Delhi District Court
Sarabjit Kaur Sethi vs Sh. Sagar Singh Sachdev on 5 May, 2018
IN THE COURT OF SH. DHEERAJ MITTAL : CIVIL JUDGE 02
(CENTRAL), TIS HAZARI COURTS, DELHI.
Old Suit No.
New Suit No. 93774/16
In the matter of :
Gurbaksh Singh Sethi
(Since Deceased)
Through his legal heir
Sarabjit Kaur Sethi
W/o Late Sh. Gurbaksh Singh Sethi,
R/o D4/4173, Vasant Kunj,
New Delhi110070 ( Smt. Sarabjit Kaur Sethi
substituted in place of deceased plaintiff
vide order dated 24.08.2013 on the basis of
No Objection Affidavit of other LRs of
Sh. Gurbaksh Singh Sethi in favour of
Smt. Sarabjit Kaur Sethi). .... Plaintiff
VERSUS
1.Sh. Sagar Singh Sachdev, R/o B/159, Indira Nagar, Near Azadpur, Delhi.
2. Sh. Rajinder Singh Sachdev, S/o Sh. Sagar Singh Sachdev, C/o Sh. K.K. Arora, R/o BXXIII, H. No. 4800, Shivaji Nagar, (Opp. Shingar Cinema), Ludhiana (Punjab).
3. Smt. Paramjit Kaur, D/o Sh. Sagar Singh Sachdev, W/o Sh. Abninder Singh Mahimi, Page 1 of 17 R/o E17, Naveen Shahdara, Delhi.
4. Smt. Surjit Kaur, D/o Sh. Sagar Singh Sachdev, C/o Sh. Nirmal Singh R/o B325, CPWD CoOperative Housing Building Society, Lok Vihar, Pitampura, Delhi.
5. Sh. Uttam Singh (Ex parte) S/o Late Sh. Jiwan Singh R/o Plot No. 15, Akha Niwas, Near Air Force Mess, Jodh Pur, Rajasthan.
6. Smt. Jagjit Kaur (since deceased through LRs)
(a) Sh. Surjit Singh Sachdev S/o Late Saroop Singh R/o 241/13, Tehsil Pura, Amritsar, Punjab.
(b) Sh. Gurmeet Singh Sachdev, S/o Late Sh. Saroop Singh, R/o 799/13, Opp. Gali No. 2, Sharif Pura, Amritsar, Punjab.
(c) Sh. Surinder Singh Sachdev, S/o Late Sh. Saroop Singh R/o 799/13, Opp. Gali No. 2, Sharif Pura, Amritsar, Punjab.
(d) Smt. Lakhbir Kaur Arora D/o Late Sh. Saroop Singh, R/o Block C, Flat No. 33, Vijay Park, NIBM Kondwa Khurd, Pune, Maharashtra.
Page 2 of 17(e) Smt. Satnam Kaur, D/o Late Sh. Saroop Singh, R/o House No. 53, New Tej Nagar, Sultanwind Road, Amritsar, Punjab.
7. Smt. Harminder Kaur (since deceased through LRs)
(a) Sh. M.S. Arora, S/o Sh. Kuldip Singh, R/o K79, Sarita Vihar, New Delhi.
(b) Sh. Jasbir Singh Arora S/o Late Sh. Kuldip Singh, R/o 85, Jeewan Nagar, Gurudwara Bala Sahib Road, New Delhi.
(c) Sh. G.D. Arora, S/o Late Sh. Kuldip Singh, R/o Flat No. 2, Manjula Bai Building, Kulsawadi, Lalyan (East), Thane, (Maharashtra)
(d) Raghbir Singh Arora S/o Late Sh. Kuldip Singh R/o Flat No. 2, Manjula Bai Building, Kulsawadi, Kalyan (East), Thane, (Maharashtra)
(e) Sh. Harjit Singh Arora S/o Late Sh. Kuldip Singh, R/o C33, Vijay Park, NIBM Road, Near Jyoti Restaurant, Kondhwa, Pune411048.
Page 3 of 17 (f) Smt. Manjit Kaur
D/o Late Sh. Kuldip Singh,
C/o Sh. Beant Singh
R/o 335, Civil Lines,
Jhokhan Bagh, Jhansi
(City)284001 (U.P.)
(g) Smt. Devinder Kaur
D/o Late Sh. Kuldip Singh
W/o Sh. Arvinder Singh
R/o 1102/Sector29B,
Chandigarh. ....Defendants
Date of Institution: 11.03.2002
Date of reserving the judgment: 17.03.2018
Date of Judgment: 05.05.2018
Final Judgment : Suit Decreed
J U D G M E N T
( On Suit for Declaration, Partition & Permanent Injunction )
1. The present case litigation pertains to the year 2002, the matter is almost 16 years old and therefore, the brief background of the case is necessary to understand the controversy. The present suit was filed by the plaintiff Sh. Gurbaksh Singh Sethi against seven defendants for Declaration, Permanent Injunction and Partition. Sh. Gurbaksh Singh Sethi expired during the proceedings and therefore, the matter was pursued through his legal representatives. The case of the plaintiff is that Smt. Gyan Kaur, the deceased mother of the plaintiff was the absolute owner of the premises bearing No. B159, Indira Nagar, New Azad Pur, Delhi (hereinafter referred to Page 4 of 17 as the suit property). Smt. Gyan Kaur expired on 17.02.1980 intestate i.e. without making any Will regarding disposition of the suit property. Smt. Gyan Kaur was having two sons and four daughters. Plaintiff and defendant No.5 Sh. Uttam Singh are the sons, whereas defendant No. 6 Smt. Jagjit Kaur, defendant No.7 Smt. Harminder Kaur, Smt. Avtar Kaur and Ms. Tej Kaur are the daughters. Ms. Tej Kaur is stated to be mentally ill and missing since long, whereas Smt. Avtar Kaur expired. In the present suit partition of the suit property has been sought by claiming that plaintiff Sh. Gurbaksh Singh Sethi, (son of late Smt. Gyan Kaur), defendant No. 5 Sh. Uttam Singh (son of late Smt. Gyan Kaur), defendant No. 6 Smt. Jagjit Kaur, defendant No.7 Smt. Harminder Kaur and Smt. Avtar Kaur (since deceased) are entitled to 1/5th each share of the suit property. Since Smt. Avtar Kaur got expired before filing of the present suit, defendant No.1 Sh. Sagar Singh Sachdeva, being husband of deceased Avtar Kaur and defendant No. 2, 3, & 4 being children of deceased Smt. Avtar Kaur have been impleaded as defendants in the present suit and it has been claimed that defendant Nos. 1 to 4 are jointly entitled for 1/5th share of the suit property as they have stepped into the shoes of deceased Smt. Avtar Kaur (daughter of late Smt. Gyan Kaur).
It is further the case of the plaintiff that Smt. Gyan Kaur did not execute any Will etc. in favour of any person including the defendant No. 2 Sh. Rajinder Singh Sachdev, (son of late Smt. Avtar Kaur) and therefore, the Will dated 20.10.1978 stated to be executed by Smt. Gyan Kaur in favour of defendant No. 2 be declared null and Page 5 of 17 void. The plaintiff has claimed that he is in the joint/common possession of the suit property being cosharer/coowner of the suit property, but being deprived from the enjoyment of his share in the suit property as his share has not yet been ascertained.
In view of these facts and circumstances, the plaintiff has prayed that the suit property be partitioned and the Will dated 20.07.1978 stated to be executed by Smt. Gyan Kaur in favour of defendant No. 2 be declared null and void. The plaintiff has also claimed relief of permanent injunction.
2. Summons of the suit were issued to all the seven defendants. Defendant Nos. 1 to 4 appeared and filed their joint written statement. The other defendants i.e. defendant Nos. 5, 6 & 7 did not file their written statements and did not oppose the averments made by the plaintiff in his plaint. Defendant No. 5 Sh. Uttam Singh was proceeded exparte. Defendant Nos. 6 & 7 got expired during the proceedings and their legal representatives were brought on record vide order dated 28.05.2007, however, the LRs of the deceased defendant Nos. 6 & 7 did not oppose the case of the plaintiff.
2.1 In the joint written statement filed by defendant Nos. 1 to 4, defendant Nos. 1 to 4 disputed the averments made by the plaintiff and mainly took the stand that defendant No. 2 Sh. Rajinder Singh Sachdev is the absolute and exclusive owner of the suit property by virtue of Will dated 20.10.1978 executed by late Smt. Gyan Kaur in his favour bequeathing the suit property exclusively in favour of defendant Page 6 of 17 No. 2. Defendants further stated that late Smt. Gyan Kaur was being looked after by Smt. Avtar Kaur, daughter of Smt. Gyan Kaur and after death of Smt. Avtar Kaur, Smt. Gyan Kaur was being looked after defendant Nos. 2 to 4 and therefore, due to the love and affection Smt. Gyan Kaur executed the Will in favour of defendant No. 2. The defendants took other objections to the plaint interalia that the suit is barred by limitation, the plaintiff is having no cause of action etc.
3. The plaintiff filed the replication to the written statement filed by defendant Nos. 1 to 4, wherein the plaintiff denied the averments made in the written statement and reaffirmed those made in the plaint.
4. On the basis of the pleadings/material on record, the following issues were framed vide order dated 22.04.2003 : (1) Whether the suit is barred by time ?
(2) Whether the suit is barred by provision of Administration of Evacuee Properties Act ?
(3) Whether the suit is hit by Section 34 of the Specific Relief Act as consequential relief of possession has not been claimed ?
(4) Whether the plaintiff is entitled to the decree for declaration, partition and permanent injunction ?
(5) Relief.
Page 7 of 175. It is noted that the plaintiff moved an application U/o 6 Rule 17 CPC for amendment of the plaint on 20.10.2011 and the said application was allowed by my Ld. Predecessor vide order dated 10.01.2012. The amended plaint filed by the plaintiff was taken on record. The reliefs claimed by the plaintiff in the amended plaint are reproduced hereinafter for the sake of clarity : "It is therefore, prayed that this Hon'ble Court may please pass a decree of partition in favour of the plaintiff and against the defendant affecting partition of the suit property No. B159, Indira Nagar, New Azad Pur, Delhi by metes and boundary in equal five shares more particularly shown in the site plan attached herewith while distributing the property in the following manner.
(a) One share each to plaintiff & defendant Nos. 5 to 7 i.e. 1/5th share in each of them.
(b) One Share to defendant Nos. 1 to 4 collectively i.e. 1/5th share be given to them collectively.
This Hon'ble Court may please pass a decree of Declaration, declaring the alleged Will dated 20.10.78 allegedly executed by Smt. Gian Kaur in favour of defendant No. 2 as null & void & inconsequence thereof declaring plaintiff as one of the legal heirs of late Smt. Gian Kaur alongwith defendants to inherit estate left by Smt. Gian Kaur i.e. B/159, Indira Nagar, Near Azad Pur, Page 8 of 17 Delhi as coowner/cosharer.
This Hon'ble Court may please pass a decree for Permanent Injunction restraining the defendants especially defendant Nos. 1 & 2, their agents, representatives etc. from parting with possession of any portion of suit property to any one or creating third party interest in the said property No. B/159, Indira Nagar, Near Azad Pur, Delhi more particularly shown in site plan attached herewith in the interest of justice and further from misappropriating the Articles mentioned in the Annex'X', living in the Premises No. B/159, Indira Nagar, Near Azad Pur, Delhi.
Any other relief which this Hon'ble Court may please deem fit be granted in favour of the plaintiff and against the defendants."
6. It is noted that the defendants did not file any amended written statement to the amended plaint. The matter proceeded further on plaintiff's evidence. In the plaintiff's evidence, the plaintiff examined four witnesses including himself. The plaintiff's evidence was closed vide order dated 14.10.2014 and the matter was listed for defence evidence. The defendants could not lead any defence evidence despite being granted ample opportunities. The defence evidence was closed vide order dated 05.12.2017.
Page 9 of 177. I have perused the entire case file including the written arguments filed by the plaintiff and heard the final arguments from Ld. Counsel for the plaintiff/LR's of the plaintiff. It is noted that none appeared on behalf of the defendants for final arguments and the defendants also did not file any written final arguments.
8. It appears that due to inadvertent mistake by my Ld. Predecessor, it has not been mentioned by my Ld. Predecessor as to who has to prove the issues framed/on whom the onus will lie for proving the issues. From the language of the issues and from the perusal of the record, it is clear that the onus of issue No. 4 is upon the plaintiff, whereas onus of proving Issue No. 1 to 3 is upon the defendants.
9. Issue No. 4.
(4) Whether the plaintiff is entitled to the decree for declaration, partition and permanent injunction ?
9.1 Firstly, I shall take up Issue No. 4 because it is the most material issue of the present suit. The onus of proving this issue is on the plaintiff. In order to prove his case, the plaintiff has examined himself as PW1 by tendering his evidence by way of affidavit Ex.P1. He relied upon the documents Ex.PW1/1 to Ex.PW1/24. Ex.PW1/1 is the Lease Deed bearing the signatures of the mother of the plaintiff, Page 10 of 17 Ex.PW1/2 is the Conveyance deed bearing the signatures of the mother of the plaintiff, Ex.PW1/3 is the Death Certificate of Smt. Gyan Kaur who died on 17.02.1980, Ex.PW1/4 is the site plan of the property bearing No. B159, Indira Nagar, Azad Pur, Delhi, Ex.PW1/5 is the legal notice sent to defendant Nos. 1 to 4 and its postal receipts are Ex.PW1/6 to Ex.PW1/9 and UPC receipts are Ex.PW1/10 and Ex.PW1/11. Ex.PW1/12 is the reply of the legal notice and its covering letter is Ex.PW1/13 and its rejoinder is Ex.PW1/14, Ex.PW1/15 is the postal receipt of the rejoinder, Ex.PW1/15A is the acknowledgement, Ex.PW1/16 to Ex.PW1/24 are the Electricity Bills of the properly No. B159, Indira Nagar, Azadpur, Delhi. Mark A is the photocopy of the Ration Card, Mark B & Mark C are the money order receipts, Mark D is the Death Certificate of Smt. Avtar Kaur, Mark E and Mark F are the water bills, Mark G is the Assessment Notice, Mark H to H4 are the House Tax receipts.
The plaintiff Sh. Gurbaksh Singh Sethi/PW1 was not crossexamined by the defendants despite ample opportunities and therefore, testimony of plaintiff/PW1 stood unrebutted/unchallenged. In the absence of any crossexamination of PW1 conducted by the defendants, this Court does not find any reason to disbelieve the testimony of the plaintiff/PW1 recorded on oath in the Court.
9.2 PW2 is Smt. Sarabjeet Kaur Sethi W/o Late Sh. Gurbaksh Singh Sethi. She also tendered her evidence by way of affidavit Ex.PW2/A and she also relied upon on the documents Page 11 of 17 already tendered in evidence by the plaintiff/PW1 Sh. Gurbaksh Singh Sethi. PW2 corroborated the stand taken by PW1. PW2 was crossexamined by Ld. Counsel for defendant Nos. 1 to 4, however, PW2 stood firm on her version and nothing material could be elicited during her crossexamination which could favour the version of defendant Nos. 1 to 4. Therefore, PW2 is a reliable witness, whose testimony can be relied upon/acted upon.
PW3 is Sh. Chander Bhan, S/o Late Sh. Goverdhan Dass, Public Relation Inspector, GPO, Delhi. PW3 produced certain record i.e. booking record of certain registered letters.
PW4 is Sh. B.N. Srivastava S/o Sh. H.N. Srivastava, Chamber No. M6, Civil Side, THC, Delhi (This witness has been wrongly mentioned as PW3). PW4 is a handwriting and finger print expert who has tendered his report Ex.PW3/1 in the evidence regarding his opinion on the signatures of late Smt. Gyan Kaur on the disputed Will dated 20.10.1978. This witness was crossexamined by defendant Nos. 1 to 4. This witness has tendered his report regarding the signatures of late Smt. Gyan Kaur on the disputed Will dated 20.10.1978 to the effect that the signatures on the Will does not appear to be of late Smt. Gyan Kaur. The opinion given by PW4 is reproduced herein, "On the cumulative of the reasons stated above, I am of the opinion that the disputed signature of Gyan Kaur and marked as Q1 has not been written by the writer of the comparative Page 12 of 17 signatures."
9.3 Defendant Nos. 1 to 4 did not lead any defence evidence to prove the averments made in the written statement despite granted sufficient opportunities. Defendant Nos. 1 to 4 did not produce the original Will dated 20.10.1978 allegedly executed by late Smt. Gyan Kaur in favour of defendant No.2. Defendants only filed copy of the said Will and perusal of the copy of the said Will would reveal that the said Will is unregistered. The defendants failed to produce the witnesses of the said Will in the Court to prove the execution of the said Will. The defendants did not file any written arguments countering the written arguments filed by the plaintiff and also did not advance any oral final arguments. Since the Will dated 20.10.1978 relied upon by defendant Nos. 1 to 4 has been disputed by the plaintiff, it was incumbent upon the defendants to prove the veracity of the Will by producing the necessary witnesses/evidence, however, as noted above, the defendants failed to prove any evidence in support of their contentions.
The plaintiff has disputed the Will by stating that late Smt. Gyan Kaur was suffering from Parkinson's disease in her last 2/3 years before her death and it is not possible for a person suffering from the said disease to sign firmly a document. The plaintiff produced a certificate from the Dr. H.L. Handa, Ex.PW2/1 to prove that late Smt. Gyan Kaur was suffering from the said disease and Page 13 of 17 therefore, it was not possible for her to sign the disputed the Will. Further, it has been proved by the plaintiff that names of defendant Nos. 1 to 4 are not there in the Ration Card of late Smt. Gyan Kaur which was placed on record by the defendants themselves. The names of defendant Nos. 1 to 4 are not in the Ration Card of late Smt. Gyan Kaur filed by the defendants along with the list of documents which belies the claim of defendant Nos. 1 to 4 that late Smt. Gyan Kaur was residing with them in her last years. Had defendant Nos. 1 to 4 residing with late Smt. Gyan Kaur, their names would have been there in the Ration Card of late Smt. Gyan Kaur.
9.4 In view of these facts and reasons, it can be said that the plaintiff has been successful in proving that the alleged Will dated 20.10.1978 is not genuine and was not executed by Late Smt. Gyan Kaur in favour of any person including defendant No. 2 and further the plaintiff has been successful in proving that the suit property belonged to late Smt. Gyan Kaur and late Smt. Gyan Kaur died intestate. Since the plaintiff/since deceased through LRs is the cosharer in the suit property, defendants have no right to create any third party interest in the entire suit property, therefore, plaintiff is entitled for relief of permanent injunction.
In view of this discussion this issue is decided in favour of the plaintiff (since deceased through LRs) and against the defendants.
Page 14 of 17 10. Issue Nos. 1 to 3 (1) Whether the suit is barred by time ?
(2) Whether the suit is barred by provision of Administration
of Evacuee Properties Act ?
(3) Whether the suit is hit by Section 34 of the Specific Relief
Act as consequential relief of possession has not been claimed ?
Now, I shall take up the remaining issues i.e. Issue Nos. 1 to 3. As mentioned in para No. 8 of this judgment, the onus of proving these issues was upon the defendants. The defendants have failed to lead any evidence to prove these issues. Sufficient opportunities were granted to the defendants for leading defence evidence but the defendants failed to lead any defence evidence. Moreover, the defendants did not turn up in the court for final argument or did not file written arguments. The defendants have raised that the suit is barred by limitation. This Court is of the opinion that this suit is within limitation because as per Article 56 of the Limitation Act,1963, the limitation for filing a suit to get declared a document null and void on the basis of forgery is three years from the date of document/its registration/when the existence of document comes into the knowledge of the plaintiff. In the present suit the plaintiff has claimed that he came to know about the disputed Will dated 20.10.1978 only when he received reply to the notice issued to defendant Nos. 1 to 4 seeking partition of the suit property. The plaintiff has been able to Page 15 of 17 prove the same by way of his evidence tendered by way of affidavit. It is reiterated that plaintiff/PW1 was not crossexamined by the defendant despite opportunity being granted. Further, the other reliefs i.e. relief of Partition and relief of Permanent Injunction are also within limitation in view of the aforesaid discussion. In view of these facts and reasons, these issues are decided against the defendants and in favour of the plaintiff (since deceased through LRs).
11. Relief.
In the light of the aforesaid discussion, it is held that the plaintiff is entitled for following reliefs :
i) The plaintiff (since deceased through Lrs) is entitled to 1/5 share in the suit property i.e. property bearing No. B/159, Indira Nagar, Near Azad Pur, Delhi. The defendant Nos. 1 to 4 are collectively entitled to 1/5 share of the suit property as they have stepped into the shoes of late Smt.Avtar Kaur, deceased daughter of late Smt. Gyan Kaur. Defendant No. 5 (proceeded ex parte), defendant No. 6 (since deceased through LRs) and defendant No. 7 (since deceased through LRs) are entitled to 1/5 share each in the suit property as shown in the site plan Ex.PW1/4.
ii) A decree of Declaration is passed in favour of the plaintiff (since deceased through LRs) and it is declared that the alleged Will dated 20.10.1978 qua the suit property (Mark PW/D1C) allegedly Page 16 of 17 executed by late Smt.Gyan Kaur in favour of defendant No. 2 Sh. Rajinder Singh Sachdev is null and void as the same is not genuine.
iii) A decree of permanent injunction is passed in favour of the plaintiff (since deceased through LRs) and against the defendant no. 1 (since deceased through LRs) and defendant no. 2 and they are restrained from creating any third party interest in the suit property as shown in the site plan Ex.PW1/4 till final decree.
A preliminary decree be drawn accordingly as per rules.
Digitally signed by DHEERAJ MITTALDHEERAJ Date:
MITTAL 2018.05.07
11:57:51
+0530
Announced in the open court ( Dheeraj Mittal )
today on 05.05.2018. Civil Judge 02 (Central), Tis Hazari Courts, Delhi.
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