Delhi District Court
Kumud Parashar vs . Madhubala Sharma on 12 August, 2011
IN THE COURT OF SH. VIJAY KUMAR DAHIYA
ADDL. DISTRICT JUDGEII(NW): ROHINI COURTS: DELHI
Suit No. 845/10
KUMUD PARASHAR VS. MADHUBALA SHARMA
ORDER
12.08.2011 Present: Ld. counsel for the parties.
1. Vide this order I shall dispose of application under Order 12 Rule 6 CPC r/w Section 151 CPC for passing of the judgment on admission made by the defendant no. 3 in her written statement.
2. Brief facts, in nutshell, are that, the plaintiff has filed the suit for possession, mesneprofit and permanent injunction. It is stated that plaintiff was married on 07.05.1999 as per Hindu rites with Late Sh. Manish Parashar. It is further stated that Smt. Sushila Rani Sharma was the motherinlaw, Sh. Narender Pal CS NO. 845/10 Page no. 1 of 27 Sharma was the fatherinlaw and defendant no. 1, Smt. Madhubala Sharma is the sisterinlaw of plaintiff respectively. It is further submitted that Smt. Sushila Rani Sharma, motherin law of plaintiff was allotted a residential plot bearing no. C602, Saraswati Vihar, Peetam Pura, Delhi110034 (hereinafter referred to as the suit property) and Smt. Sushila Rani Sharma was having two children namely, Smt. Madhubala Sharma and husband of plaintiff namely Sh. Manish Parashar, since deceased. It is further submitted that Smt. Sushila Rani Sharma had executed a registered Will dated 21.10.1988 in respect of the suit property in favour of her son, Late Sh. Manish Parashar. The operative part of the said Will is duly reproduced herein under: "3. As far as the house in question is concerned, I bequeath my rights after my death in favour of my husband Sh. N.P. Sharma for CS NO. 845/10 Page no. 2 of 27 his life time and thereafter my son Master Manish alone will be entitled to own this house.
However, my husband will have no right to transfer, mortgage, sell or part with the house to any body during his life time unless the welfare and interests of my said son so requires, in case of any constraint circumstances."
3. It is further submitted that right from the date of marriage plaintiff is residing in the suit property being her matrimonial home and defendant no. 1 is residing at B354, Prashant Vihar, Delhi110085 being her matrimonial home with her husband and children. It has been further submitted that motherinlaw, Smt. Sushila Rani Sharma expired on 07.06.2000 and husband of plaintiff, Late Sh. Manish Parashar become the absolute owner of the suit property on the death of her mother, the testatrix on the basis of above said registered Will. It has been further submitted that husband of plaintiff namely, Sh. Manish Parashar CS NO. 845/10 Page no. 3 of 27 was employed in Indian Air Force and met with an accident and expired on 03.11.2001 survived by the plaintiff as his only classI heir. It has been further stated that sh. Mansih Parashar since deceased husband of plaintiff had executed a Will dated 12.01.2001 in favour of the plaintiff in respect of all his property. Therefore, plaintiff by way of inheritance and devolution of rights as per Hindu Law and further on the basis of Will of Late Sh. Manish Parashar has become the absolute owner of suit property. It has been further stated that plaintiff was forcibly dispossessed from the suit property by defendant no. 1 and plaintiff filed civil suit bearing no. 310/2002 against the defendant no. 1 and her fatherinlaw, Sh. Narender Pal Sharma for permanent injunction titled as Smt. Kumud Parashar Versus Narender Pal Sharma & Smt. Madhu Bala Sharma, and in that suit Sh. Narender Pal Sharma made statement for and on CS NO. 845/10 Page no. 4 of 27 behalf of himself and defendant no. 1 that plaintiff will not be dispossessed from the suit property during her life time and in view of statement made by said Sh. Narender Pal Sharma, the plaintiff withdrew her aforesaid suit and possession of the plaintiff was protected. Thereafter, plaintiff started residing in her parental home i.e. 44A, RBlock, Dilshad Garden, Delhi110095. It has been further stated that subsequently plaintiff came to know that her fatherinlaw has applied for mutation of the suit property in his favour fraudulently and he has also succeeded in getting the mutation in his name on 05.04.2002 concealing the material fact that he was having only life estate in the suit property and this fact was not within the knowledge of the plaintiff when she filed the above said suit. It is further submitted that conveyance deed and other documents are liable to be cancelled being totally illegal, null and void. Therefore, plaintiff filed CS NO. 845/10 Page no. 5 of 27 another suit titled as Smt. Kumud Parashar Versus DDA & Ors., for declaration of the aforesaid conveyancedeed, mutation and other allied proceedings as null and void and same is still subjudice in the appellate court of Sh. S.C. Malik, ADJ, Delhi vide RCA no. RCA19/09. It has been further stated that on 25.12.2009, during the pendency of above said appeal, Sh. Narender Pal Sharma expired and plaintiff's right over the suit property has become absolute as per Will dated 21.10.1988. It is further submitted that all the title documents pertaining to the suit property have been in the custody, control and possession of defendant no. 1 after the death of Sh. Narender Pal Sharma. It is further submitted that plaintiff had come to know that defendant no. 1 had occupied the suit property as licensee of Sh. Narender Pal Sharma and after the death of Sh. Narender Pal Sharma such occupation of suit property by the defendant no. 1 CS NO. 845/10 Page no. 6 of 27 has become illegal, unauthorized and unlawful. Therefore, plaintiff issued a legal notice to pay the occupation charges @ 15,000/ per month and on receiving the said notice, defendant threatened the plaintiff to dispossess the suit property. So present suit for possession has been filed.
4. Defendant no. 1 appeared and filed written stated contending, interalia, therein that plea taken by the plaintiff is inconsistent to the factual position and suit is liable to be dismissed as no cause of action has accrued in favour of the plaintiff. It is further submitted that Sh. Narender Pal Sharma was not having life estate in the suit property and he was absolute owner of the suit property and competent to execute the Will and accordingly, Sh. Narender Pal Sharma has executed a Will in favour of the defendant no. 1 whereby the suit property was lawfully bequeathed upon the defendant no. 1. It has been CS NO. 845/10 Page no. 7 of 27 further stated that after the demise of her husband, plaintiff was residing with her parents and at no point of time she was in occupation of the suit property. It is further stated that Smt. Sushila Rani Sharma was allotted the suit property and she mortgaged the said suit property to the Oriental Fire and General Insurance Co. for enabling Late Sh. Narender Pal Sharma to raise the construction over the suit property and the said loan of reconstruction was paid by Narender Pal Sharma out of his income and further construction on the suit property was made by Sh. Narender Pal Sharma from his own sources. It is further stated that Sh. Manish Parashar, husband of the plaintiff had executed an affidavit on 19.08.2000 which is available on the record of DDA whereby he has foregone all his rights, title or interest in respect of the suit property in favour of his father, Sh. Narender Pal Sharma. It is further submitted that plaintiff after CS NO. 845/10 Page no. 8 of 27 the death of her husband had never stayed in the suit property and even she did not attend the last rites of her husband. On merits, the execution of Will had been admitted and it has been further stated that Smt. Sushila Rani Sharma had never granted life estate to her husband, Sh. Narender Pal Sharma. It has been further stated that relief sought by the plaintiff is in direct contravention to the mandate of Section 14 of Hindu Succession Act. It is further stated that father of defendant no. 1 had absolute right, title and interest in the suit property and he has executed the Will whereby he had devolved all his rights, title and interest in the suit property to the defendant no. 1 to the exclusion of the plaintiff. It has been further submitted that condition, if any, imposed by Late Smt. Sushila Rani Sharma in her Will is inconsistent with provision of Indian Succession Act. It has been further stated that plaintiff has not become the owner CS NO. 845/10 Page no. 9 of 27 of the suit property on the basis of Will executed by Late Smt. Sushila Rani Sharma. It has been further submitted that the title of Sh. Narender Pal Sharma, father of defendant no. 1 has been recognized by the DDA and a conveyance deed has been executed by DDA in favour of Sh. Narender Pal Singh. Therefore, defendant no. 1 is the owner of suit property on account of her own independent right over the suit property, so this suit is stated to be not maintainable and liable to be dismissed.
5. Plaintiff filed replication, reiterating the contents of the plaint and vehemently denied the contents of the written statement filed by the defendants.
6. Thereafter, present application for judgment on admission has been filed by the plaintiff. It is submitted in this application that pleadings are complete and from the bare perusal of the CS NO. 845/10 Page no. 10 of 27 parties' pleadings and the documents, there are following clear, unequivocal, unqualified, unconditional and unambiguous admission in the written statement filed by the defendant no. 1 which are as under: A) Relationship between the parties.
B) Suit property: C602, Saraswati Vihar, Peetam Pura, Delhi.
C) Suit property allotted (subleased out) to Smt. Sushila Rani Sharma: 07.09.1976.
D) Ownership of the Testatrix Smt. Sushila Rani Sharma in respect of the suit property by virtue of the allotment to her and construction and possession by her.
E) Execution of Will Dt. 21.10.1988 by the testatrix smt.
Sushila Rani Sharma in respect of the suit property thereby creating the restricted/limited lifetime interest in favour of CS NO. 845/10 Page no. 11 of 27 her husband Sh. Narender Pal Sharma and ultimately in favour of her son Manish Parashar (Plaintiff's husband). F) Plaintiff Ms. Kumud Parashar was married to Sh. Manish Parashar on 07.05.1999 according to the Hindu Rites, Custom and ceremonies.
G) Testatrix smt. Sushila Rani Sharma died on 07.06.2000. H) Plaintiff's husband of Sh. Manish Parashar expired on 03.11.2001.
I) Plaintiff's status as widow of Sh. Manish Parashar. J) No assertion by the defendant that the plaintiff is disqualified from inheriting the suit property of her husband Sh. Manish Parashar according to the personal law i.e. the Hindu Succession Act, 1956.
K) Possession with respect to the suit property of the defendant no. 1 from the lifetime of Sh. Narender Pal CS NO. 845/10 Page no. 12 of 27 Sharma and again exclusively after his death also till date through him.
L) Institution and pendency of the litigation in respect of the suitproperty between the parties. One of the litigations was Kumud Parashar V/s Narender Pal Sharma & Madhubala Sharma, disposed by the Court of Sh. Gautam Manan, then CJ, Delhi vide its order Dt. 02.01.2004 on the undertaking Dt. 17.12.2003 of Sh. Narender Pal Sharma for and on behalf of himself and Madhubala Sharma that he shall not sell (dispose of) the suit property in his lifetime and on this the plaintiff Ms. Kumud Parashar also made statement in the suit on the same day as satisfied and thus the aforesaid suit was disposed of on 02.01.2004. Thus the undertaking Dt. 17.12.2003 of Narender Pal Sharma is binding on the contesting Defendant no. 1 Smt. Madhubala CS NO. 845/10 Page no. 13 of 27 Sharma independently and also through sh. Narender Pal Sharma also even on today.
M) Testatrix Smt. Sushila Rani Sharma's husband Sh.
Narender Pal Sharma died on 25.12.2009.
N) Sh. Narender Pal Sharma applied for mutation in his favour 24.11.2000 in lifetime and consequently the mutation was made in his own favour on 05.04.2002. His all acts were totally in defiance of the Testatrix Smt. Sushila Rani Sharma's last and final Will & testament Dt. 21.10.1988 and of his aforesaid undertaking Dt. 17.12.2003 furnished in the court of Sh. Gautam Manan, then CJ, Delhi. O) Receipts of the Kumud Parashar's Legal Notices and particularly of Dt. 23.10.2010.
7. It is further stated that in view of the above said admission following issues are to be framed i.e. CS NO. 845/10 Page no. 14 of 27 A) Whether the plaintiff has no locusstandi to file and institute this suit? OPD1 B) Whether the plaintiff is entitled to the relief as prayed for in the suit? OPP C) Whether the plaint is defective and is not maintainable in the present form? OPD1 D) Whether on the death of the ultimate legatee Sh. Manish Parashar in his (Sh. Narender Pal Sharma) life time, Sh. Narender Pal Sharma had become the full and lawful ownership, right, title and interest of the suit property on the basis of the Testatrix Smt. Sushila Rani Sharma's last and final will and testament Dt. 21.10.1988? OPD1. E) Whether Sh. Narender Pla Sharma had become lawfully and legally empowered to dispose of the suit property on the basis of the Testatrix Smt. Sushila Rani Sharma's last CS NO. 845/10 Page no. 15 of 27 and final will & testament Dt. 21.10.1988 after the death of the ultimate legatee Sh. Manish Parashar in his (Sh. Narender Pal Sharma) lifetime? If so, whether the Will dt. 30.11.2001 in respect of the suit property was validly executed by Sh. Narender Pal Sharma in favour of the defendant no. 1 and the aforesaid Will Sh. Narender Pal Sharma is genuine? OPD1.
F) Whether on the basis of the Will dt. 30.11.2001 executed by Sh. Narender Pal Sharma in favour of the defendant no. 1, she (defendant no. 1) has become the owner of the suit property and is entitled to retain the possession of the suit property in her independent right? OPD1 G) Whether the NOC dt. 13.07.2000 as relied upon by the defendant no. 1 is genuine and if it is so, whether it relinquishes any right, title and interest in respect of the CS NO. 845/10 Page no. 16 of 27 suit property in favour of Sh. Narender Pal Sharma? OPD 1. H) Whether mutation and conveyance deed obtained in favour of Sh. Narender Pal Sharma by him from the office of the DDA, confer any right, title and interest ownership in respect of the suitproperty in his favour? OPD1 I) Whether Sh. Narender Pal Sharma had contributed anything in the construction of the structure in the suit property and if so, whether such contribution makes him its owner/coowner/cosharer debarring the testatrix Smt. Sushila Rani Sharma from the ownership in respect of the suit property? OPD1
8. Issue no. B can be dissected into further parts i.e. i. Whether the plaintiff is entitled to get the relief of physical and vacant possession of the suitproperty CS NO. 845/10 Page no. 17 of 27 on the basis of the aforesaid Will dated 21.10.1988 executed by the testatrix Smt. Sushila Rani Sharma in favour of plaintiff's husband Sh. Manish Parashar, the aforesaid Will and other titledeeds and all sorts' documents/deeds concerning the suit property? OPP ii. Whether the plaintiff is entitled to get the relief (decree) of money i.e. Mesneprofits (use and occupation charges) for the unauthorized possession of the suit property after the death i.e. 25.12.2009 of Sh. Narender Pal Sharma from the defendants and particularly from the contesting defendant no. 1? OPP iii. Whether the plaintiff is entitled to get the relief (decree) permanent injunction in respect of the suit property against the defendants and particularly CS NO. 845/10 Page no. 18 of 27 against the defendant no. 1 thereby permanently restraining them from transferring, alienating, mortgaging, disposing of or creating any third party in any manner, whatsoever? OPP
9. It has been submitted that all the subissues under issue B (ii) can be decided without leading any evidence by the parties. It is further submitted that there is unconditional, clear and unambiguous admission of Will dated 21.10.1988 executed by the testatrix and the question involved is the construction, interpretation and intention of the testatrix. It has been further submitted that for disposal and decision of all the aforesaid issues, the parties are at difference and/or at issue with respect to the construction and interpretation of the aforesaid Will. The intentions of the testatrix has been depicted in the Will whereby life interest in favour of Sh. Narender Pal Sharma had been CS NO. 845/10 Page no. 19 of 27 created and Late Sh. Manish Parashar was intend to be the absolute owner of the suit property and husband of the testatrix was further restrained from disposing of the suit property. Therefore, the only question/issue to be decided is that of the mense profit. It has been further stated that Sh. Manish Parashar died on 03.11.2001 and his mother, Smt. Sushila Rani Sharma died on 07.06.2000 survived by her husband Sh. Narender Pal Sharma, therefore, as per Hindu Succession Act, plaintiff has become owner of the suit property. It has been further contended that it is also the mandate and interpretation of Section 119 of Indian Succession Act that by way of the Will in question vested interest was created in favour of the husband of the plaintiff, Late Sh. Manish Parashar in terms of the Section 19 of The Transfer of Property Act.
10. Reply to this application has been filed wherein it has CS NO. 845/10 Page no. 20 of 27 been submitted that there is no such admission on the part of the defendant no. 1. It has been further stated that Sh. Manish Parashar had never become the owner of the suit property, so question of inheritance by the plaintiff does not arise. The plaintiff has misunderstood the contents and meaning of the Will as well as the intention of the testatrix, Smt. Sushila Rani Sharma. It is further denied that plaintiff has become the absolute owner of the suit property on 03.11.2001 i.e. from the date of death of her husband, Sh. Manish Parashar and Sh. Narender Pal Sharma become the absolute owner of the suit property and provision of Section 119 of Indian Succession Act is not applicable to the facts and circumstances of the present case an no vested interest had been created in favour of the husband of the plaintiff.
11. I have heard the rival submissions of the parties and CS NO. 845/10 Page no. 21 of 27 perused the record.
12. Ld. counsel for the plaintiff/applicant has contended that after the death of Sh. Narender Pal Sharma, who was having life interest in the suit property in terms of the Will dated 21.10.1988, plaintiff has become the absolute owner of the suit property and there is admission on the part of the defendant that Will has been executed and there is a vested right created in favour of the husband of the plaintiff by the testatrix, Smt. Sushila Rani Sharma and therefore, in view of the provision of Indian Succession Act, after the death of Sh. Narender Pal Sharma, who was having life estate in the suit property, the plaintiff being legal heir of Late Sh. Manish Parashar has become the absolute owner of the suit property and there is a clear unequivocal, unambiguous admission on the part of the defendant no. 1 of this Will and by way of harmonious CS NO. 845/10 Page no. 22 of 27 construction of the Section 119 of the Indian Succession Act and Section 19 of the T.P. Act read with the Will in question vested rights has been created in favour of the husband of the plaintiff, Late Sh. Manish Parashar, as such the plaintiff is entitled for judgment on admission, in support of his contention, he has relied upon "A. Sreeniwasa Pai Vs. Saraswathi Ammal AIR 1985 SC1359, Navneet Lal Vs. Gokul AIR 1976 SC 794, Ramachandra Shenoy Vs. Hilda Brite AIR 1964 SC 1323, Mukesh Chand Sharma Vs. Raj Kumari AIR 1996 SC 869, Balathan Dayutham Vs. Ezhilarasan 2010(2) RCR (Civil) 821 (SC), Usha Subharoa Vs. B.E. Vishveshwaraih AIR 1996 SC 2260, R. Sherrif Vs. A. Mohd. Noor 2004(3) CCC 386(Karnataka), Lakshamana Vs. R. Ramier AIR 1953 SC 304, Bhagirathi Bai Vs. Lal Chand Balram AIR 1975 Bombay CS NO. 845/10 Page no. 23 of 27 301, Kapuri Kuer Vs. Sham Narain AIR 1962 Patna 149, Arun Kumar Vs. Sri Niwasa AIR 2003 SC 2528, Boddhu V. Rao Vs. Boddu Sathywati AIR 1968 SC 751, Bal Raj Taneja Vs. Sunil Madan AIR 1999 Sc 3381, Karam Kapahi Vs. Lal Chand 2010(4) SCC 753".
13. On the other hand, Ld .counsel for the non applicant/defendant has contended that there is no such admission as alleged by the plaintiff in the written statement file by the defendant no. 1, otherwise, defendant no. 1 has become the owner of the suit property by way of Will executed by her father Sh. Narender Pal Sharma and mutation has also been entered into the record by DDA. So there is no such admission which may warrant decree of the suit filed by the plaintiff.
14. There is no dispute between the parties regarding the execution of Will dated 21.10.1988. The ratio of the law relied CS NO. 845/10 Page no. 24 of 27 upon by the plaintiff is that in order to determine whether a Will create vested or contingent interest, the intention of the testatrix has to gathered from a comprehensive view of all the terms of the document/will creating the interest. But in the Will the testatrix has given the liberty to dispose of the suit property, in case, of any necessity arise pertaining to her son, Late Sh. Manish Parashar. The execution of Will dated 21.10.1988 and the said Will is admitted between the parties. The question is with regard to the interpretation of the contents of the Will as well as intention of the testatrix Smt. Sushila Rani Sharma which the plaintiff is alleging to be unequivocal in terms of Section 119 of the Indian Succession Act as vested rights is alleged to have been created by the testatrix Smt. Sushila Rani Sharma in favour of Late Sh. Manish Parashar, husband of the plaintiff.
15. Even the mutation has been entered into the record by CS NO. 845/10 Page no. 25 of 27 DDA which is stated to have been entered on the basis of affidavit filed by Late Sh. Manish Parashar, husband of the plaintiff. As such the entitlement of the plaintiff to the suit property is depend upon the interpretation of the terms of the Will, as well as intention of the testatrix and adjudication of the validity of subsequent/collateral proceedings whereby mutation regarding suit property has been sanctioned in favour of Sh. N.P. Sharma. Therefore, complex factual matrix has been propounded by the defendant no. 1 and the defendant no. 1 has raised disputed question of fact and issues which needs full fledge trial for adjudication thereof.
16. From the above discussion, I am of the opinion that no clear unequivocal, unconditional and unambiguous admission is there on the part of the defendant no. 1 which may warrant passing of judgment on admission, hence, the plaintiff is not CS NO. 845/10 Page no. 26 of 27 entitled to judgment on admission and this application being devoid of merit is hereby dismissed. Ordered accordingly.
Announced in the Open Court (VIJAY KUMAR DAHIYA) On this 12.08.2011 ADJII : ROHINI : DELHI CS NO. 845/10 Page no. 27 of 27