Delhi District Court
Smt. Sudarshana Kumari Blagan vs Sh. Din Dayal Sood S/O Late Sh. Mela Ram ... on 19 May, 2010
IN THE COURT OF SH. PULASTYA PRAMACHALA
CCJ:ARC(EAST):MM:KARKARDOOMA COURT DELHI
Civil Suit no: 792/07
Smt. Sudarshana Kumari Blagan,
W/o Late Sh. R.P. Balagan
R/o I13, Jungpura Extn. (Back entrance)
New Delhi110014. ....... Plaintiff
V E R S U S
1.Sh. Din Dayal Sood S/o Late Sh. Mela Ram Sood, R/o Uhland Street33, D6000, Frankfurt Main1, West Germany
2. Smt. Dev Kumari Sood The Deceased defendant through her L.R./son namely Sh. Anshumalee Sood, R/o M17, Green Park, New Delhi. ...... Defendants SUIT FOR RECOVERY OF Rs.58,265/ Date of institution of the Suit : 07.02.1984 Date on which judgment was reserved : 07.05.2010 Date of decision : 19.05.2010 Decision : Suit Decreed CS no.791/07 and 792/07 Page No: 1/ 31 Civil Suit no: 791/07 Smt. Sudarshana Kumari Blagan, W/o Sh. R.P. Balagan R/o I13, Jungpura Extn. (Back entrance) New Delhi110014. ....... Plaintiff V E R S U S
1. Smt. Tulsan Devi W/o Sh. Mela Ram Sood R/o I13, Jungpura Extension, New Delhi 110014. (now deceased)
2. Sh. Din Dayal Sood S/o Late Sh. Mela Ram Sood, R/o Uhland Street33, D6000, Frankfurt Main1, West Germany
3. Smt. Dev Kumari Sood The Deceased defendant through her L.R./son namely Sh. Anshumalee Sood, R/o M17, Green Park, New Delhi. ..... Defendants SUIT FOR PARTITION OF IMMOVEABLE PROPERTY Date of institution of the Suit : 07.02.1984 Date on which judgment was reserved : 07.05.2010 Date of decision : 19.05.2010 Decision : Preliminary Decree passed J U D G M E N T
1. Vide this common judgment I shall decide two suits filed by the plaintiff on the same date i.e. 07.02.1984. One suit (bearing no.792/07; old no.57/84) was filed against Tulsan Devi (defendant no.1) and Deen Dayal Sood (defendant no.2) seeking recovery of Rs.58,265/. Another suit (bearing no.791/07; old no.58/84) was filed for partition of immovable property i.e. house no.I13, Jungpura Extn., New Delhi14 (herein after referred to as suit property) against Smt. Tulsan Devi (defendant no.1), Sh. Deen Dayal Sood (defendant no.2) and Smt. Devi Kumari Sood (defendant no.3).
CS no.791/07 and 792/07 Page No: 2/ 31
2. Briefly stated the facts in the suit for recovery are that plaintiff filed this suit alleging that defendant no. 1 is her mother and defendant no. 2 is her brother. Sh. Mela Ram Sood was father of the plaintiff, who died on 05/09/1975 and left behind him property bearing no. I13, Jangpura Extension, New Delhi. This property is under joint possession of plaintiff and defendants. Plaintiff and defendants alongwith Smt. Devi Kumari Sood have onefourth share each in the aforesaid property. Plaintiff is occupying a portion of this property since June 1978. Defendant no. 1 being 85 years old, could not live alone and defendant no. 2 was residing in Germany for last 20 years. Therefore, in February 1981 they expressed their desire to transfer their shares in this property in favour of the plaintiff. It was agreed that defendants shall transfer their share for a consideration of Rs.43,000/. This was an oral agreement. Plaintiff being daughter of defendant no. 1 and sister of defendant no. 2, believed upon their words and gave a cheque bearing no. 276341 for the amount of Rs.43,000/ on 27/02/1981 in the joint name of the defendants. The cheque was duly encashed by the defendants, however, they did not transfer their share in the aforesaid property despite repeated demands made by the plaintiff. Plaintiff wants her money back from the defendants as they have failed to transfer their share in this property. Plaintiff served a notice dated 01/09/1983 upon the defendants thereby calling upon them to return this amount but defendant no. 1 vide her reply dated 13/09/1983, falsely asserted that this cheque was issued on account of expenses incurred on the plaintiff for the period between July 1979 to February 1981 and further to meet some expenses CS no.791/07 and 792/07 Page No: 3/ 31 which would have been incurred on account of Air passage and visit of Miss Abha Sood, daughter of the plaintiff to Frankfurt. Defendant no. 2 vide his reply dated 01/12/1981 falsely asserted that the aforesaid amount was given as a possible expenditure to be incurred by the plaintiff's said daughter, who was to visit him at Frankfurt. The stand taken by the defendants was false as defendant no.1 has not spent any amount on the plaintiff nor defendant no. 2 has spent any amount on the visit of Miss Abha Sood to Frankfurt. They are liable to return amount of Rs.43,000/ and to pay interest @ 12% p.a. for period w.e.f. 27/02/1981 upto 03/02/1984 for the sum of Rs.15,265/. Hence, the present suit for recovery of Rs.58,265/.
3. Plaintiff has prayed for recovery of Rs.58,265/. Plaintiff has prayed for recovery of aforesaid amount alongwith interest @ 12% p.a. from the date of filing of the suit till realization of the amount.
4. Initially, both defendants filed common written statement dated 14/04/1984. Apart from this written statement, two more amended written statements are found on the record, which are dated 09/04/1990 and 11/01/1991. However, I did not find any order passed by this court so as to allow any amendment in the written statement filed by the defendants. In his first written statement, defendants admitted the relationship between the parties and the factum of death of their father Sh. Mela Ram Sood. They pleaded that after death of Sh. Mela Ram Sood, there was an oral family settlement arrived on 09/09/1975 between the parties. This family settlement was reduced into writing on 09/02/1976 and Schedule A, B and CS no.791/07 and 792/07 Page No: 4/ 31 C were formulated and executed whereby plaintiff and Smt. Devi Kumari Sood agreed to transfer their rights and interest in the estate of late Mela Ram Sood against consideration of Rs.40,000/. Both of them received amount of Rs.40,000/. They executed relinquishment deed dated 06/04/1979, Form VII application, affidavits and no objection letter. In furtherance of said contract, defendant no. 1 was in possession as exclusive owner of the property. Plaintiff has no right or interest in this property. She had quarrel with her husband and had left the house of her husband. Therefore, she was accommodated purely as licensee in a room of this property. It is not disputed by them that all the parties to the suit including Smt. Devi Kumari Sood are the legal heirs of late Mela Ram Sood. They denied that they ever intended to transfer their share in this property to the plaintiff. They further pleaded that defendant no. 2 also relinquished his rights and interest in this property vide relinquishment deed dated 06/04/1979 without charging any consideration and therefore, defendant no. 1 was the exclusive owner in possession of this property. They further pleaded that daughter of plaintiff was to go to Frankfurt where defendant no. 2 is residing. The cheque of Rs.43,000/ was given to meet the expenses of the daughter of the plaintiff and it had nothing to do with the property. The daughter of plaintiff was provided with all the expenses for her visit and stay at Frankfurt. They admitted receipt of notice dated 01/09/1983 and submitted that this notice was replied vide reply dated 01/12/1983. They denied the claim of the plaintiff to be sustainable.
5. In replication, plaintiff reiterated the contents of the plaint and further CS no.791/07 and 792/07 Page No: 5/ 31 denied that any oral family statement was arrived between the parties on 09/09/1975. She further denied that it was reduced into writing on 09/02/1976 and Schedule A, B and C were formulated and executed. She further denied that said settlement and Schedules were acted upon. She further denied the execution of relinquishment deed dated 06/04/1979 and further applications, affidavit as well as no objection letter. She pleaded that after death of Sh. Mela Ram Sood, some proposals were made between the legal heirs for distribution of the assets left by him. He had left about a sum of Rs.1,70,684/ as cash in banks besides jewelery worth Rs.12,600/ and house no. I13. The Income Tax department refunded Rs.166,527/ in cash and plaintiff was paid her share of Rs.40,000/ by cheque by defendant no. 2. She further pleaded that dispute regarding portion of the house is yet to be decided. Defendant no. 2 had been obtaining signatures of the plaintiff from time to time on one or the other documents under duress and pressure as the plaintiff was a lady deserted by her husband. At one stage, a memorandum of family settlement was drafted in February 1976, but the parties did not agree on the terms of the same and therefore, it was torn by defendant no. 2. At another stage a deed of relinquishment was signed by the plaintiff but the same was also not acted upon and plaintiff refused to get it registered as required under law. Later on in August 1979, plaintiff, defendant no. 1 and Smt. Devi Kumari Sood executed will in respect of said house in favour of defendant no. 2 but this will executed by plaintiff was also later on canceled. The house in question was still assessed for the purpose of House Tax, electricity and water CS no.791/07 and 792/07 Page No: 6/ 31 installation in the name of Sh. Mela Ram Sood, therefore, no family settlement was acted upon by the parties and plaintiff never relinquished her share in this property. Plaintiff denied the legality and admissibility as well as validity of alleged family settlement and relinquishment deed. She further denied that the cheque was given to meet the expenses of daughter of plaintiff and pleaded that in February 1981 defendant no. 2 had even no knowledge that the daughter of plaintiff was about to go to Frankfurt. She referred to letter dated 21/06/1981 written by defendant no. 2 to Miss Abha Sood in support of such plea. She further pleaded that Miss Abha Sood stayed with one Doctor Rohr in Bockholt upto 31/03/1983. She had left Delhi on 31/08/1981. She visited Frankfurt for a short period only i.e. After 31.03.1983 upto 19/05/1983.
6. Briefly stated the case of plaintiff in the suit for partition is that defendant no. 1 is her mother and defendant no. 2 is her brother and defendant no.3 is her sister. Sh. Mela Ram Sood was father of the plaintiff, who died on 05/09/1975 and left behind him property bearing no. I13, Jangpura Extension, New Delhi. This property is under joint possession of plaintiff and defendants. Plaintiff and defendants have onefourth share each in the aforesaid property. Difference arose between the parties qua the suit property and it is not possible to hold the suit property jointly, therefore, plaintiff served legal notice dated 01.09.1983 thereby calling upon the defendants to partition the suit property by metes and bound. Defendant no.1 filed reply dated 13.09.1983 stating that partition of the suit property shall be made amicably as and when all the cosharer are present CS no.791/07 and 792/07 Page No: 7/ 31 in Delhi. However, defendant no.2 took up a different plea and refused to effect the partition of the suit property. Defendant no.3 being aware of the contents of the notice avoided to accept the same, hence all efforts to partition the suit property by metes and bounds had failed, hence the present suit.
7. Plaintiff in the original plaint claimed her share to be 1/4th alongwith other defendants. In response to such claim of plaintiff, defendant no.1 & 2 in their separate written statements filed on 19.04.1984 took preliminary objection that plaintiff has no locus standi to file this suit as she is not the owner of the suit property and has suppressed the material facts.
8. Both defendants admitted the relationship between the parties and the factum of death of their father Sh. Mela Ram Sood. They pleaded that after death of Sh. Mela Ram Sood, there was an oral family settlement arrived on 09/09/1975 between the parties. This family settlement was reduced into writing on 09/02/1976 and Schedule A, B and C were formulated and executed, whereby plaintiff and Smt. Devi Kumari Sood agreed to transfer their rights and interest in the estate of late Mela Ram Sood against consideration of Rs.40,000/. Both of them received amount of Rs.40,000/. They executed relinquishment deed dated 06/04/1979, Form VII application, affidavits and no objection letter. In furtherance of said contract, defendant no. 1 was in possession as exclusive owner of the property. Plaintiff has no right or interest in this property. She had quarrel with her husband and had left the house of her husband. Therefore, she was accommodated purely as licensee in a room of this property. It is not CS no.791/07 and 792/07 Page No: 8/ 31 disputed by them that all the parties to the suit are the only legal heirs of late Mela Ram Sood.
9. Defendant no.1 took further plea that plaintiff or defendant no.2 & 3 have no right or title or interest in the suit property and she was the exclusive owner in possession of this property. Same was the contention made by defendant no.2 as he pleaded that out of love and affection and respect for defendant no.1 he had also executed relinquishment deed in her favour and thereafter defendant no.1 is exclusive owner in possession of the suit property.
10. Defendant no.1 denied that she gave reply as alleged by the plaintiff and pleaded that a reply dated 1.12.83 was sent by her. She further pleaded that market value of the suit property at the time of filing of the suit was more than Rs.4 lac and hence this court has no pecuniary jurisdiction to try this suit.
11. Defendant no.3 in her first written statement filed on 19.04.84 took plea that she had relinquished her right and interest in the suit property against a consideration of Rs.40,000/, which was received by her as well as plaintiff. She further pleaded that she alongwith plaintiff had received Rs.40,000/ out of family settlement (as mentioned by defendant no.1 & 2) and had executed relinquishment deed alongwith affidavit and no objection certificate and form VII application. She also pleaded that Tulsan Devi was the exclusive owner of the suit property in possession.
12. Thereafter, plaintiff amended her plaint and pleaded that since defendant Sh. Deen Dayal Sood and Devi Kumari Sood have pleaded to CS no.791/07 and 792/07 Page No: 9/ 31 have relinquished their share in the suit property, their share in the suit property stood vested in the property itself and therefore, she had become coowner alongwith defendant Tulsan Devi having half share each. In her written statement filed on 10.07.1984, to this amended plaint of plaintiff, defendant no.1 reiterated her claim to be exclusive owner of suit property by virtue of family settlement and relinquishment deeds made by plaintiff as well as defendant no.2 & 3.
13. Defendant no.2 took plea that after relinquishment of their share by plaintiff and defendant no.3, he alongwith defendant no.1 became owner of suit property. He had relinquished his share in favour of defendant no.1 but it was not known whether defendant no.1 accepted this relinquishment or not. He also denied the claim of the plaintiff having half share with defendant no.1 in the suit property.
14. Defendant no.3 reiterated her stand that plaintiff alongwith her were left with no right, interest or title in the suit property.
15. Thereafter, defendant no.1 Tulsan Devi died on 09.08.1984. Plaintiff once again amended her plaint to claim 2/3rd share in the suit property alleging that with death of Tulsan Devi, she became entitled to 1/3rd of one half share falling in the basket of Tulsan Devi.
16. Defendant no.2 Deen Dayal Sood pleaded in his fresh written statement that Tulsan Devi was exclusive owner of suit property and during her life time she had executed will dated 25.01.1984. By virtue of this will he had inherited the whole of the suit property and had become sole owner of the same.
CS no.791/07 and 792/07 Page No: 10/ 31
17. Thereafter defendant no3 Devi Kumari Sood also modified her stand to take an alternative plea that Rs.40,000/ was received by her towards share in the cash amount left by Late Mela Ram and she also has share in the suit property as nothing was given on account of her share in the suit property. She continues to be coowner of suit property alongwith other legal heirs. During her life time Tulsan Devi left a registered will dated 08.01.1979 in favour of her son Deen Dayal Sood (defendant no.2) and she had her share in the suit property as per law, therefore, she is also entitled for her share. She further pleaded that the relinquishment of share made by her in favour of other coowners was erroneous and was not legal and valid.
18. In replication, plaintiff reiterated the contents of the plaint and further denied that any oral family statement was arrived between the parties on 09/09/1975. She further denied that it was reduced into writing on 09/02/1976 and Schedule A, B and C were formulated and executed. She further denied that said settlement and Schedules were acted upon. She further denied the execution of relinquishment deed dated 06/04/1979 as well as applications, affidavit and no objection letter. She pleaded that after death of Sh. Mela Ram Sood, some proposals were made between the legal heirs for distribution of the assets left by him. He had left about a sum of Rs.1,70,684/ as cash in banks besides jewelery worth Rs.12,600/ and house no. I13. The Income Tax department refunded Rs.166,527/ in cash and plaintiff was paid her share of Rs.40,000/ by cheque by defendant no.
2. She further pleaded that dispute regarding portion of the house is yet to CS no.791/07 and 792/07 Page No: 11/ 31 be decided. Defendant no. 2 had been obtaining signatures of the plaintiff from time to time on one or the other documents under duress and pressure as the plaintiff was a lady deserted by her husband. At one stage, a memorandum of family settlement was drafted in February 1976, but the parties did not agree on the terms of the same and therefore, same was torn by defendant no. 2. At another stage a deed of relinquishment was signed by the plaintiff but the same was also not acted upon and plaintiff refused to get it registered as required under law. Later on in August 1979, plaintiff, defendant no. 1 and Smt. Devi Kumari Sood executed will in respect of said house in favour of defendant no. 2 but this will executed by plaintiff was also later on canceled. The house in question was still assessed for the purpose of House Tax, electricity and water installation in the name of Sh. Mela Ram Sood, therefore, no family settlement was acted upon by the parties and plaintiff never relinquished her share in this property. Plaintiff denied the legality and admissibility as well as validity of alleged family settlement and relinquishment deed.
19. Both the cases were consolidated vide order dated 04.03.1985 as well as order dated 11.11.87 when order was passed to record common evidence for both the suits in suit no.90/87 (presently bearing suit no.792/07). On 24.09.84 issues were framed on the basis of will dated 25.01.84 propounded by defendant Deen Dayal Sood in the following terms:
a) Whether the deceased defendant no.1 executed a valid will in favour of defendant no.2?(OPD) CS no.791/07 and 792/07 Page No: 12/ 31
b) Relief
20. Vide order dated 19.05.1986 the court again framed fresh issues in suit no.792/07 in following terms:
1. Whether suit no.58/84 (present no. 791/07) is properly valued for purpose of court fee and jurisdiction? OPP
2. Whether the plaintiff has relinquished her rights in the property in question in favour of Tulsan Devi since deceased as alleged? If so, its effect? OPP
3. What is the share of the plaintiff, if any in the property in dispute? OPP
4. Whether the suit is barred u/s.53 of the Transfer of Property Act or u/s.23 of the Hindu Succession Act? OPD
5. Whether the sum of Rs.43,000/ had been received by Tulsan Devi and Din Dayal towards the expenses of the plaintiff's daughter as alleged?
OPD
6. Whether the plaintiff is entitled to have any interest? If so, at what rate and for what period and on what amount? OPP
7. Relief.
21. Since an order of consolidation was already passed on 04.03.1985, therefore, the effective orders were passed only in one case file i.e. suit no.792/07 ( previously suit bearing no.57/84)
22. Plaintiff examined two witnesses in support of her suit. PW1 plaintiff herself and PW2 Abha Sood. On the other hand defendants examined four witnesses namely DW1 Major General Baldev Kumar, DW2 Har Parkash, brother of Tulsan Devi, DW3 Arun Saini, AR of defendant no.2 and DW4 Anshumalee Sood, LR of defendant no.3.
23. All parties filed their written arguments and made their rival arguments. I have given due consideration to the rival contentions and perused the CS no.791/07 and 792/07 Page No: 13/ 31 record of this case.
24. Case laws relied upon by plaintiff :
● Janki Vashdeo Bhojwani vs. Indusind Bank Ltd. AIR 2005 SC 439 ● G. Sekar vs. Geetha and others AIR 2009 SC 2649 ● Sameer Maggoo Vs. Vijay MANU/DE/2994/2009
25. Case laws relied upon by defendant Sh. Deen Dayal Sood :
● Kale and others vs. Deputy Director of Consolidation others 1976 INDLAW SC 409, 1976 AIR (SC) 807 ● Amarjeet Lal Suri vs. Moti Sagar Suri and others 2005 INDLAW DEL 948, 2005 (119) DLT 295 ● Controller of Estate Duty vs. Chandra Kala Garg 1983 INDLAW ALL 52, 1984 (148) ITR 737 ● Madan Lal Kapur vs. Subhash Lal Kapur and others 2003 INDLAW DEL 647, 2003 (105) DLT 987 ● G. Sekar vs. Geetha and others 2009 INDLAW SC 485
3. Case laws relied upon by Sh. Anshumalee Sood, LR of Smt. Dev Kumar Sood: ● Dinaji & ors. vs. Daddi and other, AIR 1990 C 1153.
● Ghasitibai vs. Ramgopal Singh and others, 2008(4) MPHT 385 ● A.C. Chakrapani Reddiar and others, AIR 2001 Mad 135 ● Udebhan vs. Rangrao and others, AIR 1920 Nagpur 265 (2) ● Kavuru Venkatappayya vs. Kavuru Raghavayya AIR 1951 Mad 318 ● Rathinasabapathy Pillai and anr. vs. Saraswati Ammal, AIR 1954 Mad 207 ● Thamma Venkata Subamma vs. Thamma Rattamma and others, AIR 1987 SC 1775 ● Baljinder Singh vs. Rattan Singh, 2008 AIR (SCW) 5666 ● Ramchandra Rambux Champabai and others, AIR 1965 SC 354 ● H Venkatachala Lyengar vs. B. N. Thimmajamma, AIR 1959 SC 443 ● Janki Vashdeo Bhojwani vs. Indusind Bank Ltd. AIR 2005 SC 439 ● S.P. Chengalvaraya Naidu (Dead) by LRS. vs. Jagannath (Dead) by LRs.
and others AIR 1994 SC 853
CS no.791/07 and 792/07 Page No: 14/ 31
25. My issuewise findings are as follows:
Issue no.1:Whether suit no.58/84 (present no. 791/07) is properly
valued for purpose of court fee and jurisdiction? OPP
26. Plaintiff has valued her suit for partition at Rs.86,000/ for the purpose of jurisdiction, pleading that market value of suit property at the time of filing of the suit was Rs.86,000/. Defendant no.1 (now deceased) pleaded that the suit property had market value of more than Rs.4 lacs at the time of filing of the suit. Plaintiff/PW1 in her statement deposed that the market value of the suit property at the time of filing of the suit was Rs.86,000/. None of the defendants either challenged this valuation given by the plaintiff nor projected and proved any other market value of the suit property at the time of filing of the suit.
27. In these circumstances, as far as question of market value of suit property is concerned, I do not find any reason and material to disbelieve the valuation given by the plaintiff.
28. As far as question of payment of advalorem court fee is concerned, it is not in dispute that plaintiff was in occupation of part of the suit property. Defendant 1 & 2 have pleaded that she was allowed to reside in the suit property merely as licencee and she had no other right, title or interest in the suit property. This question of status of plaintiff shall be dealt with by this court, when the question of right of every party shall be looked into. For the purpose of issue in hand, it is sufficient to say that plaintiff was in possession of a part of suit property and therefore, the payment of court fee was to be made as per article 17 Schedule II of Court Fees Act. In this CS no.791/07 and 792/07 Page No: 15/ 31 regard, I would like to refer and rely upon following case law:
29. In S. Fauza Singh Vs. Kuldip Singh, AIR 1978 Del.276, Delhi High Court held that " Where a plaintiff in a suit for partition and rendition of accounts was found to be in possession of a part of the property, it is to be valued for the purposes of Courtfee in accordance with S.7(iv)(b) read with Art. 17 Schedule II of Court Fees Act and no advalorem Court fee is required to be paid".
Therefore, this issue is decided in favour of plaintiff. Issue no.2 Whether the plaintiff has relinquished her rights in the property in question in favour of Tulsan Devi since deceased as alleged? If so, its effect? OPD and Issue no.A : Whether the deceased defendant no.1 executed a valid will in favour of defendant no.2(OPD)
30. I am taking up these issues together because findings on the second issue are connected with the findings on the first issue.
31. Defendant no.1 & 2 i.e. Tulsan Devi and Deen Dayal Sood heavily relied upon a family settlement allegedly taken place on 09.09.75 and a memorandum of such settlement executed on 09.02.1976. They also relied upon the relinquishment deeds executed by plaintiff as well as Devi Kumari Sood. During cross examination of PW1, defendant put schedule A, B and C as well as relinquishment deed dated 06.04.1979 before her and she admitted her signature there upon. From the respective pleadings of Deen Dayal Sood and Devi Kumari Sood, it can be safely inferred that the aforesaid schedules as well as individual relinquishment deed were signed by them as well in favour of Tulsan Devi. However, question has CS no.791/07 and 792/07 Page No: 16/ 31 been raised in respect of validity of relinquishment deeds, which are admittedly unregistered documents and the validity of schedules as well as other documents like FormVII application, affidavit. Plaintiff has pleaded that the alleged family settlement was not acted upon. She as well as Devi Kumari Sood (in her last written statement) pleaded that amount of Rs.40,000/ was not received by them against their share in estate left by Mela Ram Sood but from the cash amount left by him. The major contention revolves around the question that whether such family settlement took a final shape and was acted upon by the parties or not?
32. In order to analyse this question, I would like to refer some important dates pertaining to the case in hand:
Death of Mela Ram : 05.09.1975
Oral family settlement : 09.09.1975
Memorandum of family settlement: 09.02.1976
Execution of relinquishment deed
by all parties in favour of
Tulsan Devi : 06.04.1979
First will executed by Tulsan Devi: 01.08.1979
Registered on : 06.08.1979
Second will of Tulsan Devi : 25.01.1984
Filing of present suits : 07.02.1984
Death of Tulsan Devi : 09.08.1984
33. First of all, it is worth to mention here that defendant Deen Dayal Sood, who has heavily relied upon the family settlement, has not produced any CS no.791/07 and 792/07 Page No: 17/ 31 memorandum of family settlement except the schedules A, B & C. It has not been explained by him that why this memorandum was not placed and proved on the record. Such explanation was very relevant in the background of pleading of plaintiff that this memorandum was not accepted by the parties and hence it was torn by defendant Deen Dayal Sood.
34. If I proceed to assume that the alleged family settlement was acted upon by the parties, then I face following questions:
a) Why there was any need to execute relinquishment deed after around more than three years, when family settlement took place and memorandum of such family settlement was written down?
b) Why in the will dated 01.08.1979 Tulsan Devi claimed that she has only 1/4th share in the suit property?
c) As per schedule C, the suit property had come in the basket of defendant Deen Dayal Sood and Tulsan Devi, then why defendant Deen Dayal Sood had to plead that he was not sure that relinquishment executed by him in favour of Tulsan Devi was accepted or not, especially when on the same date his two sisters also executed similar relinquishment deed in favour of their mother?
33. I do not find answer to these questions either in the pleading or in the evidence of defendant. There is no explanation that why memorandum was not placed and proved on the record. If such alleged family settlement had been acted upon then where was the need to CS no.791/07 and 792/07 Page No: 18/ 31 execute fresh relinquishment deeds by all the children in favour of their other, that too after more than 3 years. When the allocation of share in the estate left by Mela Ram Sood had taken effect then there was no need and occasion for plaintiff and defendant Devi Kumari Sood to execute fresh relinquishment deeds.
34. In respect of stand taken by Tulsan Devi regarding her share in the suit property in her first will dated 01.08.1979, the explanation has been forwarded on behalf of defendant Deen Dayal Sood that her previous advocate did not draft the will as per instructions given to him and therefore, it was a wrongly drafted will and when Tulsan Devi came to know about such wrong contents of the will, she executed a fresh will on 25.01.1984. In my considered opinion, such explanation given before me does not sound to be a sustainable excuse because if such excuse is entertained then there remains no guarantee that contents of second will or any other document shall be accepted by the executant or other affected persons, to be true contents according to her correct stand. Section 91 & 92 of Evidence Act make it clear that any evidence contrary to the terms and conditions of a document is not admissible. If Tulsan Devi really had come to know about such blunder in the will executed by her on 01.08.1979, then she could have pleaded in her written statement that though in the past some wrong will was executed by her but she had taken steps to rectify the same. When she was alive and had filed her written statement in the present suit on 19.04.1984 as per story projected by defendant no.2 Deen Dayal Sood, she had already realized such mistake CS no.791/07 and 792/07 Page No: 19/ 31 and executed a fresh will on 25.01.1984. However, it is very suspicious circumstance that she did not whisper about any such fact, which was very relevant in the present case, in the written statement filed by her. The written statement was filed by her taking a common stand with defendant Deen Dayal Sood, without disclosing that she had executed a will in the past with a different contention regarding her share in the suit property. Defendant has not disclosed and explained that when such mistake was realized by Tulsan Devi. It is also not disclosed that under what circumstances all of sudden after around almost four and half years, Tulsan Devi came to go through her previous will in order to find such mistake. It is worth to be seen that DW1 claimed that she had taken Tulsan Devi to the office of Ms. Uma Aggarwal on two occasions. They had visited office of Ms. Aggarwal around 2/3 days back to 25.1.1984 and were asked to come at 4.00p.m. on 25.1.1984 for executing the will. On that day, a draft of will was already prepared by Ms. Uma Aggarwal who read it and explained it to Tulsan Devi and thereafter original will Ex. DW1/1 was typed. In his cross examination this witness could not remember that whether any relinquishment deed or any other document was shown to Ms. Uma Aggarwal. The language used in Ex. DW1/1 show that it could not be prepared simply on the basis of oral instructions. It shows that a complete particulars of alleged family settlement as well as relinquishment deed were given to the person who drafted the same. When DW1 who claimed to be with Tulsan Devi every time, could not remember this material fact, then cloud of suspicion rises over the story of execution of CS no.791/07 and 792/07 Page No: 20/ 31 fresh will by Tulsan Devi by giving oral instructions in respect of contents of the same, that too at the age of around 85 years. It is also worth to be seen that though the previous will was opted to be registered, but this will was not registered by Tulsan Devi. No plausible reason for the same has been explained before me.
35. All these scenario show that the will in question was not executed in normal circumstance and in normal manner. The execution of will dated 25.01.1984 cannot be treated to be beyond suspicious circumstances and hence it cannot be relied upon.
36. It has been argued by defendant Deen Dayal Sood that memorandum of family settlement does not require registration. Counsel relied upon several case laws in this respect. However, it is not even case of defendant Deen Dayal Sood that the relinquishment deed was a part of such memorandum of family settlement. Such relinquishment deed was executed after more than three years of alleged date of written memorandum of family settlement and cannot be termed to be a part of such memorandum. Thus, relinquishment deed executed by plaintiff Deen Dayal Sood and Devi Kumari Sood are covered within mischief of section 17 of Indian Registration Act being compulsorily registrable.
37. In this respect I would refer and rely upon the judgment of Supreme Court as given in Commissioner of Incometax. West Bengal, Calcutta. v. Juggilal Kamalapat, AIR 1967 SUPREME COURT 401 " wherein it was as held as under:
"(1) Whether in the facts and circumstances of this CS no.791/07 and 792/07 Page No: 21/ 31 case, can the nonregistration of Relinquishment Deed invalidate the transfer of the business assets to the new partnership ?
12. In the alternative, we think that, even if it had been accepted that this deed of relinquishment required registration, that would not lead to the conclusion that the partnership seeking registration was not valid and had not come into existence in law. The deed of relinquishment could, at best. be held to be invalid insofar as it affected the immovable properties included in the assets of the firm; but to the extent that it purported to transfer movable assets of the firm, the document would remain valid. The deed could clearly be divided into two separate parts, one relating to immovable properties, and the other to movable assets; and the part of the deed dealing with movable assets could not be held invalid for want of registration. A deed of relinquishment is in the nature of a deed of gift, where the various properties dealt with are always separable, and the invalidity of the deed of gift in respect of one item cannot affect its validity in respect of another."
38. From the aforesaid case law as well as case law relied upon by Anshumalee, there remains no doubt that these relinquishment deeds being unregistered document cannot be read in evidence. The other piece of evidence i.e Schedule A,B and C remains half hearted evidence produced on behalf of Deen Dayal Sood in respect of alleged family settlement. In Kale and others vs. Deputy Director of Consolidation others, 1976 AIR (SC) 807, Supreme Court has held as under:
a family settlement in a concretised form, the CS no.791/07 and 792/07 Page No: 22/ 31 matter may be reduced into the form of the following propositions:
(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family.
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangements may be even oral in which case no registration is necessary;
(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17 (2) (sic) (Sec. 17 (1) (b) ?) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the CS no.791/07 and 792/07 Page No: 23/ 31 settlement has not title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owners, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."
39. If I weigh the facts and evidence of present case on the parameters of guidelines laid down by Supreme Court in aforesaid case, I find that the defendant Deen Dayal Sood has failed to establish on the record that such alleged oral family settlement was acted upon at any point of time. The missing memorandum leaves question mark over the validity of schedule A,B & C. Receipt of Rs.40,000/ by plaintiff and Devi Kumari Sood cannot be termed to be equitable share out of whole estate left by Mela Ram. The evidence of defendant cannot be accepted in piece meal. Therefore, I come to conclusion that though there might have been a talk of family settlement among the parties, but no final settlement of their dispute of share in the estate left by Late Mela Ram Sood had taken place. I also reach to the conclusion that in the eyes of law there was no relinquishment of share of plaintiff in the suit property in favour of Tulsan Devi.
40. The case laws relied upon by Deen Dayal Sood are based on the presumption that there was a valid family agreement, which was acted CS no.791/07 and 792/07 Page No: 24/ 31 upon by the parties. In the present case since I have come to conclusion that the alleged family settlement was not acted upon by the parties, therefore, these case laws cannot be applied in the present case. Accordingly, these issues are decided in favour of plaintiff and against defendants.
Issue no.4:Whether the suit is barred u/s.53 of the Transfer of Property Act or u/s.23 of the Hindu Succession Act? OPD
41. It has not been explained by any of the defendants that how the suit for partition is barred under Section 53 of Transfer of Property Act. Only objection which has been properly taken on behalf of defendants is in respect of bar created by Section 23 of the Hindu Succession Act (as it was prior to 2005). This question was dealt with by Delhi High Court in CM Main 995/2005 vide order dated 21/04/2010 and Delhi High Court while relying upon case law cited as G. Sekar vs. Geetha and others 2009 INDLAW SC 485 as well as Sh. Sameer Magoo vs. Sh. Vijay Kr. Magoo and others, MANU/DE/2994/2009, overruled such objection, which was raised by legal heir of defendant Smt. Devi Kumari Sood. Supreme Court in G. Sekar vs. Geetha and others 2009 (2) RCR (Civil) 844, held as under: 'Section 23 of the Hindu Succession Act, has been omitted so as to remove the disability on female heirs contained in that Section. It sought to achieve a larger public purpose. If even the disability of a female heir to inherit the equal share of the property together with a male heir so far as joint coparacenary property is concerned has been sought to be removed, we fail to understand as to how such a disability could be allowed to be retained in the statute book in respect of the property which had devolved upon CS no.791/07 and 792/07 Page No: 25/ 31 the female heirs in terms of Section 8 of the Act read with the Schedule appended thereto. Restrictions imposed on a right must be construed strictly. In the context of the restrictive right as contained in Section 23 of the Act, it must be held that such restriction was to be put in operation only at the time of partition of the property by metes and bounds, as grant of a preliminary decree would be dependent on the right of a cosharer in the joint property. Concededly a preliminary decree could be passed declaring each co th sharer to be entitled to 1/5 share therein in terms of the provisions contained in Section 8 of the Act.'
39. Relying upon the aforesaid observations of Supreme Court even Delhi High Court in case law cited as Sameer Magoo vs. Sh. Vijay Kr. Magoo and others, MANU/DE/2994/2009, has held that 'a bar created under Section 23 of Hindu Succession Act was not a bar over the rights but was a bar created for exercise of such right'.
40. The aforesaid judgments of Supreme Court and Delhi High Court leave no doubt that objection raised by the defendants is not sustainable. Hence, this issue no. 4 is decided in favour of plaintiff and against the defendant. Issue no.3:What is the share of the plaintiff, if any, in the property in dispute? OPP
41. In view of my findings given on issue no.2 as well as issue relating to the will, I find that plaintiff's share in the suit property is to be determined in rd accordance with formal rule of succession. Plaintiff has claimed 2/3 share as on this date on the basis of fact that defendant Deen Dayal Sood and Devi Kumari Sood pleaded to have relinquished their share in the suit property in favour of Tulsan Devi and such relinquishment could not take CS no.791/07 and 792/07 Page No: 26/ 31 place in favour of any individual. Therefore, their share in the suit property remain vested in the property itself and plaintiff became cosharer of suit property with Tulsan Devi. After death of Tulsan Devi, she became owner of 2/3rd share because she was entitled to 1/3rd share out of half share of Tulsan Devi. In my considered opinion, such claim of the plaintiff is not tenable in the eyes of law because relinquishment can be made by parties in favour of any persons. Such relinquishment does not vest the interest of first party in the property itself so as to put it in the common pool.
42. Secondly, in the present case this court has not accepted the plea of relinquishment of share, for reason that they are unregistered documents and cannot have the effect to be evidence of relinquishment of the share by plaintiff or by defendant Deen Dayal or by Devi Kumari Sood. The parameters applied for plaintiff have to be the same for defendant Deen Dayal Sood and Devi Kumari Sood. Therefore, in the eyes of law there was no relinquishment of share of any of the children of Tulsan Devi.
43. In these circumstances, taking view of undisputed will proved by plaintiff herself as Ex.PW1/1 in this case, I find share of plaintiff to be 1/4th, in the suit property. For the purpose of clarification, it is clarified that will Ex. PW1/1 was duly proved by plaintiff herself stating that it was signed by Tulsan Devi and Jagdeep Kishore in her presence. Such statement of plaintiff has the effect to prove the will as per section 63 of Evidence Act. It is further worth to be seen that will was registered as well. Since the second will dated 25.01.1984 is not found to be worth reliance by this court, this will is to be treated as last will of Tulsan Devi. In these circumstances, CS no.791/07 and 792/07 Page No: 27/ 31 the share of 1/4th share of Tulsan Devi has to go in favour of Deen Dayal Sood and remaining 1/4th share remains that of Devi Kumari Sood. The final proposition of the share of the parties to the suit property is as under:
i) Plaintiff : 1/4th
ii) Deen Dayal Sood : 1/2th
iii) Devi Kumari Sood : 1/4th
Issue is decided accordingly.
Issue no.5: Whether the sum of Rs.43,000/ had been received by Tulsan Devi and Din Dayal towards the expenses of the plaintiff's daughter as alleged? OPD
44. In my finding on issue no.2, I have already observed that the alleged family settlement had not taken place and therefore there was very natural th reason even for Tulsan Devi to claim her share to be 1/4 in the suit property in the will dated 01/08/1979. In this case it is worth to be seen that defendant Deen Dayal did not enter into witness box. DW3, attorney of defendant Deen Dayal could not have deposed in respect of facts which were within personal knowledge of Deen Dayal and were beyond personal knowledge of this witness. This witness i.e. DW3 in his cross examination admitted that except Ex. DW3/1 and DW3/2A no other documents were executed in his presence. He could not establish on the record that he had personal knowledge of all the facts. Infact, he deposed in cross examination that he did not have personal knowledge of the facts stat ed in his affidavit except about ownership of suit property. In respect of ownership of suit property he deposed that he had knowledge on the basis CS no.791/07 and 792/07 Page No: 28/ 31 of document viz Ex. DA/ DB and DC and will dated 25.01.1984. He has further deposed that he did not have any friendly or family relation with Deen Dayal Sood. In these circumstances, I have no hesitation to say that his evidence is useless evidence on the record. When Defendant Deen Dayal himself has not entered into the witness box, an adverse assumption is to be raised in respect of plea taken by him that the cheque in question were given for expenses incurred by him on the travel of Abha Sood. The documents proved by DW3 cannot be treated to be proved documents. Further more no one has disputed the statement of PW1 that Ex. PW1/5 bears signature of Tulsan Devi. This document is the reply which was allegedly given by Tulsan Devi in response to notice given by plaintiff. In this reply it is stated that the cheques was issued for expenses incurred by plaintiff and whatever expenses were to be incurred on visit of Ms. Abha to Frankfurt. In absence of any concrete evidence on the record to show that what expenses were incurred on the plaintiff as well as on the visit of Ms. Abha Sood to Frankfurt, such plea of defendants cannot be sustained. Therefore, I come to conclusion that such amount was not received by Tulsan Devi and Deen Dayal Sood towards expenses of plaintiff's daughter.
45. An argument has been made on behalf of Anshumalee Sood, LR of Devi Kumari Sood that they did not receive any amount out of aforesaid cheque, therefore, they are not liable to make payment of any amount to the plaintiff. It is worth to be seen that this defendant has claimed share in the estate left by deceased Tulsan Devi. The estate left by Tulsan Devi has this debt towards the plaintiff and since this defendant is inheriting the CS no.791/07 and 792/07 Page No: 29/ 31 share in the estate left by Tulsan Devi, he is liable to repay the debt charged on the estate of Tulsan Devi.
This issue is accordingly decided in favour of plaintiff. Issue no.6: Whether the plaintiff is entitled to have any interest? If so, at what rate and for what period and on what amount? OPP
46. Plaintiff has claimed interest @ 12% p.a. Section 80 of N.I. Act provides for an interest @ 18% p.a. on the amount of cheque given by any party. Though no cheque has been issued in favour of plaintiff but the situation would not have been different if plaintiff would have received the cheque for satisfaction of liability of Tulsan Devi and Deen Dayal towards her. In these circumstances, I do not find rate of interest of 12% to be exorbitant rate of interest. Hence I do find her to be entitled for interest @ 12% p.a. for the period from the date of cheque 27.02.1981 till the date of filing of suit.
47. As regards pendentlite and future interest, I find it to be sufficient to award interest @ 6% p.a. as per section 34 CPC, in favour of plaintiff from the date of filing of the suit till realization of the amount. Relief:
48. In view of my findings and observations on the aforesaid issues, the suit for recovery is decreed in favour of plaintiff and against defendant Deen Dayal Sood and Anshumalee for recovery of Rs.58,265/ alongwith interest @ 6% p.a. from the date of filing of the suit till realization of the amount.
49. A preliminary decree is passed in suit for partition thereby holding that CS no.791/07 and 792/07 Page No: 30/ 31 plaintiff and other parties to the suit are entitled for following shares in the suit property:
Plaintiff : 1/4th
Deen Dayal Sood : 1/2th
Devi Kumari Sood through LR Anshumalee : 1/4th
50. Cost of the suit in suit for recovery is awarded to plaintiff against defendants.
51. Copy of this judgment be placed in both the suit file. Decree sheet in both the suits be prepared accordingly. Thereafter, file of the suit for recovery (suit no.792/07) be consigned to record room.
Announced in the open (PULASTYA PRAMACHALA) Court on 19.05.2010 CCJ/ARC(East)/MM (Judgment contains 31 pages.) KARKARDOOMA COURTS, DELHI CS no.791/07 and 792/07 Page No: 31/ 31