma Nand and her brother Jaipal Singh tried to usurp the property of defendant no.2 to 7 and in order to achieve their object they asked defendant no.2 to sign certain papers and defendant no.2 believing that they would never cheat CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 6 of 30 her, under instructions of Brahma Nand and other co-conspirators put her thumb marks on certain papers without receiving any money or sale consideration. Under influence and control of these conspirators, the defendant no.2 admitted before the Sub- Registrar, Delhi that she had received in advance a sum of Rs.45,000/- from defendant no.1 and also Devi Charan i.e. defendant no.8 whereas no such payment was ever received by defendant no.2 to 7 at any time whatsoever. They contended that they along with plaintiffs remained the co-owners of the suit property. They categorically denied executing any sale deed/conveyance deed or any transfer deed in favour of defendant no.1 & 8 or anybody else in respect of suit property. They fully supported the case of the plaintiffs.
9. In her latest amended written statement defendant no.1 contended that the suit was not maintainable in the present form. She also claimed that the plaintiffs had no locus standi to file this suit. Defendant no.1 also pleaded that the plaintiff no.1 had no right, title or authority to act as guardian of alleged minors (plaintiff no.2 & 3). She avowed that plaintiff no.3 was not a minor as she executed the relinquishment deed dated 30.11.1987 in favour of defendant no.2. Defendant no.1 submitted that she had purchased 50 sq. yds. only (shown in red colour in site plan) vide agreement to sell dated 07.01.1988 and besides this agreement, the defendant no.2 had also executed a General Power of Attorney dated 07.01.1988 in her favour to deal with the suit property to the extent of aforementioned 50 sq. yds.. The defendant no.1 also raised objections that the suit was bad for non-joinder of necessary parties and the suit for the purpose of CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 7 of 30 jurisdiction and court fees has not been properly valued.
10. Replication to the amended written statement of the defendant no.1 was filed by the plaintiffs wherein they refuted the claims made by the defendant no.1 in her written statement. The plaintiffs reiterated the averments made in the plaint.
ISSUES
11. Admission/denial of documents was not conducted. From the pleadings of the parties and other material available on record, the following issues were framed for determination:-
(i) Whether the plaintiffs are entitled to a decree of declaration as claimed? OPP.
(ii) Whether the plaintiffs are entitled to a decree of cancellation of instruments as claimed? OPP.
(iii) Whether plaintiffs are entitled to a decree for recovery of possession as claimed? OPP.
(iv) Whether plaintiffs are entitled to decree for permanent injunction as claimed? OPP.
(v) Whether plaintiffs are entitled to decree for partition as claimed? OPP 1.
(vi) Whether the suit of the plaintiffs is not maintainable in its present form? OPD 1.
(vii) Whether plaintiffs have no locus standi to file the present suit? OPD.
(viii) Whether the suit of the plaintiffs is bad for mis-joinder and non-joinder of necessary parties? OPD1.
(ix) Whether the suit of the plaintiff is without any cause of action? OPD 1.
CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 8 of 30
(x) Whether the suit of the plaintiffs has not been properly valued for the purpose of court fees and jurisdiction? OPD1.
(xi) Relief.
12. The judgment in the present matter was earlier passed by the learned Predecessor of this court, however, in appeal, the same was set-aside by the court of the then learned ADJ-01 East/KKD/Delhi, vide order dated 22.01.2016 with the directions that the suit be amended appropriately in respect of site plan and the suit be properly valued for the purpose of court fees and jurisdiction and thereafter, the matter be decided afresh. Thereafter, two additional issues were framed by the Learned Predecessor of this court on 08.04.2022, these are:-
(i)(a) Whether the present suit is not valued properly and hence is liable to be rejected under Order VII Rule 11 CPC? OPD-1
(i)(b) Whether the present suit is beyond the pecuniary jurisdiction of this court? OPD-1 PRESENT STATUS OF THE PARTIES
13. Plaintiff no.1 had already died on 15.01.2000 and all his LRs. are already party to this litigation. Plaintiff no.2 and 3 are alive and are contesting the suit on behalf of plaintiff no.1 also. Defendant no.1 is alive but she is represented through her power of attorney holder Shri Krishan. Defendant no.2 died on 28.12.2007 and all her LRs. are already party to this litigation. Defendant no. 3 died on 04.11.2002 and all his LRs. are already party to this litigation. Defendant no.4 is alive but was proceeded ex-parte on 23.05.2017. Defendant no.5 had died but prior to his death, he had already been proceeded ex-parte so the plaintiff CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 9 of 30 was not obliged to implead his LRs. Similarly defendant no.6 was proceeded ex-parte on 18.02.2017 and she subsequently died on 13.04.2018 so the plaintiff was not required to implead her LRs. Defendant no.7 is alive but she was proceeded ex-parte on 18.02.2017. Defendant no.8 was not a party to the original suit rather, he was impleaded as a party vide order dated 15.03.1993. He was proceeded ex-parte on 01.05.1995. Subsequently, defendant no.8 died but vide order dated 23.08.2011 an application made under Order XXII Rule 4(4) CPC was allowed and the plaintiffs were exempted from impleading the LRs. of defendant no. 8.
EVIDENCE ADDUCED
14. To prove their case, the plaintiffs examined only one witness i.e. plaintiff no.3 Santosh Kumari who was examined as PW-1. PE was closed on 22.03.2010 in affirmative. Defendant no.1 examined only one witness viz. Shri Krishan as DW-1 and the DE for defendant no.1 was closed on 31.08.2010. Opportunity was afforded to the plaintiffs and the defendants to adduce evidence regarding the additional issues framed but they chose not to lead any additional evidence. Final arguments in the matter were concluded on 05.06.2024. Case file including the written submissions filed are thoroughly perused.
FINDINGS AND CONCLUSION
15. In addition to the material placed on record by the parties to this suit, the undersigned also had the occasion to go through the judgment passed earlier in this suit by the then learned SCJ- cum-RC, East Delhi as well as the judgment passed in appeal by CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 10 of 30 the then learned ADJ-01 East/KKD/Delhi. My findings on the issues framed are delineated hereinafter.
Issue no.(i), (ii), (iii), (iv), (v) and (ix):-
16. All these issues are inter-connected, therefore they shall be decided together on the basis of conclusions to be drawn on key aspects of this case. The first such aspect of the case is the relinquishment deed and the question of minority of executant Santosh Kumari at the time of execution of the same.
17. The relinquishment deed Ex.DW1/6 is a registered document. Sh. Vijay Kumar Rawat, (UDC) from office of Sub- Registrar-IV-A appeared during trial with record of Ex.DW1/6. It is duly proved that Ex.DW1/6 is a registered document. At this juncture it is apposite to reproduce Rule 33, 34 and 35 of Delhi Registration Rules,1976 which read as under:-
33. Enquiry as to execution, identity, etc.-The Registering Officer shall then, with as little delay as possible, enquire whether the document was executed by the alleged executant, and satisfy himself as to the identity of the person appearing before him to admit execution. In cases of alienation, he shall satisfy himself of the identity not only of the alienor; but also of the alienee, if the latter is present. If the presentor is the executant, or his representative, assign or agent is present, the registering officer shall make the necessary enquiry at once. He should also require the presentor if an agent, to produce a power of attorney authenticated in the manner prescribed in section 33 of the Act if a representative or assign to produce evidence of his status.
34. Documents to be scrutinised and explained to executants.-
Every deed shall be subject to a thorough scrutiny with a view to ascertain whether it correctly represents the intention of the parties and the Registering Officer shall make sure that the person incurring liability knows the extent to which his rights are affected. Documents executed by persons who are unable to read shall be read out and if necessary explained to them and the Registering Officer shall ascertain that they clearly understand their purport. Documents written in language which the executants do not understand shall in like manner be interpreted and explained.
CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 11 of 30
35. Recording of endorsement under section 58.-If execution by the alleged executant is admitted, and the Registering Officer is satisfied on the point of identity he shall record on the instrument the endorsement required by section 58 of the Act and such endorsement shall be signed by the Registering Officer, the executant and all the witnesses examined; but no such endorsement is necessary on a copy of a decree or order or of a certificate sent under section 89 of the Act.
It is to be presumed that official acts have been duly performed therefore the registering officer would have conducted a thorough inquiry before registering Ex.DW1/6. In case of Prem Singh v. Birbal, 2006 (5) SCALE 191, it was held by the Apex Court that a registered document is presumed to be validly executed and the onus to prove otherwise is on the person who disputes its execution. The relinquishment deed is a public document and its certified copy can be produced as proof of its contents. Ordinarily, the relinquishment deed proved in the aforementioned manner would be relied upon by the court. However, in her testimony, PW-1 Santosh Kumari stated that she had not gone to the office of Sub-Registrar on 30.11.1987 and she did not execute the relinquishment deed. She also stated that point A & B on that document do not bear her signature and thumb impression respectively. Thus, she raised a cloud on the relinquishment deed and she further claimed that she was a minor on the date of execution of that deed. It is noteworthy that she denied her signatures not only on the relinquishment deed but also on the plaint dated 20.04.1993 at point A. This shows that Santosh Kumari cannot be treated as a reliable witness qua the identification of her own signatures as she denied even her undisputed signatures on the plaint. Mere denial of signatures and thumb impression is not enough to rebut the presumption of genuineness. Something more ought to have been done by PW-1.
CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 12 of 30 She could have got examined her disputed signatures and thumb impression with her admitted signatures and thumb impressions to lend some credibility to her claim of forgery.
18. To prove her age PW-1 relied upon her date of birth certificate Ex.PW1/1. In this document the date of birth of Santosh Kumari is noted as 17.05.1972. It is important to note that the date of registration of Ex.PW1/1 is 01.12.1988. No worthwhile reason has been put forward for getting the birth of Santosh Kumari registered after more than 16 years. The suspicion is also aroused by the fact that this registration was got done after the execution of relinquishment deed dated 30.11.1987. This court does not have sufficient material to hold that this registration of birth was got done with ulterior motive or it was a collusive act of the plaintiffs and defendant no.2 to 7 designed to defeat the rights of defendant no.1 and 8. The fact remains that Ex.PW1/1 is registered with the office of Registrar, Birth-Death, Municipal Committee, Hansi, Haryana. Ex.PW1/1 is also a public document and its certified copy can also prove the contents of that document. The official act of the Registrar, Birth-Death, Hansi is also presumed to be duly performed. It has to be held (in the absence of proof to the contrary) that the birth of Santosh Kumari could have been validly registered under the extant applicable rules. It is held by the Apex Court in a catena of judgments that the date of birth certificate is the primary document which is evidence of birth of a person. Reliance in this regard is also placed on the judgment of High Court of Punjab & Haryana in the case of Surender v. State of Haryana, Crl. Rev. No.640 of 2011 decided on 19.04.2011 wherein the following CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 13 of 30 observations were made:-
On the other hand, the Single Bench of Orissa High Court in the case of Bikram Ray vs. Smt. Jema Hembram and another reported as 2011(1) R.C.R.(Criminal) 584, held as under :-
" 6. xxx xxx In Mayadhar Nayak v. Sub Divisional Officer, Jaipur and others, 54 (1982) CLT 265, this Court has held that the entries in birth and death registers are public documents and are admissible under section 35 of the Evidence Act. The Court further held that it is not necessary to prove who made the entries and what was the source of information. The Court further held that the register being a public document, presumption of correctness attaches to it and heavy onus lies on the party who want to dispute the presumption. In Siba Prasad Jena v. Puspanjali Jena and another, 2007(59) AIC 734 (Ori., H.C.) this Court further held that the birth certificate is the extract of the register of births and deaths maintained by the health centre. The register is maintained in Form No.11 in accordance with Rule 13 of the Orissa Registration of Births and Deaths Rules, 1970. Therefore, birth certificate is admissible as a public document. The Court further held that when birth certificate has been issued by the Registrar of Births and Deaths, it should be treated as a public document issued on the basis of the register maintained under the Registration of Births and Deaths Act, 1969. Therefore, no formal proof is necessary."
Similar view was also held by the Rajasthan High Court in the case of Jeeta @ Jitendra vs. State (Rajasthan) reported as 2010(3) R.C.R.(Criminal) 608. The entry of the date of birth in the Birth Certificate issued by Registrar (Birth and Deaths) is a primary evidence.
In the present case, the said certificate was ignored on the ground that the Chowkidar along with register has not been examined to prove date of birth recorded in Chowkidar register nor any person has been examined from the Registrar, Births and Deaths to prove as to on what basis the aforesaid date of birth of accused has been recorded in their record. This view is contrary to the law laid down in various judicial pronouncements by Hon'ble the Apex Court. This question has been well settled by the Hon'ble Apex Court in the case of Harpal Singh and another vs. State of Himachal Pradesh reported as 1981 Crl. L.J. 1, by holding that certified copy of entry of date of birth in the register of Births and Deaths is clearly admissible under Section 35 of the Evidence Act and, therefore, the examination of the official, where the certified copy of the Birth Certificate is produced, was not necessary. Para 3 of the said judgment is relevant and is reproduced as under :-
"3. In the instant case the prosecution has proved the age of the girl by overwhelming evidence. To begin with, there is the evidence of Dr. Jagdish Rai (PW 14) who is a radiologist and who, after X-Ray examination of the girl found that she was about 15 years of age. This is corroborated by Ex.PF, which is an entry in the admission register maintained at the Government Girls High School, Samnoli (wherein the girl was a student) and which is proved by the Head Master. That entry states the date of birth of the girl as 13th October, 1957.
CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 14 of 30 There is yet another document, viz., Ex. PD, a certified copy of the relevant entry in the birth register which shows that Saroj Kumari, who according to her evidence was known as Ramesh during her childhood, was born to Lajwanti wife of Daulat Ram on 11.11.1957. Mr. Hardy submitted that in the absence of the examination of the officer/chowkidar concerned who recorded the entry, it was inadmissible in evidence. We cannot agree with him for the simple reason that the entry was made by the concerned official in the discharge of his official duties, that it is therefore clearly admissible under Section 35 of the Evidence Act and that it is not necessary for the prosecution to examine its author. From whatever angle we view the evidence, the conclusion is inescapable that Saroj Kumari was below 16 years of age at the time of the occurrence. Accordingly, we agree with judgments of the courts below and see no merit in this appeal which is dismissed."
It is not disputed in the present case that the petitioner had produced the original/certified copy of the Birth Certificate. As such, the same is admissible in evidence as per Section 35 of the Indian Evidence Act, 1872 and accordingly it was not required to prove the same by producing the Chowkidar or the official who entered the same.
Since both Ex.PW1/1 and Ex.DW1/6 are duly registered with the Registrars concerned, therefore they are deemed to be validly executed. It cannot be stated that Santosh Kumari did not visit the office of the sub-registrar on 30.11.1987 for execution of Ex.DW1/6 or that she did not put her signature on Ex.DW1/6. Similarly, it has to be held on the basis of Ex.PW1/1 that Santosh Kumari was born on 17.05.1972 and was only 15 and a half years old when the relinquishment deed was executed by her. She being a minor could not have entered into a transaction whereby she relinquished her share in the suit property in favour of her mother. The relinquishment of her share in the suit property by Santosh Kumari is void ab initio. Thus, the relinquishment deed Ex.DW1/6 does not bind Santosh Kumari and her interest in the suit property did not get transferred to her mother Vidya Wati.
19. Another crucial aspect of this case is whether Gopal was CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 15 of 30 the son of Tara Chand and whether he was given in adoption or not? Defendant no.1 took a stand that plaintiff no.1 Gopal was not the son of Tara Chand in the year 1987/1988 as he had been given in adoption to his bua (paternal aunt) viz. Dhanno Devi. No reason for taking this stance was disclosed in written statement by defendant no. 1. However, in cross-examination of PW-1 Santosh Kumari it was suggested to her that Gopal had been given in adoption to her bua but PW-1 denied this suggestion. She also denied that Gopal was brought up by Dhanno Devi and that all his expenses were borne by Dhanno Devi. PW-1 voluntarily stated that Gopal used to live with them. From the suggestions given to PW-1 it is clear that the defendant no.1 knew that Tara Chand was biological father of Gopal but she believed that Gopal was given in adoption. No adoption deed has been placed on record by defendant no.1. No witness has deposed that he saw Gopal being given in adoption to his bua. No documents have been placed on record wherein Gopal has been shown as son of Dhanno Devi. Even Dhanno Devi was not examined as a witness by defendant no.1 to prove her claim of Gopal being adopted son of Dhanno Devi. Moreover, PW-1 categorically stated that her brother Gopal used to reside with them. Defendant no.2 to 7 in their written statement admitted that Gopal was real son of Vidya Wati. Since, defendant no.1 asserted that Gopal was given in adoption, therefore the burden to prove the same was upon her. But the non-mentioning of name of Gopal in the relinquishment deed as heir of Tara Chand and his complete silence at the time of handing over of possession of suit property to defendants no.1 and 8 does rouse suspicion about his status but still this doubt can not form the basis to hold that CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 16 of 30 Gopal was given in adoption.
20. It is not in dispute that Gopal had attained the age of majority on the date of alienation of his share in the suit property by his mother. The relinquishment deed Ex.DW1/6 was not signed by Gopal, so it is exceedingly clear that he had retained his right in the suit property. It can be safely held that Vidya Wati could not have transferred Gopal's interest in suit property to anyone. No compelling need or requirement of money for benefit of her family is pleaded and proved by Vidya Wati to show that she acted under compulsion and absolute necessity to alienate either the share of her minor children or that of Gopal. In her testimony as PW-1 Santosh Kumari disclosed that Gopal used to reside with them, if that be so then how is it possible that the possession of the entire property was handed over by defendant no.2 to 7 to defendant no.1 and 8 but no hue and cry was raised by Gopal. Surely, some resistance ought to have been shown by Gopal when he was dispossessed, especially when he supposedly was against transfer of suit property by defendant no.2 in favour of defendant no.1 and 8. Clearly, all the facts have not been brought before this court as except Santosh Kumari none of the family members entered the witness box to shed more light on the case.
21. A critical aspect of this case is the legality and validity of the documents executed by defendant no.2 in favour of defendant no.1. These documents are Agreement Deed Ex.DW1/1, General Power of Attorney Ex.DW1/2, Affidavit Ex.DW1/3, Registered Receipt Ex.DW1/4 and Registered Will Ex.DW1/5. DW-1 Shri CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 17 of 30 Krishan is an attesting witness in Ex.DW1/1, Ex.DW1/2, Ex.DW1/4 and Ex.DW1/5. The thumb impressions of defendant no.2 are on each of these five documents. The Will and Receipt are both registered documents. The receipt is presumed to be true and duly executed considering that it is a registered document. Even otherwise in her written statement Vidya Wati admitted that she appeared before the sub-registrar and stated that she had received Rs.45,000/- from defendant no.1 meaning thereby that this receipt was executed by her. Defendant no.1 was put in possession of 50 sq.yds. red colour portion of suit property by the defendant no.2 to 7. Though, in their written statement they stated that Brahma Nand got thumb impressions of Vidya Wati on some blank papers but they have no plausible explanation to offer about handing over of possession of red portion of suit property to defendant no.1. No complaint or even a murmur of forcible dispossession from suit property has been raised by either defendant no.2 to 7 and more surprisingly not even by any of the plaintiffs. No complaint regarding the alleged cheating committed by defendant no.1 in collusion with her husband, Jaipal and Brahma Nand had been made by defendant no.2 to 7. None of the defendant no.2 to 7 entered the witness box to throw light on the modus operandi of the aforementioned alleged conspirators. In her affidavit of examination-in-chief the only witness of the plaintiffs made an unambiguous admission that the defendant no.2 had executed the documents of the suit property in favour of defendant no.1 and also in favour of defendant no.8. However, she stated that no money/sale consideration qua execution of these documents was paid by purchasers to defendant no.2. Upon a thorough perusal of cross-examination of CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 18 of 30 PW-1 it can not be stated that she is disputing the execution of aforementioned documents by her mother.
22. Though the will Ex.DW1/5 is a registered document and its execution has been admitted by PW-1 yet the same is to be proved. DW-1 is one of the attesting witnesses of this Will. He stated in his evidence filed by way of affidavit that Vidya Wati put her thumb impression on the Will in his presence and he signed in her presence. The Will was only one of the several documents that were executed by defendant no.2 to transfer red portion of the suit property to defendant no.1. In the given circumstances of the case the documents Ex.DW1/1 to Ex.DW1/5 are held to be proved. The Delhi High Court in the case of Kuldip Singh Suri v. Surender Singh Kalra, 1998 SCC Online Del 406 held the transfer of property by executing a bunch of documents (GPA/Will/Agreement to Sell/Possession Letter etc) as valid. Reliance in this regard is also placed upon the judgment of Delhi High Court in the case titled as Hardip Kaur v. Kailash & Anr., 193 (2012) Delhi Law Times 168.
23. There are other interesting aspects of this matter which intrigue this court. (A) After 15 years of being born, the birth of Santosh Kumari was got registered so as to prove her a minor after she had made a false representation to sub-registrar about her age and she executed the relinquishment deed. (B) None of defendant no.2 to 7 entered the witness box to depose against defendant no.1 and 8 though it was their case that no sale consideration was paid to them qua the documents executed by defendant no.2. (C) No complaint/suit of any kind was filed by CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 19 of 30 the defendant no.2 against defendant no.1 and 8 and other conspirators, Why? (D) Under what circumstances and for what reason defendant no.2 lied before the sub-registrar about receipt of sale consideration by her from defendant no.1 and 8. (E) Why name of Gopal was not mentioned in relinquishment deed as one of the sons of Tara Chand? (F) Why all the legal heirs of Tara Chand handed over actual physical possession of suit property to defendant no.1 and 8 if no transaction was entered into and no sale consideration received by them? (G) Why wait for over a year to file a case if the plaintiff no.1 was forcibly dispossessed from the suit property? Evidence on record is not sufficient to hold that defendants no.2 to 7 are in cahoots with plaintiffs but all these circumstances certainly lead to an inference that the plaintiffs are deliberately suppressing facts. The cause of action for filing the suit did not arise in favour of the plaintiffs no.2 and 3 on the date of filing of this suit as they on that date were minors and could not have decided for themselves whether the transfer of their interest in the suit property was for their benefit or not. Considering the totality of facts and circumstances, the plaintiffs are not entitled to any relief whatsoever in this suit. The rights of a bona fide purchaser cannot be defeated in the manner in which the legal heirs of Tara Chand had acted.
Issue no.(vi) and (vii):-
24. The suit was instituted by plaintiff no.1 Gopal in his own capacity as well as in capacity as next friend of plaintiff no.2 and 3 (being their real elder brother) as plaintiff no.2 and 3 were minors on the date of institution of suit. There is no conflict of interest between plaintiff no.1 and plaintiff no.2 and 3. Father of CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 20 of 30 plaintiffs had already expired prior to institution of this suit and the mother as well as other siblings of the plaintiffs were arrayed as defendants. The plaintiff no.1 could have acted as the next friend of plaintiff no.2 and 3. The suit is filed in terms of Order XXXII CPC. Reliance in this regard is placed upon the judgment of Apex Court in the case of Nagaiah & Anr. v. Smt. Chowdamma (dead) By LRs. & Anr., (2018) 2 SCC 504 wherein it observed as under:-
4. Hence, the only question to be decided in this appeal is, whether the first plaintiff being the elder brother of minor second plaintiff (at the time of filing of the suit) could have filed the suit on behalf of the minor as his next friend/guardian.
9. "Guardian" as defined under the Hindu Guardianship Act is a different concept from the concept of "next friend" or the "Guardian ad litem". Representation by "next friend" of minor plaintiff or by guardian ad litem of minor defendant is purely temporary, that too for the purposes for that particular law suit.
16. To sum up, instituting a suit on behalf of minor by a next friend or to represent a minor defendant in a suit by a guardian ad litem is a time-tested procedure which is in place to protect the interests of the minor in civil litigation. The only practical difference between a "next friend" and a "guardian ad litem" is that the next friend is a person who represents a minor who commences a lawsuit; guardian ad litem is a person appointed by the court to represent a minor who has been a defendant in the suit.
Before a minor commences a suit, a conscious decision is made concerning the deserving adult (next friend) through whom the suit will be instituted. The guardian ad litem is appointed by Court and whereas the next friend is not. The next friend and the guardian ad litem possess similar powers and responsibilities. Both are subject to control by the Court and may be removed by the Court if the best interest of the minor so requires.
However, the more relevant question that requires consideration is the accrual of right to the minor plaintiff no.2 and 3 to institute the suit on the day the same was filed on their behalf. Admittedly, the suit property was owned by Tara Chand @ Panna Lal who was the father of plaintiff no.2 and 3. The mother of the plaintiffs alienated/transferred the suit property including the shares of the minors in the year 1987-88. As per Section 6 of the Hindu Succession Act 1956 (as it then stood), there was a deemed CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 21 of 30 partition of the suit property on the date when Tara Chand died. The property that devolved upon the heirs of Tara Chand is to be treated as their individual property and they held it as tenants-in- common. This aspect has been explained by the Supreme Court in the case of M. Aumugam v. Ammaniammal & Ors. , (2020) 1 SCALE 603 in the following words:-
10. When we read Section 6 of the Succession Act the opening portion indicates that on the death of a male Hindu, his interest in the coparcenary property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. That would mean that only the brothers would get the property. However, the Proviso makes it clear that if the deceased leaves behind a female heir specified in ClassI of the Schedule, the interest of the deceased in the coparcenary property shall devolve either by testamentary or by intestate succession under the Succession Act and not by survivorship. The opening portion of Section 6, as it stood at the relevant time, clearly indicates that if male descendants were the only survivors then they would automatically have the rights or interest in the coparcenary property. Females had no right in the coparcenary property at that time. It was to protect the rights of the women that the proviso clearly stated that if there is a ClassI female heir, the interest of the deceased would devolve as per the provisions of the Act and not by survivorship. The first Explanation to Section 6 makes it absolutely clear that the interest of the Hindu coparcener shall be deemed to be his share in the property which would have been allotted to him if partition had taken place immediately before his death. In the present case, if partition had taken place immediately before the death of Moola Gounder then he and defendant nos. 1 and 2 would have been entitled to 1/3 share each in the property.
Nothing would have gone to the female heirs as per the law as it stood at that time. However, since partition had not actually taken place, and there were Class-I female heirs, 1/3 share of Moola Gounder was to devolve on the Class-I legal heirs in accordance with Section 8 of the Succession Act.
11. In Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum and Ors.1, the main issue was as to what share a Hindu widow would get in terms of Sections 6 and 8 of the Succession Act. This Court held that the partition which was a deemed partition cannot be limited to the time immediately prior to the death of the deceased coparcenary but "all the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the life time of the deceased." The Court further held that the partition has to be treated and accepted as a concrete reality, something that cannot be recalled at a later stage.
CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 22 of 30
12. In Commissioner of Wealth Tax, Kanpur and Ors. vs. Chander Sen and Ors.2, the dispute related to a joint family business between a father and son. This business was divided and thereafter, carried by a partnership firm of which both were partners. The father died leaving behind his son, two grandsons and a credit balance in the account of the firm. The issue that arose was whether the credit balance in the account left behind by the deceased was to be treated as joint family property or the property was to be distributed to Class-I legal heirs in accordance with Section 8 of the Succession Act. This Court held that Succession Act supersedes all Mitakshara law. The relevant portion of the judgment reads as follows:- "22.... It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession Act would be HUF in his hand vis-à-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis-à-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc." Accordingly, it was directed that the credit balance would be inherited in terms of Section 8 of the Succession Act.
13. In Appropriate Authority (IT Deptt) And Others vs. M. Arifulla And Others3 the issue which arose was whether the property inherited in terms of Sections 6 and 8 of the Succession Act was to be treated as the property of coowners or as joint family property. The Court held as follows: "3. ... This Court has held in CWT vs. Chander Sen that a property devolving under Section 8 of the Hindu Succession Act, is the individual property of the person who inherits the same and not that of the HUF. In fact, in the special leave petition, it is admitted that respondents 2 to 5 inherited the property in question from the said T.M. Doraiswami. Hence, they held it as tenants-in-common and not as joint tenants."
It is trite that under Section 8 of the Hindu Minority and Guardianship Act 1956 ('HMG Act' in short) a natural guardian cannot deal with the undivided interest of a minor in the joint family property considering Section 12 of the HMG Act.
25. However, since the notional partition had taken place, therefore the share of the minor plaintiff no.2 and 3 had got crystallized and their share ceased to have the character of joint family property, so the natural guardian i.e. the defendant no.2/mother could have alienated this share of the minor CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 23 of 30 plaintiffs. The only condition imposed by Section 8(2) of HMG Act is that the prior permission of the court was required for the same. No such permission was taken prior to execution of documents transferring minor plaintiffs' share, therefore this sale was voidable at the option of the minor plaintiffs upon their attaining the age of majority (See Section 8(3) HMG Act). This suit was filed by the next friend on behalf of minor plaintiff no.2 and 3 without waiting for them to attain majority and elect for themselves whether they wanted to challenge the alienation made by defendant no.2 or whether they did not want to challenge the transaction done by their mother qua their shares in the suit property. Plaintiff no.1 is not a natural guardian of plaintiff no.2 and 3. Even otherwise, he had no right whatsoever to decide on behalf of the minors and that option was only available to the minor plaintiffs upon their attaining majority. As per Article 60 of Schedule to Limitation Act 1963, a period of three years is prescribed for instituting a suit for setting aside a transfer of property made by guardian of a ward during his minority. The period is to be reckoned/computed from the date when the ward attains majority. Thus, it is clear as noon day that the right to challenge the transfer/alienation only accrues when the minor attains majority. In the present case, even prior to the accrual of right, the suit was instituted by plaintiff no.1. Hence, the suit filed on behalf of minor plaintiffs is liable to be dismissed on this aspect only. The Bombay High Court dealt with same question of law in the case of Narayan Laxman Gilankar v. Udaykumar Kashinath Kaushik & Ors., AIR 1994 BOM 152 in the following manner:-
1. (i) Does Section 8 of the Hindu Minority and Guardianship Act, 1956 (the Act) apply to the disposal of minor's undivided interest CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 24 of 30 in the joint family property by a natural guardian? (ii) Has a minor, during his minority, right to challenge the transaction as being in violation of S. 8? These two questions of law -- and no other points -- are pressed for consideration in this second appeal.
7. For consideration of question No. 2, sub-sees. (2) and (3) of S. 8 are relevant. Sale transaction without permission of the Court is not void ab initio, but is voidable at the option of the minor or any person claiming under him. Scheme contemplates challenge only after the minor attains majority and not during his minority. After all natural guardian has dealt with the property and under S. 11 of the Act de facto guardian's right to dispose of or deal with the property of a Hindu minor is taken away and the transaction by him is treated to be void ab initio. Any action or result therefrom during minority can on certain grounds be again challenged by a minor on attaining majority and persons bona fide entering into transaction cannot be subjected to endless litigation. Many times transactions are challenged with the blessings and inspiration of the natural guardian with a view to derive advantage arising out of several situations including fluctuations in the market price.
Hence, I hold that transaction would not have been challenged on behalf of minor Babulal.
The view taken in this judgment has been reaffirmed by the Bombay High Court in the case of Rameshwar v. Shivaji & Ors., Second Appeal No. 650 of 2003 decided on 21.01.2019. In the present suit the plaintiff no.1 as next friend not only challenged the transaction done by his mother but he also sought partition of the suit property on their behalf. The plaintiff no.1 not being the natural guardian could not have made the decision on behalf of the minor plaintiffs. The plaintiff no.1 had no locus standi to bring an action in court of law on behalf of the minors for seeking relief of partition, possession, injunction and cancellation of instruments. In the present suit the plaintiff no.1 combined his right to seek the declaration that the transaction entered into by his mother does not affect his interest in the suit property with the option available with his minor siblings upon attaining majority to get those transactions qua their interest declared void. The subsequent continuation of suit by plaintiff no.2 and 3 upon their attaining majority would not confer legality upon the unlawful CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 25 of 30 act of their brother of instituting this suit in gross violation of extant applicable law. When a statute mandates that an act must be done in a particular manner then that act must be done in that manner or none at all. Hence, both the issues of locus standi and maintainability of suit in the form in which it was presented are decided against the plaintiffs.
Issue no.(viii):-
26. In the plaint allegations were made against Brahma Nand and Jaipal Singh as it is canvassed that they were instrumental in facilitating transaction between defendant no.2 and defendant no.1 and 8. Neither Brahma Nand nor Jaipal Singh were made parties to the suit. The plaintiffs had their grievance against Sub- registrar especially the plaintiff Santosh Kumari who claimed that her signature on the relinquishment deed Ex.DW1/6 were forged and she never appeared before the Sub-registrar for the execution of this document. Even that sub-registrar has not been impleaded as a party especially when the right of plaintiff no.3 was contingent upon the declaration of the relinquishment as null and void qua her interest in the suit property. The defendant no.2 to 7 also alleged that the payment was not received from defendant no.1 and 8 by defendant no.2. Even that sub-registrar was not party to the suit. All these persons are proper parties whose presence could have clarified certain aspects of the case which are still not crystal clear, however, none of these persons are a necessary party to the suit as no right to relief against these persons exists in favour of plaintiffs and also effective decree can be passed in the absence of these persons. But it is important to note the observations made by the learned Appellate Court in CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 26 of 30 paragraph 27 of its judgment in this regard which are as follows:-
"So, under such circumstances, the suit was also bad for misjoinder and non-joinder of necessary parties. In fact, the plaintiffs were required to file separate suit against each defendant i.e. defendant no.1 and 8, as their sale transactions were different and they were in possession of their specific portions." The undersigned respectfully agrees with the observations made by the ld. Appellate Court. No document is placed on record to show that any portion of the suit property was sold/transferred in favour of Devi Charan. However, it has come on record that Devi Charan was in possession of 55 sq. yds. of suit property. It matters least whether the 55 sq. yds. in his possession were acquired by Devi Charan by entering into a transaction with Vidya Wati or he illegally and unlawfully took possession of this 55 sq. yds. of suit property. In both scenarios, separate suits ought to have been filed against defendant no.1 and 8 because cause of action against both of them are distinct and independent thus, this suit is bad for misjoinder of parties.
Issue no.(x), (i)(a) and (i)(b) :-
27. In compliance of judgment dated 22.01.2016 passed by the learned ADJ-01, East Delhi, the plaint was amended and two additional issues were framed regarding suit valuation and suit being beyond the pecuniary jurisdiction of this court respectively. In the amended plaint the plaintiff valued the suit in the following manner:
Relief Sought Valuation for purpose of Valuation for payment of jurisdiction Court Fees Declaration with Rs.45,000/- Rs.45,000/-
CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 27 of 30 consequential relief of possession of 50 sq. yards Cancellation of Sale Rs.45,000/- Rs.45,000/- Document For recovery of possession Rs.50,000/- Rs.50,000/-
of 55 sq. yards For Partition Rs.95,000/- Rs.31,667/- For Permanent Injunction Rs.130/- Rs.130/-
The entire area of suit property is 105 sq yards (87.7934 sq. meters) and at the time of filing of suit the circle rate was Rs.2,100/- per sq. meter so total value of suit property was Rs.1,84,340/-. For the relief of partition, the market value of the property is to be considered, therefore, for partition the suit valuation for purpose of pecuniary jurisdiction is Rs.1,84,340/- and partition is sought by plaintiffs of their share which is one third of the suit property, so for court fees the valuation comes out to be Rs.61,447/-. Plaintiffs valued suit for relief of declaration of documents (executed by defendant no.2 in favour of defendant no.1 with consequential relief of possession of 50 sq. yds. of suit property at Rs.45,000/- i.e. the amount received by defendant no.2 from defendant no.1 for selling 50 sq. yds. out of the suit property to her. The plaintiffs were not party to this transaction so they could not have sought relief of cancellation of instrument. The plaintiffs are free to value this relief as per section 7(iv)(c) of The Court Fees Act, 1870 (See Suhrid Singh v. Randhir Singh & Ots., (2010) 12 SCC 112). The valuation of this relief by plaintiff for purpose of pecuniary jurisdiction as well as payment of court fees is correct.
28. It has also come on record that the defendant no.8 Devi Chand was in possession of remaining 55 sq. yds of suit property, CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 28 of 30 so the relief of possession for this area is sought. This relief for the purpose of pecuniary jurisdiction and court fees has been valued at Rs.50,000/- and considering the value of transaction between the defendant no.1 and defendant no.2, this relief is also properly valued for payment of court fees and pecuniary jurisdiction. The prayer for cancellation of instruments is given up so the same is not to be considered for the purpose of suit valuation for jurisdiction and court fees. The relief of injunction is valued at Rs.130/- and this valuation is found to be correct as per the extant applicable law. Once declaration with consequential relief had already been sought qua the entire suit property then there was no need to seek a separate relief of possession so the same is not required to be separately valued. Though, the plaintiff tried to adumbrate that ordinary circle rate was not applicable to the suit property as it was located in an unapproved but later on regularized colony which was not allotted by the government, so schedule circle rate of 1490/- per sq. mtr. would apply. This submission of the plaintiff does not find favour with this court. The plaintiff paid total court fees of Rs.10,757/- and the total valuation of suit for purpose of court fees is Rs.1,56,577/- and for purpose of pecuniary jurisdiction is Rs. 2,79,470/-. Thus, the suit is within pecuniary jurisdiction of this court and requisite court fees had been paid. The issue of valuation of suit was also opined upon by the learned Predecessor of this court vide order dated 20.10.2022. These three issues are decided in favour of plaintiffs and against the defendants.
RELIEF CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 29 of 30
29. Considering the findings given and conclusions reached on various issues in the foregoing paragraphs of this judgment, the suit of the plaintiffs is dismissed. No order as to cost. Decree Sheet be prepared.
Announced in open court on this 20th July, 2024.
Anurag Thakur Senior Civil Judge-cum-RC (East) Karkardooma Courts, Delhi This judgment consists of 30 pages and each and every page of this judgment is signed by me.
CS No:63626/2008 Gopal & Ors. v. Asha Rani & Ors. 30 of 30