Delhi District Court
Sh. Vidya Bhushan(Since Deceased) vs Smt. Raj Kaushalya (Since Deceased) on 7 February, 2011
IN THE COURT OF SH. VIKRAM, CIVIL JUDGE-02(NORTH)
TIS HAZARI COURT, DELHI
Suit No. 416 of 89
In the Matter of
Sh. Vidya Bhushan(Since deceased)
Through Legal Heirs
(a) Smt. Prem Kumar
Widow of Sh. Vidya Bhushan
(b) Sh. Rakesh Chhabra
S/o Sh. Vidya Bhushan
(c) Sh. Dalip Chabbra
S/o Vidya Bhushan
R/o B-590, Raghubir Nagar,
Shivaji College Road,
New Delhi-27
(d) Sh. Davinder Chabbra
(e) Sh. Sunil Chabbra
Both sons of Sh. Vidya Bhushan
Both R/o Shop No.3, Old Market, Ramesh Nagar,
New Delhi-15
(f) Smt. Komal Arora
D/o Sh. Vidya Bhushan
W/o Sh. Sunil Arora
R/o 12, Ganesh Park, Rashid Park,
Delhi. Plaintiff.........
Versus
1.Smt. Raj Kaushalya (Since deceased) Through LRs (A) Smt. Santosh Khurana W/o Sh. B.R. Khurana S/o M/s Khurana Store, Suit Nos. 416/89, 156/05 & 646/02 1 Village & Post Bhar Khori, Tehsil Mhow Distt. Indore.
(b) Smt. Krishna W/o Sh. Bodh Raj R/o 50, Defence Enclave Opp. Swasth Vihar, Delhi
(c) Smt. Sushila Saluja W/o Sh. Chander Saluja R/o J-9/48-C, Rajour Garden
(d) Smt. Sushma Sikri W/o Late Sh. B.R. Sikri R/o C-2-B/ 79-C, Janakpuri New Delhi.
2. Sh. Hans Raj (Since deceased) Through LRs.
(a) Sh. Kiran Kumar
(b) Sh. Deepak Kumar Both R/o C-121-125, Ramesh Nagar, New Delhi
3. Smt. Shano Devi W/o Sh. Nand Lal R/o 7/189, Ramesh Nagar, New Delhi Defendants....
Date of institution : 07.02.1989
Also In Suit No.156/05 (729/92)
Unique ID No. 02401C5686472004
Sh. Vidya Bhushan (Since deceased)
Through Legal Heirs
(a) Smt. Prem Kumar
Suit Nos. 416/89, 156/05 & 646/02 2
Widow of Sh. Vidya Bhushan
(b) Sh. Rakesh Chhabra
S/o Sh. Vidya Bhushan
(c) Sh. Dalip Chabbra
S/o Vidya Bhushan
R/o B-590, Raghubir Nagar,
Shivaji College Road,
New Delhi-27
(d) Sh. Davinder Chabbra
(e) Sh. Sunil Chabbra
Both sons of Sh. Vidya Bhushan
Both R/o Shop No.3, Old Market, Ramesh Nagar,
New Delhi-15
(f) Smt. Komal Arora
D/o Sh. Vidya Bhushan
W/o Sh. Sunil Arora
R/o 12, Ganesh Park, Rashid Park,
Delhi. Plaintiff.......
Versus
1. Smt. Shano Devi
W/o Sh. Nand Lal Dhingra
R/o 7/189, Ramesh Nagar, New Delhi
2. Smt. Raj Kaushalya
Through LRs
(A) Smt. Santosh Khurana
W/o Sh. B.R. Khurana
S/o M/s Khurana Store,
Village & Post Bhar Khori, Tehsil Mhow
Distt. Indore.
(b) Smt. Krishna
W/o Sh. Bodh Raj
Suit Nos. 416/89, 156/05 & 646/02 3
R/o 50, Defence Enclave
Opp. Swasth Vihar, Delhi
(c) Smt. Sushila Saluja
W/o Sh. Chander Saluja
R/o J-9/48-C, Rajour Garden
(d) Smt. Sushma Sikri
W/o Late Sh. B.R. Sikri
R/o C-2-B/ 79-C, Janakpuri
New Delhi. Defendants......
Date of institution : 07.08.1992
Also in Suit No. 646/02 (575/95)
Unique ID No.02401C0136822002
Smt Shanno Devi
W/o Sh. Nand Lal
R/o FA/F-229, Radhey Shyam Mandir
Mansarover Garden,
New Delhi. Plaintiff........
Versus
1. Sh. Ram Kumar S/o Sh. Vishwanath
2. Sh. Shankar S/o Sh. Rameshwar
3. Sh. Munni Lal S/o Sh. Jai Karan
4. Sh. Mohan Lal S/o Sh. Sirpal
5. Sh. Nand Lal S/o Sh. Munshi
6. Sh. Jamna Ram S/o Sh. Somanoo
All Resident of
FA/F-229, Mansarovar Garden,
New Delhi-15
7. Sh. Vidya Bhushan (Since deceased)
Through Legal Heirs
(a) Smt. Prem Kumar
Suit Nos. 416/89, 156/05 & 646/02 4
Widow of Sh. Vidya Bhushan
(b) Sh. Rakesh Chhabra
S/o Sh. Vidya Bhushan
(c) Sh. Dalip Chabbra
S/o Vidya Bhushan
R/o B-590, Raghubir Nagar,
Shivaji College Road,
New Delhi-27
(d) Sh. Davinder Chabbra
(e) Sh. Sunil Chabbra
Both sons of Sh. Vidya Bhushan
Both R/o Shop No.3, Old Market, Ramesh Nagar,
New Delhi-15
(f) Smt. Komal Arora
D/o Sh. Vidya Bhushan
W/o Sh. Sunil Arora
R/o 12, Ganesh Park, Rashid Park,
Delhi. Defendants........
Date of institution of suit : 04.05.1995
Date on which suit was reserved : 23.11.2011
Date of announcement of judgment : 07.12.2011
SUITS FOR DECLARATION, POSSESSION AND PERMANENT INJUNCTION
1. By this composite judgment I shall decide three suits. First suit for declaration seeking declaration as to nullity of will, the second suit is again for declaration and injunction and third suit is for possession and permanent injunction.
2. Brief facts are that late Sh. Sajjan Mal was owner of a piece of land measuring 378 Sq. yds bearing plot no. FA/F-229, Mansarovar Garden, New Delhi. Sh. Sajjan Mal executed a will dated 06.03.1985 (in short 'first will') Suit Nos. 416/89, 156/05 & 646/02 5 whereby he bequeathed 280 Sq. Yds of land out of 378 Sq. Yds for construction of Sh. Radhey Shyam Mandir in favour of trustees. This will was registered by Sh. Sujjan Mal himself. The land under that will is with Radhe Shyam Mandir. There is another will of Sh. Sajjan Mal dated 16.03.1985 (in short 'second will') in favour of Smt. Raj Kaushalya Devi w/o Sh. Sajjan Mal for remaining 98 Sq. Yds. of property bearing no. FA/F-229, Mansarovar Garden, New Delhi (hereinafter referred to as 'suit property'). Acting on that will Smt. Raj Kaushalya sold it to Smt. Shanno Devi. Sh. Vidya Bhushan is son of Sh. Sajjan Mal and Smt. Raj Kaushalya.
3. Sh. Vidya Bhushan filed a suit on 07.02.1989 i.e. suit no. 416/89 (now consolidated with suit no. 646/02) for Declaration and permanent Injunction (in short 'first suit') against his mother Raj kaushalya, Sh. Hans Raj and Smt. Shanno Devi. Sh. Vidya Bhushan stated in his plaint that he is in possession of part of suit property. Sh. Sajjan Mal, at the time of execution of first will appointed Sh. Hans Raj Gupta, Smt Raj Kaushlya and Sh. Vidya Bhushan himself as trustee besides other trustees as well. Sh. Hans Raj for his personal gain influenced Smt. Raj Kaushalya, after the death of Sh. Sajjan Mal, and created a forged will i.e. second will, purported to have signed by Sh. Sajjan Mal in favour of Smt. Raj Kaushalya and became attesting witness of that second will. Second witness of the will is Sh. Brij Lal. The second will was then registered in the office of Sub- Registrar Delhi on 21.12.1987. At the time of registration of will, only Sh. Hans Raj appeared as witness and Sh. Brij lal refused to depose before Sub- Registrar on the ground that his signatures were taken after death of Sh. Sajjan Mal.
4. After getting the will registered, Sh. Hans Raj prevailed upon Smt. Raj Kaushalya to dispose of the suit property through attorney, will, agreement to sell, etc., etc. in favour of Smt. Shanno Devi. At that time there was restriction on transfer of land as Delhi Land (Restriction on Transfer) Act, 1972 as well as Urban Land (Ceiling & Regulation) Act, were in force. Despite that Smt. Raj Kaushalya executed power of attorney, agreement to sell, possession letter, will, receipts etc. Smt. Shanno Devi was having the knowledge that the second will is forged. She Suit Nos. 416/89, 156/05 & 646/02 6 was also having the knowledge that the part of suit property was with tenants and part of suit property is used by Sh. Vidya Bhushan as godown for the purpose of building material. Smt. Shanno Devi is trying to take the forcible possession of suit property. On 23.01.1989 husband of Smt. Shanno Devi, with aid of bad elements tried to take forcible possession of suit property. Police was called and a kalandra u/S 107/151 Cr.P.C. Was registered.
5. In this suit Sh. Vidya Bhushan claimed that the second will in favour of Raj Kaushalya is a forged will and Sh. Hans Raj wants to take undue advantage of Smt. Raj Kaushalya's trust. Therefore a notice was published in newspaper Indian Express dated 3rd Jan 1989 that second will is forged, anybody who will deal with suit property under that will shall do so at his own risk. Still they are trying to dispose the suit property. Therefore, claiming independent right over suit property and alleging the will as forged this first suit was filed for declaration that second will be declared null and void and for injunction restraining from interference in possession of Sh. Vidya Bhushan.
6. Sh. Vidya Bhushan Again Filed a suit on 06.08.1992 registered as Suit No. 729/92 renumbered as suit no. 156/05 titled Sh. Vidya Bhushan Vs. Shanno Devi and ors., (in short 'second suit') against Smt. Shanno Devi and Smt. Raj Kaushalya. In second suit it is stated that the second will of Sh. Sajjan Mal is a forged will. It was fabricated by one Sh. Hans Raj S/o Sh. Tohli Ram, who in collusion with husband of Smt. Shanno Devi prevailed upon Smt. Raj Kaushalya to Dispose of that 98 Sq. Yds. at through away price. It is stated that second will was got registered after the death of Sh. Sajjan Mal at the office of Sub Registrar Delhi. It is also stated that when Sh. Sajjan Mal executed first will in favour of Radhe Shyam Mandir no one stopped him from bequeathing his remaining property, this shows that the second will was forged with ulterior motive to deny the share of plaintiff i.e. Sh. Vidya Bhushan. Subsequently, acting on that will Smt Raj Kaushlya entered into sale transaction with Smt. Shanno Devi and executed a sale deed in her favour which was registered in the office of Sub Registrar on 19.05.1989. Plaintiff has further stated that when the will dated 16.03.1985 was presented to the Sub Registrar, Delhi for its registration only Sh. Hans Raj was Suit Nos. 416/89, 156/05 & 646/02 7 present. The second witness did not went to register the will as he knew about the forgery. The signatures of Sh. Brij Lal were taken on blank documents when some papers of Radhe Shyam Mandir were to be executed.
7. Plaintiff Sh. Vidya Bhushan came to know about execution of these documents on 16.08.89 when he received a notice from the court of Sub Judge Delhi in suit titled as Smt. Shanno Devi Vs. Radhey Shyam Mandir and Ors. Without making any delay plaintiff filed the suit.
8. The second suit was initially rejected under order 7 rule 11 CPC. Plaintiff went on appeal and the Hon'ble appellate court reversed the order of Trial Court and remanded the case back vide order dated 07.04.2004.
9. Meanwhile, on 2.5.1995 Smt. Shanno Devi Filed a suit for possession and injunction i.e. suit no. 575/95, presently suit no. 646/02 (in short 'third suit'). The third suit was filed against 6 defendants. In this suit it was stated that the defendants are illegal occupants in suit property, unlawfully and illegally inducted by Sh. Vidya Bhushan. The third suit was initially dismissed in default. After its restoration, on application of plaintiff the plaint was amended and Sh. Vidya Bhushan was impleaded as defendant no.7 on 21.08.97.
10. As per amended plaint of third suit, Smt. Shanno Devi is the owner of suit property having purchased it from Smt. Kaushalya Devi. It is stated in third suit that Sh. Sajjan Mal and Smt. Raj Kaushalya debarred Sh. Vidya Bhushan from inheriting the property of Sh. Sajjan Mal as Sh. Vidya Bhushan was dishonest and disobedient towards his parents and he was given "Pharkhati" by his father Sh. Sajjan Mall during his life time. It is stated in the plaint that the defendant no.1 to 6 had filed false and frivolous suit for permanent injunction at the behest of Sh. Vidya Bhushan claiming them to be tenants.
11. It is claimed by Smt. Shanno Devi that Sh. Vidya Bhushan had no right to let the suit property to tenants. Therefore the possession of alleged tenants in the suit property is illegal. Smt. Shanno Devi has claimed that she is the absolute owner of suit property having purchased it through registered sale deed from Smt. Raj Kaushalya. It is also stated that defendants i.e. Sh. Vidya Bhushan and the tenants have started threatening to dispose of the suit property and on Suit Nos. 416/89, 156/05 & 646/02 8 23.04.1995 when they were requested to hand over the vacant possession of suit property, the request was turned down with threat to dispose of the suit property. 12 With these facts this third suit is filed for decree of possession and injunction.
13. In all these suits, main contesting parties were Sh. Vidya Bhushan, Smt. Shanno Devi and Smt, Raj Kaushalya. Smt. Raj Kaushalya filed her written statement in first suit only. Smt. Raj Kaushalya in her written statement denied the claim of Sh. Vidya Bhushan and stated that Sh. Sajjan Mal bequeathed the suit property in her favour and she is the absolute owner of suit property. She denied the allegations of Sh. Vidya Bhushan that the second will is forged or fabricated and stated that Sh. Sajjan Mal had debarred Sh. Vidya Bhushan and given a 'Phatkari' during his life time. Smt. Raj Kaushalya has also denied the right of Sh. Vidya Bhushan in the suit property and stated that the alleged tenants are illegal occupants and they have no capacity to pay rent. Smt. Raj Kaushalya stated that the suit is false and baseless and same be dismissed.
14. The written statement of Smt. Shanno Devi in first suit is similar to written statement of Smt. Raj Kaushalya. Smt. Shanno Devi also stated that she has purchased the suit property from Smt. Raj Kaushalya under a registered sale deed but Sh. Vidya Bhushan has filed the suit with malafide intentions to grab the suit property. Smt. Shanno Devi denied that the second will is a forged or fabricated. She also submitted that before selling the land Smt. Raj Kaushalya obtained No-Objection certificate from competent authority u/S 26 and 27 of Urban Land (Ceiling and Regulation) Act, 1976 vide. Certificate No. F. 1(36)/CA/UC/ADM/HQ/88 dated 28.03.1989 for sale of suit property. She stated that she was in actual possession of suit property (plot).
15. It is also stated that She filed a suit bearing no.103/89 titled as Shanno Devi Vs. Radhe Shyam Mandir and Ors. seeking relief of injunction from installing any idol in 98 Sq.yds i.e. the suit property. At the time of filing of that suit it was a vacant plot. In that suit a local inspection was carried through commissioner of Court and after visit on 05.08.1989 he filed report stating that in the entire plot no idol of any God or Goddess was found at the spot, at the time of inspection, but Suit Nos. 416/89, 156/05 & 646/02 9 there were two Jhuggis in the premises but no one was in occupation thereof.
16. Smt. Shanno Devi also stated that Sh. Vidya Bhushan trespassed upon the land thereafter to create false evidence and issued rent receipts to create false tenancy evidences. The report of LC was never objected by any of parties. Shanno Devi also stated that on 23.01.1989 it was Sh. Vidya Bhushan who tried to take forcible possession of suit property and at his behest false challan was prepared u/S 107/151 Cr.P.C. Denying all the allegation of Sh. Vidya Bhushan made in plaint Smt. Shanno Devi claimed that she is owner of suit property being bonafied purchaser for consideration and prayed for dismissal of suit.
17. To the written statement of Smt. Shanno Devi, in replication Sh. Vidya Bhushan reiterated that the second will is forged will and stated that Smt. Raj Kaushalya being old lady is playing in the hands of other defendants who have planned to deprive the old lady of her valuable rights in the property as well as the rights of entire family by fabricating and forging documents. No specific replication is however given to the fact mentioned by Smt. Shanno Devi about No-Objection under section 26 and 27. No replication for written statement of Smt. Raj Kaushalya was ever filed.
18. During the pendency of first suit Sh. Hans Raj expired and when LRs of Sh. Hans Raj refused the service they were proceeded exparte on 12.08.1991. Smt. Raj Kaushalya also expired on 28.07.1993 and an application u/O. 22 R. 4 was moved for impleading LRs of Smt. Raj Kaushlya. In this application Sh. Vidya Bhushan was shown as LR No.1 being her son, although Sh. Vidya Vhushan was plaintiff. Four daughters of Smt. Raj Kaushalya were also impleaded.
19. In the second suit again, written statement is filed by Smt. Shanno Devi Only. After it was received on remand the written statement was filed on 25.05.2004. In this written statement Smt. Shanno Devi took preliminary objection that the suit is not maintainable as per provisions of Section 34 Specific Relief Act. The defence put by Smt. Shanno Devi in this suit is similar to defence taken in first suit. Smt. Shanno Devi further stated that Smt. Raj Kaushalya was never prevailed upon by her to dispose of the suit property but it was Sh. Vidya Bhushan and his son who used to humiliate and abuse his parents due to which Sh. Sajjan Suit Nos. 416/89, 156/05 & 646/02 10 Mal executed first and second will. It is also stated that Smt. Raj Kaushalya was tortured and beaten up by Sh. Vidya Bhushan and a complaint was filed against him and his son u/Ss 395/452/34 IPC in which after taking cognizance, Ld. Magistrate issued summons upon them. Smt. Raj Kaushalya Vigorously prosecuted her complaint before the Court and Sh. Vidya Bhushan, his son and other relations were charged. In this suit also Smt. Shanno Devi took stand that the second will is genuine and she is the bonafide purchaser for consideration.
20. In replication to written statement of Smt. Shanno Devi plaintiff denied the allegations and reiterated the contents of plaint. To the complaint of Smt. Kaushalya Devi it is stated that the complaint was false and fabricated by Sh. Hans Raj and Nand Lal. It is stated that complaint has been dismissed.
21. In second suit also Sh. Vidya Bhushan moved an application for impleading LRs of Smt. Raj Kaushalya. This apllication was allowed and four daughters of Smt. Raj Kaushalya were made parties to suit. Since the suit was initially rejected and Smt. Raj Kaushalya expired in the initial stage of suit, there is no written statement of Smt. Raj Kaushalya. After receiving it on remand, LRs of Smt. Raj Kaushalya i.e. four daughters, did not appear to contest the suit.
22. In the third suit i.e. the Suit of Smt. Shanno Devi, as the suit is for possession and injunction, the defendant no.1 to 4 i.e. occupants of suit property filed joint written statement. In their written statement some preliminary objections were taken. It is stated that plaintiff has claimed herself to be the owner and resident of suit property, but she has failed to mention in which portion of suit property she is residing and which portion is occupied by defendants. Plaintiff did not disclose that in suit of defendant no.1 to 6 she made a statement on 20.04.1989 that she will not dispossess the defendants by force. They claimed that they are tenants in the suit property. Defendant no.1 to 4 also took objection of valuation of suit as the suit is not valued properly for court fee and jurisdiction. On merits defendants no.1 to 4 denied the claim of Smt. Shanno Devi. To the contentions of sale of suit property strict proof was called and to illegal possession stated that they are tenants of Sh. Vidya Bhushan.
23. Sh. Vidya Bhushan as defendant no.7, filed written statement and took Suit Nos. 416/89, 156/05 & 646/02 11 preliminary objection that since the first and second suits are pending for declaration of will as forged and fabricated, present suit is liable to be stayed. The objection as to undervaluation of suit is also taken. The suit is also objected on the ground that the value of suit property is more than 20 lacs hence the suit is barred for pecuniary jurisdiction. Sh. Vidya Bhushan also stated that second will of Sh. Sajjan Mal is forged and fabricated for which a suit for declaration is filed prior to this suit.
24. On merits Sh. Vidya Bhushan denied the allegations, except for facts which are matter of record in various suits. It is stated that he has become the owner of suit property by inheritance and defendant no. 1 to 6 are lawfully inducted as tenants. It is also stated that the second will, on the basis of which the suit property was sold, is forged hence Smt. Raj Kaushalya had no right to transfer any title to Smt. Shanno Devi. Sh. Vidya Bhushan further stated that since the second will is forged, the sale deed is nothing but a waste paper having no consequence. Rest of the averments of plaint are denied as false and wrong.
25. In replications to written statements Smt. Shanno Devi denied all the objections and defence, as false and baseless and reiterated the contents of plaint.
26. On 05.03.2001, in third suit, on the basis of pleadings of parties four issues got framed. Out of these, issue no. 2 and 4 were treated as preliminary issues. On 23.04.2001 after hearing arguments on legal point, issue no. 2, as to valuation of suit and court fee, was left to be decided after taking evidence. Issue no.4 was for stay of suit u/S 10 CPC. This issue was decided against Sh. Vidya Bhushan on the ground that matter in controversy and relief claimed are different.
27. Against order dated 23.04.2001 in third suit Sh. Vidya Bhushan filed revision before Hon'ble High Court. This revision was decide by Hon'ble High Court Vide order dated 08.07.2002, directing consolidation of first suit i.e. suit of Sh. Vidya Bhushan dated 07.02.1989 and the third suit i.e. suit of Smt. Shanno Devi dated 28.07.1997. Hon'ble High Court directed to dispose of these suit by one judgment with directions to tenants to pay rent in the court. There were no such directions regarding consolidation of second suit as at that time matter was Suit Nos. 416/89, 156/05 & 646/02 12 with Appellate Court where Sh. Vidya Bhushan had challenged the rejection of suit. The second suit came on remand on 21.01.2004. However the second suit, as it involved same question between same parties, was taken with consolidated suits i.e. first suit and third suit.
28. In all these suits issues were framed differently. In first suit issues were:
1.Whether the suit has been filed without any cause of action? OPD.
2.Whether the defendant no.1 has exclusive right to dispose of the suit property? OPD.
3.Whether the suit is bad for non-joinder of necessary parties? OPD.
4.Whether the will dated 16.03.1985 is forged document? If so its effect. OPP.
5.Whether the plaintiff is entitled to relief of declaration and permanent injunction as prayed for? OPP.
29. In second suit i.e. suit no. 156/05 (130/04) originally suit no.729/92 the issues framed are;
1.Whether the plaintiff has no locus standi to file the present case by virtue of preliminary objection no.2 of the WS? OPD
2.whether the plaintiff is entitled for the declaration as prayed in prayer clause? OPP.
30. In third suit i.e. suit no.646/02 (575/95) the issues framed are;
1.Whether the plaintiff or defendant no.7 is the owner of suit property? OP Parties.
2.Whether the suit is properly valued for the purpose of court fees and jurisdiction? OPP.
3.Whether the defendant no. 1to 6 are the tenants or unauthorised occupants in respect of the suit premises? OP Parties.
4.Whether the suit is liable to be stayed u/S 10 of the CPC due to the pendency of the suit as mentioned in preliminary objection No.1 of WS of defendant no.7? OPD.
31. These issues in first suit and third suit were framed prior to consolidation. Therefore, since after consolidation it was ordered to pass one judgment at this Suit Nos. 416/89, 156/05 & 646/02 13 stage I deem it necessary to re-frame issues, considering the subsequent events.
32. Before going into issues it is necessary to make summery of some undisputed facts. Sh. Sajjan Mall was owner of suit property. Sh. Sajjan Mall bequeathed 280 Sq. Yds of his property to Radhey Shyam Temple leaving 98 Sq. Yds. for himself. This 98 Sq. Yds. property is the only property in dispute. There is a will dated 16.03.1985 in the name of Smt. Raj Kaushalya w/o Sh. Sajjan Mall in respect to suit property. Undisputedely Smt. Raj Kaushalya executed a sale deed in favour of Smt. Shanno Devi claiming herself to be the exclusive owner by virtue of will dated 16.03.1985. Sh. Vidya Bhushan is son of Sh. Sajjan Mal and Smt. Raj Kaushalya. Sh. Vidya Bhushan and his tenants are in possession of suit property. Tenants have been directed to make payment of rent in the court.
33. The basis of all three suits is the second will dated 16.03.1985 in favour of Smt. Raj Kaushalya. Sh. Vidya Bhushan claims that the second will dated 16.03.1985 is forged will and sale deed of Smt. Raj Kaushalya in favour of Smt. Shanno Devi, in respect to suit property does not confer any title upon Smt. Shanno Devi, as Smt. Raj Kaushalya acted on forged will.
33. Hence, the real issues before court are;
1.Whether the suits of Smt. Shanno Devi is not valued properly for the purpose of court fee and jurisdiction? If so its effect. OP Vidya Bhushan and his tenants.
2.Whether the will of Sh. Sajjan Mal dated 16.03.1985 is a forged will? OP Sh. Vidya Bhushan.
3.If issue no. 2 is decided in affirmative what is its effect on the sale transaction between Smt. Raj Kaushalya and Smt. Shanno Devi.
34. It is only after decision of these two issues, other rights of parties in the suit property can be decided. The remaining issues will be;
4.Whether Sh. Vidya Bhushan is entitled to declaration that the sale documents executed between Smt. Raj Kaushalya and Smt. Shanno Devi are null and void? Onus on Sh. Vidya Bhushan.
5.Whether Sh. Vidya Bhushan is entitled for decree of permanent injunction to restrain Smt. Shanno Devi and her Successor in interest from Suit Nos. 416/89, 156/05 & 646/02 14 interfering in peaceful possession of Sh. Vidya Bhushan. O.P. Vidya Bhushan.
6.Whether Smt. Shanno Devi is entitled to decree of possession in respect to suit property? OP Shanno Devi.
35. Since the trial of Second suit run along with consolidated suits (i.e. first and third suit) evidences of parties are mixed up.
36. Smt. Raj Kaushalya had expired in the earlier stage of suits. LRs of Smt. Raj Kaushalya have never appeared in Court. Therefore there is no evidence from Smt. Raj Kaushalya. However in written statement of first suit Smt. Raj Kaushalya stated that she, being owner by virtue of second will, sold out the suit property to Smt. Shanno Devi. Therefore, the transaction between Smt. Raj Kaushalya and Smt. Shanno Devi Cannot be questioned. Sh. Vidya Bhushan has not filed any of the suits representing Smt. Raj Kaushalya, rather he has made her defendant, challenging her authority to sale the suit property.
37. Similarly it was alleged that defendant no.1 to 6, in third suit, are not the tenants of Sh. Vidya Bhushan and they are trespassers. To this defendant no.1 to 4 as well as Sh. Vidya Bhushan stated that they are legally inducted tenants. As the issue of tenancy between Sh. Vidya Bhushan and defendant no.1 to 6 is not open to challenge by any one except land lord and tenant and Sh. Vidya Bhushan has specifically stated that they are his tenants, the issue does not survive. The right of Sh. Vidya Bhushan to deal with suit property and to induct tenants is already in issue.
38. To prove the issues, on behalf of Smt. Shanno Devi three witnesses appeared. The first witness, Pw1, is Sh. Ashok Kumar S/o Sh. Nand Lal. Sh. Ashok Kumar filed his affidavit in consolidated suit (first and third suit) as PW1/A.
39. PW1 in his affidavit narrated the facts stated in the pleadings. Along with affidavit PW1 produced registered sale deed dated 19.05.1989 vide registration no. 2943, Addl Book no. 1, Vol. No. 5090 at pages 85 to 91 registered with Sub Registrar SD No. 1, Delhi. Copy of same is placed as Ex.PW1/1. PW1 also produced copy of will of Sh. Sajjan Mal in favour of Smt. Raj Kaushalya, dated Suit Nos. 416/89, 156/05 & 646/02 15 16.03.1985, duly registered on 21.12.1987 vide Registration No. 14933, in Addl. Book No. 3, Vol. No. 557, at pages 3 to 4. The copy is taken on record as Ex.PW1/2. The site plan of suit property filed by PW1 is Ex.PW1/3.
40. PW2 Sh. Nand Lal Dhingra is husband of Smt. Shanno Devi. In his affidavit Ex.PW2/A he produced various documents for the first time. However they were taken on record. PW2 produced the certificate issued by competent authority u/S 26/27 of Urban Land (Ceiling & Regulation Act) for permission to sale suit property. Copy of that certificate is Ex.PW2/1. For seeking permission, Smt. Raj Kaushalya and Smt. Shanno Devi filed declaration before competent authority which is produced in the court Ex.PW2/2. It is stated by PW2 that Smt. Shanno Devi after getting the sale deed executed and after getting the possession deposited development charges vide receipt dated 28.06.1989 Ex.PW2/3 and scaling charges Vide. Receipt dated 28.06.1989 Ex.PW2/4. A site plan was also got sanctioned from competent authority Ex,PW2/5. Letter of MCD no. 373 dated 28.06.1989 to Smt. Shanno Devi calling her to produce original documents is Ex.PW2/6. Another letter of MCD no. 414/B/WZ/89 dated 06.07.1989 giving information that sanctioned site plan is valid up to 05.07.1999 is Ex.PW2/7. PW2 also produced the receipt of consideration af Rs. 1,96,000/- paid to Smt. Raj Kaushalya for purchase of suit property is Ex.PW2/8.
41. PW2 also stated in his affidavit that the behaviour of Sh. Vidya Bhushan was not good towards his parents therefore Sh. Sajjan Mal executed a will in favour of Smt. Raj Kaushalya and after death of Sh. Sajjan Mal, Sh. Vidya Bhushan became further dishonest and starting torturing Smt. Raj Kaushalya to grab the property. PW2 also stated that Smt. Raj Kaushalya issued Parkhati (disowned) against Sh. Vidya Bhushan in various news papers on 16.1.1989. The paper cuttings are collectively produced as Ex.PW2/9.
42. PW2 also deposed that Smt. Sushila Saluja, Smt. Sunita Khurana and Smt. Krishna Vanti, the daughters of Sh. Sajjan Mal gave affidavits declaring that their mother Smt. Raj Kaushalya was the exclusive owner of suit property by virtue of will of Sh. Sajjan Mal and also stated that they shall not have any claim on the suit property. These affidavits are produced as Ex.PW2/10, Ex.PW2/11 and Suit Nos. 416/89, 156/05 & 646/02 16 Ex.PW2/11.
43. In his affidavit PW2 also stated that Smt. Shanno Devi had earlier filed a suit against Radhey Shyam Mandir when Sh. Vidya Bhushan threatened her to install statues in the suit property and in that suit an interim injunction was passed against defendants restraining them from installing any statue in the suit property. Certified copy of that order is produced as Mark 'A'. It is also deposed that when Sh. Vidya Bhushan and his sons tried to encroach upon the suit property, on a complaint to SHO Kirti Nagar Sh. Sunil Chabra S/o Sh. Vidyua Bhushan was arrested u/S 107/151 Cr.P.C. and the Executive Magistrate/ACP on 08.08.1989 ordered to furnish a bail bond for a period of one year. Still on 27.08.1989 Sh. Vidya Bhushan and his family members trespassed on suit property and threatened Smt. Shanno Devi of dire consequences. On this Smt. Shanno Devi made complaint to SHO Kirti Nagar. Copy of complaint is produced as EX.PW2/13.
44. PW2 also deposed that after purchase of plot Smt. Shanno Devi was in valid possession of suit property but Sh. Vidya Bhushan with malafide intentions encroached upon the plot by his laborers as tenants, who are defendant no. 1to 6. he also stated that Sh. Vidya Bhushan and his family members criminally trespassed in the house of Smt. Raj Kaushalya and gave merciless beatings to her. Upon which an FIR u/S 324 was registered against Sh. Vidya Bhushan and other family members Vide FIR no. 2/89 in PS Kirti Nagar. Smt. Raj Kaushalya filed a criminal complaint against Sh. Vidya Bhushan u/S 452, 395, 506, 120-B IPC on which charges were framed against him but after death of Smt. Raj Kaushalya (complainant) he managed to win over Smt. Sushila Saluja and succeded to get the matter compromised in Hon'ble High Court. PW2 stated that sh. Vidya Bhushan is trespasser in the suit property and the defendant no. 1 to 6 alleged tenants are falsely inducted as tenants in the suit property.
45. In cross examination also PW2 stated that Smt. Shanno Devi received possession of suit property before sale deed was executed and at that time there was no tenant in the suit property. However he admitted that in a suit filed by defendant no.1 to 6 i.e. tenants of vidya bhushan, his advocate Sh. R.S. Mahla Suit Nos. 416/89, 156/05 & 646/02 17 gave statement not to dispossess them without due process of law. PW2 also admitted that there is no document to show that Sh. Sajjan Mal has debarred Sh. Vidya Bhushan during his life time but stated that he had seen that document. PW2 denied the suggestion that the notices debarring Sh. Vidya Bhshan by Smt. Raj Kaushalya were issued at his instance. PW2 admitted the suggestion that the market value of suit property in the year 1997 was Rs. 20 lacs. There is no cross examination as to facts stated by this witness regarding the relation of Sh. Vidya Bhushan with Smt. Raj Kaushalya.
46. PW3 Sh. Deepak Gupta S/o late Sh. Hans Raj came to prove second will dated 16.03.1985. PW3 stated that his father Sh. Hans Raj is the witness of will and he identified his signatures in will Ex.PW1/2. PW3 is summoned witness.
47. In cross examination PW3 stated that his father expired in the year 1991. he denied that he has come at the instance of Sh. Ashok Kumar. PW3 also stated that he came to know about the will of Sh. Sajjan Mall in the year 1984-85 when his father told him that Sh. Sajjan Mal has donated 2/3rd of his land to Radhe Shyam Mandir and retained 1/3rd for himself. PW3 also stated that his father told that he was one of the trustee of Radhe Shyam Mandir.
48. On witness Sh. Amulya Dhingra was summoned for producing the first will dated 06.03.1985 and the trust deed. Sh. Amulya Dhingra submitted that these documents are not in his possession but his father Sh. Sunder Dass was having photocopy of trust deed dated 06.03.1985. copy of that trust deed was placed on record.
49. Defendants no.1 to 6 i.e. tenants of Sh. Vidya Bhushan did not appear to lead DE. On behalf of Sh. Vidya Bhushan, as he expired during the pendency, one of his the LR on record Sh. Sunil Chabra appeared as D7-W1 and filed his affidavit Ex.D7-W1/A. In his affidavit D7-W1 narrated the the facts stated in the pleadings of his predecessor Sh. Vidya Bhushan. This witness also stated that the second will dated 16.03.1985 is forged will and consequently the sale deed based on will, executed by Smt. Raj Kaushalya, is of no effect. D7-W1 also placed copies of first will and second will as Mark 'A' and 'B'. This witness was not cross examined.
Suit Nos. 416/89, 156/05 & 646/02 1850. Similar evidence is lead by Sh. Sunil Chabra as PW1 in second suit i.e. suit of Sh. Vidya Bhushan numbered 156/05. In that second suit no evidence is produced on behalf of Smt. Shanno Devi.
51. No one appeared to address final arguments on behalf of Smt. Shanno Devi. On behalf of Sh.Vidya Bhushan, Sh. M.L. Malhotra Advocate appeared and submitted that the opposite party has failed to prove that the second will i.e. will dated 16.03.1985 is a genuine will. Ld. Counsel submitted that the will dated 16.03.1985 is not proved as per provisions of Evidence Act. It is also submitted that the first will of Sh. Sajjan Mal is dated 06.03.1985 which he himself got registered, the second will which is alleged to have been executed just after 10 days of first will was not registered by Sh. Sajjan Mal but it was registered by one Sh. Hans Raj and Smt. Kaushalya after death of Sh. Sajjan Mal, this all raises a doubt regarding its genuineness. Ld. Counsel further submitted that if signatures of two will are compared with naked eye the difference of signature in two will is apparent as the first will shows that executant's signature had breaks in writing due to old age of Sh. Sajjan Mal but in second will dated 16.03.1985 the signature is in running hand. This itself shows that the second will of Sh. Sajjan Mal is forged therefore the sale deed of Smt. Raj Kaushalya in favour of Smt. Shanno Devi is of no consequence at all. With these submissions Ld. Counsel on behalf of Sh. Vidya Bhushan closed his arguments.
52. I have heard the counsel and perused the record carefully. It is unfortunate but necessary to record here that Ld. Counsel has not given proper assistance while addressing final arguments. The issue in all these cases are, though simple but having a very complex history. None of the original parties have came before court. Sh, Vidya Bhushan has expired before he could be examined and Smt. Shanno Devi was represented through attorney. Smt. Raj Kaushalya has expired at the initial stage of suit. Other defendants have never appeared in this case. Even LRs of Smt. Raj Kaushalya have not appeared to show their stand.
53. On the basis of limited arguments addressed by Ld. Cousel for Sh. Vidya Bhushan and the record available, my finding on each issue is as follows;
54. ISSUE No. 1.- Valuation of suits and effect:- this issue is related to third Suit Nos. 416/89, 156/05 & 646/02 19 suit i.e. suit of Smt. Shanno Devi where she has prayed for possession of suit property. Smt. Shanno Devi has valued the suit for the purpose of court fee and jurisdiction on the basis of sale consideration of suit property @ Rs. 1,96,000 and on the basis of annual rent @ Rs. 1500 per months i.e. Rs. 18000/-. The prayer of Smt. Shanno Devi in this suit was for decree of possession directing Sh. Vidya Bhushan and his tenants to hand over the vacant possession of suit property and for injunction restraining them from transferring or alienating the suit property.
55. The objection of valuation raised by defendants i.e. Sh. Vidya Bhushan and his tenants is that the value of suit property is much more than it is stated in plaint. Sh. Vidya Bhushan has specifically stated that the value of suit property is more than Rs. 20 lacs. No evidence is produced by any of the parties to show the value of suit property. The suit was filed on first week of May 1995. The amended plaint adding Sh. Vidya Bhushan as defendant no.7 is filed on 28.07.1997.
56. The onus to prove this issue was on defendants i.e. Sh. Vidya Bhushan and his tenants. Defendants has not produced any evidence to show that suit property was having value more than what is given in plaint. There is only one line in cross examination where PW2 has admitted a suggestion as correct that the suit property, in the year 1997, was having its market value of 20 lacs.
57. The suit of Smt. Shanno Devi for possession is governed by section 8 of Suits Valuation Act, 1887 and section 7 paragraph v of Court Fees Act, . Section 8 of Suits Valuation Act, 1887 reads;-
8. Court-fee value and jurisdictional value to be same in certain suits.--
where in suits other than those referred to in the Court fees Act, 1870 (7 of 1870), section 7, paragraphs v, vi, and ix, and paragraph x, clause (d), court fees are payable ad valorem under the Court fees Act, 1870 (7 of 1870), the value as determinable for the computation of court fees and value for the purpose of jurisdiction shall be the same.
Court fees to be calculated u/S 7 paragraph v is provided as; for possession of land, house and garden.-- (v) in the suit for possession of land, house and gardens-- according to the value of the subject Suit Nos. 416/89, 156/05 & 646/02 20 matter;
58. In this case Smt. Shanno Devi has put value of the suit for the purpose of court fee and jurisdiction according to the value of land on which she purchased it in the year 1989. It may appear that after 1989 till 1995 when the suit was filed there may be an increase of value of land, but as required by section 7 paragraph v there is no proof to show that the suit property was having a different value in the year 1995. Plaintiff being a master of suit has absolute discretion to put its own valuation. Estimation of value given by plaintiff is accepted ordinarily. But where plaintiff manifestly and deliberately under values and under estimates the same court can interfere.
59. In this case there is no standard available to estimate the value of property in the year 1995 except for the value given by plaintiff on the basis of consideration amount of suit property. The only suggestion that suit property was having value of Rs. 20 lacs in the year 1997 is also not helpful because there is no evidence to substantiate the same. Further, after recording the evidence of PW2 an application was moved by Pw2 to make corrections in the cross examination where it was recorded that "it is correct that in the year 1997 the market value of suit property was 20 lacs". This application was moved to correct the suggestion as "it is wrong to suggest" in place of "it is correct". This application was however dismissed.
60. Even if a suggestion as to value of suit property is accepted as correct, it was for the year 1997. There are other factors which are required to be considered. If at one place Sh. Vidya Bhushan has claimed value of suit property as 20 lacs, he has also stated that he has inducted all the tenants i.e. D1 to D6, in the suit property for Rs. 25 per month only. The fact that suit property is involved in litigation is also a factor to be considered. Therefore, in absence of any cogent and clear proof that suit property was having a value more than what is given by plaintiff, court cannot interfere. Hence the issue is decide in favour of Smt. Shanno Devi and against Sh. Vidya Bhushan.
ISSUE No.2 Genuineness of second will dated 16.03.1985.
61. This is the most contested issue in all three suits. Plaintiff has challenged Suit Nos. 416/89, 156/05 & 646/02 21 the second will on the ground that he is son of Sh. Sajjan Mal and after his death he is one of legal heir of Sh. Sajjan Mal. The sole defendant in whose favour will was made has expired. On her behalf there is nothing except her written statement. From the evidence of parties it is clear that Sh. Vidya Bhushan was not having good relations with his own mother Smt. Raj Kaushalya. PW2 has specifically stated in his testimony that on complaint of Smt. Raj Kaushalya Sh. Vidya Bhushan was charged for offences.
62. However the will is of Sh. Sajjan Mal. Smt. Raj Kaushalya as well as Smt. Shanno Devi has taken the defence that the will is genuine and Sh. Vidya Bhushan had been debarred by Sh. Sajjan Mal during his life time. The second will which is in issue was produced by Pw1 Sh. Ashok Kumar attorney of plaintiff. The witnesses to will were not summoned for proving the will. The first witness of will Sh. Hans Raj had expired in the year 1991 i.e. before recording of evidence. The son of Sh. Hans Raj, Pw3, appeared to identify the signatures of Sh. Hans Raj. However, the requirement of witness to prove a will is not to identify the signature of witness but to identify the signature of testator that he signed in presence of particular witness.
63. Second witness to will was Sh. Brij Lal. There is nothing on record to show that any step was taken on behalf of Smt. Shanno Devi to produce Sh. Brij Lal in the witness Box to prove the will. Therefore the second will of Sh. Sajjan Mal is not proved. Nevertheless the will is there.
64. The existence of will is not in dispute. The issue is whether the will is genuine or forged. In these cases none of the parties are claiming there right on the basis of will. Sh. Vidya Bhushan filed suits for declaration of will as null and void and for declaration of sale deed as null and void and Smt. Shanno Devi has filed suit for possession on the basis of sale deed in her favour executed by Smt. Raj Kaushalya. In between is the will. If will is genuine the sale deed is good and if it is forged sale deed gets affected.
65. Therefore, technically the bar of section 68 of Indian Evidence Act, 1872 is inoperative here. Without reading the will the controversy cannot be decided. But the question is whether the will is forged or not.
Suit Nos. 416/89, 156/05 & 646/02 2266. Onus to prove this issue is on Sh. Vidya Bnhushan. Sh. Vidya Bhushan has not produced any evidence to prove that will is forged. Except the allegations of Sh. Vidya Bhushan and the testimony of D7-W1, there is nothing on record to show that the will dated 16.03.1985 is forged. Under section 67 of Indian Succession Act, 1925 a will is required to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in presence and by direction of testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the such witness shall sign the will in the presence of testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
67. Certified copy of the will is exhibit PW1/2. Ex.PW1/2 is registered document attested by Sh. Hans Raj and Sh. Brij Lal. The attestation of will by first witness appears to be of same time when the document was executed as the name and address of Sh. Hans Raj as witness no.1 is typewritten. The details of second witness Sh. Brij Lal are hand written. This however does not effect the attestation as it is not necessary that two witness should sign the will at same time. Further no particular form of attestation is necessary. But none of these two witnesses have come to prove the will.
68. Section 68 of Indian Evidence requires; if a document is required by law to be attested it shall not be used in evidence until one attested witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to process of court and capable of giving evidence.
Provided that it shall not be necessary to call an attesting witness in proof of execution of any document, not being a will, which has been registered in accordance with provisions of Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied.
69. Therefore even if this will is registered, it has to be proved in accordance with section 68 of IEA 1872. None of the attesting witness have appeared to prove the will. The first witness is stated to have died in the year 1991. But there Suit Nos. 416/89, 156/05 & 646/02 23 is no such confirmation regarding second witness Sh. Brij Lal. None of the parties even tried to issue summons upon Sh. Brij Lal to appear and prove the will. Smt. Shanno Devi tried to prove the will through Sh. Ashok Kumar S/o Sh. Hans Raj the first witness of will. Sh. Ashok Kumar deposed that the signature in the second will is of Sh. Hans Raj.
70. It appears that Sh. Ashok Kumar was called in witness box to comply the requirement of Section 69 of IEA. As per section 69;
If no such attesting witness can be found, or if the document purports to have been executed in United Kingdom, it must be proved that the attestation of attesting witness at least is in his handwriting, and the signature of the person executing the document is in the hand writing of that person.
71. Section 69 will come into operation only if it is proved that none of the attesting witness are alive or capable of giving evidence. There is no such finding by the court. Sh. Brij lal could have been summoned to prove the will but it was not done. Still the will might be genuine. As the parties are not asking for any right on the basis of will but the rights which they have derived, in case of Smt. Shanno Devi on the basis of sale deed and in case of Sh. Vidya Bhushan on the basis of inheritance, can only be settled if there comes a finding either of its genuineness or of forged.
72. Since as per law the will is not proved, but existence is not disputed, it is necessary to look into the will itself and circumstances under which the will was executed. The first will of Sh. Sajjan Mal is of 06.03.1985. Since summoned witness failed to produce the first will and trust deed, D7-W1 produced certified copy of will Mark 'A'. This first will was executed and registered on same day i.e. 06.03.1985. One of the attesting witness of this first will is Sh. Vidya Bhushan. The mark of registration shows that Sh. Sajjan Mal went himself to get this will registered. Sh. Vidya Bhshan has also accompanied Sh. Sajjan Mal for registration of will. The second will i.e. will dated 16.03.1985 is attested by Sh. Hans Raj and Sh. Brij Lal. This will was registered on 21.12.1987. Sh. Hans Raj, Smt. Raj Kaushalya and one Sh. Yoginder Pal went to office of Registrar to get that will registered.
Suit Nos. 416/89, 156/05 & 646/02 2473. In all the suits, the stand of Smt. Shanno Devi, even of Smt. Raj Kaushalya, is that Sh. Sajjan Mal had given Pharkhati (disownment) to Sh. Vidya Bhushan in his life time. The first will is not disputed by either of parties. A photocopy of trust deed executed by Sh. Sajjan Mal in the name of 'Raj Kaushalya Sajjan Mal Charitable Trust' is on record. In the trust deed Sh. Vidya Bhushan is one of trustee. The first will is witnessed by Sh. Vidya Bhushan. If Sh. Vidya Bhushan was disowned by Sh. Sajjan Mal during his life time why would he make him a trustee. Further if Sh. Vidya Bhushan was disowned, why would Sh. Sajjan Mal execute will in his presence making him a witness and take him to get it registered.
74. The second will is of 16.03.1985. Just 10 days after first will. It is not specifically stated that Sh. Sajjan Mal disowned Sh. Vidya Bhushan in these intervening 10 days, but during his life time. There is no reason to believe that Sh. Vidya Bhushan could have been disowned. Nothing is brought on record to prove that Sh. Sajjan Mal ever issued Pharkhati to Sh. Vidya Bhushan. Pharkhati of Smt. Raj Kaushalya and public notices are on record but that could not prove that Sh. Vidya Bbhushan was disowned by his father.
75. Sh. Sajjan Mal expired on 20.04.1985 i.e. one and half month after execution of first will. But the will was registered after about 2 and a half years after death of Sh. Sajjan Mal. In between no step was taken by Smt. Raj Kaushalya. There are incidents brought on record that the relation between Smt. Raj Kaushalya and Sh. Vidya Bhushan were strained. However there is no need to investigate the reasons for that. Smt. Raj Kaushalya and Smt. Shanno Devi entered into agreement to sale some where in the year 1988 i.e. after getting the second will registered. This all raises suspicion on the genuineness of will. An inference can be drawn that the second will was a device for execution of sale deed dated 19.05.1989.
76. Ld. Counsel for Sh. Vidya Bhushan has submitted that the signatures in two wills, if compared with naked eyes, can prove that the two wills are not having same signatures. I have seen the signature of Sh. Sajjan Mal which is written in Urdu. The first will dated 06.03.1985 indicates that executant of will is an old Suit Nos. 416/89, 156/05 & 646/02 25 man as the handwriting is not fluent. Whereas the signature in second will is very fluent. It also has a different style. The comparison and difference in signature is clear with naked eye. Since the first will is undisputed that Sh. Sajjan Mal executed it, considering all the circumstances it can safely be said that the second will does not contain signature of Sh. Sajjan Mal. The second will i.e. will dated 16.03.1985 is forged. The issue is accordingly decided in favour of Sh. Vidya Bhushan.
77. ISSUE No.3.-- Effect of finding on transaction between Smt. Raj Kaushalya and Smt. Shanno Devi. The transaction between Smt. Raj Kaushalya and Smt. Shanno Devi is based on the will dated 16.03.1985. The sale deed in favour of Smt. Shanno Devi dated 19.05.1989, is Ex.PW1/1. PW2 has proved various documents to show that transaction between Smt. Raj Kaushalya and Smt. Shanno Devi was a valid and considered transaction as various steps were taken before execution of sale deed. However the sale of suit property by Smt. Raj Kaushalya has a basis which was not true.
78. The sale deed recites "whereas Late Sh. Sajjan Mal S/o Sh. Ram Asra Mal was the absolute owner of property no. FA/F229, measuring 378 Sq. Yds situated in colony known as Mansarovar Garden, New Delhi, in the area of Village Basai Darapur, Delhi State, Delhi by virtue of registered sale deed no. 5794 entered in Addl. Book No.I Vol. No. 2825 on pages no. 134 to 136 registered on 17.05.1972 in the office of S.R. Delhi. That Sh. Sajjan Mal Died on 20.04.1985, he bequeathed the registered will no. 14933, Book No. 3 Vol. No. 557, on pages 3 to 4 registered on 21.12.1987 in the office of Sub-Registrar, Delhi measuring98 sq. yds out of total 378 sq. yds of the above said plot, in favour of her wife Smt. Raj Kaushalya d/o (should have been w/o) Sh. Sajjan Mal R/O FA/F-229, Mansarovar Garden, New Delhi, bearing Kh. No. 2351".
79. The recital to the sale deed shows that Smt. Raj Kaushalya executed sale deed as an absolute owner, on the basis of will, not as a legal heir of Sh. Sajjan Mal. This will on which Smt. Raj Kaushalya was claiming title has proved to be forged. Therefore since Smt. Raj Kaushalya was not an absolute owner of suit property she could not confer any title upon Smt. Shanno Devi. Further Smt. Raj Suit Nos. 416/89, 156/05 & 646/02 26 Kaushalya did not executed the sale deed as co-owner, being legal heir of Sh. Sajjan Mal, therefore, the sale deed Ex.PW1/1 in favour of Smt. Shanno Devi is nothing but a waste paper. Smt. Shanno Devi cannot even claim protection of section 41 of Transfer of Property as Sh. Vidya Bhushan filed his first suit on 07.02.1989 and summons of that suit were served on Smt. Shanno Devi on very first date and counsels for defendant of Smt. Raj Kaushalya and Smt. Shanno Devi appeared on 15.02.1989, at least 3 months before execution of sale deed. This transaction is even hit by Section 52 of Transfer of Property Act.
80. Therefore the sale transaction between Smt. Raj Kaushlya and Smt. Shanno Devi is of no consequence. The the sale deed Ex.PW1/1 is nothing but a sham document having no effect. Hence null and void.
81. ISSUE NO. 4 Whether Sh. Vidya Bhushan is entitled to declaration. In first suit Sh. Vidya Bhushan has sought declaration that the will dated 16.03.1985 is forged. In issue no.2 same has been proved. In second suit the declaration sought was that the sale deed executed by Smt. Raj Kaushalya in favour of Smt. Shanno Devi dated 19.05.1989 is null and viod. As already discussed in issue no.2 it is proved that the will is forged. The sale deed is executed after Sh. Vidya Bhushan filed the first suit, hence the same is hit by section 52 of Transfer of Property Act. Smt. Raj Kaushalya was not an exclusive owner of suit property. She sold the property to Smt. Shanno Devi on the basis of the second will which is proved to be a forged will. Therefore the sale deed dated 19.05.1989 executed by Smt. Raj Kaushalya in favour of Smt. Shanno Devi is null and void. Sh. Vidya Bhushan is entitrled for declaration as such.
82. ISSUE NO.5 Whether Sh. Vidya Bhushan is entitled for decree of injunction. Sh. Vidya Bhushan has prayed for injunction restraining the other parties to suit from interfering in his possession of suit premises. It is not in dispute that Sh. Vidya Bhushan is residing in suit premises. Sh. Vidya Bhushan has filed this case being a legal heir of Sh. Sajjan Mal. One of the defendant in suits of Sh. Vidya Bhushan was his mother Smt. Raj Kaushalya. Smt. Rajt Kaushalya was also a legal heir of Sh. Sajjan Mal. Hence even if the sale deed in favour of Smt. Shanno Devi is declared null and void, Smt. Raj Kaushalya could Suit Nos. 416/89, 156/05 & 646/02 27 claim her right in the suit property as one of legal heir. After her death Sh. Vidya Bhushan impleaded daughters of Smt. Raj Kaushalya as legal representatives. Therefore since Smt. Raj kaushalya was a co-sharer in the suit property, injunction cannot be passed against the legal representatives. Further the daughters of Smt. Raj Kaushalya were also legal heirs of Sh. Sajjan Mal and if Sh. Sajjan Mal has died intestate they are also co-sharers.
83. However Smt. Shanno Devi had been claiming on the basis of sale deed which have been found to be null and void. Smt. Shanno Devi had no right in the suit property. Therefore. Smt. Shanno Devi and her representative in interest have no right to interfere in possession of Sh. Vidya Bhushan. The issue is accordingly decided in favour of Sh. Vidya Bhushan.
84. ISSUE No. 6 Whether Smt. Shanno Devi is entitled to decree of possession. All the material issues have gone against Smt. Shanno Devi. The basis of suit of Smt. Shanno Devi was the sale deed dated 19.05.1989. This sale deed is of no effect. The sale deed does not transfer title upon Smt. Shanno Devi. Hence the issue is decided against Smt. Shanno Devi.
RELIEF:-
85. In view of findings of all the issues, the suits of Sh. Vidya Bhushan for declaration and injunction are decreed and suit of Smt. Shanno Devi possession is dismissed. It is declared that the alleged will of Sh. Sajjan Mal dated 16.03.1985 is forged and the alleged sale deed in respect to suit property by Smt. Raj Kaushalya in favour of Smt. Shanno Devi is null and void. The Shanno Devi and her representative in interest are restrained form interfering in peaceful possession of Sh. Vidya Bhushan.
Decree sheet be prepared accordingly. File be consigned to record room.
Announced in open court on (VIKRAM) 07.12.2011 Civil Judge-02/North/Delhi Suit Nos. 416/89, 156/05 & 646/02 28 07.12.2012 Suit No. 156/05 Present: None.
Vide separate composite judgment passed in suit no. 416/89, suit no. 156/05 and suit no. 646/02 the suit of plaintiff Sh. Vidya Bhushan is decreed. Decree sheet be prepared in terms of composite judgment.
All three files be consigned to the Record Room in a single bunch.
(VIKRAM)
Civil Judge-02/North/Delhi
07.12.2011
Suit Nos. 416/89, 156/05 & 646/02 29
07.12.2012 Suit No. 416/89
Present: None.
Vide separate composite judgment passed in suit no. 416/89, suit no. 156/05 and suit no. 646/02 the suit of plaintiff Sh. Vidya Bhushan is decreed. Decree sheet be prepared in terms of composite judgment.
All three files be consigned to the Record Room in a single bunch.
(VIKRAM)
Civil Judge-02/North/Delhi
07.12.2011
Suit Nos. 416/89, 156/05 & 646/02 30
07.12.2012 Suit No. 646/02
Present: None.
Vide separate composite judgment passed in suit no. 416/89, suit no. 156/05 and suit no. 646/02 the suit of plaintiff Sh. Vidya Bhushan is decreed. Decree sheet be prepared in terms of composite judgment.
All three files be consigned to the Record Room in a single bunch.
(VIKRAM)
Civil Judge-02/North/Delhi
07.12.2011
Suit Nos. 416/89, 156/05 & 646/02 31
Suit Nos. 416/89, 156/05 & 646/02 32
08.12.2011 Suit No. 156/05 & 646/02
Present: None.
Vide separate judgment
VIKRAM
Civil Judge02 (North)/Delhi
08.12.2011
Suit Nos. 416/89, 156/05 & 646/02 33