Delhi District Court
Smt. Priti Pratap Singh vs Rani Prem Kumari on 12 March, 2018
IN THE COURT OF SHRI MANOJ KUMAR: ADDITIONAL
DISTRICT JUDGE8 (CENTRAL), TIS HAZARI, DELHI
Suit No. 2414/1994 (New No.12608/2016)
Unique ID No.: DLCT010000281994
(Computer ID02401C0871032003)
In the matter of:
Smt. Priti Pratap Singh,
D/o Late Raja Pratap Singh,
R/o H. No. 113, Sunder Nagar,
New Delhi. ........Plaintiff
VERSUS
1.Rani Prem Kumari, W/o Late Raja Pratap Singh, 16, Rana Pratap Marg, Lucknow226001.
(Deceased through legal heirs), 1 (a) Smt. Kiran Raj Bisaria, W/o Sh. Raj Bisaria, Sharma Bhawan, Lal Bagh, Lucknow.
1 (b) Smt. Raj Laxmi Shah, W/o Kanwar Narvir Shah, Flat No. 3C, Plot No. 253, Gate No. 3, Westend Marg, Suits No. 12608/2016 and 16909/2016 Page no. 1 of 73 Saidulajab, New Delhi.
2. Smt. Kiran Raj Bisaria, W/o Sh. Raj Bisaria, Sharma Bhawan, Lal Bagh, Lucknow.
3. Smt. Raj Laxmi Shah, W/o Kanwar Narvir Shah, Flat No. 3C, Plot No. 253, Gate No. 3, Westend Marg, Saidulajab, New Delhi.
4. Kanwar Narvir Shah, Flat No. 3C, Plot No. 253, Gate No. 3, Westend Marg, Saidulajab, New Delhi.
5 (a) Shri Anandmayee Trust, Through Mr. Jitendra Singh Rathore, Chief and Managing Trustee, R/o 82A, Pashichim Vihar, Vaishali Nagar, Jaipur, Rajasthan.
5 (b) Shri Anandmayee Trust, Through Mr. Naresh Choudhary, Suits No. 12608/2016 and 16909/2016 Page no. 2 of 73 Trustee Shri Anandmayi Trust, R/o C57, Hanuman Nagar, Near Khatipura, Jaipur, Rajasthan.
5 (c) Shri Anandmayee Trust, Through Smt. Mahendra Kanwar, Trustee Shri Anandmayi Trust, R/o 82, Pashichim Vihar, Vaishali Nagar, Jaipur, Rajasthan.
5 (d) Shri Anandmayee Trust, Through Smt. Raj Laxmi Shah, Trustee Shri Anandmayi Trust, Flat No. 3C, Plot No. 253, Gate No. 3, Westend Marg, Saidulajab, New Delhi.
5 (e) Shri Anandmayee Trust, Through Mr. Dayal Singh Khangarot, Trustee Shri Anandmayi Trust, R/o 5657, Surya Marg, Girnar Colony, Vaishali Nagar, Jaipur, Rajasthan.
5 (f) Shri Anandmayee Trust, Suits No. 12608/2016 and 16909/2016 Page no. 3 of 73 Through Kanwar Narvir Shah, Trustee Shri Anandmayi Trust, Flat No. 3C, Plot No. 253, Gate No. 3, Westend Marg, Saidulajab, New Delhi. ...........Defendants Date of institution : 31.10.1994.
Date of Reserving judgment : 16.12.2017.
Date of pronouncement : 12.3.2018.
For plaintiff : Mr. Bakshi Siri Rang Singh and
Ms. Tasneem Ahmadi,
Advocates.
For defendants : Mr. Vivek Raj Singh, Advocate
for the defendant no. 2.
Mr. S.S. Rathore, Advocate for
the defendants no. 3 and 4.
Mr. R.K. Aggarwal, Sr.
Advocate alongwith
Mr. S.S. Rathore, Advocate
for the defendant no. 5.
AND
Suit No. 126/2004 (New No.16909/2016)
Unique ID No.: DLCT010000651998
(Comp. ID02401C6051502004)
Suits No. 12608/2016 and 16909/2016 Page no. 4 of 73
In the matter of:
Mrs. Kiran Raj Bisaria,
W/o Sh. Raj Bisaria,
R/o Sharma Bhawan, Lal Bagh,
Lucknow. ........Plaintiff
VERSUS
Ms. Preeti Pratap Singh,
D/o Late Raja Pratap Singh,
R/o 113, Sunder Nagar,
New Delhi. ...........Defendant
Date of institution : 21.5.1998
Date of Reserving judgment : 16.12.2017.
Date of pronouncement : 12.3.2018.
For plaintiff : Mr. Vivek Raj Singh, Advocate
For defendant : Mr. Bakshi Siri Rang Singh and
Ms. Tasneem Ahmadi,
Advocates.
JUDGMENT :
By this common judgment, this court shall decide two inter connected suits bearing no. 12608/2016 and 16909/2016. Suit bearing no. 12608/2016 is a suit for partition, permanent injunction and rendition of account, instituted by Smt. Priti Pratap Singh against Suits No. 12608/2016 and 16909/2016 Page no. 5 of 73 the defendants seeking partition of the movable and immovable properties as mentioned in AnnexureA appended to the plaint (hereinafter referred to as "the suit properties"); to restrain the defendants, their servants etc. from alienating, transferring or parting with possession of the suit properties; to restrain the defendants from dispossessing the plaintiff from the ground floor and second floor of the property bearing no. 113, Sunder Nagar, New Delhi; and to pass a decree of rendition of account against the defendants in respect of the rental income received by them from all the rented properties left behind by the plaintiff's late father as well as income received by them from movable and immovable properties disposed of by them. The said suit was originally instituted against the defendants no. 1 to 4 only, but during the pendency of the suit before the Hon'ble Delhi High Court the defendant no. 5 was also impleaded as a party. Suit bearing no. 16909/2016 is a suit for possession and permanent injunction, instituted by Smt. Kiran Raj Bisaria, who is the defendant no. 2 in suit no. 12608/2016, against Smt. Priti Pratap Singh seeking possession of barsati floor (second floor) of property no. 113, Sunder Nagar, New Delhi comprising of open terrace and one large room alongwith kacha room or construction (hereinafter referred to as "the suit premises"); to restrain the defendant (Priti Pratap Singh) from interfering with the ownership and possession of the plaintiff (Kiran Raj Bisaria); and claiming mesne profit for unauthorised occupation of the suit premises at the rate of Rs. 20,000/ per month against the Suits No. 12608/2016 and 16909/2016 Page no. 6 of 73 defendant from the date of the institution of the suit till the date of recovery of possession of the suit premises.
2. In suit no. 12608/2016, which was instituted on 31.10.1994, the facts, as per the plaintiff's version, are that she (Priti Pratap Singh), defendant no. 2 (Kiran Raj Bisaria), defendant no. 3 (Raj Lakshmi Shah) are daughters, and defendant no. 1 (Rani Prem Kumari (since deceased) was the wife of late Raja Pratap Singh, ruler of Kuchaman; that defendant no. 4 (Kanwar Narvir Shah) is the son inlaw of the said Raja Pratap Singh and the husband of the defendant no. 3; that Raja Pratap Singh died on 24.12.1993 leaving behind extensive properties such as Kuchaman Fort, Lake and Palace, a number of commercial buildings in the city of Kuchaman, Kuchaman bungalow at Jodhpur, Paladi Fort, house no. 113, Sunder Nagar, New Delhi, lands, vacant sites, commercial buildings and other valuables, movables and immovable properties enumerated in detail in AnnexureA to the plaint; that late Raja Pratap Singh left behind the plaintiff and the defendants no. 1, 2 and 3 as his only legal heirs; that the plaintiff alongwith the defendants no. 1, 2 and 3 is the primary heir of late Raja Pratap Singh and, therefore, has a right equal to that of her mother and sisters in the properties, movable and immovable, left behind by her father; that the plaintiff, after the death of her father, requested her mother and sisters to partition the property in equal shares, but on some pretext or other they avoided to do so; that by letter dated 01.2.1994 the defendant no. 4 informed the plaintiff that Suits No. 12608/2016 and 16909/2016 Page no. 7 of 73 her late father had left behind a Will dated 16.11.1992, by virtue of which he is said to have bequeathed all his properties, movable and immovable, to the defendants no. 1, 2 and 3 and also to the defendant no. 3's son, and had bequeathed the plaintiff the ground floor of house no. 113, Sunder Nagar, New Delhi only; that the Will was not mentioned by any of the defendants on various occasions when the plaintiff had asked for her share in the properties; that the plaintiff by her advocate's notice dated 08.4.1994 denied the genuineness and validity of the Will dated 16.11.1992 and had called upon the defendants to give her 1/4th share in the property of her father including properties of Shri Maa Anand Mayee Kuchaman Trust and other trusts created by her father and had also called upon the defendants to make her a trustee of the Natwarlalji Temple Trust, Char Bhuja and Satya Narain Temple Trust; that by letter dated 23.6.1994, a reminder was also sent alongwith a list of jewellery and valuables left by late Raja Pratap Singh; that the defendants did not respond to the notice dated 08.4.1994 and the reminder dated 23.6.1994; that the plaintiff has been in possession of the ground floor and second floor of property bearing no. 113, Sunder Nagar, New Delhi; that the plaintiff has been residing in the ground floor of the said property (113, Sunder Nagar, New Delhi) alongwith her two daughters since 1975; that the said property (113, Sunder Nagar, New Delhi) belonged to the plaintiff's late father and the ground floor of the said property was given to the plaintiff by her father as her maintenance alongwith Suits No. 12608/2016 and 16909/2016 Page no. 8 of 73 Rs.10,000/ per month which he was obliged to give her as the plaintiff, who is a divorcee, was not under the protection of her husband or his family and was receiving no maintenance from him; that the plaintiff continues to reside there with her daughters; that the defendants attempted to dispossess the plaintiff from the second floor of the said property and a suit was filed by the plaintiff; that the plaintiff is entitled to 1/4th share in the properties left by her father for the following reasons, namely, (a) the plaintiff is a primary heir and is entitled to the suit property by virtue of sections 9 and 10 of the Hindu Succession Act, (b) the purported Will dated 16.11.1992 is not valid nor genuine, (c) the defendants have not applied for grant of probate of the said Will, (d) the bequest under the said Will could not in law be given effect to as property bequeathed was ancestral property, and
(e) the plaintiff's late father could not bequeath the said property as he had no right or interest in the said property by virtue of the fact that he became a Sanyasi and, therefore, had renounced all his rights and interests in his property and had taken jal samadhi which is restricted to the brotherhood of the Sanyasis; that the defendants have failed and neglected to accede to the plaintiff's request for partition and have in effect refused to give her share on the pretext of the purported Will dated 16.11.1992; that the plaintiff is a joint owner of the suit properties and is entitled to 1/4th share in all the properties both movable and immovable belonging to her father late Raja Pratap Singh and also entitled to 1/4th share in the property of Shri Ma Suits No. 12608/2016 and 16909/2016 Page no. 9 of 73 Anand Mayee Kuchaman Trust and the property of other trusts like Natwarlal Ji Trust and Satya Narain Temple Trust and all other trusts created by her late father; that the Kuchaman Fort and Palace left behind by late Raja Pratap Singh was the property of late Raja Pratap Singh and had never vested in the Ma Anandmayee Kuchaman Trust (defendant no. 5) and remained the property of late Raja Pratap Singh; that the properties left behind by the plaintiff's father include priceless antique jewellery, which has come down from generations and various other commercial properties, certain properties like Kuchaman Fort and Palace which are a work of art; that the Fort and Palace contain many miniature paintings, antique guns, daggers and cannons; that the doors to various rooms of the Fort are of pure silver; that the first floor of the property at Sunder Nagar is let out to Alcatel, the rent of which is being collected by the defendants as also the rents from various other commercial properties; that the defendants have refused to account for the rent received by them from the properties left behind by the plaintiff's late father and the plaintiff has learnt from various family members that the defendants have disposed of certain valuable movables like armaments, shields etc. and are trying to sell the remaining movable and immovable assets left behind by her late father; that the plaintiff has recently come across a Rhino hide shield with gilded brass belonging to the family of the plaintiff which was brought by a friend for pounds 2000; that the plaintiff was also informed by an official of Sotheby's that various movable items have Suits No. 12608/2016 and 16909/2016 Page no. 10 of 73 been sent to Sotheby's by certain members of the family; that in order to preserve these properties it would be in the interest of justice if the defendants are restrained from selling, alienating, parting with possession or in any manner dealing with the said properties till the disposal of this suit. It is further stated in the plaint that due to the acts of the defendants a cause of action arose in favour of the plaintiff leading upto the institution of the suit.
3. The suit instituted by Smt. Priti Pratap Singh is contested by the defendants by way of separate written statements of defence. In the written statement filed on behalf of the defendant no. 1, preliminary objections are taken to the effect that the suit for partition is not maintainable as there is no joint property owned by the plaintiff and the defendant no. 1 as mentioned in AnnexureA of the plaint which includes Kuchaman Fort, Kuchaman Palace which were not the properties of late Raja Pratap Singh; that the properties owned by late Raja Pratap Singh have been bequeathed by him by his last registered Will dated 16.11.1992. In the reply on merits the allegations made by the plaintiff in the plaint are disputed and denied. In the written statement filed on behalf of the defendant no. 1 it is denied that late Raja Pratap Singh died on 24.12.1993 and he left behind extensive properties such as Kuchaman Fort, Lake and Palace and number of commercial buildings in the city of Kuchaman, lands, vacation sites, commercial buildings and other valuables, movables and immovables. In the written statement filed on behalf of the defendant no. 1 it is Suits No. 12608/2016 and 16909/2016 Page no. 11 of 73 further stated that Raja Pratap Singh had left behind a Will dated 16.11.1992 by virtue of which he bequeathed all the properties owned by him. In other paragraphs of the written statement it is also denied that the plaintiff is entitled to 1/4th share in the property of Shri Shri Ma Anandmayee Kuchaman Trust and the properties of other trust like Natwarlalji Temple Trust, Sataynarayan Temple Trust and other Trusts created by her father late Raja Pratap Singh. In the written statement of the defendant no. 1 it is further stated that the suit may be dismissed with costs.
4. In the written statement filed on behalf of the defendant no. 2 it is stated that the suit for partition is not maintainable as there is no joint property owned by the plaintiff and the defendant no. 2; that the property bearing no. 113, Sunder Nagar, New Delhi was owned by the father of the plaintiff and the defendant no. 2, who by way of a registered Will bequeathed the same comprising ground floor with two servant quarters and a garage in favour of the plaintiff and first floor and barsati floor with two servant quarters and a garage in favour of the defendant no. 2; that the plaintiff and the defendant no. 2 on the death of Raja Pratap Singh became the owners of the said properties; that the suit is liable to be dismissed. In the reply on merits the allegations made by the plaintiff against the defendant no. 2 are disputed and denied and the defence taken by way of preliminary objections is reiterated.
5. In the written statement filed on behalf of the defendant Suits No. 12608/2016 and 16909/2016 Page no. 12 of 73 no. 4 it is stated that since no relief has been sought against him, therefore, the suit against him is not maintainable and is liable to be dismissed.
6. In the written statement filed on behalf of the defendant no. 5 and its trustees preliminary objections are taken to the effect that the suit is not maintainable under section 92 of CPC (the Code of Civil Procedure, 1908) as the plaintiff has not complied with the requirements set out therein; that the suit against the defendant no. 4 is not maintainable as no relief has been claimed against him; that the defendant no. 4 is not even a classI legal heir of late Raja Pratap Singh; that the suit against the defendant no. 4 ought to be dismissed at preliminary stage itself; that the properties of which the plaintiff is claiming partition are located in Rajasthan and no part of it falls within the jurisdiction of this court; that the suit is liable to be dismissed as this court has no territorial jurisdiction to entertain the suit; that the Shree Shree Maa Anandmayee Kuchaman Trust (Defendant no. 5) was formed on 24.2.1978 by late Raja Pratap Singh with himself as the Chief Trustee and the other trustees being Rani Prem Kumari (his wifedefendant no. 1), Raj Lakshmi Shah (his daughterdefendant no. 3) and Shri B.K. Shah, President of the Shree Shree Ma Anandmayee Sangh; that from the trust deed it is obvious that the Trust has been formed for charitable and religious purposes and is a public trust, thereby falling under section 92 of CPC; that the said Trust after being formed in 1978 was vested with the properties Suits No. 12608/2016 and 16909/2016 Page no. 13 of 73 of late Raja Pratap Singh, namely, the Kuchaman Fort and Palace by trust deed dated 15.2.1979 registered in the Office of the Sub Registrar, Kuchaman; that after the execution of the trust deed on 15.2.1979 the property was mutated in the municipal records of Kuchaman in the name of the Trust, and ever since 1979 the house tax and other dues are being paid by the Trust; that the Trust was further registered under the Rajasthan Public Trusts Act, 1959 by making a formal application in Form No. 6 (Rule 72) to the Assistant Commissioner, Devasthan, Bikaner appointed for the said purpose; that the said application was made in Jodhpur on 20.4.1979; that the Trust's application for registration under the Rajasthan Public Trusts Act 1959 was accepted and the Trust was registered under the said Act; that before registration of the said Trust under the Rajasthan Public Trusts Act, the Assistant Commissioner, Devasthan, Jodhpur on 18.12.1979 took out a notice under Section 18 (2) read with rule 21 of the Rajasthan Public Trusts Act, 1959 and rules thereunder stating that if any person had any objection to the grant of registration of the Trust, the same may be submitted in the office of the Assistant Commissioner, Devasthan, Jodhpur within 60 days from the date of issuing the notice; that under the provisions of the Rajasthan Public Trusts Act, no suit can be filed against a registered trust except in the manner provided under the Act, namely, by raising objections before the authorities concerned within the period, and in the manner provided under the said Act; that the Trust, in order to augment its Suits No. 12608/2016 and 16909/2016 Page no. 14 of 73 income and fulfilling its objectives as spelt out in the trust deed, decided to give the entire Kuchaman Fort including the portion which is in occupation of a Government School as well as other shops (Godown) to M/s. Rathore Hotels and Tours Private Limited on lease; that the properties of which the plaintiff is asking for partition are not the properties of late Raja Pratap Singh, but the properties of Shree Shree Maa Anandmayee Kuchaman Trust and the said situation exists since the year 1979 onwards; that the suit is barred by limitation as the trust came into existence as early as in the year 1978, and the plaintiff cannot challenge the existence of the Trust after a gap of fifteen years; that the suit for partition is not maintainable as there is no joint property owned by the plaintiff and the defendants as the property mentioned in the AnnexureA to the plaint which include Kuchaman Fort and Palace are not the properties of late Raja Pratap Singh; that the properties owned by late Raja Pratap Singh have been bequeathed by him by his last registered Will dated 16.11.1992. In the reply on merits the defence taken by way of preliminary objections is reiterated and it is denied that late Raja Pratap Singh has left behind extensive properties such as Kuchaman Fort, Lake and Palace and number of commercial buildings in the city of Kuchaman, lands, vacation, sites, commercial building and other valuables, movables and immovables. In the written statement filed on behalf of the defendant no.5. and its trustees regarding the Kuchaman Fort and Palace it is stated that the Jodhpur State was a princely state of British Suits No. 12608/2016 and 16909/2016 Page no. 15 of 73 India and its last Ruler signed the accession to join the Indian Union on 07.4.1949; that Kuchaman was a scheduled Jagir of Jodhpur State within the meaning of section 171 of the Marwar Land Revenue Act, 1949 (hereinafter referred to as "Act of 1949") and was resumed on 01.7.1954 under the provisions of the Rajasthan Land Reforms and Jagir Resumption Act, 1952 (hereinafter referred to as "Act of 1952") which came into force on 16.2.1952; that Raja Hari Singh, ExJagirdar of Kuchaman died without any male issue on 15.1.1956; that his younger brother Pratap Singh was adopted as a son by Raja Hari Singh during his life time and Pag Ceremony was also performed; that the Collector Nagaur exercising its powers conferred under section 38 of the Act of 1952 read with Rule 42 (A) of the Rajasthan Land Reforms and Resumption of Jagir Rules, 1954 declared Raja Pratap Singh as successor of late Raja Hari Singh and further declared that Raja Pratap Singh was entitled to receive compensation of Jagir of late Raja Hari Singh in Succession Case No. 1/56 and granted a succession certificate on 04.10.1956 to the aforesaid effect; that the court of District Judge, Jodhpur, in Civil Miscellaneous Case No. 21A/1956 also issued succession certificate in favour of Raja Pratap Singh; that the Jagir Commissioner also recognized Raja Pratap Singh as successor of late Raja Hari Singh and has declared certain properties as khudkasht lands and as private properties of the ExJagirdar late Raja Hari Singh and compensation was also been paid to him; that order passed under Act of 1952 attained finality and in view of the Suits No. 12608/2016 and 16909/2016 Page no. 16 of 73 provisions of sections 46 and 47 of Act of 1952, which over rides all other laws, the question cannot be reagitated in any other court; that the question of Raja Pratap Singh's determination as successor to late Raja Hari Singh is undisputed. It is further stated in the written statement of the defendant no. 5 and its trustees that Raja Pratap Singh, on the Rules of Primogeniture, the eldest male descendant of male members of the Jagirdar's family became the successor of late Raja Hari Singh and the concept of coparcenary was unknown to it, therefore, the character of the property is impartible and cannot be treated to be coparcenary property and as such, Raja Pratap Singh was absolute owner of the Kuchaman Fort and Palace property and had full right of its disposal; that female members of the Hindu family cannot be held to be members of coparcenary and, therefore, the plaintiff cannot claim any share in the property succeeded by Raja Pratap Singh; In the written statement filed on behalf of the defendant no. 5 and its trustees it is further stated that the provisions of sections 9 and 10 of the Hindu Succession Act, 1956 (hereinafter referred as "Act of 1956") are not applicable in the present matter as the Act of 1956 was not in existence on 15.1.1956 when Raja Hari Singh died and came into force later on with effect from 17.6.1956, after the death of Raja Hari Singh; that the provisions of Act of 1956 also not applicable by virtue of provisions of section 5 (ii) of Act of 1956 which provides that Act of 1956 shall not apply to any estate which descends to a single heir by the terms of any covenant or agreement entered into by Suits No. 12608/2016 and 16909/2016 Page no. 17 of 73 the Ruler of any Indian State with the Government of India or by the terms of any enactment passed before the commencement of the said Act; that the provisions of succession contained in Act of 1949 are in accordance with personal law which had been validated by the Rajasthan Jagir Decisions and Proceedings (Validation) Act, 1955 (hereinafter referred to as "the Act of 1955) which too provides procedure for recognition of successor to the exJagirdar even in the matter if the death has taken place after the enforcement of the said Act; that the Act of 1952 and the Act of 1955 are special Acts and provisions relating to succession are based therein on the basis of the Act of 1949 and passed before the commencement of the Act of 1956 and, therefore, the provisions of the Act of 1952 and Act of 1955 will apply in the matter of Kuchaman Fort and Palace property received by Raja Pratap Singh in succession and provisions of Act of 1956 and Hindu Laws relating to succession will not applicable and will not override the provisions of the aforesaid special Acts. It is further stated in the written statement filed on behalf of the defendant no. 5 and its trustees that the Kuchaman Fort and Palace properties had the character of an impartible estate and personal properties of Raja Pratap Singh and cannot be treated to be coparcenary properties even after resumption of Jagir of Kuchaman and Raja Pratap Singh had full rights of its disposal, who by deed of trust made at Bombay on 24.2.1978 created a public charitable trust Shree Shree Maa Anandmayee Kuchaman Trust for public charitable and religious Suits No. 12608/2016 and 16909/2016 Page no. 18 of 73 activities, which got registered at the office of Deputy Charity Commissioner, Greater Bombay Region, Bombay on 15.2.1978 and transferred and assigned absolutely these properties to the said Trust by deed of Pranyas Patra dated 15.2.1979 which got registered at the office of SubRegistrar, Nawa District, Nagaur, Rajasthan on 28.2.1979, therefore, the Kuchaman Fort and Palace properties are properties of the defendant Trust; that the defendant Trust is a registered public charitable trust registered on 27.3.1984 under the provisions of the Rajasthan Public Trusts Act, 1959 (hereinafter referred as "Act of 1959") and Act of 1959 is a complete Code; that the aforesaid properties were mutated in the Municipal record of Kuchaman in the name of the defendant Trust ever since 1979; that the house tax and and other dues are being paid by the defendant trust also; that the defendant Trust is absolute owner of the aforesaid properties, managing it, maintaining it and carrying objects of the Trust as set out in the trust deed; that the said situation existed from 1979 onwards, therefore, the aforesaid properties cannot be subject matter of the present suit for partition and the present suit is liable to be dismissed. It is further stated in the written statement of the defendant no. 5 and its trustees that the Kuchaman Fort and Palace properties ceased to be the properties of late Raja Pratap Singh immediately after the same became vested in the Trust, therefore, the plaintiff is not joint owner and, therefore, not in joint possession as stated in the plaint. It is further stated in the written statement of the Suits No. 12608/2016 and 16909/2016 Page no. 19 of 73 defendant no. 5 and its trustees that the Kuchaman Fort and Palace properties are trust properties and the plaintiff is not in possession, therefore, unless declaration about the ownership is sought on proper valuation, no relief can be granted as sought in the present matter and the plaintiff is not entitled to proceed with the partition of Kuchaman Fort and Palace properties of which she pleads ouster herself before filing of the suit. In respect of the property at Sunder Nagar, New Delhi it is stated in the written statement of the defendant no. 5 and its trustees that the circle rate of residential plot in Sunder Nagar between the period 01.4.1991 to 31.3.1998 was Rs.12,600/ per square meter and the land area of the Sunder Nagar property is measuring 0.179 acres, so the land value of Sunder Nagar property in the year 1994 was approximately ninety two lakhs rupees as such the suit is not properly valued. In the written statement of the defendant no. 5 and its trustees the existence of the properties mentioned in AnnexureA is denied and it is stated that late Raja Pratap Singh did not leave the properties as mentioned in the AnnexureA of the plaint. It is further stated that the suit may be dismissed with exemplary costs.
7. The plaintiff filed two separate replications to the written statements of the defendant no. 2 and the defendants no. 1, 3, 4 and 5 wherein the defences taken by the defendants are traversed and the avernments made by the plaintiff in the plaint are reiterated.
8. In suit no. 16909/2016 instituted by Smt. Kiran Raj Bisaria against Smt. Priti Pratap Singh, the facts, as per the plaintiff's Suits No. 12608/2016 and 16909/2016 Page no. 20 of 73 version are that the plaintiff and the defendant are real sisters; that Raja Pratap Singh, the father of the parties died on 25.12.1993 leaving behind his wife Rani Prem Kumari and three daughters, namely, Kiran Raj Bisaria, Preeti Singh and Raj Lakshmi Shah; that Raja Pratap Singh left behind a Will dated 16.11.1992 which was registered with the SubRegistrar, Lucknow on 28.11.1992 in Additional Book No. 3, Volume No. 56 at pages 317 to 334 as document no. 944; that the said registered Will bears the photograph of Raja Pratap Singh and his signatures on every page and his thumb impression was also taken in the office of the SubRegistrar; that Raja Pratap Singh had also prepared in his own hand writing a holographic manuscript of his Will which was signed and executed and attested by the witnesses on 06.11.1992; that the holographic Will is identical to the registered Will; that property no. 113, Sunder Nagar, New Delhi is the major asset left behind by Raja Pratap Singh; that the said property is two and a half storey residential building/house constructed on a plot of land measuring 866.66 square yards; that the property is a leasehold property of the L&DO, Government of India; that the paragraphs no. 2 and 3 of the Will deals with the disposition of the property no. 113, Sunder Nagar, New Delhi; that on 15.5.1991, Raja Pratap Singh gave on lease the 1st floor of the said house at Sunder Nagar to M/s. Alcatel South Asia Pacific Ltd., a foreign company, which has its registered office in Hongkong and Liasion Office at Allahabad Bank Building, 17, Sansad Marg, New Delhi (hereinafter Suits No. 12608/2016 and 16909/2016 Page no. 21 of 73 called 'Alcatel') for a period of two years; that the said lease was extended upto 31.12.1994 by Raja Pratap Singh and, therefore, at the time of his death, the lessee was in possession of the first floor of the house; that in the beginning of December, 1993, Raja Pratap Singh (lessor) also gave on lease to the same lessee (Alcatel) the second floor (barsati floor) of the property for a yearly rent of Rs. 24,000/ and handed over possession of the barsati floor to the tenant (Alcatel) in terms thereof; that after the demise of Raja Pratap Singh, Kanwar Naveer Shah, the husband of Smt. Raj Lakshmi Shah (the third sister), informed the defendant that Raja Pratap Singh had left behind a Will dated 16.11.1992, whereby she was entitled to the ground floor of house no. 113, Sunder Nagar, New Delhi and the plaintiff was entitled to the first floor and the barsati floor (second floor) of the said property/house; that thereafter, the defendant issued a legal notice through her advocate M/s. P.H. Parekh and Company dated 08.4.1994 to the plaintiff and the other legal heirs of Raja Pratap Singh alleging therein, inter alia, that the Will in question was not genuine and that she did not admit the correctness and the truthfulness of the Will; that thereafter, the defendant also wrote another letter dated 23.6.1994 to the plaintiff and the other persons concerned refusing to accept the Will of Raja Pratap Singh; that after the death of Raja Pratap Singh, the defendant started construction on the terrace portion of the building without the consent or knowledge of the plaintiff; that the said action of the defendant was intended to forcibly occupy the Suits No. 12608/2016 and 16909/2016 Page no. 22 of 73 portion of the property (barsati floor) which, as per the Will of Raja Pratap Singh belonged to the plaintiff; that to stop the said unauthorized construction, the plaintiff filed suit bearing no. 171/1994 in the court of Senior Sub Judge, Delhi against the tenant as she was under the bona fide impression that the construction was being carried out by 'Alcatel'; that the said suit was withdrawn by the plaintiff on 15.9.1997; that the defendant also filed suit bearing no. 29/1994 in the court of Senior Sub Judge, Delhi against the plaintiff, the other legal heir of Raja Pratap Singh and 'Alcatel' praying therein, inter alia, for a decree of permanent injunction in her favour to the effect that the defendants in the suit be restrained from forcibly entering or taking possession or in any way interfering with her possession of the ground floor or second floor/barsati floor of property bearing no. 113, Sunder Nagar, New Delhi without due process of law; that the said suit of the defendant has been adjourned sine die on 06.2.1997 by the learned Sub Judge, Tis Hazari Courts, Delhi; that on 12.12.1994, the plaintiff also filed suit bearing no. 2848 of 1994 in this court against 'Alcatel' to restrain it from creating any third party interest and not to handover possession except to the plaintiff, of the first floor and second floor of property bearing no. 113, Sunder Nagar, New Delhi; that 'Alcatel', however, handed over possession of the first floor of the said property to the plaintiff on 31.12.1994 during pendency of the said suit; that in October, 1994, the defendant filed a suit for partition against the plaintiff and other legal heirs of Raja Pratap Singh alleging therein, Suits No. 12608/2016 and 16909/2016 Page no. 23 of 73 inter alia, that she was entitled to 1/4th share in the properties of Raja Pratap Singh; that the defendant also disputed correctness of the Will of Raja Pratap Singh in the said suit; that as per the Will of Raja Pratap Singh, the plaintiff has become owner of the first and the second floor of the property in question; that the property bearing no. 113, Sunder Nagar, New Delhi was the self acquired property of Raja Pratap Singh; that the Will is not required to be probated in Delhi; that the plaintiff is the owner of the barsati floor of the property after the demise of Raja Pratap Singh, and the defendant has no right in the said portion of the property; that the plaintiff is, therefore, entitled to evict the defendant from the said portion of the property which the defendant is unauthorizedly occupying; that since the defendant has been unauthorizedly occupying the second floor of the property she is, therefore, liable to pay to the plaintiff mesne profits for the unauthorized use and occupation of the premises/property of the plaintiff; that the suit property has a rental value of at least Rs. 25,000/ per month and the said amount, the plaintiff is entitled to recover from the defendant by way of mesne profits (use and occupation charges) from the date of the suit, till the time she is evicted from the said portion of the property
9. Suit no. 16909/2016 is contested by the defendant by way of a written statement of defence wherein preliminary objections are taken to the effect that the plaintiff had filed a suit bearing no. 2848 of 1994 entitled Kiran Raj Bisaria v. Alcatel, wherein she had also Suits No. 12608/2016 and 16909/2016 Page no. 24 of 73 impleaded the defendant, and the said suit was contested by her; that a suit for partition bearing no. 2414 of 1994 entitled Preeti Pratap Singh v. Rani Prem Kumari has been filed by the defendant which is pending in the court and this fact was suppressed by plaintiff Kiran Raj Bisaria in suit no. 2848; that in suit no. 2848, on the basis of the Will of late Raja Pratap Singh, the plaintiff had raised the issue of barsati; that the subject matter of the said suit bearing no. 2848 was the barsati, wherein the plaintiff had relied upon the Will of her late father to substantiate her averment that she was the rightful owner of the said barsati, and it was averred that the present defendant had been trying to take possession of the barsati; that the plaintiff did not refer to, and suppressed the factum of the earlier suit, that is the suit for partition of the properties left behind by late Raja Pratap Singh as filed by the defendant herein and pending in this court; that the plaintiff, thereafter withdrew the suit bearing no. 2848; that no liberty for filing another suit in respect of the said barsati was taken by the plaintiff or granted by the court; that the present suit cannot be heard by virtue of the provisions of Order II rule 2, Order XXIII rule 1 and also section 12 of the Civil Procedure Code; that the plaint may be rejected and dismissed as not maintainable. In the reply on merits the defence taken by way of preliminary objections is reiterated and it is stated that the plaintiff has forgotten to mention the suit for partition challenging the Will; that in the said suit the defendant has challenged the Will on the ground that the bequest is invalid as the testator, who was not seized Suits No. 12608/2016 and 16909/2016 Page no. 25 of 73 of the property at the time of his death, had taken Sanyas and renounced all his worldly possessions; that the suit for partition also mentions that the property bequeathed under the Will is ancestral property and, therefore, could not be made a part of the Will; that the major assets owned by Raja Pratap Singh was not the residential building at Sunder Nagar; that Raja Pratap Singh owned Lakes, Forts and Palace at Kuchaman, Palri etc., jewellery worth much more than the present house as well as property at Jodhpur etc.; that the defendant is not aware of many other properties owned by late Raja Pratap Singh; that no bequest of ancestral property could have taken place and the bequest was also void as the testator was not seized of the property at the time of his death. It is further stated in the written statement that the plaintiff took possession of the first floor from the lessee by obtaining an interim order by misleading and not bringing to the notice of the court the fact that a suit for partition in respect of all the properties was filed by the defendant in spite of having been served in the same before she filed suit bearing no. 2848/1994 in respect of the first and second floor; that the plaintiff also did not make the defendant a party to the suit; that the second floor was never given to Alcatel on rent, the lessee at any point of time; that the second floor was in possession of the defendant since May, 1991 and has remained in uninterrupted possession of the defendant ever since 1991 and has remained in her possession till date; that the barsati was in possession of the plaintiff since 1991, which was renovated and Suits No. 12608/2016 and 16909/2016 Page no. 26 of 73 added to on various occasions by her father; that the defendant had never started construction on the property/barsati after the death of her father; that after May, 1991 the defendant had been making certain renovations in the barsati during the life time of her father, who resided with her at the said house, whenever he was in Delhi; that the defendant was informed about the Will left behind by her late father, but she is not sure as to who informed her about the Will; that the defendant never intended to forcibly occupy a portion of the property after the death of her father; that the present suit is barred under Order II rule 2, Order XXIIII rule 1 and section 12 of the Code of Civil Procedure as having compromised the suit with one of the defendants, the plaintiff could have perused the suit for other reliefs against the present defendant; that Raja Pratap Singh had no self acquired property; that the plaintiff is not liable to pay any amount as mesne profits or otherwise for any use or occupation of the second floor which is in possession of the defendant by virtue of her father giving the same to the defendant, therefore, the question of the plaintiff being entitled to either the second floor premises or recovery of any amount from the defendants by way of mesne profits or otherwise does not arise; that demolition action was taken by the MCD in the month of February, 1994 at the behest of the plaintiff without any notice to the defendant and in respect of the same a suit was filed before the trial court wherein an order was passed directing the MCD to compound the contraventions; that the defendant Alcatel had stated in its written Suits No. 12608/2016 and 16909/2016 Page no. 27 of 73 statement that they had nothing to do with the second floor of the Sunder Nagar House. It is further stated that the plaintiff cannot be entitled to evict the defendant from the barsati in law and on the basis of the Will nor is the plaintiff entitled to any monetary compensation from the defendant for user of the barsati. It is further stated that the plaintiff is not entitled to any relief from this court and the suit ought to be dismissed.
10. The plaintiff filed a replication to the written statement of the defendant wherein the defence taken by the defendant is traversed and the averments made in the plaint are reiterated.
11. In suit no. 12608/2016, by order dated 31.10.1994, at the instance of the plaintiff a local commissioner was appointed to make an inventory of articles and to file a report. In suit no. 16909/2016 also, by order dated 25.5.1998, at the instance of the defendant no. 2 a local commissioner was appointed to inspect second (barsati) floor of the property no. 113, Sunder Nagar, New Delhi and to submit a report with regard to the existing construction on the said floor. In both the suits reports have filed by the local commissioners; in suit no. 16909/2016 a rough site plan also forms part of the report of the local commissioner.
12. In this judgment, hereinafter, unless the context otherwise provides, Smt. Priti Pratap Singh, who is the defendant in suit no. 16909/2016, shall be referred to as the plaintiff; Smt. Kiran Raj Bisaria, who is the plaintiff in suit no. 16909/2016, shall be referred to Suits No. 12608/2016 and 16909/2016 Page no. 28 of 73 as the defendant no. 2; Rani Prem Kumar, Smt. Raj Lakshmi Shah, Kanwar Narvir Shah and Shree Shree Maa Anandmayee Kuchaman Trust shall be referred to as the defendants no. 1, 3, 4 and 5 respectively.
13. By order dated 19.8.2004, the day on which admission denial of documents was conducted and documents Ex. P1 to Ex. P8 were admitted in evidence, both suits were consolidated.
14. On 04.9.2004, on the pleadings of the parties following issues were framed, namely :
1. Whether the deceased Raja Pratap Singh was competent to dispose off the properties by executing a Will? OPD
2. Whether the registered Will dated 16.11.1992 and the holographic Will dated 06.11.1992 have been validly executed by deceased Raja Pratap Singh? OPD.
3. Whether probate is not essential in respect of the Will and holographic Will? OPD
4. Whether the deceased Raja Pratap Singh left behind any properties other than those mentioned in the Will? If so, to what effect? OPP.
5. Whether the plaintiff is entitled to partition in respect of estates detailed in Annexure A to the plaint? OPP
6. Whether the suit is not maintainable against the defendant no. 5? OP
7. Relief.
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15. Subsequently, an application under Order XIV rule 5 of CPC made on behalf of the plaintiff was allowed and following additional issue no. 6 (a) was framed on 02.11.2004, namely: 6 (a) Whether the Kuchaman Fort and Palace have vested in defendant no. 5? OPD5
16. Thereafter, by order dated 09.8.2017 on an application under Order XVI rule 5 of CPC made on behalf of the defendant no. 2 one more additional issued no. 6 (b)was framed, namely: 6(b) Whether a suit for partition on the basis of succession can be filed for the property which is the subject matter of a registered Will without challenging the Will?
17. In support of her case the plaintiff got examined herself as PW1 and during her examination in chief tendered her affidavit dated 04.1.2005 Ex. X alongwith documents Ex. P9 to Ex. P12. The plaintiff also got examined PW2 Rajender Prasad Saraswati, PW3 Bafati Karigar PW4 Pradeep Kumar, Naib Tehsildar, Pushkar, Rajasthan (also examined as PW6), PW5 Sumer Singh and PW Manohar Lal (also mentioned as PW5). During the examination of PW Pradeep Kumar, PW Sumer Singh and PW Manohar Lal documents Ex. PW5/1 (two different documents tendered on 05.10.2007 and 20.8.2007 during examination of PW Sumer Singh and PW Manohar Lal respectively), Ex. PW5/2 (two different documents tendered on 05.10.2007 and 20.8.2007 during examination of PW Sumer Singh and PW Manohar Lal respectively), Ex. PW5/3 (two different Suits No. 12608/2016 and 16909/2016 Page no. 30 of 73 documents tendered on 05.10.2007 and 20.8.2007 during examination of PW Sumer Singh and PW Manohar Lal respectively), Ex. PW5/4, Ex. PW5/5 to Ex. PW5/6, Ex. PW6/1, Ex. PW6/2 and Ex. PW6/3 were also tendered in evidence on behalf of the plaintiff. All the witnesses produced on behalf of the plaintiff were cross examined by counsel for the defendants and on 24.4.2008 evidence on behalf of the plaintiff was closed.
18. In their defence the defendants got examined DW1 Rani Prem Kumari, DW2 Smt. Kiran Raj Bisaria, DW4 Kanwar Narvir Shah, DW5 Hari Om, DW6 Dr. A.K. Srivastava, DW7 Sube Chander, DW8 Rakesh Kumar Sharma, Registration Clerk, Office of Sub RegistrarII, Lucknow, DW9 Mangla Ram Punia, SubRegistrar, Nagaur, Rajasthan and DW10 Ramesh Chand, Assistant Commissioner, Devasthan, Ajmer, Rajasthan and DW Raj Laxmi Shah (numbered as DW10). During the examination of the defendant's witnesses documents Ex. DW1/1 (two documents, out of which document entitled Pranyas Patra also brought on record as Ex. PW1/D2), Ex. DW1/2, Ex. DW1/3, Ex. DW1/4, Ex. DW1/5, Ex. DW1/8 (also brought on record as Ex. PW1/D1), Ex. DW1/9, Ex. DW1/10A, Ex. DW1/10B, Ex. DW1/10C, Ex. DW2/1A, Ex. DW2/1B, Ex. DW2/1C, Ex. DW2/2, Ex. DW2/3, Ex. DW2/4, Ex. DW2/5, Ex. DW2/6, Ex. DW2/7, Ex. DW2/8, Ex. DW2/9, Ex. DW2/10, Ex. DW2/11A, Ex. DW2/11B, Ex. DW2/11C, Ex. DW2/11D, Ex. DW2/11E, Ex. DW2/12A, Ex. DW2/12B, Ex. DW2/12C, Ex.
Suits No. 12608/2016 and 16909/2016 Page no. 31 of 73 DW2/12D, Ex. DW2/12E, Ex. DW8/1, Ex. DW9/1, Ex. DW10/1 (two different documents tendered on 22.02.2010 and 05.4.2010 during examination of PW Ramesh Chand and PW Raj Lakshmi Shah respectively) were also tendered in evidence on behalf of the defendants. All the defendants were cross examined by counsel for the plaintiff. Subsequently, through admission denial documents Ex. D 5/P1 to Ex. D5/P3 were also brought on record and defendant's evidence was closed.
19. In both the suits all major events having bearing on the facts in issues occurred prior to coming into force of the Hindu Succession (Amendment) Act, 2005.
20. I have heard counsel for the parties and have gone through the material on record carefully. I have also gone through the written arguments filed on behalf of the parties. My issue wise findings are as follows:
Re: Issue no. 1.
21. Onus of proof qua this issue has been on the defendants. Having drawn the attention of the court on the law laid down in Rohit Chauhan v. Suiender Singh and others, (2013) 9 SCC 419, C. Krishna Prasad v. C.I.T., Bangalore, (1975) 1 SCC 107, Smt. Dipo v. Wassan Singh and others, (1983) 3 SCC 376, Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe and others, (1988) 2 SCC 126, Eramma v. Veerupana and others, AIR 1966 SC 1879, Uttam v. Subhash Singh and others, (2016) 4 SCC 68 and Amrit Lal v. Savitri and others, AIR Suits No. 12608/2016 and 16909/2016 Page no. 32 of 73 2017 Punjab & Haryana 130, contrary to the stand taken by the defendant no. 5 and its trustees in their written statement, it is submitted by counsel for the defendants that after the death of Raja Hari Singh on 15.01.1956, Raja Pratap Singh was the sole surviving coparcener, therefore, as per Mitakshara law pertaining to coparcenary property he was competent to dispose of the properties inherited by him as his self acquired property. It is further submitted by counsel for the defendants that the property at Sunder Nagar, New Delhi was self acquired property of Raja Pratap Singh, therefore, he was competent to transfer the said property inter vivos or by testamentary disposition. It is further submitted by counsel for the defendants that long before 06.11.1992 Raja Pratap Singh had attained the age of majority, and on 06.11.1992 and 16.11.1992 he was in sound state of mind, therefore, he was competent to execute a will and to dispose of the properties. On the other hand having drawn the attention of the court on pages no. 171 to 171, 224 and 225 of Elements of Hindu Law Referable to British Judicature in India by Sir Thomas Strange (Volume I : 1825 Ed.) it is submitted by counsel for the plaintiff that Raja Pratap Singh was not competent to dispose of the properties by executing will as the properties are ancestral in nature. It is further submitted by counsel for the plaintiff that Raja Pratap Singh could not have bequeathed the properties as he had no right or interest in the same by virtue of the fact that he had become a Sanyasi and therefore, had renounced all his rights and interests in his property and had taken jal samadhi.
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22. Section 59 of the Indian Succession Act, 1925 provides as to who is capable of making wills. The said section reads as follows:
59. Person capable of making wills.--Every person of sound mind not being a minor may dispose of his property by will.
Explanation 1.A married woman may dispose by will of any property which she could alienate by her own act during her life. Explanation 2.Persons who are deaf or dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it. Explanation 3.A person who is ordinarily insane may make a will during interval in which he is of sound mind.
Explanation 4.No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
23. Further section 30 of the Hindu Succession Act, 1956, which pertains to testamentary succession, reads as follows:
30 Testamentary succession.-- Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him or by her, in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus.
Explanation.-- The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this section.
24. From the testimony of DW2 Kiran Raj Bisaria and document Ex. DW2/2 (a book written by Raja Pratap Singh before his death) it has been proved that Raja Pratap Singh, a Hindu, was born on 03.5.1917; his initial education was at Mayo College, Ajmer till 10 th class and thereafter, he went to England till he finished his B.A. degree. From the testimony of DW1 Rani Prem Kumari it has also been proved that she got married to Raja Pratap Singh on 18.02.1942, Suits No. 12608/2016 and 16909/2016 Page no. 34 of 73 and they had three children, all daughters, who were born on 13.02.1944, 09.10.1948 and 01.6.1956. From the testimonies of PW1 Priti Pratap Singh and DW1 Rani Prem Kumari it has also been proved that on 25.12.1993 Raja Pratap Singh took jal samadhi and passed away. In the plaint filed in suit no. 12608/2016 it has been averred, and PW1 Priti Pratap Singh during her examination deposed that before his death Raja Pratap Singh took Sanyas; she, however, did not tell as to on which date Raja Pratap Singh took Sanyas. But, from the testimony of PW2 Rajender Saraswat it has been proved that Raja Pratap Singh was contemplating to take Sanyas in the year 1993; and from the testimony of DW1 Rani Prem Kumari it has also emerged that Raja Pratap Singh took Sanyas in the month of October, 1993 on the occasion of Dushehra festival. However, no witness has been examined on behalf of the parties who actually witnessed late Raja Pratap Singh taking Sanyas. No evidence has been brought on the record to prove as to what ceremonies were performed, and as to what was the nature of the Sanyas taken by late Raja Pratap Singh. In these circumstances, especially in face of the fact that Raja Pratap Singh was a married person having children and was never restricted from marrying, it is not proved that before his death Raja Pratap Singh entered the religious order of Sanyasis.
25. During her cross examination on 02.7.2005, PW1 Priti Pratap Singh admitted that she had no document to show that her father (Raja Pratap Singh) was not in a sound disposing mind when Suits No. 12608/2016 and 16909/2016 Page no. 35 of 73 the Wills dated 06.11.1992 and 16.11.1992 were executed by him. Whereas DW5 Hari Om and DW6 Dr. A.K. Srivastava during their respective examination unequivocally deposed that on 06.11.1992 and 16.11.1992 respectively Raja Pratap Singh was physically and mentally fit.
26. In the the light of the pleadings and the evidence adduced by the parties it has been established that before 06.11.1992 Raja Pratap Singh had attained the age of majority and he was in fit state of mind; he was stated to have taken Sanyas not before the month of October, 1993, but it has not been proved that he actually entered the religious order of Sanyasis. After the death of Raja Hari Singh, his father, till his death Raja Pratap Singh was the sole surviving coparcener in his family and thus, in the light of the law laid down by the Hon'ble Supreme Court and the Hon'ble Punjab and Haryana High Court in Rohit Chauhan's case (supra), C. Krishna Prasad's case (supra), Smt. Dipo's case (supra), Dharma Shamrao Agalawe's case (supra), Eramma's case (supra), Uttam's case (supra) and Amrit Lal's case (supra) he was free to treat the properties left by Raja Hari Singh, even if the same were ancestral properties, as his self acquired properties. In these circumstances, in the light of the provisions of section 59 of the Indian Succession Act, 1925 and section 30 of the Hindu Succession Act, 1956, after the death of Raja Hari Singh, Raja Pratap Singh was competent to dispose of the properties inherited by him by executing will or wills. In so far as his self acquired property is Suits No. 12608/2016 and 16909/2016 Page no. 36 of 73 concerned, nothing has been brought to the notice of the court to suggest that Raja Pratap Singh was not competent to dispose of such property by executing Will or Wills. His act of taking Sanyas, in the opinion of this court, does not invalidate his acts of executing a Will in respect of the properties before his taking such Sanyas in October, 1993. Issue no. 1 is decided in favour of the defendants and against the plaintiff.
Re: Issue no. 2.
27. Onus of proof qua this issue has been on the defendants. It has been stated in the written statement filed on behalf of the defendants, and deposed by DW1 Rani Prem Kumari, DW2 Kiran Raj Bisaria, DW4 Kanwar Narvir Shah and DW Raj Laxmi Shah that on 06.11.1992 Raja Pratap Singh executed a holographic Will Ex. DW1/9 and subsequently, on 16.11.1992 he executed another Will Ex. DW1/8 (also Ex. PW1/D1) which was also got registered. To prove the execution and attestation of Wills dated 06.11.1992 and 16.11.1992, the defendants got examined DW5 Hari Om and DW6 Dr. A.K. Srivastava. DW5 Hari Om during his examination in chief deposed that on 06.11.1992 Raja Pratap Singh was absolutely hail and hearty and on the said date Raja Pratap Singh had written a Will and called him to sign the same as attesting witness. DW5 Hari Om further deposed that after he reached the residence of Raja Pratap Singh at Lucknow, Uttar Pradesh, he (Raja Pratap Singh) told him and Kameshwar Dayal Seth, who was already present at the residence of Suits No. 12608/2016 and 16909/2016 Page no. 37 of 73 Raja Pratap Singh that he had written the Will in his handwriting, and after showing the said Will to him and Kameshwar Dayal Seth, Raja Pratap Singh signed the same in their presence. DW5 Hari Om further deposed that after signing the Will, Raja Pratap Singh asked him to sign the Will as attesting witness, and thereafter, in presence of Raja Pratap Singh and Kameshwar Dayal Seth, he signed the Will. DW5 Hari Om further deposed that after his signing the Will as a witness, Kameshwar Dayal Seth also signed the said Will as a witness in presence of him and Raja Pratap Singh. DW5 Hari Om further deposed that before signing affidavit Ex. DW5/A, he had seen the certified copy of the holographic will dated 06.11.1992 of late Raja Pratap Singh of which he was an attesting witness, and he recognised his signature. During his cross examination DW5 Hari Om admitted that after attesting the Will in the year 1992 till date of deposition he did not see the original Will. During his cross examination DW5 Hari Om further admitted that Ex. DW1/9 was never exhibited in his presence.
28. DW6 Dr. A.K. Srivastava in his evidence by way of affidavit Ex. DW6/A deposed that he knew Raja Pratap Singh, who died on 25.12.1993, since he had been a family doctor of late Raja Pratap Singh and his family for many years prior to his death. DW6 Dr. A.K. Srivastava further deposed that on 16.11.1992 late Raja Pratap Singh requested him to witness his Will and visit his residence for the said purpose on 16.11.1992, and accordingly, he visited the Suits No. 12608/2016 and 16909/2016 Page no. 38 of 73 house of late Raja Pratap Singh on 16.11.1992 at 16, Rana Pratap Marg, Lucknow around 6 'O' clock in the evening. DW6 Dr. A.K. Srivastava further deposed that when he reached the house of late Raja Pratap Singh, apart from him one Sh. R.K. Gupta, an IAS Officer was also present to witness the Will. DW6 Dr. A.K. Srivastava further deposed that sometime, after his reaching the said house, late Raja Pratap Singh signed a Will dated 16.11.1992 in his presence as well as Sh. R.K. Gupta. DW6 Dr. A.K. Srivastava further deposed that before signing affidavit Ex. DW6/A he had seen certified copy of the said Will dated 16.11.1992 and he was informed by the defendants in the present case that the original of the same has been filed in the court at New Delhi. DW6 Dr. A.K. Srivastava further deposed that after late Raja Pratap Singh signed the said Will, he signed the said Will as an attesting witness in presence of late Raja Pratap Singh and Sh. R.K. Gupta and thereafter, the said Will was signed by Sh. R.K. Gupta in his presence and in the presence of late Raja Pratap Singh. DW6 Dr. A.K. Srivastava further deposed that he had been informed that the said Will had already been exhibited in the evidence placed/filed before this court. DW6 Dr. A.K. Srivastava further deposed that the said Will is exhibited as Ex.DW1/8 and is also annexed herewith for identification purpose as AnnexureA. DW6 Dr. A.K. Srivastava further deposed that late Raja Pratap Singh had signed the said Will without any undue pressure and influence and he was both physically and mentally fit and fine at the time of signing of the aforesaid Will.
Suits No. 12608/2016 and 16909/2016 Page no. 39 of 73 DW6 Dr. A.K. Srivastava further deposed that late Raja Pratap Singh on the said day also informed him that he will be going to register the said Will at the earliest, however, he did not go to the Office of the SubRegistrar alongwith late Raja Pratap Singh when he got registered the said Will.
29. On 20.4.2009, while tendering his affidavit Ex. DW6/A DW6 Dr. A.K. Srivastava also deposed that he had seen the original copy of the registered Will of late Raja Pratap Singh, marked as Ex. DW1/8 and Ex. PW1/D1 dated 16.11.1992. DW6 Dr. A.K. Srivastava further deposed that Ex. DW1/8 was the original of the certified copy that he had filed alongwith his affidavit in evidence. DW6 Dr. A.K. Srivastava further deposed that he had seen the last page of the original registered Will on record on which his signature appeared at point A, and the signatures of Sh. R.K. Gupta and late Raja Pratap Singh appeared at points B and C respectively. DW6 Dr. A.K. Srivastava further deposed that when the original Will was signed, Raja Pratap Singh signed first, thereafter, he signed the same and thereafter, Sh. R.K. Gupta signed it in front of him and Raja Pratap Singh. DW6 Dr. A.K. Srivastava further deposed that late Raja Pratap Singh signed it later in front of him and Sh. R.K. Gupta. DW6 Dr. A.K. Srivastava further deposed that he also signed it (the Will) in front of late Raja Pratap Singh and Sh. R.K. Gupta.
30. During his cross examination DW6 Dr. A.K. Srivastava deposed that he had signed as witness on the Will on 16.11.1992.
Suits No. 12608/2016 and 16909/2016 Page no. 40 of 73 During his cross examination DW6 Dr. A.K. Srivastava further deposed that the original Will which he signed was dated 16.11.1992. During his cross examination DW6 Dr. A.K. Srivastava further deposed that at the time of signing the Will, he was told that the Will would be registered. During his cross examination DW6 Dr. A.K. Srivastava further deposed that the Will was not prepared in his presence. During his cross examination DW6 Dr. A.K. Srivastava further deposed that he had gone through the Will at that time, and as far as he remember there was a mention of properties at Delhi and Kuchaman, Rajasthan and as well as some trusts. During his cross examination DW6 Dr. A.K. Srivastava further deposed that he was a physician and used to attend Raja Pratap Singh at time. During his cross examination DW6 Dr. A.K. Srivastava further deposed that on 16.11.1992 he must have been around 7273 years old. During his cross examination DW6 Dr. A.K. Srivastava further deposed that Raja Pratap Singh died on 25.11.1993 at Lucknow, and he had attended his funeral.
31. From the testimony of DW5 Hari Om it has been proved that although he claims to be a witness to the execution and attestation of Will Ex. DW1/9 dated 06.11.1992, but after 06.11.1992 he did not see the said original Will. Even before deposing in the court as DW5 and at the time of tendering his affidavits Ex. DW5/A and Ex. DW1/5A in examination in chief also DW5 Hari Om did not see the Will in respect of which he was about to, or had, depose in the court.
Suits No. 12608/2016 and 16909/2016 Page no. 41 of 73 In these circumstances I agree with the learned counsel for the plaintiff that Will Ex. DW1/9 dated 06.11.1992 cannot be taken as duly proved as per law. From the testimony of DW5 Hari Om, however, it has been proved that on 06.11.1992 Raja Pratap Singh prepared a document stated to be his Will. In so far as Will dated 16.11.1992 Ex. DW1/8 is concerned from the testimony of DW6 Dr. A.K. Srivastava, which is reliable and could not be shaken during his cross examination it has been proved that on 16.11.1992, in presence of him and R.K. Gupta, Raja Pratap Singh executed his last Will Ex. DW1/8 and the said Will, after execution in their presence, was attested by him and R.K. Gupta in presence of each other and Raja Pratap Singh. In these circumstances the defendants have succeeded in proving the due execution and attestation of Will Ex. DW1/8.
32. From the testimony of DW7 Sube Chander, who, as per his testimony, accompanied Raj Pratap Singh to the Office of Sub Registrar, Lucknow for the purpose of presentation and registration of Will Ex. DW1/8, and from the testimony of DW8 Rakesh Kumar Sharma, Registration Clerk posted in the Office of SubRegistrarII, Lucknow it has also been proved that on 28.11.1992 in the Office of SubRegistrar, Lucknow Will Ex. DW1/8 was registered as document no. 944, Book No. III, Volume No. 56, page nos. 317 to 334. Issue no. 2 is decided in favour of the defendants and against the plaintiff. Re: Issue no. 3.
33. Having drawn the attention of the court on Wills Ex.
Suits No. 12608/2016 and 16909/2016 Page no. 42 of 73 DW1/8 and Ex. DW1/9 and the law laid down by the Hon'ble Delhi High Court in Chaudhary Bhim Singh v. Sukhbir Singh, II (1996) CLT 446, Pratap Singh and another v. State and another, 173 (2010) DLT 132 and Rajesh Sharma v. Krishan Kumar Sharma, 2012 (2014) DLT 562 it is submitted by counsel for the plaintiff that the alleged Wills dated 06.11.1992 and 16.11.1992 were never got probated as per law in Delhi, and since the prescribed period of limitation of three years for having the Wills probated has already expired, therefore, neither Will dated 06.11.1992 Ex. DW1/9 nor Will dated 16.11.1992 Ex. DW1/8 can be read in evidence. It is further submitted by counsel for the plaintiff that since the properties cannot be disposed of on the basis of Wills Ex. DW1/8 and Ex. DW1/9, therefore, as per the provisions of the Hindu Succession Act, 1956 the plaintiff as daughter of late Raja Pratap Singh has equal share alongwith her mother and sisters in the properties of late Raja Pratap Singh situated in Delhi and Rajasthan and is also entitled for having the said properties partitioned.
34. On the other hand having drawn the attention of the court on documents Ex. DW1/8 and Ex. DW1/9 and the law laid down in Clarence Pais and others v. Union of India, (2001) 4 SCC 325, Winifred Nora Theophilus v. Lila Deane and others, AIR 2002 Delhi, Capt. (Retd.) O.P. Sharma v. Kamla Sharma, 158 (2009) DLT 631 (DB) and Shyam Lal v. Satya Narain and others, 2007 LawSuit (All) 969 it is submitted by counsel for the defendants that the Wills dated Suits No. 12608/2016 and 16909/2016 Page no. 43 of 73 06.11.1992 and 16.11.1992 are not required to be probated as the said Wills were executed by Raja Pratap Singh, a Hindu, in the State of Uttar Pradesh and the properties disposed of by way of the said Wills are situated in Delhi and Rajasthan and not in Bombay (Mumbai), Calcutta (Kolkatta) or Madras (Chennai). It is further submitted by counsel for the defendants that the Hon'ble Supreme Court and the Hon'ble High Courts of Delhi and Allahabad have categorically held that a Will executed by a Hindu outside the Presidency Towns of Bombay, Calcutta and Madras and not affecting property in the said Presidency Towns is not required to be probated and no letter of administration is required to be obtained in respect of such Will.
35. In Choudhry Bhim Singh's case (supra) it has been held by the Hon'ble Delhi High Court that unless and until the defendants obtain Letters of Administration or Probate they shall not produce the Will before any authority with reference to the property which is the subject matter of the Will.
36. It has been held by the Hon'ble Delhi High Court in Pratap Singh's case (supra) that Article 137 of the Limitation Act, 1963 applies to petition for grant of probate or letter of administration as well; and period of three years would commence at least from date on which legatee under Will could be justifiably ascribed with knowledge that Will on which his claim is founded is likely to be disputed by other person, especially natural heirs of testator.
37. As found during discussion on the issues no. 1 and 2, Suits No. 12608/2016 and 16909/2016 Page no. 44 of 73 Raja Pratap Singh was competent to execute a Will, and he executed his last Will Ex. DW1/8 on 16.11.1992, which was witnessed and attested by two witnesses, and subsequently got registered in the office of SubRegistrar, Lucknow.
38. The Hon'ble Supreme Court in Clarence Pais's case (supra), while deciding the question whether in respect of a Will, executed by a Hindu in the State of Uttar Pradesh and not affecting any property situated in erstwhile Presidency towns of Bombay, Calcutta and Madras, probate or letter of administration is required to be obtained held as follows:
The effect of Section 213 (2) of the Act is that the requirement of probate or other representation mentioned in subsection (1) for the purpose of establishing the right as an executor or legatee in a court is made inapplicable in case of a will made by Muhammadans and in the case of wills coming under Section 57 (c) of the Act. Section 57 (c) of the Act applies to all wills and codicils made by any Hindu, Buddhist, Sikh or Jain, on or after the first day of January, 1927 which does not relate to immovable property situate within the territory formerly subject to the LieutenantGovernor of Bengal or within the local limits of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and Bombay, or in respect of property within those territories. No probate is necessary in the case of wills by Muhammadans. Now by the Indian Succession (Amendment) Act, 1962, the section has been made applicable to wills made by Parsi dying after the commencement of the 1962 Act. A combined reading of Sections 213 and 57 of the Act would show that where the parties to the will are Hindus or the properties in dispute are not in territories falling under Sections 57 (a) and (b), subsection (2) of Section 213 of the Act applies and subsection (1) has no application. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a will made outside those territories or regarding the immovable properties situate outside those territories. (emphasis added)
39. In this regard the Hon'ble Delhi High Court in Winifred Nora Theophilus's case (supra) held as follows:
11. On interpretation of Section 213 read with Section 57 (a) and (b), the Courts have opined that where the will is made by Hindu, Buddhist, Sikh and Suits No. 12608/2016 and 16909/2016 Page no. 45 of 73 Jaina and were subject to that Lt. Governor of Bengal or within the local limits of ordinary original civil jurisdiction of High Courts of Judicature at Madras and Bombay or even made outside but relating to immovable property within the aforesaid territories that embargo contained in Section 213 shall apply. From this it stands concluded that if will is made by Hindu, Buddhist, Sikh or Jaina outside Bengal, Madras or Bombay then embargo contained in Section 213 shall not apply. This is what the various judgments cited by the leaned counsel for the defendants decide. Therefore there is no problem in arriving at the conclusion that if the will is made in Delhi relating to immovable property in Delhi by Hindu, Buddhist, Sikh or Jaina, no probate is required.
40. Same view is reiterated by the Hon'ble Delhi High Court in Capt. (Retd.) O.P. Sharma's case (supra), wherein it has been held as follows:
25. As regards probate of a Will, it is settled law that in Delhi to enforce a Will probate is not required. section 213 read with section 57 of Indian Succession Act makes it clear that where the parties to the Will are Hindus or the properties in dispute do not fall in the area falling under Sections 57(a) and 57(b), Subsection (2) of Section 213 of the Act applies and Subsection (1) has no application. Therefore, as a consequence, a probate Will not be required to be obtained by a Hindu in respect of a Will made outside those territories or regarding the immovable properties situated outside those territories [Reference is made to Clarence Pais., etc. v. Union of India, (2001) 4 SCC 325 : AIR 2001 SC 1151].
41. In the light of the law laid down by the Hon'ble Supreme Court in Clarence Pais's case (supra) and the Hon'ble Delhi High Court in Winifred Nora Theophilus's case (supra) and Capt. (Retd.) O.P. Sharma's case (supra), at the strength of judgments rendered in Chaudhary Bhim Singh's case (supra), Pratap Singh's case (supra) and Rajesh Sharma's case (supra) it cannot be held that Will Ex. DW1/8 cannot be given effect to. In the light of the law laid down by the Hon'ble Supreme Court in Clarence Pais's case (supra) and the Hon'ble Delhi High Court in Winifred Nora Theophilus's case (supra) and Suits No. 12608/2016 and 16909/2016 Page no. 46 of 73 Capt. (Retd.) O.P. Sharma's case (supra) this court is satisfied that no probate is required by the defendants to assert their rights on the basis of Will Ex. DW1/8. Issue no. 3 is decided in favour of the defendants and against the plaintiff.
Re: Issue no. 4.
42. Onus of proof qua this issue has been on the plaintiff. The plaintiff in the plaint has sought partition of the properties as mentioned in AnnexureA, made part of the plaint. The said AnnexureA lists the following properties:
IMMOVABLE PROPERTIES Kuchaman Fort Kuchaman Mahal (Palace) All shops existing in Kuchaman Market Bhairon ka talav (Lake) Vacant land in : Kharia approximately 570 Bighas Panwali Shambagh Palade Fort,property some adjoining land.
Kuchaman Bungalow house in Jodhpur.
Sunder Nagar House, New Delhi Valuable books and manuscripts with paintings.
In the Fort Glass room with old gilding work and paintings (Kaach Mahal). In the Fort Gold Painted room with old Frcscoes (sunehri Burj).
MOVABLE PROPERTIES
1. GOLD AND SILVER JEWELLERY
(i) Gold jewellery studded with diamonds, emeralds, pearls, pukhraj and rubies.
(ii) Gold bricks, sovereigns and guineas.
(iii) Gold jewellery studded with diamonds, emeralds etc. worn by servants for ceremonial occasions.
(iv) Ceremonial jewellery including sarpechas to be worn on turbans and emeraldkantas.
(v) Gold jewellery worn by camels, elephants & horses on state occasions and festivals.
Suits No. 12608/2016 and 16909/2016 Page no. 47 of 73
2. Arms, guns and armour, muskets with gilded ceremonial swords.
3. Ceremonial Gold, musnads, gaddis, gilded, carpets etc.
4. Old and valuable antiques.
5. Old valuable moghut textiles, brocedes etc.
6. Valuable paintings.
7. Frescoes and gildings.
8. Chandeliers.
9. Silver and wooden furniture.
10. Household effects such as very valuable silver crockeries, cutlery, gold and silver utensils.
11. Valuable carpets.
12. Baba's effects, Kharoos, his iron, artefects.
13. Gangeur statues and the jewellery of Gangeur Mata which is in gold, emerald.
14. Jhoolas.
15. Antique carved doors.
16. Palkis.
17. Temple effects.
18. Religious idols :
(i) Idols of Shiva, Parvathi, seven stones of Shivalingas, the statue of papu Rathore, Ganesh, Nandis, Parvathi Statues, Hanuman statue which are in the Fort.
(ii) The statue of Natwarlalji and temple effects in the Palace.
(iii) Kalimatha statue in the house with her gold and silver jewellery studded with diamonds, pukhraj, emeralds, rubies, pearls and strings of emerald pearls.
(iv) Old statues made of black stones in the Palace.
(v) Family deity of Nag Necha made of spatile, and its silver throne and all its other possessions.
(vi) Original Meerabhi statue in the private temple of charbhuja and Satyanarayan in the city of Kuchaman.
43. Out of the said properties mentioned in AnnexureA of the plaint, some of the properties have been dealt with in last Will Ex. DW1/8 of Raja Pratap Singh. The said Will reads as follows:
THIS IS THE LAST WILL AND TESTAMENT: of me (Raja) PRATAP SINGH of KUCHAMAN (Nagaur) Rajasthan, son of Late Raja Hari Singh Ji Sahib of Kuchaman (At Nagaur) Raj. in the state of RAJASTHAN made on the 6th November, 1992 in the year of our Lord one thousand Ninety two I hereby revoke all wills made by me at anytime heretofore particularly last Suits No. 12608/2016 and 16909/2016 Page no. 48 of 73 will Registered before the Chief SubRegistrar Lucknow made on the 20 th November, 1979, Register No. III file 404 entered 5/11 No. 621. I also revoke my subsequent WILL made on the 5th June, 1987 at 16, Rana Pratap Marg, Lucknow 226001 (U.P.) I now appoint
(a) RAM JI DAS Advocate, son of Late Suraj Bux Singh alias Chaudhary Virender Singh, Chaudhari Building, Murtaja Hussain Road, Yahiyaganj, Lucknow (U.P.) AND
(b) Kunwar Narvir Shah, s/o M.K. Shardul Bikram Shah of Tehri Garhwal, 16, Rana Pratap Marg, Lucknow (U.P.) 226001.
The above two will be my executors and direct that all my debts and most modest funeral expenses shall be paid as conveniently possible after my death. If possible my funeral preferably held at Vrindavan or Kankhal as they find convenient.
This WILL revokes all previous WILL Made by me, specially last one made by me on the 5th June, 1987 at Lucknow and codicil made on the 8th February, 1989.
I bequeath and give into (1) I had owned and possessed my Kuchaman Fort, And MahalsBut on the 26th day of February, 1978 I created a PUBLIC & CHARITABLE TRUST which was registered before the Deputy Charity Commissioner, Greater Bombay region, Bombay on the 15th September, 1978. The Fort of Kuchaman and Mahals of Kuchaman are already vested in the Trustees which include myself, my wife Rani Prem Kumari, Shree B.K. Shah, Chairman of Shree Shree MA ANANDMAYEE TRUST, Shreemati Raj Lakshmi Shah, my youngest daughter and Swami Bhaskaranandji Maharaj C/o Shree Mata Anand Mayee Ashram, Kankhal (U.P.) which are in process of being registered before Deputy Charity Commissioner, Greater Bombay Region. The fifth trustee being myself whose place will be filed as directed in the Trust. If the trustees agree then I would recommend Kunwar Narvir Shah to take my place as TRUSTEE but I would prefer to make my wife Rani Prem Kumari as Chair person in my place.
Further Shree Shree MA ANANDMAYEE KUCHAMAN TRUST registered at Bombay and have also been registered on the 25th February, 1979 and registered deed also registered on 25th February, 1979 at Kuchaman by Tehsildar Nawa (Dt. Nagaur) Rajasthan.
In order to maintain Trust property of Fort and Kuchaman I have entered in a lease agreement on the 10th October, 1992 on behalf of the Trustees with M/s. RATHORE HOTELS & TOURS private Ltd. and have handed over possession of the place except certain places enumerated in the lease for 48 years with provision of further being extended to 41 years on yearly rent Rs.1,00,000/ (One Lakh) per annum payable in advance to the TRUST. Rent to be increased regularly as provided in lease deed. (2) I bequeath the Building No. 113, Sundar Nagar, New Delhi which is on leased land from Government of India has two flats, two garages and 4 Servant quarters. Out of this Bungalow I have already made ground floor flat, Suits No. 12608/2016 and 16909/2016 Page no. 49 of 73 one garage and two quarters to my second daughter PRITI SINGH where she is at present residing. After my demise she will have to pay half ground rent, half of the House Tax and other taxes subsequently imposed. (3) I bequeath first floor flat at present on rent at 113, Sunder Nagar which I am receiving but I bequeath the first floor flat to my eldest daughter Kiran Raj Bisaria, Lalbagh, Lucknow. This flat has one garage and two servant quarters. Further I also bequeath terrace with one room and bathroom also to her. She too will have to pay half ground rent, half of house tax and other taxes subsequently imposed.
(4) I bequeath the full amount derived from the Govt. of India for acquisition of my Kuchaman Bungalow, Jodhpur now to be received and subsequently received to my third daughter Raj Lakshmi Shah absolutely as she and her husband Narvir Shah have taken all the pains and trouble to procure this amount. I would however request them to give two Llacs 2,00,000/ out of this amount to their son Master Vivek Shah who is minor at present. It is my ardent wish that he be made chairman of of Shree Shree Anadmayee Kuchaman Trust on attaining majority first by Rani Prem Kumarie and latter by Raj Lakshmi Shah. Further, they will provide one Lac 1,00,000/ to my wife Rani Prem Kumaree if none of my liquid assets left are available.
(5) From the liquid assets left in Banks I would like to give after clearing all dues of Income Tax, Wealth Tax and other Taxes as follows:
(a) A sum of Rupees Thirty thousand to my rear sister Rani Chain Kumaree, 51, Gaurav Nagar, Civil Lines, Jaipur.
(b) A sum of Rupees Ten Thousand to all my personal servants like Mr. & Mrs. Nathu Singh, Narendra Singh, Murari Upadhya and other deserving servants whom my wife Rani Prem Kumaree and Raj Lakshmi Shah deed fit and deserving.
(6) All my books whether at Kuchaman or at Lucknow should be preserved in some library provided by Shree Shree Ma Anandmayee Kuchaman Trust.
(7) All my other personal belongings lying in safe, or in stores will be at the disposal of Rani Prem Kumarie and subsequently by my daughter Raj Lakshmi Shah but request them to make good use or be fitting donations to my sentiments.
(8) All the ARMS lying at Kuchaman under licence and one 6 m.m. Pistol in my possession with ALL INDIA Licence should be disposed of gradually through my soninlaw K. Narvir Shah in consultation with my wife Rani Prem Kumaree.
(9) All the few valuable swords which should be preserved in store and eventually pass to Master Vivek Shah when he attains majority. Till then they be kept under supervision of Rani Prem Kumarie, Raj Lakshmi Shah and her husband Narvir Shah who is also one of the executors of this WILL. (10) It is also my pious wish that out of assets left in my Bank like State Bank of India, Ashok Marg, Lucknow and also at United Commercial Bank Kuchaman will be available to my wife Prem Kumarie as she also has a joint account with me. I pray that she will pay as my loving gift of Rupee fifteen Suits No. 12608/2016 and 16909/2016 Page no. 50 of 73 thousand to each of my grand children like Rajina Raj Bisaria, Indritta Singh, Pia Singh and Smriti Shah.
In WITNESS WHEREOF I, the said (Raja) PRATAP SINGH hereto this my WILL set my hand the16th November, 1992 at 16, Rana Pratap Marg, Lucknow226001 (U.P.) Signed by the said Testator in presence at the same time, who at his request in his presence of such other have subscribed our names as witnesses.
Sd/ EXECUTANT WITNESSESS :
1. ______Sd/________ Dr. A. K. Srivastava
2. _______Sd/_________ (R.K. Gupta) IAS (Retd.)
44. From a reading of Will Ex. DW1/8, which has been duly proved as valid Will of Raja Pratap Singh, it can be discerned that properties, namely, Fort and Mahals of Kuchaman, property no. 113, Sunder Nagar, New Delhi and the flats, garages, servant quarters and terrace etc. existing thereon, amount derived from the Government of India for acquisition of Kuchaman Banglow, Jodhpur, liquid assets left in the banks, books, personal belongings of Raja Pratap Singh lying in safe or in stores, Arms lying at Kuchaman, swords and assets left at banks like State Bank of India and United Commercial Bank have been specifically dealt with by Raja Pratap Singh in his last will Ex. DW1/8 and have been bequeathed. In so far as other properties mentioned in AnnexueA are concerned, the defendants in their written statement have denied the same being owned by Raja Pratap Suits No. 12608/2016 and 16909/2016 Page no. 51 of 73 Singh at the time of his death. The plaintiff during her evidence has merely asserted that the properties mentioned in AnnexureA were left by Raja Pratap Singh, but no evidence has been led to prove the existence of the said properties as belonging to Raja Pratap Singh at the time of his death. During her cross examination PW1 Priti Pratap Singh admitted that she had no documents or details with regard to the vacant land properties, Paladi Fort and Kuchaman bunglow at Jodhpur mentioned by her in AnnexureA to the plaint. As regards to the movable properties mentioned in AnnexureA to the plaint, PW1 Priti Pratap Singh during her cross examination deposed that she had photographs of some of them but she could not give the exact details of the same. During her cross examination PW1 Priti Pratap Singh admitted that the items no. 2 to 6 mentioned in AnnexureA to the plaint belong to a public charitable trust. No evidence has been led by the plaintiff to prove that at the time of his death Raja Pratap Singh left properties, namely, shops existing in Kuchaman Market, Bhairon ka talav (lake), vacant land in Kharia (approximately 570 Bighas), Panwali, Shambagh and Palade Fort and other movable properties. In the absence of plausible evidence led by the plaintiff, the plaintiff has failed to prove that Raja Pratap Singh left behind any properties other than those mentioned in Will Ex. DW1/8. Issue no. 4 is decided against the plaintiff and in favour of the defendants. Re: Issue no. 6 (a).
45. Before discussion on issues no. 5 and 6 it will be Suits No. 12608/2016 and 16909/2016 Page no. 52 of 73 appropriate and in the interest of justice to discuss the issues no. 6 (a). In the plaint the plaintiff, inter alia, claims 1/4th share in the properties of Shri Maa Anand Mayee Kuchaman Trust. At the time of the institution of the suit the defendant no. 5 was not arrayed as a defendant and no allegation was made against it and its trustees. In suit no. 12608/2016, the defendant no. 5 was made a party during the pendency of the suit; and in the wake of the defendant no. 5 being impleaded as a party the plaint was amended and paragraph no. 10A was inserted in the plaint. Paragraph no. 10A of the plaint reads as follows:
10A That the Kuchaman Fort and Palace left behind by late Raja Pratap Singh was the property of late Raja Pratap Singh and had never vested in Ma Anandmayee Kuchaman Trust (Defendant no. 5) and remained the property of late Raja Pratap Singh.
46. Thus, the stand of the plaintiff is that Kuchaman Fort and Palace never vested in Ma Anandmayee Kuchaman Trust, whereas according to the defendants, on 24.02.1978 by way of a trust deed late Raja Pratap Singh created a public trust, namely Shree Shree Ma Anandmayee Kuchaman Trust with corpus of Rs. 1,000/ which was got registered under the provisions of the Bombay Public Trust Act, and subsequently, in the following year on 15.02.1979 by way of a document described as Pranyas Patra (Ex. DW1/1 and also Ex. PW1/D2), the Kuchaman Fort and Palace etc. were transferred to the said Shree Shree Ma Anandmayee Kuchaman Trust and the said document, namely Pranyas Patra was got registered on 28.02.1979.
Suits No. 12608/2016 and 16909/2016 Page no. 53 of 73 According to the defendants, the said Shree Shree Ma Anandmayee Kuchaman Trust was subsequently got registered as a public trust under the provisions of the Rajasthan Public Trusts Act, 1959 also.
47. In this regard, it has been admitted by the plaintiff during her crossexamination that she was aware that on 24.2.1978 her father got registered a trust at Bombay. However, she expressed her ignorance about the registration of the said Trust in Rajasthan subsequently. During her cross examination PW1 Priti Pratap Singh also admitted that each page of Ex. DW1/1 bears signatures of her late father Raja Pratap Singh, but put rider that Ex. DW1/1 was never given effect. On the other hand DW1 Rani Prem Kumari during her examination unequivocally deposed that after registration of the Trust at Bombay, Kuchaman Fort and Palace were transferred to the said Trust.
48. Similarly DW4 Kanwar Narvir Shah during his examination deposed that after registration of the Trust at Bombay, by way of Pranyas Patra Ex. DW1/1 Kuchaman Fort and Palace were transferred to the said Trust and the Pranyas Patra was got registered in the office of SubRegistrar, Kuchaman. DW4 Kanwar Narvir Shah, one of the trustee of the defendant no. 5 also deposed that subsequently the said Trust was also got registered under the Rajasthan Public Trust Act, 1959, and pursuant to application Ex. DW1/3, before registration of the Trust under the Rajasthan Public Trusts Act, 1959, the Assistant Commissioner Devasthan, Jodhpur on Suits No. 12608/2016 and 16909/2016 Page no. 54 of 73 18.12.1979 took out notice under section 18 (2) of the said Act, the copy of which is Ex. DW1/4. DW4 Kanwar Narvir Shah further deposed that Shree Shree Maa Anandmayee Kuchaman Trust is a public trust within the meaning of section 92 of CPC, and therefore, the properties, of which the plaintiff is asking for partition, are not properties of late Raja Pratap Singh, but are the properties of Shree shree Maa Anandmayee Kuchaman Trust.
49. DW9 Mangla Ram Poonia, SubRegistrar, Nagaur, Rajastahn, on the basis of the summoned record brought by him proved the registration of Pranyas Patra Ex. DW1/1 that was registered as 6/79, book no. IV, Volume no. VII, pages 77 to 83 on 28.2.1979. DW9 Mangla Ram Poonia also tendered Ex. DW9/1, a copy of the document registered in his office.
50. DW10 Ramesh Chand, Assistant Commissioner, Devastahan, Ajmer, Rajasthan, during his examination, on the basis of record brought by him deposed that on 27.3.1984 Shree Shree Maa Anandmayee Kuchaman Trust was registered with the office of the Assistant Commissioner, Bikaner, the then authority under the Rajasthan Public Trust Act, 1959. DW10 Ramesh Chand also tendered document Ex. DW10/1 from his record. DW10 Ramesh Chand also deposed that Shree Shree Maa Anandmayee Kuchaman Trust was duly registered without objection from any one whatsoever.
51. From the testimonies of PW1 Priti Pratap Singh, DW1 Rani Prem Kumari and DW4 Kanwar Narvir Shah and documents Ex.
Suits No. 12608/2016 and 16909/2016 Page no. 55 of 73 DW1/1 and Ex. DW1/8 it has been proved that on 24.02.1978, by way of an instrument in writing (Ex. DW1/1) late Raja Pratap Singh, with corpus of Rs. 1,000/ created a Trust, namely Shree Shree Maa Anandmayee Kuchaman Trust for charitable purpose, and the said Trust was got registered under the provisions of the Bombay Public Trust Act. From the testimonies of DW1 Rani Prem Kumari and DW4 Kanwar Narvir Shah and the contents of Will Ex. DW1/8 it has been proved that after creation of Shree Shree Maa Anandmayee Kuchaman Trust in writing and its registration at Bombay under the Bombay Public Trust Act, on 15.02.1979 Raja Pratap Singh executed document entitled Pranyas Patra Ex. DW1/1, which, after english translation, reads as follows:
SHRI GANESHAY NAMAH TRUST DEED This Deed of Trust is made today on 15 th day of February, 1979 accordingly Miti Phalgun Krishna 3 Thursday Samvat 2035 Vikram by me Raja Pratap Singh Ji by caste Rajput Mertia residence of Kuchaman City, Tehsil Nawa, District Nagaur, Rajasthan that I had executed on 24.02.1978 a Trust Deed at Bombay through which I established a Trust by name of Shree Ma Aanandmayee Kuchaman Trust, where as I myself is a devotee and servant of Ma Anandmayee and, therefore, I established a Trust in the name of Shree Shree Anandmayee Kuchaman Trust for fulfilling the objects of Public and Charitable purposes. Through this Trust I had given my own sum of money to the Trustees of the Trust and I had appointed Four Trustees for managing the Trust and in which I myself was also a Trustee and with me my wife Rani Prem Kumari Ji and Rajkumari Raj Lakshmi Shah, wife of Rajkumar Shri Narvir Shah residing at present in New Delhi and Babu Bhai Shri Kasturchand Shah at present residing at Bombay were appointed Trustees and the object of that Trust were described in para no. 5 of the Trust Deed dated 15.2.1978 and for fulfilling and achiving those objects I had established aforesaid Shree Shree Ma Anandmayee Kuchaman Trust and after executing the deed of Trust the same had been registered under Bombay Public Trust Act and in order to fulfill and for achieving the aims and objects of the Trust through this deed I hereby transfer and assign my self acquired and self Suits No. 12608/2016 and 16909/2016 Page no. 56 of 73 owned immovable properties situated at Kuchaman City (more fully detailed in the schedule (A) of this deed) to the aforesaid Trust Shree Shree Ma Anandmayee Kuchaman Trust whereas I am also a Trustee of the aforesaid Trust, therefore, all the immovable properties belonging to me as rightful owner and in my possession and given in schedule (A) now through this Deed of Trust shall vest in the said Trust Shree Shree Ma Anandmayee Kuchaman Trust, and all the Trustees I myself and Shrimati Prem Kumarie Ji Rani Sahiba Kuchaman, Shrimati Rajkumari Raj Lakshmi Shah at present residing at New Delhi and Shri Babu Bhai Kasturchand Shah resident of Bombay shall exercise their rights as Trustees of the Trust in the immovable properties, Palaces and Fort situated in Kuchaman City and described in schedule (A) and its income shall be utilized in the programs for fulfilling the objects of the Trust initiated by me earlier. And with the effect of this day I relinquish all the rights as owner vested in me in respect of said immovable properties more fully described in schedule (A), in favour of the said Trust throug this Deed of Trust. And from this day Shree Shree Ma Anandmayee Kuchaman Trust aforesaid shall have all the rights in the immovable properties described in schedule (A).
In the schedule (A) attached with this Deed of Trust my own Palaces which are situated below to my Fort and My Fort situated on the hill are included and all the surrounding to these two are also mentioned in the schedule. Both the two immovable properties were in my ownership and rights till today. I am and was exJagirdar of the Thikana of Kuchaman and only son and heir of Late Shri Hari Singh Ji and the immovable properties described in the schedule (A) has been my own and personal property and estate after the death of my father Late Shri Hari Singh Ji. I remain in possession of this property as absolute owner and there is no other person having any right or title over the aforesaid property except me. As I have no son I am desirous that the aforesaid properties be utilized for public charitable and endowment purposes and the general public to get benefitted by it by fulfilling the objects of the Trust earlier executed by me. Therefore, I have surrendered and transferred all my properties described in schedule (A) through this Deed of Trustt. Shree Shree Ma Anandmayee Kuchaman Trust in which I am also a Trustee and the same has been created by me the properties shall vest with and shall remain in possession of the Trustees in my place from this day. Now from this day the executant nor his heir have any right or title over the property. Now from this day the aforesaid Trust Shree Shree Ma Anandmayee Kuchaman Trust shall have all the properitory rights with all the amenities which were vested in me up till this day and the same shall be utilized for the attainment of the objects of the said Trust Shree Shree Ma Anandmayee Kuchaman Trust. Some part of the Palaces situated below the Fort as described in schedule (A) has been given on rent to the education department for S.T.C. School. Now from this day all the rent payable by the education department for the said building the Trust will be entitled to receive the rent and the said rent shall be utilized by the Trustees for the purposes of the said Trust. The Trustees can also let or hire the other Palaces and buildings situated below the Fort and the rental income shall be utilized for Suits No. 12608/2016 and 16909/2016 Page no. 57 of 73 fulfilling the objects of the said Trust. Now from this day I shall have no personal right in the income of the immovable property described in schedule (A) and from today the Trust shall be responsible for the upkeep, maintenance, security and management of the property given in the schedule (A) which is part of the Deed.
In witness whereof with my own and free Will and consent without any undue influence I the settler execute this Trust Deed in writing and the immovable property by this Trust Deed is now transferred to the other Trustees with me as Trustee of the Trust. Today 15.2.1979 accordingly Miti Phalgun Krishna 3 Thursday Samvat 2035. Typist Kanhaiya Lal Sharma. After typing on 3 non judicial stamps of Rupees 30, 10 and 5 total Rupees 45 and two plain papers total five papers read over to the settler Raja Shri Pratap Singh Ji Sahib which he acknowledge as correct.
Settler
sd/
Pratap Singh
Witness 1.
Witness 2.
52. From a perusal of document Ex. DW1/1 it can be
discerned that although the said document purports to be a Pranyas Patra (Instrument of Trust), but it is not a fresh trust deed, and instead the same is only a conveyance deed to transfer the immovable properties, inter vivos, in favour of the Shree Shree Maa Anandmayee Kuchaman Trust, already created and registered under the Bombay Public Trusts Act.
53. Having drawn the attention of the court on Ex. DW1/1 (both documents), testimony of DW Raj Laxmi Shah, section 36B of the Bombay Public Trusts Act, 1950 and the law laid down by the Hon'ble Supreme Court in Ritesh Tiwari and another v. State of U.P. and others, AIR 2010 SC 3823 it is vehemently argued by the learned counsel for the plaintiff that Pranyas Patra Ex. DW1/1 does not create Suits No. 12608/2016 and 16909/2016 Page no. 58 of 73 any Trust, and that since Shree Shree Maa Anandmayee Kuchaman Trust was registered under the provisions of the Bombay Public Trusts Act, a local law having operation in the State of Maharashtra only, therefore, no property situated within the territory of the State of Rajasthan could have been transferred to it. It is further submitted by counsel for the plaintiff that DW Raj Laxmi Shah during her cross examination called upon to produce the original register, required to be maintained section 36B of the Bombay Public Trusts Act, 1950 in respect of the affairs and properties of the Trust, but she did not produce the same, therefore, an adverse inference be drawn that the Kuchaman Fort and Palace never formed trust properties. It is also submitted on behalf of the plaintiff that since no trust in respect of the Kuchaman Fort and Palace was ever lawfully created, therefore, the plaintiff being coowner of the said properties is entitled to the partition of the said properties.
54. It has been held by the Hon'ble Supreme Court in Ritesh Tiwari's case (supra) as follows:
26. It is settled legal proposition that if an order is bad in its inception it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which he has obtained the benefits.
55. In so far raising adverse inference against the defendants due to non production of the original register in respect of the affairs and the properties of the Trust by DW Raj Laxmi Shah is concerned, Suits No. 12608/2016 and 16909/2016 Page no. 59 of 73 the said witness gave explanation that the original register could not be brought as the same was with Devastahn. DW Raj Laxmi Shah further explained that the register was sent to the Devasthan as the plaintiff was making repeated inquiries and as such on demand it was sent there. In the opinion of the court the witness has properly explained the reason for non production of original register, therefore, no adverse inference can be drawn against the defendants due to non production of the register. The learned counsel for the plaintiff has not brought to the notice of this court any provision under the Bombay Public Trusts Act, 1950 or the Rajasthan Public Trusts Act, 1959 or any other law to suggest that the transfer of the Kuchaman Fort and Palace by way of Ex. DW1/1 to Shree Shree Maa Anandmayee Kuchaman Trust, created and registered at Bombay was illegal or invalid and was not permissible under the provisions of the Bombay Public Trusts Act. On the contrary, in the light of judgment of Hon'ble Supreme Court in Nautam Prakash DGSVC, Vadtal and others v. K.K. Thakkar and others, (2006) 5 SCC 330 it appears to this court that a public trust created and registered under the Bombay Public Trusts Act, 1950 may own property outside the State of Maharashtra.
56. From the contents of Ex. DW1/1, Ex. DW9/1 and Will Ex. DW1/8 it has been proved that from 15.02.1979 Palace and Fort situated in Kuchaman City and described in schedule (A) to Ex. DW1/1 vested in Shree Shree Maa Anandmayee Kuchaman Trust and Suits No. 12608/2016 and 16909/2016 Page no. 60 of 73 its income is to be utilized in the programmes for fulfilling the objects of the said Trust initiated by Raja Pratap Singh. From the testimony of DW4 Kanwar Narvir Shah and DW10 Ramesh Chand and documents Ex. DW1/3, Ex. DW1/4 and Ex. DW10/1 (copy of registration certificate under the Rajasthan Public Trusts Act, 1959) it has also been proved that Shree Shree Maa Anandmayee Kuchaman Trust was also registered under the provisions of the Rajasthan Public Trusts Act, 1959. In these circumstances, there remains no doubt that since 15.02.1979 onwards Palace and Fort situated in Kuchaman city and described in schedule (A) to Ex. DW1/1 vested in Shree Shree Maa Anandmayee Kuchaman Trust, which was subsequently also got registered under the provisions of the Rajasthan Public Trust Act, 1959, and hence Raja Pratap Singh ceased to be the owner of the said properties comprised in schedule (A) to Ex. DW1/1. Issues no. 6 (a) is decided against the plaintiff and in favour of the defendant no. 5. Re: Issue No. 6.
57. Having drawn the attention of the court on the contents of the plaint, Ex. P5, provisions of the Rajasthan Public Trusts Act, 1959, the provisions of the Limitation Act, 1963 and the law laid down in National Textile Corporation v. Nareshkumar Badrikumar Jagad and others, (2011) 12 SCC 695, Bhagwati Prasad v. Chandramaul, AIR 1966 SC 735, Shehla Burney and others v. Syed Ali Mossa Raza and others, (2011) 6 SCC 529, Ganesh Shet v. Dr. C.S.G.K. Setty and others, (1998) 5 SCC 381, Dilboo and others v.
Suits No. 12608/2016 and 16909/2016 Page no. 61 of 73 Dhanraji and others, (2000) 7 SCC 702, Khatri Hotels Private Limited and another v. Union of India and another, (2011) 9 SCC 126, Manohar Lal v. Ugrasen and others, (2010) 11 SCC 557, Messrs Trojan & Co. v. RM. N.N. Nagappa Chettiar, AIR 1953 SC 235, Krishna Priya Ganguly and others v. University of Lucknow and others, (1984) 1 SCC 307, Bharat Amratlal Kothari and another v. Dosukhan Samadkhan Sindhi and others, (2010) 1 SCC 234, Fertilizer Corporation of India Ltd. and another v. Sarat Chandra Rath and others, (1996) 10 SCC 331, Bachhaj Nahar v. Nilima Mandal and another, (2008) 17 SCC 491 and Mehta Charity Trust, Pali and others v. Gulam Rasool and others, 1986 (2) WLN 433 it is submitted by counsel for the defendants that in the entire plaint the plaintiff has not made any allegation against the defendant no. 5 and no relief has been sought against the defendant no. 5. It is further submitted by counsel for the defendants that the plaintiff was aware about the fact that since the year 1979 the Kuchaman Fort and Palace stood vested in Shree Shree Maa Anandmayee Kuchaman Trust, which was subsequently registered under the Rajasthan Public Trusts Act, 1959, still with mala fide intention she instituted the present frivolous suit. It is further submitted by counsel for the defendants that the plaintiff since 1979, after registration of Ex. DW1/1 (Ex. PW1/D2) had notice about the vesting of the Kuchaman Fort and Palace in Shree Shree Maa Anandmayee Kuchaman Trust, and by letter dated 03.4.1991 Ex. P5, addressed by Raja Pratap Singh to her she was called upon to join the Suits No. 12608/2016 and 16909/2016 Page no. 62 of 73 said Shree Shree Maa Anandmayee Kuchaman Trust as a trustee, but she neither became trustee nor challenged the creation and registration of the Trust. It is further submitted by counsel for the defendants that limitation period to challenge the creation of Trust has already passed and since the plaintiff has not challenged the creation of Trust, therefore, the suit is not maintainable against the defendant no. 5. It is further submitted by counsel for the defendants that the suit is barred under sections 21 and 22 of the Rajasthan Public Trusts Act, 1959 as the plaintiff is claiming title adverse to public trust duly registered under the said Act. On the other hand it is submitted by counsel for the plaintiff that since the transfer of the Kuchaman Fort and Palace to Shree Shree Maa Anandmayee Kuchaman Trust is non est, therefore, the suit is maintainable against the defendant no. 5.
58. From a perusal of the plaint it can be discerned that the plaintiff claims one fourth share in the properties of Shree Shree Maa Anandmayee Kuchaman Trust. In the plaint, even after amendment, the plaintiff did not make any allegation against the Shree Shree Maa Anandmayee Kuchaman Trust or its trustees and did not seek any relief against them.
59. It has been held by the Hon'ble Supreme Court in Bhagwati Prasad's case (supra) that relief should be founded on pleadings made by parties.
60. It has been held by the Hon'ble Supreme Court in Shehla Burney's case (supra) that in the absence of any pleading and prayer Suits No. 12608/2016 and 16909/2016 Page no. 63 of 73 for relief against a defendant in original or amended plaint it is not within jurisdiction of a court to grant relief against a defendant against whom no relief has been claimed.
61. It has been held by the Hon'ble Supreme Court in Dilboo's case (supra) that generally in case of registered documents date of registration will be the date of deemed knowledge.
62. It has been held by the Hon'ble Rajasthan High Court in Mehta Charity Trust's case (supra) that no suit by a person claiming title adverse to the public trust could be maintained under section 22 of the Rajasthan Public Trusts Act, 1959.
63. During discussion on issue no. 6 (a) it has been found that from 15.02.1979 onwards Palace and Fort situated in Kuchaman city and described in schedule (A) to Ex. DW1/1 vested in Shree Shree Maa Anandmayee Kuchaman Trust, which was subsequently also got registered under the provisions of the Rajasthan Public Trust Act, 1959, and thus, Raja Pratap Singh ceased to be the owner of the said properties comprised in schedule (A) to Ex. DW1/1. From a perusal of Ex. P5 it is proved that as early as on or about 03.4.1991 late Raja Pratap Singh invited the plaintiff to be a trustee of Shree Shree Maa Anandmayee Kuchaman Trust. Further as per the law laid down in Dilboo's case (supra) after registration of Ex. DW1/1 under the Registration Act, 1908, and registration of Shree Shree Maa Anandmayee Kuchaman Trust under the provisions of the Rajasthan Public Trusts Act, 1959 vide Ex. DW10/1 the plaintiff is deemed to Suits No. 12608/2016 and 16909/2016 Page no. 64 of 73 have notice of the Trust and vesting of the Kuchaman for and Palace in it, but she did not challenge the Trust or vesting of properties therein and let the limitation pass. In these circumstances it is found that the plaintiff had no occasion to sue the defendant no. 5 and to seek any relief against it or its trustees. The suit is found not maintainable against the defendant no. 5. Issue no. 6 is decided against the plaintiff and in favour of the defendant no. 5. Re: Issue no. 6 (b).
64. Having drawn the attention of the court on the pleadings, the testimony of PW1 Priti Pratap Singh and the law laid down in Abdul Rahim and others v. S.K. Abdul Zabar, 2009 DNJ (SC) 357 it is submitted by counsel for the defendants that the plaintiff before institution of the present suit was aware about the existence, execution and registration of Will Ex. DW1/8, whereby late Raja Pratap Singh disposed of his properties which are also the subject matter of the suit, still without seeking any declaration of nullity in respect of the said Will the plaintiff instituted the present suit. It is further submitted by counsel for the defendants that without challenging the Will the present suit is not maintainable. On the other hand it is submitted by counsel for the plaintiff that the suit is maintainable without seeking any declaration of nullity of the Will.
65. During discussion on issue no. 2 it has been found that before his death Raja Pratap Singh executed Will Ex. DW1/8 whereby he bequeathed his all properties in favour of several persons, including Suits No. 12608/2016 and 16909/2016 Page no. 65 of 73 the parties to the suit. From the testimony of PW1 Priti Pratap Singh it has also been proved that before institution of the suit she was aware about the said Will Ex. DW1/8 and its execution by her father, still she instituted the present suit without seeking any declaration of nullity in respect of the said Will. In this regard it has been held by the Hon'ble Supreme Court in Md. Noorul Hoda v. Bibi Raifunnisa and others, (1996) 7 SCC 767 as follows:
When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands an insurmountable obstacle in his way which otherwise binds him though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside rescinded.
66. In the present case, the existence of Will Ex. DW1/8, which has been proved as duly executed, attested and registered had certainly cast a cloud on the assumed title of the plaintiff in the properties claimed by her by way of the present suit so much so with the death of the testator the properties vested in the legatees. In these circumstances in the light of the law laid down in Md. Noorul Hoda's case (supra) the plaintiff ought to have sought a declaration in respect of the invalidity of the Will. In the absence of the plaintiff seeking such declaration, the present suit for partition on the basis of succession could not have been filed in respect of the properties which are the subject matter of a registered Will Ex. DW1/8. Issue no. 6 (b) is decided in favour of the defendants and against the plaintiff. Re: Issue no. 5.
67. In view of findings on issues no. 4 and 6 (a) the plaintiff Suits No. 12608/2016 and 16909/2016 Page no. 66 of 73 is not found entitled to the partition of the properties mentioned in AnnexureA, made part of the plaint. Issue no. 5 is decided against the plaintiff and in favour of the defendants.
Relief.
68. Having drawn the attention of the court on the law laid down in Kunju Keshwan v. M.M. Philip and others, AIR 1964 SC 164, Swami Atmananda and others v. Sri Ramakrishan Tapovanam and others, (2005) 10 SCC 51, Nedunuri Kameshwaramma v. Sampati Subbarao, AIR 1963 SC 884, Kannan v. V.S. Pandurangam (dead) by LRs and others, (2007) 15 SCC 157, Sayeda Akhtar v. Abdul Ahmad, AIR 2003 SC 2985, Indian Council for EnviroLegal Action v. Union of India and others, (2011) 8 SCC 161, Rameshwari Devi and others v. Nirmala Devi and others, (2011) 8 SCC 249, Maria Margarida Secueria Fernandes and others v. Erasmo Jack De Sequeira (dead) Through Lrs, (2012) 5 SCC 370 it is submitted by counsel for the defendant no. 2 that although in suit no. 16909/2016 issues have not been framed separately, but the parties from the beginning knew as to what is the dispute between them and have led evidence. It is further submitted by counsel for the defendant no. 2 that since at the strength of Will Ex. DW1/8 the defendant no. 2 is the owner of the suit premises and the plaintiff has been occupying the same unlawfully, therefore, the defendant no. 2 is entitled to recover the possession of the suit premises from the plaintiff and she is also entitled to reasonable mesne profits for use and occupation against the plaintiff.
Suits No. 12608/2016 and 16909/2016 Page no. 67 of 73 On the other hand it is submitted by counsel for the plaintiff that the defendant no. 2 is neither entitled to recover possession of the suit premises nor she is entitled to any damages or mesne profits against the plaintiff.
69. In the light of the evidence adduced by the parties it has been proved that before his death Raja Pratp Singh duly executed his last Will dated 16.11.1992 Ex. DW1/8, whereby he bequeathed ground floor flat at property no. 113, Sunder Nagar, New Delhi with one garage and two servant quarters to the plaintiff; and also bequeathed first floor flat with one garage and two servant quarters and terrace with one room and bathroom at property no. 113, Sunder Nagar, New to the defendant no. 2. It is admitted case of the plaintiff that at the time of the institution of the suit she was occupying the suit premises. There is no material to suggest that during the pendency of the suit the plaintiff vacated the suit premises. As it has been proved that the plaintiff, after the death of Raja Pratap Singh, in the wake of his Will Ex. DW1/8 has no right, title and interest in the suit premises, therefore, she is not found entitled to retain the possession of the suit premises that she has been unlawfully occupying since the institution of the suit. In these circumstances the defendant no. 2 is found entitled to recover possession of the suit premises from the plaintiff.
70. In so far as question of recovery of mesne profit is concerned, in her plaint the defendant no. 2 has averred that in the beginning of December, 1993, Raja Pratap Singh (lessor) also gave on Suits No. 12608/2016 and 16909/2016 Page no. 68 of 73 lease to lessee (Alcatel) the second floor (barsati floor) of the property for a yearly rent of Rs.24,000/. Although, the plaintiff in her written statement has denied this fact, but from the testimony of DW1 Rani Prem Kumari and documents Ex. DW1/5A and Ex. DW1/5B (copies of letters addressed by Raja Pratap Singh to Alcatel, the lessee) it has been proved that in the month of December, 2013 the barsati floor was let out at annual rent of Rs. 24,000/ for the period 01.01.1994 to 31.12.1994.
71. From the testimony of DW2 Kiran Raj Bisaria and documents Ex. DW2/11A (copy of lease deed dated 15.5.1991 qua first floor of property no. 113, Sunder Nagar, New Delhi entered into between Raja Pratap Singh and Alcatel), Ex. DW2/11B (copy of letter dated 09.12.1993 addressed by Raja Pratap Singh to the representative of Alcatel regarding extension of lease) and Ex. DW2/11C (copy of letter dated 10.12.1993 addressed by the representative of Alcatel to Raja Pratap Singh in reply to letter dated 09.12.1993 accepting the extension of lease) it has also been proved that by way of lease deed dated 01.5.1991, the copy of which is Ex. DW2/11A first floor portion of the property no. 113, Sunder Nagar, New Delhi was demised for two years at monthly rent of Rs.10,000/, and after expiry of lease period of two years, lease in respect of the first floor portion of the property no. 113, Sunder Nagar, New Delhi was renewed for one year at enhanced rent of Rs. 12,000/ per month thus, enhancing the rent by 20% after two years. In the absence of any other evidence Suits No. 12608/2016 and 16909/2016 Page no. 69 of 73 regarding the measure of mesne profits same formula, that is enhancement of deemed rent at the rate of 10% per annum can be applied in granting mesne profits in favour the defendant no. 2 against the plaintiff for unlawful occupation of the suit premises. If in the light of documents Ex. DW1/5A, Ex. DW1/5B, Ex. DW2/11A, Ex. DW2/11B and Ex. DW2/11C the potential rent fetched by the suit premises is enhanced by 10% annually, in the year 1998, from the date of the institution of the suit till 31.12.1998, the defendant no. 2 becomes entitled to mesne profit at the rate of Rs. 35,140/ per annum. For the period 01.01.1999 to 31.12.1999 the defendant no. 2 becomes entitled to recover mesne profit at the rate of Rs. 38,650/ (Rs. 35,140/ for preceding year increased by 10%) per annum from the plaintiff. For the year 2000, and each succeeding year thereafter, the defendant no. 2 is found entitled to recover mesne profit equal to the annual rent for the preceding year increased by ten percent from the plaintiff till the recovery of possession of the suit premises by the defendant no. 2.
72. In conclusion, in view of findings on the issues no. 1, 2, 3, 4, 5, 6, 6 (a) and 6 (b) in suit no. 2414/1994 (New no.12608/2016) instituted by Smt. Priti Pratap Singh, the plaintiff is not found entitled to any relief. The suit is dismissed with costs. Decree sheet be prepared accordingly.
73. And suit no. 126/2004 (New No.16909/2016) instituted by Smt Kiran Raj Bisaria is decreed with costs in following terms, Suits No. 12608/2016 and 16909/2016 Page no. 70 of 73 namely:
(a) Smt. Kiran Raj Bisaria, the plaintiff in suit no.
16909/2016 is held entitled to recover possession of the suit premises, that is barsati floor (second floor) of the property bearing no. 113, Sunder Nagar, New Delhi comprising of open terrace and one large room with bathroom with kacha room or construction as shown in the rough site plan filed by the local commissioner alongwith her report dated 05.6.1998.
(b) Smt. Kiran Raj Bisaria, the plaintiff in suit no. 16909/2016 is also found entitled for a decree of permanent injunction in her favour, therefore, Smt. Priti Pratap Singh, the defendant in suit no. 16909/2016 is restrained perpetually from interfering with the ownership and possession of Smt. Kiran Raj Bisaria in barsati floor (second floor) of the property bearing no. 113, Sunder Nagar, New Delhi comprising of open terrace and one large room with bathroom with kacha room or construction as shown in the rough site plan filed by the local commissioner alongwith her report dated 05.6.1998.
(c) Smt. Kiran Raj Bisaria, the plaintiff in suit no. 16909/2016 is further found entitled to mesne profits, (i) at the rate of Rs. 35,140/ per annum w.e.f. 21.5.1998 to 31.12.1998; (ii) at the rate of Rs. 38,650/ per annum w.e.f. 01.01.1999 to 31.12.1999 (i.e. further 10% increase.); (iii) at the rate of Rs. 42,515/ per annum w.e.f. 01.01.2000 to 31.12.2000 (i.e. further 10% increase.); (iv) at the rate of Rs. 46,767/ per annum w.e.f. 01.01.2001 to 31.12.2001 (i.e. further Suits No. 12608/2016 and 16909/2016 Page no. 71 of 73 10% increase.); (v) at the rate of Rs. 51,443/ per annum w.e.f. 01.01.2002 to 31.12.2002 (i.e. further 10% increase.); (vi) at the rate of Rs. 56,587/ per annum w.e.f. 01.01.2003 to 31.12.2003 (i.e. further 10% increase.); (vii) at the rate of Rs. 62,246/ per annum w.e.f. 01.01.2004 to 31.12.2004 (i.e. further 10% increase.); (viii) at the rate of Rs. 68,471/ per annum w.e.f. 01.01.2005 to 31.12.2005 (i.e. further 10% increase.); (ix) at the rate of Rs. 75,318/ per annum w.e.f. 01.01.2006 to 31.12.2006 (i.e. further 10% increase.); (x) at the rate of Rs. 82,850/ per annum w.e.f. 01.01.2007 to 31.12.2007 (i.e. further 10% increase.); (xi) at the rate of Rs. 91,135/ per annum w.e.f. 01.01.2008 to 31.12.2008 (i.e. further 10% increase.); (xii) at the rate of Rs. 100248/ per annum w.e.f. 01.01.2009 to 31.12.2009 (i.e. further 10% increase.); (xiii) at the rate of Rs. 110273/ per annum w.e.f. 01.01.2010 to 31.12.2010 (i.e. further 10% increase.); (xiv) at the rate of Rs. 121300/ per annum w.e.f. 01.01.2011 to 31.12.2011 (i.e. further 10% increase.); (xv) at the rate of Rs. 133430/ per annum w.e.f. 01.01.2012 to 31.12.2012 (i.e. further 10% increase.); (xvi) at the rate of Rs. 146773/ per annum w.e.f. 01.01.2013 to 31.12.2013 (i.e. further 10% increase.); (xvii) at the rate of Rs. 161451/ per annum w.e.f. 01.01.2014 to 31.12.2014 (i.e. further 10% increase.); (xviii) at the rate of Rs. 177596/ per annum w.e.f. 01.01.2015 to 31.12.2015 (i.e. further 10% increase.); (xix) at the rate of Rs. 195355/ per annum w.e.f. 01.01.2016 to 31.12.2016 (i.e. further 10% increase.); (xx) at the rate of Rs. 214891/ per annum w.e.f.
Suits No. 12608/2016 and 16909/2016 Page no. 72 of 73 01.01.2017 to 31.12.2017 (i.e. further 10% increase.); and so on till Smt. Priti Pratap Singh, the defendant in suit no. 16909/2016 delivers vacant possession of the suit property to Smt. Kiran Raj Bisaria.
74. Smt. Kiran Raj Bisaria, the plaintiff in suit no. 16909/2016 will also be entitled to pendente lite and future interest at the rate of 6% per annum on the said mesne profits.
75. Smt. Kiran Raj Bisaria, the plaintiff in suit no. 16909/2016 is directed to make payment of remaining court fee regarding the mesne profits awarded in her favour on or before 31.3.2018 and after payment of court fee decree sheet be prepared, and after compliance file be sent to records.
76. This judgment be kept in the file of suit no. 12608/2016 and a copy of the same be kept in file of suit no. 16909/2016.
77. Nothing observed in this judgment shall affect or prejudice the rights and powers of any government or local authority.
MANOJ Digitally signed by
MANOJ KUMAR
KUMAR Date: 2018.03.13
11:54:43 +0530
Pronounced in the open court (Manoj Kumar)
on 12.3.2018. Additional District Judge8
Central:Tis Hazari Courts: Delhi.
Suits No. 12608/2016 and 16909/2016 Page no. 73 of 73