Delhi District Court
Kamal Kant vs Ms. Rekha Mohan on 20 July, 2023
IN THE COURT OF MS. RUCHIKA SINGLA,
ADDL. DISTRICT JUDGE-03, NORTH-WEST DISTT.,
ROHINI COURTS, DELHI
CS No. : 575976/16
CNR no. DLNW01-000273-2011
In the matter of:
Kamal Kant
S/o Sh. W.R. Mohan
R/o F-10/4, Model Town,
Delhi ........ Plaintiff
VERSUS
Ms. Rekha Mohan
D/o Sh. W. R. Mohan
R/o Mezzanine Floor, F-10/4,
Model Town, Delhi
....... Defendant
Date of insitution: 20.08.2011
AND
CS No. : 578940/16
CNR no. DLNW01-006877-2016
In the matter of:
Ms. Rekha Mohan
D/o Sh. W. R. Mohan
R/o Mezzanine Floor, F-10/4,
CS DJ 575976/16 Kamal Kant v. Rekha Mohan
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Model Town, Delhi
........ Plaintiff
VERSUS
1.Kamal Kant S/o Sh. W.R. Mohan R/o F-10/4, Model Town, Delhi
2. Smt. Sunita Walia (deceased) Through LR's
a) Abhishek Walia S/o Late Sh. Rajesh Kumar Walia R/o H no. 23, Second Floor, Priyadarshani Vihar, Near Kalyan Vihar Part-I, Delhi
b) Varun Walia S/o Late Sh. Rajesh Kumar Walia R/o H no. 9, Gali no. 18, Bengali Colony, Delhi-84.
c) Jyoti Bharaj W/o Sh. Satish Kumar Bharaj D/o Rajesh Kumar Walia R/o H. no. 414, Sec-16A, Faridabad, Haryana.
3. Smt. Neelam Aggarwal W/o Sh. Pramod Kumar Aggarwal R/o F-11/12, Model Town-II, Delhi-09.
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4. Smt. Rachna Bisseur
W/o Late Sh. Raj Kumar Bissessur
R/o H no. 3, Clement Charouse Streed,
Beau Basin, Mauritius
....... Defendants
Date of insitution: 13.09.2011
Date on which judgment was reserved : 14.07.2023
Date of pronouncement of the judgment : 20.07.2023
C O N S O LI DAT E D J U D G M E NT
1. By way of this consolidated judgment, I shall decide the above two suits as they are inter-connected. The parties shall be referred as per their rank and status in the first suit i.e. Kamal Kant Vs. Rekha Mohan.
2. The plaintiff Kamal Kant filed a suit for permanent injunction, recovery of possession with mesne profits, damages and recovery of arrears of rent. The plaintiff Kamal Kant alleged that he was the absolute owner of the property bearing no. F-10/4, Model Town, Delhi (hereinafter referred to as the 'suit property') by virtue of a Gift Deed dated 17.06.2010 which was executed by his father Sh. W.R. Mohan in his favour. The said Gift Deed was duly registered before the Sub-Registrar, Pitampura, Delhi. It was stated that the property was purchased by Sh. W.R. Mohan vide a registered Sale CS DJ 575976/16 Kamal Kant v. Rekha Mohan CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35 Deed dated 13.07.1959 from his own funds and income. Hence, Sh. W.R. Mohan was the absolute owner of the suit property and the same was his self acquired property. Hence, he was competent to execute the Gift Deed in the favour of the plaintiff Kamal Kant.
3. It is submitted that the plaintiff Kamal Kant and the defendant Rekha Mohan are real brother and sister. The defendant Rekha Mohan was married to one Sh. Radha Krishan Ram Narayan in the year 1984 who unfortunately expired in 1995. Thereafter, the father of the parties, Sh. W. R. Mohan allowed the defendant Rekha Mohan to reside in the suit property in the year 2001 as a licensee on the mezannine floor. However, the defendant Rekha Mohan had a quarrelsome nature and due to the problems which were created by her, the father of the parties transferred the suit property in the favour of the plaintiff Kamal Kant. The mother of the parties Smt. Shakuntla had also lodged police complaints against the defendant Rekha Mohan at PS: Model Town in the year 2009-2011. However, as the conduct of the defendant Rekha Mohan did not change, the plaintiff Kamal Kant served a legal notice dated 08.07.2011 against the defendant Rekha Mohan calling upon her to vacate the suit property but she did not do so. Hence, the present suit was filed.
4. Summons of the suit were served upon the defendant Rekha Mohan. She appeared and filed the WS. In the WS, she CS DJ 575976/16 Kamal Kant v. Rekha Mohan CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35 admitted that the suit property was in the name of her father. However, it was stated that the Gift Deed which was allegedly executed by their father in the favour of the plaintiff Kamal Kant was not valid as the father of the parties had no right to dispose of the property as he had purchased the property in question by selling the ancestral property at Punjab. Further, it was alleged that the Gift Deed was got executed from the father of the parties under undue influence/ drugs which the plaintiff had injected to their father. Hence, it was submitted that the alleged Gift Deed was not a valid document and the plaintiff Kamal Kant had no right to get the property vacated from the defendant Rekha Mohan.
5. Soon after filing of the first suit, the defendant Rekha Mohan brought her own suit before the court wherein she sued the plaintiff Kamal Kant for declaration and permanent injunction. In the plaint, she reitereated her allegations as mentioned above. Further, she stated that the defendant no. 2 i.e. the father of the parties was not in a fit state of mind and health. It was stated that the Gift Deed was executed under undue influence and that at the time of the execution of the same, he was not mentally fit. Hence, the defendant Rekha Mohan sought a declaration of the Gift Deed as null and void. She further sought the relief of permanent injunction that the plaintiff Kamal Kant should be restrained from dispossessing her forcibly or from creating any third party interest in the suit property.
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6. In the WS filed by the plaintiff Kamal Kant to the said plaint, the facts as mentioned in his own suit were reiterated.
7. In the suit titled Rekha Mohan Vs. Kamal Kant, vide an order dated 22.02.2014, the other sisters of the parties were added as defendants. Thereafter, they were summoned. The defence of the defendant no. 3 was struck off vide order dated 15.09.2015. Subsequently, the defence of the defendant no. 5 was also struck off vide order dated 30.03.2016. The WS was filed by the defendant no. 4 Smt. Neelam Aggarwal. Later on, the defendant no. 2 expired and a fresh memo of parties was filed, as per which, Smt. Neelam Aggarwal became defendant no. 3. In the WS, the defendant Smt. Neelam Aggarwal admitted the facts of the case as alleged by the plaintiff Ms. Rekha Mohan. She further prayed for the declaration of the Gift Deed in the favour of Sh. Kamal Kant as null and void.
8. Replications were filed by both the parties in their respective suits whereby they denied the allegations made in the respective written statements.
9. During the course of the trial, Sh. W.R. Mohan was examined by the Ld. Predecessor Court under Order 10 CPC on 13.03.2012 wherein he stated that he had executed the Gift Deed in the CS DJ 575976/16 Kamal Kant v. Rekha Mohan CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35 favour of the plaintiff Kamal Kant out of his own free will, love and affection.
10. After completion of pleadings of both the parties in case titled as: Kamal Kant Vs. Rekha Mohan, following issues were framed by Ld. Predecessor of this Court vide order dated 09.05.2014:-
"(1) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP.
(2) Whether the plaintiff is entitled to damages, if so at what rate? OPP.
(3) Whether the plaintiff is entitled to a decree of possession as prayed for? OPP.
(4) Whether the suit of the plaintiff is not maintainable?
OPD.
(5)Relief."
11. After completion of pleadings of both the parties in case titled as: Rekha Mohan Vs. Kamal Kant & Ors., following issues were framed by Ld. Predecessor of this Court vide order dated 20.09.2017:-
"(1) Whether the plaintiff is entitled for decree of declaration i.e. Gift Deed dated 17.06.2010 registered on 26.06.2010 is having no value in the eyes of law and is null and void? OPP.
(2) Whether the plaintiff is entitled to decree of permanent injunction, as prayed? OPP.
(3) Whether the suit of the plaintiff seeking declaration is CS DJ 575976/16 Kamal Kant v. Rekha Mohan CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35 not maintainable for the want of prayer/ relief of cancellation of Gift Deed? OPD-1.
(4) Whether the suit of the plaintiff is barred by Section 41
(h) as efficacious remedy of partition of the property is not claimed? OPD-1.
(5)Relief."
12. For ease, the issues are re-numbered as under:
"(1) Whether the plaintiff Kamal Kant is entitled to the relief of permanent injunction as prayed for? OPP.
(2) Whether the plaintiff Kamal Kant is entitled to damages, if so at what rate? OPP.
(3) Whether the plaintiff Kamal Kant is entitled to a decree of possession as prayed for? OPP.
(4) Whether the suit of the plaintiff Kamal Kant is not maintainable? OPD.
(5) Whether the plaintiff Rekha Mohan is entitled for decree of declaration i.e. Gift Deed dated 17.06.2010 registered on 26.06.2010 is having no value in the eyes of law and is null and void? OPP.
(6) Whether the plaintiff Rekha Mohan is entitled to decree of permanent injunction, as prayed? OPP.
(7) Whether the suit of the plaintiff Rekha Mohan seeking declaration is not maintainable for the want of prayer/ relief of cancellation of Gift Deed? OPD-1.
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(8) Whether the suit of the plaintiff Rekha Mohan is barred by Section 41 (h) as efficacious remedy of partition of the property is not claimed? OPD-1.
(9)Relief."
13. Vide order dated 20.09.2017, the Ld. Predecessor court passed an order in civil suit titled as: Rekha Mohan Vs. Kamal Kant & Ors. that the evidence which was recorded in connected case titled as Kamal Kant Vs. Rekha Mohan be considered as evidence in the present matter also. Joint evidence was led in both the matters.
14. In the evidence in case titled as: Kamal Kant Vs. Rekha Mohan, the plaintiff Kamal Kant examined himself as PW-1 and he tendered his evidence by way of affidavit, which is exhibited as Ex.PW1/A. He relied upon the following documents in his evidence:-
1. Copy of Gift Deed is Ex. PW1/A (OSR).
2. The copy of Sale Deed dated 13.07.1959 is Ex. PW1/B (OSR).
3. The copy of Will dated 31.03.1994 is Ex. PW1/C (OSR).
4. The copy of Sale Deed dated 05.02.1958 executed in favour of Sh. Sham Sarup Gupta is Ex. PW1/D (OSR).
5. The photocopy of extract of newspaper "The Hindu" is Ex. PW1/E.
6. The document Ex. PW1/F was not on record and the same was de-exhibited.
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7. The site plan is Ex. PW1/G.
8. The copy of complaint against the defendant Rekha Mohan in PS: Model Town on 31.12.2009, 24.01.2011, 12.02.2011 and 20.02.2011 are Ex. PW1/H to PW1/K respectively.
9. Order dated 20.11.2012 of Ld. MM is Ex. PW1/L.
10.The copy of legal notice dated 08.07.2011 is Ex. PW1/M.
11.Copy of replies dated 19.07.2011 and 26.07.2011 are Ex. PW1/N and PW1/O.
12. The medical documents of Sh. W.R. Mohan are Ex. PW1/Z (colly 128 pages).
Note: There are no such documents as Ex.PW1/P to Ex.PW1/Y in either the examination-in-chief or the court record.
15. Thereafter, the plaintiff Kamal Kant examined Sh. Bhupender Verma, UDC, O/o Sub-Registrar VI-A, Ambedkar Bhawan, Rohini as PW-2. He deposed that he brought the summoned record related to Gift Deed dated 17.06.2010 executed by Sh. Walaiti Ram Mohan in favour of Sh. Kamal Kant. He also produced the record of the said Gift Deed which is registered vide regisrtation no. 8, 815, Book no. 1, Vol. no. 2,879, page 27 to 31 dated 26.06.2010. He further deposed that he also brought the book 1, Vol. no. 2,879 and office copy of the abovesaid Gift Deed dated 17.06.2010 and the certified copy of the office copy of Gift Deed is Ex. PW2/A (OSR).
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16. All the witnesses were duly cross examined by Ld. Counsel for the defendant Rekha Mohan. In view of statement made by Ld. Counsel for the plaintiff Kamal Kant, PE was closed vide order dated 08.09.2015.
17. Thereafter, the matter was fixed for DE. The defendant Rekha Mohan examined herself as DW-1 and she tendered her evidence by way of affidavit as Ex. DW1/A. She further relied upon following documents:-
a) Reply dated 26.07.2011 Ex.PW1/O
18. Vide order dated 16.11.2017, in suit titled as: Rekha Mohan Vs. Kamal Kant, Ld. Counsel for the defendant/Kamal Kant gave his statement that he wished to adopt the evidence as led by him in the suit titled as: Kamal Kant Vs. Rekha Mohan. The same was allowed by Ld. Predecessor court. Thereafter, Ms. Rekha Mohan moved an application for recalling of DW-1/Kamal Kant for further cross examination which was allowed vide order dated 30.07.2018. Hence, DW1 Kamal Kant was recalled for further cross examination and discharged.
19. Thereafter, Smt. Neelam Aggarwal was examined as D3W1. She tendered her evidence by way of affidavit which is Ex. D3W-1/A. The same was objected to by Ld. Counsel for Sh. Kamal CS DJ 575976/16 Kamal Kant v. Rekha Mohan CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35 Kant as the entire evidence affidavit of witness is beyond her pleadings. She was cross examined by counsels for both the parties Ms. Rekha Mohan and Sh. Kamal Kant and discharged.
20. All the defence witnesses were duly cross examined by Ld. Counsel for the plaintiff Kamal Kant. In view of statement made by Ld. Counsel for the defendants, DE was closed vide order dated 26.10.2017.
21. I have already heard final arguments from Sh. Vineet Gandhi, Ld. Counsel for plaintiff Kamal Kant, Sh. Sachin Bansal, Ld. Counsel for the defendant Rekha Mohan and Sh. Rakesh Chahar, Ld. Counsel for defendant no.3/Neelam and have perused the entire material available on record carefully.
22. The issues were framed by Ld. Predecessors of this Court vide order dated 09.05.2014 and 20.09.2017. My Issue-wise findings are as under:-
Issue no. 1and 3:
"(1) Whether the plaintiff Kamal Kant is entitled to the relief of permanent injunction as prayed for? OPP.
(3) Whether the plaintiff Kamal Kant is entitled to a decree of possession as prayed for? OPP."
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23. The onus to prove both these issues was upon the plaintiff Kamal Kant. In the present matters, the relationship between the parties is admitted. The parties to the suit are siblings. It is also an admitted fact that Sh. W.R. Mohan had executed a Gift Deed dated 26.06.2010 in the favour of the plaintiff Kamal Kant. The execution and registration of the Gift Deed is not denied. Same is also proved by PW2 Sh. Bhupender Verma, UDC, O/o Sub-Registrar VI-A, Ambedkar Bhawan, Rohini, who produced the original record from the Sub-Registrar's office. Further, Section 68 of the Indian Evidence Act provides as under:-
"Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: 1[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]"
24. Hence, by virtue of the same, no attesting witness is required to be produced in evidence before the court for the proving of the said Gift Deed. It is also not the case that the execution of the Gift Deed is denied by Sh. W.R. Mohan. Hence, the Gift Deed is proved as CS DJ 575976/16 Kamal Kant v. Rekha Mohan CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35 Ex.PW1/A.
25. The brief question before the court is whether the plaintiff Kamal Kant is entitled to the possession of the suit property from the defendant Rekha Mohan or whether the Gift Deed is liable to canceled. In view of the same, in case it is proved on record that Gift Deed was executed validly by Sh. W.R. Mohan in favour of the plaintiff Kamal Kant, then the plaintiff Kamal Kant shall be entitled to the recovery of the possession from the defendant Rekha Mohan and consequently, the suit of the defendant Rekha Mohan shall be liable to be dismissed. If it is proved that the Gift Deed was not validly executed, then the defendant Rekha Mohan shall be entitled to the reliefs as claimed by her.
26. In this background, the court shall determine as to whether the Gift Deed Ex.PW1/A is validly executed by Sh. W.R. Mohan. As the execution of the Gift Deed is not in dispute and the Gift Deed has been validly registered before Sub-Registrar's office, prima facie the Gift Deed Ex.PW1/A is proved to have been executed validly in the favour of the plaintiff Kamal Kant. It is alleged by the defendant Rekha Mohan that the Gift Deed could not have been executed by Sh. W.R. Mohan on the following grounds:-
a) That the suit property was purchased by Sh. W.R. Mohan from the sale proceeds from an ancestral property at Punjab. Hence, the suit CS DJ 575976/16 Kamal Kant v. Rekha Mohan CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35 property was ancestral.
b) That at the time of the execution of the Gift Deed, Sh. W.R. Mohan was not in his fit state of mind.
27. As mentioned above, the first ground which has been taken by the defendant Rekha Mohan to assert that the Gift Deed was not validly executed is that Sh. W. R. Mohan had no right to execute the Gift Deed as the property was purchased from ancestral funds. It is argued by Ld. Counsel for the defendant Rekha Mohan that it was upon the plaintiff Kamal Kant to also prove that the property was self acquired property of Sh. W.R. Mohan. However, no document was produced by Sh. Kamal Kant and hence, the burden of proof is not discharged by the plaintiff Kamal Kant. In this regard in the case titled as Govind Bhai Chota Bhai Patel Vs. Patel Raman Bhai Mathur bhai IX (2019) SLT 58, the Hon'ble Supreme Court has observed in similar case where the plaintiff therein claimed that the property was ancestral that:
"21) In view of the undisputed fact, that Ashabhai Patel purchased the property, therefore, he was competent to execute the Will in favour of any person. Since the beneficiary of the Will was his son and in the absence of any intention in the Will, beneficiary would acquire the property as self-acquired property in terms of C.N. Arunachala Mudaliar case. The burden of proof that the property was ancestral was on the plaintiffs alone. It was for them to prove that the Will of Ashabhai intended to convey the property for the benefit of the family so as to be treated as ancestral property. In the absence of any such averment or proof, the property in the hands of Donor has to be CS DJ 575976/16 Kamal Kant v. Rekha Mohan CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35 treated as self-acquired property. Once the property in the hands of Donor is held to be self-acquired property, he was competent to deal with his property in such a manner he considers as proper including by executing a gift deed in favour of a stranger to the family."
28. Hence, the burden lay upon the defendant Rekha Mohan to prove that the property was ancestral in nature and not the self acquired property of Sh. W.R. Mohan. In this regard, it may be mentioned that no separate, independant evidence has been led by the defendant Rekha Mohan to prove this fact. In fact, it is an admitted fact that the suit property was purchased by W. R. Mohan vide a Sale Deed dated 13.07.1959. The Sale Deed is proved as Ex. PW1/B. Ms. Rekha Mohan admitted in her cross examination as DW-1 conducted on 04.04.2016 that "the property at Punjab was sold in 1967 when the property no. F-10/4, Model Town was constructed". Hence, the suit property could not have been purchased from the sale proceeds of this property as that property at Punjab was sold after the purchase of the suit property.
29. Further, she admitted that the property at Khudda, Ambala was still existing. She stated in her voluntary statement that one property was sold in 1959-60 but she was unable to produce any such documents on record. Hence, in view of the same, the defendant Rekha Mohan failed to prove on record that the suit property was purchased by Sh. W.R. Mohan after selling a property at Punjab.
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Hence, consequently, she failed to prove that the funds which were used for purchase of the said property were from the sale proceeds of an ancestral property. Hence, this fact could not be proved by the defendant Rekha Mohan that the suit property was ancestral in nature. Hence, by virtue of the Sale Deed Ex.PW1/B, it is proved that the suit property was the self acquired property of Sh. W. R. Mohan. Hence, he was free to dispose off the property as per his wish.
30. The second ground for the challenge of the Gift Deed Ex.PW1/A which has been taken by the defendant Rekha Mohan is that at the time of the execution of the Gift Deed, Sh. W. R. Mohan was not in his correct state of mind. As this fact has been alleged by the defendant Rekha Mohan, the onus to prove this fact is upon the defendant Rekha Mohan. In this regard, Ld. Counsel for the defendant Rekha Mohan has argued that at the time of the execution of the Gift Deed, it is an admitted fact that Sh. W.R. Mohan was residing with the plaintiff Kamal Kant. It is submitted that it is an admitted fact that he was suffering from constant ailments. The plaintiff Kamal Kant has placed on record certain medical record of Sh. W.R. Mohan, which is proved as Ex.PW1/Z. One of these documents is a discharge summary dated 03.03.2010 in which the Doctor has opined that "85 old gentleman, no addiction, normotensive, diabetic, post operated case of fracture Temur on 17.02.2010., was admitted with the C/o irrelevant talk, aditation, altered sensorium, hallucinations and decreased CS DJ 575976/16 Kamal Kant v. Rekha Mohan CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35 sleep".
31. It is submitted by Ld. Counsel for the defendant Rekha Mohan that this discharge summary is only three months prior to the execution of the Gift Deed. In this discharge summary, which has been placed by the plaintiff Kamal Kant himself, it has been clearly noted by the observing doctor that Sh. W.R. Mohan was suffering from agitation, altered sensorium and hallucinations. There is no such medical record filed by the plaintiff Kamal Kant to show that consequent to this, Sh. W. R. Mohan was in a fit state of mind to execute the Gift Deed. Hence, from the documents of the plaintiff Kamal Kant itself, it is proved that at the time of the execution of the Gift Deed, Sh. W.R. Mohan was not in a fit state of mind.
32. Per contra, it is argued by Ld. Counsel for the plaintiff Kamal Kant that the Gift Deed was executed by Sh. W.R. Mohan as per his own will, in a fit state of mind. It is submitted that the conduct of the defendant Rekha Mohan towards her parents was not good. She had been constantly harassing her parents over a period of time. For this reason, Sh. W.R. Mohan executed the Gift Deed in the favour of the plaintiff Kamal Kant. She had filed a petition under Section 12, Protection of Women from Domestic Violence Act in the year 2010-
11. She filed another petition under Section 20, Hindu Adoption and Maintenance Act in July, 2013. Both the petitions were filed for CS DJ 575976/16 Kamal Kant v. Rekha Mohan CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35 maintainance against her father and brother around and after the execution of the Gift Deed. In those petitions, the defendant Rekha Mohan nowhere alleged that Sh. W.R. Mohan was not in a fit state of mind.
33. Further, Sh. W.R. Mohan appeared before the court and he was examined U/o 10 CPC by Ld. Predecessor court on 13.03.2012. In this examination, he clearly deposed that he had executed the Gift Deed out of his own love and affection for the plaintiff Kamal Kant. The Gift Deed was also duly registered before Sub-Registrar's office. At the time of the execution of any document, the Sub-Registrar verifies the competency of the executant. In case the executant i.e. Sh. W.R. Mohan was not in his fit state of mind, then the Sub-Registrar would not have registered the Gift Deed. Only because Sh. W.R. Mohan was suffering from constant medical ailments does not make him unfit to execute the Gift Deed in favour of the plaintiff Kamal Kant. This position is also confirmed by Hon'ble Supreme Court in a recent judgment titled as Raja Ram Vs. Jai Prakash Singh in CA no. 2896/2009 decided on 11.09.2019. Further, apart from the Gift Deed, Sh. W.R. Mohan had also executed a Will in the favour of the plaintiff Kamal Kant on 31.03.1994, which is proved as Ex.PW1/C. Hence, this proves that Sh. W.R. Mohan had always intended to bequeath this property in the favour of the plaintiff Kamal Kant.
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34. Further, Ld. Counsel submits that the discharge summary Ex. PW1/Z which has been referred to by Ld. Counsel for the defendant Rekha Mohan has not been referred in full. It is submitted that the paragraph which was referred to by the defendant Rekha Mohan was the case summary upon the admission of Sh. W. R. Mohan. It has been noted by the concerned Doctor that at the time of admission, he was conscious and oriented. Further, it was mentioned that at the time of discharge "he was asymptomatic, hemodynamically stable and is being discharged with proper advise". Hence, it is stated that as on that date and future, he was completely fit and in his correct state of mind. Hence, the Gift Deed was validly executed by Sh. W. R. Mohan.
35. Ld. Counsel for the defendant Rekha Mohan has argued that the statement dated 13.03.2012 cannot be taken into consideration as no opportunity for cross-examination was afforded to the defendant. He has relied upon case titled as: Kapil Core Facts Pvt. Ltd. Vs. Harbans Lal AIR 2010 SC 2809.
36. Ld. Counsel for the defendant no. 3/Neelam Aggarwal has also argued in corroboration with Ld. Counsel for the defendant Rekha Mohan. It is submitted that the fact that the father of the parties had ailments since the year 2000 is not in dispute. It is submitted that as per the medical documents Ex. PW1/Z, when Sh. W.R. Mohan was CS DJ 575976/16 Kamal Kant v. Rekha Mohan CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35 admitted in hospital on 23.02.2010, he had irrational behavior. It is stated that in the view of the observations of concerned doctor, it is clear that he was not in his fit state of mind. Further, defendant no. 3/ Smt. Neelam Aggarwal has denied the signatures of their father on the Gift Deed as well as Will. It is submitted that during her cross examination, there was no such suggestion by the plaintiff Kamal Kant that their father was well or that he was not under the influence of the plaintiff Kamal Kant at the time of the execution of the Gift Deed. It is also stated that the defendant has specifically alleged that the plaintiff Kamal Kant kept their father in captivity. He did not let the other daughters meet him. In view of the same, the Gift Deed which has been executed in the favour of the plaintiff at the time when he was totally under his influence and was unable to meet his other children, the same is not a valid Gift Deed.
37. Record perused. As mentioned earlier, in view of the registration of the Gift Deed Ex.PW1/A before the Ld. Sub-Registrar, it is prima facie proved that the Gift Deed was validly executed. Now, the onus lies upon the defendants to prove that the execution of the same was improper. At the outset, it is may be pertinent to mention here that no independant evidence has been led by either Ms. Rekha Mohan or Ms. Neelam Aggarwal that Sh. W.R. Mohan was not in his fit state of mind. No documentary evidence is placed on record. No independant witness was summoned by them to prove this fact. DW-1 CS DJ 575976/16 Kamal Kant v. Rekha Mohan CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35 Ms. Rekha Mohan admitted in her cross examination that:
"my mother expired in the year 2012. Thereafter, I never met with my father. I met him only one day before his death in the hospital. He was residing in one room only and would not come out at all and was not meeting any sisters of mine... "Q. I put to you that document Ex. PW1/Z were filed by the plaintiff Kamal Kant and not by you.
Ans. It is correct but the copy was given to me by the plaintiff Kamal Kant....
I have no other documents except Ex. PW1/Z (colly) to show that my father was not well."
38. Hence, it is an admitted position by the defendant Rekha Mohan that there are no other medical documents of Sh. W.R. Mohan except the medical documents produced by the plaintiff Kamal Kant Ex.. PW1/Z. Further, it has been alleged that the plaintiff Kamal Kant was keeping Sh. W.R. Mohan in his captivity. But on perusal of the above mentioned statement ofefendant Rekha Mohan/DW1 shows that he was not interesting in meeting his daughters himself. She has categorically stated that: "He was residing in one room only and would not come out at all and was not meeting any sisters of mine... ". Hence, it cannot be said that he was being in captivity. Further, no independant evidence has been produced by either of the defendants Ms. Rekha Mohan or Ms. Neelam Aggarwal to prove this fact.
CS DJ 575976/16 Kamal Kant v. Rekha Mohan
CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35
39. The plaintiff Kamal Kant relied upon a Will dated 03.03.1994 which was executed by Sh. W.R. Mohan in his favour to show that Sh. W.R. Mohan always intended to transfer the property in question to the plaintiff Kamal Kant. However, none of the attesting witnesses to that Will have been produced in the court. Hence, that Will can not be relied upon and is not admissible in evidence.
40. Now, much reliance has been placed by the plaintiff Kamal Kant on the statement dated 13.03.2012 of Sh. W.R. Mohan recorded by the Ld Predecessor Court under Order 10 CPC. Reliance can be placed on case titled as Kapil Core Facts Pvt. Ltd. Vs. Harbans Lal AIR 2010 SC 2809 in this regard, where the Hon'ble Supreme court discussed the relevancy and admissibility of an examination Under 10 rule 2 CPC. It was observed by Hon'ble Supreme Court that:
"On the other hand, the examination under Rule 2 of Order 10 of the Code, need not be restricted to allegations in the pleadings of the other party, but can relate to elucidating any matter in controversy in the suit. Further, under Rule 1 of Order 10, the court can examine only the parties and their advocates, that too at the `first hearing'. On the other hand, Rule 2 enables the court to examine not only any party, but also any person accompanying either party or his pleader, to obtain answer to any material question relating to the suit, either at the first hearing or subsequent hearings. The object CS DJ 575976/16 Kamal Kant v. Rekha Mohan CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35 of oral examination under Rule 2 of Order 10 is to ascertain the matters in controversy in suit, and not to record evidence or to secure admissions. The statement made by a party in an examination under Rule 2 is not under oath, and is not intended to be a substitute for a regular examination under oath under Order 18 of the Code. It is intended to elucidate what is obscure and vague in the pleadings. In other words, while the purpose of an examination under Rule 1 is to clarify the stand of a party in regard to the allegations made against him in the pleadings of the other party, the purpose of the oral examination under Rule 2 is mainly to elucidate the allegations even in his own pleadings, or any documents filed with the pleadings. The power under Order 10 Rule 2 of the Code, cannot be converted into a process of selective cross- examination by the court, before the party has an opportunity to put forth his case at the trial."
41. It is a matter of record that no cross-examination was conducted. Hence, in view of the above observations of the Hon'ble Supreme court, the examination under Order 10 CPC which was conducted by Ld. Predessor Court of Sh. W.R. Mohan can not be read in evidence.
42. However, even if, by virtue of the Hon'ble Supreme Court's judgment, the contents of the statement can not be read as he CS DJ 575976/16 Kamal Kant v. Rekha Mohan CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35 was not cross examined by the defendant Rekha Mohan, but the court can take a cue from the statement regarding his mental fitness. Perusal of said examination shows that he was examined in a question-answer form by the Ld. Predecessor court. He gave all his answers coherently. There is no such observation by the Ld. Predecessor court that Sh. W.R. Mohan seemed to be of a mentally unfit state of mind. In fact, he has clearly understood the questions which were put to him. In the opinion of the court, though his statement can not be read in evidence, the same can be read to ascertain the mental status of Sh. W.R. Mohan. Hence, in the opinion of the court and considering that no such observation was given by Ld. Predecessor court that he seemed in a not fit state of mind to give the answers to the questions, it is clear that as on the date of the appearance in the court, he was in a fit state of mind.
43. Further, it is also a matter of record that Ms. Rekha Mohan had filed two petitions for maintainence against Sh. W.R. Mohan and Sh. Kamal Kant. The copy of the petition filed before the Ld. Family Court is attached with the present suit. Perusal of same clearly shows that relations between Ms. Rekha Mohan and Sh. W.R. Mohan were not amicable. DW-1 Ms. Rekha Mohan admitted in her cross examination that:
"I have filed a suit for maintainence against the plaintiff Kamal Kant. It is correct that the said suit for maintainence was filed against the plaintiff Kamal Kant as CS DJ 575976/16 Kamal Kant v. Rekha Mohan CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35 well as my father. My father was not mentally well at the time when I filed the said suit for maintainence. I do not remember whether I have stated in the said suit or whether I have told the said court that my father was not mentally sound."
44. Further, in her cross examination, she admitted that she had filed an interim application seeking maintainence against her father as well as Sh. Kamal Kant. Hence, in view of the above examination, it is clear that on one side, the defendant Smt. Rekha Mohan had sued her father for maintainance in two courts, on the other hand she was claiming that he was not in a fit state of mind. The defendant Rekha Mohan is estopped from taking contrary submissions on the basis of the rule of estoppel. It is a matter of record that in none of the courts i.e. before the Family Court or the Ld. Mahila Court, there was any such observation that Sh. W.R. Mohan was not in his fit state of mind. At the cost of repetition, no such application was filed by the defendant Rekha Mohan in any of these courts that Sh.W.R. Mohan was mentally unfit.
45. The copy of order dated 20.11.2012 passed by the court of Ms. Vandana, the then Ld. MM, Mahila court, Rohini Courts, Delhi is on record as per which the petition was disposed of as compromised. Perusal of that order shows that Sh. W.R. Mohan was present in the court on that day. Statements of both the parties were recorded in that matter. However, even there, there was no such CS DJ 575976/16 Kamal Kant v. Rekha Mohan CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35 observation given by Ld. Court that Sh. W.R. Mohan did not seem to be of a fit state of mind. It may be noted that the date of the order is 20.11.2012. In the ordersheet, it has been mentioned that a settlement was arrived at between the parties on 10.05.2011, just almost a year after the execution of the Gift Deed Ex.PW1/A. This fortfies the argument of the Ld. Counsel for the plaintiff Kamal Kant that the relations between the defendant Rekha Mohan and Sh. W.R. Mohan were strained. Already litigations were pending between them. Defendant Rekha Mohan had filed two maintenance cases against Sh. W.R. Mohan. Hence, in these circumstances, execution of the Gift Deed ousting the defendant Rekha Mohan from claiming any interest in the suit property seems plausible.
46. Further, perusal of the cross examination of D3W1 Smt. Neelam Aggarwal shows that she has reiterated the allegations of the defendant Rekha Mohan. She has stated that:
"my brother had kept my parents almost in captivity and did not allow anybody to meet them. My mother was admitted in Sunder Lal Jain Hospital and she was discharged from the hospital on 18.03.2012 and I had gone there to meet her but I was not allowed to meet my mother by my brother and his wife... In the year 2010, my father was not in a position to execute any document. He was not having a sound mental condition and was not in a position to walk.
CS DJ 575976/16 Kamal Kant v. Rekha Mohan
CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35
After two days of his discharge (of her father) his health detiorated and was again admitted in Pentamed Hospital on 23.02.2010. He was discharged on 03.03.2010. My sister Rekha Mohan used to take care of him during the entire illness period. We all siblings used to take him to the hospital as and when there was need."
47. As discussed above, none of the defendants have brought any such evidence on record that the plaintiff Kamal Kant had kept their father in captivity. Further, this position is also in contrast to the statement made by DW1 Rekha Mohan. Further, in her cross examination, D3W Smt. Neelam Aggarwal had alleged that Ms. Rekha Mohan had taken care of their father when he was unwell but it is a matter of record that the plaintiff Kamal Kant produced the entire medical record of their father Sh. W.R. Mohan. The same was Ex. PW1/Z (colly). In case Ms. Rekha Mohan had taken care of their father, then the medical documents should have been in her custody, and not in the custody of Sh. Kamal Kant. Further, as mentioned above, the defendant Rekha Mohan had sued her father for maintenance. In case she was taking of her father, then there would have been no requirement for her to sue her father. Hence, this argument seems to be incorrect and misleading.
48. Then, the defendant Rekha Mohan has relied upon the discharge summary dated 03.03.2010 Ex.PW1/Z to show that as on CS DJ 575976/16 Kamal Kant v. Rekha Mohan CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35 that day which was 3 months prior to the execution of the Gift Deed, Sh. W.R. Mohan was mentally unfit. Here, it might be noted that Ex.PW1/Z is a bunch of medical documents of Sh. W.R. Mohan, running into 128 pages. Perusal of the same shows that he was admitted as a post operated case of fracture femur on 17.02.2010. On his admission on 17.02.2010, there was no such observation by the admitting doctor that the patient Sh. W.R. Mohan was not in his fit state of mind. In fact, it has been mentioned that on his examination, he was conscious and oriented. His discharge summary dated 20.02.2010 is on record, as per which, he was advised 04 medicines on daily basis and was advised to come for a check up after 3 days.
49. The discharge summary dated 03.03.2010 shows that his date of admission was 23.02.2010 i.e. only three days after his discharge dated 20.02.2010. Hence, it is clear that upon his discharge on 20.02.2010, he was under medication. This has also been mentioned at the time of admission on 23.02.2010. Hence, it may be that he was having the symptoms of "irrelevant talk, aditation, altered sensorium, hallucinations and decreased sleep" due to his medication. In fact, further it has been mentioned that on admission, he was conscious and oriented. It is also mentioned that on discharge, he was he was asymptomatic, hemodynamically stable. It may be noted that it is the allegation of the defendant Rekha Mohan that Sh. W.R. Mohan was in not fit state of mind. Admittedly, no evidence has been led by CS DJ 575976/16 Kamal Kant v. Rekha Mohan CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35 her. This is also a matter of record that during the same time, she had filed a suit for maintainance against her father. In that case, she did not plead that her father was unstable and unfit. In fact that suit was also highly contested. In that matter, there is admittedly no such observation by the Ld. Court that Sh. W.R. Mohan seemed to be an unfit state of mind. Similarly, in the present matter, during his examination u/o 10 CPC by Ld. Predecessor Court, there was no such observation that he seemed to be an unfit state of mind.
50. Apart from this, there is a complete bundle of medical documents Ex.PW1/Z which show that he had repeated visits to the hospital but in not even one report it has been opined that he was not in his fit state of mind. As mentioned above, the onus to prove this fact was upon the defendant Rekha Mohan which has not been discharged in the present case. There was no such request by the defendant Rekha Mohan to summon the doctors treating Sh. W.R. Mohan before the court, who would have been in the best position to prove his mental status. In view of the same, solely relying upon the discharge summary dated 03.03.2010 to prove that he was unfit and not in a stable state of mind shall not be correct, particularly in view of the fact that he was under heavy medication at that time and for the reasons as discussed earlier, which are not repeated here for the sake of brevity.
51. Further, perusal of the medical documents Ex. PW1/Z CS DJ 575976/16 Kamal Kant v. Rekha Mohan CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35 show that Sh. W. R. Mohan had made a number of visits to the hospital for different diagnosis and treatments. From these documents, it seems that the plaintiff Kamal Kant was providing adequate medical treatment to his father. Hence, the submission of the defendants that Sh. W.R. Mohan was kept locked or he was kept in captivity by the plaintiff Kamal Kant does not seem to be correct and reliable. The medical documents also show that Sh. W.R. Mohan was undergoing a cancer treatment. Hence, it is clear that the plaintiff Kamal Kant was not leaving any stone unturned for the treatment of his father.
52. Then it is argued by Ld. Counsel for the defendant Rekha Mohan that the entire documentation qua the Gift Deed was done by the plaintiff Kamal Kant. Even the stamp duty was purchased by him. The witnesses which have attested the Gift Deed were also close to the plaintiff Kamal Kant. However, merely because of this, the validity of the Gift Deed can not be challenged, particularly when the Gift Deed was duly executed before the Sub-Registrar. Once the Gift Deed is executed before Sub-Registrar, the authenticity of the same is prima facie valid. Further, at the time of the registration of any document, it is the duty of Sub-Registrar to verify that the person is executing the same out of his own consent and that he was in a fit state of mind. Presumably as the Gift Deed was executed before the Sub-Registrar, this requisite was satisfied to the satisfaction of Ld. Sub-Registrar.
CS DJ 575976/16 Kamal Kant v. Rekha Mohan
CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35
53. In view of the above discussion, the court is of the opinion that the argument that Sh. W.R. Mohan was unfit and not in a fit state of mind is an after thought argument. There is no such evidence on record that Sh. W.R. Mohan was unfit and not in a fit state of mind at the time of the execution of the Gift Deed Ex.PW1/A. The onus placed on the defendant Rekha Mohan could not be discharged. Hence, the plaintiff Kamal Kant has proved on record that the Gift Deed was validly executed. Hence, as the plaintiff became the owner of the suit property upon the execution of the Gift Deed Ex.PW1/A, he is entitled to the reliefs as claimed by him. The issues are accordingly decided in the favour of the plaintiff Kamal Kant.
Issue no. 2:
"(2) Whether the plaintiff is entitled to damages, if so at what rate? OPP."
54. In the present matter, the plaintiff Kamal Kant has claimed damages from the defendant Rekha Mohan for the unauthorised occupation of the suit property @ Rs. 20,000/- p.m. since July, 2011. No such evidence has been led by the plaintiff Kamal Kant to prove that this was the prevelant rate of rent in the area where the suit property situated. Hence, this issue is decided against the plaintiff Kamal Kant.
CS DJ 575976/16 Kamal Kant v. Rekha Mohan
CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35
Issue no. 4:
"(4) Whether the suit of the plaintiff is not
maintainable? OPD."
55. The onus to prove this issue was upon the defendant Rekha Mohan. No such evidence has been led by the defendant Rekha Mohan that the suit of the plaintiff is not maintainable. The only defence which was taken was that the plaintiff Kamal Kant had no ownership over the suit property as the Gift Deed was not validly executed. As discussed in issue no. 1 and 3, plaintiff Kamal Kant has proved that the Gift Deed was validly executed in his favour. Hence, in view of the same, the issue is decided in the favour of the plaintiff Kamal Kant and against the defendant Rekha Mohan.
Issue no. 5, 6 and 7:
"(5) Whether the plaintiff Rekha Mohan is entitled for decree of declaration i.e. Gift Deed dated 17.06.2010 registered on 26.06.2010 is having no value in the eyes of law and is null and void? OPP. (6) Whether the plaintiff Rekha Mohan is entitled to decree of permanent injunction, as prayed? OPP. (7) Whether the suit of the plaintiff Rekha Mohan seeking declaration is not maintainable for the want of prayer/ relief of cancellation of Gift Deed? OPD1."
56. All these issues are inter connected and hence they are disposed of together. In view of the discussion in issue no. 1 and 3, as it is proved that the Gift Deed is validly executed in the favour of the CS DJ 575976/16 Kamal Kant v. Rekha Mohan CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35 plaintiff Kamal Kant, the defendant Rekha Mohan is not entitled to any relief as claimed in her suit. Hence, these issues are decided in the favour of the plaintiff Kamal Kant and against the defendant Rekha Mohan.
Issue no. 8:
"(8) Whether the suit of the plaintiff is barred by Section 41 (h) as efficacious remedy of partition of the property is not claimed? OPD-1."
57. The onus to prove this issue was upon the plaintiff Kamal Kant. In view of the above mentioned findings in issue no. 1 and 3, the present issue has become infructuous. The same is disposed of accordingly.
Relief Keeping in view the above discussion, the suit of the plaintiff titled as Kamal Kant Vs. Rekha Mohan is decreed with the following reliefs:-
a) A decree of possession is passed in the favour of the plaintiff Kamal Kant directing the defendant Rekha Mohan to vacate the suit property i.e. F-10/4, Model Town, Delhi and handover the vacant peaceful possession of the suit property to the plaintiff Kamal Kants within a period of three months.
CS DJ 575976/16 Kamal Kant v. Rekha Mohan
CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35
b) The defendant Rekha Mohan is also restrained from
creating any third party interest in the suit property.
The suit titled as Rekha Mohan v. Kamal Kant & Ors. in CS DJ 578940/16 is dismissed.
Parties to bear their own cost. Decree sheet be prepared accordingly. Copy of this judgment be placed in both the files. File be consigned to record room.
Announced in open court Digitally signed
by RUCHIKA
on 20th July 2023 RUCHIKA SINGLA
SINGLA Date:
2023.07.20
16:36:14 +0530
(RUCHIKA SINGLA)
Addl. Distt. Judge-03, North-West Distt.,
Rohini Courts, Delhi.
This judgment contains 35 pages and each
page is checked and signed by me.
CS DJ 575976/16 Kamal Kant v. Rekha Mohan
CS DJ 578940/16 Rekha Mohan v. Kamal Kant & Ors Page no. 35 of 35