Delhi District Court
Rajender Nath Puri vs Vijay Kumar Puri Page No. 1 Of 26 on 27 April, 2018
IN THE COURT OF DR. SAURABH KULSHRESHTHA:
ADDITIONAL DISTRICT JUDGE -11, CENTRAL,
TIS HAZARI COURTS, DELHI
Civil Suit No. 18595/2016
Sh. Rajinder Nath Puri (Since deceased)
Through his LRs
(i) Sh. Sanjay Puri,
S/o late Sh. Kamal Puri,
(ii) Sh. Ajay Puri,
S/o Late Sh. Kamal Puri
Both residents of :-
D-141, Kamla Nagar,
Delhi ....... Plaintif
Versus
1. Sh.Vijay Kumar Puri
S/o Late Sh. Rajinder Nath Puri,
2. Sh. Shyam Sunbder Puri
S/o Late Sh. Rajinder Nath Puri
Both resident of :
D-141, Kamla Nagar,
Delhi - 110007. .....Defendants
SUIT FOR MANDATORY INJUNCTION
Date of institution of the Suit : 21.05.2004
Date on which judgment
was reserved : 13.04.2018
Date of decision : 27.04.2018
Decision : Suit Decreed
Suit No.18595/2016
Rajender Nath Puri Vs Vijay Kumar Puri Page No. 1 of 26
JUDGMENT
1. This is a suit for mandatory injunction. The version of the plaintif is that the plaintif is the sole and absolute owner of property bearing no. D-141, Kamla Nagar, Delhi - 110007 having purchased the same out of his own funds vide registered sale deed dated 07.01.1959. The defendants are the sons of the plaintif. It is further the case of the plaintif that the defendants were permitted by the plaintif to stay in the suit property as gratuitous licensees. The plaintif gave three rooms, one bathroom, two toilets and one kitchen situated on the ground floor (shown in the red colour in the site plan) to the defendant no. 1. The plaintif further gave three rooms, one kitchen, one WC with gallery situated on the backside of the first floor (shown in the green colour in the site plan) to the defendant no. 2.
2. It is further the case of the plaintif that due to the cruel behaviour of the defendants the plaintif Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 2 of 26 terminated the license of the defendants and issued legal notice dated 06.02.2004 calling upon the defendants to vacate the portions of the suit property in their occupation. However, despite service of the said legal notice, the defendants did not vacate the suit property.
3. The plaintif has accordingly prayed for a decree of mandatory injunction directing the defendants to vacate the suit property by removing themselves, their family members and their belongings from the portions of the suit property under their occupation.
4. The defendants refuted the claim of the plaintif by filing a joint written statement The defendants have pleaded that the plaintif is not the sole owner of the suit property. The defendants denied that the suit property was purchased by the plaintif out of his own funds. The defendants further pleaded that the suit property was purchased with the aid of jewelery and stridhan of the Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 3 of 26 mother of the defendants and also with the aid of ancestral property and therefore the defendants are also the joint owners of the suit property. The defendants denied that they are licensees in the suit property under the plaintif and averred that the plaintif had no right to issue notice to them. The defendants averred that they are living jointly in each and every portion of the house. The defendants denied that they are liable to vacate the suit property. The defendants prayed for dismissal of the suit.
5. On the basis of the pleadings of the parties the following issues were framed vide order dated 16.11.2004:
(1) Whether the suit is properly valued for the purpose of court fees and the Suits Valuation Act? OPP (2) Whether the plaintif is entitled for a decree of mandatory injunction as prayed by the plaintif ? OPP (3) Relief
6. During the course of proceedings the plaintif Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 4 of 26 expired and an application under Order 22 Rule 3 was moved on behalf of Smt. Neelam Puri, Sh. Sanjay Puri and Sh. Ajay Puri (the wife and sons of Late Sh. Kamal Puri, the pre deceased son of the plaintif) on the basis of Will dated 17.09.2004 of the plaintif. The application was dismissed vide order dated 01.05.2009. However, afterwards in CM (M) Nos. 815/2009, 818/2009, and 870/2009, vide order dated 05.09.2011, the said order dated 01.05.2009 was set aside by the Hon'ble High Court of Delhi and Smt. Neelam Puri, Sh. Ajay Puri and Sh. Sanjay Puri were substituted as Legal Representatives of the deceased plaintif. Thereafter, during the course of proceedings Smt. Neelam Puri also expired and Sh. Ajay Puri and Sh. Sanjay Puri were substituted as her LRs vide order dated 15.02.2016.
7. Thereafter, written statement was amended by the defendants. The defendants additionally contended that there is no testament executed by the plaintif in respect of the portions of the suit property which are in possession of Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 5 of 26 the defendants and therefore, the defendants being the real sons of the plaintif would inherit the said portions in their possession under the Hindu Succession Act, 1956 along with other legal heirs of the plaintif. The defendants therefore contended that after the death of the plaintif they have become the co-owners of the portions of the suit property in their occupation and accordingly, a suit for mandatory injunction for their eviction would not maintainable and only a suit for partition can be filed by the other co-owners. The defendants therefore, prayed for dismissal of the suit.
8. The LRs of the plaintif filed replication to the written statement of the defendants and denied the averments made by the defendants and simultaneously reiterated and reafirmed the contents of the plaint.
9. In order to prove his case the deceased plaintif during his lifetime had examined himself as PW-1 and Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 6 of 26 deposed on the lines of the plaint. PW 1 relied upon the following documents: Copy of sale deed which is Ex. PW1/1; house tax receipt which is Ex. PW1/2; property tax bill which is Ex. PW1/3; site plan which is Ex. PW1/4; copy of legal notice dated 06.02.2004 which is Ex. PW1/5; postal receipt which is Ex. PW1/6; UPC receipt which is Ex. PW1/7; AD cards which are Ex. PW1/8 and Ex. PW1/9; copies of police complaints which are Ex. PW1/10, Ex. PW1/11 and Ex. PW1/12; copy of postal receipts which are Ex. PW1/13 and Ex. PW1/14. Vide order dated 18.10.2005 the opportunity of the defendants to cross examine PW-1 was closed. The plaintif further examined his elder brother Sh. Sohan Lal Puri as PW 2 and his cousin Sh. J.N. Puri as PW 3 who corroborated his version. The opportunity of the defendants to cross examine PW-3 was also closed vide order dated 18.10.2005.
10. As against this the defendants examined themselves as DW 1 and DW 2 and deposed on the lines of Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 7 of 26 their written statement. They relied upon the following documents: the copies of letters dated 18.04.1990 and reply dated 28.05.1990 which are Mark A and Mark B and the death of certificate of their father which is Ex. DW1/3.
11. I have heard the Ld. Counsel for the parties and have given due consideration to their rival contentions and carefully perused the record. My issue-wise findings are as under:
Issue no. 2 (2) Whether the plaintiff is entitled for a decree of mandatory injunction as prayed by the plaintiff ?
OPP
12. PW 1 has deposed that he is the sole owner of the suit property on the basis of registered sale deed 07.01.1959. Copy of sale deed is Ex. PW1/1. PW 1 has further deposed that the house tax of the suit property is Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 8 of 26 being paid by him and the house tax receipt and house tax bill are Ex. PW 1/2 and Ex. PW 1/3. The defendants have not disputed the sale deed and the factum of the house tax being assessed in the name of the plaintif. However the defendants have only stated that the suit property was purchased out of the funds derived from ancestral property and the funds provided by the mother of the defendants. The defendants have therefore contended that the suit property is HUF property and they also have a share therein.
13. The law on the point is well settled. There is no presumption that a particular property is joint family property. It is also well settled that the onus to prove that a particular property is joint family property lies on the person who asserts so. Either it is to be proved that the property in question has been directly purchased from joint family funds/ income from joint family business or that the HUF possessed some joint property which from its nature Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 9 of 26 and relative value formed the nucleus for acquisition of the property in question.
14. In the judgment tiled as Mudigowda Gowdappa Sankh v. Ramchandra Revgowda Sankh reported as AIR 1969 SUPREME COURT 1076 it was held:
"......The law on this aspect of the case is well settled. Of course there is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenery property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presume to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 10 of 26 possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self- acquisition to afirmatively make out that the property was acquired without any aid from the family estate...."
15. In the judgment titled as Dr. Gurmukh Ram Madan Vs. Bhagwan Das Madan reported as AIR 1998 SC 2776 it was held:
"......6.The contentions put forth before us are identical to those which are urged in the trial court and the High Court. There is no material to show that the property was joint or the family possessed joint funds. There was no nucleus to augment or add by way of accretion to the same. There is no material to show that the appellant had contributed any sums of money in the purchase of the house or any contribution thereof. Evidence on record out weight the proof sought to be placed by the appellant in this regard. Firstly, the title deed stood in the name of respondent alone. Respondent placed material before the Court that he Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 11 of 26 had purchased the building material at diferent stages to raise the construction. He was in possession of the house exclusively right from the date of the construction. The appellant if he had given any money to the respondent could have been placed some evidence on record in support of the same. There is nothing forthcoming either in the shape of a documentary evidence or oral evidence except his own self-serving statements which are self- contradictory. Assertions and acclamations will not produce a strong case. The tearful arguments of the appellant had not appealed to us in the absence of even a (sic) of evidence....".
16. Adverting to the facts of the present case the defendants have neither cross examined PW-1 nor led any cogent, viable and independent evidence to show that the suit property was purchased out of any joint family funds. The existence of any ancestral property which could serve as a nucleus for acquisition of the suit property has not Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 12 of 26 been proved. No details of any such alleged prior ancestral property and of its relative value and nature have been given nor any documents in this respect have been produced.
17. Further no cogent, viable and independent evidence has been adduced by the defendants to establish that they had contributed any funds for the acquisition or construction of the suit property. DW1 has admitted that the suit property was purchased in the year 1959 and he was born in the year 1958. The age of DW 2 shows that he was not even born in the year 1959. DW2 has admitted in his cross examination that neither him nor his brother contributed any amount in the purchase of the suit property.
18. DW1 has relied upon a letter dated 18.04.1990 of the Income Tax Department and reply dated 28.05.1990 to the same to contend that the suit property is HUF Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 13 of 26 property. However, the said letter and reply have only been marked and not exhibited and thus they have not been duly proved and cannot be taken into account. DW1 has further deposed in regarding the existence of Shri Rajender Nath Puri and Sons HUF. However he has stated in his cross examination that Shri Rajender Nath Puri and Sons HUF was created in the year 1968 though he could not produce any document to this efect. Be that as it may even if the version of DW 1 is considered the suit property which was purchased in the year 1959 could not be HUF property since HUF was created in the year 1968 and there is no plea that the property was or could have been thrown in the common hotchpotch.
19. The defendants have also not led any cogent, viable and independent evidence to show that the mother of the defendants had contributed towards the purchase of the suit property. Even if she did voluntarily help her husband financially or otherwise the same would not Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 14 of 26 convert the suit property into HUF property.
20. Accordingly, the defendants have failed to establish that the suit property is HUF property. The result is that the suit property is to be treated as the self acquired property of the plaintif and therefore the defendants were mere licensees of the plaintif in the suit property.
21. The plaintif has categorically deposed that he had terminated the license of the plaintif vide legal notice dated 06.02.2004. Copy of the legal notice is Ex. PW1/5, copy of postal receipt is Ex. PW1/6, copy of UPC receipt is Ex. PW1/7 and AD cards are Ex. PW1/8 and Ex. PW1/9. The said notice is presumed to have been served upon the defendants in the ordinary course. Nothing to the contrary has been proved. DW2 has also admitted in his cross examination that his father served a legal notice on him as well as on his brother to hand over the possession of the suit property. Even otherwise filing of the present suit Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 15 of 26 amounts to termination of the license of the defendants and the status of the defendants in the suit property after termination of license has been reduced to that of unauthorized occupants and they are liable to vacate the same.
22. It has been held by the Hon'ble Supreme Court of India in the judgments titled as Sant Lal Jain v. Avtar Singh reported as (1985) 2 SCC 332 and Joseph Severance v. Benny Mathew reported as (2005) 7 SCC 667 that in case termination of license of a licensee, the licensor can maintain a suit for mandatory injunction directing the licensee to handover the vacant possession, if the plaintif files such a suit within a reasonable period of time.
23. Adverting to the facts of the present case the license of the defendants was terminated on 06.02.2004 and the present suit was filed in the month of May 2004. Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 16 of 26 Accordingly, the suit has been filed within reasonable period of time from the date of termination of the license and therefore a suit for mandatory injunction is maintainable.
24. However, during the course of the proceedings, the plaintif expired. The plaintif left behind a will dated 17.09.2004. The will in question is a registered Will. It has further been stated that probate in respect of the Will has been ordered to be granted in terms of the judgment dated 29.03.2011 passed by Sh. Vimal Kumar Yadav, Ld. ADJ, Tis Hazari Courts, Delhi in Probate case no. 05/09 titled as "Neelam Puri & Ors Vs. State & Ors.". A certified copy of the judgment has been placed on record. It is further stated that appeal against the said judgment has been dismissed vide order dated 20.03.2018 in FAO No. 338/2011 by the Honble High Court of Delhi. Copy of the said order has been also placed on record. Accordingly, the judgment passed by the probate court has attained finality. Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 17 of 26
25. In the judgment titled as Rukmani Devi v. Narendra Lal Gupta reported as AIR 1984 SC 1866 the Hon'ble Supreme Court held:
"......It is well-settled that the decision of the probate court is a judgment in rem. The High Court rightly held that till the order granting probate remains in force it is conclusive as to the execution and validity of the will till the grant of probate is revoked. Apart from the fact that a decision of the probate court would be a judgment in rem not only binding on the parties to the probate proceedings but it will be binding on the whole world. Therefore, a solemn duty is cast on the probate court. Section 41 of the Indian Evidence Act, 1872 provides that a final judgment or order of a competent court in the exercise of probate jurisdiction is conclusive proof of what is decided therein that is about the genuineness of the will. To be precise, a probate granted by a competent court is conclusive of the validity of such will until it is revoked and no evidence can be Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 18 of 26 admitted to impeach it except in a proceeding taken for revoking the probate........."
26. Thus the judgment dated 29.03.2011 passed by Sh. Vimal Kumar Yadav, Ld. ADJ, Tis Hazari Courts, Delhi in Probate case no. 05/09 is conclusive proof of the genuineness of the will dated 17.09.2004 of Late Sh. Rajender Nath Puri and the same is also binding on the parties to the present suit. The said will dated 17.09.2004 Mark DW2/P1 has to be treated as genuine and no further proof of the same is required. The suit property therefore devolves as per the stipulations in the Will dated 17.09.2004.
27. A perusal of the will dated 17.09.2004 reveals that it has been mentioned that the defendant no. 1 Shri Vijay Kumar Puri is residing in the rear portion on the ground floor and Shri Shyam Sunder Puri is residing in the front first floor portion. It has further been mentioned that Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 19 of 26 in the rear first floor portion the family of Shri Kamal Kumar Puri is residing and in the front portion on the ground floor Shri Rajender Nath Puri was himself residing. Further by virtue of the said Will the plaintif has bequeathed the portion in possession of the plaintif i.e. front portion on the ground floor in favour of Shri Ajay Puri and rear portion of the first floor in favour of Shri Sanjay Puri. It is also stated that in the Will that in so far as the portions which are in possession of the defendants nos. 1 and 2 are concerned the plaintif has not been able to decide as to what he proposes to do with the said portions and as and when the said portions are vacated by the defendants the plaintif would take a decision in this respect.
28. Now, the defendants have claimed that in so far as the portions of the suit property which are in occupation of the defendants are concerned, no bequest has been made in the Will dated 17.09.2004 and therefore, the Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 20 of 26 defendants alongwith Smt. Prabha Chaudhary (daughter of the plaintif) and LRs of the plaintif namely Sanjay Puri and Sh. Ajay Puri become the co-owners of the same as the said portions would devolve upon all the legal heirs of the plaintif by intestate succession. The defendants have contended that therefore the defendants cannot be evicted from the said portions in their occupation by way of a mandatory injunction after the demise of the plaintif.
29. However, a comprehensive reading of the Will shows that it has been categorically mentioned on the first page that the plaintif / testator Shri Rajender Nath Puri has disinherited Shri Shyam Sunder Puri and Shri Vijay Kumar Puri (defendants) from his properties. It is further mentioned that the plaintif/ testator has already filed a suit for obtaining the possession of the house (suit property) from Shri Vijay Kumar Puri and Shri Shyam Sunder Puri (defendants) and they will not have any concern with the movable and immovable properties of the plaintif / Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 21 of 26 testator. It is also mentioned that the daughter of the plaintif namely Smt. Prabha Chaudhari or her family members would also have no concern with the Kamla Nagar property (suit property).
30. Accordingly, the plaintif / testator has made a categorical assertion in the will that the defendants would have no concern with the suit property and has disinherited the defendants. Once such a stipulation has been made in the Will the same has to be honoured and the same is suficient to alter the normal rule of succession and divest the defendants of any share in any portion of the suit property. The result is that no portion of the suit property would devolve upon the defendants and the daughter of the plaintif. The only other legal heirs of the plaintif are Shri Ajay Puri and Shri Sanjay Puri and accordingly the portions of the suit property in possession of the defendants would also devolve upon Shri Ajay Puri and Shri Sanjay Puri only. Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 22 of 26
31. Once it follows that the LRs of the plaintif namely Shri Ajay Puri and Shri Sanjay Puri would be the owners of the suit property and the defendants have no right, title or interest in the suit property the position remains to be the same even after the death of the plaintif and the LRs of the plaintif can get the suit filed by the plaintif decreed in their favour. The plaintif had already terminated the license of the defendants nos. 1 and 2 and accordingly the defendants no. 1 and 2 are liable to vacate the suit premises and the LRs of the plaintif step into the shoes of the plaintif.
32. It is seen that there is a discrepancy in description of the portion in possession of the defendant no. 2 in the plaint and in the will. However under Order 7 Rule 7 CPC the Court can always mould the relief which is to be granted to the plaintif. Reference may be made to the judgments titled as U.P. State Brassware Corporation Ltd. v. Uday Narain Pandey reported as Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 23 of 26 AIR 2006 SC 586 and Bay Berry Apartments Pvt. Ltd. v. Shobha reported as 2006 (10) SCALE 596. The fact of the matter is that the defendants have no right, title or interest in any of the portions of the suit property and therefore they would have to vacate the entire suit property irrespective of the fact as to which portions are actually within their possession.
33. The result is that the LRs of the plaintif are entitled to a decree of mandatory injunction directing the defendants to vacate the suit property and remove themselves, their family members and their belongings from suit property. This issue is therefore decided in favour of the plaintif and against the defendant. Issue no. 1 (1) Whether the suit is properly valued for the purpose of court fees and the Suits Valuation Act? OPP.
Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 24 of 26
34. The present suit is a suit for mandatory injunction simplicitor and the same is maintainable in view of the judgments titled as Sant Lal Jain v. Avtar Singh reported as (1985) 2 SCC 332 and Joseph Severance v. Benny Mathew reported as (2005) 7 SCC 667. On such a suit for mandatory injunction fixed court fee of Rs. 13/- is payable which has been paid. Though the plaintif has not valued the suit at a particular amount but since fixed court fee is payable the suit was to be filed in the Court of lowest grade. No higher valuation has been put forth by the plaintif. The suit was also filed before the Court of Ld. Civil Judge and was transferred to this Court by the orders of the Ld. District Judge. Thus irrespective of the error in valuation the same is not fatal to the suit. The result is that proper court fees has been paid and its value can be considered proportionately and the suit was filed before the court having jurisdiction. No other flaw has been pointed out by the defendants. Thus this issue is decided in favour Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 25 of 26 of the plaintif and against the defendants. RELIEF
35. A decree of mandatory injunction is passed in favour of the plaintif (through LRs) and against the defendants nos. 1 and 2 directing the defendants to vacate the suit property bearing no. D-141, Situated at Kamla Nagar, Delhi-110007 by removing themselves, their family members and their belongings from the entire suit property and hand over the vacant possession of the portions of the suit property in possession of the defendants to the LRs of the plaintif.
36. The suit is decreed in the aforesaid terms. Costs of the suit are awarded in favour of the plaintif (through LRs) and against the defendants. Decree sheet be prepared accordingly. File be consigned to Record Room. Digitally signed by SAURABH
SAURABH KULSHRESHTHA
KULSHRESHTHA Date: 2018.04.28 15:43:09
+0530
Announced in the open (Dr. Saurabh Kulshreshtha)
Court on 27.04.2018. Additional District Judge-11 Central District Tis Hazari Courts, Delhi.
Suit No.18595/2016 Rajender Nath Puri Vs Vijay Kumar Puri Page No. 26 of 26