Delhi District Court
Nirmal Jain vs S.P.Jain on 15 December, 2023
-:: 1 ::- Dated: 15.12.2023
IN THE COURT OF MS. SHIVALI BANSAL
ADDITIONAL DISTRICT JUDGE-03 (NORTH)
ROHINI COURTS, DELHI
CNR No. DLNT010037642018
RCA No. 37/18
In the matter of :-
Smt. Nirmal Jain (deceased)
Through his LRs
(a) Ms. Neeta Singh Tomar - Daughter
D/o Late Smt. Nirmal Jain
W/o Sh. Rajendra Singh Tomar
R/o 179-180 Pocket-6, Sector-22,
Bank of Baroda, Rohini, Nithari,
North West Delhi, Delhi-110086
(b) Ms. Seema Sandeep Jain - Daughter
D/o Late Smt. Nirmal Jain
W/o Sh. Sandeep Jain
R/o B/706, Raj Mandir Complex,
Vinay Nagar, Bihind Posh Complex,
Mira Road, Thane,
Maharashtra-401107 ....... Appellants
Versus
Sh. Anuj Jain S/o Late Sh. S. P. Jain
R/o D-17, C.C. Colony,
Opp.R. P. Bagh, Delhi-110007. ......Respondent
Date of Institution 19.04.2018
Date for final arguments heard 06.12.2023
Date of pronouncement of judgment 15.12.2023
RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 1 of 29
-:: 2 ::- Dated: 15.12.2023
APPEAL UNDER SECTION 96 CPC AGAINST THE JUDGMENT
AND DECREE DATED 07.03.2018
JUDGMENT
1 The present appeal has been preferred against the judgment/decree dated 07.03.2018, passed by Ld. SCJ, West, Tis Hazari Courts, Delhi in CS No. 8934/16 titled as "Nirmal Jain Vs. S. P. Jain" whereby the Ld. SCJ dismissed the suit of the plaintiff/ appellant herein.
2 The brief facts of the case are verbatim reproduced herein below:
2.1 That the property No. D-17, C.C. Colony, Delhi is build on a plot admeasuring about 300 sq. yards, originally owned and possessed by Late Sh. Parshotam Dass Jain, which was his self-acquired property, purchased vide registered Sale Deed dated 27.03.1963. The aforesaid property is single storeyed house having open terrace and access to the open terrace is by means of pucca built common staircase.
2.2 Late Shri Parshotam Dass Jain executed a registered Will dated 01.06.1983, whereby he revoked his earlier Wills and affirmed that the above Will dated 01.06.1983 was his last Will. By virtue of the Will dated 01.06.1983, the deceased bequeathed the front portion of his property in favour of his son, Late Shri Mehar Chand Jain, husband of plaintiff, which consist of one drawing Room, and one room in the front side adjacent to it alongwith with Verandah on the front side, one kitchen, one bath room, and one bath room-
cum-latrine with the side setback. By virtue of will dated 01.06.1983, the Late Sh. Parshotam Dass Jain bequeathed the back portion of the suit RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 2 of 29
-:: 3 ::- Dated: 15.12.2023 property in favour of his three-grand-sons, namely, Rajiv Jain, Sanjeev and Sandeep Jain all sons of Shri B.P. Jain which consist of one drawing room, and two rooms set with kitchen bathroom and bathroom-cum-latrine plus remaining portion of front side, i.e. one room chowk and 2 mianis.
2.3 That the plaintiff is in actual physical possession of the portion bequeathed to her deceased husband Late Shri Mehar Chand Jain who died in February, 1995 leaving behind plaintiff i.e. his wife and 3 daughters namely, Seema Jain, Neeta Jain and Lovely Jain. All the above three daughters relinquished their share in the property in question by giving no objection certificate in the probate case in favour of their mother, the plaintiff had prayed therein that the probate be granted to their mother alone, i.e. plaintiff.
2.4 That the beneficiaries, namely Rajiv Jain, Sanjeev Jain and Sandeep Jain, all are sons of Late Shri Bimal Prasad Jain. They subsequently sold and transferred the portion bequeathed to them to the defendant Shri Shripal Jain, their real uncle by way of registered Sale Deed dated 20.01.1992 and since then he is in occupation of the back portion.
2.5 Late Shri Parshotam Dass Jain did not bequeath any portion of the suit property to defendant and the defendant became owner only after purchase of the portion of the suit property.
2.6 That the plaintiff Smt. Nirmal Jain alongwith her three daughters filed probate case No. 143/94, which was decided on 17.07.2006.
2.7 The plaintiff was stunned to know that the defendant vide Sale Deed dated 20.01.1992 got certain portions of property registered in his favour. The RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 3 of 29
-:: 4 ::- Dated: 15.12.2023 relevant portions showing the fraud in the sale deed are as under : -
(a) At page 3 para 1 of the said sale deed it is recorded as under:-
"After the portion purchased by the defendant it has been falsely got included as under:-
Alongwith the stair-case leading from the ground floor to the first floor including roof rights to Shri Shripal Jain"
(b) That another patently erroneous and factually wrong entry in the registered sale deed are as under:-
"Shri Mehar Chand Jain (i.e. deceased husband of plaintiff) will have no right, interest whatsoever to use the staircase from the ground floor to the first floor or otherwise as he has agreed to relinquish his right or interest whatsoever in the stair-case out of natural love and affection for his real brother and without any consideration nor he shall have any right or interest whatsoever in respect of the roof over the said one room and Miani (Mejanine) on front side."
2.8 That plaintiff further submits that the vendor namely Sh. Rajiv Jain, Sh.
Sanjiv Jain and Sh. Sandeep Jain in the sale deed dated 20.01.1992 could not have passed on to the defendant Shri B.P. Jain a better title than that they themselves possess or were conferred upon them by the Will dated 01.06.1983.
2.9 That in the sale deed dated 20.01.1992, Sh. Rajiv Jain, Sh. Sanjiv Jain and Sh. Sandeep Jain (vendors therein) have illegally and unlawfully sold and transferred the staircase leading from ground floor to first floor including roof rights to defendant.
2.10 That in para 1 of the said sale deed dated 20.01.1992, the vendors therein RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 4 of 29
-:: 5 ::- Dated: 15.12.2023 have made further mis-representation and false assertions which is as under:-
"..........Shri Mehar Chand Jain will have no right, interest whatsoever to use the staircase from the ground floor to the first floor or otherwise as he has agreed to relinquish his right or interest whatsoever in the staircase out of natural love and affection being his real brother without any consideration nor he shall have any right or interest whatsoever in respect of roof over the said one room and mianies (Mezenine) of front side and share of the vendors as mentioned above......."
2.11 The plaintiff submits that her husband Shri Mehar Chand Jain did not ever agree to relinquish nor did actually relinquished his rights and interest in the staircase and the terrace above the portion bequeathed to him under the Will dated 01.06.1983. That the above recording in the defendant's said sale deed dated 20.01.1992 are patently false and erroneous and are clearly in contradiction of the registered will of the deceased owner Shri Parshotam Dass Jain dated 01.06.1983. Even otherwise there was no occasion for late Shri Mehar Chand Jain to orally relinquish his rights in the common staircase and in the open terrace as falsely mentioned.
2.12 That in the said probate case, the defendant Shri Shripal Jain when cross-
examined as RW-1 on 18.08.2005 admitted the due execution of the last will of his father dated 01.06.1983, which is exhibited PW-1/1 in the probate case. He also admitted that nephews, Rajiv Jain, Sanjeev Jain and Sandeep Jain could not have sold the portion exceeding the portion bequeathed to them under will exhibited PW-1/1.
2.13 That plaintiff is in use and occupation of common staircase as well as the RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 5 of 29
-:: 6 ::- Dated: 15.12.2023 open terrace where she has got installed her water tank, T.V. Antina at the open terrace which has been admitted by the defendant in his above statement. Thus, the entries in the sale dated 20.01.1992 are clearly erroneous, wrongful and are contrary to the contents of the Will of the deceased late Shri Parshotam Dass Jain dated 01.06.1983, the original owner and as such have no legal effect and hence, the suit was filed by the plaintiff with following prayers:-.
(a) That the defendant be further permanently restrained from selling or transferring the said common stair-case as well as the portion of the open terrace belonging to the plaintiff over the portion in occupation of plaintiff as shown in the site plan attached to any other person directly or indirectly.
(b) That further the defendant be permanently restrained from causing any kind of obstruction or interference in the use of the common stair- case of the plaintiff for going to the open terrace and from using the open terrace fallen to her share as marked RED in the site plan.
b(i) That the Hon'ble Court may be pleased to declare that the sale deed dated 20.01.1992 executed by Rajiv Jain, Sanjeev Jain and Sandeep Jain (Vendors) in favour of the defendant (S.P. Jain) to the extent that it transfers the common staircase leading from the ground floor to first floor as well as terrace over the portion of the property falling to the share of the plaintiff under the Will dated 01.06.1983 left behind by late Shri P.D. Jain as void, illegal and above part of the sale deed is cancelled and the defendant has no exclusive right, title or interest in RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 6 of 29
-:: 7 ::- Dated: 15.12.2023 the common staircase shown in the red colour and the terrace as also shown in the red colour of property bearing No. D-17, C.C. Colony, New Delhi.
B(ii) "decree of declaration that the following entries in the sale deed dated 20.01.1992 are null and void and is cancelled.
Shri Mehar Chand Jain (i.e. deceased husband of the plaintiff) will have no right, interest whatsoever to use the staircase from the ground to the first floor or otherwise as he has agreed to relinquish his rights or interest whatsoever in the staircase out of natural love and affection for his real brother and without any consideration nor he shall have any right or interest whatsoever in respect of the roof over the said one room and Miani (mezzanine) in front side".
b(iii) "decree of mandatory injunction directing defendant to execute a corrigendum / supplementary deed in terms of declaration sought in prayer clause and get the same registered with the Sub-Registrar of assurance."
(c) That cost of the suit be also awarded;
(d) Any other relief deemed fit and proper under the circumstances of the
case be also granted.
3 The brief facts of WS filed on behalf of defendant, are as under:
3.1 That the suit in the present form is misconceived and the relief as prayed
for can not be granted because admittedly the defendant is owner of portion of D-17, C.C. Colony, Delhi, except the portion which has been specifically bequeathed to Late Shri M.C. Jain in the Will of Shri P.D. Jain.
RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 7 of 29
-:: 8 ::- Dated: 15.12.2023
3.2 That even otherwise, the order dated 17.07.2006 illegally granting the letter
of administration to the plaintiff in respect of common use of stair case which is beyond the scope of powers of the Probate Court and the Will registered on 22.03.1985 by Shri P.D. Jain. That the suit is not maintainable for non-joinder of necessary parties as all the legal heirs of Shri Mehar Chand Jain have not been impleaded as party in the case. The present plaint is not maintainable on the basis of competent jurisdiction.
3.3 The plaintiff seeks a decree of declaration, interalia, declaring that certain portions of the said sale deed dated 20.01.1992 are illegal, wherefore they (those portions; objected to by the plaintiff) ought to be cancelled by a decree of this Hon'ble Court.
3.4 The sale deed was executed on 20.01.1992. The present suit has been instituted in 2006. In law and in particular in terms of Section 3 of the Transfer of Property Act, 1882, the plaintiff would be deemed to have notice of the execution of the sale deed dated 20.01.1992 right from the day on which the said sale deed was duly registered in the office of the Sub Registrar (concerned). Admittedly, the sale deed dated 20.01.1992 was never challenged by the plaintiff and / or her husband (late Shri M.C. Jain) right from 1992 till late 2006, i.e., for a period of more than 14 years. This action is therefore, apparently barred by the law of limitations and deserves to be summarily rejected.
3.5 All the legal heirs of Shri Mehar Chand succeeded to the portion bequeath to him under the Will. It is submitted that since long prior to the purchase of said portion, the defendant and his family members have been using the RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 8 of 29
-:: 9 ::- Dated: 15.12.2023 stair case and the entire open terrace above the ground floor and the Mianies exclusively and independently and continuously and to the exclusion of late Shri Mehar Chand Jain and his family members. The order passed in the said probate case is illegal and uncalled for and therefore the relevant fact has been stayed by the Hon'ble High Court. The said Sale Deed was filed by the defendant in the probate case.
3.6 The defendant purchased the portion as detailed in the Sale Deed. It is wrong to allege that the defendant got certain portion entered in the Sale Deed wrongly, illegally. The contents of the second amended plaint in so far as they spell out the facts about the execution and registration of a sale deed dated 20.01.1992 executed by Shri Rajiv Jain & another [all sons of Shri Bimal Pershad Jain, the brother of the husband (since deceased) of the plaintiff] are not denied.
3.7 It is far-fetched to say that this sale deed came to the notice of the plaintiff only on 18.08.2005, as alleged. The law on this subject is quite clear and spells out that the plaintiff and / or her husband (since deceased) was / were always aware of the execution and registration of the sale deed dated 20.01.1992 right from the date on which the aforesaid sale deed was registered in the office of the Sub Registrar concerned by Shri Rajiv Jain & others (sons of Shri Bimal Pershad Jain) for selling, transferring and / or conveying their rights, titles and interests in the property bearing No. D-17, C.C. Colony, Delhi in favour of the present defendant.
3.8 Even otherwise, the factum of sale came to the knowledge of everybody soon after the sale deed was duly registered and the defendant took over the RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 9 of 29
-:: 10 ::- Dated: 15.12.2023 proprietary as well as the actual physical possession of the premises that were the subject matter of the sale deed dated 20.01.1992. The plaintiff was living right next door (alongwith her husband; now deceased). It is incorrect to say that the sale deed dated 20.01.1992 passes to the defendant a title better than that of the expectants of the sale deed dated 20.01.1992, as alleged in the para under reply.
3.9 It is specifically and vehemently denied that the vendors in the said sale deed dated 20.01.1992 have made misrepresentations and / or false assertions, either as alleged in the para under reply or even otherwise. It is incorrect to say that the Vendors of the sale deed wrongly recorded in the text of the sale deed that Shri Mehar Chand Jain had agreed to relinquish his rights / interests in the staircase out of sheer natural love and affection for his real brother Shri Bimal Pershad Jain. It cannot be lost sight of that Shri Mehar Chand Jain right from 1992 till the date he died and after his death the present plaintiff (widow of Shri Mehar Chand Jain) never challenged the aforesaid assertion of the Vendors as incorporated by them in the sale deed dated 20.01.1992 till the date this action was instituted, i.e., 2006. Therefore, it goes without saying that the allegations made in the para under reply are sheer after-thoughts and are not worthy of being given any attention by this Hon'ble Court.
3.10 The defendant became owner of the entire terrace and stair case above the ground floor by virtue of exclusive and independent use to the exclusion of late Shri Mehar Chand Jain and his family members. The mianies have been specifically bequeathed to Shri Mehar Chand Jain and the same has RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 10 of 29
-:: 11 ::- Dated: 15.12.2023 been in use and occupation of the defendant and his family members to the exclusion of late Shri Mehar Chand Jain and his family members as stated above.
3.11 It is denied that the stair case as well as open terrace has been used and in occupation of the plaintiff. Mere installation of T.V. Antenna and water tank did / does not create any right in favour of the plaintiff and she has only permissive use of the terrace for the said purpose only. It is denied that any portion of the open terrace or the stair case had been bequeathed to the plaintiff's husband as per Will dated 1.6.1983 registered on 22.03.1985. It is further denied that any part of the terrace or the stair case has fallen to the share of the plaintiff.
3.12 The defendant is with in his rights to deal with the portion etc. as per law in the manner he likes including the stair case as well as the entire terrace over the ground floor of the house and mianies. It is further denied that the defendant has no legal right to deal with the said portion fallen to him by virtue of the said Sale Deed and also the stair case and entire terrace over the ground floor.
4 Replication was filed on behalf of the plaintiff and he had reiterated the facts as stated in the plaint.
5 That from the pleadings of the parties, the Ld. Trial Court framed the following issues in the suit on 09.08.2011:
(i) Whether the plaintiff is entitled to relief of permanent injunction, as prayed for? OPP RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 11 of 29
-:: 12 ::- Dated: 15.12.2023
(ii) Whether the plaintiff is entitled to declaration, as prayed for? OPP
(iii) Whether the plaintiff is entitled to mandatory injunction as prayed for? OPP
(iv) Whether the suit is bad for non-joinder of parties? OPD
(v) Whether the suit is barred by limitation act? OPD
(vi) Whether the suit is properly valued for the purpose of court fees and jurisdiction? Onus on both the parties.
(vii) Whether the suit is beyond the pecuniary jurisdiction of this court?
OPD
(viii) Whether the suit is not maintainable in its present form? OPD
(ix) Relief.
6 Plaintiff / appellant in order to prove his case had examined following witnesses:
6.1 PW-1 is Smt. Nirmal Jain W/o Late Shri M. C. Jain, residing at D-17, C.C. Colony, Delhi-110007. He was tendering his evidence by way of affidavit dated 20.11.2012, exhibited as Ex. PW1/A. It bears his signatures at points A & B. He relied upon the following documents:-
(i) The documents Ex. PW-1/1 is the site plan.
(ii) Ex.PW1/2 is certified copy (copy of a copy) of Will dated 01.06.1983.
(iii) Ex.PW-1/3 is certified copy (copy of a copy) of sale deed dated 20.01.1992.
(iv) Ex.PW-1/4 is certified copy (copy of a copy) of judgment of Probate case no.61/06 dated 17.07.2006 passed by Hon'ble Ms. Bimla Makin, Ld. ADJ, Delhi.
RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 12 of 29
-:: 13 ::- Dated: 15.12.2023
(v) Ex.PW-1/5 is the certified copy (copy of a copy) of statement of Shri Shripal Jain dated 18.08.2005 recorded in said probate case. 7 Respondent/ defendant in order to prove their case has examined following witnesses:
7.1 DW-1 is Sh. Shripal Jain, S/o Late Sh. P.D. Jain, R/o D-17, C.C. Colony, near Rana Pratap Bagh, Delhi-07. He tendered his evidence by way of affidavit Ex. DW-1/A, which bears my signature at point A and B. He relied upon the sale deed, which is already Ex. PW-1/3 in the evidence of the plaintiff.
7.2 DW-2 is Shri Ravinder Chhakara S/o Shri Nafey Singh, UDC, Sub-
Registrar-VIA, Pitam Pura, Delhi. He brought the summoned record regarding notification regarding rate of properties in CC Colony, Delhi- 110007. The same is Ex.DW-2/A. CC Colony opposite Rana Pratap Bagh falls in category D as per notification. He stated that rates of category D are given in the notification.
7.3 DW-3 is Sh. Surya Prakash, LDC/Record Keeper, Office of Sub-registrar-
l, Kashmere Gate, Delhi. He brought the summoned record I.e Sale Deed which is registered in the office of Sub-registrar -I vide registration no. 388 in Book No. 1, Volume No. 5636 on Page 41 to 47, dated 20.01.1992. The photocopy of the same is already on record and now being exhibited as DW 3/1 (OSR).
7.4 DW4 is Sh. Subhash Kumar, Head Clerk, NDMC, Civil lines, Delhi.
He brought the summoned record with respect to the house tax of the property bearing No. D-17, back portion, CC Colony, Delhi-110007 filed RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 13 of 29
-:: 14 ::- Dated: 15.12.2023 by Shri Pal Jain from the year 2004 to 2013 - 2014 (self assessment property tax form). The same are exhibited as follows:
(a) Receipt bearing No. 237015 dated 31.10.2004 Ex. DW-4/A (with respect to the back portion) filed by Shri Pal Jain.
(b) Receipt No. 43113 dated 30.12.2011 from the year 2004-05, 2009- 2010 & 2011-12 exhibited as Ex. DW-4/B by Nirmal Jain.
(c) Receipt No. 298050 dated 15.01.2008 for the year 2008-09 (with respect to the back portion) by Shri Pal Jain Ex. DW-4/C.
(d) Receipt No. 341048 dated 19.06.2006 for the year 2006-07 with respect to the back portion filed by Shri Pal Jain Ex. DW-4/D. (е) Receipt No. 1656248 dated 17.06.2005 for the year 2005-06 With respect to the back portion filed by Shri Pal Jain Ex. DW-4/E.
(f) Receipt No. 040632 dated 18.06.2013 for the year 2013-14 filed by Shri Pal Jain with respect to the back portion Ex. DW-4/F.
(g) Receipt No. G8-1576796 dated 15.02.2011 for the year 2010-11 filed by Smt. Nirmal Jain exhibited as Ex. DW-4/G.
8 The appellant/ plaintiff has raised the following ground of appeal in the present appeal:
8.1 Because the impugned judgment and decree passed by Ld. Trial Court is grossly erroneous and patently illegal as the same is against the well settled prepositions of law and hence liable to be set aside. The observation given by the Ld. Trial Court are erroneous & incorrect being contrary to the facts and documents available on record, rather is based on conjectures & RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 14 of 29
-:: 15 ::- Dated: 15.12.2023 surmises.
8.2 It is submitted that the respondent preferred an appeal bearing FAO No. 249/2006 against the Order dated 17.07.2006 passed by Ms. Bimla Makin, the then ADJ, Delhi, and the said appeal was dismissed by Hon'ble High Court of Delhi vide Order dated 18.08.2010 and the Order of Ld. Probate Court has attained finality.
8.3 Because Probate Court has already held the staircase to be of common use in consonance with the legal preposition enumerated by the Trial Court with respect to partition in Hindu Law. Ld. Trial Court failed to appreciate the fact that Shri Rajeev Jain, Shri Sanjeev Jain and Shri Sandeep Jain had sold the share of appellant fraudulently and mischievously which are not bequeathed to them vide Will dated 01.06.1983 to the respondent.
8.4 Ld. Trial Court has erroneously miss-construed 'Verandah' as a open Courtyard in front portion which is exclusively bequeathed to the appellant/plaintiff vide Will dated 01.06.1983 and had erroneously concluded that as the respondent is not claiming any right in the open Courtyard in front portion therefore the appellant/plaintiff cannot claim any right in staircase and the roof rights over the one mezzanine floor falling in the share of the appellant as the same fall in the rear portion.
8.5 Because, Ld. Trial Court, while deciding the Issue No.2 came to an erroneous conclusion that the common staircase falls in the share of predecessors in interest of the respondent in terms of Will Ex. PW-1/2 as such they had every right to sell the said staircase alongwith rear portion of said property to the respondent.
RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 15 of 29
-:: 16 ::- Dated: 15.12.2023
8.6 Because Ld. Trial Court wrongly decided the Issue No.3 in favour of the
respondent and against the appellant/plaintiff. It is submitted that Ld. Trial Court failed to appreciate the specific contention of the appellant/plaintiff that Shri Rajiv Jain, Sh. Sanjeev Jain and Sh. Sandeep Jain cannot transfer a better title than they themselves possessed nor the defendant, who is a vendee, acquire a better title than what was owned and possessed by his predecessors in interest.
8.7 Because the Ld. Trial Court has failed to appreciate that the suit premises has 2 open courtyards of equivalent sizes both at front as well as at rear portion of the property and just like the front open courtyard being used by the appellant, the rear open courtyard is exclusively being used by the respondent & his predecessors in interest, so there arises no question of respondent or his predecessors in interest laying any claim whatsoever to the front open courtyard of Appellant.
8.8 Because the Ld. Trial Court has failed to appreciate that the Will Ex. PW-
1/2 is not silent about the front open courtyard whereas in fact late Sh. P.D. Jain has categorically bequeathed the front open courtyard of the suit premises to the share of the appellant's husband by virtue of the said Will.
8.9 Because the Ld. Trial Court failed to appreciate that respondent and his predecessors in interest have in their sale deed dated 20.10.1992 (Ex PW - 1/3) with respect to rear portion of the suit premises have categorically stated that Late Sh. M.C. Jain, husband of the appellant herein shall have no right in the staircase leading from ground floor to first floor or otherwise as he has relinquished the same out of natural love and affection for his real RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 16 of 29
-:: 17 ::- Dated: 15.12.2023 brother without any consideration, meaning thereby the respondent & his predecessors in interest themselves admit that husband of the appellant actually had share in the common staircase which as per them he had relinquished so the onus to prove this fact of relinquishment was on them and not on Appellant, hence, liable to be set aside.
8.10 It is prayed as under:
(a) accept the present appeal and call for records of Suit No. 8934/16 titled as 'Nirmal Jain Vs. S. P. Jain;
(c) set aside the impugned judgment and order dated 07.03.2018 passed by Shri Rajinder Singh, Ld. Senior Civil Judge, West District, Tis Hazari Courts, Delhi in Suit No. 8934/16 titled as 'Nirmal Jain Vs. S. P. Jain' and to decree the suit of the plaintiff / Appellant as prayed for;
(d) pass any other order (s), as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
9 No reply filed on behalf of the respondent.
10 After considering the rival contentions of the parties, pleadings and documentary evidence placed on record, this court is of the considered opinion that the order passed by the Ld. Trial Court Judge is liable to be set aside. The present appeal revolves around the construction of the Will dated 01.06.1983 (Ex. PW1/2). The rival claim between the parties is with respect to the common stair case and open terrace. The Ld. Trial Court in judgment dated 07.03.2018 has stated that the respondent during the course of arguments have conceded to the fact that the respondent could RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 17 of 29
-:: 18 ::- Dated: 15.12.2023 only sell the portion of the terrace which is above the portion of the said property which the vendors got by the virtue of the Will i.e. the back portion of the said property falling to the share of Sh. Rajiv Jain, Sh. Sanjeev Jain and Sh. Sandeep Jain. The contention of the respondent is that the staircase is situated in the back half portion of the said property which Sh. Rajiv Jain, Sh. Sanjeev Jain and Sh. Sandeep Jain got and it is open for the appellant to construct a stair case in her part of the said property. It was further argued that if the plot of the said property is divided equally into half portion, the stair case would fall in the back portion which was bequeathed to Sh. Rajiv Jain, Sh. Sanjeev Jain and Sh. Sandeep Jain. It is also contention of the respondent that in the Will, it is nowhere stated that the staircase will be common and since the respondent have not claimed any right for the front court yard, the appellant herein should not claim that the stair case is common.
11 The pivotal question for the appellate court herein is to interpret the Will i.e. Ex. PW1/2 and to give effect to the intention of the testator. The relevant portions of the Will i.e. Ex. PW1/2 are reproduced herein as under:-
"......After the Will of 1973, I gave another thought to the practical difficulties that may be placed by my son Sh. Mehar Chand Jain and grandsons, Sh. Rajiv Jain, Sanjeev Jain and Sandeep Jain and have decided to revoke the earlier Wills and make a fresh Will. I hereby cancel and revoke the Wills made in 1971 and 1973 and make this last Will........ I give and bequeath to Sh. Mehar Chand Jain my son the front portion of my house D-17, CC Colony, Delhi-7, consisting of one drawing room and one room in the front side adjacent to it along with verandah on the front side, one kitchen, one bathroom and one bath-cum-laterin with the side setback.
RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 18 of 29
-:: 19 ::- Dated: 15.12.2023
I give and bequeath to Sh. Rajiv Jain, Sanjeev Jain and Sandeep Jain, my grandsons the back portion of my house number D-17, CC Colony, Delhi-7, consisting of one drawing room and two rooms set with kitchen, bathroom and bathroom-cum-laterine + the remaining portion of the front side i.e. one room chowk and two meanies etc. ...."
12 There are, however, some cardinal principles which should be kept in view while considering the effect of a will. The will has to be read as a whole, meaning thereby that the true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory, (vide Bajrang Bahadur Singh v. Bakhtraj Kuer, AIR 1953 SC 7 and Pearey Lal v. Rameshwar Das, AIR 1963 SC 1703).
13 Moreover, another cardinal principle of construction of a will was that effect should be given to every disposition contained in the will as far as it is legally possible unless the law prevents effect being given to it. But if there were two repugnant provisions conferring successive interests, a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given to every testamentary intention contained in the will, see Ramchandra Shenoy v. Mrs. Hilda Brite, AIR 1964 SC 1323.
14 Reliance is placed upon the judgment of Hon'ble High Court of Delhi in "Asha Johri Vs. Neerja Rajput & Anr., RFA (OS) 75/2014", wherein it is held as under:-
"........19. The issue raised in the instant lis between the parties brings into focus an interesting legal issue concerning immovable property. The law relating to property has an unenviable reputation for its complexity. The problem is not with property, but with conveyancing, since the latter is RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 19 of 29
-:: 20 ::- Dated: 15.12.2023 concerned with how rights in property are created and transferred.
20. The largest estate in land is absolute ownership, but in todays world, due to town planning and building bye-laws, since all urban land is held on certain conditions, the maxim : cujus est solum, ejus est usque est ad coelum et ad inferos, meaning that the owner of the soil is presumed to own everything up to the sky and down to the center of the earth, has become redundant; to be kept in the legal archives.
21. It is settled law that ownership is a bundle of rights and denotes the relation between a person and an object forming the subject matter of his ownership. It consists of a complex mass of rights, all of which are rights in rem, being good against all the world. Conventionally, 5 incidents of ownership are recognized. The first is the owner's right to possess the thing which he owns. The second is the owner's right to use and enjoy the thing owned. The third is the owner's right to consume, destroy or alienate the thing owned. Fourthly the duration for which the thing owned may be owned. Lastly and fifthly, the residual character of the thing owned.
22. In THE LAW OF REAL PROPERTY (6th Edition) by Megarry & Wade as edited by Charles Harpum, in para 3.049, the learned author has observed that the last century has seen much legislation, imposing on landowners, restrictions and liabilities in public interest, subjecting them to interference by public authorities. The learned author has observed that these statutes are of great importance, but they do not, generally speaking affect the principles of the law of real property. They restrict the liberties of landowners and so may affect, amongst other things, the price at which they can sell their land and the terms of sale. But the substance of the various possible transactions in land is not thereby altered: sales, settlements, leases, mortgages, and so on, continue as before.
23. Concept of avulsion or diluvion are not unknown to law. In the revenue laws their application is found in abundance. As observed by the learned author Charles Harpum, in para 3.045, the owner of every land is also entitled to land added by gradual accretion, as where his territory is extended by deposits caused by currents in the sea or in a lake or by the action or winds, or even by human action, provided that it is not the deliberate action of the claimant himself. Conversely the owner may lose part of his land from erosion, sometimes called avulsion or diluvion, brought about by similar causes. Where the land affected is subject to a lease, the tenant obtains the benefit of the accretion and the terms of the lease apply to it. But a conveyance or lease of land may be so worded as to RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 20 of 29
-:: 21 ::- Dated: 15.12.2023 exclude accretions or movements of boundaries altogether.
24. Change of FAR due to a town planning legislation would be akin to accretion or avulsion occasioned due to deposit or erosion. Existing rights to construct upon a plot of land conceived as a single entity plot by a town planning legislation get varied due to change in the town planning laws and the benefit of additional FAR goes to the owner of the land. But what happens where different interests are created in the land?
25. Law recognizes fragmentation of ownership. Possession may be owned by one, the corpus by the other. Various rights of ownership can be distributed amongst different persons. Charles Harpum, the learned editor of the 6th Edition of THE LAW OF REAL PROPERTY, in para 3.046 has observed:-
An owner can, if he wishes, divide his land horizontally or in any other way. He can dispose of minerals under the surface, or the top floor of a building, so as to make them separate properties.‚
26. Immovable property is defined by Section 3 of the General Clauses Act, 1897 as including land, benefits arising out of land and things attached to the earth, or permanently fastened to anything attached to the earth.
„Attached to earth is defined in Section 3 of the Transfer of Property Act as meaning (a) rooted in the earth, as in the case of trees and shrubs; (b) imbedded in the earth, as in the case of walls or buildings; or (c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached.
27. Where a „realty is transferred the law shall assume that everything appurtenant to, attached to and arising out of such realty is also transferred unless and express intent to the contrary is provided for in the sale-deed or ought to be necessarily implied.
28. The interplay of jurisprudence and current realities regulating space above land has been pithily brought out in the decision of the Gujarat High Court reported as (1988) 1 GLR 1 Indrachand Jaju v The Sub-Divisional Officer & Anr., wherein it was held : ―Legally speaking a piece of land, includes the following, elements: (1) A determinate portion of the earth's surface; (2) The ground beneath the surface down to the centre of the world. In this sense all the pieces of land in the Country meet together in one terminable point at the earth's centre; (3) The ground column of space above the surface ad infinitum. 'The earth' has, in law, a great extent upwards, not only of water, but of air and all other things even upto heaven;
RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 21 of 29
-:: 22 ::- Dated: 15.12.2023
forcujus est solum ejus est usque est ad coelum. Whose is the soil, his it is up to the sky. He who owns the soil or surface of the ground, owns or has exclusive right to everything which is upon or above it to an indefinite height. Cujus est solum ejus est usque est ad coelum et ad inferos. To whomever the soil belongs, he owns also the sky and to the depths. The authenticity of this doctrine, however, is not wholly beyond dispute. It would prohibit as an actionable trespass all use of the air space above the appropriated surface of the earth, at whatever height this use took place, and however little it could affect the interests of the land owner. It may be that the law recognises no right of ownership in the distant airspace at all or at least no right of exclusive use but merely prohibits all acts which by their nature or their proximity interfere with the full enjoyment and use of the surface. Every unlawful entry by one person on land in the possession of another is a trespass and every expansion of one's land above another will amount to encroachment. Insofar as land is concerned a person trespasses upon land if he wrongfully sets foot on, or rides or drives over it, or takes possession of it, or expels the person in possession, or pulls down or destroys anything permanently fixed to it, or wrongfully takes minerals from it, or places or fixes anything on it or in it. Though one is the owner of the air space over his land interference with the air-space over land by things other than air-craft will be regarded as trespass and as an encroachment. The slightest entry into air-space over one's land would be trespass. It means if one owns a portion of the earth's surface, one also owns anything below or above that portion which is capable of being reduced into private ownership. A distinction has to be made between infusion into the air-space by things other than aircraft. Insofar as aircraft is concerned the intrusion is regulated by statute. If the injury is direct and immediate and the air space is in the Plaintiff's possession the question arises how much of the air space is capable of ownership or possession. Several theories have been advanced. If, A projects anything into B's area of ordinary user that will amount to encroachment.‚
29. As very lucidly explained by Wall Ulah, J. (concurring) in the decision reported as AIR 1951 All 867 Municipal Board v. Manohar Lal, it was observed as under-:
I desire, however, to guard against a possible misapprehension. In my view, the general rule embodied in the maxim, cujus est solum, ejus est usque ad coelum et ad inferos (whose is the soil, his it is even to the skies and to the depths below) has been considerably curtailed and qualified in recent times. This has been principally due to the development of aeronautics and RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 22 of 29
-:: 23 ::- Dated: 15.12.2023 consequently of the aeronautical law during the past few years. Speaking about the maxim Prof.Winfield in his well known Text-book of the Law of Torts'(1948) Edn. 4. P.318 says :
It is one of those unfortunate scraps of Latin that has become nothing but a clog round the neck of development of our law. If it were anything like the truth, the law would be simple enough for the slightest entry into the air- space over one's land would be trespass, whatever other tort it might or might not be. But it is almost certainly too wide. It has been grievously misunderstood and misapplied so far as the upward limit is concerned. All that it means is that if one owns a portion of the earth's surface, one also owns anything below or above that portion which is capable of being reduced into private owners.' Again, Sir Arnold McNair, in his book on the Law of the Air (The Tagore Law Lectures of 1931), chap. II, has summarised the researches made by him on the question how much of the air space is capable of ownership of possession. He has suggested two theories: (i) prima facie a surface owner has ownership of the fixed contents of the air-space and the exclusive right of filling the air-space with contents, and alter, natively (ii) prima facie a surface owner has ownership of the fixed contents of air space and the exclusive right of filling the air space with contents and ownership of the air space within the limits of an area of ordinary user' surrounding and attendant on the surface and any erections upon it. Of these, he prefers the first. As Prof. Winfield in his book referred to above points out, however, the second theory appears to be preferable to the first. What is the area of ordinary user will naturally very largely depend upon the facts of the individual case which comes up for decision before a Court of law."
30. The same limitation was explained by the Queens Bench in the decision reported as [1978] Q.B. 479 Bernstein of Leigh (Baron) v Skyviews & General Ltd, The problem is to balance the rights of an owner to enjoy the use of his land against the rights of the general public to take advantage of all that science now offers in the use of air space. This balance is in my judgment best struck in our present society by restricting the rights of an owner in the air space above his land to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it, and declaring that above that height he has no greater rights in the air space than any other member of the public.‚
31. The above view has also been subscribed in many other judicial pronouncements in common law such as [2013] UKUT 214 (LC) Stynes v Western Power (East Midlands) Plc and [1997] A.C. 655 Hunter v. Canary RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 23 of 29
-:: 24 ::- Dated: 15.12.2023 Wharf Ltd.
32. The Supreme Court of United States in the landmark judgment reported as 328 U.S. (1946) United States v. Causby held, "It is ancient doctrine that at common law ownership of the land extended to the periphery of the universe--Cujus est solum ejus est usque ad coelum. But that doctrine has no place in the modern world.‚
33. The said judgments evince that the owner of a property is entitled to the „space€ on either direction of his immovable property to the extent that it does not encroach upon the rights of any other person. Thus, a person is entitled to dig a hole in his ceiling to fix a fan. However, he is estopped by law from piercing a hole deep enough to penetrate the floor above his ceiling because in doing so he would be contravening the rights of the person who owns the floor above. Similarly, a person in ownership of the ground floor in a building would have a right to construct a basement beneath the existing ground floor and a right to raise a construction vests in the person who enjoys ownership of the floor right below the roof.
34. Moving on, it is pertinent to discuss whether the sale of a floor property would also encompass the transfer of ownership of a terrace above.
35. As held in the decision reported as AIR 1954 Ajmer 63 Makhanlal & Ors. V. Lala Laksmi Chand & Ors., wherein it was observed: ―I agree that ordinarily the roof goes along with the room, being treated as a part of it and in view of the general law that any person owning a piece of ground owns all the space over it.‚ it would be apparent that a terrace goes along with the roof and does not require any express covenant so stating.
36. In the decision reported as 2012 GLH (2) 654 Vrajmoti Corporation v. Ambawadi Apartments Owners Association & Ors. the High Court of Gujarat held as under:-
―It is required to be mentioned that learned Counsel, Mr. Soni has referred to the Oxford Dictionary for the purpose of meaning of terrace, which reads Terrace. 1. Raised level place, natural or artificial, esp. raised walk in garden or level space in front of building on sloping ground; (geol) horizontal shelf or beach bordering river, lake, or sea.
2. Row of houses on raised site or on face of rising ground; row of houses of uniform style built in one block. ~ v.t. Form into, furnish with, terrace(s).
14. Again, the word 'roof is defined as upper covering the use of the building. Meaning thereby, when the flat or the unit is constructed, RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 24 of 29
-:: 25 ::- Dated: 15.12.2023 obviously it need to have roof as a ceiling. In multistoried building like the flats consisting of more than two levels, a ceiling or roof of one unit or the flat would be a flooring for the flat or the unit at the next higher level‚ As stated above, the portion or the roof is ceiling to the building and it would be forming a ceiling of the flat at the last floor, which cannot be claimed as an exclusive property or exclusive right for use by anybody either members or the even Organizer or such association like the appellant-plaintiff that they have right to use make such right of terrace or building for their own commercial purpose and the right is denied to the independent flat holder.
If that is permitted, it would also amount to negating the right of flat or unit holder to enjoy the amenities and facilities, which is allotted to them in as much as if the terrace is permitted to be used, it could be used for the commercial purpose like restaurant or any other purpose where there is in grace or out grace of the people, which in turn would create nuisance for the allottees of the flats and it would affect their right of peaceful enjoyment of the flat or the unit allotted to them.
15. The word roof as discussed above is a ceiling and it would be covered by definition of common areas and facilities and, therefore, the terrace would certainly form a part of the flat, which is allotted and sold to the respective flat holders or unit holders on ownership basis‚........"
15 On a bare perusal of the Will i.e. Ex. PW1/2, it is found that the Will is consciously silent about the terrace and the common staircase. The Will opens with the remark that the earlier Wills are revoked so as to smoothen out the practical difficulties between Late Sh. Mehar Chand Jain and grandsons i.e Sh. Rajiv Jain, Sanjeev Jain and Sandeep Jain. This means the testator intended smooth and cordial relations between his family members and had made endeavor to resolve any conflict that may arise due to the improper division of the property D-17, CC Colony, Delhi-7. The testator, namely, Late Sh. Paroshotam Dass Jain had divided the constructed part i.e. the ground floor of the suit property between Late Sh. Mehar Chand Jain and grandsons i.e. Sh. Rajiv Jain, Sanjeev Jain and Sandeep Jain without RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 25 of 29
-:: 26 ::- Dated: 15.12.2023 making any mention about the staircase and open terrace. The specific exclusion of the staircase and open terrace, in the considered opinion of this court, was done because the testator wanted the access of both his son, Late Sh. Mehar Chand Jain and his grandsons i.e. Sh. Rajiv Jain, Sanjeev Jain and Sandeep Jain in the said areas. The property was partitioned with the intention that the family of the testator would reside in the same and would jointly have access to the roof to the terrace through common staircase. However, the parties herein have very conveniently bifurcated / partitioned the open terrace and assumed that the portion of the terrace which falls in the front is under the exclusive ownership of the legal heirs of Late Sh. Mehar Chand Jain and the portion of the terrace which falls in the rear portion is under the exlusive ownership of the three grandsons i.e. Sh. Rajiv Jain, Sanjeev Jain and Sandeep Jain. The respondent have gone a step ahead and by virtue of the Registered Sale Deed Ex. PW1/3 have claimed ownership rights on the entire open terrace as well as the commons staircase on the pretext that Late Sh. Mehar Chand Jain had agreed to relinquish his rights in the open terrace as well as the staircase to the grandsons. Whereas, in the cross examination of DW1 on 01.02.2014, it has come on record that "no Relinquishment Deed was ever executed by Late Sh. Mehar Chand Jain in the favour of respondent as claimed in the Sale Deed". Thus, the claim of the respondent on the terrace as well as staircase is baseless and self created. There is no legal basis for claiming any right or title or interest in the open terrace and the staircase. The respondent by conceding that the front portion of the terrace belongs to the appellant wants to reinforce his right in the common staircase as has been RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 26 of 29
-:: 27 ::- Dated: 15.12.2023 done by the Ld. Trial Court, who have dealt with the measurement of the plot size and thereafter, have divided the same equally between the parties. The parties in the present case i.e. the appellant and the respondent are successor in interest of Late Sh. Mehar Chand Jain and Sh. Rajiv Jain, Sh. Sanjeev Jain and Sh. Sandeep Jain respectively. Thus, they cannot claim anything more than what Late Sh. Mehar Chand Jain and Sh. Rajiv Jain, Sh. Sanjeev Jain and Sh. Sandeep Jain have got by virtue of Ex. PW1/3. From the bare perusal of the said Will, it is evident that the terrace and staircase were not apportioned between the predecessor in interest deliberately. The intention of the testator was clear and unambiguous with respect to the common use of the staircase and the terrace. Since the respondent and the appellant were residing in the suit property during the lifetime of the testator, the testator must have been fully aware about the installations on the terrace by the appellant herein. The testator at the time of making the Will have not foreseen the absolute ownership of the open terrace and the staircase between any of the parties thereto or their successor in interest. Since, the appellant and the respondent are the coowners of the property bearing no. D-17, CC Colony, Delhi-07, it is open for them to negotiate / settle their claims with respect to the open terrace and staircase but none of them can exercise exclusive rights over the same (Reliance is placed upon the judgment of Hon'ble Supreme Court in Sajan Sethi Vs. Rajan Sethi, Civil Appeal no. 1899-1900 of 2020 arising out of SLP (Civil) Nos. 13376-77". Accordingly, the present appeal is allowed and the order of the Ld. Trial court dated 07.03.2018 is set aside. The suit of the appellant is decreed with the following reliefs:-
RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 27 of 29
-:: 28 ::- Dated: 15.12.2023
(a) The defendant is permanently restrained from selling or transferring
the said common stair-case as well as the portion of the open terrace belonging to the plaintiff over the portion in occupation of plaintiff as shown in the site plan attached to any other person directly or indirectly.
(b) The defendant is restrained from causing any kind of obstruction or interference in the use of the common stair-case of the plaintiff for going to the open terrace and from using the open terrace fallen to her share as marked RED in the site plan.
b(i) The sale deed dated 20.01.1992 executed by Rajiv Jain, Sanjeev Jain and Sandeep Jain (Vendors) in favour of the defendant (S.P. Jain) to the extent that it transfers the common staircase leading from the ground floor to first floor as well as terrace over the portion of the property falling to the share of the plaintiff under the Will dated 01.06.1983 left behind by late Shri P.D. Jain is void, illegal and above part of the sale deed is cancelled and the defendant has no exclusive right, title or interest in the common staircase shown in the red colour and the terrace as also shown in the red colour of property bearing No. D-17, C.C. Colony, New Delhi.
b(ii) A decree of declaration is passed and the following entries in the sale deed dated 20.01.1992 are null and void and are cancelled.
"Shri Mehar Chand Jain (i.e. deceased husband of the plaintiff) will have no right, interest whatsoever to use the staircase from the ground to the first floor or otherwise as he has agreed to relinquish his rights or interest whatsoever in the staircase out of RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 28 of 29
-:: 29 ::- Dated: 15.12.2023 natural love and affection for his real brother and without any consideration nor he shall have any right or interest whatsoever in respect of the roof over the said one room and Miani (mezzanine) in front side".
b(iii) A decree of mandatory injunction is passed and defendant is directed to execute a corrigendum / supplementary deed in terms of declaration sought in prayer clause and get the same registered with the Sub-Registrar of assurance.
Let a decree sheet be prepared accordingly. File be consigned to Record Room.
TCR to be sent back to the concerned court along with the copy of judgment. SHIVALI Digitally signed by SHIVALI BANSAL Announced in open BANSAL Date: 2023.12.15 16:54:32 +0530 Court on 15.12.2023 Shivali Bansal Additional District Judge-03 North District, Rohini Courts, Delhi RCA No. 37/18 Nirmal Jain Vs. S. P Jain Page: 29 of 29