Delhi District Court
Smt. Rama vs Yogesh Mohan Sharma on 11 November, 2014
IN THE COURT OF SHRI RAJ KUMAR: ADDL. DISTRICT
JUDGE17: TIS HAZARI COURTS : DELHI
Suit No. 77/14 (Old Suit No. 159/06)
Unique Case ID No. 02401C0497962006
1. Smt. Rama
W/o Sh. Shyam Sunder,
D64, Gali no. 6,
Gamri Ext., Delhi110053.
2. Smt. Suman Sharma,
W/o Sh. Satya Prakash Sharma,
R/o H. No. 6, Saraswati Nagar,
Jaleshwar Road, Firozabad, U.P.
3. Smt. Usha
S/o Sh. Bengali Babu,
R/o Village Virahru, Tehsil &
District Agra, U.P.
4. Smt. Uma
W/o Sh. Satish Chand Sharma,
R/o D339, Gali no. 8, Bhajanpura,
Delhi110053. ......... Plaintiffs.
VERSUS
1. Yogesh Mohan Sharma
2. Smt. Sangeeta Sharma
Suit No. 77/14 (Old Suit No. 159/06) Page No. 1/26
W/o Sh. Yogesh Mohan Sharma (Def. no.1)
Both R/o
B55, Gamri Ext. Delhi110053. ......... Defendants.
Date of institution of the suit : 01.07.2006
Date on which order was reserved : 27.10.2014
Date of decision : 11.11.2014
SUIT FOR PARTITION
JUDGMENT
The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that the plaintiff is the sister of the defendants no. 2 to 4 and the defendant no. 1 is the brother of the plaintiff. It has been further stated that the defendant no. 5 is the wife of the defendant no.1. It has been further stated that late Sh. Bhagwati Prasad, the father of the plaintiff, was the owner of the built up property measuring 300 sq. yards bearing Municipal No. B55, Gamri Extension, Shahdara, Delhi. It has been further stated that the abovesaid property has been referred to as the suit property and more specifically shown in the site plan annexed with the plaint. It has been further stated that the suit property became the dwelling house of the family for all practical purposes and the plaintiff is also deemed to be in its possession. It has been further stated that the defendant no. 1 was married with the Suit No. 77/14 (Old Suit No. 159/06) Page No. 2/26 defendant no. 5, twenty five years back, but quarrelsome behaviour of the defendant no. 5 forced the defendant no. 1 to leave the house and his wife. It has been further stated that the address of the defendant no. 1, which has been mentioned by the plaintiff in the plaint, is his last known address. It has been further stated that the defendant no. 5 was trying to sell the suit property and as such, the plaintiff herein filed a suit bearing no. 101/2004 titled as Smt. Rama Vs. Smt. Sangeeta & Ors., which was a suit for Permanent Injunction. It has been further stated that the said suit was decreed and a decree for Permanent Injunction was passed by the Ld. Civil Judge, Delhi. It has been further stated that in the said judgement, the Ld. Civil Judge was pleased to hold that the plaintiff herein was a Class 1 legal heir of late Sh. Bhagwati Prasad and thus, the plaintiff is entitled for 1/5th share in the suit property as per the law of intestate natural succession. It has been further stated that the defendant no. 5 herein filed a Will and a Gift Deed in the said Court, but the said documents were not considered by the said Court as the same were not proved. It has been further stated that an appeal has been preferred against the said judgement, which is pending disposal before the Court of the Ld. Addl. Sr. Sub Judge, Delhi. It has been further stated that the suit property has not been partitioned by metes and bounds and the plaintiff is entitled for 1/5th share in the suit property and hence, the present suit.
2. On the basis of the abovesaid allegations as contained in the Suit No. 77/14 (Old Suit No. 159/06) Page No. 3/26 plaint, the plaintiff has prayed for a preliminary decree of partition of the suit property holding that the plaintiff is entitled to 1/5th share therein. The plaintiff has also prayed for a final decree of partition after the appointment of the Ld. Local Commissioner. The plaintiff has also sought a direction against the defendant no. 5 directing her to hand over the physical possession of 1/5th share of the plaintiff to the plaintiff. The plaintiff has also prayed for the costs of the suit.
3. Written statement cum no objection has been filed on record by the defendant nos. 2, 3 and 4 admitting the claim of the plaintiff. The said defendants have admitted that the suit property has not been partitioned so far and that late Sh. Bhagwati Prasad died intestate. It has been further stated that the said defendants have no objection if the suit of the plaintiff is decreed.
4. Written statement has also been filed on record by the defendant no. 5, who is the sole contesting defendant in the present suit stating therein that she is in exclusive physical possession of the entire suit property. Defendant no. 5 has further stated that she is the owner of the suit property by virtue of a registered Will dated 30.05.2002. It has been further stated that the present suit is barred by Order 2 Rule 2 of the CPC because the plaintiff failed to seek the relief of partition in the earlier suit for Injunction simplicitor. It has been further stated that the value of the suit property is more than Rs. 30 Lacs, but the plaintiff has Suit No. 77/14 (Old Suit No. 159/06) Page No. 4/26 not paid the advolerum court fees on her share and as such, the present suit has not been valued properly for the purposes of the court fees and jurisdiction. It has been further stated that the present suit is hit by Section 23 of the Hindu Succession Act, 1956 and the plaintiff has concealed the material facts from this Court. The defendant no. 5 has admitted that late Sh. Bhagwati Prasad was the owner of the suit property, but the defendant no. 5 has denied that he died intestate as alleged by the plaintiff. Defendant no. 5 has admitted that she is the wife of the defendant no. 1 and that the suit property is a dwelling house. However, the defendant no. 5 has denied that the plaintiff is in possession of the said dwelling house. Defendant no. 5 has taken the stand that the plaintiff is not in possession of any part of the suit property. The defendant no. 5 has further stated that a Gift Deed was also executed in favour of the defendant no. 5 by her fatherinlaw. The defendant no. 5 has denied that her behaviour was cruel towards the defendant no. 1. It has been further stated that the defendant no. 1 left the defendant no. 5 1516 years back and his whereabouts are not known. The defendant no. 5 has admitted the filing of the suit for injunction simplicitor by the plaintiff. The defendant no. 5 has admitted that the said judgement and decree passed in the said suit has been challenged by her and an appeal preferred by the defendant no. 5 is pending disposal. Defendant no. 5 has taken the stand that the Ld. Civil Judge exceeded his jurisdiction in Suit No. 77/14 (Old Suit No. 159/06) Page No. 5/26 holding that the plaintiff was entitled to 1/5th share. It has been further stated that the said case was not properly handled by the Advocate of the defendant no. 5 and even the Will in favour of the defendant no. 5 was not proved in the said suit on account of the negligence of her Advocate. Defendant no. 5 has denied that the plaintiff is entitled for 1/5th share. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed with costs.
5. Replication to the written statement of the defendant no. 5 has been filed on record by the plaintiff reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement filed by the defendant no. 5.
6. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide orders dated 06.02.2007 :
1) Whether defendant no. 5 is the owner of the suit property by virtue of a registered Will dated 30.05.2002. If so to what effect.OPD5.
2) Whether the suit is not maintainable by Order 2 Rule 2 CPC?OPD.
3) Whether the suit has not been properly valued for purposes of court fees and jurisdiction?OPD5.
4) Whether the suit is barred u/s 3 of Hindu Succession Act, OPD5.
Suit No. 77/14 (Old Suit No. 159/06) Page No. 6/26
5) Whether this Court has no pecuniary jurisdiction to entertain and try the present suit?
6) Whether the plaintiff is entitled to a preliminary decree of partition in respect of the suit property?OPP.
7) Relief.
EVIDENCE :
7. The plaintiff has examined herself as PW1 and in her evidence by way of affidavit, she has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. She has filed on record her evidence by way of affidavit as Ex. PW1/A, the site plan as Ex. PW1/1, certified copy of the orders dated 30.09.2004 as Ex. PW1/2, certified copy of the judgement dated 30.09.2004 passed in suit no. 101/04 as Ex. PW1/3, certified copy of the decree dated 30.09.2004 as Ex. PW1/4 and certified copy of the statement of the defendant no. 5 Smt. Sangeeta recorded on 11.10.2002 in the aforesaid suit as Ex. PW1/5.
8. The defendant no. 5 Smt. Sangeeta Sharma has examined herself as DW1 and in her evidence by way of affidavit Ex. DW1/A on record, she has reiterated and reaffirmed the stand as taken by the defendant no. 5 in her written statement. She has filed on record the registered GPA dated 30.05.2002 in her favour as Ex. DW1/A, the registered Will dated 30.05.2002 as Ex. DW1/B, the Gift Deed dated Suit No. 77/14 (Old Suit No. 159/06) Page No. 7/26 30.05.2002 as Ex. DW1/C, the affidavit of late Sh. Bhagwati Prasad as Ex. DW1/D, copy of the plaint in suit no. 101/04 as Ex. DW1/E, copy of the judgement dated 30.09.2004 in suit no. 101/04 as Ex. DW1/F, photocopy of her ration card as Ex. DW1/G, photocopy of her election card as Ex. DW1/H, and photocopy of the election card of the deceased Sh. Bhagwati Prasad Sharma as Ex. DW1/I.
9. The defendant no. 5 has further examined Sh. Jai Narayan, the attesting witness to the Will dated 30.05.2002 as DW2. This witness in his examinationinchief, has stated that the Will Ex DW1/B, was executed by Sh. Bhagwati Prasad and the said Will bears his signatures. DW2 has further stated that Sh. Bhagwati Prasad was hale, hearty and mentally fit. DW2 has also stated that the GPA Ex. DW1/A and the Gift Deed Ex DW1/C also bears his signatures as a witness. DW2 has identified the signatures and thumb impressions of late Sh. Bhagwati Prasad on the said documents.
10. The detailed testimonies of these witnesses shall be discussed in the later part of this judgement.
11. I have carefully gone through the entire material available on record and heard the rival submissions of Ld. counsels for both the parties. Ld. Counsel for the plaintiff and the Ld. Counsel for the defendant no. 5 have filed on record their written final arguments as well. I have also carefully gone through the written final arguments filed on Suit No. 77/14 (Old Suit No. 159/06) Page No. 8/26 record by the Ld. Counsel for the plaintiff and the Ld. Counsel for the defendant no. 5 as well.
12. My issuewise finding on the abovesaid issues is as under:
Issues No. 1 & 6:
13. Both these issues are taken up together as the same are connected interse and over lap each other.
14. The factual matrix is within a narrow compass in the present suit. It is not in dispute that the defendant no.5 is the wife of the defendant no.1. The plaintiff is the sister of the defendants no.2, 3 and 4 and the defendant no.1 is the brother of the plaintiff. It is not in dispute that Late Sh. Bhagwati Prasad, the father of the plaintiff, the father of the defendants no.1 to 4 and the fatherinlaw of the defendant no.5 was the owner of the suit property. It is not in dispute that Late Sh. Bhagwati Prasad expired on 08.08.2002. It is not in dispute that the defendant no.1 left his house long back and the whereabouts of the defendant no.1 are not known. It is not in dispute that the plaintiff herein had instituted a suit bearing no. 101/2004 titled as Smt. Rama Vs. Smt. Sangeeta and Ors. and the said suit was a suit for Injunction simplictor. It is not in dispute that the said suit was decreed in favour of the plaintiff herein vide judgment and decree dated 30.09.2004 by the Ld. Civil Judge, Delhi. It is not in dispute that the defendant no.5 herein has challenged the said judgment Suit No. 77/14 (Old Suit No. 159/06) Page No. 9/26 and decree dated 30.09.2004 by way of RCA bearing no. 03/2014, which is pending disposal before this Court. The plaintiff claims that Late Sh. Bhagwati Prasad died intestate on 08.08.2002. The defendant no.5 claims herself to be exclusive owner of the suit property on the basis of the Will dated 30.05.2002 executed by Late Sh. Bhagwati Prasad in her favour. The defendant no.5 also claims that besides the registered Will dated 30.05.2002, the registered GPA dated 30.05.2002, a gift deed dated 30.05.2002 and an affidavit was also executed by Late Sh.Bhagwati Prasad in her favour. The plaintiff has disputed the execution of the abovesaid documents. As such, the whole controversy in the present suit revolves around the abovesaid documents. The question is as to whether the plaintiff has been able to prove that the abovesaid documents are forged and fabricated as is the stand of the plaintiff in the present suit. Again the question is as to whether the defendant no.5 has been able to prove the due and valid execution of the abovesaid documents by Late Sh. Bhagwati Prasad in her favour.
15. In the written final arguments, Ld. Counsel for the plaintiff has argued that the Will Ex. DW1/B on record is shrouded by suspicious circumstances. It has been further argued that it was obligatory upon the propounder of the Will to remove all suspicious circumstances but the defendant no.5 has failed to discharge the said burden. It has been further argued that if the registered Will was executed in favour of the defendant Suit No. 77/14 (Old Suit No. 159/06) Page No. 10/26 no.5, there was no need to execute any gift deed. It has been further argued that the condition of the mind of the testator was not sound. It has been further argued that the beneficiary took an active part in the execution of the Will. It has been further argued that the testator at the relevant time was having a feeble mind and was not in a sound state of mind. Ld. Counsel for the plaintiff has relied upon the authority cited as AIR 2008 Supreme Court 2594 titled as State Bank of India and Others Vs. S.N Goyal, the authority titled as Anil Kak Vs. Kumari Sharada Ors. cited as JT 2008(5) SC 589, the authority titled as Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rai and ors. cited as 2006 (14) Scale 186, the authority titled as B. Venkatamuni Vs. C.J. Ayodhya Ram Singh & Ors. cited as JT 2006(9) SC 415, the authority titled as Jaswant Kaur Vs. Amrit Kaur & ors. cited as 1977(1) SCC 369 and the authority titled as H. Venkatachala Iyemgar Vs. B.N. Thimmajamma cited as AIR 1959 SC 443.
16. Whereas, on the other hand, Ld. Counsel for the defendant no.5 in the written final arguments, has argued that the registered Will has been duly proved by the defendant no.5. It has been further argued that the plaintiff has been unable to point out any suspicious circumstances. It has been further argued that all the defendants are married, having their separate families and residing in their respective houses alongwith their children. It has been further argued that the Suit No. 77/14 (Old Suit No. 159/06) Page No. 11/26 plaintiff has utterly failed to prove her case.
17. Now, coming to the evidence, PW1, in the cross examination, states that at the time of his death, her father was not mentally fit and he was ill since 19751980. PW1, in the cross examination, further states that all the documents pertaining to the treatment of mental illness of her father were with her mother and the same were presently lying with the defendant no.5. PW1 further states that her mother has also expired and all the documents were lying in the trunk. PW1 further states that she cannot produce the said documents as the same are in the possession of the defendant no.5. PW1 further states that her father was under treatment in Railway Hospital during the period 19751980 and under the treatment of Mental Hospital Shahdara during the year 19961997. PW1 further states that she has not filed any suit for cancellation of the registered Will and Gift Deed.
18. The defendant no.5, who has examined herself as DW1, has categorically stated in her crossexamination that her fatherinlaw was not ill and was not suffering from any mental medical problem at the time of his retirement. DW1 has denied the suggestion that his fatherinlaw was ill and people used to say him 'pagal pandit'.
19. DW2, Sh. Jai Narayan, who is the attesting witness to the Will, has categorically stated in his examinationinchief that Sh. Bhagwati Prasad was hale and hearty and was mentally fit. In the cross Suit No. 77/14 (Old Suit No. 159/06) Page No. 12/26 examination, DW2 has denied the suggestion that Sh. Bhagwati Prasad was seriously ill.
20. Besides herself, the plaintiff has not examined any other witness. No witness, either from Railway Hospital or from Mental Hospital, Shahdara has been summoned and examined by the plaintiff. No document has been placed on record by the plaintiff to prove that Late Sh Bhagwati Prasad was not mentally fit and was not having a sound state of mind at the time of the execution of the registered Will dated 30.05.2002, the registered GPA dated 30.05.2002 and the other documents.
21. The defendant no.5 i.e. DW1, in her crossexamination, has categorically denied the suggestion that the documents Ex.DW1/A to Ex. DW1/D are forged and fabricated. DW1 has admitted it to be correct that the document Ex. DW1/B was filed by her in the Civil Suit filed by the plaintiff herein. DW1 further states that she has instituted an appeal against the said orders dated 30.09.2004.
22. In order to prove the registered Will dated 30.05.2002, the registered GPA dated 30.05.2002, the Gift Deed and the affidavit of Sh. Bhagwati Prasad, the defendant no.5 has examined Sh. Jai Narayan, the attesting witness to the said documents as DW2. DW2, in his examinationinchief, has categorically stated that Sh. Bhagwati Prasad had executed a registered Will Ex. DW1/B on record in favour of the Suit No. 77/14 (Old Suit No. 159/06) Page No. 13/26 defendant no.5. DW2 has identified his signatures on the abovesaid registered Will Ex. DW1/B on record, the registered GPA Ex. DW1/A and on the document Ex. DW1/C as well. DW2 has identified the signatures and thumb impressions of Late Sh. Bhagwati Prasad on the abovesaid documents and the photographs of Sh. Bhagwati Prasad on the registered Will. DW2 has further deposed that Sh. Bhagwati Prasad was hale and hearty and was mentally fit. DW1 has further stated that after the marriages of his daughters, Sh. Bhagwati Prasad used to reside in the suit property with his son and his family. DW2 has further stated that prior to the execution of the Will, Sh. Bhagwati Prasad had married all his daughters.
23. In the crossexamination, DW2 has stated that he had signed the abovesaid documents in Seelampur Courts in the office of the Sub Registrar. DW2 has further stated that he was taken to the office of the SubRegistrar by Smt. Sangeeta Sharma and by Sh. Bhagwati Prasad. DW2 has further stated that Smt. Sangeeta Sharma and Sh. Bhagwati Prasad had told him about the nature of the documents. DW2 further states that he does not know whether the said documents were already ready or were got typed after reaching to the Court. DW2 further states that none else had signed the Will Ex.DW1/B as a witness apart from himself. DW2 further states that in his presence, none had tried to make Sh. Bhagwati Prasad the effect and consequences of the abovesaid Suit No. 77/14 (Old Suit No. 159/06) Page No. 14/26 documents. DW2 further states that all the abovesaid three documents were signed in the presence of the SubRegistrar, the Advocate and Mrs. Sangeeta Sharma.
24. Ld. Counsel for the plaintiff has vehemently argued that DW2 has stated that none else had signed on the Will as a witness and this fact, alone, is sufficient to dislodge the Will. It has been further argued that in some of the documents, two places of residence have been mentioned by Late Sh. Bhagwati Prasad, whereas, in the rest of the documents, only one place of residence has been mentioned. It has been further argued that the Will has not been proved by the testimony of DW2.
25. It has to be seen that the Hon'ble High Court of Delhi has held in the authority cited as 188(2012) DLT 538 titled as Ramesh Chand Vs. Suresh Chand and Anr. : "3. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Supreme Court however reiterated that rights which are created pursuant to Section 53 A of the Transfer of the Property Act, 1882 dealing with the doctrine of part performance (para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per section Suit No. 77/14 (Old Suit No. 159/06) Page No. 15/26 202 of the Contract Act, 1872 (para 13) and devolution of interest pursuant to a Will(para 14). therefore, no doubt a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53 A of the Transfer of the Property Act, 1882, Section 202 of the Contract Act, 1872/ There also takes place devolution of interest after the death of the testator in terms of a Will."
"8. Great stress was laid on behalf of the appellant to the fact that the respondent No. 1/ plaintiff had failed to prove the Will Ex. PW1/5 in accordance with law inasmuch as no attesting witnesses were examined. Reliance is placed on behalf of the appellant on the judgment of the Supreme Court in the case of Kahibai & Anr. v. Parwatibai & Ors., 1995 IV AD S.C. (C) 41 to argued that the Will has to be proved in terms of the provisions of Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872 by calling of the attesting witnesses and if the same is not done merely because there is an exhibit mark given to the Will, the same cannot be said to be proved.
In my opinion, the judgment of the Supreme Court in Suit No. 77/14 (Old Suit No. 159/06) Page No. 16/26 the case of Kashibai & Anr. (supra), and various other judgments which deal with the issue of requirement of a Will having to be proved by summoning of an attesting witness, are judgments given in those cases where there are inter se disputes between the legal heirs of a deceased testator and the validity of the Will is questioned in those circumstances. Observations in the said judgments cannot have application to be facts of those cases where the disputes with regard to Will are not classical disputes between the legal heirs of the deceased testator and the Will is an instrument which really furthered an intent to transfer the rights in an immovable property by the testator to the beneficiary. I may note that in the present case, there is absolutely no cross examination at all on behalf of the appellant when the registered Will was proved and exhibited in the statement of the respondent No. 1/ plaintiff as PW1. Once there is no crossexamination, in the cases such as the present, which are different than the classical disputes inter se the legal heirs of a deceased testator, I would feel that the Will should be held to be a proved document inasmuch as the object of the Will in cases such as the present was really to transfer rights in an immovable property after the death of Suit No. 77/14 (Old Suit No. 159/06) Page No. 17/26 the testator. Further, I may note that the observations with respect to Will having to be very strictly proved by calling the attesting witness are in probate cases where the judgment is a judgment in rem whereas in the present case the judgment on the basis of ownership rights devolving upon the respondent No. 1/ plaintiff under a Will will not be a judgment in rem but only a judgment interse the parties. Also another aspect to be borne in mind is that besides the two sons of the deceased Sh. Kundan Lal, who were the plaintiff and defendant no.1 in the suit, the other legal heirs of the deceased Sh. Kundan Lal were very much in knowledge of the present litigation but they never chose to add themselves as parties. Whereas the other son i.e the brother of the parties to the present suit, Sh. Ram Swaroop deposed in favour of respondent no.1/plaintiff as PW2, the only daughter of the deceased Sh. Kundan Lal namely Smt. Krishna deposed in favour of the appellant/defendant no.1 as DW2. Therefore, all the interested parties, who would claim any benefit in the suit property, were aware of the subject litigation.
"12. In view of the aforesaid facts and the validity of the documents, being the power of attorney and Suit No. 77/14 (Old Suit No. 159/06) Page No. 18/26 the Will dated 16.05.1996, the respondent no.1/plaintiff would though not be the classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would have better rights/entitlement of possession of the suit property than the appellant/defendant no.1. In fact, I would go to the extent saying that by virtue of para 14 of judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd.(supra) taken with the fact that Sh. Kundan Lal has already died, the respondent no. 1/plaintiff becomes an owner of the property by virtue of the registered Will dated 16.05.1996. A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement right to the possession of the property than qua the person who is in actual physical possession thereof. The facts of the present case show that the respondent no.1/plaintiff has undoubtedly better entitlement/title/rights in the suit property so as to claim possession from the appellant/defendant no.1/brother. I have already held above that the appellant/defendant no.1 miserably failed to prove there there was any partition as alleged of the year 197 whereby the suit property allegedly Suit No. 77/14 (Old Suit No. 159/06) Page No. 19/26 fell to the share of the appellant/defendant no.1. In fact, the second reason for holding the appellant to be unsuccessful in establishing his plea of partition is that the appellant failed to lead any evidence as to the other two properties being the property no. 290, Ambedkar Basti, Delhi and the second property being the property adjoining the property no. 290, Ambedkar Basti, Delhi as having belonged to the father Sh. Kundan Lal."
26. The Hon'ble High Court of Delhi in the authority cited as 193 (2012) Delhi Law Times 168 titled as Hardip Kaur Vs. Kailash & Anr., has held as under :
"(i) Contract Act, 1872Section 202, Termination of agency Power of Attorney coupled with interest is irrevocable and cannot be revoked/terminated even upon death of principalPurchaser may not be classical owner as would be an owner under registered sale deed but surely he would have better rights/entitlement of possession than the person who is in actual physical possession."
(iv) Contract Act, 1872Section 202 Transfer of Property Act, 1882Sections 53A, 54Evidence Act, 1872 Section 165Suit for possession and mesne profit relating to Suit No. 77/14 (Old Suit No. 159/06) Page No. 20/26 suit propertyMisuse of process of law by raising false claimUnder agreement to sell plaintiff agreed to sell first, second and terrace floors of suit property to defendant no.1 for total consideration of Rs. 4,50,000/ Plaintiff received entire sale consideration and handed over vacant and peaceful possession to defendant no.1 and executed agreement to sell, receipt, affidavit, Will, indemnity bond and irrevocable General Power of AttorneyPlaintiff has no interest left in property and cannot claim possession or mense profits in respect of suit property - POA has been conferred not for the benefit of plaintiff but for the benefit of agent representing purchaser and not as representing principal and it is irrevocableThis agency was only with a view to serve the purpose of purchaserTrue nature of transaction between parties is agreement to transfer suit property by plaintiff to defendant no.1No clause in any of the documents that plaintiff can claim back possession of suit property in any situationAll the conditions of irrevocability are satisfiedDefendants are protected by Section 53A, Transfer of Property ActMere fact that defendants did not file counter claim or suit for specific performance cannot lead to conclusion that they have given Suit No. 77/14 (Old Suit No. 159/06) Page No. 21/26 up all their rights in suit propertyFalse claims and defences are really serious problems with real estate litigation, predominantly because of ever escalating prices of real estateNo infirmity in wellreasoned impugned judgment Plaintiff has misused process of law by raising false claim Plaintiff is not entitled to any reliefCosts of Rs. 2 lacs imposed on plaintiff.
27. It has to be seen that the Will dated 30.05.2002 Ex. DW1/B on record is a registered Will. The settled law is that the testimony of a witness has to be read as a whole. If the testimony of the DW2 is read as a whole, I am of the opinion that his testimony is not shaken in his cross examination. To my mind, even in the crossexamination, DW2 has stuck to his stand as contained in his examinationinchief. It is true that DW2 has stated that none else had signed on the said Will in the capacity of a witness except he himself. Perusal of the said Will reveals that under the column of the witnesses, only one witness is there and he is DW2. Besides the abovesaid attesting witness, Sh. Nannu Mal, Advocate had signed the said Will and Sh. Rajender Singh had signed the said Will in the capacity of the Oath Commissioner. Summons were issued to Sh. Nannu Mal, Advocate and Sh. Rajender Singh, Oath Commissioner as well. The order sheet dated 19.05.2011 reveals that the summons could Suit No. 77/14 (Old Suit No. 159/06) Page No. 22/26 not be served as they had expired. There are a number of judgments on the point that a scribe can be a competent attesting witness to a Will. As such, I am of the opinion that when DW2 states that none else had signed the said Will as a witness apart from himself does not mean that DW2 has not been able to prove the said Will. This Court cannot loose sight of the fact that DW2 has categorically stated that all the three documents were signed in the presence of SubRegistrar, the Advocate and Mrs. Sangeeta Sharma and the staff of the SubRegistrar was also there. To my mind, the submission of Ld. Counsel for the plaintiff is absolutely fallacious, when it is argued that the Will Ex. DW1/B on record is shrouded by suspicious circumstances and the defendant no.5 has not been able to remove the suspicious circumstances.
28. It has to be further seen that besides the registered Will, the registered GPA is also there on record. DW2, to my mind, has also proved the said registered GPA. An affidavit in the form of Ex. DW1/D is also there on record, which clearly states that the GPA, the Will and the Gift Deed shall be irrevocable. As such, I am of the opinion that the defendant no.5 has not been only able to prove the registered Will Ex. DW1/B on record, but also has been able to prove the registered GPA, the Gift Deed and the Affidavit of Late Sh. Bhagwati Prasad.
29. Applying the ratio of the abovestated authorities of the Hon'ble High Court of Delhi as well, I am of the opinion that the Suit No. 77/14 (Old Suit No. 159/06) Page No. 23/26 defendant no.5 has been able to prove the documents Ex. DW1/A to Ex. DW1/D in her favour.
30. Ld. Counsel for the plaintiff has further argued that all other legal heirs were not given any share by the deceased Sh. Bhagwati Prasad except the defendant no.5 and this amounts to raising of a suspicious circumstance. DW2 has categorically stated that before the execution of the Will, Late Sh. Bhagwati Prasad had married all her daughters and as such, I am of the opinion that the abovesaid submission of the Ld. Counsel for the plaintiff is without any substance.
31. In the light of the abovesaid discussion, I am of the opinion that the defendant no.5 has been able to prove issue no.1 in her favour and accordingly, issue no.1 is decided in favour of the defendant no.5. Consequently, issue no. 6 is decided against the plaintiff. Issue no. 2 :
32. Issue no. 2 pertains to the plea of the bar of the present suit by Order 2 Rule 2 of the CPC. Perusal of the record of the case reveals that vide orders dated 13.04.2010, the Ld. Predecessor of this Court has already held that the provisions of Order 2 Rule 2 of the CPC have been wrongly invoked. Vide said orders dated 13.04.2010, an application of the defendant no. 5 U/o 7 Rule 11 of the CPC was dismissed. As such, I am of the opinion that the abovesaid issue does not survive any more for Suit No. 77/14 (Old Suit No. 159/06) Page No. 24/26 adjudication.
Issue No. 3 :
33. Issue no.3 pertains to the plea of the defendant no.5 to the effect that the present suit has not been valued properly. Perusal of the record of the case reveals that the said issue no.3 was treated as a preliminary issue and the same was decided against the defendant no.5 and in favour of the plaintiff vide orders dated 17.04.2007 passed by the Ld. Predecessor of this Court. As such, I am of the opinion that the abovesaid issue does not survive any more for adjudication by this Court. Issue No. 4 :
34. The onus to prove this issue has been placed upon the defendant no.5. The defendant no.5 had taken an objection in the written statement that the present suit is barred by Section 23 of the Hindu Succession Act, 1956. Perusal of the Hindu Succession Act, 1956 reveals that Section 23 thereof has been repealed by the Hindu Succession (Amendment) Act, 2005 with effect from 09.09.2005. As such, I am of the opinion that the defendant no.5 has failed to prove this issue. Issue no. 5 :
35. Issue no.5 again relates to the objection of the defendant no. Suit No. 77/14 (Old Suit No. 159/06) Page No. 25/26 5 to the effect that this Court has no pecuniary jurisdiction to try and entertain the present suit because the total value of the suit property was more than Rs. 30 lacs. As stated by me herein above, the submission of the defendant no.5 to the effect that the present suit was not valued properly for the purposes of the court fees and jurisdiction was already declined by the Ld. Predecessor of this Court vide orders dated 17.04.2007. I am of the opinion that this issue and issue no.3 are inter related. As such, I am of the opinion that the defendant no.5 has not been able to prove this issue and accordingly, this issue is decided against the defendant no.5.
Relief :
36. In the light of my findings on the foregoing issues, the suit of the plaintiff is hereby dismissed. No orders as to costs.
Decree sheet be prepared accordingly by the Reader. File be consigned to Record Room after due compliance.
Announced in the open court (RAJ KUMAR) on this 11th day of November 2014. ADJ17 (Central) Tis Hazari Courts, Delhi.
Suit No. 77/14 (Old Suit No. 159/06) Page No. 26/26