Delhi District Court
Shanteshwar Pal vs Shri Vishwanath Sanyas Ashram Trust on 16 August, 2014
ID No.02401C057712009
IN THE COURT OF SHRI PANKAJ GUPTA : ADDL. DISTRICT
JUDGE (CENTRAL07) : TIS HAZARI COURT : DELHI
CIVIL SUIT NO.17/2009
Shanteshwar Pal
S/o Late Sh. Sunder Lal
R/o 2389, Gali Chandi Wali,
Turkman Gate, Delhi. ............. PLAINTIFF
VERSUS
1. Shri Vishwanath Sanyas Ashram Trust
11, Bela Road,
Sir Ram Road, Civil Lines,
Delhi54
Through its Authorized
Signatory
Sh. Kailash Nath Khanna
S/o Sh. Shagun Nath Khanna
2. Sh. Sunder Gupta
S/o Kishan Lal
(Trustee of Sh. Vishwanath Sanyas Ashram Trust)
11, Bela Road,
Sir Ram Road, Civil Lines,
Delhi54.
3. Sh. Hem Chand Verma
(Trustee of Sh. Vishwanath Sanyas Ashram Trust)
11, Bela Road,
1/15 Shanteshwar Pal vs. Vishwanath Sanyas Ashram Trust & Ors.
Sir Ram Road, Civil Lines,
Delhi54. ........... DEFENDANTS
Date of Institution : 10.02.2009
Date when the case reserved for order : 16.08.2014
Date of Order : 16.08.2014
J U D G M E N T
1. The plaintiff filed the suit for declaration, cancellation of Will dated 10.06.2003, possession and permanent injunction against the defendants.
2. In the plaint, it is stated that Late Smt. Shanti Devi Thakur (SDT) was the real bua of the plaintiff (i.e. the plaintiff's father's real sister) and died issue less. Her husband had predeceased her. During her lifetime, SDT nominated the plaintiff as her adopted son and wanted to give her entire movable and immovable assets to him. The plaintiff came to know that the defendant no.1 filed a probate petition no. 420/06/04 before the then District Judge, Tis Hazari Court on the basis of the Will dated 10.06.2003 allegedly executed by SDT without impleading the plaintiff. Once the plaintiff came to know about the said petition, he, being the only surviving legal heir of SDT, moved an application under order 1 Rule 10 of CPC for impleadment and the same was allowed. Thereafter, he filed the objection application therein. During the pendency of the said probate petition, the defendant no.1 in collusion with the officials of the State Bank of India got the photocopies of 2/15 Shanteshwar Pal vs. Vishwanath Sanyas Ashram Trust & Ors. FDRs of different banks kept by SDT in her locker no. M34. Once the said locker was opened by the order of the court, the defendant no.2 gave the valuation report of the gold jewellery and articles placed therein. On 28.02.2008, the defendant no.1 withdrew the said petition with liberty to file the fresh petition. Cost of Rs. 5,000/ was imposed upon the defendant no.1. It is also stated that at the time of execution of the alleged Will, SDT was not in sound state of mind and was unhealthy. The language of the Will shows that the defendants in collusion with each other played fraud and thereby got the same executed. The Will was not drafted under the instructions of SDT. The witnesses are the beneficiaries. These circumstances raise the suspicion about authenticity of the Will. The plaintiff has lodged a complaint case no. 578/1/08 u/s 420/467/468/471/406/34/120B of IPC and the same is pending for consideration. The defendant no.2 on behalf of the defendant no.1, without obtaining the probate, executed a general power of attorney dated 15.10.2004 in favour of Ramesh Sharma who in turn further appointed Jamal and Parvez to carry out unauthorized construction in the property no. 2470 and 2471/9, Gali Quamuddin, Sita Ram Bazar, Delhi. Being aggrieved by the same, the plaintiff filed the suit no. 544/04 against them and the same is pending before the concerned court. Left with no option, the plaintiff filed the present suit seeking a declaration that the Will dated 10.06.2003 be declared null and void, the defendants be directed to handover the vacant and peaceful possession of the property no. 103, Gali Kandle Kashan, Fatehpuri, Delhi110 006, property no. 6427, Katra Baryan, Gali Kalyan, Delhi110 006 and property no. 247071/9, Gali Quamuddin, Bazar Sita Ram, Delhi110 006 to the plaintiff, the defendants be restrained from creating third party interest in the properties mentioned above and the defendants be 3/15 Shanteshwar Pal vs. Vishwanath Sanyas Ashram Trust & Ors. restrained to deal with locker no.M02 of State Bank of India, Fatehpuri Branch, Delhi.
3. Notice of the suit was issued to the defendants. In response thereto, the defendants filed their common written statement (WS). The defendants raised the preliminary objections that the plaintiff has no locus standi to file the present suit and the suit is barred by the period of limitation. On merits, the defendants admitted that the defendant no. 1 filed a probate case on the basis of Will dated 10.06.2003 executed by SDT; in the said petition, the plaintiff was impleaded and he filed the objection application; and the said petition was withdrawn on 28.02.2008 with liberty to file the fresh one. It is stated that SDT was residing at the Ashram of the defendant no.1 and died issue less on 21.06.2003. SDT signed the Will in Hindi after understanding the contents of the same in the presence of the witnesses. The Will is a duly registered document. It is also stated that the defendant no.3 is not the trustee of the defendant no.1. Hence, it is prayed that the suit may be dismissed.
4. The plaintiff filed the replication and reiterated the averments made in the plaint. The plaintiff denied the averments made in the written statement.
5. On 06.08.2009, the following issues were framed by the Ld. Predecessor of this court :
4/15 Shanteshwar Pal vs. Vishwanath Sanyas Ashram Trust & Ors.
(1) Whether the plaintiff has no locus standi to file the present suit in view of the contents of para 4 of the written statement of the defendants? ...OPD (2) Whether the suit filed by the plaintiff is beyond the period of limitation? ...OPD (3) Whether the plaintiff is entitled to the relief of declaration in respect of Will dated 10.06.2003 as asked for in the plaint? ...OPP (4) If the issue no.3 is decided in affirmative, then whether the plaintiff would be entitled to the relief of possession as asked for in the plaintiff? ...OPP (5) Whether the plaintiff is entitled to the reliefs of permanent injunction as asked for in the plaint? ...OPP (6) Relief.
6. The plaintiff tendered his affidavit in evidence and the same is Ex. PW1/X. He relied upon certified copy of the Will Ex.PW1/A, certified copy of the petition Ex.PW1/B (colly), certified copy of the application dated 24.04.2008 Ex.PW1/C, copy of reminder dated 23.05.2008 alongwith postal receipt and AD card Ex.PW1/D (colly) (Ex.PW1/D1, D2 and D3), telegram dated 04.06.2008 and letter dated 12.06.2008 Ex.PW1/E (colly) (Ex.PW1/E1 and E2), certified copy of the complaint dated 05.06.2008 Ex.PW1/F and the plaint Ex.PW1/G.
7. The plaintiff also examined Sh. Chander Kant, LDC, Record Room Session, Tis Hazari Court as PW2. He produced the record of probate case no. 420/06/04 and relied upon the documents Ex.PW1/B (colly). 5/15 Shanteshwar Pal vs. Vishwanath Sanyas Ashram Trust & Ors.
8. The plaintiff also examined Sh. Tarun Arora, CRA, State Bank of India as PW3.
9. The plaintiff also examined Sh. Naresh Kumar Parashar, UDC, Sub RegistrarI as PW4. He produced the record of registration of Will dated 10.06.2003 Ex.PW1/A and deposed that the said Will was duly registered in the office.
10. The plaintiff also examined Sh. Paras Khanna, Advocate who was appointed as a local commissioner in the probate petition to inspect the locker no. M34 on 29.10.2005 as PW5. He proved his report Ex.PW5/A.
11. The plaintiff also examined Sh. Chander Kant, LDC, Record Room Session, Tis Hazari Court as PW6. He brought the record of the appeal no. 131/65 titled as "Shanti Devi Vs. Sunder Lal".
12. The defendant no.1 examined Sh. Kailash Nath Khanna, the trustee as D1W1 and his affidavit is Ex.D1W1/A.
13. The defendant no.2 examined himself as D2W1 and his affidavit is Ex.D2W1/A.
14. The defendant no.3 examined himself as D3W1 and his affidavit is Ex.D3W1/A. 6/15 Shanteshwar Pal vs. Vishwanath Sanyas Ashram Trust & Ors.
15. I have heard the ld. counsel for the parties and have perused the material available on record.
ISSUE NO.2
16. Onus to prove the issue no.2 was on the defendants. Admittedly, the defendant no.1 filed the probate case no.420/2006/2004 regarding the registered Will dated 10.06.2003 executed by SDT. As per Article 56 Schedule I of Limitation Act, 1963, the plaintiff should have filed the suit for declaration against the said Will within three years from the date of knowledge. The suit was instituted on 10.09.2009.
17. Counsel for the plaintiff pleaded that the cause of action to seek the relief of declaration arose in favour of the plaintiff once the defendant no. 1 withdrew the said probate petition on 28.02.2008. In para 27 of the plaint, the plaintiff pleaded the cause of action and stated that it firstly arose on 10.06.2003, when the defendants drafted the fake Will in their favour. It further arose on when the defendants executed the power of attorney in favour of Ramesh Sharma on 15.10.2004. It further arose on 28.02.2008, when the defendant withdrew the probate petition. Therefore, according to the plaintiff, the cause of action had not firstly arose on 28.02.2008, rather, it arose on 10.06.2003 and further on 15.10.2004. The plaintiff has not mentioned any date between 15.10.2004 and 28.02.2008, when the cause of action arose in his favour. Therefore, if it is presumed for the sake of 7/15 Shanteshwar Pal vs. Vishwanath Sanyas Ashram Trust & Ors. arguments only that the cause of action arose on 15.10.2004, then the suit should have been filed within 03 years therefrom. The plaintiff pleaded subsequent cause of action on 28.02.2008 which was beyond the period of three years from 15.10.2004. Section 9 of the Limitation Act provides that once the limitation period commenced, the subsequent event does not affect the same. Therefore, it can be held that once the defendant no.1 withdrew the petition on 28.02.2008, the plaintiff's period of limitation to seek the relief of declaration had already expired.
18. In the present suit, the plaintiff raised a dispute of ownership over the properties of SDT. According to him, he being an adopted son and only legal heir of SDT has the right over the properties of SDT. On the other hand, the right claimed by the defendant no. 1 over the properties of SDT on the basis of the fake will is not sustainable. The probate court can only decide about genuiness of the will and cannot decided the disputed title of the parties. As such, the nature of present suit is different from the probate petition. Since the plaintiff had the threat to his ownership rights over the properties of SDT, the probate court had no power to grant the relief to that effect. Further, grant of probate of will is not prerequisite to initiate a litigation in Delhi. As such, the plaintiff has failed to show that the pendency of the probate petition barred him to file the present suit. Hence, it can be held that the plaintiff's relief of declaration was not dependent on pendency of the probate petition. Therefore, it can be held that the relief of declaration is barred by the period of limitation. Consequently, the relief of permanent injunction is also barred by the period of limitation. Issue no. 2 is decided accordingly.
ISSUES NO. 1 AND 3 8/15 Shanteshwar Pal vs. Vishwanath Sanyas Ashram Trust & Ors.
19. Onus to prove the issues no. 1 and 3 was upon the plaintiff. The issues no.1 and 3 are taken up together as they involve common discussion.
20. Admittedly, the Will dated 10.06.2003 Ex.PW 1/A is a registered document. Vide the said Will, SDT bequeathed her movable and immovable properties as mentioned therein in favour of the defendant no.1. SDT died issueless on 21.06.2003.
21. Case of the plaintiff is that SDT was his real bua i.e. his father's real sister and died issueless. During her lifetime, she nominated him as her adopted son and wanted to give all her movable and immovable assets to him. Therefore, there was no occasion for her to execute the Will in favour of the defendant no.1. So far as the will is concerned, it was not drafted under the instructions of SDT; she was not in sound health and mind at the time of alleged execution of the Will; and the witnesses to the Will are the beneficiaries. The said circumstances raise strong suspicion about the authenticity of the Will. Therefore, the said Will may be declared null and void.
22. On the other hand, case of the defendants is that the plaintiff is not related to SDT in any manner, therefore, he has no locus standi to file the present suit. They also pleaded that SDT had voluntarily executed the said Will in favour of defendant no.1.
9/15 Shanteshwar Pal vs. Vishwanath Sanyas Ashram Trust & Ors.
23. To prove his case, the plaintiff examined himself as PW1. PW1 in his cross examination deposed that at the time of death, SDT was residing at house no.103, Gali Kandley Kason. She was cremated at Shamshan Ghat near Ring Road. Cremation was got done by the defendant no.1. He admitted that he was not aware of the various ceremonies took place after her death and the reason assigned for the same is that he was not allowed to participate in the same. But he failed to disclose the name of the persons who stopped him from attending /participating in the various ceremonies taken place after the death of SDT. He also failed to disclose the date and place where various ceremonies were conducted nor could tell the details of the persons who obstructed him. He also deposed that he was threatened even before the ceremonies. However, he could not tell the name of the persons who threatened him. About the date of knowledge of the death of SDT, he deposed that he could not go to cremation because he came to know about the death of SDT only in the late night hours.
24. Regarding the Will, PW1 deposed that SDT used to sign in Hindi. The Will is signed by the witnesses. He deposed that the Will was registered with Sub registrar, Delhi. He showed his ignorance whether SDT appeared before the Sub Registrar to get the Will registered. He admitted that the Will Ex. PW 1/A bears the photograph of SDT. He showed his ignorance who drafted the Will. He showed his ignorance about the execution of the Will. He failed to show that the trustee of the defendant no.1 were the beneficiary under the Will.
25. Regarding his relationship with SDT, PW1 deposed that he and his family used to look after SDT for about 25 years but could not tell the 10/15 Shanteshwar Pal vs. Vishwanath Sanyas Ashram Trust & Ors. exact date and month since when he and his family had been looking after her. He deposed that lastly, he met SDT 2 to 3 weeks prior to her death at her residence. SDT remained ill on account of old age, otherwise, she was health and mentally fit. SDT was suffering from diabetes and heart problem. SDT was also admitted in the hospital but he could not tell the exact date and year of hospitalization and name of the hospital. He showed his inability to produce the record of the hospital. He deposed that he paid the hospital bills. However, he failed to disclose the exact amount of the bill and the name of the hospital to whom he paid those bills.
26. Regarding properties of SDT, PW1 admitted that he got the details of the properties of SDT on the basis of the probate case filed by the defendant no.1.
27. PW3 proved the locker opening form of locker no. M34 Ex.PW3/A and deposed that no nomination was available for the said account. He also proved nomination form dated 18.07.2001 Ex.PW3/B in the name of Ashok Kumar Thakur.
28. PW4 proved the registration of the Will dated 10.06.2003 Ex.PW 1/A.
29. D1W1, D2W1 and D3W1 in their cross examination deposed the facts about the execution and registration of the Will. The plaintiff has failed to shake the credibility of the said witnesses.
11/15 Shanteshwar Pal vs. Vishwanath Sanyas Ashram Trust & Ors.
30. Counsel for the plaintiff pleaded that the plaintiff's father was the real brother of SDT i.e. SDT was the plaintiff's real bua (aunty) and during her life time, she nominated him as her adopted son and wanted to give all her properties to him. The defendants disputed the said facts. Onus to prove the same was upon the plaintiff. In his evidence, the plaintiff to show his relationship and proximity with SDT deposed that he and his family looked after her for 25 years and he got admitted her in the hospital from time to time and paid the medical bills also. If the plaintiff had been looking after SDT for 25 years, then he must be having some documents to prove the same but not a single document is filed on record. In the evidence though he deposed that he got her admitted in the hospital and paid the medical bills but he failed to disclose the date, month and year of the admission, name of the hospital and detail of the medical bills. In fact, no medical record is filed nor proved. Regarding his knowledge about the death of SDT, he deposed that she was cremated at Shamshan Ghat near Ring Road and cremation was done by the defendant no.1. He showed his ignorance about the ceremonies performed thereafter. To justify the same, he deposed that he was not allowed to participate in the ceremonies and was even threatened not to attend the said ceremony. However, he failed to disclose the name of the persons who stopped him and threatened him, as alleged. Regarding the time when he came to know about the death of SDT, he deposed that he came to know about the same in the late night hours of 21.06.2003. The plaintiff proved the complaint dated 05.06.2008 Ex.PW 1/F wherein it is stated that SDT used to come at his residence and also used to reside on and off. On 22.06.2003, he went to the residence of SDT and came to know about her death from the neighbours. He also came to know that her dead body was taken by the defendant no.1. Thereafter, the plaintiff visited the office of 12/15 Shanteshwar Pal vs. Vishwanath Sanyas Ashram Trust & Ors. defendant no.1 and inquired about the death of SDT. That time defendant no.2 misbehaved with him and threatened him that if he would come again, he would face dire consequences. In view thereof, it can be held that the stand taken by the plaintiff in the said complaint is totally contrary to the deposition made by the plaintiff to that effect. As such, an adverse inference can be drawn against him. Further, the plaintiff has not disclosed the date, month and year when SDT adopted him as her son. It is not a case of the plaintiff that his parents gave him in adoption to SDT or had severed the relationship with him. The question arises in that situation as to why and how the plaintiff became adopted son of SDT. He also pleaded that SDT wanted to give all his properties to the plaintiff. As discussed above, the plaintiff unsuccessfully pleaded that he was looking after SDT for 25 years. If it is presumed to be correct for the sake of arguments only, then he must be having the knowledge of her assets movable and immovable both. However, the plaintiff deposed in his examination that he came to know about the assets of SDT through the probate petition filed by the defendant no.1. In view of the foregoing discussions, it can be held that the plaintiff failed to prove that he was in relation of SDT or her adopted son. He also failed to prove that he ever looked after her till her death.
31. The plaintiff challenged the Will dated 10.06.2003 on the ground that same was not drafted on the instructions of SDT, the witnesses were the beneficiary under the Will, SDT already wished to give all her assets to him and she was not in fit state of health and mind at the time of execution of the Will. The Will is registered Will. PW4 also proved the said fact. As discussed above, the plaintiff failed to prove that he was the adopted son of SDT or related to her in any manner. He also failed to prove that SDT ever 13/15 Shanteshwar Pal vs. Vishwanath Sanyas Ashram Trust & Ors. wished to give her properties to the plaintiff. The plaintiff has not disputed the signature of SDT on the Will. The plaintiff failed to prove that the Will was not drafted on the instructions of SDT. He admitted the photograph of SDT on the Will. The plaintiff failed to prove that the witnesses to the Will were the beneficiaries of the Will. The plaintiff in his cross examination deposed that SDT remained ill on account of her own age, otherwise, she was in sound health and mentally fit. This shows that the plaintiff was not suffering from any mental disease under which she was not able to take the decision. Therefore, it can be held that SDT was in fit state of mind when she executed the Will. The plaintiff also failed to prove that any fraud was played upon the SDT in execution of the Will.
32. Further, in the present case, the plaintiff challenged the Will executed in favour of defendant no.1 and ascertained his rights against the right of the defendant no.1 claimed under the said Will. Very surprisingly, the plaintiff though sought relief of declaration against the Will but has not sought the relief of declaration of his rights in the properties of SDT knowing fully well that those rights were under challenge.
33. In view of the foregoing discussions, it can be held that the plaintiff has failed to prove that SDT was his real bua and adopted him and wanted to give her assets to him. He also failed to prove that Will dated 10.06.2003 is not the genuine Will of SDT or the defendants obtained the same by fraud. Therefore, the plaintiff is not entitled for the declaration, as prayed for. Therefore, the issues no.1 and 3 are decided against the plaintiff and in favour of the defendants.
14/15 Shanteshwar Pal vs. Vishwanath Sanyas Ashram Trust & Ors. ISSUE NO.4.
34. Onus to prove issue no.4 was upon the plaintiff. Since issue no.3 has been decided against the plaintiff, hence, the plaintiff is not entitled for the relief of possession, as prayed for. Therefore, the issue no.4 is decided in favour of plaintiff and against the defendants.
ISSUE NO.5.
35. Onus to prove issue no.5 was upon the plaintiff. In view of the findings given while deciding issues no.1 and 3 which are not being repeated herein, for the sake of bravity, the plaintiff is held not entitled for the relief of permanent injunction as prayed for. Therefore, the issue no.5 is decided against the plaintiff and in favour of the defendants. ISSUE No.6. (RELIEF)
36. In view of the foregoing discussions, plaintiff is held not entitled for the decree as prayed for. Therefore, the suit is dismissed. No order as to cost. Decree sheet be drawn. File be consigned to Record Room. ANNOUNCED IN THE OPEN COURT, On 16th day of August, 2014.
(PANKAJ GUPTA) ADJ(CENTRAL07)/DELHI 16.08.2014 15/15 Shanteshwar Pal vs. Vishwanath Sanyas Ashram Trust & Ors.