Delhi District Court
Radha Krishan vs Kusum Wadhwa on 29 March, 2025
DLSE010002002011
THE COURT OF DISTRICT JUDGE-03
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
(PRESIDED OVER BY: SACHIN MITTAL)
CS DJ No. 9455/16
In the matter of:
RADHA KRISHAN,
S/o Shri Jaswant Rai Wadhwa,
Karta and Manager of Shri Radha Krishan Wadhwa HUF
R/o I-30, Lajpat Nagar Part-III, New Delhi. ..... Plaintiff.
VERSUS
KUSUM WADHWA,
D/o Late Mans Raj Wadhwa,
R/o I-30, Lajpat Nagar Part-III, New Delhi. ..... Defendant.
SUIT FOR POSSESSION, PERMANENT PROHIBITORY AND
MANDATORY INJUNCTIONS, DAMAGES AND MESNE
PROFITS.
Date of Institution : 28.01.2011
Date on which arguments concluded : 03.03.2025
Date of Judgment : 29.03.2025
Result : Dismissed
CS DJ No. 249/25
And in the matter of:
KUSUM WADHWA,
D/o Late Mans Raj Wadhwa,
R/o I-30, Lajpat Nagar Part-III,
New Delhi. ..... Counter-Claimant.
VERSUS
RADHA KRISHAN,
S/o Shri Jaswant Rai Wadhwa,
Karta and Manager of Shri Radha Krishan Wadhwa HUF
R/o I-30, Lajpat Nagar Part-III,New Delhi.
..... Defendant.
CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 1 of 52
AND AND Digitally signed
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan by SACHIN
SACHIN MITTAL
Date:
MITTAL 2025.03.29
15:14:04
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COUNTER CLAIM FOR DECLARATION, CANCELLATION AND
MANDATORY INJUNCTIONS.
Date of Institution : 27.04.2011
Date on which arguments concluded : 03.03.2025
Date of Judgment : 29.03.2025
Result : Partly Decreed.
JUDGMENT
1. Vide this common Judgment, I shall decide the captioned two suits. While the first suit i.e. main suit for the reliefs of possession, permanent prohibitory and mandatory injunctions, damages and mesne profits has been filed on behalf of Radha Krishan Wadhwa against Kusum Wadhwa; the second suit i.e. counter claim for the reliefs of declaration, cancellation and mandatory injunctions has been filed on behalf of Kusum Wadhwa against Radha Krishan Wadhwa as a counter claim to the main suit.
PLEADINGS IN THE MAIN SUIT (CS DJ No. 9455/16) Plaint:
2. The necessary facts, as pleaded in the plaint, upon which the suit of plaintiff is based, can be summarized as under:
(a) The plaintiffs, Radha Krishan Wadhwa and Krishna Wadhwa, siblings, are owners of the property bearing no. I-30, Lajpat Nagar-III, New Delhi, consisting of two and half storey building built on plot of land measuring 300 sq meters (herein after 'the said property').
(b) The defendant, Kusum Wadhwa is an unmarried daughter of plaintiffs' deceased brother namely, late Shri. Mans Raj Wadhwa.CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 2 of 52
AND AND Digitally signed
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan by SACHIN
SACHIN MITTAL
MITTAL Date:
2025.03.29
15:16:10 +0530
(c) Late Sh. Vasdev Wadhwa, who died in the year 2009, was
another brother of plaintiffs and defendant's father. He was the registered owner of the said property. He, vide registered gift deed dated 15.09.1999, gifted the said property to both the plaintiffs. The plaintiffs, even otherwise, are entitled to the said property by virtue of Hindu Succession Act.
(d) Late Sh. Vasdev Wadhwa had initially allowed defendant's father, late Sh. Mans Raj Wadhwa to live on the ground floor portion consisting of two bedrooms, drawing/dining, kitchen, lavatory etc. (herein after 'the suit property') of the said property without any rent or other charges. The defendant, who was living with her father before his death, is still living in the suit property.
The defendant has not been paying anything in respect of the suit property, except the electricity and water charges. The plaintiffs only used to pay house tax in respect of the suit property.
(e) The plaintiffs, after becoming the owner of the said property, including the suit property, extended the license of defendant's father. They also allowed the defendant to continue to live in the suit property after the death of her father as she had promised that she would vacate the same after making an arrangement for alternative accommodation. The defendant, who is a member of Delhi Public School Cooperative Group Housing Society, had promised that she would vacate the suit property after getting the possession of the accommodation from the society.
(f) The defendant, however, after getting possession of the accommodation from the aforesaid society, failed to vacate the suit property and instead started leveling false and frivolous allegations against the plaintiffs.
CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 3 of 52 AND AND
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed
SACHIN by SACHIN
MITTAL
MITTAL Date: 2025.03.29
15:16:17 +0530
(g) On 12.01.2011, the defendant broke open the lock of one back
side room adjacent to garage and also removed the belongings of the plaintiff no.1. The defendant also got certain equipment installed on the ground floor so as to breach the privacy of the plaintiffs.
(h) The plaintiffs, firstly, revoked the license of the defendant orally and then, by way of a legal notice dated 15.01.2001, which was duly received by her on 19.01.2011. The defendant, however, failed to reply the said legal notice. The defendant was called upon to vacate and handover the physical possession of the suit property to the plaintiffs after 3 days of the service of aforesaid notice.
(i) The suit property can easily fetch a monthly rent of Rs. 60,000/-
i.e. Rs. 2000/- per day. The defendant's license coming to an end on 22.01.2011, and the present suit having been filed on 25.01.2011, the plaintiffs are entitled to the recovery of a sum of Rs. 4000/- as mesne profit for the pre-suit period. The Court, in terms of Order XX Rule 12 CPC, may also fix mesne profits for the pendente lite and future period. The plaintiffs undertake to pay the deficient Court fees at the time of passing of Decree.
(j) The defendant also got an iron jaal installed in the open courtyard on the ground floor. She has also threatened to make alterations/additions, to create 3rd party interest and to part with possession of the suit property.
(k) The cause of action arose on 19.01.2011, when the legal notice of termination of license was served upon the defendant. The cause of action is still continuing. As the suit property is situated within the territorial limits of this Court, this Court has the territorial jurisdiction. The relief of possession has been valued at Rs.
CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 4 of 52 AND AND
Digitally signed
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan by SACHIN
SACHIN MITTAL
MITTAL Date:
2025.03.29
15:14:10 +0530
1,00,06,000/-; the two reliefs of injunction have been valued at Rs. 1000/- each; and the relief of recovery of mesne profit for the pre-suit period has been valued at Rs. 4000/-. The prescribed Court fees has been paid.
(l) The plaintiffs seek the following prayers:
"(i) That a Decree of possession be passed in favour of the plaintiff and against the defendant in respect of the ground floor consisting of drawing-cum-dining room, three bed rooms, kitchen, lavatory etc. more conspicuously shown within in red colour in the attached site plan forming part of property bearing No.I-30, Lajpat Nagar-III, New Delhi.
(ii) That a Decree of damages and mesne profits be also passed in favour of the plaintiff and against the defendants for a sum of Rs. 4000/- for the period 23.01.2011 to the date of filing of the present suit.
(iii) That a further decree be also passed in favour of the plaintiff and against the defendant on such rate which this Hon'ble Court may arrive at after holding enquiry under Order 20, Rule 12 CPC towards damages and mesne profits for the period pendente-lite and future till the defendant actually vacate and hand over the physical vacant peaceful possession of the suit premises to the plaintiffs. The plaintiff undertakes to pay deficient Court fee at the time of passing the Decree.
(iv) That a Decree of permanent prohibitory injunction be also passed in favour of the plaintiff and against the defendant restraining the defendant, her associates, assignees, servants, etc. from causing any additions, alteration in the premises in question or subletting or parting with possession or creating any third party interest in respect of the suit property.
(v) A Decree of mandatory injunction be also passed in favour of the plaintiff and against the defendant directing the defendant to remove all her equipment thereby encroaching upon the privacy of the plaintiff regarding their movements and recording their day to day conversation.CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 5 of 52
AND AND
Digitally signed
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan
SACHIN by SACHIN
MITTAL
MITTAL 15:16:23
Date: 2025.03.29
+0530
(vi) Cost of the present suit be also awarded in favour of the plaintiffs.
(v) Any other Order/relief/direction may also kindly be passed in favour of the plaintiff and against the defendant as this Hon'ble Court may deems fit, just and proper according to the facts and circumstances of the present case."
Written Statement of the defendant, Kusum Wadhwa:
3. The defence of the defendant, Kusum Wadhwa, as pleaded in her written statement, is based upon following allegations/averments:
(a) The said property i.e. property bearing no. I-30, Lajpat Nagar-III, New Delhi, consisting of two and half storey building built on plot of land measuring 300 sq meters, was purchased by defendant's father, late Sh. Mans Raj Wadhwa and his brothers, late Sh. Vasdev Wadhwa and Radha Krishan Wadhwa (plaintiff herein). They had purchased the said property from the funds of death claim of their father, late Sh. Jaswant Rai Wadhwa, who was murdered in Pakistan at the time of partition of India. The said property was purchased in the name of late Sh. Vasdev Wadhwa as trustee and for the benefit of all legal heirs of late Sh.
Jaswant Rai Wadhwa. It was also agreed that all legal heirs of late Sh. Jaswant Rai Wadhwa would have a share in the said property.
(b) In the year 1995, the three sons of late Sh. Jaswant Rai Wadhwa namely late Sh. Mans Raj Wadhwa (defendant's father), late Sh. Vasdev Wadhwa and Radha Krishan Wadhwa (plaintiff herein), entered into an oral family settlement. It was, accordingly, agreed that the ground floor would go to defendant's father, late Sh. Mans Raj Wadhwa; the first floor would go to late Sh. Vasdev Wadhwa and the sister, Krishna Wadhwa; and the CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 6 of 52 AND AND Digitally signed CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan SACHIN by SACHIN MITTAL MITTAL Date: 2025.03.29 15:16:28 +0530 second floor would go to Radha Krishan Wadhwa (the plaintiff herein). It was also agreed that they would also sign the requisite documents as and when necessary for conveying the ownership of respective share falling to them.
(c) The aforesaid family settlement was acted upon and all parties have been enjoying the respective portions, which fell to their share.
(d) It is denied that the defendant or her deceased father, late Sh.
Mans Raj Wadhwa were allowed to live in the suit property by virtue of license granted by late Sh. Vasdev Wadhwa or by the plaintiffs.
(e) Late Sh. Vasdev Wadhwa, therefore, was not entitled to execute any gift deed in respect of the said property in favour of the plaintiffs. The said gift deed is void.
(f) The defendant, vide letter dated 02.02.2011, through her lawyer, had duly replied the legal notice dated 15.01.2011, issued by the plaintiffs.
(g) On 28.01.2011, the plaintiffs have put a welded iron-sheet on the iron door leading to the common area on the ground floor of the said property, where electricity control panel is installed. Further, they w.e.f. 12.01.2011, have also stopped the access of the defendant to the roof of the said property, where water tanks are installed.
(h) The defendant has obtained an expert opinion from Forensic Experts and has come to know that the alleged gift deed dated 15.09.1999, is a forged and fabricated document and that the same was not signed by the deceased, late Vasdev Wadhwa.
(i) It is denied that the defendant broke open the lock of a room on CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 7 of 52 AND AND Digitally signed CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan by SACHIN SACHIN MITTAL Date: MITTAL 2025.03.29 15:14:14 +0530
the ground floor, or that she stole/removed belongings of the plaintiffs.
(j) It is denied that the defendant has encroached upon the privacy of the plaintiffs. She has got the CCTV installed on the ground floor for the purpose of her own safety.
(k) It is denied that the plaintiffs are otherwise entitled to the suit property by virtue of Hindu Succession Act.
(l) It is denied that the defendant has threatened to make any additional/alteration, or to create 3rd party interest, or to part with possession of the suit property.
(m) Lastly, it has been prayed that the plaintiffs are not entitled to any relief as sought.
Replication:
4. The plaintiffs filed a replication, which is, more or less, in denial of averments/allegations made in the written statement and in reaffirmation of those made in the plaint. It has been denied that the gift deed dated 15.09.1999, is a forged and fabricated document. It has been stated that late Sh. Vasdev Wadhwa died on 29.12.2009 i.e. after about 10 years from the date of the gift deed dated 15.09.1999, and during this period no one, not even defendant's father, ever challenged the said gift deed. It has been denied that the said property was purchased from the funds of death claims of late Sh. Jaswant Rai Wadhwa. It has been denied that the said property was purchased in the name of late Sh.
Vasdev Wadhwa as trustee for the benefit of all other legal heirs of late Sh. Jaswant Rai Wadhwa. It has been stated that defendant's father, late Sh. Mans Raj Wadhwa, was working as Depot Superintendent with the Burma Shell Company in Farukabad, UP, before partition and that he had been living there alongwith his family before partition. It has been stated that the plaintiffs, Radha Krishan Wadhwa and Krishna CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 8 of 52 AND AND Digitally signed by SACHIN CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan SACHIN MITTAL Date:
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Wadhwa; late Sh. Vasdev Wadhwa and their mother had come to India during summer vacations before partition. Their father, late Sh. Jaswant Rai Wadhwa, who was in Pakistan, before he could return to India, was murdered on 13.09.1947. The plaintiffs, Radha Krishan Wadhwa and Krishna Wadhwa; late Sh. Vasdev Wadhwa and their mother shifted to a refugee camp at Bela Road, Delhi. The defendant's father, late Sh. Mans Raj Wadhwa also joined the plaintiffs, who were minors at that time. Thereafter, late Sh. Vasdev Wadhwa joined a job in India and started earning. Three houses, one to defendant's father late Sh. Mans Raj Wadhwa, one to late Sh. Vasdev Wadhwa and one to Radha Krishan Wadhwa (who was minor at that time) alongwith mother, were allotted to them in lieu of their properties left in Pakistan. Afterwards, late Sh. Vasdev Wadhwa purchased the plot upon which the said property is built from his own earnings. The construction upon the plot was raised in several stages jointly by the plaintiff and late Sh. Vasdev Wadhwa. The defendant's father, late Sh. Mans Raj Wadhwa had been living separately alongwith his wife and daughters and, therefore, he had not contributed in the construction cost. It has also been stated that in the year 1995, the defendant's father, late Sh. Mans Raj Wadhwa, after selling his house, was searching for a house and in such circumstances late Sh. Vasdev Wadhwa and plaintiffs allowed him and his daughters to live on the ground floor i.e. the suit property. It has been denied that any family settlement as alleged was entered into. It has been reiterated that the said property was gifted by late Sh. Vasdev Wadhwa to the plaintiffs. It has been stated that defendant's reply dated 02.02.2011 to plaintiffs' legal notice dated 15.01.2011, was not mentioned in the plaint as the same was received after filing of this suit.
5. One, Nirmala Wadhwa, filed an application under Order I Rule 10(2) CPC, therein seeking her impleadment in the present suit.
CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 9 of 52 AND AND
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed
SACHIN by SACHIN
MITTAL
MITTAL Date: 2025.03.29
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The said application was allowed by this Court, vide Order dated 09.11.2016.
Written Statement of the defendant, Nirmala Wadhwa:
6. Newly impleaded defendant, Nirmala Wadhwa filed a separate written statement. Her defence can be summarized as follows:
(a) The plaintiffs have filed the present suit in collusion with the defendant no.1.
(b) She had got married to late Sh. Vasdev Wadhwa on 10.12.1973 according to Hindu rites and ceremonies and, therefore, she is his legally wedded wife. No child was born out of the wedlock. She is, therefore, the only surviving class I legal heir of late Sh.
Vasdev Wadhwa.
(c) As late Sh. Vasdev Wadhwa died intestate on in the year 2009, she became the absolute owner of all his properties, including the share in the said property i.e. property bearing no. I-30, Lajpat Nagar-III, New Delhi, consisting of two and half storey building built on plot of land measuring 300 sq meters.
(d) The said property was purchased and constructed from the funds of death claim of the common ancestor, late Sh. Jaswant Rai Wadhwa, who was murdered during partition of the country.
(e) The said property was purchased in the name of "Vasdev Wadhwa HUF, which comprised of three brothers namely late Sh. Mans Raj Wadhwa, late Sh. Vasdev Wadhwa and Radha Krishan Wadhwa (plaintiff herein).
(f) Subsequently, the aforesaid three brothers had entered into a family settlement whereby the HUF was dissolved and it was agreed that the ground floor would go to late Sh. Mans Raj Wadhwa; the first floor would go to late Sh. Vasdev Wadhwa;
CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 10 of 52 AND AND
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed
SACHIN by SACHIN
MITTAL
MITTAL Date: 2025.03.29
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and the second floor would go to Radha Krishan Wadhwa (the plaintiff herein).
(g) By virtue of aforesaid family settlement, her husband, late Sh.
Vasdev Wadhwa became owner of first floor of the said property and he continued to be so till his death.
(h) After the death of her husband, late Sh. Vasdev Wadhwa in the year 2009, the plaintiffs approached her with the request to grant him license to use the first floor for the accommodation of his wife and step children. She granted the said license to him with a condition that he would vacate the first floor upon completion of construction/additions on his portion in the said property.
(i) In September, 2015, when, the renovation/construction on the second floor of the said property had been completed, she required the plaintiffs to vacate the first floor. However, the plaintiffs failed to do so.
(j) She was, therefore, constrained to terminate the license of the plaintiff, vide notice dated 16.02.2016, which was duly served upon him. Ultimately, she had to file a suit, Civil Suit No. 52099/2016. It was during the proceedings in the said suit that she came to know about the alleged gift deed.
(i) The alleged gift deed dated 15.09.1999 is a forged and fabricated document and the same was never executed by her deceased husband, late Sh. Vasdev Wadhwa. At the time of alleged execution of the gift deed, her husband was not keeping well and due to illness, he was not in position to understand anything.
(k) The plaintiff kept the aforesaid alleged gift deed completely under the cover. She came to know about the aforesaid alleged gift deed dated 15.09.1999 only when the plaintiff in the present suit filed the written statement in the suit filed by her.
CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 11 of 52 AND AND
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed
by SACHIN
SACHIN MITTAL
MITTAL Date:
2025.03.29
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(l) The subsequent alleged gift deed dated 08.02.2011, executed by
the plaintiff no.2 in the present suit i.e. Krishna Wadhwa in favour of the plaintiff no.1, Radha Krishan Wadhwa is inconsequential as the same is based upon the earlier gift deed dated 15.09.1999, allegedly executed by her late husband, which is a forged and fabricated document. The plaintiff no.2, Krishna Wadhwa, is a psychiatric patient and she has been manipulated by the plaintiff no.1 for getting the alleged gift deed executed in his favour.
(m) All other contents of the plaint are wrong and, therefore, denied.
Replication to the Written Statement of the defendant, Nirmala Wadhwa:
7. The plaintiff, Radha Krishan, filed a replication to the aforesaid written statement of Nirmala Wadhwa, therein stating as under:
(a) It is denied that the plaintiff has filed the present suit in collusion with the defendant, Kusum Wadhwa.
(b) The present suit has been filed in respect of the ground floor. No relief is being sought against Nirmala Wadhwa.
(c) It is not denied that Nirmala Wadhwa had married late Sh.
Vasdev Wadhwa. However, they hardly lived together as the matrimonial dispute had arisen between them. Her whereabouts were not known for a number of years. She herself had filed a suit bearing no.223/1999 for injunction against late Sh. Vasdev Wadhwa. In the said suit, late Sh. Vasdev Wadhwa had filed a written statement, therein stating that he did not own any property. The said suit was ultimately dismissed.
(d) Late Sh. Vasdev Wadhwa after gifting the said property, vide gift deed dated 15.09.1999 to the plaintiff, had died in the year 2009.
CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 12 of 52 Digitally signed AND AND by SACHIN
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan SACHIN MITTAL
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At the time of his death, late Sh. Vasdev Wadhwa did not own any property. Therefore, there is no question of Nirmala Wadhwa inheriting any property from late Sh. Vasdev Wadhwa.
(e) Nirmala Wadhwa filed a suit against the plaintiff at the instigation of the defendant no.1.
(f) It is denied that the said property was purchased and constructed by utilizing the funds from the death claim of late Sh. Jaswant Rai Wadhwa. The said property was constructed in phases from the income of late Sh. Vasdev Wadhwa and plaintiff.
(g) There was no HUF of late Vasdev Wadhwa.
(h) There was no family settlement as alleged.
(i) Late Sh. Vasdev Wadhwa, vide gift deed dated 15.09.1999, had gifted the said property to Radha Krishan HUF. At the relevant time, the plaintiff, Radha Krishan was the karta of the family; he was unmarried at that time; and Krishna Wadhwa was his sister. Therefore, for all intents and purposes, the said property was gifted to him. Later on, Krishna Wadhwa also executed a gift deed in respect of the said property in favour of the plaintiff, Radha Krishan Wadhwa.
(j) The plaintiff Radha Krishan Wadhwa became absolute owner of the property and he only got the building plan sanctioned. He only has been paying the property tax since 1999.
PLEADINGS IN THE COUNTER-CLAIM (CS DJ No. 249/25) Counter-claim:
8. The defendant, Kusum Wadhwa has also filed a counter-
claim, which is more or less, based upon the same allegations/ averments as pleaded by her in the written statement filed in the main suit. To put it succinctly, the said counter-claim is based upon the CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 13 of 52 AND AND CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed by SACHIN SACHIN MITTAL MITTAL Date:
2025.03.29 15:16:59 +0530 allegations/ averments that the said property was purchased by the defendant's father, late Sh. Mans Raj Wadhwa and his brothers namely late Sh. Vasdev Wadhwa and Radha Krishan Wadhwa (plaintiff herein) out of the death claim funds of their father, late Sh. Jaswant Rai Wadhwa; that the defendant's father and after his death the defendant are in use and occupation of the suit property since long; that a family settlement was arrived at in the year 1995 wherein the entire said property was apportioned floor wise and the ground floor i.e. the suit property fell to the share of defendant's father; that late Sh. Vasdev Wadhwa had no right to execute any gift deed in favour of the plaintiff; and that this alleged gift deed dated 15.09.1999 is a forged and fabricated document. Based upon these pleadings, the defendant/counter-claimant has made following prayers in the counter- claim:
"(i) Pass a decree of declaration in favour of the defendant and against the plaintiff's declaring that the Gift Deed dated 15.09.1999 bearing registration no. 2376 in Addl. Book No. I, Vol No. 140 on pages 43 to 49 registered with the office Sub-Registrar, New Delhi in relation to the property No. I-30, Lajpat Nagar-III, New Delhi-110024 is forged and fabricated and thus void and the same is otherwise illegal, ineffective as Late Sh.
Vasudev Wadhwa did not have right to execute Gift Deed of the entire property and accordingly, the Gift Deed is null and void-ab-initio and is ineffective in law and plaintiffs cannot claim any right, title or interest on the basis of said Gift Deed;
(ii) Pass a Decree of cancellation of gift deed dated 15.09.1999 bearing registration no. 2376 in Addl. Book No.1, Vol. No. 140 on pages 43 to 49 registered with the office of Sub Registrar, New Friends Colony, New Delhi in relation to property bearing no. I-30, Lajpat Nagar-III, New Delhi executed by Mr. Vasdev Wadhwa in favour of the plaintiff's with directing to the Sub Registrar of Assurances concerned to cancel the same.
CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 14 of 52 AND AND
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed
by SACHIN
SACHIN MITTAL
Date:
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(iii) Pass a Decree of mandatory Injunction in favour of the defendant and against the plaintiffs directing to execute the documents in respect of ground floor of property bearing no. I-30, Lajpat Nagar-III, New Delhi in favour of the defendant.
(iv) Pass a Decree of mandatory Injunction in favour of the defendant and against the plaintiffs, directing the plaintiffs to remove the welded iron sheet on the iron door leading to the common area on the ground where electricity control panel is installed in the property.
(v) Grant costs.The burden of proving this issue is fixed upon the defendant/counter-claimant.
(vi) Grant such other, further relief in the facts and circumstances of the case as this Hon'ble Court may deem just and equitable in favour of the defendant and against the plaintiffs."
Written Statement:
9. The plaintiff filed a written statement to the aforesaid counter-claim of the defendant. It has been stated therein that the defendant has three more sisters and, therefore, she alone cannot seek the relief as sought in the counter-claim. It has been alleged that the relief of declaration with respect to gift deed dated 15.09.1999 and relief of mandatory injunction, are barred by limitation. It has been denied that the gift deed dated 15.09.1999, is a forged and fabricated document. It has been stated that the construction upon the suit property was raised with the earnings of the plaintiff, Radha Krishan and those of late Sh. Vasdev Wadhwa. The plaintiff has relied upon the various receipts and bills for purchase of building material and payment to the labourers, as filed with the written statement. Some amount was taken as a loan from their mother, late Jesi Bai also, which was later on repaid, as is clear from her Will, executed on 28.01.1989. It has also been alleged that in the absence of any class I legal heir left by late Sh. Vasdev Wadhwa, the plaintiffs being the only class II legal CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 15 of 52 AND AND CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed SACHIN by SACHIN MITTAL MITTAL Date: 2025.03.29 15:14:26 +0530 heirs, are entitled to the estate of late Sh. Vasdev Wadhwa. All other allegations/averments in the counter-claim have been denied and those pleaded in the plaint and replication filed on behalf of the plaintiff in the main suit have been reaffirmed. For the sake of brevity, the pleadings in the plaint and replication filed on behalf of the plaintiff are not being repeated herein.
Replication:
10. The defendant/counter-claimant filed a replication to the aforesaid written statement of the plaintiff. It has been stated therein that the defendant's three sisters have relinquished their right, title or interest in the suit property in favour of the defendant/counter-claimant.
Regarding the plea that the relief of declaration with respect to the gift deed dated 15.09.1999 being barred by limitation, it has been stated that the defendant/counter-claimant came to know about the said gift deed only upon filing of the aforesaid main suit. It has also been alleged that the Will dated 21.01.1989, allegedly executed by late Jesi Bai is a forged and fabricated document as she was suffering from physical and mental incapacity as she was paralyzed for almost a year before her death.
Interim/ Misc. Applications:
11. The Ld. Predecessor Court, vide Order dated 02.02.2011, issue ex-parte, directed the defendant to maintain status quo with regard to title, possession and construction in the suit property. The said ex-parte Order was confirmed and made absolute till the disposal of the suit, vide subsequent Order dated 14.02.2013. Vide Order dated 05.09.2014, an application under Order VI Rule 17 CPC, filed on behalf of the defendant, for amendment in the written statement for alleging forgery in the gift deed dated 15.09.1999, was allowed.
Another application under Order VIII Rule 1A (3) CPC, filed on behalf CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 16 of 52 Digitally signed AND AND by SACHIN CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan SACHIN MITTAL Date:
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of the defendant, for permission to place on record the forensic reports regarding forgery in the aforesaid gift deed, was also allowed, vide the Order of even date. An application under Order XXII Rule 10 CPC, filed on behalf of the plaintiff no.2, therein seeking her deletion from the suit, on the ground that she, vide gift deed dated 07.02.2011, has transferred the suit property in favour of the plaintiff no.1, was also allowed, vide Order dated 05.09.2014. Vide Order dated 19.11.2015, an application under Order VII Rule 14(3) CPC, filed on behalf of the plaintiff, for permission to file additional documents, was allowed. The impleadment of the defendant no.2, Nirmala Wadhwa, was allowed, vide Order dated 09.11.2016, upon her application under Order I Rule 10(2) CPC. On 13.03.2019, it was reported to the Court that the defendant no.2, Nirmala Wadhwa has died. The Court gave a liberty to the Ld. Counsel for impleadment of her LRs. However, no application for the said purpose was ever filed. The suit against the defendant no.2, therefore, stood abated, as directed, vide Order dated 13.11.2019.
ISSUES
12. On 13.08.2015, the Hon'ble High Court, framed following issues for trial:
Issue no.1: Whether the suit property that was purchased by Shri. Vasdev Wadhwa as a trustee, for the benefit of the legal heirs of Shri Jaswant Rai Wadhwa, father of the plaintiff and grandfather of the defendant, as alleged in para 3(a) of the preliminary objections raised by the defendant in written statement? (OPD) Issue no.2: Whether there was an oral family settlement arrived at between the sons of Shri Jaswant Rai Wadhwa in the year 1995, if so the effect thereof? (OPD) CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 17 of 52 AND AND Digitally signed CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan by SACHIN SACHIN MITTAL MITTAL Date:
2025.03.29 15:17:20 +0530 Issue no.3: Whether the suit premises was purchased by Mr. Mans Raj Wadhwa, father of the defendant and his brother from the funds of the death claim of their father, late Shri. Jaswant Rai Wadhwa? (OPD) Issue no.4: Whether the duly registered gift deed dated 15.09.1999, executed by Shri Vasdev Wadhwa (brother of the plaintiff and paternal uncle of the defendant) is liable to be cancelled as void ab initio? (OPD/-Counter Claimant) Issue no.5: Whether the plaintiff is entitled to a Decree of possession in respect of the ground floor of the suit premises on the basis of the registered gift deed dated 15.09.1999, executed by late Shri Vasdev Wadhwa? (OPP) Issue no.6: If issue no.5 is decided in favour of the plaintiff, whether he is entitled to claim damages/mesne profits against the defendant in respect of the suit premises, if so at what rate and for what period? (OPP) Issue no.7: Whether the plaintiff is entitled to a Decree of permanent injunction against the defendant in respect of the suit premises, as prayed for in prayer clause (iv)? (OPP) Issue no.8: Whether the plaintiff is entitled to a Decree of mandatory injunction against the defendant in respect of the suit premises, as prayed for in prayer clause (v)? (OPP) Issue no.9: Relief.
13. The Court, vide Order dated 18.05.2016, while exercising power under XIV Rule 5(1) CPC, framed the following additional issue:
Additional Issue no. 3(a):Whether gift deed dated 15.09.1999 executed by Vasdev Wadhwa is a forged and fabricated document? OPD/counter claimant.CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 18 of 52
AND AND
Digitally signed
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan by SACHIN
SACHIN MITTAL
Date:
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EVIDENCES
Plaintiff's evidences:
14. The plaintiff, in order to prove his case, examined five witnesses i.e. plaintiff himself, Radha Krishan as PW-1, Sh. Sunil Verma as PW-2, Sh. Harit Chhillar as PW-3, Ms. Jagriti Jain as PW-4 and Sh. Naveen Chhabra as PW-5.
14.1 The plaintiff, as PW1, tendered his affidavit-in-evidence, Ex.PW1/A towards his examination-in-chief, wherein he relied upon, among other documents, Sale Deed dated 11.04.1958, Ex.P-1 pertaining to the purchase of the said property; the bills, challans and receipts for proving construction in the said property, Ex.PW-1/1 to Ex. PW-1/23; passbook of late Vasdev Wadhwa's bank account, Ex. PW-1/25; passbook of plaintiff's bank account, Ex. PW-1/26; Will dated 21.08.1989, executed by late Jesi Bai, Ex. PW-1/27; registered Gift Deed dated 15.09.1999, executed by late Vasdev Wadhwa in favour of the plaintiff, Ex. PW-1/28; house tax payment receipt, Ex. PW-1/29; and site plan, Ex. PW-1/31. PW-1 was cross-examined on behalf of the defendant on 21.11.2015, 02.12.2015, 01.06.2016, 02.06.2016, 11.12.2019, 14.01.2020 and 20.02.2020 and then he was discharged. The testimony of the witness, PW-1 will be dealt with, wherever relevant, while returning the findings on the issues.
14.2 PW-2/Sh. Sunil Verma, Senior Secretarial Assistant, Tax Department, was a summoned witness. He tendered in evidence a Mutation Letter dated 10.03.2004, issued in the name of Sh. Radha Krishan and Ms. Krishana Wadhwa as Ex. PW-2/1. He was cross- examined on behalf of the defendant and discharged on 21.12.2021.
14.3 PW-3/Sh. Harit Chillar, Record Keeper, Sub Registrar -V, Mehrauli was a summoned witness. He tendered in evidence the Gift Deed dated 13.09.1999, registered at document no. 2376 in Additional CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 19 of 52 AND AND Digitally CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan signed by SACHIN SACHIN MITTAL MITTAL Date:
2025.03.29 15:14:34 +0530 Book No.1, Volume No. 140, Page No. 43 to 49, as already Ex. PW1/28. He was cross-examined on behalf of the defendant and discharged on 21.12.2021.
14.4 PW-4/Ms. Jagriti Jain, tendered her affidavit-in-evidence, Ex.PW4/A towards her examination-in-chief, wherein she relied upon death certificate dated 18.12.2001 of her father, Mr. N.K. Jain as Ex.
PW4/1 and Registered gift deed dated 15.09.1999 as already Ex. PW1/28. She was cross-examined on behalf of the defendant on 24.03.2022 and then she was discharged. The testimony of the witness, PW-4 will be dealt with, wherever relevant, while returning the findings on the issues.
14.5 PW-5/Sh. Naveen Chhabra tendered his affidavit-in- evidence, Ex.PW5/A towards his examination-in-chief, wherein he relied upon gift deed dated 15.09.1999, as already Ex. PW1/28. He was cross-examined on behalf of the defendant on 21.12.2021 and then he was discharged. The testimony of the witness, PW-5 will be dealt with, wherever relevant, while returning the findings on the issues.
14.6. The plaintiff did not examine any other witness. Plaintiff's evidence, pursuant to statement of the Ld. Counsel for the plaintiff recorded on 24.03.2022, were closed.
Defendant/ Counter-claimant's evidence:
15. The defendant, in order to prove her defence and claim in her counter-claim, examined six witnesses i.e. defendant herself, Kusum Wadhwa as DW-1, Ms. Anju Loomba as DW-2, Mr. M.S. Mishra as DW-3, Sh. Sunil Verma as DW-4, Sh. S.C. Raghvendra Kumar Singh as DW-5 and Sh. Dharmvir Jakhar as DW-6.
15.1 The defendant, Kusum Wadhwa, DW1, tendered her affidavit-in-evidence, Ex.DW1/A and additional affidavit-in-evidence, Ex. DW1/B towards her examination-in-chief, wherein she relied CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 20 of 52 AND AND CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed by SACHIN SACHIN MITTAL MITTAL Date:
2025.03.29 15:17:31 +0530 upon, the forensic experts' reports, Ex. DW1/1 and Ex. DW1/2; Police complaints, Ex.DW1/3 (Colly.) (OSR); the application for impleadment of Ms. Nirmala Wadhwa, Ex. DW1/4; application under Section 340 Cr.PC, Ex.DW1/5; and certified copy of the case file CS 87/2016 titled as Nirmala Wadhwa vs. Radha Krishan and Anr., Ex. DW1/6 (Colly). DW-1 was cross-examined on behalf of the plaintiff on 15.07.2022, 29.07.2022, 19.11.2022, 26.11.2022, 14.12.2022, 21.12.2022 and then she was discharged. The testimony of the witness, DW-1 will be dealt with, wherever relevant, while returning the findings on the issues.
15.2. DW-2/Ms. Anju Loomba tendered her evidence by way of affidavit-in-evidence, Ex. DW-2/C. She was cross-examined on behalf of the plaintiff on 14.02.2023 and 25.04.2023 and then she was discharged. The testimony of the witness, DW-2 will be dealt with, wherever relevant, while returning the findings on the issues.
15.3. DW-3/Mr. M.S. Mishra, Forensic Handwriting and Fingerprint Expert, was a summoned witness. He identified his signatures alongwith his stamp on the each and every page of the report already Ex. DW-1/1. He also identified his signatures alongwith stamp on the set of documents i.e. indemnity bond (page-1) dated 16.08.2023 and Gift deed dated 15.09.1999, already Ex. DW1/P-I. He was cross-
examined on behalf of the plaintiff on 28.01.2023 and then he was discharged.
15.4. DW-4/Sh. Sunil Verma, Assistant Zonal Inspector, House Tax Dept., Municipal Corporation of Delhi (MCD), was a summoned witness, who brought the original office record file of property No. I-30, Lajpat Nagar-III, New Delhi-24 and identified the receipt bearing no. PT-550146 and property UPIC 157275410038000, issued by his department for online payment in the name of Kusum Wadhwa. He was cross-examined on behalf of the plaintiff on 22.03.2023 and then he CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 21 of 52 AND AND CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed SACHIN by SACHIN MITTAL MITTAL Date: 2025.03.29 15:14:39 +0530 was discharged. During cross-examination, the receipt bearing no. PT-550146 and property UPIC 157275410038000 pertaining to the F.Y. 2022-2023 was exhibited as Ex. DW-4/1 15.5. DW-5/Sh. S.C. Raghvendra Kumar Singh, Head Constable, PS Lajpat Nagar-III, was a summoned witness, who tendered in evidence a certified copy of the Order dated 10.04.2012 bearing no. 9232-329, Ex. DW-5/1. He was cross-examined on behalf of the plaintiff on 25.04.2023 and then he was discharged.
15.6. DW-6/Sh. Dharmvir Jakhar, Head Constable, PS Lajpat Nagar-III, was a summoned witness, who tendered in evidence the original record of Book no.1 Roznamcha B dated 09.01.2011 to 22.01.2011 alongwith Book no.2 Roznamcha B dated 23.01.2011 to 02.02.2011, depicting DD entry no. 55B dated 30.01.2011, DD entry no. 80B dated 21.01.2011 and DD entry No. 50B dated 12.01.2011, Ex. DW-6/1, Ex. DW-6/2 and Ex. DW-6/3. He was cross-examined on behalf of the plaintiff on 05.07.2023 and then he was discharged.
15.7. The defendant did not examine any other witness.
ARGUMENTS
16. I have heard Sh. S.C. Singhal, Ld. Counsel for the plaintiff and Sh. Sourabh Malhotra, Ld. Counsel for the defendant/counter- claimant. I have carefully perused the judicial record as well.
FINDINGS ON ISSUES
17. Issue no.1: Whether the suit property that was purchased by Shri. Vasdev Wadhwa as a trustee, for the benefit of the legal heirs of Shri Jaswant Rai Wadhwa, father of the plaintiff and grandfather of the defendant, as alleged in para 3(a) of the preliminary objections raised by the defendant in written statement? (OPD) And Issue no.3: Whether the suit premises was purchased by Mr. Mans Raj Wadhwa, father of the defendant and his brother from CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 22 of 52 AND AND CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed by SACHIN SACHIN MITTAL Date:
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the funds of the death claim of their father, late Shri. Jaswant Rai Wadhwa? (OPD) 17.1. The issue no.1 and 3 are being taken up together as these issues can be decided on the basis of common findings. The burden of proving both these issues was fixed upon the defendant/counter- claimant.
17.2. The case of the defendant/counter-claimant is that the said property was purchased by her father, late Sh. Mans Raj Wadhwa, and his brothers, late Sh. Vasdev Wadhwa and Radha Krishan Wadhwa (plaintiff herein) out of death claim funds of their father late Sh. Jaswant Rai Wadhwa; that it was purchased in the name of late Sh. Vasdev Wadhwa as a trustee for benefit of other legal heirs of late Sh. Jaswant Rai Wadhwa; and that all three sons of late Sh. Jaswant Rai Wadhwa had share in the said property. On the other hand, the plaintiff claims that the said property was purchased by late Sh. Vasdev Wadhwa out of his self-acquired earnings and without the help of any alleged death claim funds of late Sh. Jaswant Rai Wadhwa.
17.3. The defendant/counter-claimant for the purpose of proving the issues under consideration laid a lot of emphasis upon 6 th recital of the alleged Gift Deed dated 15.09.1999 (Ex. PW-1/28), which reads as : "AND WHEREAS it is mentioned here that the said property was purchased by the family members of the Donar from the funds and resources of their father and mother in the name of the Donar, and in view of these circumstances same was assessed in the Income Tax Department in the name of Vasdev Wadhwa, HUF, w.e.f. 01.04.1969". The said Gift Deed purports to have been signed by the Donar, late Vasdev Wadhwa as well as Donees, Radha Krishan Wadhwa and late Ms. Krishana Wadhwa. The aforesaid recital is in obvious contradiction to the claim of the plaintiff that the said property was CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 23 of 52 AND AND Digitally signed CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan by SACHIN SACHIN MITTAL MITTAL Date:
2025.03.29 15:14:44 +0530 purchased by late Sh. Vasdev Wadhwa out of his self acquired earnings.
17.4 It becomes relevant here to examine the relevancy of the aforesaid recital in the Gift Deed for the purpose of proving the issues under consideration, particularly it needs to be examined whether the aforesaid recital can be proved as an admission against the plaintiff.
17.5. An 'admission', in common parlance, means an acknowledgment of truth of a particular fact. Section 15 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) defines 'admission' as a statement, which suggests an inference as to any fact in issue or relevant fact and which is made by any of the persons mentioned in Section 16 to 18. The admission of a fact amounts to waiver of proof of such a fact. It is presumed that nobody would make a wrong statement against his own interest. Admission by a party is substantive evidence of fact admitted by him and admission duly proved is admissible evidence irrespective of whether the party making it appeared in the witness box or not and whether the said party, when appeared, was confronted with the said statement.1 A clear and unambiguous admission is the best substantive evidence that an opposite party can rely upon and though it is not conclusive, yet it would be decisive of the matter unless it were successfully withdrawn or proved to be erroneous.2 If an admission amounts to a estoppel, it becomes conclusive under Section 25 of the BSA. As per Section 16 of the BSA, an admission can be made by a party to the proceedings, or its agent, or by a person having proprietor or pecuniary interest in the subject matter of the proceedings, or by predecessor in interest of the party to the proceedings. As per Section 19 of the BSA, an admission can be proved against the person, who made it, or his representative in interest.1
Union of India v. Moksha Builders and Financiers, AIR 1966 SC 405 2 Thiru John v. Returning Officer, AIR 1977 SC 1724 CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 24 of 52 AND AND Digitally signed CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan by SACHIN SACHIN MITTAL Date:
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17.6. Now, coming to the present case, one of the facts in issue is whether the said property was purchased out of the alleged death claim funds of late Jaswant Rai Wadhwa, or out of the self acquired earnings of late Vasdev Wadhwa. The aforesaid recital in the gift deed is suggesting an inference that the said property was purchased out of the alleged death claim funds, and not out of the self acquired earnings of late Vasdev Wadhwa. As the gift deed has been signed by late Vasdev Wadhwa as well as the plaintiff, Radha Krishan Wadhwa, the statement in the form of recital therein can be said to have been made by a party to the present proceedings (i.e. the plaintiff herein) as well as the plaintiff's predecessor in interest i.e. late Vasdev Wadhwa. The alleged admission is being sought to be proved against the plaintiff. The statement in the said recital is clear and unambiguous. The said recital, therefore, qualifies all the requirements of "admission" as per the law. As regards its evidentiary value, though the Ld. Counsel for the plaintiff argued that the said recital is wrong, the plaintiff/Ld. Counsel has failed to show any motive for making a wrong statement in the said gift deed. It is important to note here that the fact stated in the said recital was within the personal knowledge of the plaintiff and his predecessor in interest; it cannot be said that they made the said statement in the gift deed on the basis of any hearsay or on the basis of inference from any document provided by any 3 rd party. In view of these facts, this Court is convinced that in view of the admission, the plaintiff should be precluded from setting up a contrary case. This finding in itself is sufficient for determination of the issues under consideration in favour of the defendant and against the plaintiff. Held so.
17.7. Now, I shall proceed to determine the issues under consideration from another perspective. It would be relevant here to examine the comparative financial condition of late Vasdev Wadhwa CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 25 of 52 AND AND CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed SACHIN by SACHIN MITTAL MITTAL 15:14:51 Date: 2025.03.29 +0530 vis-a-vis that of the entire joint family, comprising of the eldest son, late Mans Raj Wadhwa (defendant/counter-claimant's father), late Vasdev Wadhwa, Radha Krishan Wadhwa (plaintiff) and their mother, late Jesi Bai. The plaintiff, as PW-1, during his cross-examination on 02.12.2015, stated that late Vasdev Wadhwa had started working in the year 1950-51 with Postal and Telegraph Department, New Delhi at a salary of Rs. 120/- per month and that he had no other source of income. He during his cross-examination on 01.06.2016 also stated that the said property was purchased in the year 1957-58 for Rs. 6000 - 7000. If the income of late Vasdev Wadhwa for a period of 7 years prior to purchasing of the said property is calculated, it comes to Rs. 10,000/- approximately. It is also the case of the plaintiff that he; his brother, Vasdev Wadhwa; his sister Krishna Wadhwa; and their mother, after their return to India, had lived with late Mans Raj Wadhwa only for about 5-6 months. After that they had shifted to refugee camp at Bela road, Daryaganj, Delhi. Their mother was not working. The plaintiff in his cross-examination on 02.12.2016 also stated that the household expenditure of him, his mother and his sister were borne by late Sh. Vasdev Wadhwa. Thus, a major portion, say 70% to 80%, of the income of late Vasdev Wadhwa would have been utilized in subsistence of a family of four members. It, thus, cannot be said that late Vasdev Wadhwa would have saved Rs. 6000 to 7000 by the year 1957-58 for purchasing the said property out of his total income of Rs. 10,000/- approximately for last seven years. As against this, the defendant's father, Mans Raj Wadhwa had been working in India with Burma Shell Company even before the partition. As answered by the defendant in her cross-examination on 19.11.2022, first drawn salary of late Mans Raj Wadhwa in the year 1947 was Rs. 500/-. The plaintiff, during his cross-examination on 01.06.2016, stated that after the murder of his father during partition, his mother has started getting a CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 26 of 52 AND AND Digitally CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan signed by SACHIN SACHIN MITTAL MITTAL Date:
2025.03.29 15:18:00 +0530 pension of Rs. 100/- per month and he and his siblings had started getting a pension of Rs. 13/- per month. He also stated that they, in lieu of their properties in Pakistan, received gratuity, provident fund and last salary etc. after the death of late Jaswant Rai Wadhwa. Further, they had received agricultural lands as part of death claims of their father, which lands were sold off. In view of these facts, I find it more probable that the said property was purchased out of death claim funds and other income/savings of the family, instead of out of self acquired arnings of late Vasdev Wadhwa. In this regard, Ld. Counsel for the defendant has relied upon the Judgment of the Hon'ble Supreme Court in K.V. Narayanaswami Iyer v. K.V. Ramakrishana Iyer and Ors. 3, wherein it was held that if at the time of purchase of a property by the joint family in the name of any of its member, such joint family has sufficient funds for its purchase, the said property is considered to be a joint family property:
15. The legal position is well settled that if in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown. (Vide Amritlal Sen & ors., v. Surath Lal Sen & others A.I.R. 1942 Cal. 553 Appalaswami v. Suryanarayanamurthy & others [1948] I.L.R.Mad 440.
17.8. Ld. Counsel for the plaintiff, while placing reliance upon passbook of PNB account of late Vasdev Wadhwa (Ex. PW-1/25), submitted that the consideration for the purchase of the said property was paid by way of a cheque dated 14.11.1956. He further submitted that there is no evidence of any payment having been received in the said bank account from the alleged death claim funds of late Sh.3
MANU/SC/0307/1964 CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 27 of 52 AND AND CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed by SACHIN SACHIN MITTAL Date:
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Jaswant Rai Wadhwa. A perusal of the said passbook, however, shows that the entries therein are from August, 1956 onwards only, while the payment for purchase of the property was made in November, 1956 i.e. a few months after only. Thus, a possibility of late Vasdev Wadhwa receiving funds prior to August, 1956 in the said bank account cannot be ruled out. Further, there are credit entries of Rs. 7000/- approximately prior to the date of said cheque. It cannot, thus, be said conclusively that the payment was made out of self acquired earnings of late Vasdev Wadhwa only.
17.9. Ld. Counsel for the plaintiff, then, relied upon the Will dated 21.08.1989 (Ex. PW-1/27) of late Smt. Jesi Bai for the purpose of contending that it has been mentioned therein that house in question over the said property was built by Vasdev Wadhwa by the funds arranged by him out of his own earnings and from the loans received from his friends and her. It has also been stated therein that the said loan was repaid by late Vasdev Wadhwa. I am afraid that these facts can be proved by way of a Will of 3rd person. The purpose of Will is to make an arrangement for distribution of assets after the death of testator/ testatrix. The statements in the Will as relied upon by the Ld. Counsel for the plaintiff cannot be taken as a gospel truth, more so, when the genuineness/truthfulness of the said statements cannot be tested by cross-examination as the maker, late Ms. Jesi Bai of these statements has died. These statements in the Will cannot be considered to be relevant under Section 26 of the BSA because the same do not fall in any of the eight cases specified under clause (a) to (h). The said statements in the Will are merely a hearsay-evidence and, therefore, not relevant. There is no other evidence led by the plaintiff for proving that late Vasdev Wadhwa had borrowed loans for the purpose of purchasing the said property.
CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 28 of 52 AND AND
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed
by SACHIN
SACHIN MITTAL
MITTAL Date:
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17.10. It was also the case of the plaintiff that the construction upon the said property was raised in stages by him and late Vasdev Wadhwa out of their income/ earnings and that the defendant's father, Mans Raj Wadhwa had not contributed in the cost of the construction. At the outset, I must note that it is hardly relevant as to who contributed the funds for construction upon the property. Having said this, now, I proceed to examine the claim of the plaintiff in this regard. The plaintiff relied upon the passbook of PNB bank account (Ex. PW-1/25) of late Vasdev Wadhwa and that of his bank account (Ex. PW-1/26). The plaintiff, however, during his cross-examination on 02.06.2016, failed to point out the entries for depicting the payments made towards construction. He then stated that the said payments were also made from his separate saving bank account and that of his brother late Vasdev Wadhwa. The passbook/account statements of the said saving bank accounts were, however, not produced in evidence. The plaintiff also stated that he cannot produce the same in evidence. As regard the alleged bills, challans, receipts (Ex. PW-1/1 to Ex. PW-1/23), it cannot be said that the payments mentioned in these documents were contributed only by the plaintiff or late Vasdev Wadhwa. It is not unusual in a joint family for a member to make the payments and get the bills/receipts etc. in his name, when the said payments are in fact made out of joint family funds.
17.11. Ld. Counsel for the plaintiff had also argued that the plea of the defendant that the said property was purchased by the joint family in the name of late Vasdev Wadhwa would be hit by Section 4 of the prohibition of right to recover the benami property. Ld. Counsel was probably referring to Benami Transactions (Prohibition) Act, 1988. The said Act was amended by way of the Benami Transactions (Prohibition) Amendment Act, 2016 and renamed as The Prohibition of Benami Property Transactions Act, 1988. Prior to the said amendment, CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 29 of 52 AND AND CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed SACHIN by SACHIN MITTAL MITTAL Date: 2025.03.29 15:18:07 +0530 'benami transaction' was defined under Section 2(a) as a transaction in which property is transferred to one person for a consideration paid by another person. Section 3 of the said Act prohibited the benami transactions and Section 4 provided for prohibition of right to recover a benami property. The said Section 4 in sub section (3)(a) excepted a property held in the name of a coparcener for the benefit of coparceners in the joint Hindu family from the prohibition of benami transaction. After the aforesaid amendments, a comprehensive definition of 'benami transaction' has been inserted under Section 2(9), which reads as under:
(9) "benami transaction" means -
(A) a transaction or an arrangement-
(a) where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and
(b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration, except when the property is held by-
(i) a Karta, or a member of a Hindu undivided family, as the case may be, and the property is held for his benefit or benefit of other members in the family and the consideration for such property has been provided or paid out of the known sources of the Hindu undivided family;
(ii) a person standing in a fiduciary capacity for the benefit of another person towards whom he stands in such capacity and includes a trustee, executor, partner, director of a company, a depository or a participant as an agent of a depository under the Depositories Act, 1996 (22 of 1996) and any other person as may be notified by the Central Government for this purpose;
(iii) any person being an individual in the name of his spouse or in the name of any child of such individual and the consideration for such property has been CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 30 of 52 AND AND CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed by SACHIN SACHIN MITTAL MITTAL Date:
2025.03.29 15:15:03 +0530 provided or paid out of the known sources of the individual;
(iv) any person in the name of his brother or sister or lineal ascendant or descendant, where the names of brother or sister or lineal ascendant or descendant and the individual appear as joint-owners in any document, and the consideration for such property has been provided or paid out of the known sources of the individual; or (B) a transaction or an arrangement in respect of a property carried out or made in a fictitious name; or (C) a transaction or an arrangement in respect of a property where the owner of the property is not aware of, or, denies knowledge of, such ownership; (D) a transaction or an arrangement in respect of a property where the person providing the consideration is not traceable or is fictitious;
Explanation.-For the removal of doubts, it is hereby declared that benami transaction shall not include any transaction involving the allowing of possession of any property to be taken or retained in part performance of a contract referred to in section 53A of the Transfer of Property Act, 1882 (4 of 1882), if, under any law for the time being in force,-
(i) consideration for such property has been provided by the person to whom possession of property has been allowed but the person who has granted possession thereof continues to hold ownership of such property;
(ii) stamp duty on such transaction or arrangement has been paid; and
(iii) the contract has been registered.
17.12. Where a person buys a property with his own money but in the name of another person without any intention to benefit such other person, the transaction is called benami. The aforesaid new definition of 'benami transaction' also specifically provides two requirements for a transaction to be considered 'benami transaction'.
CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 31 of 52 AND AND
Digitally signed
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan by SACHIN
SACHIN MITTAL
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The first requirement is that the property is held in the name of a person, consideration whereof has been paid by another person. The second requirement is that such property is held for the benefit of a person, who has provided the consideration. It is required to be noted that out of the four exceptions provided in the aforesaid definition when a transaction or an arrangement is not considered to be the 'benami transaction', the first exception is when a property is held by a karta, or a member of HUF; such property is held for his benefit or for the benefit of other members in the family; and when the consideration for such property has been paid out of known source of HUF. In the present case, it has already been held herein above that at the time of purchase of the said property, the known sources of the joint family were sufficient for the said purchase. In view of this, the plea of the defendant that the said property was purchased by the legal heirs of late Sh. Jaswant Rai Wadhawa in the name of late Vasdev Wadhawa as a trustee for the benefit of all other members in the family cannot be said to be hit by Section 4 of the Act.
17.13. In view of the above discussion, it is held that the said property was purchased in the name of late Vasdev Wadhwa as a trustee for the benefit of all legal heirs of late Jaswant Rai Wadhwa. The issue no.1 is, thus, decided in favour of the defendant/counter- claimant. It is also held that the said property was purchased out of death claim funds of late Sh. Jaswant Rai Wadhwa. The issue no.3 is, therefore, also decided in favour of the defendant/counter-claimant.
18. Issue no.2: Whether there was an oral family settlement arrived at between the sons of Shri Jaswant Rai Wadhwa in the year 1995, if so the effect thereof? (OPD) 18.1. The burden of proving this issue was fixed upon the defendant/counter-claimant.
CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 32 of 52 AND AND
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CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan
SACHIN by SACHIN
MITTAL
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Date: 2025.03.29
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18.2. The case of the defendant/counter-claimant is that in the year 1995, the three sons of late Sh. Jaswant Rai Wadhwa namely late Sh. Mans Raj Wadhwa (defendant's father), late Sh. Vasdev Wadhwa and Radha Krishan Wadhwa (plaintiff herein), entered into an oral family settlement. It was, accordingly, agreed that the ground floor would go to defendant's father, late Sh. Mans Raj Wadhwa; the first floor would go to late Sh. Vasdev Wadhwa and the sister, Krishna Wadhwa; and the second floor would go to Radha Krishan Wadhwa (the plaintiff herein). The defendant also claims that the said family settlement was acted upon and that she alongwith her father, Mans Raj Wadhwa started residing on the ground floor from the year 1995 onwards, and that after his death, she has been living therein till date. On the other hand, the plaintiff is disputing the alleged family settlement.
18.3. Ld. Counsel for the plaintiff relied upon a mutation letter dated 10.03.2004, issued by the MCD, Ex, PW-2/1 and receipts of house tax payment, Ex. PW-1/29 for the purpose of contending that the plaintiff, pursuant to execution of gift deed dated 15.09.1999, Ex. PW-1/28, has always exercised the rights over the said property as an owner. He submitted that it was the plaintiff only, who had been paying the property tax.
18.4. It is noted that the house tax receipts tendered in evidence by the plaintiff are receipt dated 29.08.1997 in the name of Vasdev, receipt dated 01.09.1997 in the name of Vasdev, receipt dated 10.03.2004 in the name of the Radha Krishan Wadhwa, and receipt dated 17.04.2010 in the name of Radha Krishan Wadhwa and Krishna Wadhwa. Thus, there are only two receipts in the name of the plaintiff. I am of the considered view that merely on the basis of mutation letter dated 10.03.2004 and a few house tax receipts, it cannot be said that the CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 33 of 52 AND AND Digitally signed by SACHIN CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan SACHIN MITTAL Date:
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plaintiff was exercising ownership rights in denial of the alleged family settlement/arrangement.
18.5. Ld. Counsel for the defendant placed reliance upon the pleadings of the suit no.87/2016 : 52099/2016, which was filed by late Nirmala Wadhwa. The pleadings of the said suit was tendered in evidence as Ex. DW-1/6. Ld. Counsel submitted that Nirmala Wadhwa in the plaint of the said suit had also alleged that a family settlement in the year 1995 was arrived at between the three brothers and the suit property was divided floor wise between them. However, as Nirmala Wadhwa has died and her statements in the plaint of the said suit are not covered under Section 26 of the BSA, the facts stated in the plaint of the said suit are merely a hearsay-evidence.
18.6. Ld. Counsel for the defendant in support of plea of family settlement has placed reliance upon the celebrated judgment of the Hon'ble Supreme Court pronounced in the case titled, Kale v. Dy. Director of Consolidation, (1976) 3 SCC 119, wherein it was held:
"9. Before dealing with the respective contentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all. By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection, Kerr in his valuable treatise Kerr on Fraud at p. 364 makes the following pertinent observations regarding the nature of the family arrangement which may be extracted thus:
"The principles which apply to the case of ordinary compromise between strangers do not equally apply to CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 34 of 52 AND AND CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed SACHIN by SACHIN MITTAL MITTAL Date: 2025.03.29 15:18:18 +0530 the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honestly made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to what their rights actually are, or of the points on which their rights actually depend."
The object of the arrangement is to protect the family from long-drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain .and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term "family" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. The law in England on this point is almost the same. In Halsbury's CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 35 of 52 AND AND Digitally signed CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan by SACHIN SACHIN MITTAL MITTAL Date:
2025.03.29 15:15:12 +0530 Laws of England, Vol. 17, Third Edition, at pp. 215-216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made:
"A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour.
The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term "family arrangement" is applied.
Family arrangements are governed by principles which are not applicable to dealings between strangers. The court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, and has regard to considerations which, in dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements."
10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
"(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family; (2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which case no registration is necessary;CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 36 of 52
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(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."
15. In Tek Bahadur Bhujil v. Debi Singh Bhujil [AIR 1966 SC 292, 295 : (1966) 2 SCJ 290] it was pointed out by this Court that a family arrangement could be arrived at even orally and registration would be required only if it was reduced into writing. It was also held that a document which was no more than a memorandum of what had been agreed to did not require registration. This Court had observed thus:
"Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 37 of 52 AND AND Digitally signed by CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan SACHIN SACHIN MITTAL MITTAL Date:
2025.03.29 15:18:23 +0530 the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess."
18.7. Regarding the family settlement/arrangement, it can be summarized that the Courts lean strongly in favor of family settlement; the family settlements are governed by a special equity; technical and trivial discrepancies should be ignored to facilitate a mutually agreeable instrument of family settlement; law favors family settlement that encourage amicable distribution of family property; the family settlement can be oral also; even an unregistered family settlement can be used as corroborative evidence for explaining the arrangement thereunder and conduct of the parties; and even an unregistered family settlement operates as an estoppel to preclude the family members, who had benefited from the arrangement to later challenge the validity of the same.
18.8. The facts that the said property was a joint family property purchased in the name of late Sh. Vasdev Wadhwa as a trustee for benefit of all members of the family; recital to similar effect in the gift deed dated 15.09.1999; and the fact that the defendant/counter- claimant has been residing in the ground floor of the property since the year 1995; make it more probable that the aforesaid family settlement/arrangement was in fact entered into.
18.9. The effects of the said family settlement would be that late Sh. Vasdev Wadhwa did not have any authority to execute the alleged CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 38 of 52 AND AND Digitally signed CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan by SACHIN SACHIN MITTAL Date:
MITTAL 2025.03.29 15:15:20 +0530 gift deed dated 15.09.1999 in favour of the plaintiff; and that the defendant as a legal heir of her late father, Mans Raj Wadhwa, has become owner of the suit property.
18.10. The defendant/counter-claimant, basis the family settlement of the year 1995, has sought the relief that mandatory injunction be issued to the plaintiff thereby directing him to execute the documents in respect of the suit property i.e. the ground floor in favour of the defendant/counter-claimant. The defendant/counter-claimant, in a way, is seeking specific performance of the said family settlement.
Such a relief can be granted in a suit for specific performance, which is governed by Chapter II of the Specific Relief Act, 1963. Section 41 of the said Act, which provides as to when the injunction cannot be granted, specifically provides under clause (h) that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. As the remedy of seeking specific performance of oral family settlement is available to the defendant/counter-claimant, the relief of mandatory injunction thereby directing the plaintiff to execute the documents in respect of the suit property in favour of the defendant/counter-claimant is declined.
18.11. The issue no.2 is determined in aforesaid terms in favour of the defendant.
19. Additional Issue no. 3(a):Whether gift deed dated 15.09.1999 executed by Vasdev Wadhwa is a forged and fabricated document? OPD/counter claimant.
19.1. The burden of proving this issue is fixed upon the defendant/counter-claimant.
19.2. The defendant for the purpose of proving this issue admitted in evidence the reports of two Forensic Experts, marked as Ex. DW-1/1 and Ex. DW-1/2. The defendant also examined the CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 39 of 52 AND AND Digitally signed CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan by SACHIN SACHIN MITTAL MITTAL Date:
2025.03.29 15:18:30 +0530 Forensic Expert, M.S. Mishra as DW-3, who had prepared the report, Ex. DW-1/1. The author of another report, Ex. DW-1/2, could not be examined as he was reported to have died.
19.3. On the other hand, the plaintiff for the purpose of proving the gift deed examined one Jagriti Jain as PW-4 and one Naveen Chhabra as PW-5. The PW-4 identified the signatures of her late father N.K. Jain, who was one of the witnesses in the gift deed 15.09.1999.
The PW-5 himself was one of the attesting witnesses on the gift deed dated 15.09.1999. He deposed that the Donar, late Vasdev Wadhwa; the Donees, Radha Krishan Wadhwa and Krishana Wadhwa; and the other witness, late N.K. Jain, had signed on the gift deed dated 15.09.1999 in his presence.
19.4. It is a settled law that identification of handwriting/signatures is not a perfect science. The opinion of a Handwriting/Signature Expert is not conclusive evidence. A Handwriting/Signature Expert has a tendency to depose in favour of the party at whose instance he is examined as witness before the Court.
19.5. Upon appreciation of evidences produced from both the sides, I am of the considered view that the defendant/counter-claimant has not been able to prove forgery/fabrication in the alleged gift deed dated 15.09.1999.
19.6. The aforesaid Additional Issue no.3(a) is, accordingly, decided against the defendant/counter-claimant.
20. Issue no.4: Whether the duly registered gift deed dated 15.09.1999, executed by Shri Vasdev Wadhwa (brother of the plaintiff and paternal uncle of the defendant) is liable to be cancelled as void ab initio? (OPD/-Counter Claimant) 20.1. The burden of proving this issue was fixed upon the defendant/counter-claimant.
CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 40 of 52 AND AND
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SACHIN by SACHIN
MITTAL
MITTAL Date: 2025.03.29
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20.2. The defendant/counter-claimant is seeking cancellation of registered gift deed dated 15.09.1999 mainly on three grounds: firstly, on the ground that the same was a forged and fabricated document; secondly, on the ground that the suit property being a joint family property, late Sh. Vasdev Wadhwa did not have an authority to dispose off the same by way of gift; and thirdly, on the ground that the three brothers had already divided the suit property floor-wise by way of an oral family settlement/arrangement in the year 1995.
20.3. The aforesaid first ground of seeking cancellation of the gift deed dated 15.09.1999 is liable to be rejected as it has already been held herein above while deciding the Additional Issue no. 3(a) that the said gift deed is not a forged and fabricated document.
20.4. The second ground is regarding the authority of late Sh. Vasdev Wadhwa to gift the said property. It has already been held herein above while deciding issue no.1 and 3 that the said property was purchased in the name of late Vasdev Wadhwa as a trustee for the benefit of all legal heirs of late Jaswant Rai Wadhwa. It has also been held that the said property was purchased out of death claim funds of late Sh. Jaswant Rai Wadhwa. The said property being a joint family property could not have been validly gifted by any member of the family. In this regard, Ld. Counsel for the defendant has relied upon the Judgment of the Hon'ble Supreme Court in Thamma Venkata Subbamma (Dead) by LR v. Thamma Rattamma and Ors. 4, wherein it was held that a coparcener cannot make a gift of his undivided interest in the coparcenary property either in favour of a stranger, or in favour of his relations:
15. The rigor of this rule against alienation by gift has been to some extent relaxed by the Hindu Succession Act, 1956. Section 30 of the Act permits the disposition by 4 MANU/SC/0570/1987 CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 41 of 52 signed Digitally by SACHIN AND AND CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan SACHIN MITTAL Date:
MITTAL 2025.03.29 15:18:36 +0530 way of will of a male Hindu in a Mitakshara coparcenary property. The most significant fact which may be noticed in this connection is that while the Legislature was aware of the strict rule against alienation by way of gift, it only relaxed the rule in favour of disposition by a will the interest of a male Hindu in a Mitakshara coparcenary property. The Legislature did not, therefore, deliberately provide for any gift by a coparcenary of his undivided interest in the coparcenary property either to a stranger or to another coparcener. Therefore, the personal law of the Hindus, governed by Mitakshara School of Hindu Law, is that a coparcener can dispose of his undivided interest in the coparcenary property by a will, but he cannot make a gift of such interest.
17. It is, however, a settled law that a coparcener can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior consent of all other coparceners.
Such a gift would be quite legal and valid.
20.5. The aforesaid Judgment is on the point that a coparcener cannot gift his undivided interest in the joint family property. In the present case, the entire joint family property i.e. the said property is claimed to have been gifted by late Sh. Vasdev Wadhwa in favour of the plaintiff. In view of the settled law, Sh. Vasdev Wadhwa in the capacity of being a member or karta did not have any authority to gift the said property by way of the alleged gift deed dated 15.09.1999. The aforesaid second ground of seeking cancellation of gift deed is, therefore, upheld.
20.6. The third ground is that late Sh. Vasdev Wadhwa pursuant to family settlement having been arrived at between three brothers in the year 1995 had no right to gift the said property by way of gift deed dated 15.09.1999. In this regard, it has also been held herein above while deciding issue no.2 that the three brothers, late Sh. Mans Raj Wadhwa, late Sh. Vasdev Wadhwa and the plaintiff, Radha Krishan Wadhwa had entered into an oral family settlement in the year 1995. As CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 42 of 52 AND AND Digitally signed CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan by SACHIN SACHIN MITTAL Date:
MITTAL 2025.03.29 15:15:31 +0530 per the said family settlement, only first floor had fallen into the share of late Sh. Vasdev Wadhwa; and the ground floor had fallen into the share of defendant's father late Sh. Mans Raj Wadhwa. Late Vasdev Wadhwa, therefore, did not have an authority to make gift of the entire property, including that of the defendant/ counter claimant. The third ground is, therefore, also upheld.
20.7. It is also noted that "gift" is one of the modes of transfer of property recognized in the Transfer of Property Act, 1882. As per Section 7 of the said Act, a property can be transferred only by a person, who is either entitled to the said property, or who is authorized to dispose of the property not belonging to him. As per Section 8, upon transfer of a property, only those interests are transferred to the transferee, which the transferrer is capable of transferring. In the present case, it has already been held herein above that late Sh. Vasdev Wadhwa was not the owner of the said property; and it has further been held that he was also not entitled to dispose of the same by way of a gift.
Therefore, the gift of the said property by late Sh. Vasdev Wadhwa would also not transfer the ownership in the property in favour of the plaintiff. For all these reasons also, the gift deed dated 15.09.1999, is liable to be cancelled as void ab initio.
20.8. The plaintiff contested the relief of declaration with respect to the gift deed as sought by the defendant/counter-claimant on the ground that the same is barred by limitation. Article 58 in the Schedule annexed with the Limitation Act, 1963, prescribes 3 years as a period of limitation for a relief of declaration and the said period begins to run when the right to sue first accrues. The case of the defendant/counter-claimant is that she came to know about the alleged gift deed dated 15.09.1999, when she received a copy of the same along with the plaint at the time of service of summons in the main suit. The plaintiff has failed to lead any evidence to prove that the CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 43 of 52 AND AND Digitally signed CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan by SACHIN SACHIN MITTAL MITTAL Date:
2025.03.29 15:20:40 +0530 defendant/counter-claimant had knowledge of the said gift deed at any time prior thereto. This relief, therefore, cannot said to be barred by limitation.
20.9. The issue no.4 is, therefore, decided in favour of the defendant/counter-claimant.
21. Issue no.5: Whether the plaintiff is entitled to a Decree of possession in respect of the ground floor of the suit premises on the basis of the registered gift deed dated 15.09.1999, executed by late Shri Vasdev Wadhwa? (OPP)
21.1. The burden of proving this issue was fixed upon the plaintiff.
21.2. In view of the findings on other issues recorded herein above, the present issue is liable to be decided against the plaintiff and in favour of the defendant/counter-claimant.
21.3. Having said above, Ld. Counsel for the defendant/counter-claimant urged an additional ground for denial of the relief of possession to the plaintiff. He submitted that plaintiff's title over the suit property, being under cloud, he could not have simply sought the relief of recovery of possession with injunction without seeking declaration with respect to his title over the property. For this proposition, Ld. Counsel relied upon the Judgment of the Hon'ble Supreme Court in Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs and Ors.5:
11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or 5 MANU/SC/7376/2008 CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 44 of 52 Digitally signed AND AND by SACHIN CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan SACHIN MITTAL MITTAL Date:
2025.03.29 15:15:35 +0530 threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 45 of 52 AND AND Digitally signed CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan by SACHIN SACHIN MITTAL MITTAL Date:
2025.03.29 15:18:43 +0530 need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy.
Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 46 of 52 AND AND CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed by SACHIN SACHIN MITTAL MITTAL Date:
2025.03.29 15:18:55 +0530 comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-
forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
21.4. A suit for possession of an immovable property can be filed either on the basis of previous possession, or on the basis of title.
21.5. When the suit is on the basis of previous possession, the period of limitation, as provided under Article 64 of the Schedule annexed to the Limitation Act, 1963, is 12 years from the date of dispossession by the defendant.
21.6. When the suit is on the basis of title, the period of limitation, as provided under Article 65 of the Schedule annexed to the Limitation Act, 1963, is 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. In such a suit, the plaintiff is required to prove: firstly, that he possesses the title over the suit property, and secondly, that the possession of the defendant has become adverse to him within 12 years immediately before the filing of the suit. The defendant can defend such a suit by disputing the title of the plaintiff, or by establishing his own title. A suit for possession on the basis of title can be explained by two illustrations. Suppose, a CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 47 of 52 AND AND CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed SACHIN by SACHIN MITTAL MITTAL Date: 2025.03.29 15:15:40 +0530 person 'A' claiming to be a lawful owner of a property allows another person 'B' to reside in the said property as a Licensee upon the payment of monthly license fees. After some time, the said Licensee 'B' stops the payment of monthly license fees and refuses to vacate the property. In such a case, the owner 'A' is required to file a suit for possession on the basis of his title against 'B' within 12 years from the date when the Licensee 'B' stopped paying the monthly license fee and started claiming adversely to the owner 'A'. Let us take another example. Two sons, 'A' and 'B' inherit a property from their deceased father. While 'A' is living in the said property, 'B' is living in another city due to his job. Initially, after the death of father, there was no dispute between 'A' and 'B'. After some time, 'B' shifts to the same city wherein the said inherited property is situated. 'B' wants to reside in some portion of the said property. However, 'A' does not allow 'B' to shift in the said property and rather, claims that he is the sole owner of the said property. 'A' also refuses the demand of 'B' for partition of the said property. In such a case, 'B' is required to file a suit for possession on the basis of title/co-ownership within 12 years from the date 'A' refused to agree to the partition of the said property.
21.7. It is required to be noted that the nature of reliefs in a suit depends upon the cause of action furnished by the act/omission of the defendant. In other words, if the defendant dispossesses the plaintiff forcibly or without due process of law, the plaintiff is required to file suit for possession on the basis of previous possession. On the other hand, if the possession of the defendant, which was permissive in the beginning, becomes adverse to the plaintiff at a later point of time, the plaintiff is required to file a suit for possession on the basis of title. The pleadings, issues and burden of proof, all, depend upon the cause of action alleged and reliefs sought in a suit.
CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 48 of 52 AND AND
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed
by SACHIN
SACHIN MITTAL
MITTAL Date:
2025.03.29
15:15:45 +0530
21.8. The plaintiff claiming to be the owner of the said property by virtue of gift deed dated 15.09.1999 has filed the present suit on the basis of title. He also claims that the possession of the defendant, who was living in the suit property as a licensee, became adverse, subsequent to her refusal to vacate the same after termination of her license.
21.9. It is required to be noted that the plaintiff's title, being under cloud by virtue of 6th recital in the gift deed dated 15.09.1999, basis which he is claiming ownership in the suit property, it was necessary for him to first clear the said cloud by seeking the relief of declaration in addition to the reliefs of possession and injunction as sought in the present suit. The title of the plaintiff came under even heavier clouds upon the defendant filing the written statement and counter-claim therein raising dispute over title of the plaintiff. At least, at that stage, the plaintiff should have sought the permission to amend the plaint so as to include the additional relief of declaration with respect to title over the suit property. The plaintiff, having failed to do so, is not entitled to the relief of possession by the ratio of Anathula Sudhakar (Supra).
21.10. Ld. Counsel for the plaintiff in a counter to Anathula Sudhakar (Supra) relied upon the Judgment of Hon'ble Supreme Court in Padhiyar Prahladji Chenaji (deceased) through LRs v. Maniben Jagmalbhai (deceased) through LRs and Ors.6. In this case, plaintiff had filed a suit for declaration of title, declaration that the sale deed executed by her husband in favour of the defendant was void, and further relief of injunction for restraining the defendant from interfering in her possession over the suit property. The defendant, apart from defending the sale deed, also claimed to be in possession over the suit property. The Trial Court declined the relief of declaration 6 Civil No. 1382 of 2022 CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 49 of 52 AND AND Digitally signed CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan by SACHIN SACHIN MITTAL MITTAL Date:
2025.03.29 15:15:49 +0530 with respect to title of the plaintiff as well as the relief of declaration that the sale deed is void. The relief of injunction was, however, granted in favour of the plaintiff. The plaintiff did not challenge the denial of aforesaid two reliefs of declarations. The defendant, however, preferred an appeal first before the first Appellant Court and having failed there he filed a second appeal before the Hon'ble High Court to the extent the relief of injunction was granted in favour of the plaintiff. Both the Appellants Courts dismissed the appeals of the defendant and affirmed the relief of injunction in favour of the plaintiff. The matter came to the Hon'ble Supreme Court upon an SLP filed by the defendant. It was argued on behalf of the plaintiff that the defendant should file a separate suit seeking relief of possession against the plaintiff. However, the Hon'ble Supreme Court held that once the relief of title was adjudicated in favour of the defendant, there was no need for defendant to file a separate suit for possession and that the plaintiff was not entitled to the relief of injunction. Pertinently, the Hon'ble Supreme Court held that the plaintiff was not entitled to the relief of injunction; it was not held that if the defendant were to file a separate suit, he could have simply sought the injunction or possession when his title was not clear.
21.11. The facts of the aforesaid case as discussed herein above being totally different from those involved in the present case, the law as explained in Padhiyar (Supra) as relied upon by the plaintiff would not help him.
21.12. The issue no.5 is, therefore, decided against the plaintiff.
22. Issue no.6: If issue no.5 is decided in favour of the plaintiff, whether he is entitled to claim damages/mesne profits against the defendant in respect of the suit premises, if so at what rate and for what period? (OPP) And CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 50 of 52 AND AND CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed SACHIN by SACHIN MITTAL MITTAL Date: 2025.03.29 15:20:56 +0530 Issue no.7: Whether the plaintiff is entitled to a Decree of permanent injunction against the defendant in respect of the suit premises, as prayed for in prayer clause (iv)? (OPP) And Issue no.8: Whether the plaintiff is entitled to a Decree of mandatory injunction against the defendant in respect of the suit premises, as prayed for in prayer clause (v)? (OPP)
22.1. The burden of proving of all these issues was fixed upon the plaintiff.
22.2. All other issues having been decided in favour of the defendant/counter-claimant and against the plaintiff, these issues, being based upon the ancillary/ consequential reliefs to the main reliefs, are also liable to be decided against the plaintiff. Held so.
CONCLUSION/ RELIEF, IF ANY (MAIN SUIT, CS DJ NO. 9455/16):
23. As a net result of findings upon issues, the plaintiff, Radha Krishan Wadhwa, is not entitled to any relief as sought in the plaint. Plaintiff's suit is, therefore, dismissed with costs, as per rules, in favour of the defendant/counter-claimant, Kusum Wadhwa.
CONCLUSION/ RELIEF, IF ANY (COUNTER-CLAIM CS DJ No. 249/25):
24. A Decree granting the following reliefs in favour of the defendant/counter-claimant, Kusum Wadhwa and against the plaintiff, Radha Krishan Wadhwa, is passed:
(a) It is declared that the gift deed dated 15.09.1999 bearing registration no. 2376, in additional book no.1, volume no. 140 on pages 43 to 49 registered with the office of Sub Registrar, New Delhi, in relation to the property bearing no. I-30, Lajpat Nagar-
III, New Delhi-110024, is null and void ab initio as the Donar, late Vasdev Wadhwa did not have right to execute the same;
CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 51 of 52 AND AND
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed
by SACHIN
SACHIN MITTAL
MITTAL Date:
2025.03.29
15:15:54 +0530
(b) The office of Sub Registrar is directed to cancel the gift deed as
mentioned in clause (a) herein above;
(c) The plaintiff, Radha Krishan Wadhwa, is directed to remove the
welded iron sheet on the iron door leading to the common area on the ground floor where electricity control panel installed;
(d) Costs as per the rules.
25. It is made clear here that this counter-claim has been allowed partly only. The relief of mandatory injunction thereby directing the plaintiff to execute the documents in respect of the suit property i.e. the ground floor in favour of the defendant/ counter-claim, as sought, has been declined.
26. Decree sheet be prepared accordingly.
27. File be consigned to Record Room thereafter.
28. This Judgment is being signed in two sets. One set each be placed in the judicial record of the main suit and counter-claim.
Announced & dictated in the open Court on 29.03.2025 (Sachin Mittal) District Judge-03/South-East District Saket Courts, New Delhi/29.03.2025 Certified that this Judgment contains 52 pages and each page bears my signatures.
(Sachin Mittal) District Judge-03/South-East District Saket Courts, New Delhi/29.03.2025 Digitally signed by SACHIN SACHIN MITTAL Date: MITTAL 2025.03.29 15:15:58 +0530 CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 52 of 52 AND AND CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan