Delhi District Court
Judgment vs . on 28 October, 2015
In the court of Ashwani Kumar Sarpal, Additional District Judge-1,
North East District, Karkardooma Courts, Delhi
Civil Suit no.- 348/11
SH. GURBAKSH SINGH
VS.
SH. KULDEEP SINGH & OTHERS
Date of filing of the suit---------- 23.03.2010
Date when order was reserved---15.10.2015
Date of final decision--------------28.10.2015
(Suit for Partition, Possession and Permanent Injunction)
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JUDGMENT:-
In the present suit, plaintiff claimed ½ share in the suit property measuring 135 sq. yards bearing no. 1/2335, Gali no. 2, Shanti Building, Ram Nagar, Delhi on the basis of Will dated 28-10- 2005 of his deceased father Sh. Rattan Singh who expired on 11-5- 2007. However, it is an undisputed fact that this suit property is in the name of Smt. Kulwant Kaur, wife of Sh. Rattan Singh and mother of the parties.
According to the averments made in the plaint, Sh. Rattan Singh left behind three sons (i.e. plaintiff, defendant no. 1 and defendant no. 2) and three daughters (i.e. defendants no. 3 to
5). His wife Smt. Kulwant Kaur had already expired before death of Sh. Rattan Singh. In the present suit, defendants no. 3 to 5 did not 2 choose to contest the case and became exparte whereas defendant no. 2 is fully supporting the case of plaintiff. Only defendant no. 1 is contesting the present suit who is exclusively in possession of the suit property.
Sh. Rattan Singh owned one another property measuring 75 sq. yards bearing no. 1/9952, Street no. 3B, West Gorakh Park, Shahdara, Delhi which he bequeathed in favour of defendant no. 2 alone under the Will dated 28-10-2005. Plaintiff alleged that Sh. Rattan Singh wanted to distribute the suit property equally in between plaintiff and defendant no. 1, so he constructed a boundary wall leaving an entrance exactly in the middle, thereby dividing the property in two equal halves. Further he constructed one room in each portion. Thus, plaintiff is claiming half share in the suit property through partition of the same with relief of possession of his share. He also sought injunction against the defendant no. 1 from selling, transferring, creating any third party interest etc. in the suit property.
Defendant no. 1 in his written statement claimed exclusive ownership rights over the suit property by stating that an oral partition had taken place among all the parties during the life time of Sh. Rattan Singh in the year 2006 and he had paid Rs. 3.5 lakhs to the defendants at that time, thus now they have left no right, claim or interest in the suit property.
On the basis of the pleadings, following issues were framed on 7-2-2011 and 23-7-2014:
1. Whether the plaintiff is entitled to one half share in the suit property? (OPP)
2. Whether the plaintiff is entitled to partition of the said suit property? (OPP) 3
3. Whether the plaintiff is entitled to a decree of permanent injunctions as prayed in the plaint? (OPP) 3A. Whether an oral partition had already taken place between the parties in the year 2006 in the lifetime of late Sh. Rattan Singh and defendant no. 1 paid Rs. 3,50,000/-
to the plaintiff towards his share in the suit property and in pursuance of which the defendant no. 1 has become the owner of the entire suit property? (OPD-1)
4. Relief.
5. Costs.
In order to prove his case, plaintiff examined himself as PW-1 and Sh. Avtar Singh, LDC from office of Sub-Registrar to prove Will dated 28-10-2005 executed by Sh. Rattan Singh as well as sale deed dated 26-8-1969 in respect of the suit property in the name of Smt. Kulwant Kaur whereas defendant no. 1 examined himself as DW-1. I have heard counsel for the parties and gone through the record. My decision on the above issues is as under:
ISSUE NO. 3A:-
Contesting defendant no. 1 is alleging that oral partition had taken place in the year 2006 in presence of Sh. Rattan Singh under which suit property was given to him and in lieu of the same he gave Rs. 3.5 lakhs to plaintiff and other defendants. However, defendant DW-1 has not even mentioned any date or month of the year 2006 when such alleged oral partition took place. The said partition took place among all the defendants but he has not opted to examine any other witness including defendants no. 3 to 5. No detail is given regarding source, from where he obtained sum of Rs.4
3.5 lakhs which was allegedly given to plaintiff and other defendants. DW-1 in his cross examination is saying that he is having share in another property which is in possession of defendant no. 2 but no steps were taken by him till date to get his share. In such circumstances, the story of the alleged oral partition cannot be relied upon and is liable to be rejected. This issue is decided against the defendant no. 1 and in favour of the plaintiff.
ISSUES NO. 1 & 2:-
Plaintiff has specifically stated in his cross examination that he is seeking partition only of the suit property in possession of defendant no. 1 and not in respect of another property which is in possession of defendant no. 2 because in the Will dated 28-10-2005 Ex. PW1/1, the same was already given to defendant no. 2. Thus, plaintiff has no claim or interest in seeking partition qua another property situated at Gorakh Park.
The claim of plaintiff for partition of the suit property is entirely based upon the Will Ex. PW1/1. If the contents of this Will are read as a whole, then it can be found that it pertains to the property of Sh. Rattan Singh situated at Gorakh Park bearing no. 1/9992 (mentioned in plaint as 1/9952). However, in para no. 7 of the Will, there is one line observation on which basis plaintiff is claiming half share in the suit property. This paragraph reads as under;
"7. I have given due share of my income to my daughters in the shape of expenditure on their education, marriage & other incidental expenses incurred from time to time as per usages and customs 5 prevalent in our society. As such, I do not want to bequeath anything to them out of this property. I have decided to bequeath my other property in Ram Nagar between my other two sons namely Kuldeep Singh & Gurbaksh Singh. As such I do not want to bequeath anything out of this property to my these two sons also."
Plaintiff on the basis of above wording of Will Ex. PW1/1 is claiming half share in the suit property. In order to prove the Will, it is necessary under section 68 of Indian Evidence Act that atleast one attesting witness must be examined in the court who must prove that the Will was executed in the proper and prescribed manner as required by section 63 of Indian Succession Act. Supreme Court in Rama Bai Padmakar Patil vs. Rukmini Bai 2003 VI AD (SC) 401 and Lalitaben Jyanti Lal vs. Pragnaban Jamna Dass 2009 II AD (SC) 458 held that it is mandatory to examine atleast one attesting witnesses of the Will in the court, if he is alive and capable to depose. If no attesting witness is examined, the Will cannot be said as proved. Even if attesting witnesses are not available or have expired, then in that situation Will in question is required to be proved in the manner as prescribed under section 69 of Indian Evidence Act.
However, in the present case Will Ex. PW1/1 is not proved by the plaintiff as per law due to non examination of any attesting witness of the same. PW-2 has simply proved that this Will was registered in his office. Registration of the Will is not necessary under Indian Registration Act, hence even if the same is registered, then it does not exempt its proving through examination of an attesting witness. Registration of a document does not dispense 6 with the need of proving the due execution and attestation of a document which is required by law to be proved. Presumption attached to the registered documents is only in respect of matters of the registration as per requirement of provisions of Indian Registration Act but not in respect of factum of attestation within the meaning of section 63 (c) of Indian Succession Act and section 68 of Indian Evidence Act. Delhi High Court in Rajesh Sharma vs. Krishan Kumar Sharma FAO no. 641/02 decided on 5-7-2007 held that mere fact the Will is registered is not enough to prove its genuineness.
Registration of the Will does not prove that it was also duly executed. Sub-Registrar signs the Will for the purpose of its registration and not for purpose of its attestation. In this regard re- liance can be placed upon the decision of Supreme Court given in case Bhagat Ram vs. Suresh AIR 2004 SC 436. Hence, no benefit can be given to the plaintiff merely on the basis of the fact that Will Ex. PW1/1 is a registered document. Accordingly, the same is held not proved due to non examination of any attesting witness of the same. Otherwise also, it is not the case of the plaintiff that attesting witnesses of the Will are not traceable or have expired or unable to come to the court. In such situation, mere proving of registration of the Will cannot be treated as proving of due execution of the same by the testator Sh. Rattan Singh.
In a case Surender Patrick Lall vs. State 118 (2005) DLT 647 High Court held that on limited point the question of title can be considered even in probate proceedings. In this case, the testator had already lost right to a property, so his subsequent Will qua the said property found invalid as it would not have conveyed anything.
7Here in this case, it is also highly doubtful whether Sh. Rattan Singh was competent to execute the Will in respect of the suit property and bequeathing the same to plaintiff and defendant no. 1 alone as per above observations made in para no. 7 when he himself was not the owner of the said property. Sale deed of suit property Ex. PW1/2 shows that it is in the name of Smt. Kulwant Kaur w/o Sh. Rattan Singh. Though it is not the case of the plaintiff in the plaint but still even if for the sake of arguments, it is presumed that Sh. Rattan Singh had purchased the suit property in the name of his wife from his own income and funds, then also due to the fact that Smt. Kulwant Kaur did not left behind any Will, the suit property had to be divided as per law of succession among all legal heirs in equal proportions and not in accordance with the Will of her husband Sh. Rattan Singh who was not the owner of the same and could not bequeath it at all.
Since, plaintiff is coming to the court on basis of Will Ex. PW1/1 and is claiming one half share in the suit property but when this Will is held not proved, then he cannot be granted the relief of partition as prayed for. The weakness of the defendant no. 1 in not proving his defence pertaining to oral partition itself is not sufficient to grant relief of partition as prayed for by the plaintiff because he has to stand upon his own legs. Accordingly, it is held that plaintiff is not entitled to any relief of partition of the suit property or any half share as claimed along with possession so both these issues are decided against him and in favour of the defendant.
ISSUE NO. 3:-
The entire suit property is in possession of the defendant no. 1. Plaintiff has alleged in his plaint that his father constructed 8 boundary wall and left entrance exactly in the middle thereby dividing the property in two equal halves and further he constructed one room in each portion. However, the site plan Ex. PW2/1 is not fully supporting this version of the plaintiff. The entrance in the suit property is not exactly in the middle. The sizes of the rooms on both sides are not equal. Hence, it cannot be said that Sh. Rattan Singh by raising constructions in the suit property has also shown his prior inclination to divide the property in equal proportions between plaintiff and defendant no. 1. Plaintiff has not come to the court with clean hands in this regard. Otherwise also, injunction was claimed by the plaintiff on the ground that he was getting threats from property dealers, land mafias and local goons and defendant was negotiating to sell the suit property. However, in this regard, allegations are unspecific, general and vague. No detail and particular of any date of such threats or the name of any person giving threats is mentioned so no injunction as claimed can be granted. This issue is decided against the plaintiff and in favour of defendant.
ISSUES NO. 4 & 5 (RELIEF AND COSTS):-
In view of above discussions, suit of the plaintiff is hereby dismissed. Plaintiff is not entitled to any relief of partition or possession or permanent injunction as prayed for. As defendant no. 1 also failed to prove his defence of oral partition, so I order both the parties to bear their own costs. Decree be prepared and file be consigned to record room.
(Ashwani Kumar Sarpal) Dt. 28.10.2015. Addl. District Judge-1