Delhi District Court
Sh. Rahul Walia @ Rahul Sharma vs Mohd. Adil on 23 December, 2014
IN THE COURT OF SH. M. P. SINGH, SENIOR CIVIL JUDGE, RENT
CONTROLLER, (EAST), KARKARDOOMA COURTS, DELHI
Suit No.137/10
Unique Case ID No. 02402C0105332010
Sh. Rahul Walia @ Rahul Sharma
s/o Late Ravinder Kumar Walia
R/o A72, Gali No. 11, Indra Park
Chander Nagar, Delhi51 ........... Plaintiff
Versus
Mohd. Adil
s/o Mohd. Saeed
Shop no. A1, Som Bazar, South Anarkali
Near Chander Nagar, Delhi51 ......... Defendant
Suit for Possession, rental arrears, electricity dues, mesne
profits/use and
occupation charges and permanent injunction
Case filed on - 16.04.2010
Arguments heard on - 08.12.2014
Judgment pronounced on - 23.12.2014
JUDGMENT
1. Plaintiff's case is as follows:
(I) Plaintiff's mother, Smt. Triveni Sharma, vide a registered rent agreement dt. 10.03.2008 (Ex. PW1/2) let out a shop on the ground floor in property no. A1, South Anarkali, Delhi to the defendant for 2 years with effect from 15.03.2008 at monthly rental of Rs. 6,000/ CS no. 137/10 Rahul Walia v. Mohd. Adil Page 1 of 34 excluding electricity charges. Relevant would it be to note that in this rent agreement Ex. PW1/2, she described herself as 'Smt. Triveni Sharma wife of Shri Rajnikant'.
(II) Towards the fag end of her life, whilst his mother was ill and hospitalized, plaintiff Rahul claims to have collected rent and electricity charges on her behalf from the defendant, who in turn is stated to have recognized him (plaintiff) to be duly authorized to act on his landlady's behalf. Defendant, it is stated, paid rent and electricity charges to Smt. Triveni, which the plaintiff Rahul actually collected on her behalf, till November, 2009. Plaintiff's mother, after a long spell of illness, reached death's door on 29.11.2009.
(III) During her lifetime, plaintiff's mother Smt. Triveni had executed a registered Will dt. 16.11.2009 (Ex. PW1/4) in plaintiff's favour qua her properties, including the suit shop. There are two things of relevance to be noted here, firstly in this Will Ex. PW1/4 she described herself as 'Smt. Triveni Sharma wife of Shri Ravinder Kumar Sharma', and secondly, the noting on this Will would reflect that its registration was preceded by visit of an official from SubRegistrar's office, owing to medical reasons and at testator's request, to testator's residence. (IV) After his mother's demise on 29.11.2009, plaintiff approached the defendant with a copy of the aforesaid Will Ex. PW1/4 and called upon him to pay the rent and electricity charges henceforth to him (plaintiff), CS no. 137/10 Rahul Walia v. Mohd. Adil Page 2 of 34 to which the latter gave a positive assurance. Acting on his assurance, posthis landlady's demise, defendant paid the monthly rental of Rs.
6,000/ and the electricity dues for December, 2009 to the plaintiff. However, subsequently the defendant is alleged to have turned dishonest and stopped paying him the rental and other charges. He instead started to deny plaintiff's ownership and in league with with one Rajnikant Kalia @ R. K. Kalia started to call him i.e. Rajnikant Kalia, owner of the suit shop. The defendant, in collusion with Rajnikant Kalia, even brought an action (civil suit no. 23/10) against the plaintiff in a Civil Court at Karkardooma. It appears from the record that Rajnikant Kalia was a codefendant in that case and which case already stands disposed and consigned to the records in May, 2010. (V) On personal front, Triveni Sharma had tied the nuptial knot with Ravinder Walia and from the wedlock, plaintiff, his brother Sunil and sister Sonia were born. Smt. Triveni, however, is stated to have left her husband Ravinder Walia's company owing to some temperamental differences, taking away the children with her, but without formally divorcing him. As per the plaintiff, she then started a livein relationship with Rajnikant Kalia @ R. K. Kalia, however, this relationship turned sour and came to an end. The reason being that Rajnikant Kalia @ R. K. Kalia came to be accused of raping Triveni Sharma's niece. Consequent thereto, he was arrested in FIR no. 67/2001, PS Krishna Nagar and CS no. 137/10 Rahul Walia v. Mohd. Adil Page 3 of 34 brought to trial. Outcome of this unsavoury episode was that Smt. Triveni Sharma commenced a liveinrelationship with one Vijay Sharma, which too proved to be a failure. Having severed her relation with Vijay Sharma, she went back to her husband Ravinder Walia, who then refused to accept her. Feeling dejected and forlorn, Smt. Triveni started using the names of all the three, i.e. Ravinder Walia, Rajnikant Kalia and Vijay Sharma as her husband's name. In various documents and on quite a few occasions, she even mentioned the name of her husband Ravinder Walia as 'Ravinder Kumar Sharma' or 'Ravinder Sharma'. This conduct, according to the plaintiff, is corroborated by the following circumstances:
(i) In her Will dt. 18.05.2001, she mentioned her own surname to be 'Kalia' and her husband to be 'Rajnikant Kalia' for at that time she was continuing her liveinrelationship with him.
(ii) At the time of execution of her other Will dt. 06.08.2001, she had severed her relation with Rajnikant Kalia and was in a livein relationship with Vijay Kumar Sharma and thus latter's name finds a mention therein as her husband.
(iii) Likewise, in the Will dt. 16.11.2009 (Ex. PW1/4) she mentioned her own surname to be 'Sharma' and her husband's name to be 'Ravinder Kumar Sharma'.
(iv) In the registered rent agreement dt. 10.03.2008 (Ex. PW1/2) CS no. 137/10 Rahul Walia v. Mohd. Adil Page 4 of 34 executed in defendant's favour she mentioned 'Rajnikant' to be her husband.
(VI) Plaintiff submits that this was all because of her mental condition.
According to him, after severance of her liveinrelationships with both Rajnikant Kalia and Vijay Kumar Sharma and after being rejected by her husband Ravinder Kumar Walia, she was desperate to use/indicate some name to show that to be of her husband.
(VII) Now back to the FIR no. 67/2001, PS Krishna Nagar. Plaintiff alleges that Rajnikant Kalia somehow won over the material witnesses, i.e. the prosecutrix and her mother Smt. Veena, and secured an acquittal. He states that even after the acquittal Smt. Veena maintained her contacts with Rajnikant Kalia. Neither the plaintiff nor his mother, it is stated, had any relation/contact with Rajnikant Kalia till the time she (plaintiff's mother) died.
(VIII) Plaintiff avers that notwithstanding expiry of defendant's tenancy by efflux of time, he, by way of abundant caution, issued a legal notice dt. 29.01.2010 (Ex. PW5/A) to him thereby terminating the tenancy in specific terms and demanding the rental arrears. This legal notice (Ex. PW5/A) was neither replied to nor complied with. Plaintiff asserts that the suit shop would easily fetch monthly market rental of Rs. 10,000/. He points out that there is an outstanding electricity bill of Rs. 3,380/ against the suit shop qua meter no. 1220 R723 5754. He alleges that the CS no. 137/10 Rahul Walia v. Mohd. Adil Page 5 of 34 defendant, after service of the legal notice Ex. PW5/A, has been constantly threatening him that he would part with possession of the suit shop either to Rajnikant Kalia or sublet the same to some antisocial element. On these averments, plaintiff seeks the following reliefs:
(i) Decree of possession qua the suit shop against the defendant and in his favour,
(ii) Decree for Rs. 12,000/ towards rental arrears for the months of January, 2010 and February, 2010,
(iii) Mesne profits at the rate of Rs. 10,000/ from 14.02.2010 till actual vacation of the suit shop in his favour and against the defendant,
(iv) Decree for Rs. 3,380/ towards electricity dues,
(v) Permanent injunction decree to restrain the defendant from handing over possession of suit shop to anyone else other than the plaintiff.
2. Defendant filed his written statement. He says that it was 'Smt. Triveni Kalia' who was the owner of the suit shop and that after her demise her 'husband' Rajni Kant Kalia became its absolute owner. He avers that Rajni Kant Kalia, during the lifetime of Smt. Triveni Kalia, had sent a legal notice to him demanding the rent from him. He adds that not only Rajni Kant Kalia collected the rent from him on behalf of his landlady during her lifetime, but after her demise too, he continued to collect the rent. He points out that one Smt. Kailash Devi, late Triveni Kalia's elder sister, also claims to be absolute owner of the suit shop on the basis of a Will in her favour. Controverting plaintiff's averment that he is the son of Smt. Triveni, defendant asserts that she was not blessed with any child and that plaintiff's claim on this count is false and fabricated. According to him, plaintiff Rahul, a mere domestic help CS no. 137/10 Rahul Walia v. Mohd. Adil Page 6 of 34 of Smt. Triveni, is actually the son of one of Smt. Shakuntala and Sh. Ravinder Kumar Walia. He thus urges there exists no tenantlandlord relationship between him and the plaintiff Rahul. He denies receiving any notice from the plaintiff. He also denies ever having paid any rent or electricity charges to the plaintiff. He alleges that the Will in plaintiff's favour is forged and fabricated. He however does not deny that prior to her demise, Smt. Triveni had been ill for quite a long time. Denying other averments, he seeks dismissal of the suit.
3. Plaintiff in his replication reiterates and reaffirms his stand as set out in the plaint and denies those made by the defendant in his written statement.
4. Issues, settled on 02.06.2010, are as follows.
1) Whether plaintiff is stranger to suit property as alleged in PO 6? OPD
2) Whether plaintiff has no concern and or connection with Smt. Triveni Walia through whom he is claiming right, title and interest in the suit property as alleged in para 8 of PO? OPD
3) Whether the suit of the plaintiff is bad for want of serving the eviction notice as alleged? OP Parties
4) Whether the suit is devoid of cause of action as alleged? OPD
5) Whether the parties have no relationship of landlord and tenant as claimed? OPP
6) Whether plaintiff is entitled to the relief of possession as prayed? OPP
7) Whether plaintiff is entitled to arrears of rent as prayed for? OPP CS no. 137/10 Rahul Walia v. Mohd. Adil Page 7 of 34
8) Whether plaintiff is entitled to any arrears on account of electricity bills as prayed for? OPP
9) Whether any mesne profit are to be imparted in favour of the plaintiff?
OPP
10)Whether plaintiff is entitled to the relief of permanent injunction as prayed for? OPP
11)Any other relief.
5. The 7 witnesses, examined in plaintiff's evidence, are as follows:
➢PW1 is the plaintiff himself. He relies upon the following documents: (a) Ex. PW1/1 - the site plan, (b) Ex. PW1/2 the registered rent agreement dt. 10.03.2008 qua the suit shop, (c) Ex. PW1/3 electricity bill of Rs. 3,380/ qua the suit shop with due date 16th March, 2010, (d) Ex. PW1/4 the registered Will dt. 16.11.2009 of Smt. Triveni in plaintiff's favour, (e) Mark C Copy of legal notice dt. 29.01.2010 issued by the plaintiff to the defendant along with its service proof.
➢PW2 and PW3 are Anil Bedi and Kuldeep Nagpal respectively. Their respective depositions are essentially to the effect that plaintiff Rahul is Smt. Triveni's real son and that he is the one who performed her last rites. They also deposed that Rajnikant Kalia, after some dispute about 10 years ago, stopped visiting Smt. Triveni and that he did not attend her last rites.
CS no. 137/10 Rahul Walia v. Mohd. Adil Page 8 of 34 ➢PW4 Smt. Sushma (plaintiff's motherinlaw) is a witness to the Will dt. 16.11.2009 (Ex. PW1/4).
➢PW5 is Sh. Ravikant, an official from Record Room, Karkardooma Courts. He appeared with the consigned judicial file of CS no. 23/2010 titled as 'Mohd. Adil vs. Rajnikant Kalia & Anr.', which judicial file contained plaintiff Rahul's legal notice dt. 29.01.2010 (Ex. PW5/A) issued to the defendant, whereby he demanded rent from the latter and also sought to terminate the tenancy, together with its original UPC receipt (Ex. PW5/B) and RC receipt (Ex. PW5/C).
➢PW6 Vijender Kumar, Accounts Superintendent from BSES proved an electricity bill in Smt. Triveni Sharma's name of Rs. 3,384.78 with due date of 16.03.2010 qua the suit shop as Ex. PW6/A. He proved another bill dt. 31.12.2013 of Rs. 1,890/ qua the aforesaid connection as Ex. PW6/B. He also proved statement of account with effect from September, 2006 qua the same electricity connection as Ex. PW6/C. ➢PW7 Pradeep Kumar Sharma, Ahlmad from the Court of Sh. P.K. Mattoo, Ld. ADJ, Karkardooma Court. He appeared with the judicial record of probate case no. 04/10 titled as 'Rahul Walia @ Rahul Sharma v. State & Ors.' containing the original Will Ex.PW1/4.
CS no. 137/10 Rahul Walia v. Mohd. Adil Page 9 of 34
6. In defendant's evidence, defendant Md. Adil (DW1) was his sole witness.
7. I have heard arguments at Bar and perused the record.
8. Issuewise findings are as under.
9. Issue no. 1: The issue is whether the defendant proves that plaintiff Rahul is a stranger to the suit shop. To begin with, there is absolutely no doubt over the identity of the lady who had inducted the defendant into the tenancy vide rent agreement Ex. PW1/2. Plaintiff calls her 'Triveni Sharma', whereas the defendant gives her the name 'Triveni Kalia'. Now, whether her surname was 'Sharma' or 'Kalia' is hardly of any consequence so long as there is consensus ad idem between the parties that 'Smt. Triveni' with either of these surnames relates to one and the same person. The moot point is that in the instant lis whether she is called by the name of 'Smt. Triveni Sharma', or 'Smt. Triveni Kalia', or 'Smt. Triveni Walia', or is given any other surname, or simply called 'Smt. Triveni' makes no difference at all for these different surnames or sans a surname do not refer to different individuals, but to one and the same individual. There is hardly in a name and as Shakespeare said, in Romeo and Juliet, a rose by any other name would smell as sweet. Having said that, I wish to add few things here. We have seen hereinabove that in the rent agreement Ex. PW1/2, which is the basis of defendant's tenancy, his landlady had described herself as 'Smt. Triveni Sharma wife of Shri Rajnikant'. That apart, electricity bills Ex. PW1/3, Ex. PW6/A and Ex. CS no. 137/10 Rahul Walia v. Mohd. Adil Page 10 of 34 PW6/B as well as the statement of account Ex. PW6/C qua the electricity connection of the tenanted shop would bear out that the electricity meter therein stands in the name of 'Triveni Sharma'. That is to say, defendant tenant has been consuming electric energy routed through a meter, and depositing charges thereof, standing in the name of none else but 'Triveni Sharma'. Lastly, electricity bills Ex. PW1/3 and Ex. PW6/B reflect that electricity meter of 'Triveni Sharma' in the tenanted shop came to be energized on 17.08.2006. In other words, there is positive evidence to show that at least since 17th August, 2006, defendant's landlady had been suffixing 'Sharma' as her surname. Thus, there is really no warrant for the defendant tenant to alter his landlady's surname. Anyhow, to reiterate whatever surname parties to the lis may suffix to Smt. Triveni, her identity is not in dispute. For the present purpose, in my discussion hereinafter, I shall refer to her simply as 'Smt. Triveni'.
10. Now to the Will Ex. PW1/4. To this Will, the defendanttenant at the very outset took a legal objection that without a probate thereof the plaintiff could not establish his right as a legatee thereunder before this Court. In this regard, he placed reliance, rather erroneously, upon an extract out of the decision in Krishna Kumar Birla vs. Rajendra Singh Lodha & Ors., (2008) 4 SCC 300. Plaintiff's counsel, on the other hand, rightly argued that for the property situate in Delhi, he could maintain the instant action even without a probate. A conjoint reading of sections 57 and 213 of Indian CS no. 137/10 Rahul Walia v. Mohd. Adil Page 11 of 34 Succession Act, 1925 is a complete answer to this line of argument of the defendant. Section 213, Indian Succession Act is as under:
"213. Right as executor or legatee when established. (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.
(2) This section shall not apply in the case of wills made by Muhammadans or Indian Christians, and shall only apply
(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the classes specified in clauses (a) and (b) of Section 57; and
(ii) xxxxxxxxxxxxxxxxxxxx."
11. As would be evident, section 213 (1) of the Indian Succession Act mandates that right as executor or legatee under a Will cannot be established in any Court unless a probate thereof has been obtained. To this rule, however, subsection (2) thereof carves out an exception in case of a Will made by Muhammadan or Indian Christian and for them it is not necessary to obtain probate of a Will before establishing right as a executor or legatee. Subsection (2) further creates an exception in case of Will made by Hindu, Buddhist, Sikh or Jaina where such Wills are of a class specified in clauses
(a) and (b) of section 57. Clauses (a) and (b) of section 57 read as under:
57. Application of certain provisions of Part to a class of wills made by Hindus, etc. The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply
(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or CS no. 137/10 Rahul Walia v. Mohd. Adil Page 12 of 34 Jaina on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and
(b) to all such wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits".
12. The aforesaid two clauses of section 57, Indian Succession Act hold that in case of a Will of Hindu, Buddhist, Sikh or Jaina which is subject to the erstwhile Lt. Governor General of Bengal or within the local limits of ordinary original jurisdiction of High Courts of Bombay or Madras or even made outside but relating to immovable property within the aforesaid territories, the rule of section 213, Indian Succession Act would not apply. In this context, it would be fruitful to refer to the ratio decidendi of Mrs. Winifred Nora Theophilus vs. Mr. Lila Deane & Ors. AIR 2002 Del 6, wherein the following passage occurs:
On interpretation of Section 213 read with Section 57 (a) and (b), the Courts have opined that where the will is made by Hindu, Buddhist, Sikh and Jaina and were subject to that Lt. Governor of Bengal or within the local limits of ordinary original civil jurisdiction of High Courts of Judicature at Madras and Bombay or even made outside but relating to immoveable property within the aforesaid territories that embargo contained in Section 213 shall apply. From this it stands concluded that if will is made by Hindu, Buddhist, Sikh or Jaina outside Bengal, Madras or Bombay then embargo contained in Section 213 shall not apply.
13. What is therefore clear is that the instant lis is very much maintainable CS no. 137/10 Rahul Walia v. Mohd. Adil Page 13 of 34 even though the plaintiff Rahul has not yet obtained a probate of the Will Ex. PW1/4. The passage out of the decision in Krishna Kumar Birla (supra), which was strongly pressed into service by the defendanttenant, reads as under:
74. Such a suit, however, in our opinion must have a direct nexus with the estate of the testator and not to enforce a right in respect of the application of the estate of the testator under another Will. Right to maintain a suit must be independent of the wills sought to be probated. No legal right accrues under an unprobated Will except in case where taking of probate is not mandatory. In Nobeen Chander Sil vs. Bhobosoonduri Dabee [ILR (1881) 6 Cal 460] the appellant therein had a direct nexus interest in disputing the will. He had obtained a money decree against the testator. His share was under attachment.
14. The aforesaid extract, as would be evident, hardly advances defendant tenant's case. On the contrary, it only goes to bolster plaintiff's stand that even sans probate of the Will in his favour, which in any case is not mandatory in respect of a property situated in Delhi, he can maintain the present action.
15. Written text of the Will Ex. PW1/4 reflects that its testator is Smt. Triveni Sharma wife of Shri Ravinder Kumar Sharma. Testator's description of herself as the wife of Shri Ravinder Kumar Sharma should not put one to doubt over her identity. Testator Smt. Triveni is the same lady who had inducted the defendant into the tenancy. In the pleadings and during the course of the trial no dispute at all was raised on the aspect of her identity to CS no. 137/10 Rahul Walia v. Mohd. Adil Page 14 of 34 show that the testator in the Will Ex. PW1/4 is some lady other than the one who had inducted the defendant into the tenancy. Independent of this, on a scrutiny of record of the case, I am satisfied that the testator in the Will Ex. PW1/4, who describes herself therein as the wife of Shri Ravinder Kumar Sharma, is the same lady who had inducted the defendant into the tenancy vide rent agreement Ex. PW1/2. In both these documents (Ex. PW1/2 and Ex. PW1/4) Smt. Triveni suffixes surname of 'Sharma'. Her photograph as appearing on the two documents are identical. Her residential address (72A, Indira Park, Gali No.11, Delhi51) is the same. Lastly, at the house (72A, Indira Park, Gali No.11, Delhi51) there was only one resident by the name Smt. Triveni. At least, there is absolutely no evidence on record to show that at that house there were two ladies with common name of Smt. Triveni, in which case there may have been food for some doubt as to testator's real identity.
16. I shall now come to the proof of the Will Ex. PW1/4. To this Will there are two witnesses, namely, Sh. Kishuk Gupta and Ms. Sushma. The former remained unserved. However, PW4 Sushma gave very crucial evidence visavis execution of the Will Ex. PW1/4. I reproduce verbatim certain extract of her examinationinchief. It reads as under:
"5. That on 16.11.2009 at about 4.00 PM, in my presence, the SubRegistrar, with some registers, & one photographer accompanying him, came to the house of Rahul. The SubRegistrar read over the contents of the Will to Smt. Triveni & explained her CS no. 137/10 Rahul Walia v. Mohd. Adil Page 15 of 34 meaning thereof in Hindi language, to which Smt. Triveni affirmed to be correct. Thereafter, since Smt. Triveni was not able to put her signatures, the SubRegistrar asked her to put her thumb impressions over the Will.
6. That I was present & saw Smt. Triveni affix her left thumb impression on each & every page of the Will, which was a typed one & running into four pages. At that time she also told me & the other persons present there that the same was the last & only Will with respect to the properties mentioned therein. One Kishuk, to whom I know to be a family friend of Rahul was also present at that relevant time & he also saw Smt. Triveni understanding the contents of the Will & putting his thumb impression over it.
7. That I was that the aforesaid Will was prepared & got typed at the request of Smt. Triveni, who after understanding the contents of the same had put her thumb impressions over it in my presence. Thereafter I & Kishuk had put signatures as witnesses on the last page of the Will on the asking of Smt. Triveni.
8. That the photographer thereafter took the photographs of Smt. Triveni while she was taken into lap by Rahul, & thereafter the photographs of mine & Kishuk were also taken by him.
9.That Smt. Triveni expired on 29.11.2009."
(underlined for emphasis)
17. To the aforesaid extract of examinationinchief of PW4 Sushma, there is hardly any crossexamination from defendant's side. Defendanttenant, in his written statement, admits that his landlady Smt. Triveni had been ill prior to her demise. Thus, there is a plausible explanation, which explanation is not in dispute, for affixation of testator's thumb impression on the Will Ex. PW1/4. This is corroborated by SubRegistrar's noting on the Will Ex. PW1/4, which states that due to medical reason and at testator's request, CS no. 137/10 Rahul Walia v. Mohd. Adil Page 16 of 34 presentation of the Will was carried out at 04:00 pm at her residence. Because the testator was unwell, her photograph, got taken by the Sub Registrar at the back page of the Will Ex. PW1/4, reflects her to be lying down on a bed. A reading of PW4 Sushma's testimony leaves no manner of doubt that Will Ex. PW1/4 stands proved on the anvil of section 68, Evidence Act. The aforesaid extract of her testimony, to which there is hardly any crossexamination, also proves that the Will Ex. PW1/4 was executed in the manner provided in section 63, Indian Succession Act.
18. The aforesaid extract of PW4 Sushma's examination would also establish that the beneficiary of the Will is none other than the plaintiff Rahul. Identity of the beneficiary of the Will Ex. PW1/4, irrespective of whether his surname is 'Walia' or 'Sharma' or whether his father's surname is 'Walia' or 'Sharma' is not in doubt. He is the one who, as per the defendant himself, used to be with his landlady Smt. Triveni at her house, albeit, allegedly as a domestic help. Going by depositions of PW2 and PW3, he is the one who performed the last rites Smt. Triveni. He is the one who was present at the time of execution of the Will Ex. PW1/4 in the presence of the SubRegistrar and its registration. Insofar as plaintiff's father's identity is concerned, the defendant admits that his father is the one as mentioned in the memo of parties.
19. Explanation 4 to section 59, Indian Succession Act was invoked by the defendant to attack the Will Ex. PW1/4. His contention is that Smt. Triveni in CS no. 137/10 Rahul Walia v. Mohd. Adil Page 17 of 34 her illness was incapable of making the Will. This argument lacks substance. The law is not that a person suffering from illness cannot make a Will. Rather, the law, as set out in this provision, is that a person cannot make a Will whilst he is in such a state of mind, whether arising from intoxication or illness or from any other cause, that he does not know what he is doing. In fact, illustration (iii) of section 59, Indian Succession Act states that even a sick person, capable of exercising a judgment can make a Will. This illustration is as follows: " 'A' being very feeble and debilitated, but capable of exercising a judgment as to the proper mode of disposing of his property, makes a Will. This is a valid Will." In the case at hand, there is absolutely no evidence to suggest that Smt. Triveni was not knowing what she was doing at the time of execution of the Will Ex. PW1/4. On the contrary, I find from the record that there is no suggestion put to the attesting witness PW4 Sushma or to plaintiff (PW1) that Smt. Triveni was in such a state of mind on account of her illness that she did not know what she was doing. That apart, a government servant from SubRegistrar's office had visited her house for the execution of the Will along with a photographer. He had read over contents of the Will to her, prior to its execution, to which she affirmed to be correct. If this be the evidence brought forth by attesting witness PW4 Sushma, to which there is no crossexamination, then this line of argument of the defendanttenant hardly has any merit. Section 34, Registration Act, inter alia, contemplates the Registering Authority being satisfied with the identity CS no. 137/10 Rahul Walia v. Mohd. Adil Page 18 of 34 of the executant and whether or not such document was in fact executed by the executant before he can order registration of the document presented for registration. Necessary endorsements in compliance with section 58, Registration Act were made by the SubRegistrar on the Will Ex. PW1/4. It is also important to note that as per SubRegistrar's endorsement on the Will Ex. PW1/4, contents thereof were explained to the parties who had admitted the same to be correct. Further, as per the endorsements, the parties had put their signatures/thumb impressions thereon in SubRegistrar's presence. Now, all these statutory endorsements cannot be set at naught in the absence of any material whatsoever to the contrary.
20. Defendanttenant invoked Subhash Chandra vs. Mohamad Sharif & Ors., AIR 1990 SC 636 to contend that he could very well question plaintiff's derivative title to the tenanted shop. In this regard, he relied upon the following passage out of this judgment:
"7. It is true that the doctrine of estoppel ordinarily applies where the tenant has been let into possession by the plaintiff. Where the landlord has not himself inducted the tenant in the disputed property and his rights are founded on a derivative title, for example, as an assignee, donee, vendee, heir, etc. the position is a little different. A tenant already in possession can challenge the plaintiff's claim of derivative title showing that the real owner is somebody else, but this is subject to the rule enunciated by S. 116 of the Evidence Act. The section does not permit the tenant during the continuance of the tenancy, to deny that his landlord had at the beginning of the tenancy a title to the property. The rule is not confined in its application to cases where the original landlord brings an action for eviction. A CS no. 137/10 Rahul Walia v. Mohd. Adil Page 19 of 34 transferee from such a landlord also can claim the benefit, but that will be limited to the question of the title of the original landlord at the time when the tenant was let in."
21. There certainly can be no quarrel with the aforesaid legal position that plaintiff Rahul's derivative title can be called into question by the defendant tenant in order to show that the 'real owner' is someone else. However, the question is has the defendant led any evidence to avail himself of the assistance of this legal proposition? For the manifold reasons to follow, I am of the view that he has failed on this count. Firstly, he has miserably failed to dislodge the plaintiff from his case, inter alia, based upon the Will Ex. PW1/4 in his favour. The discussion hereinabove on the aspect of proof of this Will would reveal that the defendanttenant has also failed to establish his claim that the same is forged and fabricated. That is to say, evidence on record shows that succession of the tenanted shop would go by testamentary succession and not intestate. This in effect would rule out those, including testator's 'husband', from succeeding to the tenanted shop on the anvil of intestate succession laws. Secondly, even de hors this Will Ex. PW1/4, defendanttenant led no evidence worth the name to show that the 'real owner' is someone else and not the plaintiff Rahul. Defendanttenant took the position that after his landlady's demise, Sh. Rajni Kant Kalia became 'real owner' of the tenanted shop in his capacity as her 'husband'. Thus, it was squarely incumbent upon him to prove in the first place that Sh. Rajni Kant Kalia was his landlady's 'husband', in terms of a marriage valid in the eyes of CS no. 137/10 Rahul Walia v. Mohd. Adil Page 20 of 34 law. To add to it, it was also incumbent upon him to show that 'husband' Sh. Rajni Kant Kalia was the only legal heir left behind by his landlady. These aspects stand not proved by the defendant. His mere self serving ipse dixit sans any proof can hardly come to his rescue. A defendanttenant, who admittedly (admits in his evidence) did not know his landlady, prior to 10th March, 2008, can hardly from his own mouth give any credible evidence touching on aspects of landlady's marriage, proof of someone being her 'husband' and her surviving legal heirs. This is more so when in two different documents (Will Ex. PW1/4 and rent agreement Ex. PW1/2) Smt. Triveni's husband's names are stated differently.
22. Defendanttenant next pointed out that Smt. Kailash, his landlady's elder sister, also claims ownership to the tenanted premises on the strength of a Will in her favour and that she too has brought an action before the Probate Court for probate the Will in her favour. He thus sought to urge that in view of the conflicting claims over the tenanted shop this Court could not pass a decree against him. I may add here that plaintiff's counsel during the course of arguments pointed out that in the probate case Smt. Kailash was relying on photocopy of a Will and not original thereof in support of her case. This stand of plaintiff's counsel was not controverted in any manner by the defendanttenant. That apart, to bolster his point, plaintiff's counsel filed on record certified copy of the Will propounded by Smt. Kailash. Perusal of the certified copy would reveal that the same is a "copy to copy" (meaning CS no. 137/10 Rahul Walia v. Mohd. Adil Page 21 of 34 thereby that the Will propounded by Smt. Kailash is a photocopy only and not original). Secondly, if in defendant's worldview the Will executed on 16.11.2009 (Ex. PW1/4) stands vitiated on account of testator's illness, then I fail to comprehend as to on what basis he is propping up the Will dt. 21.11.2009 propounded by Smt. Kailash. In other words, if the Will Ex. PW1/4 of 16.11.2009 would stand vitiated merely by testator's illness, then such an argument would apply a fortiori to Smt. Kailash's Will purportedly executed later on 21.11.2009. Thirdly, if at all a probate is granted to Smt. Kailash and not granted to the plaintiff Rahul, then it is open to the former to do the needful under the law to take possession of the tenanted shop from the latter, if at all he comes to acquire its possession. Mere pendency of probate petitions filed by Smt. Kailash and plaintiff Rahul would not give the defendanttenant an unfair advantage of continuing to occupy the shop despite termination of his tenancy. A tenant has nothing to do with the rival claims qua the tenanted premises amongst the near and dear ones of his deceased landlady. As to who, amongst the near and dear ones, is better entitled to lay claim should not be tenant's headache. Fourthly, in PW2 Anil Bedi's crossexamination the defendant gave a suggestion quite contrary to his own case, which was replied to as follows, "It is wrong to suggest that late Smt. Triveni was not having any siblings and that the plaintiff is not the real son of late Smt. Triveni." Fifthly, the mere averment that Smt. Kailash too is propounding a Will in her favour would not suffice to take the Will Ex. CS no. 137/10 Rahul Walia v. Mohd. Adil Page 22 of 34 PW1/4 out of its perch of having been proved before this Court in terms of the extant law.
23. It is also the argument of defendanttenant, and rightly so argued, that plaintiff has failed to prove his averment that he used to collect the rentals from him. But then, so has the defendanttenant not been able to prove his own assertion that Rajni Kant Kalia collected the rent from him on behalf of his landlady during her lifetime and did so even after her demise. He has neither shown the legal notice purportedly sent to him by Rajni Kant Kalia, during Smt. Triveni's lifetime, demanding rental arrears nor given any particulars thereof. Nonetheless, the point is that whether the tenant was paying the rentals to plaintiff Rahul, or to Rajni Kant Kalia, or not paying the rentals at all, would not ipso facto mean that the Will Ex. PW1/4 stands vitiated. This contention will neither suffice to hold that plaintiff's rights under the Will Ex. PW1/4 would stand extinguished.
24. Now to the aspect of Smt. Triveni's marital status. Plaintiff states that Smt. Triveni was married to Ravinder Kumar Walia and that, owing to temperamental differences with him, she entered into a liveinrelationship with Rajnikant Kalia @ R. K. Kalia and later, on account of a rape case against Mr. Kalia, with one Vijay Sharma. Defendant, however, states that his landlady was in fact the spouse of Rajni Kant Kalia and, perhaps, taking a cue from this he suffixes the surname 'Kalia' to her name notwithstanding the fact that in the rent agreement Ex. PW1/2, which forms the basis of his tenancy, CS no. 137/10 Rahul Walia v. Mohd. Adil Page 23 of 34 she had suffixed 'Sharma' as her surname. Nonetheless, on this aspect there is no evidence led by either of the parties in support of their respective stands. But then the marital status of Smt. Triveni is neither germane nor relevant for adjudication of the dispute at hand. The bottom line is that the identity of the testator is not in dispute. Identity of the beneficiary is also clear. The Will Ex. PW1/4 stands proved. Therefore, whether the testator was in fact married to Mr. A or Mr. B or not married at all is hardly germane for adjudication of the dispute. And neither would this Court venture to decide as to who was Smt. Triveni really married to as this is wholly irrelevant for the present purpose. The issue as to marital status of a person may be relevant where his/her estate, after his/her demise, is to go by intestate succession. But where testamentary succession is to take place, as in the instant case, the question as to who was the testator really married to, is hardly significant. This sets at rest defendant's stand, taken during the course of final arguments, that there is a dichotomy between his landlady's husband's name in the Will Ex. PW1/4, the rent agreement Ex. PW1/2 and the plaintiff's father's name as set out in the memo of parties.
25. Upshot of the above discussion is that plaintiff Rahul is certainly not a stranger to the tenanted shop as claimed by the defendant. The tenanted shop vests in the plaintiff by virtue of the Will Ex. PW1/4 of the testator Smt. Triveni. This issue is answered against the defendant and in plaintiff's favour.
26. Issue no. 2: The issue is whether the defendant proves that the CS no. 137/10 Rahul Walia v. Mohd. Adil Page 24 of 34 plaintiff has no 'concern' or 'connection' with Smt. Triveni Walia through whom he is claiming right, title and interest in the tenanted shop. This issue was perhaps settled on the basis of defendant's objection that plaintiff Rahul is not the son of Smt. Triveni and that he was merely her domestic help and thus he has no 'concern' or 'connection' with her.
27. Firstly, the little evidence on this score that is there is on record goes against the defendant. The defendanttenant himself gave a suggestion to the plaintiff (PW1) in his crossexamination on 24.05.2012 that he was giving false evidence being the son of Smt. Triveni. This suggestion was replied as follows, "It is further wrong to suggest that I have no knowledge regarding the agreement PW1/2 and I am deposing falsely being the son of Smt. Triveni." Secondly, the Will Ex. PW1/4 of Smt. Triveni does make a mention of her 'children' and the relevant sentence on its very first page reads as follows, "I wish to make the following Will in order to avoid litigation and unpleasentness after my death between my children." Therefore, the averment that the Almighty had not blessed Smt. Triveni with any child does not seem to pass the muster. Thirdly, on the second page of the Will Ex. PW1/4 Smt. Triveni refers to the plaintiff as her 'son'. I may add here that the Will Ex. PW1/4 stands proved and there is positive evidence on record to show that the SubRegistrar had, just before its execution, read over its contents to Smt. Triveni and explained the meaning thereof in Hindi language to her, to which she affirmed to be correct. When this be the evidence on CS no. 137/10 Rahul Walia v. Mohd. Adil Page 25 of 34 record, this Court does not view defendant's claim on this score with favour.
28. Not only this, there is no evidence on record to support defendant's assertion, as claimed in the written statement, that plaintiff was instead the child of one Ms. Shakuntala. He claimed in his evidence that he had derived this knowledge from one Munna and Sh. Rajni Kant Kalia. But these two persons did not step into the witness box. Chargesheet of a certain police officer against plaintiff's brother in a case under sections 498A/406 IPC would hardly suffice for this Court to return a judicial verdict that plaintiff is not the son of Smt. Triveni. That police officer did step into the witness box to depose as to on what basis he had made the averment in his chargesheet. Secondly, having perused the copy of the chargesheet, I find that such averment was made merely and merely on the basis of, without anything more, the claims of the complainant therein. Thirdly, an averment in a chargesheet is not a judicial verdict.
29. I may also add here that there is also no evidence to show that the plaintiff was merely a domestic help of Smt. Triveni, except for defendant's self serving ipse dixit.
30. Moreover, this argument, seemingly attractive to a layman not versed with the law, is entirely a perfunctory one on a legal platform. Even assuming that the plaintiff is not the real son of Smt. Triveni, yet this would not, given the nature of evidence on record, be a factor in itself to view the Will Ex. PW1/4 with suspicion. A person can make a Will in favour of another even CS no. 137/10 Rahul Walia v. Mohd. Adil Page 26 of 34 though he may not be related by blood or by marriage to him and there is nothing in law which prohibits him from doing so. Secondly, it was the plaintiff who was with Smt. Triveni in the evening of her life going through the trials and tribulations of illhealth for quite a long time. It bears repetition to state that Smt. Triveni in her Will Ex. PW1/4 calls the plaintiff her 'son'. The bottom line therefore is that even assuming this argument to be correct, yet given the nature of evidence on record, it does not give rise to any suspicious circumstances surrounding the Will. I may also add here that as per depositions of PW2 and PW3 it was none other than the plaintiff who had performed her final rites.
31. This issue thus stands answered against the defendant and in plaintiff's favour.
32. Issue no. 5: The issue is whether there no relationship of landlord and tenant between the parties. Discussion on issues no. 1 and 2 a fortiori establish that there exists relationship of landlordtenant between the parties. This issue is decided against the defendant and in plaintiff's favour.
33. Issue no. 3: The issue is whether the lis is bad for not serving the eviction notice as alleged in the written statement. For the following manifold reasons, this issue is answered against the defendant and in plaintiff's favour:
(a) Termination through efflux of time is also one of the modes through which a tenancy comes to an end. Where tenancy is determined to come to an end by efflux of time, service of notice under CS no. 137/10 Rahul Walia v. Mohd. Adil Page 27 of 34 section 106, Transfer of Property Act is a mere surplusage. In the instant case, the rent agreement Ex. PW1/2 would reflect that defendant's tenancy was only for 2 years with effect from 15.03.2008.
Owing to efflux of time, defendant's tenancy has thus already come to an end. Consequently, whether or not any eviction notice is served upon the defendanttenant is hardly of any consequence.
(b) Secondly, notwithstanding termination of tenancy through efflux of time, plaintiff Rahul, through his counsel, had in fact sent the legal notice (Ex. PW5/A : Mark C) dt. 29.01.2010 to the defendant tenant thereby calling upon him to pay the rental arrears/electricity dues and vacate the tenanted premises. This notice was dispatched through speed post (postal receipt Ex. PW5/C) and UPC (UPC receipt Ex. PW5/B). Postal and UPC receipts (Ex. PW5/C and Ex. PW5/B) would reflect that this legal notice was dispatched to the correct address, which is the tenanted premises under defendant's occupation. Section 16, Evidence Act and Privy Council decision of Harihar Banerji vs. Ramshashi Roy, AIR 1918 PC 102 mandates that a letter properly addressed and proved to have been posted through registered post, is presumed to have been served upon the defendant. Consequently, the legal notice (Ex. PW5/A : Mark C) dt. 29.01.2010 is presumed to have been served upon the defendanttenant. Defendant's bare denial, without anything more, would not persuade this Court to return a finding that he CS no. 137/10 Rahul Walia v. Mohd. Adil Page 28 of 34 was not served with the same.
(c) In any event of the matter, after M/s Nopany Investments Pvt. Ltd. vs. Santokh Singh, AIR 2008 SC 673 an eviction suit under the general law itself operates as a notice to quit on a tenant. Any amount of evidence and astute drafting of pleadings would not suffice to overwhelm this settled legal position.
34. Issue no. 6 : The issue is whether the plaintiff proves that he is entitled to the relief of possession of the suit shop. There exists relationship of landlordtenant between the parties. The defendanttenant admittedly does not have the protection of Delhi Rent Control Act, monthly rental being more than Rs. 3,500/. And lastly, the tenancy already stands determined as stated in the preceding paragraph. This issue is thus decided in plaintiff's favour and against the defendant by holding that the the former (plaintiff) is entitled to claim possession of the tenanted shop (shop on the ground floor in property no. A1, South Anarkali, Delhi51) from the latter (defendant). It is however clarified that if Smt. Kailash or Sh. Rajni Kant Kalia establish a better claim than the plaintiff Rahul before a Court of competent jurisdiction over the suit shop, then they may take back its possession from plaintiff Rahul as per the law of the land.
35. Issue no. 8 : The issue is whether the plaintiff proves that he is entitled to arrears of electricity dues from the defendant. Plaintiff's claim, in the plaint, was that a certain electricity bill of Rs. 3,380/ (Ex. PW1/3) was CS no. 137/10 Rahul Walia v. Mohd. Adil Page 29 of 34 outstanding. PW6 Vijender Kumar (an official from BSES) deposed that the outstanding electricity bill of Rs. 3384.78/ as on 15.04.2010 already stands paid in May, 2010. He further deposed that a bill of Rs. 1,890/ (Ex. PW6/B dt. 31.12.2013) has not been paid. To this however he added the rider that the server of the department was not working properly and if any payment has been made the same may not be reflected in the statement Ex. PW6/C. Thus, there is no clear evidence on way or the other as to what precisely are the electricity dues as on date qua the shop in question. Thus, at this juncture it would not be safe to pass a decree against the defendant on this count. Anyhow, the plaintiff is at at liberty to recover the dues of electricity charges, as per law through a separate lis, that may be left unpaid by the defendant tenant. This issue is thus answered against the plaintiff and in defendant's favour.
36. Issue no. 7 : The issue is whether the plaintiff proves that he is entitled to rental arrears as claimed. Defendant's stand that he continued to pay rent to Sh. Rajni Kant Kalia after his landlady's demise stands not proved. Sh. Rajni Kant Kalia did not step into the witness box. There is neither any document nor any bank record to lend credence to this assertion. As per plaintiff, rent stands paid till December, 2009. The tenancy came to an end by efflux of time on 14.03.2010 (two years from 15.03.2008). The defendanttenant is therefore liable to pay Rs. 15,000/ to the plaintiff (at the rate of Rs. 6,000/ per month) towards the rental arrears for the period from January, 2010 till CS no. 137/10 Rahul Walia v. Mohd. Adil Page 30 of 34 midMarch, 2010. This issue is thus answered in plaintiff's favour.
37. Issue no. 9 : The issue concerns the mesne profits to be awarded. Entitlement of a landlord to claim mesne profits from a tenant who is still in illegal occupation of the premises after termination of the tenancy is governed by section 2 (12), CPC.
38. Plaintiff has led no evidence on this point. He led no evidence to show as to what would a similarly situated rented premises in the locality have fetched for the period after termination of the tenancy. However, there are catena of decisions that have held that while determining mesne profits the Courts are well entitled to take judicial notice of the increase in rentals of the area where the property is situated. Decisions reported as (i) State Bank of Bikaner and Jaipur Vs. I. S. Ratta & Ors. 120 (2005) DLT 407 (ii) National Radio & Electrical Co. Ltd. vs. Motion Pictures Association 122 (2005) DLT 629, and (iii) Motor & General Finance Ltd. vs. Nirulas & Ors. 92 (2001) DLT 97 can be referred.
39. In M/s M.C. Agrawal HUF vs. M/s Sahara India & Ors. 183 (2011) DLT 105 it has been held that where the premises are situated in commercial centre, then, unless there is evidence to show to the contrary, an increase of 15% per year can ordinarily be taken to show the mesne profits payable although the landlord does not lead any credible evidence to prove the rate of rent during the period for which the mesne profits have to calculated. CS no. 137/10 Rahul Walia v. Mohd. Adil Page 31 of 34
40. In the case at hand, the rent of Rs. 6,000/ was to remain constant for 2 years. Defendant's tenancy was a commercial one. Taking a cue from this, following directions are being passed on the aspect of payment of mesne profits: For the period from 15.03.2010 till midMarch, 2012 defendant tenant shall pay to the plaintiff mesne profits of Rs. 6,900/ per month (an increase of 15% over Rs. 6,000/). For the period from 15.03.2012 till mid March 2014 defendanttenant shall pay to the plaintiff mesne profits of Rs. 7,935/ per month (an increase of 15% over Rs. 6,900/). For the period from 15.03.2014 till midMarch 2016 defendanttenant shall pay to the plaintiff mesne profits of Rs. 9,125/ per month (an increase of 15% over Rs. 7,935/). For the period from 15.03.2016 till midMarch 2018 defendanttenant shall pay to the plaintiff mesne profits of Rs. 10,494/ per month (an increase of 15% over Rs. 9,125/). And so on and so forth.
41. Issue no. 10 : The issue is whether the plaintiff is entitled to the relief of permanent injunction as claimed. Plaintiff asserts in his plaint and in his evidence that the defendant after issuance of the legal notice Ex. PW5/A threatened to part with possession of the shop. Defendant denies extending any threat. Be that as it may, the defendant Md. Adil being a mere tenant in the tenanted shop under the landlordship of the plaintiff cannot under the law create any third party interest of his own accord. This would be more so after passing of the present judgment and the decree. Defendant Md. Adil is accordingly restrained by way of decree of permanent injunction from CS no. 137/10 Rahul Walia v. Mohd. Adil Page 32 of 34 transferring possession of the tenanted shop in question to any person other than the plaintiff. This issue is accordingly answered in plaintiff's favour and against the defendant.
42. Issue no. 4 : The issue is whether the defendant proves that the suit is without cause of action. A discussion on the issues aforesaid and more importantly grant of relief(s) in plaintiff's favour would, of course, entail that the suit is not without cause of action. This issue too goes against the defendant.
43. Relief: The suit stands decreed in the following terms:
(A) Plaintiff is entitled to claim possession of the tenanted shop (shop on the ground floor in property no. A1, South Anarkali, Delhi51 as shown bounded in red colour in site plan Ex. PW1/1) from the defendant. (B) Defendant Md. Adil is restrained by way of decree of permanent injunction from transferring possession of the tenanted shop in question to any person other than the plaintiff.
(C) The defendanttenant is liable to pay Rs. 15,000/ to the plaintiff (at the rate of Rs. 6,000/ per month) towards the rental arrears for the period from January, 2010 till midMarch, 2010.
(D) On the point of payment of mesne profits, following directions are being passed: For the period from 15.03.2010 till midMarch, 2012 defendanttenant shall pay to the plaintiff mesne profits of Rs. 6,900/ per month (an increase of 15% over Rs. 6,000/). For the period from CS no. 137/10 Rahul Walia v. Mohd. Adil Page 33 of 34 15.03.2012 till midMarch 2014 defendanttenant shall pay to the plaintiff mesne profits of Rs. 7,935/ per month (an increase of 15% over Rs. 6,900/). For the period from 15.03.2014 till midMarch 2016 defendanttenant shall pay to the plaintiff mesne profits of Rs. 9,125/ per month (an increase of 15% over Rs. 7,935/). For the period from 15.03.2016 till midMarch 2018 defendanttenant shall pay to the plaintiff mesne profits of Rs. 10,494/ per month (an increase of 15% over Rs. 9,125/). And so on and so forth.
(E) Costs of the suit awarded to the plaintiff (F) Security amount of Rs. 20,000/, as stated in rent agreement Ex. PW1/2, shall be adjusted against the decreetal amount. The entire amount deposited by the defendanttenant in the Court under Order XXXIX Rule 10, CPC shall also be adjusted against the decreetal amount.
44. Decree sheet be drawn up. File be consigned to record room.
Announced in the open court (M.P. SINGH)
Dated:23.12.2014 Senior Civil Judge/Rent Controller (East)
Karkardooma Courts, Delhi
CS no. 137/10 Rahul Walia v. Mohd. Adil Page 34 of 34