Delhi District Court
3 vs Sh. Kamaljeet Singh Nanda on 30 May, 2019
IN THE COURT OF SH. M. P. SINGH, ADDITIONAL DISTRICT JUDGE
03, EAST DISTRICT, KARKARDOOMA COURTS: DELHI
CS No. 2777/16
Sh. Kartar Singh Kochar,
S/o late Takhat Singh
R/o B87, Sector 41, Noida ................ Plaintiff
Versus
1. Sh. Kamaljeet Singh Nanda
S/o Ranjeet Singh Nanda
R/o B4, Aditya Complex
BlockC, 3, Yamuna Vihar, Delhi
2. Mrs. Meenu Nanda
W/o Sh. K.S. Nanda
R/o B4, Aditya Complex
BlockC, Yamuna Vihar, Delhi ............Defendants
SUIT FOR POSSESSION AND PERMANENT INJUNCTION
Suit instituted on 25.03.2011
Judgment pronounced on - 30.05.2019
JUDGMENT
1. Plaintiff's grandmother late Jaswant Kaur1 purchased a property bearing no. X/926, measuring 475 sq. yards with structure in khasra no. 119121, Chand Mohalla (Ganesh Park), Gandhi Nagar, Delhi vide a registered sale deed (Ex. PW1/1) dt. 29.01.1966. Late Jaswant Kaur died intestate in 1964 leaving behind the following legal heirs: (a) husband Sukha Singh (plaintiff's grandfather), and
(b) son Takhat Singh (plaintiff's father). Sukha Singh (plaintiff's grandfather) 1 In the plaint, plaintiff avers that his grandfather late Sukha Singh owned the property vide sale deed dt. 29.01.1966; whereas in his evidence by way of affidavit Ex. PW1/A he states that his grandmother late Jaswant Kaur owned the property vide the sale deed dt. 29.01.1966. Written text of the sale deed dt. 29.01.1966 Ex. PW1/1 shows that the property had been purchased in the name of late Jaswant Kaur.
CS No. 2777/16 Page 1/18passed away intestate on 24.10.1971. Thereupon, Takhat Singh (plaintiff's father) became owner of the property.
2. Takhat Singh passed away on 07.08.1984 leaving behind the following heirs: (a) widow Harbhajan Kaur, (b) son Kartar Singh Kochar (plaintiff herein), and (c) son Harjit Singh2 (who passed away in 2003). Ms. Satnam Kaur was the spouse of Harjit Singh.
3. On 22.01.2004 Smt. Harbhajan Kaur (plaintiff's mother) executed a registered Relinquishment Deed (Ex. PW1/2) in favour of her daughterinlaw Ms. Satnam Kaur (spouse of Harjit Singh) qua her undivided share in the aforesaid property. Smt. Harbhajan Kaur died intestate in 2004. During this time, the plaintiff was residing and working in USA.
4. Ms. Satnam Kaur, acting as the absolute owner of the property, sold 217 sq. yards of it to the plaintiff vide a registered sale deed dt. 07.03.2006 (Mark A).
5. Remaining portion of the aforesaid property continued to remain in possession of Ms. Satnam Kaur till her demise. Ms. Satnam Kaur passed away in year 2009 (death certificate Ex. DW1/2 reflects she died on 04.05.2008) and as per the plaintiff she had died intestate. She lived alone till her death. Ms. Satnam Kaur and her husband Harjit Singh had no issues.
2 In the plaint and in his evidence by way of affidavit Ex. PW1/A, plaintiff avers that Harjit Singh, Ms. Satnam Kaur's husband, was a 'predeceased' son of late Takhat Singh. However, this appears to be not correct. Plaintiff (PW1) in his crossexamination states, "The husband of Satnam Kaur expired six years prior to Satnam Kaur's death." As per the plaint, Ms. Satnam Kaur passed away in 2009. Thus, Harjit Singh would have passed away in 2003, much after the demise of late Takhat Singh. Therefore, it is but obvious that Harjit Singh could not have been a 'predeceased' son of late Takhat Singh. This is also clear from the evidence by way of affidavit Ex. DW1/A of defendant no.2 Meenu Nanda (DW1) wherein she, inter alia, states, "Shri Harjit Singh died in the year 2003 issueless." On clarifications being sought, plaintiff's counsel had said that this was an inadvertent error.
CS No. 2777/16 Page 2/186. Plaintiff avers that in terms of section 15, Hindu Succession Act and the Schedule attached thereto, he has inherited the rights of deceased Ms. Satnam Kaur and as such, right, title and interest in the remaining portion of the aforesaid property has devolved upon him. Defendants claim to be distant relatives of Ms. Satnam Kaur. They used to pay regular visits to Ms. Satnam Kaur. Defendants are currently in physical possession of the property in dispute (remaining portion of the property). Defendants, taking advantage of Satnam Kaur's advanced age, allegedly removed all the movables, including jewellery, from the property in dispute. Plaintiff returned to India on 05.02.2011. On or around 10.02.2011 he went to visit the property in dispute and contacted the defendants for delivery of keys. Defendants did not deliver the keys to him, but they opened the locks and permitted him to visit the said property. Plaintiff's demand for the keys and actual possession was met with refusal. Defendants however requested him to visit the disputed property. On 12.02.2011 plaintiff's numerous telephonic calls to the defendants, in particular to defendant no.1, for seeking appointment, were turned down on one lame excuse or the other like being unwell and being away from home. Defendants, in order to grab plaintiff's share, avoided meeting him, as they knew that he was leaving India for USA on 07.03.2011. On these, averments plaintiff seeks the following reliefs:
(a) A decree of possession qua the property in dispute in his favour and against the defendants with costs.
(b) Restrain the defendants, their servants, agents etc. from selling, gifting, mortgaging, leasing or creating any third party interest in the property in dispute.
7. In the written statement, it is claimed that defendant no.2 is the absolute CS No. 2777/16 Page 3/18 and exclusive owner of the property in terms of a Will dt. 10.12.2007 (Ex. DW1/1) executed by Ms. Satnam Kaur. It is stated that defendants have been residing in the property in dispute since long and that the plaintiff, who has been residing in USA for last several years, never cared for Satnam Kaur and never visited the property. According to them, the suit is not properly valued as the value of the property is more than the value shown in the plaint. Defendants accuse the plaintiff of suppressing true and material facts. According to them, true facts are as follows: Satnam Kaur was the real sister of Harbhajan Singh (father of defendant no.2 Meenu Nanda). Jaswant Singh was also the brother of Satnam Kaur. Satnam Kaur was married to Harjit Singh and they were issueless. After Harjit Singh's demise in 2003 both Harbhajan Singh (father of defendant no.2 Meenu Nanda) and Jaswant Singh started living in the property as their sister Satnam Kaur was alone. Defendant no.2 Meenu Nanda also started to live there. They started to look after Satnam Kaur. Harbhajan Singh (father of defendant no.2 Meenu Nanda) passed away in 2005. Jaswant Singh died unmarried in 2007. Defendant no.2 Meenu Nanda was/is the only daughter of Harbhajan Singh i.e. the only niece of Satnam Kaur. After the demise of Harbhajan Singh and Jaswant Singh, defendant no.2 Meenu Nanda was the only person to look after Satnam Kaur. She served Satnam Kaur during her lifetime. Satnam Kaur possessed the property in dispute as its owner. Satnam Kaur out of natural love and affection executed the Will dt. 10.12.2007 (Ex. DW1/1) in her (defendant no.2 Meenu Nanda's) favour thereby bequeathing the property in dispute as also the movables etc. to her. Denying the allegations against them, defendants seek dismissal of the suit.
CS No. 2777/16 Page 4/188. Plaintiff in his replication reaffirmed and reiterated his averments as set out in the plaint and refuted those of the defendants as set out in their written statement.
9. Issues framed on 16.12.2013 are as follows:
(i) Is the plaintiff entitled to a decree of possession of the property at X926 situated in Khasra No. 119 to 121, Abadi Chand Mohalla (Ganesh Park), Gandhi Nagar, Delhi? OPP
(ii) Is the Will dated 10th December 2007 genuine and if yes, is Defendant no.2 the absolute owner of the suit property by virtue of the Will dated 10th December 2007? OPD
(iii) Has the plaintiff suppressed material facts and the effect thereof? OPD
(iv) Has the plaint been properly valued for the purposes of court fees and jurisdiction? OPD
(v) Relief
10. In plaintiff's evidence following witnesses were examined: PW1 Kartar Singh Kochar. He is the plaintiff himself.
PW2 Shakti Singh, Date Entry Operator from the office of SubRegistrar VIII, Geeta Colony, Delhi31. He entered the witness box to prove the factum of registration of Relinquishment Deed (Ex. PW1/2) dt. 22.01.2004 executed by Smt. Harbhajan Kaur (plaintiff's mother) in favour of her daughterinlaw Ms. Satnam Kaur (spouse of Harjit Singh) qua her undivided share in the property no. X/926, measuring 475 sq. yards with structure in khasra no. 119121, Chand Mohalla (Ganesh Park), Gandhi Nagar, Delhi.
CS No. 2777/16 Page 5/1811. In defendants' evidence following witnesses were examined: DW1 Meenu Nanda. She is defendant no.2 and beneficiary of the Will dt. 10.12.2007 (Ex. DW1/1).
DW2 Kamaljeet Singh Nanda. He is defendant no.1 and husband of defendant no.2. He is an attesting witness to the Will dt. 10.12.2007 (Ex. DW1/1).
DW3 Smt. Baljeet Kaur. She lives next door to the property in dispute. She too is an attesting witness to the Will dt. 10.12.2007 (Ex. DW1/1).
12. Arguments heard. Record perused.
13. Issuewise findings are as follows.
14. Issue no.4 - The issue is whether the plaint has been properly valued for the purposes of court fee and jurisdiction. Plaintiff valued the relief of possession, governed by section 7 (vi) of Courtfees Act, at Rs. 77,90,000/. Defendants, in their written statement, state that this valuation is erroneous inasmuch as the property in dispute is valued much more than Rs. 77,90,000/. Defendants, however, led no evidence whatsoever to prove their stand. In view thereof plaintiff's valuation at Rs. 77,90,000/ for the relief of possession for the purpose of court fee, has to be accepted. Ad valorem court fee thereon of Rs. 78500/ is adequate. Insofar as the relief of injunction is concerned, section 7 (iv)
(d) of Courtfees Act governs its valuation and plaintiff is given a right to place any valuation for the purpose of court fee. Valuation at Rs. 130/ for the relief of permanent injunction is in tune with Delhi High Court Rules and Orders. (Chapter 3 Part C & D, Volume I} and on this plaintiff is required to pay ad CS No. 2777/16 Page 6/18 valorem court fee subject to minimum of Rs. 13 only.
15. Now to the valuation for jurisdiction under Suits Valuation Act. In terms of Section 8 of Suits Valuation Act, valuation of the present suit for the purpose of court fee would also be the valuation for pecuniary jurisdiction. Thus, valuation for the purpose of pecuniary jurisdiction would be Rs. 77,90,130/ (Rs. 77,90,000 + Rs. 130/), which is well within the pecuniary limits of this court.
16. This issue is thus answered in plaintiff's favour and against the defendants by holding that the plaint has been properly valued for the purposes of court fee and jurisdiction and adequate court fee thereon has been paid.
17. Issue no.2 - The issue is whether the Will dt. 10.12.2007 is genuine and if so, whether defendant no.2 Meenu Nanda is the absolute owner of the suit property by virtue of the Will dt. 10.12.2007, onus being on defendants to prove it. In Vidya Sagar Soni vs. State & Ors., (2006) 132 DLT 226 : 2006 SCC OnLine Del 965 it has been held:
6. The legal burden to prove due execution always lies upon the person propounding a will. The propounder must satisfy the judicial conscience of the court that the instrument so propounded is the last will of a free and capable testator.
7. A will is a solemn document, being written by a person who is dead and who cannot be called in evidence to testify about the due execution of the will. It is the living who have to establish the will. It naturally throws a heavy burden on the court to satisfy its judicial conscience that the burden of proof of due execution is fully discharged and every suspi cious circumstance explained.
8. No specific standard of proof can be enunciated which must be appli cable to all the cases. Every case depends upon its own circumstances. Apart from other proof, conduct of parties is very material and has con siderable bearing on evidence as to the genuineness of the will which is CS No. 2777/16 Page 7/18 propounded. Courts have to be vigilant and zealous in examining evi dence. Rules relating to proof of wills are not rules of Laws but are rules of prudence. Normally, a will is executed by a person where he desires, to either alter the normal rule of succession, or where he desires to settle his estate in a particular manner amongst the legal heirs. Therefore, though to be kept in mind, as to what is the nature of bequest too much importance cannot be attached to the disproportionate nature of a be quest. However, as observed in AIR 1995 SC 1684 Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (dead) by LRs, dispropor tionate nature of a bequest is no doubt a suspicious circumstance to be kept in mind, but, being a mere suspicion, it is capable of being dispelled by other evidence to show voluntary character of the document.
9. Therefore, the first rule to appreciate evidence is to peruse the will. Normally, if there is rationality in a will, a presumption arises about due execution. Of course, being a presumption, it is rebuttable.
10. As observed in AIR 1962 Punjab 196 Smt. Kamla Devi v. Kishori Lal Labhu Ram and Ors., the omission of a close relation from the bounty of a testator raises a presumption in favor of some undue influ ence. The probative force of such a testament rises and falls in inverse ra tio to its unreasonableness.
11. The more unreasonable an instrument is, the less probative value it carries. Where the terms of a will are unusual and the evidence of testa mentary capacity doubtful, or due execution doubtful, the vigilance of the Court will be roused and before pronouncing in favor of the will, the court would microscopically examine the evidence to be satisfied beyond all reasonable doubt that the testator was fully conversant of the contents and executed the will fully aware of what he was doing.
12. Expanding on the care and caution to be adopted by courts, and pre sumptions to be raised, in the decision reported as (1864) 3 Sw & Tr. 431 In The Goods of Geale, it was opined that where a person is illiterate or semi literate or the will is in a language not spoken or understood by the executor, the court would require evidence to affirmatively establish that the testator understood and approved all the contents of the will.
13. This affirmative proof of the testator's knowledge and approval must be strong enough to satisfy the court, in the particular circumstances, that the will was duly executed.
CS No. 2777/16 Page 8/1814. One form of affirmative proof is to establish that the will was read over by, or to, the testator when he executed it. If a testator merely cats his eye over the will, this may not be sufficient. [see 1971 P.62 Re Moris). In the report published as (1867) 1 P.D.359 Goodacr v. Smith, it was held that another form of affirmative proof is to establish that the testator gave instructions for his will and that the will was drafted in ac cordance with those instructions.
15. Courts have to evaluate evidence pertaining to the circumstances un der which the will was prepared. If a will is prepared and executed under circumstances which raise a well grounded suspicion that the executor did not express his mind under the will, probate would not be granted un less that suspicion is removed.
16. As held in the report published as (1838) 2 Moo P.C. 480 Barry v. Butlin, a classic instance of suspicious circumstances is where the will was prepared by a person who took a substantial benefit under it. An other instance is as opined in the report published as (1890) 63 LT 465 Brown v. Fisher where a person taking benefit under the will has an ac tive role to play in the execution of the will.
17. A word of caution. Circumstances can only raise a suspicion if they are circumstances attending, or at least relevant to the preparation and execution of the will itself.
18. How the legal heirs acted and how and when a will was propounded after the death of the executor are also relevant to decide upon, where the will is genuine or a created or a procured document.
19. Another point that has to be considered is about the improbability in the manner in which the instrument is scripted. As observed in the report published as AIR 1959 SC 443 H. Venkatachala Iyengar v. B. N. Thim majamma & Ors., instance of suspicious circumstances would be alleged signatures of the testator being shaky and doubtful, condition of the testa tor's mind being feeble and debilitated, bequest being unnatural, improb able or unfair. Apart from these infirmities, propounder taking a promi nent part in the execution of the will, more so when substantial benefits flow to them are all presumptive of the will not being duly executed and or of suspicious circumstances.
20. Suspicious circumstances are a presumption to hold against the will. Greater is the suspicion more heavy would be the onus to be discharged by he who propounds the will.
CS No. 2777/16 Page 9/1821. Reference to satisfaction of judicial conscience is a heritage inherited by court's since time immemorial for the reason, as noted above, a will is a solemn declaration as per which the living have to carry out the wishes of a dead person.
(underlined for emphasis)
18. DW1 and DW2 were examined on the very same day. The relevant extracts of their crossexamination runs as follows:
DW1 Meenu Nanda (Beneficiary) The Will Ex. DW1/1 was written in the above said property. The deceased Smt. Satnam Kaur deputed my husband to call the document writer. At the time of writing of the Will, Smt. Satnam Kaur, myself, my husband, Smt. Baljeet Kaur and document writer were present. Smt. Baljeet Kaur was close neighbour of Smt. Satnam Kaur. Smt. Satnam Kaur was having affectionate relation with Smt. Satnam Kaur.
DW2 Kamaljeet Singh Nanda (Attesting Witness) The Will Ex. DW1/1 was written at the residence of the deceased Satnam Kaur. The same was got typed by the typist under the instructions of deceased Smt. Satnam Kaur. It is correct that the dictation was given by the Advocate in English. Smt. Satnam Kaur, directly contacted the Advocate. At the time of preparation of the Will Ex. DW1/1, I, deceased Satnam Kaur, my wife, Advocate, typist and Smt. Baljeet Kaur were present. Deceased Satnam Kaur put her thumb impressions on the Will Ex. DW1/1 first.
19. DW3 Baljeet Kaur, who was examined 04 months later deposed, inter alia, as follows in her crossexamination.
DW3 Baljeet Kaur (Attesting Witness) The deceased Smt. Satnam Kaur telephoned the advocate and called the said advocate at her residence for the purpose of execution of the Will in question. The telephone call was made in my presence in the afternoon. I happened to be in the residence of the deceased Smt. Satnam Kaur. At the time of writing and execution of the WILL, I along with Smt. Meenu Nanda, her husband and Sh. K.S. Nanda, one advocate and one typist were present. The WILL was got typed under CS No. 2777/16 Page 10/18 the instructions of the deceased Smt. Satnam Kaur.
20. The Will appears to have been typed with a manual typewriter and consists of two sheets. Oral evidence of DW1, DW2 and DW3 makes it appear that the Will was drafted and executed in a single sitting at the residence of the deceased. It contains no name(s) of any Advocate, or any typist, much less any document writer. It does not, on the face of it, refers to having been drafted by any Advocate or any document writer. The identities of the socalled document writer, the Advocate and the typist are unknown and shrouded in mystery; none of them have been examined. Further, it is not defendants' case that they had a typewriter at their house. But, neither do the defendants say that the typewriter had been brought by the document writer, or the advocate, or the typist. It has not come in defendants' evidence as to how the typewriter was procured at deceased's residence. Next, DW1 and DW2 contradict each other on the aspect as to who it was who had drafted the Will. DW1 says that it was a document writer who had drafted the Will. On the other hand DW2 says that it was actually an Advocate together with a typist who had drafted the Will. Needless to say, a document writer need not necessarily be an Advocate. DW1 and DW2 also differ on the manner of drafting of the Will. From the evidence of DW1 it appears that document writer had himself typed the Will, albeit on instructions of the deceased. However, the evidence of DW2 shows that deceased's instructions were conveyed to the unknown Advocate who then gave dictation in English to the typist. DW1 and DW2 also differ as to who had summoned the draftsman, be it the document writer or the Advocate together with the typist. DW1 says that deceased Smt. Satnam Kaur deputed her husband to call the document writer. On the other hand, DW2 says that Smt. Satnam Kaur directly contacted the CS No. 2777/16 Page 11/18 Advocate. As per DW3, deceased Satnam Kaur had telephoned the Advocate. Either ways draftsman's identity could not have remained a mystery and unbeknownst to all. If it was Kamaljeet Singh Nanda, who had called the document writer (as deposed by DW1 Ms. Meenu Nanda) then he ought to have known him. If deceased Satnam Kaur had herself contacted the Advocate telephonically then too the defendants would have, in all probability, known to him. The Advocate called by Satnam Kaur would certainly not have been a stranger, but someone known to her. Defendants had been living with Satnam Kaur for the last several years. And consequently, it is unlikely that the defendants would not actually know or even endeavoured to know the identity of that Advocate, if at all summoned by Satnam Kaur herself. The fact that the DW1 and DW2 differ on veryvery vital aspects of execution of the Will cannot be explained away by saying that memory of a witness fails with the passage of time. The aspects on which they differ are vital, fundamental and go to the root of the matter. The issue as to whether the Will had been drafted by a document writer all alone or by an Advocate through dictations in English to a typist is something that is vital and fundamental and any contradiction on this score would be a material one. And this would be more so when identities of the document writer /Advocate /typist remain inscrutable. Further, the evidence on record does not disclose whether narration of the Will by Satnam Kaur to the draftsman was in Hindi or in Punjabi or in some other language. Next, defendants no. 1 and 2, who are the beneficiary and the attesting witness respectively as also husband and wife duo, appear to have played a major role in execution of the Will. These suspicious circumstances indicate that the Will was not executed in the manner in which the defendants want this Court to believe and there is CS No. 2777/16 Page 12/18 actually something more to it. Next, the Will, on the face of it, nowhere discloses to have been read over to Satnam Kaur, before she affixed her thumb impressions, and if so by whom. Even the evidence of DW1, DW2 and DW3 does not disclose as to whether the Will had been read over to her, and if so by whom. Lastly, to one aspect which is very crucial. The Will dt. 10.12.2007 is shown to bear the thumb impressions only of Satnam Kaur; it does not bear her signatures. In the registered sale deed dt. 07.03.2006 (Mark A) there are signatures of Satnam Kaur in English. In the registered relinquishment deed dt. 22.01.2004 (Ex. PW1/2) there are signatures of Satnam Kaur in Punjabi. In this background, the big question to be asked is why did Satnam Kaur not append her signatures on the Will dt. 10.12.2017. On this score, there is no explanation whatsoever forthcoming from the defendants. It may be mentioned here that DW3 in her crossexamination stated, "Smt. Satnam Kaur was not suffering from any disease except routine type of disease due to old age like fever etc." Therefore, if she was suffering from only 'routine type of disease like fever' there is no reason as to why she could not have appended her signatures on the Will dt. 10.12.2007. It may be mentioned here that in the absence of complete information about the Will in examinationinchief of DW1, DW2 and DW3 no benefit of absence of crossexamination, if any, in that regard can be given to the defendants. It was primarily for the defendants to set forth all the requisite details about the Will in their examinationinchief. Incomplete information sought to be disclosed regarding the Will cannot enure to defendants' benefit merely because there was no crossexamination on certain aspects thereof. This is for the reason that due execution of Will is a matter of satisfaction of judicial conscience.
21. It bears repetition to state that DW3 was examined 04 months after the CS No. 2777/16 Page 13/18 examination of DW1 and DW2. Given this gap of 04 months it is highly likely that DW3 made her responses to fall in line with that of DW2 so as to avoid any further contradictions. But the contradictions in the oral evidence of DW1 and DW2, who were examined on the same day, are material and significant.
22. Due execution of the Will dt. 10.12.2007 (Ex. DW1/1) is highly doubtful. It does not satisfy the judicial conscience of this Court. There are several suspicious circumstances surrounding this Will. And to these suspicious circumstances there are absolutely no explanations forthcoming from the side of the defendants. Needless to say, it was for the propounders (defendants herein) to satisfy the judicial conscience of the court that the instrument so propounded was the last Will of a free and capable testator. They have miserably failed to do so.
23. Defendants have failed to discharge the burden of proving this issue. It is held that the Will dt. 10.12.2007 is not genuine. It is also held that defendant no.2 Meenu Nanda is not proved to be the absolute owner of the property in dispute in terms of the instrument purporting to be the Will dt. 10.12.2007 of Smt. Satnam Kaur, which is highly suspicious. This issue is decided against the defendants and in plaintiff's favour.
24. Issue no.1 - The issue is whether plaintiff is entitled to a decree of possession of the property at X926 situated in Khasra No. 119 to 121, Abadi Chand Mohalla (Ganesh Park), Gandhi Nagar, Delhi, onus being on the plaintiff to prove it. The instrument purporting to be Will dt. 10.12.2007 of Smt. Satnam Kaur having been discarded, it is but obvious that succession to the property in dispute would be governed by section 15, Hindu Succession Act, which reads as under: CS No. 2777/16 Page 14/18
15. General rules of succession in the case of female Hindus. -- (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16, --
(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in subsection (1), --
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in subsection (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her fatherinlaw shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in subsection (1) in the order specified therein, but upon the heirs of the husband.
(underlined for emphasis)
25. It is not in dispute that plaintiff is the real brother of Satnam Kaur's husband. In terms of sections 15 (1) (b) and 15 (2) (b) of Hindu Succession Act together with the Schedule attached thereto the suit property would devolve upon the plaintiff. It is thus held that plaintiff is entitled to the relief of possession of the property in dispute i.e. property no. X926 situated in Khasra No. 119 to 121, Abadi Chand Mohalla (Ganesh Park), Gandhi Nagar, Delhi (as shown bounded in red colour in the site plan Ex. PW1/4).
26. A clarification had been obtained from plaintiff's counsel to the effect as to how Ms. Satnam Kaur was the owner of the entire property in dispute.
CS No. 2777/16 Page 15/18However, this aspect is no longer germane in view of the fact that the Will dt. 10.12.2017 already stands discarded. Sh. Takhat Singh was survived by his wife and two sons. Therefore, on his demise, each of his three legal heirs would have been entitled to undivided 1/3 share. Son Harjit passed away in 2003 leaving behind his wife Satnam Kaur. Ms. Harbhajan Kaur, wife of late Takhat Singh executed a relinquishment deed in 2004 in favour of Satnam Kaur. Consequently, Satnam Kaur was entitled to 2/3 share and the plaintiff 1/3 share. Satnam Kaur sold ½ portion of the property in 2006 to plaintiff herein. Consequently, Satnam Kaur was, as per the law of succession, left with only 1/6 share. The query put / clarification sought from plaintiff's counsel was as to how does the plaintiff assert that Satnam Kaur was acting as the absolute owner of the property when as per the law of the succession she was left with only 1/6 share. To this, it was replied that in the plaint the averment is that she 'acted' as the absolute owner of the property. However, as already said hereinabove, this aspect is no longer germane in view of the fact that the instrument purporting to be Will dt. 10.12.2017 of Ms. Satnam Kaur already stands discarded.
27. In the plaint, the plaintiff had also sought to restrain the defendants, their servants, agents etc. from selling, gifting, mortgaging, leasing or creating any third party interest in the property in dispute. However, it appears that no specific issue in this regard was framed. Inasmuch as the plaintiff is held entitled to the relief of possession of the suit property, it would be in the fitness of things to restrain the defendants from creating third party interest in the suit property. This issue is answered in the following terms: (A) Plaintiff is entitled to the relief of possession of the property in dispute i.e. property no. X926 situated in Khasra No. 119 to 121, Abadi Chand Mohalla (Ganesh Park), Gandhi Nagar, Delhi (as CS No. 2777/16 Page 16/18 shown bounded in red colour in the site plan Ex. PW1/4), and (B) Defendants are hereby restrained from selling, gifting, mortgaging, leasing or creating any third party interest in the property in dispute. This issue is decided in plaintiff's favour and against the defendants.
28. Issue no.3 - The issue is whether the plaintiff suppressed 'material' facts and the effect thereof, onus being on the defendants to prove it. There can certainly be no denial from the settled principle of law that suppression of 'material' fact by a litigant disqualifies him from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But what is essential is that the suppressed fact must be a 'material' fact. It must be material in the sense that had it not been suppressed it would have had an effect on the merits of the case. Decisions reported as Mayar (H.K.) Ltd. & Ors. vs. Owners & Parties, Vessel M.V. Fortune Express & Ors., (2006) 3 SCC 100, M/s S.J.S. Business Enterprises (P) Ltd. vs. State of Bihar & Ors., AIR 2004 SC 2421 and Virender Nath Gautam vs. Satpal Singh & Ors., AIR 2007 SC 581 can be referred to in this context. The defendants assert that the plaintiff has resorted to suppression of 'material' facts by not disclosing that Smt. Satnam Kaur was being looked after by defendant no.2 in the evening of her life and further that after her husband's demise when there was nobody to take care of her, her two brothers had looked after her. This is hardly a suppression of 'material' fact on the part of the plaintiff. In plaintiff's scheme of things this aspect was not really germane. Plaintiff's case is based on section 15 of Hindu Succession Act and from this perspective the aforesaid aspect is hardly relevant. The fact the plaintiff did not CS No. 2777/16 Page 17/18 disclose as to who took care of Satnam Kaur before her demise is not something which could have had a bearing on the merits of the present case from plaintiff's point of view. It is held that there has not been suppression of 'material' facts on the part of the plaintiff. This issue is answered against the defendants and in plaintiff's favour.
29. Relief - Plaintiff's suit stands decreed in the following terms: (A) Plaintiff is entitled to the relief of possession of the property in dispute i.e. property no. X926 situated in Khasra No. 119 to 121, Abadi Chand Mohalla (Ganesh Park), Gandhi Nagar, Delhi (as shown bounded in red colour in the site plan Ex. PW1/4), (B) Defendants are hereby restrained from selling, gifting, mortgaging, leasing or creating any third party interest in the property in dispute, and (C) Costs of the suit awarded to the plaintiff.
30. Decree sheet be drawn up. File be consigned to record room.
Digitally signed by MURARI MURARI PRASAD SINGH Location: Court PRASAD No.7, Karkardooma Announced in the open Court SINGH Courts, Delhi Date: 2019.05.30 on 30th May, 2019 15:09:23 +0530 (M. P. Singh) Addl. District Judge03, East, Delhi 30.05.2019 CS No. 2777/16 Page 18/18