Delhi District Court
Page No. 2/55 vs Relinquishment Deed Date 19.09.1996 on 15 January, 2020
IN THE COURT OF SH HARGURVARINDER SINGH JAGGI,
ADDL. DISTRICT JUDGE - 02, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI
Ex.Civil No. 515916/2016
(Old No. Ex.103/2005)
CNR No.: DLSW0100000082005
IN THE MATTER OF:
Shri Lal (Since deceased)
S/o Dalpat
through L.Rs
1. Ram Prakash
2. Rajender Prasad
(both sons of Shri Lal)
R/o village Mahipal Pur, Delhi
3. Smt.Dhanno (since deceased)
W/o Sh. Nafe Singh
D/o Shri Lal
through L.Rs
(i) Satpal
(ii) Anand
(both sons of Nafe Singh)
R/o Village Galibpur, New Delhi-110073
Ex.Civil No. 515916/2016
Page No. 1/55
4. Smt Shakuntla
D/o Shri Lal
W/o Samey Singh
R/o village Galibpur,
New Delhi-110073 ...decree holders
v.
Union of India ..judgment debtor
Date of filing of application(s): 01.06.2005
Date of order reserved: 19.10.2019
Date of pronouncement of order: 15.01.2020
ORDER
15.01.2020
1. By this order, a rivalry of siblings, whose seeds have their origin embedded in land acquisition proceedings, which can be traced to 23.01.1965 when a notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter "LA Act") was notified would come to an end.
Factual Matrix
2. The factual matrix of the case traced from the case record is that a land admeasuring 29bighas 12biswas situated at village Mahipalpur, Delhi, of one Siri Lal was acquired by the Land Acquisition Collector (LAC) by virtue of award No. 30/1972-1973. The LAC awarded compensation at the rate of ₹1,900/- (Rupees One thousand and nine hundred only) per bigha. Siri Lal on being aggrieved by the Ex.Civil No. 515916/2016 Page No. 2/55 compensation awarded by the LAC, preferred a reference petition under Section 18 of the LA Act titled as Shiri Lal v. Union of India - LAC No. 74/73 and the same was decided on 10.02.1978 by Sh. Harkishan Malik, Addl. District Judge, Delhi. The Ld. Addl. District Judge enhanced the compensation amount by ₹1,200/- (Rupee One thousand and two hundred only) per bigha and accordingly awarded the compensation of ₹3,100/- (Rupees Three thousand and one hundred only). The Ld. Addl. District Judge also ordered that the claimants would be entitled to ₹35,520/- (Rupees Thirty five thousand five hundred and twenty only) by way of enhancement and ₹5,328/- (Rupees Five thousand three hundred and twenty eight only) as solatium @15% and interest @6% under Section 26 of the LA Act from the date of the possession until payment and interest @6% on the market value from 23.01.1968, as permissible under Section 4(3) of Land Acquisition (Amendment & Validation) Act.
3. Siri Lal assailed the judgment dated 10.02.1978 under Section 54 of LA Act before the Hon'ble High Court of Delhi in appeal titled as Siri Lal v. Union of India - RFA No. 287/1978.
4. At this stage, I would add that on careful skimming of the record it is observed that Siri Lal had also assailed an order dated 25.01.1978 passed by Sh. Harkishan Malik, Addl. District Judge in LAC No. 487/72 before the Hon'ble High Court of Delhi in an appeal titled as Siri Lal v. Union of India - RFA No. 224/1978.
Ex.Civil No. 515916/2016 Page No. 3/555. For the sake of convenience and clarity, the appeal titled as Siri Lal v. Union of India - RFA No. 224/1978 is hereinafter mentioned as "first appeal" and the appeal titled as Siri Lal v. Union of India - RFA No. 287/1978 is hereinafter mentioned as "second appeal".
6. During the pendency of the above appeals before the Hon'ble High Court, Siri Lal died on 22.08.1990. Siri Lal left behind four class I legal heirs - two sons and two daughters, namely, Ram Prakash (son), Rajender Prasad (son), Dhanno (daughter) and Shakuntla (daughter).
7. Post the demise of Siri Lal on account of non-substitution of the legal representatives (LRs) the appeal was abated, and thereafter, applications seeking setting aside of abatement order(s)1 along with applications seeking condonation of delay2 in moving the applications for setting aside of abatement order was moved before the Hon'ble High Court of Delhi in both the appeal, which were disposed of by a common order dated 27.11.1997. The aforesaid applications were moved by one of the sons of Siri Lal, namely, Rajinder Pershad.
8. The ground seeking setting aside of an abatement order urged before the Hon'ble High Court was that the applicant was not aware of the pendency of the appeals, as Siri Lal has not disclosed about the 1 CM No. 1366/1993 in RFA No. 224/1978 and CM No. 1364/1993 in RFA No. 287/1978 traced from order dated 27.11.1997 passed in RFA No 224/1978 and RFA No. 287/1978.
2 CM No. 1367/1993 in RFA No. 224/1978 and CM No. 1365/1993 in RFA No. 287/1978 traced from order dated 27.11.1997 passed in RFA No 224/1978 and RFA No. 287/1978.
Ex.Civil No. 515916/2016 Page No. 4/55fact of the pendency of the proceedings and the applicant became aware only on 18.08.1993.
9. The Hon'ble High Court in its order dated 27.11.1997 observed that the other son, namely, Ram Prakash in his reply to Rajinder Pershad's application stated that he deliberately did not disclose the fact that their father had executed a will dated 28.05.1990, which excluded their sisters from inheriting the property of their father. A copy of the will dated 28.05.1990 was also filed along with the reply to the application.
10. On 09.11.1994, an issue was framed before the Hon'ble High Court, "whether the deceased Mr Siri Lal executed the valid Will, and if so, to what effect?"By order dated 22.02.1996, evidence was ordered to be adduced on the above issue by the Hon'ble High Court in the second appeal before the Ld. Addl. District Judge. Despite opportunity, the original will dated 28.05.1990 was not produced. On 01.12.1996, the parties were directed to appear before additional District Judge for the purpose of reducing evidence and the said court was asked to remit his findings on the aforementioned issue. The additional District Judge in his report dated 04.04.1996 stated that no evidence was adduced before him on the issue framed.
11. The Hon'ble High Court in its order dated 27.11.1997 has observed that the sons of Siri Lal moved applications 3 under Section 3 CM No. 1693/1996 in RFA No. 224/1978 and CM No. 1759/1996 in RFA No. 287/1978 traced from order dated 27.11.1997 passed in RFA No 224/1978 and RFA No. 287/1978.
Ex.Civil No. 515916/2016 Page No. 5/55151 of the Code of Civil Procedure, 1908 (hereinafter "CPC") in both the appeals stating that subsequent to the order passed by Sh. Kuldeep Singh, ADJ's order that all the four legal heirs of Siri Lal are entitled for compensation, their sisters relinquished their share in the favour of the brothers through registered document and they accordingly prayed that the compensation amount be paid exclusively to both of them.
12. The daughters of Siri Lal, namely, Dhanno and Shakuntla filed their replies to the said application stating that they never executed any relinquishment deed, as alleged by their brothers. They further stated that they are illiterate women and their brothers had brought them from their in-laws house, sometime in the third week of October 1996, to village Mahipalpur for purpose of preparing identity cards and ration cards so that they would receive their share of compensation from the court. The sisters further stated that with a view to get those papers prepared, their signatures were obtained without disclosing to them the contention of the documents. The sisters have stated that the fraud has been played upon them and they denied the due execution of the alleged relinquishment deed.
13. The Hon'ble High Court vide order dated 27.11.1997 observed that keeping in view the facts in particular circumstances, no useful purpose would be served in the proceedings to await findings on the issue framed on 09.11.1994. The Hon'ble High Court observed that the question of entitlement to compensation can be got settled by the parties in appropriate proceedings more particularly when the will set Ex.Civil No. 515916/2016 Page No. 6/55 up by one of the sons (copy of which was produced on record) prima facie do not make any provision for the amount of compensation of the acquired land. The Hon'ble High Court observed that the will, even if proved, cannot govern the amount of compensation.
14. The Hon'ble High Court by its order dated 27.11.1997 condoned the delay in moving the application seeking setting aside of the abatement order and further ordered that all the four legal heirs of Shri Lal be substituted for the purposes of both the appeals. The Hon'ble High Court allowed the applications - CM Nos. 1366/1993, 1367/1993 in RFA No. 224/1978 and CM Nos. 1365/1993 and 1366/1993 in RFA No. 287/1978.
15. Further, the Hon'ble High Court dismissed Rajinder Pershad's application(s) - CM No. 1693/1996 in RFA No. 224/1978 and CM No. 1759/1996 in RFA No. 287/1978 moved under Section 151, CPC seeking directions qua release of compensation in favour of the sons of Siri Lal, as both his daughters on a subsequent development relinquished their respective shares in favour of the sons. However, the Hon'ble High Court observed that order dated 27.11.1997 would not preclude Ram Parkash from setting up his claim to the amount of compensation on the basis of the alleged will or to both Ram Parkash and Rajinder Pershad in establishing their rights on the basis of the relinquishment deed in appropriate court of law, in which it would be open to the daughters to contest their claim on merits. Both the appeals were kept pending for disposal in due course.
Ex.Civil No. 515916/2016 Page No. 7/5516. Thereafter, the daughters of Siri Lal, namely, Dhanno and Shakuntla moved a joint application before this Court, seeking release of enhanced compensation received by this Court, pursuant to order dated 10.02.1979 passed in the petition moved by Siri Lal under Section 18 of the LA Act. The joint application seeking release of compensation filed by the daughters of Siri Lal titled as Siri Lal v. Union of India - Ex.Civil No. 515915/20164 arose before this Court and in which the sons of Siri Lal filed their objections. The objections filed by the sons of Siri Lal has been decided by me by a separate order in the aforementioned execution proceedings.
17. The second appeal was decided by the Hon'ble High Court of Delhi by its judgment dated 23.08.2001. The Hon'ble High Court held that the appellant is entitled to the enhanced compensation, as the Hon'ble High Court in Hoshiar Singh v. Union of India - RFA No. 122/1975 decided on 17.07.1991 held ₹14,340/- per bigha to be the fair market value, as on 23.01.1965 in respect of all categories of land situated in village Mahipalpur. The Hon'ble High Court observed that the Hon'ble Apex Court in Kanwar Singh & Ors. v. Union of India 5 took notice of the decision of the Hon'ble High Court in Hoshiar Singh v. Union of India - RFA No. 122/1975 decided on 17.07.1991 assessing the market value of ₹14,340/- per bigha in respect of all categories of land situated in village Mahipalpur.
4 Previous No.: Ex. 03/14/1998 filed on 29.04.1998 and instituted on 12.05.1998 5 (1998) 8 SCC 136 Ex.Civil No. 515916/2016 Page No. 8/55
18. The Hon'ble High Court in its judgment dated 23.08.2001 followed the decision in Hoshiar Singh v. Union of India - RFA No. 122/1975 decided on 17.07.1991 and allowed the appeal with proportionate costs. The Hon'ble High Court held that the appellants are entitled to compensation @ ₹14,340/- per bigha. The Hon'ble High Court also ruled that over and above the amount of compensation, the claimants will be paid solatium @15% p.a. and interest @6%p.a. on the enhanced amount of compensation from the date of Collector taking possession till payment.
19. Before, I proceed further, I would observe that the second appeal titled as Siri Lal v. Union of India - RFA No. 287/1978 was decided vide order dated 23.08.2001, the fate of the first appeal titled as Siri Lal v. Union of India - RFA No. 224/1978 was not revealed and the same has also been observed by the Ld. Predecessor of this Court vide order dated 02.05.2007.
20. Pursuant to the disposal of the second appeal by order dated 23.08.2001, the daughters of Siri Lal on 01.06.2005 moved a joint application titled as Siri Lal (since deceased) Through LRs v. Union of India - Ex.Civil No. 515916/2016, seeking release of enhanced compensation to the legal heirs of Siri Lal in terms of the decision dated 23.08.2001 passed by Hon'ble High Court of Delhi in appeal titled as Siri Lal v. Union of India - RFA No. 287/1978. The applicant daughters of Siri Lal did implead their brothers as decree-holders. In Ex.Civil No. 515916/2016 Page No. 9/55 this manner, the present legal proceedings i.e. Siri Lal v. Union of India - Ex.Civil No. 515916/20166 arose before this Court.
21. The legal heirs of Siri Lal, sons and daughters, namely, Ram Prakash (decree-holder No. 1), Rajender Prasad (decree-holder No. 2), and daughters, namely, Dhanno Devi (decree-holder No. 3) and Shakuntla Devi (decree-holder No. 4) contest the present proceedings. Further, for the sake of convenience, I deem appropriate to address the parties by their rank and status in the present execution proceedings, as traced from the case record.
22. During the pendency of the present proceeding, decree-holder No. 3, namely, Dhanno Devi died on 07.09.2016 and vide order dated 25.08.2017, an application moved by the legal heirs of Dhanno Devi was allowed and her sons, namely, Satpal and Anand were impleaded as legal representatives.
23. Though, the stance by the parties in both the execution petitions have been the same but as the parties have lead their evidence in both the petitions separately, the objections in Siri Lal (since deceased) Through LRs v. Union of India - Ex.Civil No. 515915/2016 have been decided and disposed off by a separate order.
24. On 27.03.2006, the decree-holder No. 1 moved an application under Section 47 read with Section 94(e), CPC in Siri Lal (since deceased) Through LRs v. Union of India - Ex.Civil No. 515915/2016, calling upon the Court to take into consideration the 6 Previous No.: Ex. 103/2005 filed and instituted on 01.06.2005 Ex.Civil No. 515916/2016 Page No. 10/55 relinquishment deed dated 19.09.1996 signed and executed by the decree-holder Nos. 3 and 4 in favour of the decree-holder Nos. 1 and 2 and accordingly distribute the compensation between them.
25. On 08.08.2006, the decree-holder Nos. 3 and 4 filed their reply to the said application in Siri Lal (since deceased) Through LRs v. Union of India - Ex.Civil No. 515915/2016, wherein they contended that this court i.e. executing court cannot sit as an appellate court over the decision of the Hon'ble High Court of Delhi. It is averred in their reply to the objections that rights regarding title can only be determined by the civil court, which is the appropriate forum and where the same can be adjudicated by filing a civil suit. It is also urged in their response by the decree-holder Nos. 3 and 4 that executing court cannot go behind the decree and against their rights. The decree-holder Nos. 3 and 4 also averred that their brothers i.e. decree-holder Nos. 1 and 2 got their signatures fraudulently on the pretext of signing documents with regard to release of the compensation. It is urged by the decree-holder Nos. 3 and 4 that they had no intention to sign, execute and relinquish their share of compensation in favour of their brothers.
26. The Ld. Predecessor of this Court by order dated 02.05.2007 observed that in the execution petition Siri Lal (since deceased) Through LRs v. Union of India - Ex.Civil No. 515915/2016, pertaining to the component of enhancement awarded by the reference court, and in Siri Lal (since deceased) Through LRs v. Union of Ex.Civil No. 515916/2016 Page No. 11/55 India - Ex.Civil No. 515916/2016 in respect of component of enhancement awarded by the Hon'ble High Court, identical pleas have been raised on behalf of rival claimants, although no separate application/objections have been filed in the second execution No. 70/06 i.e. Siri Lal (since deceased) Through LRs v. Union of India - Ex.Civil No. 515916/2016 i.e. present execution proceedings.
27. The Ld. Predecessor vide order dated 02.05.2007 placed reliance upon Bhima Dass v. Ganeshwar Mahapatra7 and Gopinathan Nair v. Madhavan8 and held that the expression "related to the execution" is comprehensive enough to include any coercion the order in respect of which further hinders or affects the manner of carrying out of the execution of the decree. It was clearly observed in order dated 02.05.2007 that the question of apportionment of compensation by taking into account the documents, which have subsequently come into picture squarely falls within the jurisdiction of executing court in order to record and ensure full and complete satisfaction of the decree. The Ld. Predecessor held that the variation sought to be brought about through the documents raises a question of fact for establishing their sanctity and authenticity and thus their veracity can only be established by taking evidence of the parties. The Ld. Predecessor further observed that in view of the foregoing reasons, the objections cannot be disposed of without evidence of the parties and accordingly called upon them to lead evidence. 7 AIR 1984 Orissa 229 8 ILR (1984) 1 Ker 464 Ex.Civil No. 515916/2016 Page No. 12/55
28. On perusal of case record it is observed that decree-holder Nos. 1 and 2 concluded their evidence on 12.03.2010 and after which the case was posted for arguments. The learned Predecessor of this Court vide order dated 27.04.2012 observed that no opportunity was given to decree-holder Nos. 3 and 4 to lead evidence on the pending objections in terms of order dated 02.05.2007, and accordingly, the matter was listed for evidence on 17.07.2012.
Evidence led by parties
29. In order to prove his objections, the decree-holder No. 1 examined one witness, namely, Ravi Trehan, UDC as AW-1, to prove the following documents:-
S.No Documents Marked as Particulars of Documents
1. Relinquishment deed executed by Smt Ex. AW1/A Dhanno Devi in favour of Sh Ram Prakash dated 19.09.1996, bearing registration No. 9302, Additional Book No.1,Vol. No. 909, page No. 94-95.
2. Relinquishment deed executed by Smt ExAW1/B Shakuntala in favour of Sh Rajender Prasad dated 19.09.1996, bearing registration No. 9302, Additional Book No.1,Vol. No. 909, page No. 92-93.
30. On 20.04.2013, decree-holder No.1 closed his evidence. Thereafter, in compliance of order dated 02.05.2007, the decree-holder Nos. 1 and 2 were directed to lead their evidence. The decree-holder Ex.Civil No. 515916/2016 Page No. 13/55 No.1 tendered his evidence by way of affidavit - Ex.AW1/1. As per the Ex.AW1/1, the decree holder No.1 proved the following documents:
S.No Documents Marked as Particulars of Documents
1. Relinquishment deed executed by Smt Ex. AW1/A (OSR) Dhanno Devi in favour of Sh Ram Prakash dated 19.09.1996, bearing registration No. 9303, Additional Book No.1,Vol. No. 909, page No. 94-95.
2. Affidavit dated 25.09.1996 executed ExAW1/B (OSR) by the decree holder No.1 alongwith decree holders Nos. 2 to 4 which is duly attested by the Oath Commissioner and wherein sisters of Decree Holder No.1, namely, Smt Dhano, Smt Shakuntla, younger brother of decree holder, namely, Sh Rajender Prasad and decree holder No.1 had signed.
31. The decree-holder No.2 in order to prove his objections examined three witnesses, namely, Mukesh Kumar Verma, Computer Operator from Sub-Registrar-V, Mehrauli, New Delhi (DH2W1), Mahender Singh Kharab (AWDH2) and himself (DH2W2/2).
32. The witness, DH2W1, namely, Mukesh Kumar Verma, Computer Operator from Sub-Registrar-V, Mehrauli, New Delhi proved the relinquishment deed executed on 19.09.1996 by Smt Shakuntala in favour of Sh Rajender Prasad vide registration No. Ex.Civil No. 515916/2016 Page No. 14/55 9302, Book No.1, Vol. No. 909, pages 92-93 on 25.09.1996 as Ex.DH2W1/1.
33. The decree-holder No.2 tendered evidence by way of affidavit - Ex.DH2W2/A. As per the Ex.DH2W2/A, the decree holder No.2 proved the following documents:
S.No Documents Marked as Particulars of Documents
1. Relinquishment deed dated Ex. DH2W1/1 19.09.1996 and 25.09.1996 bearing registration No. 9302, Additional Book No.1,Vol. No. 909, page Nod.
92-93.
2. Affidavit/Family Settlement deed ExDH2W1/2 (OSR) dated 25.09.1996.
34. The decree-holder No.2 also examined one of the attesting witnesses, namely, Mahender Singh Kharab as AWDH-2 to prove the signing and execution of the relinquishment deed by the decree-holder Nos. 3 and 4. The decree-holder No. 2 proved the relinquishment deed dated 19.09.1996 executed on 25.09.1996 bearing registration No. 9302, Additional Book No.1,Vol. No. 909, page No. 9293 as Ex.DH2W1/1.
35. The decree-holder Nos. 1 and 2 closed their evidence on 28.10.2017.
36. As decree-holder No. 3 died on 07.09.2016 during the pendency of the present legal proceedings, both her sons were impleaded as Ex.Civil No. 515916/2016 Page No. 15/55 legal representatives and one of her sons, namely, Satpal deposed as a witness and relied upon the following documents:
S.No Documents Marked as Particulars of Documents
1. Relinquishment deed date 19.09.1996, Ex. AW1/A (OSR) bearing registration No. 9302, Additional Book No.1,Vol. No. 909, page No. 9293.
2. Affidavit dated 25.09.1996 executed ExAW1/B (OSR) by the decree holder No.1 alongwith decree holders Nos. 2 to 4 which is duly attested by the Oath Commissioner and wherein sisters of Decree Holder No.1, namely, Smt Dhano, Smt Shakuntla, younger brother of decree holder, namely, Sh Rajender Prasad and decree holder No.1 had signed.
(It is observed that Ex.AW1/A and Ex.AW1/B are two times exhibited on 12.03.2010 and 20.04.2013)
37. Decree-holder No. 4 tendered her evidence by way of affidavit
- Ex.DH4W1/A.
38. The arguments were concluded by the learned counsels for the parties on 27.05.2019 and the matter was reserved for order/judgment for 07.06.2019. During the interregnum period, decree-holder No. 1 moved a transfer application titled as R.P. Sehrawat v. Union of India
- T.A. No. 47/2019 before the Ld. District & Sessions Judge, South West District, Dwarka Courts, Delhi. The said transfer petition was disposed off by order dated 06.06.2019 passed by the Ld. District & Ex.Civil No. 515916/2016 Page No. 16/55 Sessions Judge, South West District, Dwarka Courts, Delhi. As the trial court was sent to the Ld. District & Sessions Judge, South West District, Dwarka Courts, Delhi for the disposal of the transfer application, the order was not ready on 07.06.2019 and court notice was issued to the learned counsels for the parties returnable for 09.07.2019, as certain clarifications were required.
39. On 09.07.2019, the matter was adjourned as the decree-holder No. 2 submitted that his counsel cannot attend the proceedings, as he was held up at Hon'ble High Court of Delhi. The matter stood adjourned for 31.07.2019.
40. On 31.07.2019, an adjournment was sought on the ground of non-availability of the learned counsel for the decree-holder No. 1 and the matter stood adjourned for 23.08.2019.
41. The learned counsels for decree-holder Nos. 2, 3 and 4 concluded their submissions on 23.08.2019, however on the ground of non-availability of the learned counsel for the decree-holder No. 1, the matter was adjourned at the request of the decree-holder for 11.09.2019.
42. On 11.09.2019, Mr. Kuldeep Sehrawat, learned counsel for the decree-holder No. 1 appeared and submitted that he intends to withdraw his vakalatnama. Mr. Kuldeep Sehrawat was discharged. On the same day, an application was moved seeking adjournment on the ground that a transfer petition titled as R.P. Sehrawat v. Union of India & Ors. - CM(M) No. 1323/2019 was filed by the decree-holder Ex.Civil No. 515916/2016 Page No. 17/55 No. 1 before the Hon'ble High Court and the same stands adjourned for 13.09.2019, the said application was disposed by order dated 11.09.2019 and the matter was adjourned for 18.09.2019.
43. On 18.09.2019, the learned counsel for the decree-holder No. 1 submitted that the petition titled as R.P. Sehrawat v. Union of India & Ors. - CM(M) No. 1323/2019 preferred before the Hon'ble High Court of Delhi was dismissed as withdrawn and the decree-holder No. 1 may be permitted to advance his arguments. The learned counsel for the decree-holder No.1 filed additional written submissions.
44. Penultimately, the learned counsel for the parties advanced their arguments on 19.10.2019.
Submissions by the Ld. Counsels for the parties
45. Mr. Kuldeep Sehrawat and Mr. V.K. Pandey, learned counsels for the decree-holder No. 1, Mr. Rajesh Dabas, learned counsel for decree-holder No. 2, Mr. S.K. Sangwan and Rajesh Ahlawat, learned counsels for decree-holder Nos. 3 and 4 advanced their arguments.
46. Mr. Sehrawat, learned counsel for the decree-holder No. 1 on prior dates and Mr. Pandey on a subsequent date 9 advanced their submissions at length. Their main plank of the objections of decree- holder to the claim of decree-holder Nos. 3 and 4 on the compensation amount hovered around the premise that his sisters do not have any claim, right, title and interest on the compensation amount, as not only they relinquished their respective shares in favour of their brothers by 9 Vide orders dated 06.03.2019, 13.03.2019, 30.04.2019, 27.05.2019 and 19.10.2019 Ex.Civil No. 515916/2016 Page No. 18/55 registered relinquishment deeds but also entered into a family settlement recorded by way of an affidavit.
47. The learned counsel for the decree-holder No. 1 submitted that the decree-holder Nos. 3 and 4 in their response to the objections filed by the decree-holder No. 1 has taken a stance that both their brothers (decree-holder Nos. 1 and 2 herein) played fraud upon them and the relinquishment deed was got signed by them by misleading them both. The learned counsel submitted that the ground of alleged fraud of having executed and registered relinquishment deed perpetrated upon the decree-holder Nos. 3 and 4 by the decree-holder Nos. 1 and 2 on the pretext of preparation of ration card, voter identity card is a ruse and an afterthought. The learned counsel added that the decree-holder Nos. 3 and 4 have admitted that the relinquishment deeds and the family settlement by way of affidavit does bear their thumb impressions. The learned counsel further submitted that on the other hand, the decree-holder No. 1 has not only proved the due execution but also the relinquishment deeds in accordance with law.
48. The learned counsel submitted that the said stance is hollow and the decree-holder Nos. 3 and 4 have miserably failed to lead any evidence that a fraud was played upon them and thus the objections filed by the decree-holder No. 1 be sustained and their claim to compensation be dismissed.
49. The learned counsel for the decree-holder No. 1 further submitted that despite having staked a claim that the relinquishment Ex.Civil No. 515916/2016 Page No. 19/55 deeds were signed by the decree-holder Nos. 3 and 4 on commission of fraud by their brothers but the decree-holder Nos. 3 and 4 till date have failed to challenge the said documents before competent court of law and get them cancelled through legal proceedings. The learned counsel further submitted that the executing court is not the competent court to declare, cancel the relinquishment deed. The learned counsel for the decree-holder Nos. 1 further submitted that neither any civil legal proceedings initiated by the decree-holder Nos. 3 and 4 seeking cancellation of the relinquishment deed nor any criminal complaint filed against the decree-holder Nos. 1 and 2 against the alleged fraud. The learned counsel to buttress his submissions placed reliance upon Subhash Chander Ahuja v. Ashok Kumar Ahuja10 and stated that in case due weightage is not given to executed and registered documents, bedlam and anarchy would be caused and the faith of the society at large would be eroded in the presumption in favour of registered documents.
50. The learned counsel for the decree-holder No. 1 contended that the decree-holder Nos. 3 and 4 have failed to challenge the relinquishment deeds before the competent court of law within the prescribed period of 3(three) years. The learned counsel further stated that as a matter of fact the relinquishment deeds remain unchallenged until today and thus the same have attained finality. The learned counsel placed reliance upon Tulsi Bai & Ors. v. Kewal Malhotra 10 116 (2005) DLT 125:: 2004 VII AD (Del) 241 Ex.Civil No. 515916/2016 Page No. 20/55 @Kitty & Ors.11 to add muscle to his submission that to set aside a registered document, proceedings qua the same have to be initiated within three years from the date of the document.
51. The learned counsel for the decree-holder No. 1 placed reliance upon Abhey Dewan & Ors. v. Manoj Sethi & Ors.12 on the proposition that sanctity has to be given to duly registered document, else no transaction on the basis of registered document would be free from challenge and people would lose faith and stop entering into transactions on the basis of registered documents.
52. The learned counsel for the decree-holder No. 1 shifted the weight of his arguments on the point that the sisters (decree-holder Nos. 3 and 4) had entered into a family settlement by way of an affidavit dated 25.09.1996 and to determine the object and purpose of the settlement arrived at amongst the family members, the intent and purpose of document has to bee seen and determined from the contents of the documents. The learned counsel placed reliance upon Kale & Others v. Deputy Director of Consolidation 13 on the proposition that family settlement need not be compulsorily registered.
53. Lastly, learned counsel for the decree-holder No. 1 placed reliance upon the pronouncement by the Apex Court in Ram Charan Das v. Girja Nandini Devi & Ors.14 and submitted that recitals, contents of a document explain the intent and purpose of a document 11 64 (1996) DLT 751 12 202 (2013) DLT 392 13 AIR 1976 SC 807 14 AIR 1966 SC 323 Ex.Civil No. 515916/2016 Page No. 21/55 and in an action on such instrument/document, the same would operate an estoppel. The learned counsel submitted that now it does not lie in the mouth of the he sisters of the decree-holder Nos. 1 and 2 to resile from the relinquishment deed and the family settlement.
54. Mr. Rajesh Dabas, learned counsel for the decree-holder No. 2 adopted the arguments of the decree-holder No. 1 and submitted that the objections lodged by the decree-holder Nos. 1 and 2 be allowed against the application moved by the decree-holder Nos. 3 and 4. The learned counsel added that the application seeking claim upon the compensation moved by the decree-holder Nos. 3 and 4 be dismissed, as the same is untenable in the eyes of law.
55. Per contra, Mr. S.K. Sangwan and Rajesh Ahlawat, learned counsels for decree-holder Nos. 3 and 4 vociferously contended the submissions advanced by the learned counsels for the decree-holder Nos. 1 and 2. The learned counsels for the decree-holder Nos. 3 and 4 submitted that the objections lodged by the decree-holder No. 1 and 2 are nothing but an utter abuse of process of law and the same have been lodged with the sole purpose of depriving the daughters of Siri Lal their right and entitlement to the compensation amount and ironically the same has been opposed by none other than their full blood brothers.
56. Mr. Sangwan, learned counsel argued that the admitted position amongst the parties is that the properties belonged to their father. The learned counsel submitted that the father of the parties died during the Ex.Civil No. 515916/2016 Page No. 22/55 pendency of the appeals before the Hon'ble High Court of Delhi against the judgments of Ld. Addl. District Judge on reference petition under Section 18 of LA Act.
57. The learned counsel further submitted that it was on an application moved by the decree-holder Nos. 1 and 2, where one of the brothers propounded a will dated 28.05.1990, as per which the rights of the sisters were superseded. The Hon'ble High Court directed the brothers to lead evidence before the Ld. Addl. District Judge and the finding was to be sent back accordingly. The learned counsel submitted that no will dated 28.05.1990 was produced by the decree- holder No. 1 before any court but on the pretext of subsequent development an application was moved before the Hon'ble High Court and thereafter on the pretext of subsequent development that both the sisters have released their share in the compensation amount in favour of their brothers by way of relinquishment deeds and a purported family settlement/affidavit.
58. Mr. Sangwan, learned counsel for the decree-holder Nos. 3 and 4 submitted that both the relinquishment deeds and the affidavits are marred by fraud, deception and illegality. The learned counsel added that the signatures of the decree-holder Nos. 3 and 4 were appended on the relinquishment deeds and the affidavits by fraud and misconception that the decree-holder Nos. 3 and 4 were told that their signatures were required for preparation of voter identity card, ration card, etc. Ex.Civil No. 515916/2016 Page No. 23/55
59. The learned counsel for decree-holder Nos. 3 and 4 contended that no weightage can be given to the affidavits and under no manner can they be construed as family settlement. The learned counsel further submitted that the decree-holder Nos. 1 and 2 in their application seeking mutation and the accompanying affidavit suppressed material fact that there are 4 legal heirs of Siri Lal and the property stood mutated in their names.
60. The learned counsel further contended that neither the decree- holder Nos. 1 and 2 nor the Advocate, namely, Mr. Mahender S. Kharab ever disclosed the true nature and contents of the documents. The learned counsel added that the decree-holder Nos. 1 and 2 took advantage of the illiteracy of their sisters and armed themselves by the bogus, forged and fabricated documents.
61. Mr. Sangwan, learned counsel for the decree-holder Nos. 3 and 4 with regard to the contention of the learned counsel for the decree- holder Nos. 1 and 2 that the decree-holder Nos. 3 and 4 have not challenged the relinquishment deeds and the affidavits before the competent court of law added that the scope of execution petition and the objections therein are quite wide and holistic and the same cannot be read in a pedantic manner. The learned counsel submitted that this court is the competent court and forum to test the veracity and genuineness of the relinquishment deeds, affidavit and rule upon their validity and binding nature, if any.
Ex.Civil No. 515916/2016 Page No. 24/5562. The learned counsel for the decree-holder Nos. 3 and 4 submitted that the dishonest intention of the decree-holder No. 1 is writ large and evident from his stance before the Hon'ble High Court in the appeals that their father bequeathed the properties in the favour of his sons to the exclusion of the daughters, however, the will dated 28.05.1990 has not seen the light of the day. The learned counsel further added that the evidence led by the decree-holder Nos. 1 and 2 failed to prove that any family settlement was arrived amongst the siblings.
63. With regard to proving the relinquishment deeds, the learned counsel submitted that overt contradictions in the testimonies of decree-holder Nos. 1 and 2 and the draughtsman, namely, Mahender Singh Kharab have surfaced that it is apparent that the relinquishment deeds and affidavit are forged, fabricated and self-serving documents, who have no validity in the eyes of law. The learned counsel pointed out that from the testimonies of decree-holder No. 1's own witnesses there is a contradiction with regard to the place of preparation and signing of the purported documents, reading over of the documents to the decree-holder Nos. 3 and 4.
64. Mr. Sangwan, learned counsel for the decree-holder Nos. 3 and 4 submitted that the whole idea of the sisters releasing, relinquishing their share in the compensation in favour of their brothers by relinquishment deeds is hit by the embargo of Section 6 of the Transfer of Property Act, 1882. The learned counsel stressed that Ex.Civil No. 515916/2016 Page No. 25/55 property law abhors spec succession, as in what was not there could not have been transferred. The learned counsel added that there was no award at the time, when purported relinquishment deeds and affidavits were signed, executed and registered. The learned counsel concluded his submissions on the note that no case for allowing the objections filed by the decree-holder Nos. 1 and 2 to the application of the decree-holder Nos. 3 and 4 seeking release of compensation equally amongst the 4(four) legal heirs of Siri Lal is made out. The learned counsel prayed that the objections be dismissed with exemplary costs and the same be awarded to the decree-holder Nos. 3 and 4.
65. Mr. Pandey, learned counsel for the decree-holder No. 1 rejoined his arguments and submitted that the decree-holder No. 1 is presenting his claim only the basis of the relinquishment deed executed by his sister and releasing her share in the compensation in his favour.
66. The learned counsel further submitted that once there is an acknowledgement and admission of a document, which has been marked and exhibited in an evidence, no party can challenge the said document at a later stage.
67. The learned counsel for the decree-holder No. 1 submitted that no issues have been framed by the Court with regard to the objections flagged by the decree-holder Nos. 1 and 2 and thus no objection can be raised by the learned counsel for the decree-holder Nos. 3 and 4. The learned counsel further submitted that from the testimony of Ex.Civil No. 515916/2016 Page No. 26/55 decree-holder No. 1 it can be easily inferred that no suggestion was made to the witness during his cross-examination that the relinquishment deed in his favour were forged and fabricated.
68. With regard to the contradictions alleged in the testimony of the witnesses of the decree-holder No. 1, Mr. Pandey learned counsel for the decree-holder No. 1 submitted that there is a misunderstanding between place of signing of relinquishment deed as because substantial time had lapsed between the date of signing and registration of the relinquishment deed and the date of recording of the testimony of the witness.
69. The learned counsel submitted that the arguments advanced on behalf of the learned counsel for the decree-holder Nos. 3 and 4 that their signatures on the documents were got fraudulently and under wrong impression are self-serving arguments. The learned counsel concluded his arguments on the note that till date no complaint or appropriate legal proceedings have been filed by the decree-holder Nos. 3 and 4 before the competent court with regard to the relinquishment deeds and affidavits be cancelled, declared null and void.
Findings and observations
70. I, have carefully perused and skimmed through the case record, trial court record, deliberated and considered over the submissions advanced by the learned counsel for the parties.
Ex.Civil No. 515916/2016 Page No. 27/5571. Section 53 of the LA Act, provides that the provisions of CPC shall apply to all proceedings before the Court under the LA Act.
72. This Court observes that the decree-holder Nos. 3 and 4 invoked the jurisdiction of this Court by moving an application seeking release of enhanced compensation to them, as per the judgment dated 23.08.2001passed by the Hon'ble High Court of Delhi in Siri Lal v. Union of India - RFA No. 287/1978.
73. During the pendency of both the appeals before the Hon'ble High Court, Siri Lal died on 22.08.1990. Siri Lal left behind four class I legal heirs, two sons and two daughters. With the demise of Siri Lal, both the appeals were abated.
74. Thereafter, both the sons preferred separate applications before the Hon'ble High Court of Delhi seeking setting aside of abatement order along with application seeking condonation of delay in moving such applications.
75. During the pendency of the said applications, one of the sons of Siri Lal, namely, Ram Prakash (decree holder No.1 herein) stated before the Hon'ble High Court that Siri Lal died testamentary and as per his will dated 28.05.1990, both the daughters have been excluded and Siri Lal bequeathed his properties in favour of his sons.
76. An adequate issue, "whether the deceased Mr Siri Lal executed the valid Will, and if so, to what effect?" was framed by the Hon'ble High Court vide order dated 09.11.1994. The sons of Siri Lal were directed to lead evidence before the Ld. Addl. District Judge, Delhi to Ex.Civil No. 515916/2016 Page No. 28/55 prove the will and the Ld. Addl. District Judge, was directed to submit his report to the said effect to the Hon'ble High Court.
77. The Ld. Addl. District Judge submitted his report that neither the will was produced nor any evidence was led by the sons of Siri Lal. At the same time, the sons of Siri Lal moved an application before the Hon'ble High Court of Delhi in both the appeals stating that as a subsequent development, their sisters have executed a relinquishment deed in their favour, as per which they have released their right, interest and claim in the compensation amount. Whereas, the sisters contended that their brothers took advantage of the illiteracy and played fraud upon them and sought their signatures/thumb impressions on the relinquishment deed under the pretext that they were signing documents for preparation of voter identity card, ration card, et cetera.
78. The Hon'ble High Court of Delhi by its order dated 27.11.1997 passed in both the appeals observe that no useful purpose would be served awaiting the findings on the issue framed on 09.11.1994. The Hon'ble High Court further observed that the question of entitlement to compensation can be got settled by the parties in appropriate proceedings more particularly when the will set up by one of the sons, prima facie do not make any provision for the amount of compensation of the land under acquisition. The Hon'ble High Court of Delhi observed that the said will even if proved, cannot govern the amount of compensation.
Ex.Civil No. 515916/2016 Page No. 29/5579. The Hon'ble High Court not only condoned the delay in moving the application seeking setting aside of abatement of appeals but also directed the legal heirs of Siri Lal be substituted in both the appeals. The Hon'ble High Court in its order dated 27.11.1997 observed that the said order will not preclude Ram Prakash (decree-holder No.1 herein) from setting up claim to the amount of compensation on the basis of the alleged will or to both Ram Prakash (decree-holder No.1 herein) and Rajendra Pershad (decree-holder No.2 herein) in establishing their rights on the basis of the alleged relinquishment deed in appropriate court of law, in which it would be open to the daughters to contest their claim on merits.
80. Thereafter, the daughters of Siri Lal preferred an application before this Court seeking release of enhanced compensation by the referral court in its judgment dated 10.02.1978 titled as Siri Lal v. Union of India - Ex.Civil No. 515915/2016.15
81. This Court observes from the perusal of order dated 02.05.2007 that the Ld. Predecessor of this Court observed that the outcome of the objections in Siri Lal v. Union of India - Ex.Civil No. 515915/201616 is material for the present legal proceedings and both of them be put up together. It is observed that both the execution petitions have been listed together thereafter and the parties examined the same witness in both the legal proceedings. The objections filed by the sons of Siri Lal have been treated as objections filed in the present legal proceedings. 15 Previous No.: Ex. 03/14/1998 filed on 29.04.1998 and instituted on 12.05.1998 16 ibid.
Ex.Civil No. 515916/2016 Page No. 30/5582. The executing Court has plenary powers to determine all questions relating to execution, discharge or satisfaction of the decree. The provision covers all questions which arise before as also after the decree has been executed. Such questions, however, must have arisen subsequent to the passing of the decree. In case of ambiguity in the decree, the executing Court can construe the decree with a view to ascertaining circumstances under which the words were used. It can also consider whether by subsequent development, a decree which was executable has ceased to be executable by such development. An executing Court can mould the relief keeping in mind changed circumstances. If a decree consists of more than one part, valid and invalid, if both the parts are severable, the executing Court can execute and implement the valid part thereof. The Court to which a decree is sent for execution has the same powers in executing such decree, as if it had been passed by itself. It is the power and duty of the executing Court to see that the defendants give the plaintiff the very thing the decree directs and nothing more but nothing less.
83. At the same time, however, the Court executing the decree has no jurisdiction in matters which could be determined only by the Court which passed the decree. In other words, the powers to be exercised by the executing Court relate to procedure to be followed in execution of a decree and do not extend to substantive rights of the parties. The executing Court can neither question legality or propriety of the decree, nor can it vary, add or amend the terms thereof. In short, Ex.Civil No. 515916/2016 Page No. 31/55 the executing Court cannot convert itself into the Court passing the decree.
84. An executing Court has no power to go behind the decree. It has to see the decree as it is and execute it in accordance with the terms therein. It cannot question correctness or legality of the directions. Where the terms of the decree are vague or ambiguous, it is the duty of the executing Court to interpret the decree with a view to find out and ascertain the meaning of the terms used in the decree. If the executing Court finds that there was an inherent lack of jurisdiction on the part of the Court passing the decree, it cannot execute the decree. Such inherent lack of jurisdiction must be patent and must appear on the face of the record.
85. Post the 1976 amendment of the CPC, the objections filed by an objector in an execution proceeding are to be dealt with by the executing Court and no separate suit is maintainable to deal with the objections. Order XXI, CPC is a Code in itself which extensively and exclusively deals with the execution of decrees and orders.
86. The scheme of Order XXI of the Code of Civil Procedure, 1908 clearly enumerates that when an application has been made, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree-holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination must be conclusive between the parties, as if Ex.Civil No. 515916/2016 Page No. 32/55 it was decree subject to a right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. Thus, the scheme of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or person claiming right, title and interest in the property in execution - See Nooruddin v. Dr. K.L. Anand.17
87. Keeping the above scheme and position in law foisted, I am of the considered opinion that the daughters of Siri Lal have rightly moved an application seeking release of compensation in the capacity of being legal heirs of Siri Lal. However, the sons of Siri Lal have filed objections against the application moved by the daughters of Siri Lal seeking release of compensation amount. The sons in their objections have urged that the daughters of Siri Lal released and relinquished their respective shares in the compensation amount in the favour of the sons of Siri Lal.
88. This Court observes that the challenge to the application moved by the daughters of Siri Lal seeking release of compensation in their favour has been flanked by the sons of Siri Lal on the strength of purported relinquishment deeds and affidavit stated to be family settlement. The daughters of Siri Lal in response to the objections lodged by the sons of Siri Lal have stated that their signatures/thumb impressions were sought on the said relinquishment deeds and 17 (1995) 1 SCC 242, p.249 Ex.Civil No. 515916/2016 Page No. 33/55 affidavit fraudulently by their brothers on the pretext of preparation of voter identity card, ration card.
89. In short, the challenge to the application seeking release of compensation amount is by the sons of Siri Lal, which is based on the strength of the relinquishment deed. Thus, it is not incumbent upon the daughters to seek declaration, cancellation of the relinquishment deeds, which have been projected as the bedrock of challenge to their compensation application by their brothers in the form of present objections, by a separate legal proceeding. This Court observes and hold that the challenge to the veracity and genuineness of the relinquishment deeds and affidavit can very well be dealt by this Court, as it is the sons who have challenged and objected to the application filed by the daughters seeking release of compensation. This Court holds and rules that deciding an application seeking release of compensation and deciding objections to the said application are very well encompassed within the scope of the execution proceedings.
90. Thus, the contention of the decree-holder Nos. 1 and 2 that the decree-holder Nos. 3 and 4 application be dismissed, as they failed to challenge the relinquishment deeds and affidavits before the competent Court of law are negated. The application moved by the daughters of Siri Lal seeking release of enhanced compensation in terms of judgment dated 10.02.1978 passed by Sh. Harkishan Malik, Addl. District Judge, Delhi is held maintainable and the same can be decided by this Court in capacity of being an executing Court.
Ex.Civil No. 515916/2016 Page No. 34/5591. With the challenge to the maintainability of the application seeking release of compensation on the basis of the objections, wherein it has been urged that the daughters had released their share in the compensation in favour of the sons by way of relinquishment deeds and affidavit and with the relinquishment deeds remaining unchallenged before competent court being thwarted by this Court by the observations and findings in the preceding paragraphs of this order. I would now move forward and deal with the other contention of the parties.
92. This Court observes that the present application seeking release of compensation was moved by the decree-holder Nos. 3 and 4 on 29.04.1998 not only within expiry of period of slightly over 5(five) months and 2(two) days from the order dated 27.11.1997 passed in both the appeals but also during the pendency of both the appeals, wherein Siri Lal had challenged the judgment dated 10.02.197818 passed in a reference petition under Section 18 of the LA Act titled as Shiri Lal v. Union of India - LAC No. 74/73 and judgment dated 25.01.197819 passed in LAC No. 487/72. Siri Lal was aggrieved by the said judgments and had sought further enhancement of compensation before the Hon'ble High Court.
18 Judgment dated 10.02.1978 challenged before Hon'ble High Court of Delhi in RFA No. 287/1978 19 Judgment dated 25.01.1978 challenged before Hon'ble High Court of Delhi in RFA No. 224/1978 Ex.Civil No. 515916/2016 Page No. 35/55
93. Further, the date of death of Siri Lal is not disputed amongst the parties i.e. 22.08.1990. This Court observes that with the present execution proceedings having set in roll by the daughters of Siri Lal on 29.04.1998 i.e. date of filing of the present application, which was within a period of 7 years, 8 months and 7 days from the date of his death, under no manner can the limitation period be hinged to the objections, wherein the sons of Siri Lal have based their challenge to the daughters' application seeking release of compensation application. Above all, the application seeking release of compensation was moved by the daughters of Siri Lal on 29.04.1998 and that point in time, the challenge to the judgment dated 10.02.1978 by way of an appeal under Section 54 of LA Act before the Hon'ble High Court of Delhi titled as Siri Lal v. Union of India - RFA No. 287/1978 was pending, thus under no circumstances can this Court hold that the claim to the compensation by the daughters of Siri Lal was time barred.
Whether the daughters of Siri Lal have any right to stake claim to the compensation awarded to Siri Lal under the acquisition proceedings?
94. Though, the parties had often sought adjournment on the ground of exploring amicable resolution of their dispute but the sibling rivalry in the present legal proceedings and the effusiveness displayed by the learned counsels for the parties is afresh in my mind.
95. The counsel for the parties at length argued in favour and against the objections filed to the application seeking release of Ex.Civil No. 515916/2016 Page No. 36/55 compensation, therefore, I deem appropriate to rely upon one of the oldest doctrines, for not only deciding the objections to the execution proceedings but also the application seeking release of compensation.
96. The doctrine of ubi jus ibi idem remedium, which means where there is a right, there is a remedy, is of primordial importance to answer the question and challenge posed by an application moved by the daughters, wherein they have sought release of compensation to them and also to the objections lodged by the sons to the daughters' application, as the sons have urged in their objections that the daughters of Siri Lal released their respective shares in their favour.
97. The judicial record of reference petition under Section 18 of the LA Act titled as Shiri Lal v. Union of India - LAC No. 74/73 from which arose the present execution proceeding is tagged with the connected execution petition titled as Siri Lal (since Deceased) Through LRs v. Union of India - Ex.Civil No. 515916/2016. On perusal of the Award No. 30/1972-73 passed by Mr. G.Bahadur, Land Acquisition Collector (ME), Delhi, petition under Section 18 of the LA Act and the judgment dated 10.02.1978, this Court observes that the land pertaining to Siri Lal ad-measuring 29bighas 12biswas was situated under Khasra Nos. 645(3-4), 646(4-16), 678(4-16), 679(4-16), 680(5-2), 681/1(4-10) and 689/1(2-8), village Mahipalpur, Delhi. In short, the land in question acquired from Siri Lal was an agricultural land.
Ex.Civil No. 515916/2016 Page No. 37/5598. This Court observes that Siri Lal did present an execution petition on 23.03.1979 seeking release of compensation to the tune of ₹35.520.00paise plus ₹5328.00 paise plus 15% solatium plus interest under Section 28 of the LA Act from the date of possession till the payment plus interest under Section 4(3) LA (Amendment and Valuation) Act 1967 from 23.01.1968 to the date of payment in Court.
99. Further, on careful perusal of Siri Lal's petition under Section 18 of the LA Act, it is observed that Siri Lal in paragraph No. 14 of the petition had averred that the Delhi Land Reforms Act, 1954 stood superseded by the Delhi Development Act, 1957 because it was a "Development Area".
100. This Court observes that the Ld. Addl. District Judge by order dated 27.09.1973 and 08.07.1975 held the applicability of Delhi Land Reforms Act, 1954 to the land in dispute. The orders dated 27.09.1973 and 08.07.1975 passed in Shiri Lal v. Union of India - LAC No. 74/73 are reproduced in verbatim, as under:
"Present: Shri H.L. Dutt adv. for petitioner.
Govt. Adv. for UOI.
On the last date of hearing, I happened to be on leave. Written statement filed. Counsel for the petitioner admits the applicability of the Delhi Land Reforms Act to the land in dispute at the relevant time without admitting its adverse effect on its claim. Perusal of theaward(sic) file is necessary for deciding preliminary objections No. 2. To come up on 21.1.1974 forward file.Ex.Civil No. 515916/2016 Page No. 38/55 101.
102. Sd/-
103. ADJ 27.9.1973."
"Present: Shri H.L. Dutt, Advt.
Shri Rup Chand Govt. Advt.
Award file not produced. Counsel admits
the applicability of Delhi Land Reforms Act to the land in dispute. Issues be framed:
(a) Whether the p titinoer(sic) lodged claim for item s other than land before the Land Acquisition Collector in respondscee(sic) to notices u/s 9 and 10 of the Act,?If so, to what extent and if not what effect?
(b) To what enhancement in compensation, if any, is the petitioner entitled on account of land, tube-well, superstructure and trees?
To come up for petitioner's evidence on 29.1.76.
Sd/-
ADJ 8.7.75."
[Emphasis added by underlining and by highlighting of text]
104. Before, I proceed further, I would like to observe that Siri Lal died prior to 2005 i.e. 09.09.2005, the date when the amendments to the Hindu Succession Act, 1956 came into force, as per which not only right of daughters as a coparcener was recognised but also the Ex.Civil No. 515916/2016 Page No. 39/55 overriding effect of the Delhi Land Reforms Act, 1954 over the Hindu Succession Act, 1956 with regard to succession of Hindus was denuded.
105. This Court observes that with the land in question being agricultural land and the succession to the compensation would be governed, as per the provisions of the Delhi Land Reforms Act, 1954.
106. At this stage, I would place reliance upon the judgment passed by the Division Bench of the Hon'ble High Court of Delhi in the case of Nirmala & Others v. Government of NCT of Delhi & Others,20 wherein His Lordship Badar Durrez Ahmed, J. (As His Lordship then was) surveyed the development of succession law pertaining to the Hindus prior and post the Amendment of 2005. The relevant extract of the judgment is reproduced, as under:
"5. Before we consider the issue at hand, it would be pertinent to set out the legislative developments. The DLR Act came into force on 20.07.1954. Its preamble states that it is "[a]n Act to provide for modification of zamindari system so as to create an uniform body of peasant proprietors without intermediaries, for the unification of the Punjab and Agra systems of tenancy laws in force in the State of Delhi and to make provision for other matters connected therewith". Section 50 of the Act provided that only male members of a family had the primary right of succession to agricultural land; it excluded female members from succeeding to such land holdings when male lineal descendants were available. Section 50 of the DLR Act is reproduced hereunder:
20 W.P.(C) No. 6435/2007 date of judgment 04.06.2010 Ex.Civil No. 515916/2016 Page No. 40/55 "50. General order of succession from males. - Subject to the provisions of section 48 and 52, when a Bhumidhar or Asami being a male dies, his interest in his holding shall devolve in accordance with the order of the succession given below:
(a) male lineal descendants in the male line of the descent:
Provided that no member of this class shall inherit if any male descendant between him and the deceased is alive:
Provided further that the son or sons of a predeceased son howsoever low shall inherit the share which would have devolved upon the deceased if he had been then alive;
(b) widow;
(c) father;
(d) mother, being a widow;
(e) step mother, being a widow;
(f) father's father
(g) father's mother, being a widow;
(h) widow of a male lineal descendant in
the male line of descent;
(i) unmarried daughter;
(j) brother, being the son of same father
as the deceased;
(k) unmarried sister;
(l) brother's son, the brother having been
a son of the same father as the
deceased;
(m) father's father's son;
Ex.Civil No. 515916/2016
Page No. 41/55
(n) brother's son's son;
(o) father's father's son's son;
(p) daughter's son."
6. Thus, clause (a) of Section 50 requires that whenever a male bhumidhar or asami dies, the property shall first devolve upon the male lineal descendants in the male line of descent, howsoever low to the exclusion of female descendants. Given the fact that the chances of there being no male lineal descendants at all are extremely low, the property in all likelihood will not devolve upon the female descendants in any case.
7. The Hindu Succession Act, 1956 (hereinafter referred to as "the HSA") was passed and came into force on 17.06.1956. The preamble of the HSA emphasized that it was '[a]n Act to amend and codify the law relating to intestate succession among Hindus'. However, Section 50 of the DLR Act was protected by Section 4(2) of the HSA which made it clear that nothing contained in the HSA would affect any provision of law for the time being in force which provided for the prevention of fragmentation of agricultural holdings or for the fixation of ceiling or for the devolution of tenancy rights in respect of such holdings. Section 4(2) of the HSA is reproduced hereunder:
"4. Overriding effect of Act. (1) xxxx xxxx xxxx xxxx xxxx (2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the Ex.Civil No. 515916/2016 Page No. 42/55 devolution of tenancy rights in respect of such holdings."
8. In 1964, the DLR Act was placed in the Ninth Schedule of the Constitution of India (Entry 61), by virtue of the Constitution (Seventeenth Amendment) Act, 1964, with effect from 20th June 1964. Article 31B of the Constitution provides that no Act that has been placed in the Ninth Schedule can be the subject matter of challenge on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by the provisions of Part III of the Constitution. Article 3IB reads as under:-
"Art. 31B. Validation of certain Acts and Regulations.- Without prejudice to the generality of the provisions contained in Article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force."
(emphasis supplied)
9. In 2005, the HSA was amended by Parliament by passing the Hindu Succession (Amendment) Act, 2005 (hereinafter referred to as "the Amendment Act"), which Ex.Civil No. 515916/2016 Page No. 43/55 came into force on 09.09.2005. By virtue the Amendment Act, Section 4(2) of the HSA was omitted.
[Emphasis added by underlining and by highlighting of text]
107. On reading and application of the ratio of the aforesaid pronouncement of the Division Bench of the Hon'ble High Court in Nirmala & Others v. Government of NCT of Delhi & Others,21 it can be safely held that at the time of the demise of Siri Lal i.e. 22.08.1990, Sec 50 of the Delhi Land Reforms Act, 1954 did enjoy the immunity granted by Section 4(2) of the Hindu Succession Act, 1956 to the laws of succession in respect of agricultural land.
108. I, also place reliance upon the pronouncement of the Hon'ble High Court of Delhi in Ram Mehar v. Mst. Dakhan,22 wherein the Division Bench answered the question whether the rule of succession in the Delhi Land Reforms Act, 1954 or the rule of succession in the Hindu Succession Act, 1956 would govern the parties. The Division Bench answered the question as:
"19. In view of the conclusion that the Delhi Land Reforms Act provides for the prevention of the fragmentation of agricultural holdings and also, at the material time fixed ceilings on agricultural holdings and also dealt with the devolution of tenancy rights on such holdings, it must be held that this law is saved by section 4(2) of the Hindu Succession Act and is not repealed by the provisions of the Hindu Succession Act. 21 ibid.
22 1973 (9) DLT 44 Ex.Civil No. 515916/2016 Page No. 44/55 This would mean that the rule of succession governing Bhumidars is to be found in Section 50 of the Delhi Land Reforms Act and not in the Hindu Succession Act, 1956."
[Emphasis added by underlining and by highlighting of text]
109. For better understanding of situation which existed prior to the passing of the Hindu Succession Act, 1956 and the Delhi Land Reforms Act, 1954, I would seek aide of the judgment passed by the Division Bench of the Hon'ble High Court of Delhi in Kalawati v. Union of India,23 in an appeal arising out of a judgment passed by the Ld. Addl. District Judge on a reference sent by the LAC under Section 30 and 31 of the LA Act, where the cousin sister claimed 1/3 rd share in the compensation given for a part of the land in village Bawana, Delhi, which was acquired by the Union of India. The acquired land was in the name of three brothers, namely, Sohan Lal, Bhudatt and Bishan Dutt, who were also jointly declared as bhumidhars of the aforementioned land under the Delhi Land Reforms Act, 1954. All the brothers have since died and the daughter of one of the brothers, namely, Sohan Lal, who died in the year 1952 i.e. before the promulgation of Hindu Succession Act, 1956. The Ld. Addl. District Judge held that the daughter of Sohan Lal would not be entitled to any compensation, as there was no law under which the daughter could inherit share in the property of her father after father's death and under the provisions of the Land Reforms Act, share of Sohan Lal devolved 23 LA.A. No. 650 of 2008 and CM No. 9226/2008 date decision 27.01.2009 Ex.Civil No. 515916/2016 Page No. 45/55 upon the sons of Bhudatt and Bishan Dutt, who are the male members in the family.
110. The Division Bench judgment was authored by His Lordship, A.K. Sikri (As His Lordship then was), who affirmed the judgment passed by the Ld. Addl. District Judge for other reasons. The relevant extract of the judgment passed in Kalawati v. Union of India,24 is reproduced as under:
"17. However, in the present case it is not necessary to decide this issue at all. Reason is simple. The judgment of the learned ADJ needs to be affirmed for other reasons, about which there is hardly any challenge. In the facts of this case, where the appellant was not concerned with the land after her marriage, it is the respondents No. 2 to 4 who remained in cultivatory possession thereof and became bhumidars under the provisions of the Land Reforms Act. Even the land stands mutated in their name. It is this Act which governs the field and on the basis of rights accrued to the persons in possession of the land under this Act that the compensation payable to them would be determined. There is no concept of 'ownership' over the land in the scheme of the Land Reforms Act. The compensation under the Land Acquisition Act is payable to the bhumidars declared as such under the Land Reforms Act On that reckoning, it is the respondents who would be entitled to compensation to the exclusion of the appellant.
18. On this ground alone, therefore, this appeal is bound to fail. We, accordingly, dismiss this appeal, but leave the parties to bear their own costs."
24 ibid.
Ex.Civil No. 515916/2016 Page No. 46/55[Emphasis added by underlining and by highlighting of text]
111. This Court observes and holds that the ratio of Ram Mehar v. Mst. Dakhan,25 apply on its four to the case at hand and the applicable rules of succession on the date of demise of Siri Lal i.e. 22.08.1990 would be under the Delhi Land Reforms Act, 1954, which means that the married daughters of Siri Lal cannot stake any claim to the compensation, as the sons of Siri Lal are very much alive. It is also observed that with the decree-holder No. 3 having died during the pendency of the present execution proceedings and with her sons being impleaded, even they cannot claim any right, title and interest as daughter' sons -as the sons of Siri Lal enjoy entitled primacy over them - See Section 50(a) and (p) of the Delhi Land Reforms Act.
112. To decide the objections to the application seeking release of compensation on merits, this Court observes that the decree-holder Nos. 1 and 2 duly proved the signing and execution of the relinquishment deeds. It is observed that one of the attesting witnesses to the relinquishment deeds did testify in favour of the decree-holder Nos. 1 and 2. It is observed that the decree-holder Nos. 3 and 4 urged that the relinquishment deeds were got signed and executed by their brothers by playing fraud upon them, who not only took advantage of their innocence but also illiteracy.
113. The legal proceedings of civil nature are decided on balance of probabilities. The decree-holder Nos. 1 and 2 duly proved the signing 25 1973 (9) DLT 44 Ex.Civil No. 515916/2016 Page No. 47/55 and execution of the relinquishment deed, as per which the daughters of Siri Lal released their respective shares in the compensation in favour of the sons of Siri Lal, It is observed that the decree-holder Nos. 3 and 4 other than themselves did not examine any other witness. As a matter of fact, on behalf of the decree-holder No. 3, who had died during the pendency of the present legal proceedings, one of her sons deposed as a witness. It was no where urged by the decree-holder No. 3 that her son had any knowledge or was present when the impugned relinquishment deeds were signed and executed.
114. Section 17 of the Indian Contract Act, 1872 defines fraud as means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract - (1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; (2) the active concealment of a fact by one having knowledge or belief of the fact; (3) a promise made without any intention of performing it; (4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent.
115. The effect of fraud is that a contract, consent to which is obtained by fraud, is voidable. The innocent party has the option to rescind the contract, or to affirm it and insist that he be put in the position in which he would have been if the representations were true.
Ex.Civil No. 515916/2016 Page No. 48/55116. A party relying on fraud must plead and prove all specific particulars of the fraud with the dates and items. The allegations of fraud must be clear, definite and specific.
117. 'Fraud' being very secretive in its movements, is not capable of being established by positive and tangible evidence. It is, therefore, sufficient if the evidence given is such as may lead to an inference that fraud must have been committed, in most cases by giving circumstantial evidence. The burden of establishing fraud is on the person who alleges it. Fraud must be established beyond reasonable doubt, but can be established by balancing probabilities and bearing in mind the presumption of innocence and honesty. The level of proof required is extremely high. Fraud cannot be established merely on the basis of suspicion and averments in the pleadings, there must be material evidence to prove it - See Svenska Handelsbanken v. Indian Charge Chrome26. Merely because a transaction is unfair it does not imply fraud, in the absence of any other evidence.
118. The dictum in law is as old as the hills, one who avers must prove. This Court observes that no evidence has been led by the decree-holder Nos. 3 and 4 to prove their allegations of fraud.
119. This Court observes that the learned counsel for the decree- holder Nos. 3 and 4 did argue that there are contradictions with regard to the place of signing of the relinquishment deeds amongst the witnesses of decree-holder No. 1 and decree-holder No. 2. This Court 26 (1994) 1 SCC 502 Ex.Civil No. 515916/2016 Page No. 49/55 observes and agrees with the submission of the learned counsel for the decree-holder No. 1 that the time lapse between the signing of the relinquishment deeds and the date of recording of deposition of witnesses was almost 2(two) decades apart and difference in the versions of place of signing of the relinquishment deeds cannot disrobe the objections filed by the sons of Siri Lal.
120. With regard to the submissions advanced by the learned counsel for the decree-holder Nos. 3 and 4 that the relinquishment deeds are mere piece of papers, as the compensation purported to be released is hit by spes successionis under Section 6 of the Transfer of Property Act, 1882, as the same was not a transferable property.
121. I, am not impressed by the submissions of the learned counsel for the decree-holder Nos. 3 and 4 on the said count. Spes successionis means expectation of succession, it is a possibility of getting property in future through succession. Spes successionis includes --
(a) chance of an heir apparent succeeding to an estate.
(b) chance of a relation obtaining a legacy on the death of a kinsman, or
(c) any other mere possibility of a like nature.
Section 6 of the Transfer of Property Act, 1882 says that spes successionis is not transferable. Heir apparent is not a legal heir but apparently an heir. Heir apparent is that person who would be the heir if he survived the propositus and if the propositus dies intestate. Propositus is a deceased person whose property the heir-apparent is Ex.Civil No. 515916/2016 Page No. 50/55 going to inherit. When the propositus dies intestate i.e. without making any will, the heir will inherit the property.
122. The chance of a relation obtaining a legacy on the death of a kinsman is not transferable. Legacy means expectancy of getting certain property under a will. A will becomes operative only after the death of the testator. Expectancy to receive legacy is uncertain because the legatee may or may not survive the testator and the testator may have changed the name of the legatee in his last will. It is for that reason the chance of a legacy has been made non-transferable.
123. Spes successionis excludes, any other possibility of a like nature from the purview of transferability. If there is any other possible property or interest which is as uncertain as spes successionis or legacy, that too will not be transferable. Any property which is merely a future uncertain possible interest should not be made a transferable property. This Court observes that the contention of the learned counsels for the decree-holder Nos. 3 and 4 that the release of the compensation amount by the relinquishment deeds hit by spes successionis, under Section 6 of the Transfer of Property Act, 1882 flies in face of the Section 50 of the Delhi Land Reforms Act, 1954.
124. As held above that the daughters of Siri Lal have no vested right to claim the compensation, as the same devolved upon the sons of Siri Lal to the exclusion of his daughters, to determine answers to the question of the relinquishment deeds and the affidavits signed and executed by them on commission of a fraud played upon them by the Ex.Civil No. 515916/2016 Page No. 51/55 sons of Siri Lal would be a mere academic exercise and the same can be avoided.
125. On a parting note, I would like to add that this is a hard case. We have good laws and we also have bad laws. The dichotomy of discrimination between the sons and daughters, particularly born to the same parents was writ large prior to 2005 and with the much awaited amendments, the anomaly was indeed wiped out after 5 decades of the Hindu Succession Act, 1956 being enacted on our statute books on 09.09.2005, and now the daughters are also treated as coparceners and above all the carte blanche immunity granted to the Delhi Land Reforms Act, 1954 by Section 4(2) of the Hindu Succession Act, 1956 also stands removed.
126. I, am reminded of the maxim dura lex sed lex, which means it is harsh, but it is the law. The Apex Court in the case of Omprakash & Ors. v. Radhacharan and Ors.,27 while dealing with the inheritance of the property a Hindu Women observed that even though the woman was turned out of her matrimonial house by her in-laws, when she lost her husband at a very young age. The woman with her true grit, hard work, support by her parents and perseverance created substantial wealth during her time and post her demise, the very in-laws, who had ousted her staked claim to all her properties, as the rules of succession enshrined under Section 15 and 16 of the Hindu Succession Act, 1956 did not distinguish between the self-acquired properties and inherited 27 (2009) 15 SCC 66 Ex.Civil No. 515916/2016 Page No. 52/55 properties and with the Hindu female having died intestate, the normal rules of succession, as provided in Section 15(1) of the Hindu Succession Act, 1956 prevailed.
127. I, deem appropriate to quote the relevant paragraphs of the Apex Court's judgment in Omprakash & Ors. v. Radhacharan and Ors.,28 which reads under:
"10. This is a hard case. Narayani during her lifetime did not visit her in-law's place. We will presume that the contentions raised by Mr Choudhury that she had not been lent any support from her husband's family is correct and all her support had come from her parents, but then only because a case appears to be hard would not lead us to invoke different interpretation of a statutory provision which is otherwise impermissible.
11. It is now a well-settled principle of law that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties which are otherwise clear and unambiguous. In HSIDC v. Hari Om Enterprises29 this Court held: (SCC p. 226, para 38) "30. This Court applied the doctrine of proportionality having regard to a large number of decisions operating in the field. This Court, however, also put a note of caution that no order shall be passed only on sympathy or sentiment."
12. In Subha B. Nair v. State of Kerala30this Court held:
(SCC p. 776, para 22) 28 ibid.
29 (2009) 16 SCC 208 : (2008) 9 Scale 241 30 (2008) 7 SCC 210 : (2008) 2 SCC (L&S) 409 Ex.Civil No. 515916/2016 Page No. 53/55 "22. The court would not determine a question only on the basis of sympathy or sentiment.
Stricto sensu equity as such may not have any role to play."
13. In Ganga Devi v. District Judge, Nainital31this Court held: (SCC p. 216, para 21) "21. This Court furthermore cannot issue a direction only on sentiments/sympathy."
14. If the contention raised by Mr. Choudhury is to be accepted, we will have to interpret sub-section (1) of Section 15 in a manner which was not contemplated by Parliament. The Act does not put an embargo on a female to execute a will. Sub-section (1) of Section 15 would apply only in a case where a female Hindu has died intestate. In such a situation, the normal rule of succession as provided for by the statute, in our opinion, must prevail. For the aforementioned purpose, the golden rule of interpretation must be applied."
[Emphasis added by underlining and by highlighting of text]
128. That said, in view of the above observations and findings, this Court holds that the objection by the sons of Siri Lal to the application moved by the daughters of Siri Lal seeking release of enhanced compensation are valid and tenable for the reasons culled out at length in the preceding paragraphs. This Court rules that the rule of succession, as provided under Section 50 of the Delhi Land Reforms 31 (2008) 7 SCC 770 Ex.Civil No. 515916/2016 Page No. 54/55 Act, 1954 must prevail and accordingly both the sons are held entitled to the compensation and not the daughters of Siri Lal.
129. Axiomatically, the application moved by the daughters of Siri Lal, namely, Dhanno (now deceased) and Shakuntla seeking release of compensation is dismissed. Both the sons of Siri Lal, namely, Ram Prakash and Rajender Prasad are held entitled for the compensation amount in equal proportionate shares.
130. Let the file be sent to District Nazir, Tis Hazari Courts, Delhi, for upto date calculation of compensation to be released in favour of the sons of Siri Lal, namely, Ram Prakash and Rajender Prasad. Be awaited for calculation report until the next date of hearing.
131. List this matter for release of the compensation amount to the aforesaid sons of Siri Lal on 14.02.2020. Digitally signed by HARGURVARINDER HARGURVARINDER SINGH JAGGI SINGH JAGGI Date: 2020.01.16 16:05:22 +0530 Pronounced in the open Court (Hargurvarinder Singh Jaggi) on January 15, 2020 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi Ex.Civil No. 515916/2016 Page No. 55/55