Delhi District Court
Ramesh Chander Gupta vs Ram Niwas Gupta on 18 January, 2023
IN THE COURT OF SH. PARVEEN SINGH,
ADDL. DISTRICT JUDGE-11, CENTRAL DISTRICT,
TIS HAZARI COURT, DELHI.
CS DJ No. 616764/2016
Ramesh Chander Gupta,
son of Sh. Sri Ram Gupta,
r/o 26/6, Shakti Nagar,
Delhi-07 ...Plaintiff
Versus
Ram Niwas Gupta,
son of late Sh. Sri Ram Gupta,
r/o 26/6, First Floor, Shakti Nagar,
Delhi-07 ...Defendant.
Date of Filing : 17.07.2009.
Date of Arguments : 07.01.2023.
Date of Judgment : 18.01.2023.
SUIT FOR POSSESSION AND FOR RECOVERY OF MESNE
PROFIT FOR USE AND OCCUPATION OF PREMISES
JUDGMENT
1. The present suit for possession and recovery of mesne profit for use and occupation of premises has been filed by the plaintiff against the defendant.
2. The brief facts of the plaintiff's case are that, property bearing no. 26/6, Shakti Nagar, Delhi-07 built on an area admeasuring 226.66 sq. yards was owned by late Smt. Basanti Devi wife of late Sh. Sri Ram Gupta. The said property was the self acquired property of late Smt. Basanti Devi. It is further submitted that on 13.05.2005, Smt. Basanti Devi, out of her CS No. 616764/2016 No. 1 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 natural love and affection, had executed a registered gift deed in favour of the plaintiff. By virtue of the said gift deed, plaintiff acquired absolute rights in the suit property. On 20.07.2008, Smt. Basanti Devi had passed away. It is further submitted that during her lifetime, Smt. Basanti Devi permitted the defendant to occupy two rooms, one kitchen, common toilet/ bathroom on the first floor of suit property. Being the son of Smt. Basanti Devi, the defendant was permitted to occupy the premises on license basis without payment of license fee. It is further submitted that since the defendant was occupying premises as a licensee, after the death of erstwhile owner and after execution of gift deed in favour of plaintiff, the defendant became licensee under the plaintiff. It is further submitted in the plaint that after coming to know about the execution of gift deed in favour of plaintiff, the defendant started illegal and unlawful activities and started harassing the plaintiff. In February 2009, plaintiff orally terminated the license of defendant and asked him to surrender the possession of the premises. However, the defendant failed to do so. Then, vide legal notice dated 13.04.2009, the plaintiff terminated the tenancy of the defendant but defendant failed to comply with the notice. As despite termination of license, defendant continued to occupy the premises and thus, he is liable to pay damages/ mesne profits for use and occupation. It is further submitted that if the premises, which is in occupation of defendant, is let out in the open market, the same can easily fetch a rent of Rs.300/- per day. The plaintiff is claiming damages as Rs.300/- per day from 15.05.2009 till the defendant surrenders the possession. Hence, the present suit praying that decrees may be passed in favour of the plaintiff granting the reliefs sought in the plaint.
CS No. 616764/2016 No. 2 of 65(Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023
3. On being served with the summons, the defendant filed his written statement.
4. In the written statement, a preliminary objection was taken that Smt. Basanti Devi, the deceased mother of parties was a house wife and had no income of her own. The suit property was purchased by the father of the parties in the name of Smt. Basanti Devi with an intention to save money on account of stamp duty and property tax. Thus, Smt. Basanti Devi held the suit property as a trustee, standing in fiduciary capacity for the benefit of entire family and she was not the owner of the property. Rather she was holding the property benami. It is further submitted that the parents of the parties gave two rooms and a kitchen set in the said suit property to each of their sons. In the year 1978, pursuant to his marriage defendant got his share. One room on the ground floor surrounded by two rooms on either side was given on rent to The Sudarshan Cooperative Urban Thrift and Credit Society Ltd. and to The Sudershan Cooperative Group Housing Society Ltd. The affairs of these societies were being looked after by Sh. Jagdish Raj Gupta, the eldest son of Smt. Basanti Devi. In June 1986, father of the parties had expired and at that time, the family had two properties one is the suit property and other is A-41, Ashok Vihar, Phase I, Delhi. It is further submitted that in the year 1991, Smt. Basanti Devi called her sons for a meeting to settle the family property. The said meeting was attended by four sons of Basanti Devi namely Sh. Shyam Sunder Gupta, Sh. Om Prakash Gupta, Sh. Ram Niwas Gupta (defendant), Sh. Ramesh Chander Gupta (plaintiff) and Sh. Anand Gupta and Sanjay Gupta, both the LRs of Sh. Jagdish Rai Gupta (eldest son of Smt. Basanti Devi). By that time, the three daughters of Smt. Basanti Devi were married. It was decided in the CS No. 616764/2016 No. 3 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 said meeting that the Ashok Vihar house be settled in favour of LRs of Sh. Jagdish Prakash Gupta. The LRs of Sh. Jagdish Prakash Gupta were also given two rooms and one store room on the ground floor of Shakti Nagar Property. Smt. Basanti Devi retained one room and two stores on the ground floor of the suit property for herself. Plaintiff was given two rooms and common user of bathroom on the ground floor of the suit property. Sh. Shyam Sunder Gupta was given two rooms and a kitchen on the first floor and a miyani between the stair case of first and second floor in the suit property. Sh. Om Prakash Gupta was given two rooms and one kitchen on the first floor of the suit property. The defendant was given two rooms, a kitchen on the first floor and a miyani between the staircase of ground and first floor of the suit property. One bathroom and two toilets for common use on the first floor in the suit property were in possession of the defendant since the year 1978. It is submitted that pursuant to this settlement, the defendant was in possession of the premises since the year 1978 and in the year 1991, it was settled into his ownership. It is submitted that the family properties including the suit property were duly partitioned through an oral family settlement and the suit property was alloted to the defendant as an exclusive owner. The plaintiff has no right, title or interest in the suit property.
5. It is further submitted that the signatures of Smt. Basanti Devi on the gift deed do not match with her admitted signatures. It is further submitted that the time of execution of alleged gift deed, Smt. Basanti Devi was 90 years old and could not have made the alleged signatures. Further, Smt. Basanti Devi was not keeping good health and had no mental capacity to decide to execute any conveyance document and the alleged gift deed. It CS No. 616764/2016 No. 4 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 is further submitted that the defendant's possession in the suit property is continuous, peaceful and without any interruption. His possession and exercise of right of ownership in it have been open and adverse to everybody else including the plaintiff. Thus, the defendant in alternative has title in the suit property by way of adverse possession.
6. On merits, it is denied that the suit property was owned by late Smt. Basanti Devi or that the said property was self acquired property of Smt. Basanti Devi. It is denied that on 13.05.2005, Smt. Basanti Devi executed any gift deed in favour of plaintiff. It is denied that by virtue of from the said alleged gift deed, the plaintiff acquired any rights in property no. 26/6, Shakti Nagar, Delhi. It is denied that the defendant is in occupation of the suit premises on license basis. Rest of averments of the plaint have been denied in the written statement.
7. In the replication to the written statement, the contents of the written statement are denied and the contents of the plaint are reaffirmed. Thereafter, from the pleadings of the parties, vide order dated 21.12.2009, following issues were framed:-
1. Whether Smt. Basanti Devi was the absolute owner of the suit property, if so its effect? OPP.
2. Whether Smt. Basanti Devi executed a gift deed dated 13.05.05 out of love and affection towards the plaintiff in his favour? OPP.
3. Whether Smt. Basanti Devi was holding the property in trust of family members in fiduciary capacity being Benami owner, if so its effect? OPD.
4. Whether there was a family settlement by the CS No. 616764/2016 No. 5 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 family of Smt. Basanti Devi in the year 1991 which was implemented with immediate effect in favour of the defendant in whose favour the suit property was settled as alleged in para 8 to 11 of the preliminary submissions to the written statement. If so its effect? OPD.
5. Whether the defendant is in adverse possession of the suit property as alleged in para 14 of the written statement. If so its effect? OPD.
6. Whether the suit has not been valued for the purpose of court fee and jurisdiction? OPD.
7. Whether the plaintiff is entitled for possession of suit property? OPP.
8. To what amount if any, the plaintiff is entitled as mesne profits for use and occupation of the premises by the defendant and at what rate and to which period? OPP
9. Relief.
8. Thereafter, the parties led their respective evidence. The plaintiff examined himself as PW1. Plaintiff also examined one Sh. Inder Mal Gupta as PW2, Sh. N.K Maurya, Record Keeper from House Tax Department as PW3 and Sh. Naresh Kumar Prasher, UDC from Office of SR-I as PW4. On the other hand, the defendant examined himself as DW1, Sh. Anand Gupta as DW2 and Sh. V.C Mishra as DW3.
9. I have heard learned counsels for the parties and carefully CS No. 616764/2016 No. 6 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 perused the record as well as written submissions filed on behalf of the parties.
10. In the written submissions filed on behalf of the plaintiff, it is submitted that the sale deed Ex.PW1/2 was never challenged by any person and thus, Smt. Basanti Devi is deemed to be the owner of the suit property. It is further submitted that neither the husband nor any children of Smt. Basanti Devi had challenged the said sale deed. It is further submitted that the endorsement on sale deed shows that the husband of purchaser had only tendered the amount of sale consideration as his wife was not present there. Husband of purchaser had never claimed any right, title or interest in the suit property and this fact is further fortified by Will executed by Sri Ram Gupta, which is Ex.PW1/D6 wherein he stated that he had no immovable property in his name. It is submitted that in order to prove the gift deed, the plaintiff had examined one Inder Mal Gupta who was an attesting witness. However, while preparing the affidavit of this witness, in place of gift, word 'will' got typed and a correction was made in the affidavit. It is further submitted that the gift deed, being a registered document, carries presumption of truth. The same also been proved by PW4. It is further submitted that the gift deed came to the knowledge of the defendant but the defendant never challenged the said gift deed before the court of competent jurisdiction. Thus, the gift deed was binding upon the defendant. In this regard, reliance has been placed on the judgment of Brij Raj Singh (dead) by LRs & Ors. v. Sewak Ram & Ors and Pentakota Satyanarayana & Ors. v. Pentakota Seetharaman & Ors. It is further submitted that the claim of the defendant is, that the property in question was purchased by his father in the name of his mother in order to save stamp duty. However, CS No. 616764/2016 No. 7 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 the sale deed is of the year 1950 and at that time, there was no difference in stamp duty either paid by a male or female. Thus, this plea of the defendant is prima facie false. It is further submitted that the sale deed which is alleged to be the benami property of Smt. Basanti Devi had never been challenged. Even the plea of benami property is barred under Benami Transaction Prohibition Act. With regard to the family settlement, it is submitted that apart from a bald oral statement, no document has been proved on record by the defendant to prove the alleged family settlement. It is further submitted that the defendant has not led any evidence to show as to when his possession became open and hostile. The defendant was residing in the suit property in the capacity of a licensee. In this regard, reliance has been placed on the judgment of hon'ble High Court of Delhi in Poonam Sharma v. Prem Nath Anand Buildcon Private, RFA No. 74/2005 decided on 11.01.2012. It is further submitted that the defendant has not led any evidence to prove that the suit of the plaintiff is undervalued. It is further submitted that suit property which is in occupation of the defendant can easily fetch rent between Rs. 9,000/- to Rs. 12,000/- per month and thus, the plaintiff is entitled to mesne profit @ Rs. 300/- per day. Reliance has been placed on the following judgments:-
1. Govindbhai Chhotabhai Patel & Ors. v. Patel Rambhai Mathurbhai, (2020) 16 SCC 255.
2. Nand Ram (Dead) Through Legal Representatives & Ors. v. Jagdish Prasad (Dead) Through Legal Representatives, (2020) 9 SCC 393.
11. In the written submissions filed on behalf of the defendant, it is submitted that the exhibition of gift deed Ex.PW1/3 is under objection. It is further submitted that the gift deed allegedly carries the thumb impression CS No. 616764/2016 No. 8 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 and signatures of Smt. Basanti Devi. To prove those signatures and thumb impressions, defendant examined and expert i.e. DW3 V.C Mishra and the said witness deposed that the thumb impressions on the gift deed did not match with the admitted thumb impressions of Smt. Basanti Devi. No challenge has been made to the report on the alleged thumb impressions of Smt. Basanti Devi in the cross examination. It is further submitted that the handwriting expert in his report Ex.DW3/1 has stated the signatures on the gift deed have not been made by Smt. Basanti Devi and no cross examination has been done on behalf of the plaintiff to shake the testimony of this witness. It is further submitted that the plaintiff has examined one Sh. Inder Mal Gupta to prove the gift deed. However, in the examination in chief filed by this witness, the word 'Will' has been changed to 'Gift deed' and the witness during his cross examination has deposed that he is a witness to a Will and he does not know as to who had cut the word 'Will' in para 2 of his affidavit and changed it to 'Gift deed'. Thus, this witness is an unreliable witness and cannot prove the gift deed. It is further submitted that witness Sh. Inder Mal Gupta has strained relations with the defendant. It is further submitted that one more witness Sh. Mangat Ram has been mentioned in the list of witnesses to prove the gift deed. However, the plaintiff for the reasons best known to him has not examined this witness. It is further submitted that section 68 of the Evidence Act has not been complied with and in absence of compliance of section 68 of Evidence Act, gift deed cannot be proved. The plaintiff has failed to prove the gift deed in his favour. It is further submitted that the plaintiff has failed to prove that the suit property was purchased by Smt. Basanti from her own funds or the same was self acquired property and from the cross examination of the CS No. 616764/2016 No. 9 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 plaintiff, it is very much clear that Smt. Basanti had no source of income and she had no money to purchase the property. It is further submitted that the said property was purchased by Sh. Sri Ram Gupta, father of the parties, in the name of Smt. Basanti Devi and Smt. Basanti Devi held the property benami. It is further submitted that the plaintiff has failed to disprove this stand of the defendant or contradict the statement of the defendant in the cross examination. With regard to the family settlement, it is submitted that the defendant has proved the oral family settlement through witness DW2 Anand Gupta and the plaintiff has failed to cross examine this witness on the point of family settlement. It is further submitted that the plaintiff has stated that Smt. Basanti Devi had published a notice in Navbharat Times whereby she disowned defendant from all her properties. However, the defendant is in possession of the suit since 1987, as has also been admitted by plaintiff. Till date, no proceedings had been done to evict the defendant from the suit property. Thus, the defendant has a right in the suit property by adverse possession and the suit is beyond the period of limitation. It is further submitted that the plaintiff has undervalued the suit and thus, it is liable to be dismissed under Order VII Rule 11 CPC. Ld. Counsel for defendant has relied upon the following judgments:-
1. Abdul Rahim & Ors. v. Sk. Abdul Zabar & Ors., 2009(3) Civil Court Cases 037 (SC)
2. Pentakota Satyanarayana & Ors. v. Pentakota Seetharatnam & Ors, Appeal Civil no. 5941-5942 of 2005 decided on 29.09.2005
3. Chennadi Jalapathi Reddy v. Baddam Pratapa Reddy (Dead) through LRs & Anr, 2020 (1) CLJ 351 (SC) CS No. 616764/2016 No. 10 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023
4. Abhay Jain & Ors. v. State of M.P & Anr, MCRC No. 431/2014 decided on 06.08.2018
5. Maria Margarida Sequeira Fernandes v. Erasmo Jack De Sequeira (Dead) Through LRs, (2012) 5 SCC 370.
12. I have considered the rival submissions. My issue wise findings as under:-
ISSUES NO. 1 AND 31. Whether Smt. Basanti Devi was the absolute owner of the suit property, if so its effect? OPP.
3. Whether Smt. Basanti Devi was holding the property in trust of family members in fiduciary capacity being Benami owner, if so its effect? OPD.
13. These issues are being decided together as they are interconnected because plaintiff had claimed that Smt. Basanti Devi was the absolute owner of this property and as such she had gifted this property to him by virtue of a gift deed whereas according to the defendant property was purchased benami in the name of Smt. Basanti Devi by the father of the parties and she was holding the property as trustee for the family.
14. In this regard, plaintiff appeared as PW1 and deposed that Smt. Basanti Devi had purchased property no. 26/6, Shakti Nagar, Delhi measuring 236.66 sq. yards vide registered sale deed dated 13.12.1950, which is Ex.PW1/2. He further deposed that she had unencumbered power to deal with the property in question as there was no bar or encumbrances of any nature over her rights to deal with the said property.
15. During his cross examination on this point, he admitted that CS No. 616764/2016 No. 11 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 his mother was a house wife and volunteered, that she was receiving rent of property bearing no. 26/6, Shakti Nagar, was also receiving LIC commission and was an income tax assessee. He had not mentioned LIC commission in the pleading and evidence because his father was an LIC agent. It was only after the death of his father in June 1986 that the commission started coming to his mother. He did not remember from which year his mother became an income tax assessee. He did not even remember if his mother became an assessee after the death of his father. He was not born in 1950 and therefore, he could not know if his mother was an assessee in 1950. During his cross examination, a claim seems to have been taken on behalf of the plaintiff that Smt. Basant Devi also had income from selling buffalo milk but during cross examination, he deposed that he did not know when his mother started buffalo business. He further deposed that he did not know what was the income of her mother from the said business. He had no document available with him to show that his mother ever had any buffaloes or, that she had any business of vending milk, or had any income from it. He did not know what income his mother was earning from selling of milk. He further deposed that his mother used to tell him that she received gifts and cash from her parents on different occasions. He did not have any documents to show that she had so received cash and gifts. He denied that during his lifetime, his father had been receiving rent from the tenants. He did not know if his father had shown income from rent in his income tax returns. He did not know whether his mother used to file income tax returns during the lifetime of his father or, whether during the lifetime his father, she had shown rent from the property in her income tax returns? He admitted that signatures of his mother were not appended on CS No. 616764/2016 No. 12 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 the sale deed. After perusing the sale deed Ex.PW1/2, he deposed that signatures of his father Sri Ram Gupta appeared on the sale deed at point A. He denied that the entire consideration of the purchase of the property came from his father. He denied that his father had purchased the property benami in the name of his mother. He denied that this property was purchased for the benefit and use of the entire family i.e. Sh. Sri Ram Gupta, his wife and his children. He denied that his mother was only a trustee of the property for the benefit of the entire family including the children. He denied that his mother had no income or money to pay the consideration of the property. During his cross examination, he was asked about a Will dated 12.04.1986 of his father. He denied that this Will was forged. The Will was placed on record and was exhibited as Ex.PW1/D6.
16. On the other hand, defendant appearing as DW1 deposed that his father was Sh. Sri Ram Gupta who worked as Manager in M/s B R Herman Mohtta Pvt. Ltd. In or about the year 1950, Sh. Sri Ram Gupta had decided to purchase a plot of land for construction of a residential house for the family. Accordingly property 26, plot no. 1/6 Roshnara Extension Scheme, Sabzi Mandi, Delhi (now known as 26/6, Shakti Nagar, Delhi) measuring 236.66 sq yards was purchased by him. He further deposed that Sh. Sri Ram Gupta was advised to purchase this property in the name of his wife to save substantial money on account of stamp duty payable for the registration of conveyance and property tax etc. Therefore, Sri Ram Gupta had purchased the said property benami in the name of his mother Smt. Basanti Devi. The said property was not self acquired property of his mother. His mother was a house wife. She was illiterate and could only sign her name with some difficulty. His mother had no business or property and CS No. 616764/2016 No. 13 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 therefore, she had no income of her own. He further deposed that his father had purchased the said property for the benefit of entire family. Smt. Basanti Devi held the said property as a trustee, standing in fiduciary capacity for the benefit of her husband and children. Smt. Basanti Devi was not owner of the said property much less its exclusive owner.
17. During his cross examination, he denied that Smt. Basanti Devi had purchased the property on 13.12.1950 and volunteered, that the said property was purchased by his father. He admitted that the sale deed was in the name of his mother. His father had told him that the property in question was purchased in the name of his mother since there was a concession on stamp duty if property was purchased in the name of a woman. He did not know if the concession on the stamp duty to a woman was applicable since the year 2003. He did not know the date, year or month when his father told him regarding the above said concession and volunteered, that his father was frequently telling this to them. He denied that his father gave no such information to them. He did not know if his father had ever challenged the sale deed in question. He deposed that he did not know the exact income of his father and volunteered, that his father was an income tax assessee. His father had shown the suit property to be his property in the income tax returns. He could not produce any income tax return filed by his father as he had no records. He denied that he was stating the above facts on hear say basis and volunteered, that he used to accompany his father to the income tax advocate Sh. K.D Sharma for filing the return, whose office was at Naya Bazar and Ashok Vihar. He deposed that he could not produce any document to show that the property in question was purchased for the welfare of the family and volunteered, that CS No. 616764/2016 No. 14 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 his father used to tell him in this regard. He denied that his mother used to reside at Sohan Ganj and used to keep four buffaloes. He denied that after shifting to Shakti Nagar, his mother kept the buffaloes even at Shakti Nagar till 1985 and volunteered, that his mother never kept any buffaloes. He denied that his mother was vending buffalo milk. He denied that from the sale of the buffalo milk, his mother used to earn Rs.1000-Rs.1200/- per month. He was not aware if his maternal grandparents had gifted cash and gold items to his mother at the time of marriage of his maternal uncles and volunteered, that his maternal grand parents were poor persons. He denied that the property in question was acquired by Smt. Basanti Devi with her own funds. He denied that Smt. Basanti Devi was not a benamidar or trustee of the suit property. He denied that Smt. Basanti Devi was the owner of the suit property in her own independent right. He admitted that a portion of the property in question at Shakti Nagar was rented in favour of a society and volunteered, that it was given to two societies jointly namely- Sudershan Thrift and Credit Society and Sudershan Co-op. Group Housing Society. He did not know if the rent of the aforesaid tenanted portion was received by his mother. He admitted that he had never received any rent thereof.
18. The fact which is unchallenged is that deceased Smt. Basanti Devi was the registered owner of this property since the date of its purchase and during her lifetime, no claim was raised by anyone that she was holding the property benami or as trustee of the family. Therefore, when a person is a registered owner and such ownership has not been challenged during the lifetime of that person, it is to be presumed that such a person was the exclusive owner of the property in her own right and onus to prove CS No. 616764/2016 No. 15 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 otherwise is upon the person who challenges it.
19. Therefore the question which needs to be decided first is, whether Smt. Basanti Devi was a benami owner of the property, holding it I trust for family members in fiduciary capacity as has been claimed by the defendant?
20. On this issue, defendant's examination in chief and cross examination has been reproduced above. The property in question was purchased in the year 1950. Defendant, as per the cross examination, was born in the year 1949. Thus, at the time of purchase of the property, he was a little less than two years. Therefore, the defendant could not have had any knowledge about the property being purchased benami by his father in the name of his mother or the source of income or assets/ valuables that his mother might have had at that time wherefrom she could have paid consideration amount of this property.
21. If his cross examination on this point is looked at, it becomes very clear that his entire case that property was purchased benami in the name of his mother by his father has been built upon hearsay i.e. the alleged information given by his father to him. He went on to state that his father had told him that the property in question was purchased in the name of his mother as there was concession on stamp duty if property was purchased in the name of a woman but he did not know the date, month or year when his father had told him about this fact and went to voluntarily state, that his father was frequently stating this to them. He then claimed that his father had shown this property to be his property in his income tax returns but could not produce any income tax return of his father reflecting the property as the property of his father. He also deposed that he could not CS No. 616764/2016 No. 16 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 produce any document to show that the property in question was purchased for welfare of the family and again said that his father used to tell him this fact. This again is a hearsay.
22. Therefore, it is very much clear that whatever has been deposed by DW1 in his examination in chief has not come from his personal knowledge and thus, cannot be considered evidence of the fact asserted by him. As far as his claim that his father had repeatedly told him that this property was purchased by him in the name of his mother and her mother was holding the property for welfare of the family, this as discussed above, is a hearsay statement and is not covered under any of the exceptions under Indian Evidence Act which would make it admissible. Therefore, no value can be attached to this piece of evidence in order to arrive at a finding that the property in question was purchased benami in the name of Smt. Basanti Devi.
23. A further noticeable fact is, that the defendant has admitted that there were two tenants in the property in question though he stated that he did not know whether his mother was receiving rent but admitted that he had never received any rent thereof. Admittedly he had been living separately from his mother and other brothers and therefore, had the property been held by the mother of the defendant for the welfare of the family, he would have had the right in the rent received by that family but he had not received any rent and therefore, this also raises a probability that Smt. Basanti Devi was not holding the property in trust or for the welfare of the family and she was not a benamidar of the property in question.
24. A further stand has also been taken by the defendant that the payment at the time of purchase of the property was made by his father and CS No. 616764/2016 No. 17 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 this shows that the property was purchased by his father and his mother was holding the property in trust and for welfare of the family and, that his mother had no independent source of income.
25. It has been argued by ld. Counsel for defendant that claim of the plaintiff was that their mother owned buffaloes and used to sell buffalo milk and earning income therefrom. Further she was getting commission from LIC. However, from the cross examination of the plaintiff, it became clear that he did not know when his mother started business of vending buffalo milk and what was her income and he did not have any document to show that his mother had any buffaloes or she did the business of vending milk or her income from it.
26. Similarly with regard to the commission of LIC, plaintiff has admitted in his cross examination that it is only after the death of his father in June 1986 that the commission started coming to his mother. Therefore, from the cross examination of PW1, it is clear that Smt. Basanti Devi had no source of income and she had no money to purchase this property.
27. On the contrary, the defendant in his evidence had stated that his father was a Manager in M/s B.R Herman Mohtta Pvt. Ltd. In the year 1950, he decided to purchase a plot of land for construction of a residential house for the family. DW1 further deposed that his father had purchased the said property benami in the name of Smt. Basanti Devi and the said property was not self acquired property of Smt. Basanti Devi.
28. Ld. Counsel for defendant has further contended that ld. Counsel for plaintiff has failed to disprove or contradict the statement of the defendant in his cross examination. Hence, it has been contended that the property was not self acquired property of Smt. Basanti Devi.
CS No. 616764/2016 No. 18 of 65(Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023
29. As far as the income of Smt. Basanti Devi from selling buffalo milk or commission of LIC or rent from the property is concerned, it is apparent that the evidence of the plaintiff where the plaintiff has not produced any other evidence to reflect that prior to the purchase of suit property, his mother was having buffaloes in the suit property and was vending buffalo milk, this part of the testimony does not raise probabilities to establish such a fact.
30. Similarly with regard to the commission or rent, these are admittedly came to be earned by Smt. Basanti Devi much after the purchase of the property which was done in the year 1950.
31. However, it is to be seen that once it is admitted that Smt. Basanti Devi was the registered owner of this property, the onus to prove that she was holding it benami, in trust of family members and in fiduciary capacity was on the party which alleged it and in this case, it was the defendant.
32. The defendant in order to prove this fact cross examined the plaintiff at length, a part of which has been argued by ld. counsel for defendant during the course of arguments. However, during the cross examination of the plaintiff, it was suggested to him and he said he did not know if his father had ever mentioned in his diaries that he was given an impression that his in-laws were moneyed person but after the marriage, he found that they had hardly any riches. He also did not know what money or gifts were received by her mother from her parents on any festivals or that time of birth of his elder brothers but deposed that his mother had told him that she had received some cash and gifts on above occasions but he did not have any document to show that his mother had received any such gifts or CS No. 616764/2016 No. 19 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 money on such occasions. He denied that the gifts and money which were given to his mother on such occasions were petty, insignificant and only symbolic. He further denied that the entire sale consideration for the purchase of the property had come from his father who had purchased the property benami in the name of his wife for the benefit of entire family or that his mother was the trustee of the property.
33. The defendant appearing as DW1 deposed that his mother was a housewife. She was illiterate. She had no business or property and therefore, had no income of her own. He further deposed that his father had purchased a property for the benefit of the entire family and Smt. Basanti Devi held the said property as trustee and was standing in fiduciary capacity for the benefit of her husband and children.
34. During his cross examination, he deposed that his date of birth is 13.01.1949. He denied that Smt. Basanti Devi had purchased the suit property on 13.12.1950 and volunteered, that the suit property was purchased by his father. He then deposed that he was not aware this his maternal grand parents had gifted cash and gold items to his mother at the time of marriage of his maternal uncle and volunteered, that his maternal grand parents were poor.
35. Therefore, on this point we have oral testimonies from both the sides. Admittedly when the property was purchased, the defendant who has claimed that it was purchased benami was little less than two years old and therefore, whether at that time his mother was having any occupation which would bring her earnings or not would not have been in his knowledge. Whether his mother had received some stridhan which had been utilized by her for the purchase of the property would again not have been in his CS No. 616764/2016 No. 20 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 knowledge and therefore, merely on the basis of subsequent activities of Smt. Basanti Devi, after the purchase of the suit property reflecting or raising a probability that she was a housewife, it cannot be accepted that prior to the purchase of the suit property also, she was a housewife and was not having any income or assets which could have utilized for the purchase of this property.
36. Even otherwise, the entire claim of the defendant that the property was purchased by Sh. Sri Ram in the name of his wife for the benefit of entire family is based on hearsay as has been discussed above. The person who could have raised such a claim was late Sh. Sri Ram who during his lifetime had never challenged the ownership of deceased Basanti Devi.
37. I further find that when a person is the registered owner of the property, raising of mere distant probabilities would not be sufficient to oust his / her absolute ownership and accept that the said person was in fact a benamidar especially when the person who allegedly had purchased the property benami had purchased the property in the name of benami holder had never challenged the right of the alleged benamidar.
38. I accordingly find that the defendant has failed to prove that Smt. Basanti Devi was holding the property in trust of family members in fiduciary capacity being benami owner. The issue no. 3 is accordingly decided against the defendant.
39. Resultantly, as it has been found that defendant has failed to prove that Smt. Basanti Devi was a benamidar of the property in question, Smt. Basanti Devi who was the registered owner of the property in question and whose ownership had never been challenged by the owner during his CS No. 616764/2016 No. 21 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 lifetime, I find that by preponderance of probabilities, plaintiff has succeeded in proving that Smt. Basanti Devi was the absolute owner of the suit property. The issue no. 1 is accordingly decided in favour of plaintiff.
ISSUE NO. 22. Whether Smt. Basanti Devi executed a gift deed dated 13.05.05 out of love and affection towards the plaintiff in his favour? OPP.
40. The claim of the plaintiff is that, being the exclusive owner of the property in question, Smt. Basanti Devi vide registered gift deed dated 13.05.2005 gifted the property in question to the plaintiff. The certified copy of registered gift deed was exhibited as Ex.PW1/3. He deposed that the said gift deed was executed by Smt. Basanti Devi in his favour without any coercion or undue influence being exercised upon her.
41. The defendant on the other hand had denied that Smt. Basanti Devi had executed this gift deed and had also claimed that the alleged gift deed did not have the signatures of Smt. Basanti Devi. He further claimed that Smt. Basanti Devi was not keeping good health and was aged about 90 years. She was left with no mental capacity to deliberate and decide to make any conveyance document and the alleged gift deed was not a product of her mind.
42. Before proceeding to the cross examination of PW1/ plaintiff on this point, it is pertinent to note that when this witness was under cross examination, an application u/s 151 CPC had been moved on behalf of plaintiff for bringing on record the admitted signatures of Smt. Basanti Devi from MCD and Punjab National Bank in order to compare them with her alleged signatures on the gift deed. The said application was allowed on 08.12.2011. Thereafter a handwriting expert report was filed on behalf of CS No. 616764/2016 No. 22 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 defendant on 26.10.2012 and the original gift deed was produced by plaintiff on 08.04.2013 and it was placed in sealed cover by the order of my learned predecessor.
43. During his cross examination, PW1/ plaintiff deposed that at the time of execution of gift deed, his mother was aged about 88 years old. She was a heart patient and was having a pacemaker implant. He denied that she was left with no mental capacity to deliberate and decide upon the execution of present gift deed. He denied that it was for this reason that he had not filed any medical records of her mother in this case.
44. During his cross examination dated 08.04.2013, he had filed the original of gift deed which was Ex.PW1/3. He further deposed that Ex.PW1/3 had the thumb impression of his mother at point DT-1 on first page, DT-2 and DT-3 on the back of first page and DT-4 on the last page. He further deposed that the thumb impressions were put by his mother in his presence and volunteered, that the thumb impressions at point DT-2 and DT-3 were made in the office of Sub Registrar and before the Sub Registrar. His mother was not wearing any gloves when she had put her thumb impressions on Ex.PW1/3, neither there was any bandage on her thumb. She did not have any handkerchief in her hand. His mother had put her bare thumb on an ink pad and then pressed thumb at points DT-1 to DT- 4 to make thumb impression.
45. At this stage, he was handed over a magnifying glass and was requested to look at the impressions at point DT-1 to DT-4 and then answer, if the impressions showed only square like formations? He declined to use the magnifying glass. Thereafter, he admitted that the thumb impressions at DT-1 to DT-4 show square like formations. It was then suggested to him CS No. 616764/2016 No. 23 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 that the thumb impressions from DT-1 to DT-4 had net like formations and he did not answer the question but volunteered, that they could be the impression of cloth on the stamp pad. He denied that DT-1 to DT-4 showed net like formation because there was a cloth medium between the thumb and ink. He denied that the cloth medium was used because the thumb impression was not made by his mother at points DT-1 to DT-4. He was then shown the photocopy of registered GPA executed by his mother Basanti Devi on 22.04.1963 and he deposed that the execution of GPA was not within his knowledge. He denied that the thumb impressions at points DT-1 to DT-4 were made by him.
46. A specific question was put to him that the impression at point DT-2 in the front area, net pattern was not there and the ridges of thumb impression were seen and he answered, that he had no knowledge of thumb impressions. He was then asked, whether he was ready to give impression of his thumb and he said that he was not ready for it. With regard to signature of Smt. Basanti Devi, he denied that her signatures had been traced on the document by giving some clever spacings. He denied that the said signatures on the gift deed were not made by his mother. He denied that the gift deed was forged by him. He denied that a comparison of his thumb impression with impression at DT-2 would show that it was his thumb impression and therefore, he had declined to give his thumb impression in the court.
47. In order to prove the aforesaid gift deed, the plaintiff further examined PW2 Sh. Inder Mal Gupta. His affidavit of examination in chief is Ex.PW2/A.
48. PW2 deposed that Smt. Basanti Devi wife of late Sh. Sri Ram CS No. 616764/2016 No. 24 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 Gupta was his mother in law. He further deposed that Smt. Basanti Devi had executed a gift deed on 13.05.2005 which was duly registered with Sub Registrar and that plaintiff had shown him photocopy of the original gift deed and he was one of the attesting witness to the said document. He further deposed that Smt. Basanti Devi had put her signatures in Hindi on each of the pages of the document and when she had signed this document, she was in good health and sound disposing mind. This document was voluntarily executed by Smt. Basanti Devi without there being any coercion or undue influence exercised upon her. He further deposed that Sh. Mangat Ram was the other witness to the said document. He further deposed that Smt. Basanti Devi and Sh. Mangat Ram had signed the document in his presence and he had signed the document as attesting witness in his presence of Smt. Basanti Devi and Mangat Ram. He had also appeared as attesting witness before the Sub Registrar, Kashmere Gate, Delhi. He identified his signatures at point C on Ex.PW1/3 and also the signatures of other attesting witness Mangat Ram and Smt. Basanti Devi, who had signed the document in his presence after going through the contents of the same.
49. During his cross examination, he deposed that affidavit Ex.PW2/A was drafted at his instructions by the counsel for plaintiff, whose name was Sh. Khosla. He signed the affidavit before oath commissioner and Sh. Khosla did not accompany him. Nobody had identified him before the oath commissioner and he had shown his identity card to him. He denied that he had signed the affidavit in the office of counsel and had left it there. He denied that he had not gone to the oath commissioner for attestation and therefore, the register of oath commissioner had no entries about this affidavit in his register. He further CS No. 616764/2016 No. 25 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 deposed that he had read the affidavit after it was typed. He admitted that he found it as per his instructions. He further deposed that he did not make any changes or correction in the affidavit. He had instructed the counsel that he was a witness to a Will, and his affidavit was drafted after he had been shown the photocopy of the Will by plaintiff. He did not know who had cut out the word 'will' in para 2 of affidavit Ex.PW2/A and changed it to 'gift deed'. In response to a specific question, whether it was correct that his affidavit was limited to the Will shown to him by plaintiff Ramesh Chand, he stated that the document was either a Will or gift deed but he was the witness to the said document. He further deposed that he had seen the document at the time of its registration and at his residence before he instructed for drafting of his affidavit. He further deposed that he was M.Com, M.Phil and LLB and again said LLB was not completed. He had read the affidavit on two occasions. He had read the document which he had attested on both the occasions. He reiterated the statements made in affidavit Ex.PW2/A as drafted were true and correct. He denied that Smt. Basanti Devi had never executed any gift deed in favour of Ramesh Chand Gupta. He deposed that he had come to depose on the asking of Sh. Ramesh Chand Gupta. He denied that he had come to depose because he had strained relationship with Ram Niwas Gupta.
50. Plaintiff also examined PW4 Naresh Kumar Parasher, UDC from the office of Sub Registrar, Kashmere Gate, Delhi.
51. PW4 deposed that he had brought the summoned record i.e. the office copy of gift deed registered in their office vide registration no. 2723, Book No. 1, Vol. No. 1400 on pages 174-179 dated 13.05.2005. The certified copy was exhibited as Ex.PW1/3 and had been issued from their CS No. 616764/2016 No. 26 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 office. He further deposed that he had compared Ex.PW1/3 with his records and the same was correct.
52. During his cross examination, he deposed that the gift deed was registered in his office before he was posted in that office. He had no personal knowledge of this case. The said gift deed was signed by Sardar Charanjit Singh, as Sub Registrar I. He admitted that he had never worked with him. He had recognized the signatures as he had seen such signatures on the registered documents for last 07 months. He admitted that the signatures were related to the period prior to his posting in the department.
53. On the other hand, DW1 in his examination in chief deposed that at the time of execution of alleged gift deed Ex.PW1/3, his mother was around 90 years of age and at that time, she was not keeping good health. She was having hypertension and other attendant problems and therefore, was regularly on medications including tranquilizers. Her eye sight had become weak and it had become difficult for her to recognize people and things. She was left with no mental capacity to deliberate and decide to make any conveyance document and the alleged gift deed was not a product of her mind. He further deposed that the medical records of Smt. Basanti Devi were in possession of plaintiff. He had served notice under Order XII Rule 8 CPC to the plaintiff to produce the medical record of the treatment of his mother. Copy of notice was Ex.DW1/2.
54. He had also got gift deed Ex.PW1/3 examined by Sh. V.C Mishra, Forensic handwriting and finger print expert. He further deposed that the plaintiff had alleged that the finger prints at points DT-1 to DT-4 were made by his mother. He had seen the said prints. They were not like prints of a human thumb. They only show some net like formations. He was CS No. 616764/2016 No. 27 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 advised that the alleged signatures of his mother on Ex.PW1/3 were not made by his mother and were intelligent tracings of her signatures. He further deposed that Ex.PW1/3 was not signed by his mother and it did not have her thumb impressions and it was a forged document. He further deposed that he had received an advance copy of witness Inder Mal Gupta in this case. The copy alongwith index was supplied from the office of the counsel for plaintiff on 05.03.2010. In para 2, third line of the copy of affidavit supplied to him, words were 'original will'. On inspection of court file, he observed that the word 'will' in the affidavit was deleted and word 'gift deed' had been substituted therein. The advance copy of said affidavit was Ex.DW1/4.
55. During his cross examination on this point, he denied that at the time of demise of his mother in the year 2008, she was healthy and mentally fit. She had undergone a pacemaker installation in the year 1991 and again in the year 2005 and at the time of fixing the second pacemaker, his mother was not mentally fit to comprehend the nature of things around her and also could not recognize her own persons. He volunteered, that she used to do her living necessities with the help of an attendant. He further deposed that he did not have any medical statement papers of his mother as she was residing with plaintiff and volunteered, that despite requests, the medical treatment record of his mother had not been provided by plaintiff.
56. The other witness regarding this document which has been examined by defendant is DW3 Sh. V. C Mishra. He deposed that he was B.Sc, LL.B and had passed post graduate certificate course of forensic science from Delhi University. He was also Assistant Professor of Forensic Science at Amity University, Noida. In the last 28 years, he had submitted CS No. 616764/2016 No. 28 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 approximately 3000 to 3200 opinions in various law courts of India and abroad and various MNCs on disputed documents. He had examined the disputed signatures and thumb impressions in the case of Ramesh Chander Gupta vs. Ram Niwas Gupta and his report was Ex.DW3/A.
57. During his cross examination, he deposed that on the day of comparison, he was in possession of the photograph containing the disputed signatures as well as the admitted signatures. He could not tell the nature of documents without seeing his reports.. Without seeing the documents, he could not tell the date of documents D1 to D5. He admitted that in his report, no date had been mentioned in respect of documents D1 to D5. He could not say whether the signatures on D1 to D5 were taken from a document which was executed in the year 2005. the admitted signatures A1 to A5 were taken from the document and this fact had been clearly mentioned on page 2 of his report. He did not have the GPA dated 22.04.1963 and the application dated 29.04.1992. He denied that he had prepared the report at the instance of defendant and could not have prepared the report in absence of the original power of attorney. He could not say whether the gap between the signatures on disputed document and admitted document was of 42 years. It was not necessary that there would always be a case of trembling signatures after a person attained the age of 80 years. He denied that since there was a difference in length of 'maatra', it could not be a case of tracing and volunteered that when copier knows the danger of exact duplication, he deliberately deviates from the shadow lines of a model genuine signatures in the act of deceit. He did not remember whether the documents from which he had taken the photographs were registered or not. He admitted that in D1 to D5, there was CS No. 616764/2016 No. 29 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 a tremor in formation of the letter 'ba' and volunteered, that though there were tremors but were at different places and were not consistent which were expected in the writing of an elderly person. He further deposed that if the tremors were inconsistent, they were always a case of tracing. He admitted that the negatives of photographs which had been enlarged by him were not on record and volunteered, that he had taken the photograph from the digital camera. He agreed the best comparison of the signatures was when they were compared from contemporary periods and volunteered, that comparative signatures had no significant role if the super imposition was found amongst many disputed signatures for which he had additionally submitted. He did not take any steps to summon the original gift deed. He admitted that he had not mentioned in his report any fix point while comparing the thumb impressions and volunteered, that it was not possible because the cloth medium was used in printing the thumbs/ fingers.
58. It has been contended by ld. Counsel for plaintiff that plaintiff has successfully proved the execution of gift deed dated 13.05.2005. Smt. Basanti Devi at the time of execution of gift deed had appeared before the Sub Registrar and she was identified by the witness before the Sub Registrar. Thereafter, after having been read over the contents of the gift deed by the Sub Registrar, she, after admitting the genuineness and correctness of the gift deed, affixed her signatures and thumb impressions before the Sub Registrar. It has further been contended that the Sub Registrar had taken the due care and caution in explaining the contents and implications of the gift deed.
59. It has further been contended that in order to prove the gift deed, plaintiff has also produced the attesting witness Sh. Inder Mal Gupta.
CS No. 616764/2016 No. 30 of 65(Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 However, while preparing his affidavit, in place of 'gift', the word 'Will' was typed which was a typographical error. However, when the affidavit was filed before the court, the necessary correction was done and the word 'Will' was scored off and word 'gift' was substituted. It has further been contended that although several questions were asked to the witness as to who had carried out the correction etc., the defendants were trying to take advantage of the said inadvertent and typographical error in the affidavit. It is further contended that Sh. Inder Mal Gupta had identified the photograph of Smt. Basanti Devi and had also identified her signatures besides stating that she appeared before the Sub Registrar and he alongwith Mangat Ram also appeared alongwith Smt. Basanti Devi. The donee of the gift i.e. the plaintiff had duly accepted the gift. The gift deed being a registered document carries a presumption of truth. In this regard, ld. Counsel has relied upon the judgment of Hon'ble Supreme Court in Abdul Rahim & Ors v. SK Abdul Zabar & Ors, 2009 (3) Civil Court Cases 037 (SC).
60. Relying upon this judgment, he has pointed towards para 14 of the judgment, which is as under:-
14. Indisputably, the deed of gift is a registered one. It contains a clear and unambiguous declaration of total divestment of property. A registered document carries with it a presumption that it was validly executed. It is for the party questioning the genuineness of the transaction to show that in law the transaction was not valid. We have noticed herein before that Razak had been receiving rent from the tenants. In fact, the respondent No. 1 in his suit claimed a decree for apportionment of rent. We would presume that Razak had been collecting rent from the tenants during the life time of his father. The agency to collect rent, however, came to end as soon as an order of mutation was passed in his favour. Apart from the fact that the Razak was allowed to continue to collect rent which having regard to the declaration made in the deed of gift must be held to be on his own behalf and not on behalf of the donor.CS No. 616764/2016 No. 31 of 65
(Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023
61. It is further submitted that the plaintiff, as an abundant precaution, had also summoned witness from the office of Sub Registrar i.e. PW4 who brought record of presentation and registration of gift deed. It is further submitted that deposition of Sh. Inder Mal Gupta on the point, whether it was a Will or gift deed was of no consequence as he had identified his signatures as attesting witness and had also appeared before the Sub Registrar and signed as an attesting witness.
62. He has further contended that the registration itself is an attestation by the registering officer and for that purpose, such attestation would be sufficient within the meaning of the act. Therefore, no further witness is required to be examined to prove the registered document. In this regard, he has relied upon the judgment of Hon'ble Supreme Court in Pentakota Satyanarayanan & Ors v. Pentakota Seetharatnam & Ors., Appeal (Civil) No. 5941-5942 of 2005 decided on 29.09.2005 and has particularly pointed towards following portion of the said judgment:-
A perusal of Ex.B9 (in original) would show that the signatures of the Registering Officer and of the identifying witnesses affixed to the registration endorsement were, in our opinion, sufficient attestation within the meaning of the Act. The endorsement by the sub-registrar that the executant has acknowledged before him execution did also amount to attestation. In the original document the executants signature was taken by the sub-registrar. The signature and thumb impression of the identifying witnesses were also taken in the document. After all this, the sub-registrar signed the deed.
63. He has therefore, contended that the registration of the gift deed itself is sufficient to prove the attestation of the gift deed as required under law.
64. He has further contended that even otherwise, the plaintiff was CS No. 616764/2016 No. 32 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 not required to bring any attesting witness for proving the gift deed. The proviso to section 68 of Indian Evidence Act very clearly provides that if a document is a registered document, there will be no requirement of proving the said document by production of attesting witness if the execution of that document has not been specifically denied. In this regard, he has relied upon the judgment of Hon'ble Supreme Court in Govind Bhai Chhoto Bhai Patel & Ors. v. Patel Raman Bhai Mathurbhai, (2020) 16 SCC
255.
65. He has contended that in the light of the aforesaid judgment, as there was no specific denial on the part of the defendant regarding the execution of gift deed and on the contrary the defendant had taken a contradictory plea that at the time of execution of the gift deed, the executor i.e. the mother of the parties was not in a fit physical and mental state to execute the said gift deed, the case at hand is covered by proviso to section 68 of the Indian Evidence Act. He has particularly pointed out to the following paras of the judgment of Govind Bhai (supra):-
23. A gift deed is required to be compulsorily attested in terms of Section 123 of the Transfer of Property Act, 1882. Similar is the provision in respect of execution of a Will which is required to be attested in terms of Section 63 of the Indian Succession Act, 1925. Section 68 of the Evidence Act makes it mandatory to examine one of the attesting witnesses for the purpose of proving of the execution of Will but such limitation is not applicable in respect of proof of execution of any document which has been registered in accordance with provisions of the Indian Registration Act, 1908, unless the execution is specifically denied.
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25. The argument of the learned counsel for the appellants is that the attesting witnesses of the gift deed are Bhikhabhai Ramabhai and Karsanbhai Dhulabhai, whereas Solanki Bhikhabhai Ramabhai and Vaid Alkaben Vinodchandra are the witnesses at CS No. 616764/2016 No. 33 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 the time of registration of the document. It is argued that the attesting witnesses of the document have not been examined which is a mandatory requirement to prove execution of the gift deed in terms of Section 68 of the Evidence Act. The High Court has held that the appellants have not denied specifically the execution of the gift deed, therefore, it was not necessary for the Donee to examine one of the attesting witnesses.
66. Per contra, ld. Counsel for defendant has contended that the alleged gift deed was not made by Smt. Basanti Devi. It has been contended that DW3 Dr. V.C Mishra had been examined on behalf of the defendant on the signatures and thumb impression made by Smt. Basanti Devi. Witness examined the alleged thumb impressions on the gift deed, which were numbered as DT1 to DT4 with two admitted thumb impressions numbered as ST1 and ST2. In his report Ex.DW3/A, he had clearly stated with regard to these thumb impressions that they clearly show ridge characteristics in their pattern area and they clearly show weaving pattern of cloth in major parts. The expert had further opined that it appeared that there was a cloth medium between thumb and ink. Weaving pattern is very clear as there were printed squares and net like weavings. He further reported that in apex area of DT2, some clear ridges were seen and that they did not match with the admitted thumb impressions of Smt. Basanti Devi. It has further been contended that in his cross examination, DW3 admitted that he had not mentioned in his report any fix points while comparing the thumb impressions and had volunteered, that it was not possible because cloth medium was used in printing the thumbs/ fingers. Therefore, no challenge had been made to the report of the expert regarding the alleged thumb impressions of Smt. Basanti Devi. ld. Counsel for defendant has further contended that plaintiff was also cross examined on the thumb impressions CS No. 616764/2016 No. 34 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 on the gift deed Ex.PW1/3 and during his cross examination, he deposed that the gift deed Ex.PW1/3 had the thumb impressions of his mother at point DT-1 on first page, DT-2 and DT-3 on the back of first page and DT-4 on the last page. Plaintiff further deposed that these thumb impressions were made by his mother in his presence in the office of Sub Registrar and that his mother was not wearing any gloves when she put her thumb impressions on Ex.PW1/3, neither there was any bandage on her thumb. She did not have any handkerchief in her hand. His mother had put her bare thumb on an ink pad and then pressed the thumb at points DT-1 to DT-4 to make thumb impressions.
67. During the cross examination of PW1, he was handed over a magnifying glass and was asked to look at the impressions at points DT-1 to DT-4 and to answer whether the impressions show square like formations. However, the witness refused to use the magnifying glass and then admitted that the impressions DT1 to DT4 show square like formations. PW1 was then suggested that DT1 to DT4 showed net like impressions of cloth on the stamp pad and he did not answer the question but volunteered that they could be the impression of cloth on the stamp pad. He then denied that DT1 to DT4 showed net like formations because there was a cloth medium between the thumb and the ink. He further denied that the cloth medium was used because the thumb impressions was not made by his mother at points DT1 to DT4. Then PW1 was specifically put a question that in the impression at points DT2 in the front area the net pattern was not there and the ridges of thumb impressions were seen and he deposed that he had no knowledge of thumb impression. He was then asked whether he would be ready to give impression of his thumb in the court for CS No. 616764/2016 No. 35 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 comparison purposes and he stated that he was not ready for it. He then denied that a comparison of his thumb impression with DT2 would show that it was his thumb impressions and therefore, he had declined to have his thumb impressions in the court.
68. Ld. Counsel for defendant has therefore argued that two factors would clearly showed that the thumb impressions on the alleged gift deed were not of Smt. Basanti Devi and these are the report of handwriting expert which shows that the cloth medium was used between paper and the thumb and that the only ridges available did not match with the admitted thumb impressions of Smt. Basanti Devi and this part of the testimony has completely remained unchallenged.
69. Another point which according to the counsel proves his case is that after the report of the handwriting expert, a doubt was raised that it was somebody else who might have affixed thumb impressions and therefore, it was specifically asked whether the plaintiff would be ready to give his thumb impressions for comparison to find out whether it was plaintiff himself who had affixed the thumb impressions and he answered in negative. He has therefore contended that the gift deed was not executed by Smt. Basanti Devi. He has further contended that the handwriting expert in his report has also reported that signatures on the gift deed has not been made by Smt. Basanti Devi and the cursory cross examination of the witness could not shake his testimony.
70. He has further contended that even otherwise, the alleged gift deed has not been proved as per the Evidence Act. In order to prove the execution of gift deed, the plaintiff had examined PW2 Inder Mal Gupta and copy of his examination in chief which was supplied to the defendant CS No. 616764/2016 No. 36 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 was Ex.DW1/4. In the said copy, the witness had deposed that the plaintiff had shown him photocopy of original Will and that he was one of the attesting witness to the said document. However, if his examination in chief filed in the court is seen, it would reflect that word 'Will' had been scored out and substituted with word 'gift'. However, this substitution was neither made by the witness and, nor on his instructions or in his knowledge as can be seen from his cross examination where he stated that he did not make any changes or corrections in the affidavit and had instructed the counsel that he was a witness to the Will and was an attesting witness to it and it is only thereafter his examination in chief was drafted after he was shown a photocopy of the Will by plaintiff Ramesh Chander Gupta. Witness further deposed that he did not know who had cut the word 'Will' in para 2 of the affidavit and changed it to 'gift'. He has thus contended that witness Inder Mal Gupta is a unreliable witness and by the testimony of witness Inder Mal Gupta, requirement of section 68 of the Indian Evidence Act has not been complied with and as the other witness to the gift deed has not been examined, the gift deed has not been proved as per the Evidence act.
71. He has further contended that even in the judgments cited on behalf of the plaintiff, it is very clear that the presumption in favour of the registered document is a rebuttable presumption and in any manner, it does not do away with the requirement of section 68 of the Indian Evidence Act. He has further contended that the judgment cited on behalf of plaintiff of Govind Bhai (supra) is not applicable to the facts of the present case as the defendant has specifically denied in the written statement that his mother had executed the alleged gift deed in favour of the plaintiff and therefore, the proviso to section 68 of the Indian Evidence Act is not CS No. 616764/2016 No. 37 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 applicable in this case.
72. I have considered the rival submission and perused the record very carefully.
73. The first point for consideration which has emerged before the court is, whether the plaintiff was required to prove the gift deed by producing at least one of the attesting witnesses in the witness box as is the requirement of section 68 of the Indian Evidence Act?
74. Ld. counsel for plaintiff relying upon the judgments of Abdul Rahim (supra), Pentakota (supra) and Govind Bhai (supra) has contended that as it was a registered document, the registration itself is the attestation and there was no requirement of producing any attesting witness. He has further contended that as there was no specific denial to the assertion that the executor had executed the gift deed, the proviso to section 68 of the Indian Evidence Act was applicable and there was no requirement of producing any attesting witness but still, an attesting witness has been produced in the form of PW2 who has categorically proved the gift deed.
75. I have considered the case law cited on behalf of the plaintiff.
76. It is correct that in the judgment of Abdul Rahim (supra), Hon'ble Supreme Court has held that a registered document carries with it a presumption that it was validly executed. However, in the very next line, hon'ble Supreme Court has observed that it was for the party questioning the genuineness of the transaction to show that in law the transaction was not valid. Therefore, I am of the considered opinion that though there may be a presumption in favour of a registered document but the said presumption is not absolute and is a rebuttable presumption. Therefore, I find that the contention of ld. counsel for plaintiff, that as the document CS No. 616764/2016 No. 38 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 Ex.PW1/3 was a registered document there was no requirement of any further proof as it had been registered by the Registrar and his registration itself was a proof of attestation, would not hold much water if the said presumption is rebutted.
77. The next contention on behalf of the plaintiff is, that there was no requirement of any attesting witness to document Ex.PW1/3 to be produced before the court as it was a registered document and its execution was not specifically denied.
78. I have considered this contention and I find that in para 3 of the plaint, plaintiff had asserted that Smt. Basanti Devi on 13.05.2005 had executed a gift deed in favour of the plaintiff which was duly registered with Sub Registrar vide registration no. 2723, Book No. 1, Volume 1400 page no. 174-179 which was registered on 13.05.2005. In the corresponding para of written statement, in reply on merits, the response is-
"it is denied that Smt. Basanti Devi on 13.05.2005 or on any date had executed any gift deed in favour of the plaintiff or it was registered, much less duly registered, with the Sub Registrar, Delhi as alleged or otherwise."
Hence, a perusal of the written statement would reveal that in the written statement contrary to the facts which were available before the Hon'ble Supreme Court in Govind Bhai (supra), there was a specific denial to the assertion that the mother of the parties had executed a gift deed in favour of the plaintiff.
79. That being the case, proviso to section 68 of the Indian Evidence Act will not come into play and the gift deed will have to be proved as per the requirements of section 68 of the Indian Evidence Act. Meaning thereby, if the witnesses were alive and available, the plaintiff CS No. 616764/2016 No. 39 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 would be required to produce at least one of the attesting witnesses in order to prove this gift deed.
80. The next question in continuation which would arise is, whether the plaintiff had proved the gift deed as per section 68 of the Indian Evidence Act?
81. To prove the said gift deed in order to fulfill the requirement of section 68 of the Indian Evidence Act, plaintiff had examined PW2 Inder Mal Gupta. Sh. Inder Mal Gupta appearing as PW2 had filed his examination in chief by way of affidavit Ex.PW2/A. While so appearing, in his examination in chief, he stated that Smt. Basanti Devi was his mother in law and that she had executed a gift deed dated 13.05.2005 which was duly registered with the Sub Registrar. He further deposed that the plaintiff had shown him photocopy of the original Will and he was one of the attesting witness to the said document. Smt. Basanti Devi had put her signatures in Hindi on each of the pages of the document and at the time when Smt. Basanti Devi had executed this document which had his signatures as attesting witness, she possessed good health and sound disposing mind. This document was executed by Smt. Basanti Devi voluntarily, without there being any coercion or pressure. That the other witness Mangat Ram had also signed as attesting witness. That Smt. Basanti Devi and Mangat Ram had signed the document in his presence and he signed the document in presence of Basanti Devi and Mangat Ram. That he had also appeared as attesting witness before the Sub Registrar, Kashmiri Gate, Delhi. While tendering his examination in chief by way of affidavit, he further stated that he identified his signatures at point C on gift deed already Ex.PW1/3 and also identified signatures of witness Mangat Ram and Basanti Devi who CS No. 616764/2016 No. 40 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 had signed the document in his presence after going through the contents of the same.
82. During his cross examination he deposed that affidavit Ex.PW2/A was drafted by ld. counsel for plaintiff on his instructions whereafter, he went to the Oath Commissioner and got it attested. He further deposed that he had read the affidavit after it was typed and found it to be as per his instructions. He further deposed that he did not make any changes and corrections in the affidavit and that he had instructed the counsel that he was a witness to a Will and was attesting witness to it and his affidavit was drafted after he was shown a photocopy of the Will by plaintiff Ramesh Chand Gupta. He did not know who had cut out the word 'Will' in para 2 of the affidavit Ex.PW2/A and changed it to 'Gift Deed'. He was then suggested that whether it was correct to say that his affidavit was limited to the Will shown to him by Sh. Ramesh Chand Gupta and he answered, that the document was either Will or gift deed but he was a witness to the said document. He further deposed that he had seen the document at the time of its registration and a copy of it at his residence before he had instructed for the drafting of his affidavit. He was M.Com, M.Phil and had also taken admission in LL.B but could not complete it. He further deposed that he had read the affidavit filed on record on two occasions. He had read the document which he had attested on both the occasions. He reiterated that the statements made in Ex.PW2/A as was drafted were true and correct.
83. In the light of this cross examination, ld. counsel for defendant has argued that this witness has completely failed to prove the attestation of gift deed Ex.PW1/3 though while tendering his examination in chief, he CS No. 616764/2016 No. 41 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 stated that he had identified his signatures on gift deed Ex.PW1/3. He has contended that DW1 had deposed that he had received the advance copy of the affidavit of PW2 where in para 2 in the third line, the words written were 'Original Will' and on the inspection of the court file, he observed that the word 'Will' in the affidavit had been deleted and words 'Gift Deed' had been substituted. DW1 exhibited the said affidavit as Ex.DW1/4. During the cross examination of this witness no dispute was raised that Ex.DW1/4 was not the copy of the examination in chief of PW2, which was supplied to the defendant in advance. He has thus contended that the cross examination of the witness would reveal that even in his cross examination, he stated that he was witness to the Will though later on he tried to improve by stating that he did not know whether it was a Will or Gift deed but he was a witness to the said document. However, if the entire cross examination of this witness is to be seen, it will be amply clear that this witness has not been able to prove the attestation of the document as is required u/s 68 of the Indian Evidence Act.
84. Countering the same, ld. Counsel for plaintiff has contended that it was a mere typographical error which was corrected later on and the witness has owned up this correction when the witness categorically stated that his signatures appeared at point C on gift deed Ex.PW1/3 and when he categorically identified the signatures of Smt. Basanti Devi and of attesting witness Mangat Ram on the said gift deed. He has further contended that the witness (PW2) when he stated in response to a suggestion that the document was either a Will or gift deed but he was a witness to the said document, has again reaffirmed the document being a gift deed. The witness had categorically denied that Smt. Basanti Devi had never executed CS No. 616764/2016 No. 42 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 any gift deed in favour of Ramesh Chand Gupta. This also reflects that witness has proved the gift deed and hence, once of the attesting witnesses have proved the gift deed, there was no requirement of any other witness being produced.
85. I have considered rival contentions.
86. The fact which has clearly emerged before the court is that in the examination in chief by way of affidavit, which was prepared, signed and affirmed by PW2, he had originally stated that the plaintiff had shown him the photocopy of the original will and he was one of the attesting witnesses to the said document and thereafter, he referred it in his examination in chief as the document or this document but did not specify the nature of the document any further. The fact which has also unambiguously emerged from the cross examination of this witness is, that after it was sworn and signed by him, he did not make any changes in the said examination in chief which is Ex.PW2/A. The witness has deposed that the affidavit was prepared on his instructions and in his cross examination, he clearly stated that after the affidavit was typed, he had read it and found it to be correct as per his instructions. He also did not know who had cut out the word 'Will' in the affidavit and changed it to 'gift deed'. He also reiterated in his cross examination that the statement made in the affidavit Ex.PW2/A, as was drafted, were true and correct.
87. Therefore, the first fact which emerges is, that the change in the affidavit was not done by this witness and as the witness states that after the preparation of the affidavit, he went to the Oath Commissioner and got it attested, it would also mean that when the affidavit was sworn before the oath commissioner, the affidavit had no changes and and the words written CS No. 616764/2016 No. 43 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 in para 2 of the affidavit were that - " The plaintiff has shown me the photo copy of the original will and I state that I was one of the attesting witness to the said document."
88. However, it is also very apparent from the record that an unauthorized change was made subsequently where the word 'will' was struck out with pen and in its stead words 'GIFT DEED' were written. This amounts to a material unauthorized alteration of the affidavit which was sworn by this witness. Therefore, this affidavit would not be an affidavit in the eyes of law and cannot be read in evidence. It is now well settled that no alteration or amendment of an affidavit is permitted under law and if such an alteration or amendment is done, the said affidavit cannot be considered as an affidavit. Reliance in this regard is placed on the judgment of Hon'ble High Court of Delhi in J.B Kansal v. Waryam Singh, (19) 1981 DLT 60. Thus, I find that on this ground alone, it has to be held by me that there is no valid/ legal examination in chief of PW2 on record and in absence of any examination in chief proving the gift deed as an attesting witness, it can be safely held that no attesting witness was produced before the court to prove the gift deed as was required u/s 68 of the Indian Evidence Act.
89. Ld. Counsel for plaintiff has vehemently contended that in the first line of the para 2 of the examination in chief, PW2 has deposed that Smt. Basanti Devi executed a gift deed on 13.05.2005 which was duly registered with Sub Registrar. Thereafter, it was a typographical error which was corrected and he has contended that the entire para has to be read in the same light.
90. However, even if it is accepted to be correct, in view of the CS No. 616764/2016 No. 44 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 unauthorized amendment in the affidavit, which is not permissible under law and the fact that the said amendment was not even made by the witness, the affidavit / examination in chief of PW2 has lost its sanctity completely and cannot be considered.
91. Secondly, if this contention has to be considered on merits and that para of the examination of chief has to be considered, it is to be seen that the witness has deposed in his cross examination that he had instructed the counsel that he was a witness to a will and he was attesting witness to it and his affidavit was drafted after he was shown the photocopy of the will by plaintiff Ramesh Chander Gupta.
92. If this is read in the light of the examination in chief of PW2, it becomes very clear that the subsequent portion of original affidavit, (Ex.DW1/4) where it was stated, he was a witness to a Will and he had seen the Will and identified his signatures on it, is not a mere typographical error as it is a clear admission by the witness that he had instructed the affidavit to be drafted to contain a statement that he was an attesting witness to a Will executed by Smt. Basanti Devi. In the light of this, even the answer of the witness to the suggestion when he stated that the document was either a Will or gift deed but he was a witness to the said document would not come to the rescue of the plaintiff. I say so because, even here the witness did not say that what he had seen and deposed about in his examination in chief was a gift deed but goes on to ambiguously state that it could either have been a will or a gift deed. It is further noteworthy that in the end, this witness stated that statements made in the affidavit, as was drafted i.e. prior to the substitution of word "will" by words "gift deed", were correct. This also established that the witness in his examination in chief had deposed CS No. 616764/2016 No. 45 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 about bring a witness to a Will and not the gift deed in question.
93. I accordingly find that PW2 has failed to prove the execution of the gift deed as per section 68 of the Indian Evidence Act. I further find that during the cross examination of this witness, it had become very clear to the plaintiff that this witness had failed to support his case and had deposed that his affidavit had been unauthorizedly changed and therefore, the plaintiff was required to bring the best evidence before the court and he could have done so by bringing the second attesting witness of the Will, but plaintiff chose not to do so and did so at his own peril. I accordingly find that as the plaintiff has failed to prove the gift deed as per the requirements of section 68 of the Indian Evidence Act, this document cannot be used as an evidence.
94. Though it has been found by me that the gift deed has not been proved as per section 68 of the Indian Evidence Act and cannot be read in evidence, still I find that the other contentions raised on behalf of the parties should also be considered and decided on merits.
95. The second rung of argument raised on behalf of the defendant to challenge the gift deed is, that Smt. Basanti Devi at the time of execution of the gift deed was not having fit mental and physical state.
96. In order to prove this fact, the defendant appearing as DW1 deposed that at the time of alleged execution of gift deed Ex.PW1/3, his mother was about 90 years old and she was not keeping good health. A pace maker was implanted to her in the year 1991-92 and another pacemaker was implanted to her in the year 2005. She had other attendant problems also including hypertension and therefore, regularly had to be administered medicines including tranquilizers. Her eye sight had become very weak and CS No. 616764/2016 No. 46 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 it became difficult for her to recognize people and things. She was left with no mental capacity to deliberate and decide to make any conveyance document and the alleged gift deed was not a product of her mind. He further deposed that all the medical records of Smt. Basanti Devi were in possession of the plaintiff and he had served a notice under Order XII Rule 8 CPC to the plaintiff to produce all the medical records of the treatment of his mother. The notice was exhibited as Ex.DW1/2 and the postal receipts were exhibited as Ex.DW1/3.
97. During his cross examination, he denied that his mother was healthy and mentally fit at the time of her demise in the year 2008 and volunteered, that she had undergone pacemaker installation in the year 1991 and again in 2005 and at the time of fixing the second pacemaker, his mother was not mentally fit to comprehend the nature of things around her and also could not recognize her known persons and that, she used to do her living necessities with the help of an attendant. He further deposed that he did not have any medical statement/ papers of his mother as she was residing with the plaintiff and volunteered, that despite requests the medical treatment record of his mother had not been provided by the plaintiff.
98. The defendant had also cross examined the plaintiff on this point.
99. During his cross examination, PW1 deposed that his mother was aged about 88 years when she had executed a gift deed. She was a heart patient and had a pacemaker implant in the year 1992. She had another pacemaker implant in the year 2005. He admitted that his mother suffered from high BP and she was taking homeopathic medicine for the blood pressure. He denied that his mother used to wear spectacles. He CS No. 616764/2016 No. 47 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 denied that she regularly suffered from hypertension and was taking medicines including tranquilizers. He further denied that her eye sight had become very weak and she did not recognize people and things. He denied that she was left with no mental capacity to deliberate and decide upon the execution of the gift deed. He denied that it was for this reason that he had not filed any medical records of his mother in this case.
100. Therefore, I find that it is successfully established that Smt. Basanti Devi at the time of alleged execution of gift deed was around 88 years of age. It is also established that she was a heart patient and had a pacemaker installed. It also stands proved that she was suffering from blood pressure and hypertension.
101. However, the question which now arises is are these the health issues which would physically or mentally decapacitate a person from taking a conscious decision regarding the property owned by him or her? Answer to this question has to emphatically in negative and does not need any further elaboration.
102. The defendant has also contended that Smt. Basanti Devi had left with no mental capacity and she could not recognize people as she had weak eye sight and has orally deposed about it. On the contrary, plaintiff has denied that Smt. Basanti Devi was left with no mental capacity to deliberate and decide upon the execution of the gift deed or that she had weak eye sight and could not recognize people and things.
103. However, I find that the mere oral deposition of the defendant cannot prove that at the time of execution of the gift deed, Smt. Basanti Devi was mentally incapable. I accordingly find that from the oral testimony of the defendant, he cannot be said to have been proved by CS No. 616764/2016 No. 48 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 preponderance of probabilities that at the time of execution of the gift deed, Smt. Basanti Devi was incapable of executing the gift deed. Though it has been contended on behalf of defendant that he could not produce any documentary evidence of his mother as all the medical documents of Smt. Basanti Devi were in possession of the plaintiff who despite service of notice under Order 12 Rule 8 CPC, did not produce the said documents and therefore, an adverse presumption has to be drawn against the plaintiff and it has to be presumed that as Smt. Basanti Devi was mentally incapable of executing the alleged gift deed, the plaintiff deliberately did not produce her medical documents.
104. In the reply to the notice u/O 12 Rule 8 CPC, which is Ex.DW1/3, the plaintiff had stated he had the medical documents of Smt. Basanti Devi but at the time of giving the reply, he was not in possession of those documents. He had specifically given a reason for the same when he stated that he had not maintained the medical record of Smt. Basanti Devi after her passing away as they would serve no further purpose and the documents mentioned were last in his possession sometime around 2008.
105. During the cross examination of PW1, it was not even put to him that the averments made in the reply Ex.DW1/3 to the notice Ex.DW1/2 were incorrect.
106. On the other hand, I find that the reply Ex.DW1/3 is on the lines what a pragmatic person would do. I say so because the plaintiff had stated in his reply that he did not keep the record any further because his mother had already expired and certainly this seems to be a very probable explanation for not having the record at the time of giving the reply and not possessing the record.
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107. I accordingly find that no adverse presumption can be drawn against the plaintiff as has been claimed on behalf of the defendant. I accordingly find that the defendant has failed to prove that Smt. Basanti Devi had not mental capacity to execute the alleged gift deed Ex.PW1/3.
108. The next contention which has been raised at bar by ld. Counsel for defendant is, that the signatures and thumb impressions of Smt. Basanti Devi as appearing on gift deed Ex.PW1/3 do not belong to her and they are forged by someone.
109. In this regard, ld. Counsel for defendant has contended that defendant has examined DW3 Dr. V. C Mishra on signatures and thumb impressions allegedly made by Smt. Basanti Devi on this gift deed. The witness is a qualified witness who is Ph.D in forensic science as well as post graduate in forensic science and his qualification has not been challenged on behalf of the plaintiff. He has further contended that with regard to thumb impression, the witness examined the alleged thumb impressions from the gift deed and numbered them as DT1 to DT4 and he compared them with two admitted thumb impressions which were numbered as ST1 and ST2. In his report, the witness opined that the thumb impressions clearly show a weaving pattern of cloth on the major parts and it appears that there was a cloth medium between thumb and ink. A weaving pattern is very clear as there are imprinted squares and net like weaving. He further opined that in the apex area of DT2, there were some clear ridges were seen and they did not match with the admitted thumb impressions of Smt. Basanti Devi. In this regard, the entire cross examination of this witness was where he was put a suggestion and he admitted that he had not mentioned in his report any fix point while CS No. 616764/2016 No. 50 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 comparing the thumb impressions but explained that it was no possible because the cloth medium was used in printing of thumb/ fingers. He has further contended that the plaintiff was also cross examined on these thumb impressions who produced the original of Ex.PW1/3 in the court and stated that it had the thumb impressions of his mother at point DT1 on the first page, DT2 and DT3 on the back of the first page and DT4 on the last page. Plaintiff deposed that these thumb impressions were put by his mother in his presence and DT2 and DT3 were made in the office of Sub Registrar. He has further contended that in view of the report of the finger print expert, he was specifically asked whether his mother was wearing gloves at the time when she put thumb impressions on Ex.PW1/3 and he answered in negative. He also stated that there was no bandage on her thumb. He also deposed that his mother did not have handkerchief in her hand and deposed that his mother had put her bare thumb on the ink pad and then pressed the thumb at points D1 to DT4 to make thumb impressions. He further contended that this stage, the witness was handed over a magnifying glass to answer whether the thumb impressions at DT1 to DT4 showed only square like formations. He refused to use magnifying glass but then admitted that the thumb impressions at DT1 to DT4 do show square like formations. He was then suggested that the thumb impressions from DT1 to DT4 showed net like impressions of cloth on the stamp pad and he did not answer the question but volunteered that they could be impressions of the cloth of the stamp pad. He denied that DT1 to DT4 showed net like formations because there was a cloth medium between the ink and the thumb. He also denied that a cloth medium was used to put thumb impressions because the thumb impressions were not made by his mother.
CS No. 616764/2016 No. 51 of 65(Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 He was then asked to give his thumb impressions and he denied to give his thumb impressions and then denied that the comparison of his thumb impressions with DT2 would show that it was his thumb impression and therefore, he declined to give his thumb impressions in the court.
110. Ld. counsel for defendant has further contended that with regard to the signatures of Smt. Basanti Devi on the alleged gift deed, Dr. V.C Mishra in his report Ex.DW1/3 had reported that the signatures on the gift deed had not been made by Smt. Basanti Devi and his cursory cross examination could not shake his testimony.
111. Countering the same, ld. counsel for plaintiff has contended that the report of the handwriting expert is mere an opinion and in absence of any corroboration, no reliance can be placed on that report. He has further contended that admittedly the hand writing expert had obtained the photographs of the thumb impressions and signatures of Smt. Basanti Devi from the photocopy of the gift deed which was on record. He has further contended that it is a well settled law that a handwriting expert and a finger print expert cannot base his report on the basis of photos taken from a photocopy and such are report has to be discarded. In this regard, ld. counsel for plaintiff has relied upon a judgment of Hon'ble Madhya Pradesh High Court in Abhay Jain v. State of Madhya Pradesh & Anr. in MRC No. 431/2014 as delivered on 06.08.2018 wherein Hon'ble Madhya Pradesh High Court has held that photocopy of document itself is neither a primary nor secondary evidence and therefore, it would not be advisable for experts to take photograph of photocopies and base their opinion on such photocopies. Hon'ble Madhya Pradesh High Court has further held that expert opinion should always be based on study of original documents CS No. 616764/2016 No. 52 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 and when an expert forms his opinion on the basis of photocopies, such report cannot be relied upon in absence of any corroborative evidence. While relying upon the judgment of Hon'ble Supreme Court in Chennadi Jalpathi Reddy v. Baddam Pratapa Reddy, 2020 (1) CLJ 351 (SC), ld. counsel for plaintiff has contended that Hon'ble Supreme Court has held that it is now well settled that the court must be very cautious while evaluating the expert evidence which is weak type of evidence and not substantive in nature. He has further contended that as per the dictum of Hon'ble Supreme Court, it is not safe to solely rely upon such evidence and an expert opinion cannot be considered as conclusive proof. He has therefore contended that expert opinion filed by the defendant which is based upon the samples taken by the expert from the photocopy is to be discarded altogether.
112. Countering the same, ld. counsel for defendant has contended that as already argued, the finger print expert has proved that the thumb impressions on the alleged gift deed did not belong to Smt. Basanti Devi which also in fact stands proved through the cross examination of the plaintiff. He has further contended that thumb impressions are thumb impressions whether they are found to be affixed on a photocopy or on original document and therefore, it would not make any difference if the thumb impressions for comparison were taken from photocopy of the gift deed. He has further contended that the report of the finger print expert has to be kept on higher scale and it has not been settled by Hon'ble Supreme Court in Jaspal Singh v. State of Punjab, 1979 Lawsuit (SC) 249 that the science of identifying thumb impressions is an exact science and does not admit any mistake or doubt.
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113. I have considered the rival submission and perused the record very carefully.
114. I must first of all observe that all the judgments cited by ld. counsel for plaintiff including Abhay Jain (supra) and Chennadi Jalpathi Reddy (supra) are on the report of a handwriting expert and on the opinion given by such expert on the handwriting and therefore, these judgments cannot be applicable to the opinion of finger print expert. The science of finger print examination is almost exact and therefore, such report unless discredited by cross examination should be relied by the court.
115. However, in the present case, the opinion given by the handwriting print expert with regard to the thumb impressions of Smt. Basanti Devi is even evident to naked eye. I have seen the original gift deed and thumb impressions of Smt. Basanti Devi at points DT1 to DT4. It is clearly evident that all the thumb impressions cannot be seen at all and do not appear to be thumb impressions except for the shape of a thumb because except a netting pattern, no thumb print impressions can be seen. This is not only the opinion of this court or the handwriting expert but this is also an admission on the part of the plaintiff when during his cross examination after denying to use a magnifying glass, he admitted that "the thumb impressions at DT-1 to DT-4 show square like formations."
116. Thus, the opinion of handwriting expert, the admission of the plaintiff and my own opinion after seeing the gift deed with my own eyes raises a high probability that a deliberate attempt was made to conceal the thumb impressions of the person who had affixed these thumb impressions at points DT1 to DT4 on the gift deed Ex.PW1/3 so that they could not be available for a clear comparison and the probability raised on behalf of the CS No. 616764/2016 No. 54 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 defendant that in order to do so, a cloth was put in between the thumb and the paper has to be accepted.
117. The plaintiff had tried to explain this cloth pattern being reflected on the alleged thumb impressions of Smt. Basanti Devi by stating that "these net like formations could be impressions of the cloth on the stamp pad" and thus, he tried to state that the impression of the cloth of the stamp pad was imprinted on the thumb of Smt. Basanti Devi when she put her thumb on the stamp pad and it was then imprinted on the paper i.e. the gift deed Ex.PW1/3.
118. However, this explanation also seems very weak because except the thumb impressions of Smt. Basanti Devi, all other thumb impressions on this gift deed including those of witnesses and that of the plaintiff on the last page are very clear.
119. I accordingly find that by preponderance of probabilities, the defendant has succeeded in proving that the thumb impressions on the gift deed Ex.PW1/3 are not of Smt. Basanti Devi.
120. However, with regard to the signatures of Smt. Basanti Devi appearing on this document, I find that report of handwriting expert cannot be relied upon because the handwriting expert had taken the photographs of signatures from the photocopy of gift deed for comparison and the case is squarely covered by the judgments cited by ld. counsel for plaintiff and thus, by virtue of this report, it cannot be accepted that the defendant has succeeded in proving that the signatures on the gift deed are not of Smt. Basanti Devi.
121. However, as the testimony of attesting witness has been found to be no testimony at all and no second attesting witness has been brought CS No. 616764/2016 No. 55 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 by the plaintiff, I find that the signatures of Smt. Basanti Devi on gift deed Ex.PW1/3 are also under a shadow of doubt.
122. In view of my above discussion, I find that the plaintiff has failed to prove that Smt. Basanti Devi had executed any gift deed dated 13.05.2005 for gifting the property in question to him. The issue no. 2 is accordingly decided against the plaintiff.
ISSUE NO. 4(4) Whether there was a family settlement by the family of Smt. Basanti Devi in the year 1991 was which implemented with immediate effect in favour of the defendant in whose favour the suit property was settled as alleged in para 8 to 11 of the preliminary submissions to the written statement. If so, its effect? OPD
123. As an alternative plea, the defendant had claimed that there was a family settlement in the family of Smt. Basanti Devi in the year 1991 which was also implemented. He had further claimed that by virtue of this family settlement, he was exclusively given two rooms and a kitchen on the first floor and a miani between the staircase of first floor and ground floor alongwith common user of one bathroom and two toilets on the first floor of the said property which had been in his possession since the year 1978.
124. The onus to prove this fact was on the defendant who had pleaded so. Defendant appearing as DW1 deposed that in the year 1991, his mother called her sons for a meeting to settle the family property. His elder brother Jagdish Rai Gupta had expired in March 1978 and therefore, his sons namely Sh. Anand Gupta and Sh. Sanjay Gupta had attended the meeting. The other four sons of Smt. Basanti Devi namely Sh. Shyam CS No. 616764/2016 No. 56 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 Sunder Gupta, Sh. Om Prakash Gupta, Sh. Ramesh Chander Gupta and the defendant had attended this meeting. The family had two properties. One was block 26, plot no. 1/6, Roshnara Extension Scheme, Sabzi Mandi, Delhi now known as 26/6 Shakti Nagar, Delhi bearing Municipal No. 12062 and the other was A-41, Ashok Vihar, Phase I, Delhi. The family settlement was arrived and he gave in his examination in chief the complete details of the share which were given to each of the brothers and deposed that he was in exclusive possession of two rooms, a kitchen on the first floor and a miyani between the staircase of the ground and first floor alongwith the common user of one bathroom and two toilets on the first floor and this portion came in his share. He further deposed that two guest rooms on the second floor of the property and some portion on the ground floor had remained for common use. He further deposed that by virtue of this family settlement, he became exclusive owner of the portion assigned to him.
125. During his cross examination on this issue, he admitted that a kalandra u/s 107/150 IPC (sic) Cr.P.C was registered in the year 1994 at PS Roop Nagar but he did not remember who were the parties to that kalandra. He did not remember if he had appeared as a witness in the said case. He admitted that Ex.DW1/PX was the certified copy of his statement in the above said dispute. He did not remember if he had made the statement in DD no. 30 dated 05.01.1994 of PS Roop Nagar. He denied that no family partition had taken place in the year 1991 and not distinct shares in the property were allotted to anyone including him.
126. Defendant also examined DW2 who was the son of one of the brothers of the defendant namely Jagdish Rai Gupta. DW2 had also CS No. 616764/2016 No. 57 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 deposed that a family partition had taken place.
127. However, without any elaborate discussion on the evidence, I find that there is a document which is Ex.DW1/PX which the defendant had admitted during his cross examination to be his statement. The said statement is dated 18.07.1994 i.e. almost three years after the alleged partition which according to the defendant had taken place. Noteworthy fact is, that in this statement, defendant had stated that all the brothers are residing in their different portions. However, he categorically stated that though the five brothers, their families and their mother are residing in different portions but there has been no legal partition. Thus, in the year 1994, the defendant had made a statement which has been admitted by him where he stated that there had been no partition in the suit property.
128. The defendant was confronted with this document but he did not put forward any explanation and hence it has to be read as it had been recorded at that time.
129. It is further to be noticed that DW1 in his examination in chief had deposed that the family meeting was called by his mother in the year 1991 but in the cross examination, he deposed that Smt. Basanti Devi had called a meeting to settle the family property in February or March 1997 which is contradictory to his statement made in examination in chief.
130. Thus, I find that in view of this admission of subsequent period that there had been no formal partition of the property, the statement of defendant to the effect that there had been a family partition in the year 1991 or of DW2 are unreliable and I accordingly find that the defendant has failed to prove this issue. The issue is accordingly decided against the defendant.
CS No. 616764/2016 No. 58 of 65(Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 ISSUE NO. 5 (5) Whether the defendant is in adverse possession of the suit property as alleged in para 14 of the written statement. If so its effect? OPD
131. The defendant had taken another alternative plea that he has been in adverse possession of the suit property. The onus to prove this issue was upon the defendant.
132. While appearing as DW1, he deposed that he is in possession of the suit property as owner from 1978. His possession in the suit property is continuous, peaceful and without any interruption. He further deposed that his possession and exercise of right of ownership in it had been open and adverse to everybody else including the plaintiff, who lived at the ground floor of the property. He further deposed that he had differences with his mother and she had given advertisements about the differences and his bedakhali from her estate. One such advertisement Ex.PW1/D5 was published in the year 1996. His possession in the suit property became adverse from the date of publication of the said advertisement. He further deposed that another such advertisement was published in Navbharat Times on 07.07.1997. The same was exhibited as Ex.DW1/1.
133. He was not cross examined.
134. Further during the cross examination of PW1, he was shown the photocopy of the document i.e. a bedakhli notice filed by him. PW1 stated that this was a notice published in Navbharat Times in or about the year 1996 but he did not have the copy of the newspaper containing that advertisement. The document was then exhibited as Ex.PW1/D5 for identification. When he was recalled for cross examination, he deposed that he had not brought the original of Ex.PW1/D5 i.e. the bedakhli notice and CS No. 616764/2016 No. 59 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 he denied that he had not produced the original as it did not contain the signatures of Smt. Basanti Devi. He denied that Smt. Basanti Devi had never caused this notice to be published and it was published at his instance. He admitted that when the said notice was published around 1996, the defendant was residing in the suit property. He did not know if his mother gave any notice or initiated any proceedings to get the defendant evicted from the suit property and volunteered, that his mother was continuously asking the defendant to leave and vacate and the defendant on this issue used to resist and fight with his mother. He denied that the defendant had always been insisting upon his title in the suit property.
135. Therefore, in view of the unrebutted testimony of the plaintiff and in view of the exhibition of these documents, though they are photocopy but their exhibition was never objected by the plaintiff, it stands proved that Smt. Basanti Devi had issued a public notice whereby she had disinherited the defendant.
136. The question which would now arise is, would the defendant's possession of the property after such a notice become adverse to that of his mother and then ripen into ownership by way of adverse possession 12 years thereafter?
137. In this regard, ld. counsel for defendant during the course of arguments and in the written submissions had submitted that it is obvious that possession of the defendant in the suit property became adverse to Smt. Basanti Devi at least from 07.07.1997. It was continuous and peaceful as no proceedings had been initiated at any time to evict the defendant from the suit property. 12 years period expired on 06.07.2009 and the defendant from that date has perfected his title to suit property by adverse possession.
CS No. 616764/2016 No. 60 of 65(Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 The suit was filed on 17.07.2009 and is clearly beyond the period of limitation. On the face of it, from the arguments filed by the defendant, it is very clear that the defendant has counted the period of adverse possession which was not pleaded in the written statement from 07.07.1997.
138. It is noticeable that adverse possession of a party is against the owner. The owner Smt. Basanti Devi had expired on 20.07.2008 and therefore, till her death, defendant had not perfected his title by way of adverse possession as 12 years period had not elapsed.
139. The claim of the plaintiff to the property in question would only start either from the date of execution of the alleged gift deed or after the death of his mother.
140. I accordingly find that by his own case, the defendant cannot claim to have become owner of the suit property by way of adverse possession.
141. However, there are legal arguments which have been raised on behalf of both the sides.
142. Ld. Counsel for plaintiff has relied upon the judgment of Hon'ble Supreme Court in Thakur Kishan Singh v. Arbind Kumar 1994 SCC (6) 591 and Maria Margarida Sequeira Fernandes & Ors. v. Erasmo Jack De Sequeira (Dead) through LRs, (2012) 5 SCC 370 and has claimed that once a licensee is always a licensee and can never claim hostile possession as he was put in possession by the permission of the owner and thus, can never become owner by way of adverse possession.
143. Ld. Counsel for defendant has also relied upon the judgment of Hon'ble Supreme Court in Thakur Kishan Singh (supra).
144. In Thakur Kishan Singh (supra), Hon'ble Supreme Court CS No. 616764/2016 No. 61 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 had held as under:-
5.As regards adverse possession, it was not disputed even by the trial court that the appellant entered into possession over the land in dispute under a licence from the respondent for purposes of brick-kiln. The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner.
Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession. Apart from it, the appellate court has gone into detail and after considering the evidence on record found it as a fact that the possession of the appellant was not adverse. The learned counsel, despite strenuous argument, could not demolish the finding of adverse possession. Attempt was made to rely on the evidence led on behalf of the parties and the evidence of the Commissioner who prepared the map. We are afraid that such an exercise is not permissible even in second appeal, what to say of the jurisdiction exercised by this Court under Article 136 of the Constitution. Further, we do not find that the appellant has suffered any injustice which requires to be remedied by this Court.
145. I have considered the judgments cited at bar. I find that the judgment of Thakur Kishan Singh (supra) does not establish a legal position that a licensee who was put in possession of a property under the permission of the owner can at a subsequent stage become owner by virtue of adverse possession.
146. From the pleadings of the parties especially of the defendant, it is apparent that the defendant came to be in possession of the suit property by virtue of being the son of deceased Smt. Basanti Devi and thus, it is apparent that it was under her permission and consent that he obtained the possession of the suit property. Therefore, his status can be said to be that of a licensee.
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147. It is now well settled that a party which has come into possession of a property under the permission of the owner cannot subsequently become owner by adverse possession whatsoever may be the length of such possession.
148. The claim of the defendant is that Smt. Basanti Devi had disinherited him and from that date, his possession in the property became hostile and adverse to the interest of Smt. Basanti Devi.
149. However, I do not agree with this contention raised on behalf of the defendant. Merely because that Smt. Basanti Devi had disinherited him, it cannot be accepted that she had withdrawn her permission to the defendant to stay in the suit property. The notice whereby the defendant was disinherited can only be sen to the extent to which the intention in the said notice has been expressed. Therefore, Smt. Basanti Devi's intention was that the defendant may not inherit any of her properties but through this notice, it cannot be inferred that at that time, she intended to withdraw her permission for the defendant to stay in the suit property. Therefore, the defendant was required to show that Smt. Basanti Devi had expressly withdrawn the permission and asked him to vacate the suit property and he refused to vacate the property and it is only thereafter, after a passage of 12 years, that the defendant would be able to claim ownership by virtue of adverse possession.
150. I accordingly find that defendant has failed to establish his ownership by way of adverse possession. The issue is accordingly decided against the defendant.
ISSUE NO. 6:
(6) Whether the suit has not been properly valued for the purposes of CS No. 616764/2016 No. 63 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023 court fee and jurisdiction? OPD.
151. The onus to prove this issue was upon the defendant. While appearing as DW1, defendant deposed that the value of the suit property on the date of filing of the suit was more than Rs.20 lacs. He had obtained the copy of the statement filed by plaintiff in his office in the Services Department of the Govt. of NCT of Delhi in January 2006 and the plaintiff had given the market value of the suit property at Rs.1 crore. The said statement was exhibited as Ex.PW1/D1.
152. However, a perusal of the record shows that Ex.PW1/D1 is the statement u/s 281 Cr.P.C recorded before Ld. MM and the perusal of the said statement reflects that there is no such statement that property is worth Rs.1 crore and it is not the statement given by the plaintiff in his office in Services Department of Govt. of NCT of Delhi in January 2006 as has been claimed by the defendant.
153. Though the testimony of defendant that the value of the property was more than Rs.20 lacs has been unrebutted, however, from the testimony it is also to be seen that the defendant has based his claim on a document which according to him was an information which was filed by the plaintiff with his department where he had stated the value of the property of which the suit property forms a part. The defendant had exhibited that document as Ex.PW1/D1. However, Ex.PW1/D1 is not the document which the defendant claims it is and thus, there is no document which would reflect that plaintiff had himself stated to his department that value of the property, of which suit property forms a part was Rs.1 crore and thus, it cannot be deduced that value of the suit property on the proportional basis would be more than Rs.20 lacs.
CS No. 616764/2016 No. 64 of 65(Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023
154. Thus, the issue is decided against the defendant. ISSUE NO. 7:
(7) Whether the plaintiff is entitled for possession of the suit property?
OPP.
155. The onus to prove this issue upon the plaintiff. However, as in issue no. 2, it has been found that plaintiff has failed to prove that the property in question was gifted to him by his mother, thus the plaintiff is not entitled to possession of the suit property. The issue is accordingly decided against the plaintiff.
ISSUE NO. 8(8) To what amount if any, the plaintiff is entitled as mesne profits for use and occupation of the premises by the defendant and at what rate and to which period? OPP
156. As the plaintiff has not been found entitled to possession of suit porperty, he cannot claim mesne profits for use and occupation of the suit property by the defendant. The issue is accordingly decided against the plaintiff.
RELIEF
157. In view of my above findings, I find that the suit of the plaintiff is liable to be dismissed. The suit of the plaintiff is accordingly dismissed with cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court (PARVEEN SINGH) on 18.01.2023. ADJ-11, Central District, (This judgment contains 65 pages and Tis Hazari Court, Delhi each page bears my signature.) CS No. 616764/2016 No. 65 of 65 (Parveen Singh) ADJ-11/Central/THC/Delhi/18.01.2023