Delhi District Court
Shri. Mankey Ram(Deceased) vs Sh. Ranvir Singh Rana on 28 January, 2019
IN THE COURT OF MS. RICHA SHARMA,
CIVIL JUDGE (WEST), TIS HAZARI COURTS, DELHI
CS SCJ No : 608278/2016
Date of Institution : 19.08.1995
Date of reservation of Judgment : 07.01.2019
Date of pronouncement of Judgment : 28.01.2019
Shri. Mankey Ram(deceased)
through his LR:
Sh. Bijender Singh S/o late Sh
Mankey Ram
R/o Village & PO Bijwasan, New Delhi 110 061.
............Plaintiff
Vs
1. Sh. Ranvir Singh Rana,
S/o Sh. Raghbir Singh
2. Sh. Raghbir Singh,
S/o Late Sh. Tej Ram,
3. Sh. Dalip Singh,
S/o Late Sh. Tej Ram,
4. Sh. Zile Singh,
S/o Late Sh. Tej Ram,
5. Smt. Chander,
Widow of late Sh. Hoshiar Singh
6. Sh. Rajinder
S/o Late Sh. Hoshiar Singh
7. Sh. Sameen,
CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 1 of 34
S/o Late Sh. Hoshiar Singh
All residents of: Village and Post Office
Bijwasan, New Delhi 110 061.
8. Ms. Puja Bhatia,
D/o Sh. Pran Bhatia
9. Sh. Alok Bhatia,
S/o Sh. Pran Bhatia,
Both R/o 15 Purvi Marg, Basant Vihar, New Delhi.
M/s Arjun Agro Technical (P) Ltd.
1/1 Vijay Nagar, New Delhi.
..........Defendants
SUIT FOR DECLARATION AND INJUNCTION
JUDGMENT
1. The factual matrix of the present suit in brief as per the plaint is that the parties to the suit belong to Hindu family and before the consolidation proceedings in the year 1975, plaintiff along with defendant No. 2, 3 and 4 with Late Sh. Hoshiar Singh and Late Sh. Dharam Singh were the joint holders' of land measuring 70 bighas and 19 biswas recorded in Khata No. 210 in village Bijwasan of which plaintiff and late Sh. Dharam Singh had 1/3rd Share each while rest of 1/3rd had fallen to the share of the four brothers, sons of late Sh. Tej Ram. It is stated that besides the above said land, these persons were having other land situated in village CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 2 of 34 Sahalapur (Bijwasan), New Delhi 110 061 wherein also the parties had 1/3rd share accordingly and that land with shares continued to be shamlat land in the revenue record.
2. It is stated that after the consolidation proceedings in the year 1975, the land was recorded in the name of parties separately and land measuring 26 bighas 6 biswas (standard raqba) and 24 bighas 13 biswas (simple raqba) stood mutated in the name of late Sh. Dharam Singh, uncle of plaintiff.
3. It is stated that on 20.11.1994, late Sh. Dharam Singh died issueless and though he was married twice but at the time of his death, was not survived by any of his wives and as such according to the general rule of succession, enumerated under Section 50 of Delhi Land Revenue Act 1954, it is contended that the plaintiff became entitled to 1/2 of share in the property left behind by late Sh. Dharam Singh being the son of deceased real brother, Chhalu Ram while with regard to the rest of the half, the sons of late Shri Tej Ram became entitled. It is stated that to the knowledge of the plaintiff, deceased late Sh. Dharam Singh, openly declared that he will not dispose off his property by way of any testamentary disposition. It is stated that deceased Sh. Dharam Singh remained in the village and had never gone out of the village for last 10 CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 3 of 34 years before his death. It is contended that since the land stands mutated in the name of late Sh. Dharam Singh being inherited land of joint family property at the time of coming into operation of the Delhi Land Reform Act 1954, the deceased had no power to deprive the plaintiff or any of his other legal representative of their legal right of inheritance in the property/land left behind by Late Sh.Dharam Singh by way of any testamentary disposition.
4. It is stated that on 23.01.1995, in the evening plaintiff heard defendant No. 1 negotiating with some property dealer in respect of the sale of the estate left behind by late Sh. Dharam Singh, plaintiff immediately made enquiries and asked defendant No.1 about his title to the exclusion of plaintiff's right upon which defendant No.1 told him that the suit land bearing khasra No. 116/17 (36), 116/23 (416), 116/24 (416), 126/3 (4
11), 126/4 (48), 126/8/1 (019), 665 Min (113) total 24 bighas and 9 biswas situated in the revenue estate of village Bijwasan stands mutated in his name in the revenue record and claimed his right to se1l the property.
5. It is contented that the plaintiff immediately contacted one Sh. N. K.Bhardwaj, Advocate on the morning of 24th January, 1995 and plaintiff CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 4 of 34 along with said Sh.Bhardwaj inspected the record before the Consolidation Officer and found that defendant No. 1 had placed on record a false and fabricated and ingenuine Will allegedly executed by Late Sh. Dharam Singh, on the basis of which the ACO on the application of defendant No. 1 dated 12.12.1994, passed order dated 29.12.1994, sanctioning the mutation of the land in favour of defendant No. 1. It is averred that plaintiff filed an appeal against the said order before the court of Additional Collector, Delhi and Sh. Ramesh Tiwari, the Additional Collector, Delhi, vide order dated 10.07.1995, rejected the appeal of the plaintiff holding that the revenue court had no power to look into the legality, validity or genuinity of the document, more particularly the Will. It is stated that plaintiff has preferred an appeal against order of the Additional Collector Delhi before the court of the Financial Commissioner, Delhi. It is contended that the Will dated 16.12.1988, alleged to have been executed by Late Sh. Dharam Singh is a forged, fabricated and ingenuine document and defendant No. 1 must have obtained the thumb impression of late Sh. Dharam Singh without telling the contents thereof to him. It is stated that deceased late Sh. Dharam Singh had never willingly on his own executed any Will dated 16th CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 5 of 34 December, 1988 as placed on revenue record by defendant No. 1 and the said Will is an outcome of fraudulent, coercive and deceitful act of respondent No. 1, who had even gone to the extent of getting the said Will registered with the office of SubRegistrar, Gurgaon vide Sr. No. 1087, Additional Book No. 3, Ledger No. 22, page 166 dated 16.12.1988 though neither the deceased was an ordinary resident of Gurgaon nor had any relation there nor the property in respect of which the alleged Will is purported to have been executed by late Sh. Dharam Singh was situated in the jurisdiction of SubRegistrar, Gurgaon (Haryana). It is contended that at the relevant time, the deceased was not capable of executing the said document as he was above 90 years of age and was suffering from old age ailments and was not possessing a sound mind. It is stated that the deceased had always openly declared that he will divide his property according to natural rule of succession and will not do injustice with any of his LRs. It is further averred that in the absence of his own off springs the deceased will treat the LRs of his brother as his own family members and that he had no partiality in his mind for anybody. It is stated that the deceased was an illiterate person and had never gone to Gurgaon and on 16.12.1988, defendant No. 1 must have produced some other person CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 6 of 34 posing him as Late Sh. Dharam Singh before the SubRegistrar, Gurgaon. Hence, the present suit.
6. By virtue of the present suit, plaintiff has prayed as under:
(a) A decree of declaration thereby declaring the Will dated 16.12.1988 as ingenuine, fraudulent, inoperative, void and illegal and not binding upon the plaintiff as the same was got executed by playing fraud, coercion and misrepresentation and consequently plaintiff is entitled to 1/2 of the share of estate left behind by late Sh. Dharam Singh.
(b) A decree of permanent injunction restraining the defendants including defendant No. 10, their agent, associate servants, family members and assigns from selling, mortgaging, alienating and in any manner parting with the possession of the said land bearing khasra No. 116/17 (36), 116/23 (416), 116/24 (416), 126/3 (411), 126/4 (48) 126/8/1 (019) 665 Min (113) total area 24 Bighas and 9 Biswas situated in Village Bijwasan, New Delhi 61 and agricultural land bearing Khasra No. 24/2/2 (212), 7/1 (314), 8 (416), 9/2 (43) situated in the revenue estate of village Sahalapur (Bijwasan) New Delhi and plot No. 665 measuring 1 Bighas 13 Biswas bearing Khata No. 304 in Lal Dora of Village Bijwasan, New Delhi 61, in favour of the plaintiff and against the CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 7 of 34 defendants including defendant No. 10 with costs and;
(b1) A decree for declaration, declaring the sale deed dated 24.07.1995 executed in favour of defendants No. 8 by defendant No. 1 and the Sale deed executed by defendants No. 8 and 9 in favour of defendant No. 10 on 06.09.1996 qua the land bearing Khasra No. 116/17 (36), 116/23 (416), 116/24 (416), 126/3 (411), 126/4 (48) 126/8/1 (019) and 665 min 1 Bigha 13 Biswas situated in the revenue estate of Bijwasan (Delhi) as null and void, illegal and not binding upon the plaintiff. (C) any other relief which the court may deem fit and proper in the circumstances of the case may also be granted in favour of the plaintiff and against the defendants.
7. Written statement was also filed on behalf of the defendant no. 1, wherein it is stated that plaintiff has sought the declaration and injunction in the present suit which is an incomplete relief. It is further stated that the plaintiff has not sought the consequential relief of possession which is very much incumbent on the plaintiff for the maintainability of the suit as plaintiff is neither in possession of the suit property nor he is owner or Bhumidar of the land. It is stated that the land in question is situated at Delhi where Delhi Land Reforms Act is applicable and the court has no CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 8 of 34 jurisdiction to try the matter which relates to Delhi Land Reforms Act and the suit for declaration is not maintainable. It is stated that the plaintiff is entitled to succeed in accordance to the sequence of the provisions of Delhi Land Revenue Act Section 50 but there is no provision in the said act as mentioned in the suit. It is stated that the suit property had already been sold by defendant No. 1 and the possession of the same had been delivered to the respective purchasers and thus, the suit is not maintainable and is liable to be dismissed.
8. In reply on merits, it is stated that there is no question of succession in accordance to pedigree degree as the suit property is subject matter of Will which is a registered document. It is stated that the deceased Sh. Dharam Singh had executed a Will of the land of which he was Bhumidar in exclusion of anybody else, he was the sole bhumidar of the land in question when he executed a valid registered Will in the year 1988. It is stated that passing of the order of mutation by ACO dated 29.12.1994 is not denied on the application of defendant No. 1 dated 12.12.1994. It is stated that the deceased Sh. Dharam Singh executed a genuine will and got it registered and on the basis of which defendant no. 1 got the mutation in the revenue record and started cultivating the said land. It is further contended that defendant no. 1 used to cultivate the land even in CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 9 of 34 the life time of deceased Sh. Dharam Singh. It is stated that Sh. Dharam Singh used to manage whole of the family of the defendant and defendant No. 1 used to act on behalf of Sh. Dharam Singh to manage all the affairs of family and also cultivated the land in question. It is averred that as defendant no. 1 was in cultivatory possession of the said land at the time of death of Sh. Dharam Singh and there was a Will in his favour so mutation was effected in his name. It is contended that the plaintiff was separated from the family long back in the year about 1958 and had no connection whatsoever with Sh. Dharam Singh and claiming his succession is a false pleading. It is averred that Sh. Dharam Singh made it open that the Will has been executed in favour of the defendant no. 1 about his whole property and the other heirs ought not to interfere in the peaceful user of the property of the defendant no. 1. It is stated that defendant No. 1 had already disposed of the property in question to different owners. In rest of the WS, averments made by the plaintiff in the plaint were categorically denied by the defendant and a prayer is sought to dismiss the suit.
9. Written statement on behalf of defendant No. 2 to 5 was also filed whereby it is contended that the suit is bad on account of mis-joinder of parties. It is stated that Sh. Dharam Singh was residing with defendant CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 10 of 34 No. 1 being his karta and head of the family and out of affection and love, he executed the valid Will in favour of defendant no. 1. It is also stated that the suit is not in proper form and claiming 1/2 share in the suit property by the plaintiff is wrong. In reply on merits it is averred that Sh. Dharam Singh was the sole bhumidar of the land situated in village Bijwason, Delhi measuring 26 bighas and 6 biswas. It is stated that the Sh. Dharam Singh executed a valid Will in favour of defendant No. 1 and the said will was duly implemented by the revenue department. It is stated that the plaintiff filed an appeal against the mutation order and the same was dismissed on 10.07.1995. It is stated that the Will dated 16.12.1988, is genuine one and was in the knowledge of the parties. In rest of the WS, averments made by the plaintiff in the plaint were categorically denied by the defendant and a prayer is sought to dismiss the suit.
10.Written statement on behalf of defendant No. 8 to 9 was also filed whereby it is contended that the the plaintiff was in knowledge of sale deed which was executed by defendant no.1 in their favour as he was black mailing the defendants to part with certain money and they were threatened that if his demands are not fulfilled, he would put them into false litigation with regard to the suit land and when the defendants did not succumb to his legal demands plaintiff impleaded the defendants in CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 11 of 34 the present suit. It is stated that the plaintiff and all other defendants were in the knowledge of sale of land in question by defendant no. 1 to the defendants No. 8 to 9 from the date of execution of sale deed itself i.e. much prior to the filing of the suit . It is further contended that defendant No. 1 inherited by the person, in whose favour the Will exist. It is stated that after the death of Sh. Dharam Singh, defendant no. 1 became its absolute owner. It is averred that the plaintiff was aware of the fact that the land has been mutated in favour of defendant No. 1 on account of Will executed by late Sh. Dharam Singh in his favour. It is stated that as a matter of fact, the transaction took place in presence or to the knowledge of the plaintiff and other defendants and there was no objection from any one else. It is stated that the land was purchased by answering defendants for lawful consideration and after making proper verification from the Revenue records and in consultation and with the knowledge of the parties and since the plaintiff and other defendants became dishonest subsequently as the price of land is increasing in Delhi, so they started pressurizing and black mailing the answering defendants to give them more money. In rest of the WS, averments made by the plaintiff in the plaint were categorically denied by the defendant and a prayer is sought to dismiss the suit.
CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 12 of 34
11.Replication to the written statement filed by defendant No. 1 was also filed by the plaintiff where in the contents of the plaint were reiterated and the averments made in the written statement were categorically denied.
12.Thereafter, vide order dated 06.05.1998, following issues were framed by the Ld. Predecessor of this court: -
1. Whether the documents executed by defendant No. 1 in favour of defendant no. 8 and 9 is forged? OPD.
2. Whether the plaintiff has half share in the suit property? OPP/
3. Whether the plaintiff is entitled for the relief claimed?
OPP.
4. Relief
13. Perusal of the record shows that an additional issue as under was also framed vide order dated 20.04.2000, by the then Ld. Civil Judge:-
(4) Whether the Will dated 16.12.88 alleged to be executed by Sh. Dharam Singh is forged, fabricated and in-genuine?
OPD
14. In order to prove his case, plaintiff Sh. Mankey Ram got himself examined as PW-1 and tendered in evidence his duly sworn in affidavit which is duly exhibited as Ex.PW1/A, reiterating the contents of the CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 13 of 34 plaint. In his testimony, following documents were exhibited :-
Sr. No. Nature of documents Exhibited as 1 Carbon copy of Notice sent on behalf of the PW-1. Ex.PW1/2 2 Copy of the complaint with the local police on Ex.PW1/3 27.09.1995.
3 Certified copy of the lease agreement. Ex.PW1/4 4 A copy of proceedings book in respect of land of Ex.PW1/5 village Bijwasan, New Delhi 5 Copy of khatauni of the land situtated at Salahpur. Ex.PW1/6 6 Copy of the order dated 10.07.1995 Mark A 7 The death certificate of Late Sh. Dharam Singh Mark B. The said witness was duly cross-examined by the Ld. counsel for the defendant.
15. In order to prove his case plaintiff also got examined Sh. Surinder Kumar, LDC from Sub-Registrar Office - III, Asaf Ali Road, Delhi who proved on record the Lease Deed i.e. Ex.PW1/1. The said witness was also cross examined by Ld. counsel for the defendant. Thereafter, PE was closed vide order dated 07.07.2011.
16.On the other hand, in order to prove his case, defendant got examined himself as DW-1 (Sh. Ranvir Singh) and tendered in evidence his duly sworn in affidavit, exhibited as Ex.DW1/A. In his testimony the following CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 14 of 34 documents were exhibited :-
Sr. No. Nature of documents Exhibited as 1 The wedding card of defendant No. 1. Ex.DW1/1 2 Original Will dated 16.12.1988. Ex.DW1/2 3 Original certificate dated 21.12.1988. Ex.DW1/3 4 Original certificate dated 06.01.1989. Ex.DW1/4 5 Original invitation card of Devi Poojan at the Ex.DW1/5 residence of Sh. Dharam Singh and his wife 6 Copy of Electrol Card showing Sh. Dharam Singh as Ex.DW1/6 head of the family of defendant No. 1 7 The photocopy of ration cards are Mark A and B. 8 The photocopy of electrol list showing the name of Mark C Late Sh. Dharam Singh and Smt. Chiriya Devi and DW-1 and his wife The said witness was duly cross-examined by the Ld. counsel for the plaintiff.
17. Further, defendant also got examined DW-2 Sh.Om Prakash, who tendered in evidence his affidavit duly exhibited as Ex.DW2/A and also relied upon documents which were already exhibited as Ex.DW1/1, Ex.DW1/2 and Ex.DW1/4 in the testimony of DW-1 Sh. Ranvir Singh. He was also cross- examined at length by the Ld. counsel for the plaintiff.
18. Thereafter, defendant also got examined DW-3 Sh. Ram Niwas, Head CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 15 of 34 Clerk, office of AERO, AC -36, Bijwasan Delhi whereby the witness had proved on record the electoral roll 1993 for Mahipalpur Assembly Constituency as Ex.DW3/1 (OSR). He was also cross examined by the Ld. counsel for the plaintiff.
19. Defendant also got examined DW-4 Sh. Arun Yadav, who tendered in evidence his duly sworn in affidavit, exhibited as Ex.DW4/A. Further, the said witness had also identified his signatures at point C on document Ex.DW1/2 i.e. the Will. He was also cross examined by the Ld. counsel for the plaintiff.
20. Further, defendant also got examined Sh. Dinesh Kumar, Record Keeper, DC Office, Gurgaon as DW-5, who had produced in court office copy of the Will executed by Sh. Dharam Singh, S/o Sh. Ram Nath, R/o Village and PO Bijwasan, New Delhi on 16.12.1988 bearing registration No. 1087, exhibited as Ex.DW1/2. He was also cross examined by the Ld. counsel for the plaintiff.
21. Defendant also got examined DW-6 Sh Bhagwan Singh who tendered in evidence his duly sworn in affidavit which is duly exhibited as Ex.DW6/A. Further, the said witness also relied upon the documents i.e. Marriage Card and Will which were already exhibited as Ex.DW1/1 and Ex.DW1/2. He was also cross examined at length by the Ld. counsel for CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 16 of 34 the plaintiff.
22. Lastly, defendant got examined DW-7 Sh. Zile Singh, who tendered in evidence his duly sworn in affidavit which is exhibited as Ex.DW7/A and further the said witness also relied upon the documents already exhibited as Ex.DW1/1, Ex.DW1/2 and Ex.DW1/5. He was also cross examined at length by the Ld. counsel for the plaintiff. Thereafter, vide separate statement of defendant no. 1, DE was closed and matter was listed for final arguments.
23.I have duly considered the arguments advanced by Ld. counsels before this court and have further perused the cornucopia of evidence on record carefully. My issuewise findings are as under :
24.First, I shall take up the issue no.2,3 & 4 together and decide them as common question of fact and law is involved.
ISSUE NO. 2, 3 and 4
(ii) Whether the plaintiff has half share in the suit property? OPP.
(iii) Whether the plaintiff is entitled for the relief claimed? OPP.
(iv) Whether the Will dated 16.12.88 alleged to be executed by Sh. Dharam Singh is forged, fabricated and ingenuine? OPD
25.Onus to prove issue no.2 & 3 was upon the plaintiff and the onus to prove issue no.4 was upon the defendant.
CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 17 of 34
26.The most pivotal and fundamental averment of the plaintiff which is germane and forms the crux of the present suit is that the Will ExDW1/2, purportedly executed by late Sh. Dharam Singh is forged and fabricated and the plaintiff is entitled to half share in the property left behind by late Sh. Dharam Singh. Hence, the entire controversy boils down to the adjudication in respect of the genuineness of the said Will and it was incumbent upon the plaintiff to prove this averment to the hilt that the Will and GPA dated 16.12.1988 which are ExDW1/2 & ExDW1/P2 respectively, executed by late Sh. Dharam Singh are forged and fabricated documents. It is a matter of record and as discussed aforesaid plaintiff only examined two witnesses i.e Mankey Ram as PW1 (since deceased) and concerned LDC from the office of Sub Registrar (III), Asaf Ali Road, Delhi. A perusal of examination and cross examination of PW1 as well as cross examination of DW1 reveals that the plaintiff had been disputing thumb impressions of late Sh. Dharam Singh on the alleged Will, however, it is a matter of record that defendant no.1 had filed an application before Ld. Predecessor of this court for seeking permission to get the opinion of hand writing expert in respect of the thumb impression on the Will dated 16.12.1988, pursuant to which plaintiff categorically stated before the court that he is not disputing the thumb impressions of CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 18 of 34 late Sh. Dharam Singh on the said Will and therefore there was no requirement for examination of the hand writing expert. The order dated 02.05.2017, makes it evident that plaintiff himself admitted and did not dispute the thumb impressions of late Sh. Dharam Singh on the said Will. It is further pertinent to observe that the plaintiff did not adduce any cogent evidence to even show that late Sh. Dharam Singh was not capable mentally or physically to execute any Will on 16.12.1988. PW1 stated in his affidavit that at the time of alleged execution of Will, late Sh. Dharam Singh was suffering from old aged ailments, and therefore he was incapable to register a Will and was also not having sound and disposable state of mind but on specific question being asked from PW1 during his cross examination, he stated that late Sh. Dharam Singh was not undergoing any treatment and he could not produce any other independent witness or produce any medical document to even remotely show that late Sh. Dharam Singh was mentally or physically incapable of executing any Will on 16.12.1988. On the other hand, defendant no.1 examined several witnesses to show that late Sh. Dharam Singh was fully capable of executing any Will and was having cordial relations with defendant no.1. DW2 Om Parkash specifically deposed that late Sh. Dharam Singh was very closed to his grand son i.e defendant no.1 and the fact of having CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 19 of 34 executed a Will dated 16.12.1988, was disclosed to him by late Sh. Dharam Singh only and DW6, the younger brother of defendant no.1 also deposed on similar lines that late Sh. Dharam Singh was very closed to defendant no.1 and he was made aware of the execution of the impugned Will by late Sh. Dharam Singh only and that he was in good health and sound state of mind throughout his life. The evidence of DW-7, Sh. Zile Singh (paternal uncle of defendant no.1) also substantiates the defence of defendant no.1 that late Sh. Dharam Singh used to live along with defendant no.1 in the same house and he was very attached to defendant no.1 and this witness further deposed that late Sh. Dharam Singh has out of his love and affection for defendant no.1 had executed the Will in question and he was also made aware of this Will by late Sh. Dharam Singh only. In the cross examination of all these witnesses nothing substantial could come out which could raise a dark cloud over the veracity or truthfulness of the version of these witnesses. Both the attesting witnesses to the said will have stated to expire and therefore defendant no.1 examined son of one of the attesting witnesses i.e Sh. Arun Yadav as DW4, who identified the signatures of his father Sh. Narain Singh as one of the attesting witnesses on the said Will which further demolishes the bald and oral averment of the plaintiff about the Will in CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 20 of 34 question being forged and fabricated.
27.DW5 i.e the record keeper from DC office Gurgaon also produced the office copy of the Will to prove the genuineness of the original Will Ex.DW1/2 and the registered document has to be given its due importance and sanctity and it was imperative for the plaintiff to lead convincing evidence for challenging and rebutting a registered document i.e the Will in question. It becomes further apropos to mention that an appeal filed by the plaintiff challenging the mutation of the suit property in the name of defendant no.1 before the Additional Collector, Delhi was dismissed and the second appeal filed before the Financial Commissioner also stood dismissed.
28.Further, it is a settled proposition of law that to be entitled for the relief claimed, plaintiff has to also prove that his suit is maintainable in the eyes of law and it does not suffer from any legal infirmity or deficiency so as to be entitled for the relief claimed. It is not in dispute that the plaintiff is not in possession of the suit property and infact it had subsequently changed hands and sold off by defendant no.1 to other defendants but the plaintiff has not sought any relief of possession along with declaration and injunction in the present suit. In this regard Ld. counsel for defendant no.1 placed her reliance upon the judgment titled as "Executive Officer CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 21 of 34 Arulmigu Chokkanath Swamy Koil Trust Virudhunagar vs. Chandran & ors.", II (2017) SLT 206 wherein it was held by the Hon'ble Apex Court that plaintiff who was not in possession, claimed only declaratory relief along with mandatory injunction and since the plaintiff being out of possession, relief of recovery of possession was a further relief which ought to have been claimed by the plaintiff and thus suit filed by the plaintiff for mere declaration without relief of recovery of possession is not maintainable in the eyes of law. Ld. counsel for defendant no.1 has also relied upon the judgement of "NDMC vs. Prashant Narula and Ors.", [234 (2016) Delhi Law Times, 56], which is on similar lines and has argued that the present suit is not maintainable as the plaintiff has not sought any relief of possession. Reliance can further be placed upon the landmark case of Anathula Sudhakar v P. Buchi Reddy ( Dead ) by LRs & Ors. AIR 2008 SC 2033, where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. The relevant para is quoted here as under:-
"...11. The general principles as to when a mere suit CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 22 of 34 for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly. 11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3) Where the plaintiff is in possession, but his title CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 23 of 34 to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 24 of 34 if a trespasser without any claim to title or an interloper ......17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 25 of 34 of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 26 of 34
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. .."
29.In view of the aforesaid case laws, it is pellucid that plaintiff should have sought relief of possession also in respect of the suit property along with CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 27 of 34 the relief of declaration and injunction, in the absence of which the present suit appears to be not maintainable as well in the eyes of law. Ld. Counsel for the defendant no.1 also relied upon Veena Nayar & Ors. Vs. Registrar, University of Delhi and Ors., [202 (2013) DLT 257] and contended that Will is a registered document and it has withstood test of close scrutiny on all counts and since both the attesting witnesses to the Will in question have already expired, therefore, son of one of the attesting witnesses was examined as a defence witness who clearly identified the signatures of his deceased father on the Will in question. Moreover, as already discussed above, plaintiff has admitted the thumb impressions of late Sh. Dharam Singh on the impugned Will. Reliance was also placed by Ld. counsel for the defendants on Sita Kashyap (since deceased) through LRs vs. Harbans Kashyap & Ors. [226 (2016) DLT 150] wherein it was held that exclusion of brother from inheritance from bequest could not be per say treated as unnatural and Will could not be faulted as a document surrounded by suspicion and the court ought not to have exaggerated the discrepancies and elevated it to level of "suspicious circumstances" to discard validly executed Will and there is inherently wrong in cutting out someone who, in perception of the testator, has caused him injury or deprived him of valuable benefits. Ld. CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 28 of 34 Counsel for the defendant has further relied upon Surender Rode Vs. Madan Mohan Rode & Ors. [207 (2014) DLT 208] on similar lines. I also find it relevant to mention here the relevant portion from Rabindra Nath Mukherjee & Anr. Vs. Panchanan Banerjee (dead) by LRs. & Ors. [(1995) 4 SCC 459] wherein it was held that registered Will where contents of the Will explained by the Sub Registrar to the testatrix the fact that witnesses to the document were interested or an active part was played by a close relation of one of the executors, in getting the execution of the Will, is also not a suspicious circumstance and character of the document, its genuineness and voluntariness cannot be doubted.
30.Now, reverting back to the factual matrix and evidence led in the present case where having copy of registered Will and GPA on record upon which thumb impressions of late Sh. Dharam Singh have been admitted by the plaintiff as is clearly mentioned in the order dated 02.05.2017 as well as testimony of DW4, who is son of the one of the attesting witnesses on the will as well as some other testimonies of family members of defendant no.1 on one hand and only a bald oral testimony of plaintiff himself on the other hand which to the utter dismay of the plaintiff, has miserably failed in casting any doubt over the genuineness of the impugned Will. It becomes further pertinent to notice here that DW1 also placed on record CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 29 of 34 copy of ration card showing late Sh. Dharam Singh as the head of the family of defendant no.1 and also original wedding card of defendant no.1 i.e. Ex.DW1/1 which was printed in the name of Sh. Dharam Singh along with the original certificates of Syndicate Bank, Bijwasan Village, New Delhi which are Ex.DW1/4 and Ex.DW1/5 showing that defendant no.1 was having a joint account with late Sh. Dharam Singh. In fact PW1 was also admitted having seen the ration card issued by the concerned departement in which late Sh. Dharam Singh was shown as head of the family of defendant no.1 and further admitted during his cross examination about the wedding card of defendant no.1 being printed in the name of late Sh. Dharam Singh. All these observations further substantiate that deceased late Sh. Dharam Singh was having close family relation with defendant no.1 which further lends credence to the genuineness of the Will in question which has been executed in favour of defendant no.1.
31.Ld. Counsel for the plaintiff on the other hand relied upon a judgment titled as Smt. Jaswant Kaur vs. Smt. Amrit Kaur & Ors. [AIR 1977 SC 74] wherein it was found that the explanation given by defendant that he found Will by chance while going through the papers of grandfather was patently lame and unacceptable and there was no evidence to show as to CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 30 of 34 where it was executed. However, this case was having different factual matrix and evidence from that as in the present case there is due admission of the thumb impressions of testator as well as due corroboration by the testimonies of other defence witnesses in respect of the Will in question.
32.One of the other pivotal arguments vehemently harped upon by Ld. counsel for the plaintiff has been that the impugned Will and GPA were got registered in Gurgaon whereas late Sh. Dharam Singh has never resided in Gurgaon which raises a dark cloud upon its execution. However, this argument appears to be merit less and does not hold much ground because first of all, there appears to be no legal bar for getting the document registered with the Sub Registrar of Gurgaon and moreover admittedly by PW1 during his cross examination, late Sh. Dharam Singh resided in Bijwasan throughout his whole life and the distance between Bijwasan and Gurgaon is approximately 10 kms. according to PW1 himself. Therefore, it does not seem to be implausible by any stretch of imagination that late Sh. Dharam Singh would have opted for the office of Sub Registrar Gurgaon for getting the Will registered.
33.It becomes further pertinent to mention that even in the pedigree table showing the chain of legal heirs in the plaint, the name of plaintiff Sh. CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 31 of 34 Manke Ram has not been mentioned anywhere and the plaintiff also did not seek any relief of partition of the suit property if according to him, he is one of the legal heirs entitled to a share in suit property which again raises a question upon the maintainability of the present suit wherein he has only sought declaration in respect of the Will in question and the subsequent sale deeds executed by defendant no.1 and defendants no. 8 & 9 in favour of other defendants. In nutshell case of the plaintiff is suffering from glaring deficiencies and plaintiff has miserably failed to show the preponderance probability in his favour as far as the reliefs claimed in the present suit are concerned. Plaintiff has not led any iota of convincing evidence to prove that he is entitled to half share in the suit property or that the Will in question is forged and fabricated or that it was got executed by playing fraud or misrepresentation. Simultaneously, it would be apropos to decipher a further conclusion that no injunction can be granted against the defendants thereby restraining them from selling, mortgaging or alienating the suit property. Since Will dated 16.12.1988, cannot be declared as an ingenuine and fraudulent document, therefore, no decree of declaration can be passed in respect of the sale deeds executed by the defendants intersay in respect of the suit property. Accordingly, issue no 2 & 3 are decided against the plaintiff.
CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 32 of 34
34.It is further pertinent to observe that another additional issue was framed vide order dated 20.04.2000 i.e issue no.4 as to whether Will dated 16.12.1988 allegedly executed by Sh. Dharam Singh is forged and fabricated. But it appears that inadvertently it was mentioned as OPD because being the document of defendant, the onus should be on the plaintiff to prove that the Will is forged and fabricated and therefore it has been reframed with the onus on the plaintiff and it shall cause no prejudice to either of the parties because it appears only to be an inadvertent mistake and the relief claimed by the plaintiff invariably includes this averment that the aforesaid will is forged and fabricated and ingenuine.
35.In view of the aforesaid comprehensive discussions and the case laws, it becomes amply clear that the plaintiff has deplorably failed in proving that the Will dated 16.12.1988 executed by late Sh. Dharam Singh is forged, fabricated and ingenuine document. Consequently, issue no.4 stands decided against the plaintiff.
36.Issue no.1:
(i) Whether the documents executed by defendant No. 1 in favour of defendant no. 8 and 9 is forged? OPD.
37. The onus to prove this issue was upon the defendant. There was no CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 33 of 34 evidence led in respect of the documents executed by defendants no.8 & 9 by either of the parties and neither any such sale document have been marked or exhibited during evidence. Consequently, no finding can be given in respect of this issue and moreover, in view of the findings given on the other issues, since the plaintiff has all together failed to show that the Will dated 16.12.1988, was forged and fabricated, therefore no question arises to adjudicate upon the sale document executed by the defendants intersay in respect of the suit property. This issue stands disposed off accordingly.
38.RELIEF Therefore, as a sequel to the above discussion, the suit of the plaintiff stands dismissed. No separate order as to cost. Decree sheet be prepared accordingly.
File be consigned to record room, after due compliance. Digitally signed by
RICHA RICHA SHARMA
SHARMA Date: 2019.01.29
16:03:24 +0530
Announced in the open court (Richa Sharma)
today on 28.01.2019 Civil Judge01 (West)/Delhi
CS SCJ No : 608278/2016 Mankey Ram vs Sh. Ranvir Singh Rana Page No. 34 of 34