Delhi High Court
Smt. Rani Devi vs Ashok Kumar Nagi And Anr. on 10 September, 1998
Equivalent citations: AIR1999DELHI109, 76(1998)DLT279, AIR 1999 DELHI 109, (1999) 1 RECCIVR 22, (1999) 2 LANDLR 635, (1999) 2 CIVLJ 109, (1999) 4 CURCC 197, (1998) 76 DLT 279
Author: S.K. Mahajan
Bench: S.K. Mahajan
JUDGMENT S.K. Mahajan, J.
1. Late Lal Karam Chand Nagi was the owner of the properties being Shop Nos. 290 to 296, Bazar Ajmeri Gate, Near New Amar Talkies, Delhi. The said property comprised of not only the shops on the ground floor but also comprised of the first, second and third floors. After the death of Lala Karam Chand Nagi, the plaintiff who is the daughter of the deceased Karam Chand Nagi, filed this suit for partition of the property against defendant No. 1 who is her brother and defendant No. 2 who is the other daughter of the deceased Karam Chand Nagi. It was alleged in the plaint that the deceased died intestate and as such parties to the suit being the legal heirs of the deceased were entitled to 1/3rd share each in the said property. While the shops on the ground floor are under the tenancy of the different persons named in the plaint, in a portion of the first floor, the Municipal Corporation of Delhi was running a primary school. The remaining portion of the first floor as well as the second floor and third floor were in exclusive possession of defendant No. 1. The rent from the shops on the ground floor as well as from Municipal Corporation of Delhi for its occupation on the first floor was being recovered by defendant No. 1 alone. In paragraph 4 of the plaint, the plaintiff has admitted that the entire property in suit was in possession of defendant No. 1 alone. The plaintiff is alleged to have demanded her 1/3rd share in the properties from defendant which he refused and this suit was, therefore, filed by the plaintiff for partition of the aforesaid properties. Though, it is mentioned in the plaint that the value of the suit for purposes of Court Fee and jurisdiction was Rs. 21,00,000/- which was the approximate value of the suit property, however, a fixed Court Fee of Rs. 20/- has been fixed on the plaint.
2. Defendant No. 2 filed her written statement supporting the claim of the plaintiff while the suit is being contested only by defendant No. 1. In his written statement, defendant No. 1 besides raising a preliminary objection about the suit having not been properly valued for Court Fee and jurisdiction, also denied the locus standi of the plaintiff to file the suit. It was stated in the written statement by defendant No. 1 that the deceased had left a Will dated 22nd November, 1984 which was duly registered bequeathing the property in suit to defendant No. 1 alone. Plaintiff was alleged to be fully aware of the said will and as such, according to defendant No. 1, the plaintiff was not entitled to any share in the property and the suit was, therefore, alleged to be misconceived.
3. After the replication was filed by the plaintiff, the Court framed the following issues on 11th August, 1995 :--
1. Whether the defendant No. 1 proves that his father has made a valid and legal Will on 22nd of November, 1984?
2. Whether the defendant No, 1 gets exclusive ownership of suit property on account of the Will executed by his father on 22-11-1984?
3. Whether the plaintiff has got 1/3rd share in the suit property?
4. Whether the Court-fee paid by the plaintiff is proper and correct?
5. Whether the plaintiff is entitled to get partition and separate possession of her share?
4. After having heard learned counsel for the parties, my issue wise findings are as under :--ISSUE NO. 1
5. Besides herself appearing as PW-1, plaintiff also produced one Mr. Kripal Singh as a witness. The plaintiff in her statement stated that after the death of her father she did not demand any share in the property from defendant No. 1 but had sent a notice Ex. P-1 claiming that she owned a share in the property. Reply Ex. P-2 to the said notice was received from defendant No. 1. She denied any knowledge of the Will alleged to have been executed by her father. In cross-examination she stated that she was married 2-3 years before partition of the country and the suit property was purchased by her grandfather partly from his claims of compensation and partly from his own earnings. She denied the suggestion that the property was purchased by her father and not by her grandfather. She, however, had not read the sale deed of this property. She denied that there was any dispute between her and her father or that she had stopped visiting her father. She denied that her father got her constructed rooms, kitchen, bathroom and latrine in her house for residence. She admitted that in connection with the murder of her son-in-law, her son and husband were arrested, however, she denied that because of this reason her father was not having good relations with her and had disinherited her from the property.
6. Mr. Kripal Singh appeared as a witness in support of the case of the plaintiff and stated that the deceased was his cousin and he used to visit him quite often. He further stated that the deceased never told him about the execution of a Will. He, however, admitted that in 1978 a theft was committed in the house of the deceased and he was named as a thief. He, however, denied that he had broke open the house or had committed theft therein.
Mr Sadruddin who is an attesting witness to the Will has appeared as D1W2 and stated that he had Mangat Ram, the other attesting witness, had signed the Will in the presence of the deceased and the deceased had signed the same in their presence. He has identified the signatures of the deceased on the Will as well as the signatures of other witness who has since died. It was further stated that the deceased Karam Chand Nagi was in sound disposing mind at the time of signing the Will and the contents of the Will were explained by an advocate in his presence and Karam Chand Nagi had signed the Will only after understanding the contents thereof. The Sub-Registrar of Assurances who had registered the Will also appeared as a witness and stated that D1W2 Mr. Sadruddin and Har Prakash, Advocate were present at the time of registration of the Will and that the deceased as identified to him by Mr. Har Prakash, Advocate. Defendant No. 1 also appeared as a witness and stated that on 12th December, 1984 the Will was registered but the same was drafted earlier on 22nd November, 1984 but was signed only on 12th December, 1984 on the date when it was registered before the Sub-Registrar. The deceased died on 5th November, 1991 almost seven years after the execution of the Will. The property has also been mutated in the name of defendant No. 1 on the basis of the Will.
7. While D1W2 has clearly stated that the Will was executed by the deceased in his presence at the time when he was of sound disposing mind, the other witness has proved the registration of the Will. Both the witnesses have stated that the Will was duly understood by the deceased before he had signed the same. No suspicious circumstances have been brought to the notice of the Court about the execution of the Will. Nobody has denied the signatures of Karam Chand Nagi on the Will. Both the daughters of the deceased were married and it is, therefore, neither unnatural nor improbable that the deceased has bequeathed the property to his only son by way of the Will. In the absence of suspicious circumstances surrounding the execution of the Will, in my view, defendant No. 1 has been able to discharge the onus of proving issue No. 1. In the light of relevant circumstances and in view of the evidence produced on record, I am satis fied'lhat the Will Ex. D1W1 is the last Will and testament of the deceased Karam Chand Nagi. Issue No. I is, therefore, decided in favour of defendant No. 1.
ISSUE NO. 28. In view of the fact that Issue No. I has been decided in favour of defendant No. 1 and it having been held that the deceased had executed a valid and legal Will on 22nd November, 1984, defendant No. 1 gets exclusive ownership of the suit property on the basis of the said Will. Issue No. 2 is, therefore, decided in favour of defendant No. 1 and against the plaintiff. ISSUE NO. 3.
9. In view of the fact that the entire property has been bequeathed to defendant No. 1 by the deceased by way of a Will Ex. D.1W1 dated 22nd November, 1984, the plaintiff does not get any share in the suit property. This issue is, therefore, decided against the plaintiff. ISSUE NO. 4.
10. The plaintiff has filed this suit for partition of the property on the allegations that she was joint owner of the property having inherited the same from her father. In paragraph 4 of the plaint, it is stated by the plaintiff that the parties in suit are joint and co owners of the entire property in suit and defendant No. 1 is partly in actual possession and enjoyment of the property on the first floor and whole of the second and third floors and symbolic possession of the property on the ground floor through the tenants. Only defendant No. 1 is recovering rent from all the tenants. Shop No. 294/2 is in occupation of Ashok Metal Stores. It is, therefore, clear from the pleadings that the plaintiff is not in possession of any part of the suit property.
11. Under Article 7 (vi) in Schedule II of the Court-fees Act, where it is not possible to decide the money value of the subject matter in dispute, the suit can be filed by affixing a fixed Court-fee on the plaint. In Jagdish Pershad v. Joti Pershad, 1975 Rajdhani LR 203, it is held that where the plaintiff claims to be in joint possession of the property of which partition is sought, he is to pay only fixed Court-fee as per Article 17 (vi) in Schedule II of the Court-fees Act. In the present case, however, it is not pleaded anywhere that plaintiff is in joint possession of the property and on the other hand in view of the allegations made in paragraph 4 of the plaint, it is clear that the property is in exclusive possession of defendant No. 1. Therefore, in view of the provisions of Section 7(iv)(b) of the Court-fees Act and in view of the judgment of this Court in Prakash Wati v. Dayawanti, the plaintiff was required to pay Court-fee on the value of her share for seeking the relief of partition. The plaintiff has, therefore, not paid proper Court-fee on the suit. This issue is, accordingly, decided against the plaintiff.
ISSUE No. 512. In view of the above discussion, in my view, plaintiff is not entitled to get partition or separate possession of any part of the property. This issue is also decided against the plaintiff.
13. In view of the above discussions, the plaintiff is not entitled to any relief in the suit and the suit is, accordingly, dismissed. However, in the peculiar facts and circumstances of the case, I leave the parties to bear their own costs.