Delhi District Court
Ravinder Kumar Babbar vs . Smt. Krishna Devi on 2 February, 2016
Ravinder Kumar Babbar Vs. Smt. Krishna Devi
IN THE COURT OF JAGDISH KUMAR
ADJ-06 (WEST): DELHI
CS No. : 347/2014
Unique Case ID No : 02401C0171652011
In the matter of:
Ravinder Kumar Babbar
S/o Late Sh. Kartar Chand
R/o 350-G/1A, Gali no. 2
Sri Nagar Colony
Near Post Office
Delhi - 110034 .............. Plaintiff
Versus
1. Smt. Krishna Devi
Widow of Late Sh. Surinder Kumar Babbar
2. Ms. Kavita
D/o Late Sh. Surinder Kumar Babbar
3. Sh. Khushwant Rai
S/o Late Sh. Surinder Kumar Babbar
All R/o WZ 25, Rattan Park, Basai Darapur
New Delhi -110015
Also At
WZ 5A, Ramgarh Colony
Near Basai Darapur
New Delhi - 110015 ............ Defendants
Date of institution of the Suit : 21.04.2011
Date of arguments : 30.01.2016
Date of decision : 02.02.2016
JUDGMENT :-
CS No. : 347/14 Page 1/13Ravinder Kumar Babbar Vs. Smt. Krishna Devi
1. The facts of the case as stated in the plaint are that the plaintiff is residing at 350-G/1A, Gali no. 2, Sri Nagar Colony, Near Post Office, Delhi - 110034 along with his family.
2. It is stated by the plaintiff that Late Sh. Surinder Kumar Babbar was the real brother of plaintiff who passed away on 12.04.2011 and was residing at WZ 25, Rattan Park, Near Basai Darapur,New Delhi 110015 along with his family members i.e. defendant no. 1 to 3.
3. It is stated by the plaintiff that his mother Parsanu Devi was the absolute owner of property bearing no. WZ 5A, Ramgarh colony, Near Basai Darapur, New Delhi -15 admeasuring 116 sq. yards (hereinafter called the suit property) as she purchased it vide registered sale deed dated 18.08.1964. At the time of purchasing suit property was a vacant plot but she raised constructions from her own funds. Thereafter, she died intestate leaving behind his father and two sons i.e. plaintiff and Late Sh. Surinder Kumar Babbar only.
4. It is stated by the plaintiff that the suit property consists of two rooms, two shops, one kitchen, one bathroom, one store room, toilet, courtyard and mezzanine room.
5. It is further stated by the plaintiff that his mother Smt. Parsanu Devi expired on 09.06.1994 and his father Sh. Kartar Chand expired on 08.09.2000 leaving behind two legal heirs i.e. plaintiff and Late Sh. Surinder Kumar Babbar only.
6. It is stated by the plaintiff that that suit property is now in CS No. : 347/14 Page 2/13 Ravinder Kumar Babbar Vs. Smt. Krishna Devi possession of the defendants. It is stated by the plaintiff that after the death of their mother Parsanu Devi his brother Late Sh. Surinder Kumar Babbar did not disclose that the suit property belongs to their mother and misrepresented that the same is owned by their father Sh. Kartar Chand. And after death of their father Late Sh. Surinder Kumar Babbar represented himself as the owner of the suit property by virtue of Will dated 10.05.1996 executed by their father Late Sh. Kartar Chand. Late Sh. Surinder Kumar Babbar filed a probate case and was able to got probate of the Will dated 10.05.1996 fraudulently in his favour from the Court of Sh. H. R. Malhotra, Ld. District Judge Delhi(As the leadership near then) vide judgment dated 08.04.2002.
7. It is stated by the plaintiff that he did not objected to probate petition because he was not aware that his mother was the absolute owner of the suit property. It is stated by the plaintiff that he came to know about this fact from the office of MCD in March, 2011 after inspection of the MCD records in respect of the suit property.
8. It is stated by the plaintiff that he got certified copy of the sale deed dated 18.08.1964 from the office of the concerned MCD department. It is stated by the plaintiff that Late Sh. Surinder Kumar Babbar has fraudulently taken the probate of Will executed by his deceased father as his father was neither the owner nor was competent to execute the said will.
9. It is stated by the plaintiff that after the death of their mother Smt. Parsanu Devi, he as well as Late Sh. Surinder Kumar Babbar were the only legal heirs of Late Smt. Parsanu Devi and were entitled CS No. : 347/14 Page 3/13 Ravinder Kumar Babbar Vs. Smt. Krishna Devi to half share each in the suit property.
10. It is stated by the plaintiff that after the death of Late Sh.
Surinder Kumar Babbar, he (plaintiff) and defendant no. 1 to 3 are entitled for half share of the suit property respectively. It is stated by the plaintiff that after knowing the above fact he has been repeatedly requesting the defendant no. 1 to 3 to partition the suit property and separate the one half share of the plaintiff in the suit property by metes and bounds but defendants have refused to do so on 31.03.2011 and 15.04.2011. Hence this suit is filed by the plaintiff.
11. The plaintiff has sought the relief of partition of the suit property and possession of half portion of the suit property after partition of the suit property by metes and bounds. The plaintiff has also sought the relief of permanent injunction thereby restraining the defendants from selling, alienating or parting with the possession of the suit property no. WZ 5A, Ramgarh Colony, Near Basai Darapur, New Delhi - 110015.
12. Summons of the suit were issued to the defendants. Defendants filed a joint detailed written statement. Defendants have took the preliminary objection that plaintiff has conceal the material fact from the court.
13. While replying on merits the defendants have took the defence that late sh. Kartar Chand executed a will dated 10.05.1996 in favour of Late Sh. Surender Kumar Babbar the predecessor in interest of the defendants. Late Smt Parsanu Devi had executed the will dated CS No. : 347/14 Page 4/13 Ravinder Kumar Babbar Vs. Smt. Krishna Devi 04.09.1989 in favour of Late Sh. Kartar Singh. The probate petition has been granted in favour Late Sh. Surender Kumar Babbar predecessor in interest of the defendants. The defendants have denied the right in the suit property and prayed the dismissal of the suit.
14. On the pleadings of the parties, the following issues were framed on 08.11.2011 as under:
1) Whether the plaintiff is entitled for possession of half portion of suit property WZ 5A, Ram Garh Colony, New Delhi -110015? OPP
2) Whether the plaintiff is entitled for partition of suit property i.e. WZ 5A, Ram Garh Colony, New Delhi - 110015? OPP
3) Whether the plaintiff is entitled for permanent injunction? OPP
4) Whether this Court has no pecuniary jurisdiction to try the suit? OPD
5) Whether the plaintiff has no locus standi to file the suit? OPD
6) Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD
7) Whether there is no cause of action in favour of plaintiff and against the defendant to file the present suit? OPD
8) Whether the plaintiff has concealed the material facts from this Court and has not come with clean hands before this Court? OPD
9) Relief.
15. EVIDENCE The plaintiff has examined himself as PW1. PW1 has relied upon the death certificates as Ex. PW1/A (colly.), certified copy of sale CS No. : 347/14 Page 5/13 Ravinder Kumar Babbar Vs. Smt. Krishna Devi deed as Ex. PW1/B, site plan as Ex. PW1/C, documents regarding probate as Ex. PW1/D (colly.), certified copy of judgment dated 08.04.2002 as Ex. PW1/E, copy of the application as Ex. PW1/F.
16. The defendant examined Sh. Sanjeet Kumar JJA record room Sessions Delhi as DW1. He produced the file of probate case no. 287/2000 and judgment dated 08.04.2002 along with the original will executed by Sh. Kartar Chand in favour of Sh. Surender Kumar Babbar dated 10.05.1996 and proved the certified copy of judgment which is already Ex. PW1/C and the certified copy of original will which is already Ex. PW1/D.
17. The defendant has also examined Sh. Laksay Babbar as DW3.
The DW3 has relied upon the copy sale deed as Ex. DW3/1 (OSR), copy Will dated 04.09.1989 as Ex. DW3/2 (OSR), copy of death certificate of Persanu Devi as Ex. DW3/3 (OSR), copy of death certificate of Kartar Chand as Ex. DW3/4 (OSR), certified copy of Will dated 10.05.1996 as Ex. DW3/5 (OSR), certified copy of Probate Petition as Ex. DW3/6, certified copy of Judgment passed by Sh. H. R. Malhotra, Hon'ble District Judge, Delhi as Ex. DW3/7, copy of death certificate of Sh. S. K. Babbar as Ex. DW3/8 (OSR), copy of reply legal notice dated 20.12.2000 as Ex. DW3/9, copy of reply legal notice dated 23.12.2008 as Ex. DW3/10 (Colly.), copy of postal receipts as Ex. DW3/11 (Colly.). There is no DW2 examined in the case.
18. I have heard Ld. Counsel for plaintiff and Ld. Counsel for defendant and given my thoughtful consideration to the submission made by them. I have also carefully considered the material available CS No. : 347/14 Page 6/13 Ravinder Kumar Babbar Vs. Smt. Krishna Devi on record. My issue wise findings are as under:-
19. ISSUE NO. 11) Whether the plaintiff is entitled for possession of half portion of suit property WZ 5A, Ram Garh Colony, New Delhi -110015? OPP ISSUE NO. 2
2) Whether the plaintiff is entitled for partition of suit property i.e. WZ 5A, Ram Garh Colony, New Delhi - 110015? OPP ISSUE NO. 5
5) Whether the plaintiff has no locus standi to file the suit?
OPD ISSUE NO. 7
7) Whether there is no cause of action in favour of plaintiff and against the defendant to file the present suit? OPD Issue no. 1, 2, 5 & 7 are taken up together being interconnected as finding on one issue will have bearing upon the findings of the another issue and vice-versa. The onus to prove issue no. 1 & 2 are upon the plaintiff. The onus to prove issue no. 5 & 7 is upon the defendants. The plaintiff has claimed the partition of suit property WZ-5A , Ram Garh Colony, near Basai Darapur, New Delhi-15, admeasuring 116 sq. yards being owned by his mother namely Smt. Parsanu Devi who was owner of the same. It is the case of the plaintiff that Smt. Parsanu Devi died intestate. On the other hand it is the case of the defendants that Smt. Parsanu Devi executed a will in favour of her husband Late Sh. Kartar Chand. And Late Sh. Kartar Chand subsequently bequeathed the suit property by registered will dated 10.05.1996 in favour of Late husband of defendant no. 1 and father of CS No. : 347/14 Page 7/13 Ravinder Kumar Babbar Vs. Smt. Krishna Devi defendant no. 2 & 3. It is also case of the defendants that a probate has been granted with respect to the will dated 10.05.1996.
20. Considering the argument of Ld. Counsel for plaintiff and defendants and on perusal of record it transpired that the fact that Late Smt. Parsanu Devi was having ownership right in the suit property vide sale deed dated 18.08.1964 (Ex. DW3/1) is admitted. The death of late smt. Parsanu Devi and Late Sh. Kartar Chand is also admitted. It is also admitted fact on record that plaintiff and Late Sh. Surender Kumar husband of defendant no. 1 and father of defendant no. 2 & 3 are legal heirs of Late Smt. Parsanu Devi. The main dispute between the plaintiff and defendants is that Late. Smt. Parsanu Devi had not executed any will in favour of Kartar chand and she had expired intestate. And consequently Late Sh. Kartar Chand could not have execute the will dated 10.05.1996 which has been got probated through the competent Court of jurisdiction.
21. It is argued by the Counsel for defendants that plaintiff has put his appearance in the probate case and subsequently stop to appear in probate petition. Accordingly, a probate was granted in favour of husband of the defendant no. 1 & father of defendant no. 2 & 3. So, plaintiff cannot challenge the title of the husband of the defendant no. 1 & father of defendant no. 2 & 3 in respect of the suit property in the present suit. It is further argued by the Ld. Counsel for defendant that the father of the plaintiff and father-in-law of defendant no. 1 and grand father of defendant no. 2 & 3 was having title in his favour on the basis of will (Ex DW3/2) and who has executed the valid will (Ex DW3/5) in favour the husband of the defendant no. 1 & father of CS No. : 347/14 Page 8/13 Ravinder Kumar Babbar Vs. Smt. Krishna Devi defendant no. 2 & 3.
22. To see whether this court can go into the question of title, the settled preposition of law is required to be dealt with. The Hon'ble Supreme Court of India in case titled as Kanwaljeet Singh Dhillon vs. Hardayal Singh Dhillon and ors. (2007) 11 SCC 357 has observed "It is well settled that the function of a probate court are to see that the will executed by the testator was actually executed by him in a sound disposing state of mind, without coercion of undue influence and the same was duly attested. It was, therefore, not competent for the Probate Court to determine whether Late SK had or had not the authority to dispose of the suit properties which he purported to have bequeathed by his will. The Probate court is also not competent to determine the question of title to the suit properties nor can it go into the question whether the suit properties bequeathed by the will were joint ancestral properties or acquired properties or the testator".
23. In view of the judgment of Hon'ble Supreme Court of India in case titled as Kanwaljeet Singh Dhillon vs. Hardayal Singh Dhillon and ors (Supra). This Court is competent to decide the question with respect to right, title and interest in the suit property. The Probate Court has to decide only regarding the genuineness of the Will for which a probate petition has been filed. The probate Court cannot go into the rights of the person who has executed the Will, whether he was having right or not to execute the Will regarding the suit property.
24. To adjudicate the question of right, title and interest of the parties the evidence on record has to be appreciated. On perusal of CS No. : 347/14 Page 9/13 Ravinder Kumar Babbar Vs. Smt. Krishna Devi pleading and the defence as taken by the defendants Late Sh. Kartar Chand had got right to execute the Will Ex. DW3/5 by virtue of Will Ex. DW3/2 being executed by Late Smt. Parsanu Devi who was the owner of the suit property. So, it is mandatory for the defendants to prove on record that will (Ex. DW3/2) on record because through this document Late Sh. Kartar chand got right to execute the Will Ex. DW3/5 in favour of Late husband of defendant no. 1 and father of defendant no. 2 & 3. It is settled law that a person cannot pass a better title than he / she has have with respect to an immovable property. It is mandatory for the defendants to prove a fact on record that the Will Ex. DW3/2 was executed in favour of Late Sh. Kartar Chand. The defendants have placed on record the photocopy of will Ex. DW3/2 on record. But none of the witness to this document has been examined by the defendants. Hon'ble Supreme Court of India in case titled as Janki Narain Bhoir Vs. Narain Namdev Kadam (2003) 2 SCC 91 has observed that execution of Will require by section 63 of Succession Act to be attested by two or more witnesses. One of the two attesting witnesses can be examined even though the other one is available but he must prove the execution of the will as required U/s 68 of Evidence Act.
25. Here in the present suit, none of the witness to the execution of will Ex. DW3/2 has been examined by the defendants. The consequence of the same is that the document Ex. DW3/2 is not proved on record. If document Ex. DW3/2 is not proved on record then Late Sh. Kartar Chand could not have right to execute the will Ex. DW3/5 with respect to the suit property. Accordingly, the defendants have failed to prove a fact that Late Sh. Kartar Chand was having right CS No. : 347/14 Page 10/13 Ravinder Kumar Babbar Vs. Smt. Krishna Devi to bequeath the suit property in favour of Late Sh. Surender Kumar Babbar, husband of the defendant no. 1 & father of the defendant no. 2 & 3. The issue is decided accordingly by holding that plaintiff has right to partition of the suit property being legal heir of Late Smt. Parsanu Devi in equal share with Late Sh. Surender Kumar Babbar. The issue is disposed of accordingly.
26. ISSUE NO. 3Whether the plaintiff is entitled for permanent injunction? OPP The onus to prove this issue is upon the plaintiff. Through present issue the plaintiff has claimed the relief of permanent injunction against the defendants thereby claiming that the defendants be restrained from selling, alienating and transfer of suit property. Since plaintiff has right in the suit property. He is entitled for partition of the suit property. Until and unless the suit property is not partitioned in equal share between the plaintiff and defendants till then defendants have no right to sell alienate or transfer the suit property except their share in the suit property. Accordingly the defendants are restrained from selling, alienating or parting with entire property against the defendants. The issue is decided accordingly in favour of the plaintiff and against the defendants.
27. ISSUE NO. 44) Whether this Court has no pecuniary jurisdiction to try the suit? OPD ISSUE NO. 6
6) Whether the suit has not been properly valued for the CS No. : 347/14 Page 11/13 Ravinder Kumar Babbar Vs. Smt. Krishna Devi purpose of court fees and jurisdiction? OPD The issue no. 4 & 6 are taken up together being interconnected as finding on one issue will have bearing on the finding of other. The onus to prove these issues are upon the defendants. The defendants have took the plea that the plaintiff has not valued the suit properly for the purpose of court fee and jurisdiction. On perusal of file it reveals that plaintiff has valued the suit for the purpose of possession and partitioned at the sum of Rs. 15 Lacs and paid the Court fee accordingly. The plaintiff has deposed on the same lines in his examination in chief. Nothing has come in his cross examination to diminish the fact as deposed by him in the examination in chief regarding the valuation of the suit property for the purpose of court fee and jurisdiction. The defendants have been unable to brought on record any evidence what should be the value of the suit property. Even they have disclosed the value of the suit property as Rs. 30 Lacs but they have not brought any evidence on record to prove the assertion as made in the written statement. In these circumstances the defendants have failed to prove this issue. On the other hand the plaintiff has been able to prove that the suit has been properly valued for the purpose of court fee and jurisdiction. The issue is accordingly decided in favour of plaintiff and against the defendant.
28. ISSUE NO. 88) Whether the plaintiff has concealed the material facts from this Court and has not come with clean hands before this Court? OPD The onus to prove this issue is upon the defendants. It is argued by the Ld. Counsel for the defendants that plaintiff has concealed the CS No. : 347/14 Page 12/13 Ravinder Kumar Babbar Vs. Smt. Krishna Devi material facts from the Court hence he is not entitled for relief as prayed in the plaint. It is argued by the Ld. Counsel for defendants that plaintiff was having knowledge of the execution of Will Ex. DW3/2 and DW3/5 as same was disclosed to all the persons of biradari at the religious ceremony. The defendants have not examined any witness from the Biradari to prove this assertion. The date has also not been disclosed by the defendants in the written statement or in the defence evidence on which the execution of the Will Ex. DW3/2 and Ex. DW3/5 was informed at the religious ceremony or to the biradari. It is also not disclosed what were the religious ceremony on which occasion the fact of execution of Will by Smt. Parsanu Devi and Late Sh. Kartar Chand was disclosed to the biradari. The defendants have failed to prove the concealment.
29. On the other hand, the right claimed by the plaintiff is substantial right being claimed under substantial law. The issue is decided accordingly in favour of the plaintiff and against the defendants.
30. RELIEF In view of the discussion above the plaintiff and defendants have equal right in the suit property bearing no. WZ 5A, Ramgarh colony, Near Basai Darapur, New Delhi -15 admeasuring 116 sq. yards. Accordingly, preliminary decree is passed in favour of plaintiff and decree sheet be prepared accordingly.
Announced in the open court (JAGDISH KUMAR)
today i.e on 02.02.2016 ADJ-06 (WEST)/DELHI
TIS HAZARI COURTS
CS No. : 347/14 Page 13/13