Delhi District Court
Murti Devi & Ors V. Sat Narain & Ors vs Sh. Sat Narain on 14 May, 2019
IN THE COURT OF ACJ/CCJ/ARC (WEST)
TIS HAZARI COURTS COMPLEX, NEW DELHI
PRESIDED BY : SH. VISHAL PAHUJA
In the matter of :
CS No.7726/16
1. Smt. Murti (Expired - Abated),
widow of Sh. Hem Chander,
d/o Sh. Darbari @ Maru
2. Sh. Om Prakash (since deceased)
through his Legal Heirs
2A. Smt. Kanta Devi
w/o Late Sh. Om Prakash.
2B. Sh. Ashu
s/o Late Sh. Om Prakash
2C. Sh. Ajay
s/o Late Sh. Om Prakash
2D. Sh. Sandeep
s/o Late Sh. Om Prakash
No. 2A to 2D all r/o RZG-243,
Gali no. 8, near DDA Park,
Raj Nagar, Part-II,
Palam, New Delhi.
2E. Smt. Manju
w/o Sh. Mahesh
d/o Late Sh. Om Prakash
r/o Village Pochanpur,
Sector 23, Dwarka,
New Delhi.
CS No. 7726/16 Page 1 of 24
Murti Devi & ors v. Sat Narain & ors
3. Sh. Siri Bhagwan
s/o Sh. Hem Chander
Grandson of Sh. Darbari @ Maru.
4. Sh. Bishnu
s/o Sh. Hem Chander,
Grandson of Sh. Darbari @ Maru,
5. Sh. Jai Bhagwan
s/o Sh. Hem Chander
Grandson of Sh. Darbari @ Maru,
6. Sh. Sanjay
s/o Sh. Hem Chander
Grandson of Sh. Darbari @ Maru,
7. Smt. Chameli,
w/o Sh. Ram Pat
d/o Sh. Darbari @ Maru.
8. Sh. Sat Narain
s/o Sh. Rampat
Grandson of Sh. Darbari @ Maru,
9. Sh. Ashok Kumar
s/o Sh. Rampat
Grandson of Sh. Darbari @ Maru,
All r/o Village Karala, Delhi
..... Plaintiffs
Versus
1. Sh. Sat Narain
s/o Sh. Mauji
Grandson of Sh. Darbari @ Maru
r/o Village Sanoth, Delhi State
CS No. 7726/16 Page 2 of 24
Murti Devi & ors v. Sat Narain & ors
1A. Sh. Mool Chand
s/o Sh. Ratan Singh
r/o Village Hiran Kundna, Delhi.
1B. Sh. Dharambir Singh,
1C. Sh. Krishan Kumar
1D. Sh. Devender
All sons of Sh. Mir Singh
2. Sh. Suraj Bhan
s/o Sh. Mauji
Grandson of Sh. Darbari @ Maru
r/o Village Sanoth, Delhi State
3. Smt. Bhagwan Dai (Expired - Abated)
w/o Sh. Mauji
d/o Sh. Darbari @ Maru
r/o Village Sanoth, Delhi State.
4. Sh. Shiv Nandan
S/o Sh. Hem Chander
Grandson of Sh. Darbari @ Maru
r/o Village Karala, Delhi State
At present ROI (TAC) INS Udai Giri,
c/o M.O. Mumbai-400001.
.... Defendants
Date of Institution : 29.10.1980.
Date of Reserving Judgment : 14.05.2019.
Date of Decision : 14.05.2019.
Final Decision : Dismissed.
JUDGMENT
(Suit for declaration and permanent injunction) CS No. 7726/16 Page 3 of 24 Murti Devi & ors v. Sat Narain & ors
1. This is a suit for declaration and permanent injunction against the defendants.
2. Briefly stated, case of the plaintiffs is that Sh. Darbari @ Maru s/o Sh. Lal Singh (father of the plaintiff no. 1, plaintiff no. 7 and defendant no. 3) was the bhumidar of agricultural land falling under Khasra no. 6 (4-14), 7/1 (1-2), 15 (4-16), 26 (0-4) of rectangle no. 14 and Khasra No. 10 (4-16), 11 (4-16), 12 (4-16), 20/1 (4-4) of rectangle no. 15 and khasra no. 357 (1-0) falling in village Nizampur, Rashidpur. Late Sh. Darbari @ Maru also held property within the abadi of village Nizampur, Rashidpur i.e. (i) House 17x25 feet, East : House of Chottu Ram, West : Gali, North : Plot of Guljari, South : House of Balwan Singh and (ii) Open plot 30x33 feet, East : Gali, West : House of Randhir Singh, North : House of Surat Singh, South : House of Jit Ram. It is stated that Late Sh. Darbari @ Maru died on 22.06.1980 leaving behind no male issue or wife nor left behind any lineal male descendant. He was survived by three daughters namely Smt. Bhagwan Dai (defendant no. 3), Smt. Murti (plaintiff no. 1) and Smt. Chameli (plaintiff no. 7).
Smt. Bhagwan Dai married to Sh. Mauji, has two sons namely Sat Narain (i.e. defendant no. 1) and Suraj Bhan (i.e. defendant no. 2). Smt. Murti was married to Hem Chander and has 6 sons namely Om Prakash (i.e. plaintiff no. 2), Shiv Nandan (i.e. defendant no. 4), Shri Bhagwan (i.e. plaintiff no. 3), Bishnu Dutt (plaintiff no. 4), Jai Bhagwan (plaintiff CS No. 7726/16 Page 4 of 24 Murti Devi & ors v. Sat Narain & ors no. 5) and Sanjay (i.e. plaintiff no. 6). Smt. Chameli was married to Sh. Ram Pat having two sons namely Sat Narain (i.e. plaintiff no. 8) and Ashok Kumar (i.e. plaintiff no. 9).
3. It is alleged that Late Sh. Darbari was about 85 years of age at the time of death. He was totally deaf having weak eye sight and was of unsound mind in his last years. It is also stated that he was physically and mentally challenged and was not able to form rational opinion. It is further stated that the grand sons of Late Sh. Darbari are his legal heirs through their mothers having equal share of 1/3rd each w.r.t. the agricultural land. It is further stated that the property situated within abadi of village Nizampur, Rashidpur dwelled upon three daughters of Late Sh. Darbari in equal shares. It is alleged that defendant no. 1 namely Sat Narain got executed a Will in his favour by forging thumb impression of Late Sh. Darbari so as to create his right on the entire property. It is stated that Late Sh. Darbari was incapable mentally as well as physically to make any such Will and the Will was not executed with his free consent. It is further stated that the agricultural land was being cultivated by Ram Pat, husband of Smt. Chameli and sons of Smt. Murti whereas defendant no. 1 Sat Narain has never looked after his grand father Late Sh. Darbari. It is further stated that the agricultural land is in the physical possession of sons of Smt. Chameli and Murti whereas the property within the Abadi is under physical possession of Smt. Murti and Smt. Chameli. It is stated that the cause of action arose CS No. 7726/16 Page 5 of 24 Murti Devi & ors v. Sat Narain & ors on the execution of the alleged forged Will, hence, the present suit is filed by the plaintiffs seeking following reliefs:-
That the Will be declared as Null and Void, ineffective and inoperative and the plaintiffs and performa defendants be declared as legal heirs of the property of Sh. Darbari @ Maru of Khasra No. 6(4-14), 7/1 (1-2), 15(4-16), 26(0-4) of rectangle no. 14 and khasra no. 10(4-16), 11(4-16), 12(4-16), 20/1 (4-4) of rectangle no. 15 and Khasra No. 357(1-0) situated in Village Nizampur Rashidpur as under:-
i. Om Prakash, Siri Bhagwan, Jai Bhagwan, Bishnu, Sanjay and Shiv Nandan, Grand Son (Dhewta) of Shri Darbari @ Maru in equal share 1/3rd being sons of Smt. Murti. ii. Sat Narain, Ashok Kumar grand sons (Dhewta) of Sh.
Darbari @ Maru in equal share 1/3rd being sons of Smt. Chameli.
iii. Sat Narain and Suraj Bhan, grand sons (Dhewta) sons of Sh.
Darbari @ Maru in equal share 1/3rd being sons of Bhagwan Dai.
And the property situated within abadi as detailed below: i. House 17x25 feet, East : House of Chottu Ram, West : Gali, North : Plot of Guljari, South : House of Balwan Singh.
ii. Open plot 30x33 feet, East : Gali, West : House of Randhir Singh, CS No. 7726/16 Page 6 of 24 Murti Devi & ors v. Sat Narain & ors North : House of Surat Singh, South : House of Jit Ram shall be succeeded by Smt. Bhagwan Dai, Chameli and Murti, being daughters of Darbari @ Maru in equal shares AND the defendants namely Sat Narain, Smt. Bhagwan Dai and Ashok Kumar be permanently restrained from interfering with the possession of agricultural property detailed above in possession of the plaintiff no. 2 to 6, 8 and 9 from dispossessing from the property situated within the abadi, Deh detailed above in possession of Smt. Chameli and Murti or such other relief as facts of the case warrant.
4. Defendant no. 1, 2 and 3 filed their WS taking several objections. Defendants denied plaintiffs having any cause of action and sought dismissal of suit on account of plaint being valued not properly for the purpose of court fees. Defendants further took plea of defence that the Will executed in favour of Defendant no. 1 by Late Sh. Darbari was genuine out of free will and consent in accordance with Law. It is denied that Sh. Darbari was suffering from any ailment mentally or physically during his life time or at the time of execution of the Will. It is further denied that the plaintiffs have possession of the suit property. Defendants denied the case of the plaintiffs in toto. Defendant no. 4 did not appear nor filed any WS on record.
5. During the proceedings, applicant Ram Pat moved application u/o 1 rule 10 for his impleadment as defendant. Same was heard and CS No. 7726/16 Page 7 of 24 Murti Devi & ors v. Sat Narain & ors allowed by the Ld. Predecessor of this court and he was impleaded vide order dated 22.10.2008. He filed WS purportedly but same were in the nature of submissions. In his so called WS he sought dismissal of the suit of the plaintiff as well also declaration of Will as Null and Void. During the proceedings, defendant no. 1 sold the property to some persons who under order 1 rule 10 CPC upon application were impleaded as defendants vide order dated 20.08.2013 by Ld. Predecessor of this Court. The said defendants were impleaded under defendant no. 1 as defendant no. 1A namely Mool Chand, defendant no. 1B Dharamvir Singh, defendant no. 1C Krishan Kumar, defendant no. 1D Devender and they were bound by the pleadings of defendant no. 1 and by the outcome of this case vide aforesaid order.
6. Replication was filed on behalf of the plaintiffs denying the contents of the written statement and reinforcing the averments as that mentioned in the plaint.
7. During the pendency of the suit plaintiff no. 1 Smt. Murti got expired. No application was moved on behalf of either of the parties seeking impleadment of LRs of the deceased Smt. Murti hence, the suit qua plaintiff no. 1 was abated vide order dated 13.07.2006 by the Ld. Predecessor of this court. Plaintiff no. 2 Om Prakash also got expired during the proceedings and his LRs were impleaded as party vide order dated 07.02.2012 by Ld. Predecessor of this Court. Defendant no. 3 CS No. 7726/16 Page 8 of 24 Murti Devi & ors v. Sat Narain & ors Smt. Bhagwan Dai also got expired during the pendency of the suit but none of the parties sought impleadment of LRs of the deceased defendant Bhagwan Dai so suit against her also stands abated.
8. On the basis of pleadings of the parties, issues were framed vide order dated 20.02.1991 and subsequently reframed on 07.04.1997:
1. Whether the plaintiff has no locus standi to file the present suit? OPD.
2. Whether suit of the plaintiff is bad for mis-joinder of parties? OPD.
3. Whether plaint has been property verified? OPD.
4. Whether there is no cause of action for filing the present suit? OPD.
5. Whether plaintiff is entitled to declaration and injunction prayed for ? OPP.
6. Relief.
9. In order to prove their case, plaintiffs examined several witnesses. Initially, six witnesses were examined by the plaintiff in the year 1982/83 when the defendants were proceeded ex parte and subsequently it was noticed by the Ld. Predecessor of this court that issues have not been framed. Vide order dated 07.03.1986, Ld. Predecessor of this Court ordered the framing of the issues and thereafter on 20.02.1991 issues were framed and the evidence already recorded was considered CS No. 7726/16 Page 9 of 24 Murti Devi & ors v. Sat Narain & ors to be read and the matter was listed for final arguments. The issues were reframed on 07.04.1997 and subsequently, on 18.11.2003 Ld. Predecessor of this court asked the parties to lead fresh evidence in light of the issues framed. Hence, Ld. Predecessor of this Court took the view that earlier evidence recorded in the year 1982/1983 will also be considered and the evidence led after framing of issues will also be read.
PLAINTIFFS EVIDENCE:
10. Before framing of issues plaintiffs examined Ram Pat as PW1 who in his examination in chief deposed that Darbari i.e. his father in law had three daughters namely Bhagwan Dai, Murti Devi and Chameli. He further stated the name of the sons of the daughters. PW1 further stated that health of Darbari deteriorated in his last years as he suffered from paralysis. He also had low vision and was deaf. He was also stated to be mad for which PW1 got him treated from a doctor at Nangloi in November/December 1979. PW1 further stated that Darbari had 30 bighas of land, one house, one gher and one plot. It is further stated that he along with sons of Chameli and Murti cultivates the said land. It is further stated that defendant no. 1 namely Satyanarain never taken care of deceased Darbari and he has no right over the suit property. This witness further deposed that no will was executed in the name of Satyanarain. Witness relied upon copy of khasra girdwari as Ex. PW1/1 CS No. 7726/16 Page 10 of 24 Murti Devi & ors v. Sat Narain & ors and copy Khatoni as Ex. PW1/2. This witness was not cross examined by the defendants.
PW2 Murti also deposed on the same lines as that of PW1 Rampat. PW4 Ram Chander stated in his examination in chief that he was neighbour of Darbari who was deaf and half mad. It is further stated that Murti, Chameli and their sons took care of Darbari and Ram Pat and sons of Hem Chander cultivated the land of Darbari. This witness was not cross examined by the defendants.
PW5 Goverdhan Dass deposed in his examination in chief that he is punch of village Ghwara having jurisdiction over village Nizampur. This witness stated that Darbari was native of his village Nizampur and was having agricultural land about 48 acres and he died when he was 83 years old. This witness further stated that Darbari had three daughters and Darbari was hard of hearing, having weak eye sight and was on unsound mind. The land of Darbari was cultivated by his daughter through her sons and by his husband. It is further stated that Darbari was being taken care of by the sons of his daughters. It is further stated that defendant no. 1 Sat Narain was never in possession of the suit property nor he took care of the deceased Darbari. This witness was cross examined on behalf of the defendants.
PW6 Krishan Kumar Vashisht deposed that he was registered medical practitioner and was running clinic in Nangloi. He exhibited on record medical certificate issued by him Ex. PW6/1. He further stated that Darbari came to his clinic for his treatment for CS No. 7726/16 Page 11 of 24 Murti Devi & ors v. Sat Narain & ors psychosomatic disorder and schizophrenia related to mental disorder. It is further stated that Darbari was helpless to understand even normal things and was hard of hearing and weak vision. This witness was also cross examined on behalf of the defendants.
11. After framing of issues in the year 1997, plaintiff no. 8 namely Sat Narain s/o Sh. Ram Pat got examined himself as PW1 by tendering his evidence by way of an affidavit Ex.P1, plaintiff no. 7 namely Smt. Chameli as PW2 by tendering her evidence by way of an affidavit, PW3 Sh. Rohtash Singh by tendering his evidence by way of an affidavit as Ex. PW3/A, PW4 Sh. Om Prakash by tendering his evidence by way of an affidavit. All the aforesaid witnesses were cross examined on behalf of the defendants.
DEFENDANTS EVIDENCE
12. The defendants got examined an official witness namely Sh. Raj Kumar from the office of Sub Registrar-II as DW1. He brought on record and exhibited the Certified copy of the Will as DW1/1. Defendant no. 1 namely Sat Narain s/o Sh. Mauji Ram also got examined himself as DW2 by tendering his evidence by way of affidavit as Ex. DW2/A, DW3 namely Sh. Ramphal was examined by way of affidavit as Ex. DW3/A. All the aforesaid witnesses were cross examined on behalf of the plaintiffs.
CS No. 7726/16 Page 12 of 24Murti Devi & ors v. Sat Narain & ors
13. I have heard the contentions of both the sides and also gone through the record carefully. My issue-wise findings are as under:
ISSUE NO.1 & ISSUE NO. 4Whether the plaintiff has no locus standi to file the present suit? OPD.
& Whether there is no cause of action for filing the present suit? OPD.
14. The onus to prove both these issues was upon the defendants. Ld. Counsel for the defendants argued that plaintiffs have no cause of action nor they have any locus standi to file the present suit as the property in question is exclusively owned by defendant no. 1 in view of the Will executed by the original owner namely Late Sh. Darbari @ Maru. It is further argued that plaintiffs have no right or title over the suit property so any claim on the basis of the same cannot be made for enforcement through the court. Hence, it is argued that the plaintiffs do not have any cause of action for filing the suit.
15. I have heard the submissions and the evidence led on record. Plaintiff no. 1 Smt. Murti and plaintiff no. 7 Smt. Chameli being the daughters/LRs of deceased Darbari @ Maru have the locus standi for filing the present suit. Similarly, they have challenged the authenticity CS No. 7726/16 Page 13 of 24 Murti Devi & ors v. Sat Narain & ors and genuineness of the Will executed in favour of defendant no. 1 by Late Sh. Darbari @ Maru on several grounds, hence, they have the cause of action also for filing the present suit. This position has not been controverted by the defendants. The arguments of the defendants are without any merits or substance. Accordingly, both the issues above stands decided in favour of the plaintiffs and against the defendants.
ISSUE NO. 2Whether suit of the plaintiff is bad for mis-joinder of parties? OPD.
16. The onus to prove this issue was upon the defendants. Ld. Counsel for the defendants argued that defendant no. 2 and 3 have no concern with the suit property, hence, they were not liable to be incorporated as defendants in the present suit. Therefore, the suit is bad for mis-joinder of parties.
Here again, I differ from the view taken by Ld. Counsel for defendants that misjoinder of parties would entail dismissal of the suit. Firstly and fore-mostly, the suit cannot be said to be suffering from mis-joinder of parties as defendant no. 3 is one of the LR of deceased Darbari @ Maru and if the plaintiffs challenges the Will executed in favour of defendant no. 1, the rights of defendant no. 3 will also get affected. Hence, the suit cannot be said to be bad in the eyes of law for mis-joinder of parties. Accordingly, this issue also stands decided in favour of the plaintiffs and against the defendants.
CS No. 7726/16 Page 14 of 24Murti Devi & ors v. Sat Narain & ors ISSUE NO. 3 Whether plaint has been property valued? OPD.
17. The onus to prove this issue was also upon the defendants. Ld. Counsel for the defendants contended that the suit has not been properly valued for the purpose of jurisdiction as well as court fees. It is further argued that the valuation was required to be calculated as per the market value of the property and the suit should not have been valued at a fixed value for the purpose of court fees as well as jurisdiction. Hence, the plaint is liable to be rejected being under valued.
At the outset, it is pertinent to note that defendants have not led any evidence on record to establish that the plaint/suit of the plaintiffs is under valued for the purpose of court fees as well as jurisdiction. It is the claim of the plaintiffs that after the death of Darbari @ Maru they are in possession of the property so in view of the court the property has to be valued at a fixed rate for the purpose of court fees as well as jurisdiction. The parties to the suit are stated to be in joint possession of the suit property after the death of Late Sh. Darbari @ Maru unless contrary is proved which is not the case herein so both the parties have failed to prove their exclusive possession over the suit property, so this court is of the view that the present suit has been properly valued in accordance with the provisions of law. Accordingly, this issue also stands decided in favour of the plaintiffs and against the defendants.
CS No. 7726/16 Page 15 of 24Murti Devi & ors v. Sat Narain & ors ISSUE NO. 5 Whether plaintiff is entitled to declaration and injunction prayed for ? OPP.
18. The onus to prove this issue was upon the plaintiffs. Ld. Counsel for the plaintiffs argued that plaintiffs have successfully discharged the onus lying upon them by leading cogent evidence on record. It is further argued that the evidence led on record is sufficient enough to prove the alleged execution of Will dated 05.11.1979 to be forged and fabricated. It is further argued that the plaintiffs derive their shares in the suit property being the LRs of the deceased Darbari @ Maru so the relief of declaration w.r.t. the shares as mentioned in the plaint be granted. It is also prayed that the relief of injunction be also granted in favour of the plaintiffs and against the defendants restraining them from creating any further third party interest.
On the other hand, Ld. Counsel for the defendants argued that plaintiffs have miserably failed to establish their case as no cogent evidence has been led on record by them. It is further argued that the plaintiffs have failed to prove the forgery or fabrication of the Will executed in favour of the defendant no. 1 by leading any sufficient evidence. It is further argued that defendant no. 1 is the sole and absolute owner of the suit property in question by virtue of the Will dated 05.11.1979. It is further argued that the plaintiffs have failed to prove their possession over the suit property or any title thereupon due CS No. 7726/16 Page 16 of 24 Murti Devi & ors v. Sat Narain & ors to lack of evidence. Hence, the plaintiffs are not entitled to any relief as sought herein.
19. Now coming to the evidence led on record by the respective parties. It is to be noted that initially six witnesses were examined by the plaintiffs in the year 1982 and 1983 which were not cross examined by the defendants despite granted opportunities except witness PW5 and PW6. It has been contended by Ld. Counsel for the defendants that the aforesaid witnesses were examined before framing of the issues so their evidence shall not read on record. It is pertinent to note that none of the Ld. Predecessor of the Court has rejected the evidence led by the plaintiffs before framing of the issues after considering the plea of plaintiffs, hence, the evidence is liable to be read for the adjudication of the present suit. The issues were framed on 04.07.1997 and thereafter the court directed the plaintiffs to lead evidence in terms of the issues framed. After framing of the issues plaintiffs examined four witnesses which were cross examined by the defendants.
20. It is important to note that the reliefs sought by the plaintiffs in terms of declaration of being legal heirs w.r.t. the share in the suit property as well as relief of injunction flows from the relief of declaration of Will as Null and Void. If the Will dated 05.11.1979 is not declared Null and Void and is found to be genuine and authentic, the remaining reliefs sought by the plaintiffs becomes redundant and cannot CS No. 7726/16 Page 17 of 24 Murti Devi & ors v. Sat Narain & ors be granted. Now it has to be seen from the evidence led on record as to whether plaintiffs have been able to prove their case qua forged Will.
21. Though, witness PW1 Rampat, PW2 Murti, PW4 Ram Chand has not been cross examined by the defendants but none of the aforesaid witness brought on record any substantial proof to prove that the alleged Will was not executed by Late Sh. Darbari @ Maru nor they could establish that the alleged Will was executed when the executor was suffering from mental illness, deafness or visual impairment. Merely stating that Darbari @ Maru was suffering from all such diseases does not compel the court to presume the state of mind of Late Darbari @ Maru. Testimony of PW5 Goverdhan Dass also do not inspire confidence as he admitted to have been close to Ram Pat since his marriage. He also admitted that he has not reported the incident of alleged bitting by Late Darbari to panchayat or police or any person during his cross examination. It has also come in his cross examination that Darbari sometimes suffered fits which rule out permanent unsoundness of mind as claimed by the plaintiffs herein. It is also stated by PW5 during his cross examination that he used to share hooka with Darbari and used to talk to him while sitting in the fields. These activities by person alleged to be suffering from mental illness, visual impairment or deafness cannot be expected to be performed which is again contradictory to the claim of the witness PW5 as stated in his examination in chief. His testimony is not sufficient to prove the mental CS No. 7726/16 Page 18 of 24 Murti Devi & ors v. Sat Narain & ors or physical condition of deceased Darbari nor the testimony of PW5 proves the execution of forged Will as alleged by the plaintiffs.
22. PW6 Krishan Kumar Vashisht was the doctor examined by the plaintiffs to prove that Late Darbari @ Maru was suffering from mental disorder and was under treatment for psychosomatic disorder and schizophrenia. The witness PW6 Krishan Kumar Vashisht was cross examined by the defendants during which several material contradictions and infirmities occurred rendering the testimony of PW6 highly unreliable and un-believable. During his cross examination PW6 admitted that name of the father of patient is not recorded in his register maintained in his clinic and it is also admitted that the name of the patient in the entries of OPD register was recorded as Chaudhary Darbari so it cannot be said that name of the patient was actually the name of father of plaintiff no. 1 Sh. Darbari @ Maru. Even the age of the patients were also not being recorded along with their names whereas age of the deceased Darbari @ Maru has been specifically recorded as 80 years. Above that in the medical certificate issued by PW6 the age of deceased Darbari @ Maru is shown to be 85 years which is not possible in any manner as there is difference of very few months between the relevant entries in the register and the death of Darbari @ Maru. It is also admitted by PW6 that the name of the disease was not mentioned against the name of the patient whereas the disease was mentioned in the medical certificate Ex. PW6/1. The CS No. 7726/16 Page 19 of 24 Murti Devi & ors v. Sat Narain & ors aforesaid infirmities and contradictions does not rule out the possibility of planting of the witness and it does not even establishes the identity of patient as deceased Darbari @ Maru. None of the aforesaid witness actually go on to prove that the Will in question has been obtained by playing fraud or by taking undue advantage of unsoundness of the deceased Darbari @ Maru.
23. Now coming to the witnesses examined by the plaintiffs after framing of the issues. Plaintiff no. 8 Sat Narain s/o Sh. Ram Pat examined himself as PW1. During his cross examination he admitted that defendant no. 1 Sat Narain s/o Sh. Mauji does not put forged thumb impression of Darbari @ Maru on the Will in his presence. He also admitted not to be present with Late Sh. Darbari @ Maru on 05.11.1979 that is the date of execution of Will. He further admitted during his cross examination that he do not possess any medical certificate to show that Late Sh. Darbari @ Maru was deaf, having weak eye sight and was of unsound mind. It is also admitted by PW1 that defendant no. 1 Sat Narain had the tractor and he used to cultivate the land which is contrary to the claim of the plaintiffs made in the plaint. This witness also failed to prove the factum of fabrication of Will. No expert witness has been examined by the plaintiffs to prove that the thumb impression on the Will Ex. DW1/1 is not that of Late Darbari @ Maru. Hence, the testimony of PW1 does not prove the material aspects.
CS No. 7726/16 Page 20 of 24Murti Devi & ors v. Sat Narain & ors PW2 Chameli Devi i.e. plaintiff no. 7 during her cross examination stated that her father Late Sh. Darbari was suffering from paralysis which is again a contradictory statement qua the nature of illness being suffered by deceased Darbari. Despite granted opportunity PW2 Smt. Chameli failed to bring on record the medical prescription of the doctor to show the alleged suffering by Late Sh. Darbari. During her cross examination PW2 could not establish her possession over the suit property as claimed in the suit. The testimony of PW2 was full of material contradictions making it highly unreliable.
24. Now coming to the testimony of PW3 Sh. Rohtash Singh and PW4 Sh. Om Prakash being the independent witnesses. Both the witnesses admitted before the court that they have come to the court for deposition at the instance of plaintiffs. There are material contradictions in their testimonies when compared with each other which does not rule out the probability of being planted witnesses. PW3 Rohtash Singh during his cross examination stated that Late Darbari @ Maru sufferred a paralytic attack 10-12 years prior to his death where as PW4 Om Prakash stated that Darbari @ Maru sufferred paralytic attack 2-3 years prior to his death. PW3 claims himself to be the acquaintance of Late Darbari being resident of same village but he could not even tell the other name/alias of Darbari. He could not even tell the names of the daughters of Darbari which cannot be expected from a person having good acquaintance with the deceased. PW3 further stated during his CS No. 7726/16 Page 21 of 24 Murti Devi & ors v. Sat Narain & ors cross examination that Darbari used to go to Bahadurgarh on foot and used to tell him that he has taken medicine from a doctor in Bahadurgarh. This statement of PW3 is completely in contradiction of the claim of the plaintiffs where they stated that the deceased Darbari was being consulted with a doctor at Nangloi. The version of PW3 can also not be believed upon for the reason that a person suffering from paralysis and claimed to be bed ridden can visit a doctor at Bahadurgarh on foot. Hence, testimony of PW3 is not worthy of credence. Similarly, PW4 could not tell the names of the children of the daughters of Darbari as they claim to be residing in same village. He even could not tell where Darbari was getting his treatment. The testimony of PW3 and PW4 also failed to establish that the Will executed in the name of defendant no. 1 was actually forged and fabricated. In fact, none of the aforesaid witness testified in this respect. The onus to prove the forgery of will was upon the plaintiffs but the evidence led on record by the plaintiffs in no manner proves their case and the burden remain undischarged. Plaintiffs also failed to establish exclusive possession of the suit property with them as no documentary evidence in that respect has been led on record.
25. On the other hand defendants examined a witness from the office of Sub Registrar 2 Kashmere Gate namely Raj Kumar as DW1 who brought on record the certified copy of the registered Will dated 05.11.1979 and exhibited the same as Ex. DW1/1. Nothing CS No. 7726/16 Page 22 of 24 Murti Devi & ors v. Sat Narain & ors contradictory come on record during his testimony. The registered Will stands duly proved by the witness DW1. Defendant no. 1 Sat Narain s/o Mauji Ram examined himself as DW2. During his cross examination he proves the mutation in his name on the basis of the Will qua the suit property. No material contradiction occurred in his testimony during his cross examination on the material aspects. His testimony remained un- impeachable through out. Defendants also examined one witness Ram Phal as DW3 who identified the signatures of his father namely Sh. Pyarelal on the Will in question Ex. DW1/1 as witness. Both the attesting witnesses were found to be dead by the time the case reached at the stage of evidence, hence, testimony of DW3 is very much relevant in proving the defence of defendants. His testimony also remain unrebutted on material aspects during his cross examination.
26. From the discussion above and the evidence led on record, this court reaches the conclusion that the plaintiffs miserably failed to prove on record that the Will executed in the name of defendant no. 1 was forged or fabricated. As the Will cannot be declared Null and Void so any relief flowing from the same as prayed for could not be established. Moreover, the plaintiffs were required to seek relief of partition which could be appropriate/efficacious remedy under the law as a consequential relief but no such relief has been sought, hence, the present suit in its present form cannot be said to be maintainable in the eyes of law. Further the declaration to the effect of being legal heirs can CS No. 7726/16 Page 23 of 24 Murti Devi & ors v. Sat Narain & ors also not be granted as it naturally falls after the death of a person.
The plaintiffs failed to discharge the onus by leading any cogent evidence, accordingly, this issue stands decided in favour of the defendants and against the plaintiffs.
Relief.
27. In view of the findings on the issues given above, the plaintiffs are found not entitled to any relief as prayed herein. Accordingly, suit of the plaintiffs stands dismissed. Parties to bear their own cost. Decree sheet be prepared accordingly.
28. File be consigned to the record room after due compliance.
Digitally signed by VISHAL VISHAL PAHUJA
Date:
PAHUJA 2019.05.14
16:35:46
+0530
ANNOUNCED IN THE OPEN (VISHAL PAHUJA)
COURT ON 14.05.2019 ACJ/CCJ/ARC
(WEST)/DELHI
Containing 24 pages all signed by the presiding officer.
Digitally signed by VISHAL VISHAL PAHUJA
PAHUJA Date: 2019.05.14
16:35:51 +0530
(VISHAL PAHUJA)
ACJ/CCJ/ARC (WEST)/DELHI
CS No. 7726/16 Page 24 of 24
Murti Devi & ors v. Sat Narain & ors