Delhi District Court
Smt. Rama Nayyar vs Sh. Mahesh Puri on 17 October, 2022
IN THE COURT OF MS. RAVINDER BEDI,
ADDITIONAL DISTRICT JUDGE-02 (SHAHDARA),
KARKARDOOMA COURTS, DELHI.
C.S. No. (New) 570/2020, (Old CS No.92/2012)
CNR No. DLSH01-007219-2020
In the matter of :-
Smt. Rama Nayyar,
W/o Sh. Parvesh Nayyar,
R/o KG-II/430, Vikaspuri,
New Delhi.
.......Plaintiff
Versus
1. Sh. Mahesh Puri,
S/o Late Sh. Rattan Lal Puri,
R/o C-122, East Azad Nagar,
Delhi-51.
2. Smt. Varsha, (since deceased),
through her LRs,
i) Sh. J.L.Bindra,
ii) Sh. Naveen Bindra,
S/o Sh. J.L.Bindra,
Both R/o : GH-8/112,
Paschim Vihar,
New Delhi.
3. Smt. Saroj Suri,
W/o Sh. Inderjit Suri,
R/o G-27/6, Rajouri Garden,
New Delhi.
C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors.
C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.1 of 58
Digitally signed by
RAVINDER RAVINDER BEDI
BEDI Date: 2022.10.28
12:47:39 +0530
4. Smt. Manisha,
W/o Sh. Vijay Kumar Sanon,
R/o 129-A, Street No.5,
East Azad Nagar, Delhi-51.
5. Smt. Kiran Ghai,
W/o Sh. Satish Ghai,
R/o 15/298, Near Happy Child School,
Uttam Colony, Bahadurgarh,
District Jhajjar (Haryana).
.....Defendants
Date of institution : 13.03.2000
Date of Decision : 17.10.2022
AND
C.S. No. (New) 1724/2016, (Old CS No.2386/2012)
CNR No. DLSH01-001508-2016
In the matter of :-
1. Smt. Manisha,
W/o Sh. Vijay Kumar Sanan,
R/o 129-A, Street No.5,
East Azad Nagar,
Delhi-110051.
2. Smt. Kiran Ghai,
W/o Sh. Satish Ghai,
R/o 15/298, Near Happy Child School,
Uttam Colony, Bahadurgarh,
Haryana.
.....Plaintiffs
Versus
1. Sh. Mahesh Puri,
S/o Late Sh. Rattan Lal Puri,
C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors.
C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.2 of 58
Digitally signed by
RAVINDER RAVINDER BEDI
BEDI Date: 2022.10.28
12:47:44 +0530
R/o C-122, Street No.5,
East Azad Nagar, Delhi.
2. Sh. Divye Puri,
Sh. Mahesh Puri,
R/o C-122, Street No.5,
East Azad Nagar, Delhi.
3. Smt. Rama Nayyar,
W/o Sh. Parvesh Nayyar,
R/o KG-II/430, Vikaspuri,
New Delhi-110018.
4. Sh. Naveen Bindra,
S/o Late Sh. J.L.Bindra,
R/o GH-9/169, Paschim Vihar, Delhi.
5. Sh. Inderjeet Suri,
S/o Sh. Deshraj Suri,
R/o Z-13, Rajouri Garden, Delhi.
.....Defendants
Date of institution : 02.07.2012
Date of Final Order : 17.10.2022
JUDGMENT
1. Vide this common judgment, I shall decide two suits bearing C.S. No. 570/2020, (Old No.92/2012) titled as Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. and another being C.S. No. 1724/2016, (Old No.2386/2012) titled Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors. In both suits, parties are the children of Late Sh. Ratan Lal Puri. The suit titled "Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors" instituted on 09.02.2000 shall be referred to as the "first suit" and suit titled "Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors." filed on 02.07.2012 as "later suit" for the sake of convenience in adjudication. C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.3 of 58 Digitally signed by RAVINDER RAVINDER BEDI
BEDI Date: 2022.10.28
Factual Matrix of "first suit"
2. Plaintiff Smt. Rama Nayyar and Defendants No.1 to 5 are children of late Sh. Ratan Lal Puri. Plaintiff filed this 'first suit' on 13.03.2000 for rendition of accounts in respect of incomes derived by Defendant no.1 from property no.C-122, Gali No.5, East Azad Nagar, Delhi (hereinafter referred to as 'suit property') and prayed for passing a Preliminary decree for her share in dues. Plaintiff states that Smt. Leela Puri was the owner of the suit property and she expired on 14.05.1993 leaving behind Plaintiff and Defendants as her legal heirs. After the death of Smt. Leela Puri, suit property has devolved upon the Plaintiff and Defendants in equal shares i.e. 1/6th share each therein. In front of the suit property, there are six shops which are in possession of various tenants. The inner portion of the suit property is being used as a guest house and her brother Defendant no.1 is realizing the entire rental income from tenants in suit property without paying any shares to the Plaintiff. Plaintiff approached Defendant no.1 for rendering her true accounts of income; however Defendant no.1 kept putting off Plaintiff on one pretext or the other. Defendant no.1 is under legal obligation to maintain proper accounts but he does not allow Plaintiff to inspect the books of accounts nor is giving her share in such incomes. Defendant no.1 is the trustee and withholding of such amounts is a criminal breach of trust. Defendant no.1 has now openly declared that he would not pay anything out of such income. Plaintiff states that being one of the co-sharers in the suit property, she is entitled to her 1/6th share in the income. She states that on 05.03.2000, Defendant no.1 has refused to give her share and has set up his hostile claim over the same, detrimental to C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.4 of 58 Digitally signed by RAVINDER RAVINDER BEDI
BEDI Date: 2022.10.28
interests of Plaintiff. The tentative share of Plaintiff is to the tune of Rs.5 Lakhs approx. but since she is not in possession of books of accounts, she is unable to ascertain the actual amount / share in the property.
3. Defendant no.1 filed his written statement and took preliminary objections contending that :
suit of Plaintiff was not maintainable since Plaintiff and other sisters were well aware of the Will dated 30.06.1993 executed by Late Sh. R.L.Puri in respect of suit property in favour of Defendant No.1 with limited rights. Late Smt. Varsha Bindra - Defendant no.2 had expired on 14.06.2000 and her legal heirs were not impleaded within the stipulated period; that Plaintiff was claiming share of late Smt. Varsha Bindra also, inasmuch as she was seeking 1/6th share in the suit property; the suit was filed in the name of Rama Nayyar whereas the actual name of Plaintiff was Meena Nayyar; the Plaintiff was aware of the Will dated 30.06.1993 executed by father of parties and yet did not implead Divye Puri, minor, as a necessary party to the suit, who was the ultimate beneficiary as per Will dated 30.06.1993 with absolute rights in the suit property.
that Defendant No.2 (since deceased) had filed a suit for Permanent Injunction in the year 1999 against Defendant no.1 C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.5 of 58 RAVINDER Digitally signed by
RAVINDER BEDI
BEDI Date: 2022.10.28 12:47:57
+0530
and his wife before Civil Judge, Karkardooma seeking injunction from disposing off the suit property and in that suit, Defendant No.1 had brought the following facts on record:
"That her father Late Sh. R.L.Puri was the sole owner of the suit property and had executed a Will dt.30/6/93 being his last Will creating a life interest in the suit property on defendant no.1 and absolutely thereafter on the son of the defendant no.1 i.e. Divye Puri. The Will was executed in the presence of and explained to all his children who also acknowledged the same in writing vide note dt. 30/6/93. The said Will was made in presence of the plaintiff as well as the defendants and the plaintiff and the defendants gave their consent to the said Will. The making of the said Will dt. 30/6/93 was also recorded by Video camera. This was subsequently acknowledged by the plaintiff and other defendants by letter/notice dt. 3/7/93 sent on behalf of plaintiff and defendant no.4&5 which was replied to by Late Sh. R.L.Puri vide inter-alia letter dt. 15/7/93 in his own hand writing, upholding the will and expressing anguish at the behavior of the plaintiff and other defendants.
Vide publication dt. 18/2/94 Late Sh. Ratan Lal Puri gave a public notice clarifying that no other person had any authority to deal with the said property. Late Sh. Puri expired on 20/11/97.
Defendant no.2 (deceased) thereafter sent a legal notice to defendant no.1 stating that the property owned by Late Sh. R.L.Puri was to go by succession to all the legal heirs and thereafter filed the suit for permanent injunction mentioned above..."
that Plaintiff and Defendants no.4&5 had sent a legal notice dated 02.01.1998 upon Defendant no.1 stating that Late Smt. Leelawati C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.6 of 58 Digitally signed by RAVINDER RAVINDER BEDI
BEDI Date: 2022.10.28
12:48:01 +0530
was the owner of suit property. In its reply, sent on 07.02.1998, Defendant no.1 clarified that Late Sh. R.L.Puri was owner of the suit property and had executed a Will dated 30.06.1993. The suit property was purchased by Late Sh. R.L.Puri, father of parties from Smt. Leelawati by Sale Deed dated 01.09.1967 and thus Sh. R.L.Puri was the absolute owner of the suit property.
that Defendant No.2 (deceased) in her suit for injunction had also stated that the suit property was owned by Late Sh. R.L.Puri. The said suit was compromised and withdrawn. The whole correspondence exchanged between father and daughters was to the effect that father was the owner of the property and at no time, did any of the children had ever challenged the ownership of their father. It was clear that Plaintiff and other Defendants were in collusion and had filed the false suit to put pressure upon the Defendant no.1, who in any event only had a life interest in the property, after whom, the same would devolve upon his son.
that suit property was sold by Smt. Leelwati to Late Sh. R.L.Puri on 01.09.1967 through documents duly registered with the office of Sub-Registrar vide registration no.11742 at volume 845. Thus, the stand of plaintiff that Smt. Leelawati was owner of the suit property was false. Suit property was purchased by Late Sh.
C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.7 of 58 RAVINDER Digitally signed by RAVINDER
BEDI
BEDI Date: 2022.10.28 12:48:06
+0530
R.L.Puri from his own funds and he had bequeathed the same in favour of Defendant no.1 (life interest) and thereafter to his grand son Master Divye Puri with due consent of Plaintiff and all other daughters through a Will dated 30.06.1993.
that Plaintiff thus had no share in the property and there arose no question of rendering any payments from rental income to her. Plaintiff alonwith other Defendants sent a Legal Notice dated 03.07.1993 through her Advocate to Late Sh. R.L.Puri calling upon him to desist from acting as per Will dated 30.06.1993. Late Sh. R.L.Puri had sent a reply vide letter dated 15.07.1993 to the Plaintiff and other Defendants wherein he expressed his deep anguish and concern over the acts of Plaintiff and her sisters of sending such Legal Notice to their own father. In view of the said Will, there was no question of suit property having devolved upon the Plaintiff or any other Defendants and therefore, a prayer was made to dismiss the suit.
Written statement was filed by LRs of Defendant no.2 wherein it was stated that the averments in plaint were correct and Plaintiff was entitled for 1/6th share in the suit property alongwith other co-sharers including the LRs of Defendant no.2. It was contended that the Defendant no.1 was managing the business of guest C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.8 of 58 RAVINDER Digitally signed by RAVINDER
BEDI
BEDI Date: 2022.10.28 12:48:10
+0530
house run in the suit property and was misappropriating the profits and rents.
Defendant no.3 in her written statement supported the stand of Defendant no.1 in respect of Will dated 30.06.1993 executed by father of parties. She contended that Plaintiff did not make Mr. Divye Puri as necessary and proper party who was the ultimate beneficiary as per Will having absolute rights in the suit property. Supporting the stand of Defendant no.1, she stated that suit property was sold by Smt. Leelawati to Late Sh. R.L.Puri vide registered Sale Deed dated 01.09.1967 and as such Plaintiff's stand that Smt. Leelawati was the owner of the property held no ground. Late Sh.R.L.Puri was the absolute owner of the suit property and during his lifetime had bequeathed the same in favour of Defendant no.1 (life interest therein) and thereafter to his grand son Master Divye Puri with due consent from all parties. Thus, Plaintiff had no share in the suit property and there was no question of making any payments / rendition of accounts to her.
Defendants no.4 and 5 in their joint written statement contended that their father Late Sh. R.L.Puri had sold the suit property to his wife Late Smt. Leelawati on the basis of one Agreement to sell C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.9 of 58 RAVINDER Digitally signed by RAVINDER
BEDI
BEDI Date: 2022.10.28 12:48:15 +0
dated 31.08.1989 against consideration amount of Rs.1,90,000/- and as such Late Sh.R.L.Puri was not the absolute owner of the suit property. Rest of the averments of plaint were denied by Defendants no.4&5, by stating that Defendant no.1 was under an obligation to render accounts in respect of income received from suit property.
During pendency of the proceedings, Defendant no.4 and 5 sought to amend their written statement by moving an application under Order 6 rule 17 CPC before the ld. Predecessor to incorporate certain facts; however, the same was dismissed by Order dated 29.01.2004. Pertinently, Defendant no.2 expired during pendency of proceedings and her legal representatives were also proceeded exparte.
4. By order dated 20.09.2004, following issues were settled by Hon'ble Delhi High Court for adjudication as under :
1. Whether Smt. Leela Puri was the owner of suit property ? OPP
2. Whether plaintiff alongwith defendants is co-sharers or having 1/6th share in the property ? OPP.
3. Whether the suit is bad for mis-joinder and non-joinder ? OPD-1.
4. Whether Sh.R.L.Puri executed a WILL dated 30/6/93 as allegedly in preliminary objection No.6 of Defendant No.1 ? OPD-1.
C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.10 of 58 RAVINDER Digitally signed by RAVINDER
BEDI
BEDI Date: 2022.10.28 12:48:20 +0530
5. Whether the plaintiff is entitled to decree of rendition of accounts?OPP
6. Relief.
5. The matter was listed for evidence of the plaintiff through Local Commissioner appointed by the Court. It is noticeable that during pendency of 'first suit', Defendant no.4 - Manisha and Defendant No.5-Kiran Ghai (sister) filed a separate suit on 02.07.2012 seeking Partition and Injunction (herein as 'later suit') before Hon'ble Delhi High Court in respect of the suit property against Rama Nayyar and other Defendants. By Order dated 08.10.2013, Hon'ble Delhi High Court observed that since some of the issues in both suits were common, the "first suit" pending before Ld. Predecessor was withdrawn and transferred to the Hon'ble Delhi High Court for common adjudication. By Order dated 15.07.2014, issues were framed in the "later suit" and both suits were consolidated and the evidence already recorded in "first suit" was directed to be read in the "Later suit".
Factual Matrix of "later suit"
6. Plaintiffs Manisha and Kiran Ghai, who are the sisters of Defendant No.1 in their plaint stated that they are daugthers of late Sh. R.L.Puri and Smt. Leela Puri. There were two more daughters namely Late Varsha Puri and Saroj Suri, both of whom had expired on 14.06.2000 and 20.03.2012 respectively. Late Smt. Saroj Suri is survived by her husband Inderjeet Suri / Defendant no.5 being the only legal heir and late Smt. Varsha C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.11 of 58 Digitally signed by RAVINDERRAVINDER BEDI BEDI Date: 2022.10.28 12:48:24 +0530 is survived by her son Naveen Bindra (since husband of Smt. Varsha had predeceased her).
Plaintiffs aver that their mother was the absolute owner of suit property and after demise of plaintiffs' father Sh. R.L.Puri, one of daughters late Smt. Varsha had filed a suit for injunction against Defendant no.1 - Mahesh Puri. Another daughter Smt. Rama Nayyar - Defendant no.3 had filed a 'first suit' against Defendant no.1 for rendition of accounts. The behaviour of Defendant no.1 was uncooperative, who had taken a false plea that father of parties late Sh. R.L.Puri had executed a Will dated 30.06.1993 in presence of his daughters and all daughters had given their no objections to the said Will.
that Defendant no.1 had called his sisters on 30.06.1993 on the occasion of anniversary of mother of parties and had stealthily brought a video camera in room of their father and read over some documents in English, despite knowledge that sisters were not familiar with the English language. However, Defendant no.1 promised to get the documents translated later on. Defendant No.1 succeeded in obtaining the signatures of his sisters and father under undue influence and pressure without disclosing the facts of these alleged documents even to late Sh. R.L.Puri. It was revealed to Plaintiffs only, when Defendant No.3 file a suit wherein Defendant No.1 referred to said Will, which was a fraudulent document.
C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.12 of 58RAVINDER Digitally signed by RAVINDER
BEDI
BEDI Date: 2022.10.28 12:48:28 +0530
that Defendant no.1 fraudulently got issued notices in the name of his father as well as fraudulent Public Notices due to his greed of property despite knowing that the father was not even the owner of the suit property. Suit property was sold by late Sh. R.L.Puri vide transfer documents dated 31.08.1989 to his wife late Smt. Leela Puri against valuable consideration and Smt. Leela Puri was the owner of the suit property. She had died intestate and her sons and daughters had equal shares in the suit property being co-owners.
that Defendants no.1&2 had refused to partition the property by metes and bounds and also refused to give share in the same to the Plaintiffs and others. Hence, the suit for partition of the suit property was filed by the Plaintiffs asking for the partition of the same by metes and bounds.
7. Defendants no.1 and 2 in their written statement have taken the identical stand in defence as taken in the "first suit". Defendant no.3 Rama Nayyar took the same stand as in her plaint filed by her in "first suit". Defendant no.4 Naveen Bindra in his written statement stated that he was the son of late Smt. Varsha Bindra - step sister of the plaintiffs. Late Smt. Varsha Bindra had expired on 14.06.2000 and had apprehended about the activities of Defendant no.1 who was attempting to sell / dispose of the suit property and thus had filed a suit for Permanent injunction bearing no.61/1999 against Defendant no.1 and his wife. In the said suit, defendant no.1 had appeared and C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.13 of 58RAVINDER Digitally signed by RAVINDER
BEDI
BEDI Date: 2022.10.28 12:48:32 +0530
undertook that he would not dispose off or alienate the suit property and based upon the said statement, the said suit was disposed off on 01.10.1999. It was stated that the alleged Will claimed by Defendant no.1 was not put for probate nor the said property was got mutated on the basis of the alleged Will and thus all parties were equally entitled for their respective shares in suit property. The Order dated 09.01.2013 shows that the Plaintiffs did not claim any relief against Defendant no.5.
8. Hon'ble Delhi High Court by its Order dated 15.07.2014 settled the following issues in "later suit" as :
1. Whether the defendant Nos.1 and 2 have become the owner of the suit property by virtue of Will dated 30.06.1993 allged to have been executed by Late Sh. Ratan Lal Puri, if so to what effect ? OPD 1&2.
2. Whether Smt. Leelawati Puri was the owner of the property by virtue of documents of transfer dated 31.08.1989, if so to what effect ? OPP.
3. Whether Late Sh. Ratan Lal Puri had no right or authority to execute alleged Will in respect of the suit property, if so to what effect ? OPP.
4. Whether the plaintiffs are entitled to a decree of partition and injunction as claimed ? OPP.
5. Whether the suit is barred by limitation ? OPD.
6. Relief.
9. By order dated 17.12.2015 passed by Hon'ble Delhi High Court, both suits pending before Hon'ble Delhi High Court in view of Notification no.27187/DHC/Orgl., dated 24.11.2015 and already consolidated were C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.14 of 58 Digitally signed by RAVINDERRAVINDER BEDI BEDI Date: 2022.10.28 12:48:37 +0530 transferred back to the District Courts and were assigned to my Ld. Predecessor.
10. I have heard final arguments as addressed by Ld. Counsels for parties, perused the entire record meticulously and the written arguments filed by either side coupled with authorities and judgments of Hon'ble Superior Courts in support of respective submissions. My issue-wise findings are herein below.
1. Whether Smt. Leela Puri was the owner of suit property ? OPP
2. Whether Smt. Leela Puri was the owner of the property by virtue of documents of transfer dated 31.08.1989, if so to what effect ?OPP.
3. Whether Late Sh. R.L.Puri had no right or authrity to execute Will in respect of suit property ?OPP.
11. The issue no.1 in 'first suit' and issue no.2 and 3 in 'later suit' being common, inter related and inter twined, therefore are taken up together. The onus of proving these issues was on the Plaintiff. Plaintiff Rama Nayyar in order to prove her case examined herself as PW-1 and deposed by way of an affidavit Ex.P-1. She exhibited the documents the Sale Deed dated 01.09.1967 as Ex.PW1/1, Agreement to Sell, GPA, Affidavit, Receipt & Will, all dated 31.08.1989 as Ex.PW1/2 to Ex.PW1/6. She stated that late Smt. Leela Puri had expired on 14.05.1993 leaving behind herself and Defendants C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.15 of 58 Digitally signed by RAVINDER BEDIRAVINDER BEDI Date: 2022.10.28 12:48:41 +0530 as legal heirs. She stated that after her demise, the suit property had devolved upon all legal heirs and PW-1 was one of the co-sharers to the extent of 1/6th in the same. She deposed that originally the plot was purchased by late Smt. Leela Puri, who later on had sold the same to late Sh.R.L.Puri on the basis of a Sale Deed dated 01.09.1967. Late Sh.R.L.Puri after purchase of the said plot had further transferred the same in favour of his wife Smt. Leela Puri on the basis of Agreement to sell dated 31.08.1989, as Ex.PW-1/2, GPA as Ex.PW- 1/3, Affidavit as Ex.PW-1/4, Reciept and Acknowledgement as Ex.PW-1/5 and Will Ex.PW-1/6. She deposed that late Smt. Leela Puri on the strength of these documents had become the absolute owner of the suit property and the father Sh.R.L.Puri had no concern with the same. PW-1 deposed that the act of late Sh.R.L.Puri of having executed the Will dated 30.06.1993 and bequeathing the suit property in favour of Defendant no.1 was illegal since he had no right to execute any such Will in respect of suit property which was owned and possessed by Late Smt. Leela Puri.
12. While in her cross-examination, PW1 deposed that she alongwith her sisters had issued a Notice dated 03.07.1993 Ex.PW1/D1 upon their father asking him to desist from acting as per Will and on receipt of same, their father had given reply dated 15.07.1993 Ex.PW-1/D4. PW-1 was shown another undated and unsigned Letter in Hindi at page no.41 to 60 of documents of Defendant to which she denied of having written the same to her father. She further deposed that she did not receive the Letter dated 26.10.1993 written by her father. She stated that she had issued Legal Notice C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.16 of 58 Digitally signed by RAVINDERRAVINDER BEDI BEDI Date: 2022.10.28 12:48:45 +0530 dated 02.01.1998 Ex.PW-1/D6 alongwith her sisters jointly through their Advocate upon Defendant No.1 but feigned her ignorance as to whether Defendant No.1 sent any reply dated 07.02.1998 to the said Letter or not. PW- 1 deposed that the suit property was purchased by her father vide registered Sale Deed dated 01.09.1967 Ex.PW1/D-7. She denied the suggestion that her father was the owner of the suit property clarified that her mother was the owner of the same. She deposed that her mother was a home maker and had no source of income or any bank account. As to the question put to her, whether her mother Smt. Leela Puri had the amount of Rs.1.95 lakhs to pay to late Sh.R.L.Puri for purchase of the suit property, the witness denied the same and stated that her mother had no bank account in her name. The relevant portion of the cross-examination of PW-1 is as follows:
"Q. The witness has been asked that Smt. Leela Wati had been a house wife and even Sh. Ratan Lal Puri had no pension, I put to you that Smt. Leelawati never had Rs.1,95,000/- to pay to Rs. Rattan Lal Puri. Ans. It is incorrect. It is incorrect to suggest that all the documents are false and fabricated and manipulated. I do not have any thing to show that my mother had this much money in her account..."
13. In her further cross-examination recorded on 06.01.2005, PW-1 admits that her father Late Sh. R.L.Puri had executed a Will dated 30.06.1993 Ex.PW-1/D3 and regarding which she had sent a Legal Notice Ex.PW1/D1 to her father. PW-1 states that their father Late Sh.R.L.Puri had lived with Mahesh Puri - Defendant No.1 till his last breath. She deposes that her mother Late Smt. Leela Puri had purchased the property through registered Sale Deed. Her father Sh.R.L.Puri wanted to raise a loan for construction of the plot, C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.17 of 58RAVINDER Digitally signed by RAVINDER
BEDI
BEDI Date: 2022.10.28 12:48:49
+0530
therefore mother had sold the plot / suit property to her husband Sh.R.L.Puri. PW-1 states that thereafter her father took loan and got constructed the property. She states that her father had seven shops in the property. PW1 states that after purchase of the plot / property, the entire chain of the original documents was handed over by her mother to Sh. Vijay Kumar Sanon (husband of defendant No.4 and plaintiff no. 1 in late suit) in trust. She admits that her father had demanded the original documents from said Vijay Kumar Sanon but same were not returned by him. She stated that she did not know as to why the said original documents were not returned by said Vijay Kumar Sanon.
14. To determine the issues, it is necessary to look into entire evidence holistically being led in both suits including testimony of Plaintiff Manisha who examined herself as PW-1 and examined her sister Kiran Ghai as PW-2 by way of affidavits. PW-1 Manisha exhibited documents of 1989 as GPA, Agreement to Sell, Affidavit, Receipt and Will all Ex.PW-1/5 to Ex.PW- 1/9 in respect of suit property and stated on identical lines as stated by her sister/Plaintiff Rama Nayyar in 'first suit'. She deposed that her mother late Smt. Leela Puri was the absolute owner of the suit property. She stated that Defendant No.1 had taken false stand that father of parties had executed a Will dated 30.06.1993. She stated that she alongwith other sisters was called by Defendant No.1 on 30.06.1993 on the occasion of Death Anniversary of their mother Leela Puri and had stealthily brought a video camera in the room of their father, read over some document in English. She deposed that Defendant C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.18 of 58 Digitally signed by RAVINDERRAVINDER BEDI BEDI Date: 2022.10.28 12:48:52 +0530 No.1 had promised to get these documents translated in Hindi, but had succeeded in getting the signatures of his sisters under some undue influence and coercion without disclosing the facts in the said document, which later on were revealed as the alleged Will purportedly executed by their father in favour of Defendant. In her cross-examination PW-1/Manisha admitted that she alongwith other sisters was called on 30.06.1993 by Defendant No.1 and she had signed the Will Ex.PW1/D2 dated 30.06.1993 as per their wishes. She stated that she did not know that the document which she signed was her father's Will.
15. Conjoint reading of statement of Plaintiffs alongwith documentary evidence demonstrates that Sale Deed dated 01.09.1967 executed by Late Smt. Leelawati in favour of her husband R.L.Puri is not disputed by either party. The issue under consideration is whether late Smt. Leela Puri had become the owner of the suit property on the strength of documents dated 31.08.1989. In other words, Plaintiffs were claiming their share on the premise that their mother was the absolute owner of the property after she had purchased the same from her father late Sh. R.L.Puri through documents dated 31.08.1989 which are exhibited as Ex.PW-1/2 to Ex.PW1/6 by PW1 Rama Nayyar and as Ex.PW1/5 to Ex.PW1/9 by PW1 Manisha.
16. Ld. Counsel for Plaintiffs argued that the documents Ex.PW-1/5 to Ex.PW-1/9 were executed way back in the year 1989 and showed the suit property was sold by late Sh. R.L.Puri to his wife Leela Puri. He argued that C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.19 of 58 Digitally signed byRAVINDER RAVINDER BEDI
BEDI Date: 2022.10.28
12:48:56 +0530
the documents were not challenged by late Sh. R.L.Puri during his lifetime nor by anybody else. Ld. Counsel relied upon the judgment reported in 208 (2014) DLT Page No.69 passed by Hon'ble Delhi High Court and para no.19 thereof, wherein the judgment of Suraj Lamp (supra) was referred to and it was held that the Suraj Lamp (supra) did not interefere with the rights of possession of property under Section 53 of the Transfer of Property Act. Ld. Counsel further relied upon the judgment of Hon'ble Delhi High Court reported in 2016 (4) CLJ 332 Delhi and argued that once an Agreement to Sell and Receipt were proved, there was no requirement for Plaintiffs to call any attesting witness and therefore, the contention of Counsel for Defendants that attesting witnesses were not summoned was of no consequence.
17. Ld. Counsel submits that the documents dated 31.08.1989 were much prior to the judgment of Suraj Lamp (supra) rendered by Hon'ble Apex Court and therefore created valid right and title in the suit property in favour of Smt. Leela Puri for valuable consideration. Ld. Counsel referred to the Affidavit Ex.PW-1/7, which is an affidavit of late Sh. R.L.Puri to the effect that he had sold the constructed property admeasuring 550 Sq. Yards by an Agreement to Sell dated 31.08.1989 and had received consideration and thereby delivered the vacant physical possession to Leelawati. Ld. Counsel for Plaintiffs has further relied upon decisions of Gulshan Kumar Anand v. State 2011 SCC OnLine Del 2344, Asha M. Jain v. The Canara Bank And Ors. 94 (2001) DLT 841, Shikha Properties (P) Limited v. S.Bhagwant Singh & Ors. (1998) 46 DRJ 2886, Narshimaha Murthy v. Susheelabai C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.20 of 58RAVINDER Digitally signed by
RAVINDER BEDI
BEDI Date: 2022.10.28
12:49:01 +0530
(Smt) and Others (19960 3 SCC 644 , Smt. Ganga Devi v. Ram Saran And Another (1973) SCC 63, Mangammal Alias Thulasi And Another v. T.B.Raju And Others (2018) 15 SCC 662, Govindammal v. R.Perumal Chettiar And Others (2006) 11 SCC 600, Sh. Narender Nath v. Smt. Krishna Gupta & Ors (2017) SCC Onlie Del 9060, S.R.Srinivasa and Ors. v. S. Padmavathamma, Nagindas Ramdas v. Dalpatram Ichharam @ Brijram and Ors., Surender Kumar v. Nathulal and Others, Smt. Dayamathi Bai v. Sri K.M.Shaffi, Ishwar Das Jain (Dead) Thr. LRs v. Sohan Lal (Dead) by LRs, Rani Purnima Devi and Another v. Kumar Khagendra Narayan Deb and Others, Bharpur Singh and Others v. Shamser Singh and Maya Devi v. Lalitaprasad, Hukam Singh v. Gulshan Kumar Gambhir.
18. Ld. Counsel for Plaintiffs argues that late Sh. R.L.Puri had never executed any Will and since Smt. Leelawati Puri was the absolute owner of the property, Sh.R.L.Puri could not have bequeathed the property to anyone. Reliance is placed upon judgments of Hon'ble Apex Court in S.R.Srinivas and ors. v. S. Padmavathamma, Civil Appeal No.4623/2005, Sarkaria, Ranjit Singh v. Dalpatram Ichharam @ Brijram and Ors., 1974 AIR 471, Smt. Dayamathi Bai v. Sri K.M.Shaffi, Appeal(Civil) 2434/2000, DOD :
04.08.2004, Ishwar Dass Jain (dead) through LRs v. Sohan Lal (Dead) by LRs, DOD : 29.11.1999, Rani Purnima Debi and another v. Kumar Khagendra Narayan Deb and others, AIR 1962 SC 567, Bharpur Singh & Ors. v. Shamsher Singh, (2009) 3 SCC 687, Maya Devi v. Lalta Prasad, C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors.
C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.21 of 58 RAVINDER Digitally signed by RAVINDER
BEDI
BEDI Date: 2022.10.28 12:49:04 +0530
Civil Appeal No.2458/2014, DOD : 19.02.2014, Hukam Singh v. Gulshan Kumar Gambhir, 208(2014) DLT 68, and upon Narashimaha Murthy v. Smt. Susheelabai and Ors, (DOD : 17.04.1996).
19. Per Contra, Ld. Counsel for Defendant Mahesh Puri drew attention of the Court to the alleged documents Ex.PW-1/5 to Ex.PW-1/9 dated 31.08.1989, which included copies of Agreement, undated and unnotarized Affidavit, Receipt and Will allegedly executed by Late Sh. R.L.Puri. It was argued that mere exhibiting of the documents would not mean that same were proved in accordance with the requisite provisions of Sections 60, 61, 64, 67 and 68 of the Indian Evidence Act, 1872. Ld. Counsel relied upon the decision of Hon'ble Delhi High Court in Sudhir Engineering Company v. Nitco Roadways Limited, 1995 (34) DRJ 86 and para 15 of the same, which is as follows :
"...(15) The marking of a document as an exhibit, be it in any manner whatsoever either by use of alphabets or by use of numbers, is only for the purpose of identification. While reading the record, the parties and the Court should be able to know which was the document before the witness when it was deposing.
...Endorsement of an exhibit number on a document has no relation with its proof. Neither the marking of an exhibit number can be postponed till the document has been held proved; nor the document can be held to have been proved merely because it has been marked as an exhibit..."
20. Ld. Counsel also referred to law laid down by Hon'ble Supreme Court in Sati Taraji Khimechand v. Yelmati to contend that mere marking of C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.22 of 58 Digitally signed by RAVINDER BEDIRAVINDER BEDI Date: 2022.10.28 12:49:08 +0530 an exhibit did not dispense with proof of documents. Ld. Counsel further referred to Section 3 of Transfer of Property Act, 1882, which defined the word 'attested' and argued that in the absence of any attesting witness, the visual identification of the signatures on such document by someone claiming to be familiar with the signature of the executant was of no legal consequence, when the attesting witness was available. Counsel argued that use of such a document as evidence was clearly barred under Section 68 of the Indian Evidence Act. In support of the same, Counsel relied upon the judgment of Hon'ble Apex Court in case M.L.Abdul Jabhar Sahib v. H.V.Venkata Sastri and Sons & Ors., (1969) 3 SCR 513.
21. Ld. Counsel submits that even if assumed, the documents were registered in the office of Sub-Registrar as alleged by Plaintiffs, registration of two unattested documents was still required to be proved in accordance with Section 68 of Indian Evidence Act. Reliance was placed upon the judgment of Bhagat Ram & Anr. v. Suresh & Ors., (2003) 12 SCC 35, wherein Hon'ble Apex Court observed that registration of a document could not dispense with the need to prove the execution and attestation of a document which was required by law to be proved. Reliance was further placed upon the judgments of Shiolalsing Gannusing Rajput v. Shankar Motiram Nale, AIR 1984 Bom 19, Ramkrishnan Ganpat Futance v. Mohammad Kasam Mohammad Naki, AIR 1973 Bom 242 and Indernath Modi v. Nandram & Ors, AIR 1957 Raj 231 and it was argued that the Plaintiffs failed to lead an iota of evidence as to genuineness of the documents dated 31.08.1989. He C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.23 of 58 Digitally signed byRAVINDER RAVINDER BEDI
BEDI Date: 2022.10.28
12:49:12 +0530
argued that these were not pleaded in pleadings so as to show their existence. Ld. Counsel also placed reliance upon the judgment of Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana and others, AIR 2012 SC 206 and Maya Devi v. Lalta Prasad, (DOD : 19.02.2014) by Hon'ble Apex Court that the documents were not bonafide and were fabricated ones. He argued that Suraj Lamp (supra) only gave right to the purchaser to seek registration of the Title documents in his favour. It observed that transactions namely SA/SPA/Will etc. were not bonafide transactions or conveyances. They could only be used for limited purpose to obtain specific performance under Section 53A of Transfer of Property Act.
22. Ld. Counsel by relying upon the judgment of Hon'ble Apex Court in case of Lachman Singh v. Kirpa Singh and others, (1987) 2 SCC 547, contended that step daugther Varsha Bindra (daughter of late R.L.Puri from first marriage) was even otherwise not entitled for intestacy, as per case of Plaintiffs, because once a property become the absolute property of a Hindu female, it devolved first on her children (including children of the predeceased son and daughter) as provided in Section 15(1)(e) of the Act and then upon the other heirs subject to the limited change introduced in the Section 15(2) of the Act. Ld. Counsel has relied upon yet another judgment of Smt. Bhagwati v. Smt. Laxmi Devi and Another, decided on 26.11.2013 by Hon'ble Delhi High Court in support of the same.
C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.24 of 58 Digitally signed by RAVINDER BEDIRAVINDER BEDI Date: 2022.10.28 12:49:20 +0530
23. From careful and close scrutiny of the documents dated 31.08.1989, what emerges on record is that case of Plaintiffs rested upon these documents and as such their examination and admissibility is required in the light of testimony of witnesses. From mere fact that documents are exhibited, it does not follow that court is precluded from examining whether these were executed by party, who led the evidence in respect of such purported documents. Plaintiffs stated that based on these documents GPA, Agreement to Sell, Affidavit, Receipt and Will all dated 31.08.1989 executed by Late Sh. R.L.Puri, their mother had become the sole owner of the suit property. The onus being on Plaintiffs to prove these documents, this Court observes that Plaintiffs have failed to prove genuineness of these on account of the fact that Firstly, the affidavit dated 31.08.1989 is undated. It is neither notarized nor witnessed and other related documents are attested by only one person Vijay Kumar Sanon. These documents are not proved as per law nor attesting witnesses were examined by Plaintiffs. Further, the original documents were brought by PW1 only during her cross-examination, when she admitted the signatures of her father on them. All documents except affidavit of 31.08.1989 bear signatures of PW3 Vijay Kumar Sanon as attesting witness. There are no averments in pleadings of plaintiffs to this effect. It has also not come in evidence of PW Manisha, PW2 Kiran or any other witness including of PW4 Vijay Kumar Sanon that he was attesting witness to three of these documents. In fact it is not the case of Plaintiffs that Vijay Kumar Sanon was witness to these documents.
C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.25 of 58 Digitally signed by RAVINDER BEDIRAVINDER BEDI Date: 2022.10.28 12:49:23 +0530
24. Plaintiff Rama in her plaint did not even mention about existence of these documents. She averred that her mother was the owner of property. Para 1&2 of the plaint in her 'first suit' can be reproduced as:
"1. That Shrimati Leela Puri W/o Late Shri Rattan Lal Puri, was the owner of the property no.C.122, gali no.5, East Azad Nagar, Delhi- 110051 and the said property was purchased by her.
2. That Shrimati Leela Puri died on 14.5.1993 leaving behind the plaintiff and defendants as her legal heirs, and after the death of Shrimati Leela Puri, the property bearing no.C.122, gali no.5, East Azad Nagar, Delhi-51 devolved on the plaintiff and defendants in equal share."
25. Plaintiff-PW1 testified that the original documents dated 31.08.1989 were in custody of Vijay Kumar Sanon since as far back as the year 1989. This fact is not part of the pleadings of Plaintiffs. PW-1 Manisha admits in her evidence in 'first suit' that these documents were witnessed by her husband Vijay Kumar Sanon. If as per case of Plaintiffs, the documents were in custody of PW4 Vijay Kumar Sanon, then why PW4 did not instruct his Advocate while issuing Legal Notice, to make a pointed reference to these soon after late Sh.R.L.Puri had executed his Will dated 30.06.1993. This witness did also not return the original documents of 1967 to Late Mr. R.L.Puri despite many of his letters Ex.DW1/9 dated 31.08.1993 and Ex.DW1/7 dated 14.07.1993 written to him asking for original documents, for reasons best known to him.
C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.26 of 58 Digitally signed by RAVINDER BEDIRAVINDER BEDI Date: 2022.10.28 12:49:27 +0530
26. The entire plaint filed by Plaintiff Rama Nayyar is silent about these documents. PW1 for the first time brings these in her evidence dated 06.01.2005 though these were executed as far back in August 1989, but surfaced only in September 2004 i.e. nearly after a period of fifteen years from the date of their alleged execution in the 'first suit' filed by Rama Nayyar. PW- Manisha Puri, who is Defendant no.4 in the 'first suit' did not annex these documents alongwith her written statement. It is not averred by Plaintiffs that these documents were in possession of Plaintiff/Manisha's husband PW4 Vijay Kumar Sanon and thus material particulars as required in the plaint were not pleaded by Plaintiffs.
27. There is another reason to reach such conclusion that the documents of 1989 are not bonafide. PW1 Rama Nayyar testified that their father Sh. R.L.Puri was a busy person and could not himself perform formalities of managing the property. However Plaintiffs gave contra reasons for their father late Sh.R.L.Puri of having executed these. The reasons differ in the depositions of Plaintiffs i.e. PW-1 Rama Nayyar in the 'first suit' and PW Manisha and PW Kiran Ghai in the 'later suit'. The reasons are that late Sh. R.L.Puri was a busy person and could not perform formalities of managing the property. However, PW-1 Rama Nayyar in her cross-examination stated that her father had retired in the year 1985 and was not receiving any pension and then had to take loan for construction over suit plot. At another stage, PW-1 stated that her father had to sell the property to Rama Nayyar since Defendant no.1 and his wife were causing them harassment out of greed for property. C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.27 of 58RAVINDER Digitally signed by
RAVINDER BEDI
BEDI Date: 2022.10.28 12:49:30
+0530
The testimony of PW-1 Rama Nayyar is almost beyond her pleadings vis-a-vis when she states that her father after his retirement in 1985 was engaged in business activities which kept him so busy as to hand over the responsibility of managing the suit property to his wife late Smt. Leela Puri and thus reason of transferring property to her.
28. Even, as per documents of 1989, specially the Agreement Deed dated 31.08.1989, none of the acts i.e. the electricity connections, water, power and security deposition was ever acted upon or performed by late Smt. Leela Puri after 1989 as owner, nor she had let out the suit property to any of various tenants nor she would receive / recover the rents from such tenants. The evidence demonstrates that certain parts of the property had already been let out by late Sh. R.L.Puri and it was late Sh.R.L.Puri only, who would receive rent from tenants. Not a contra instance has surfaced showing late Smt. Leela Puri having created any single tenancy at any point of time during her liftetime or having received any rent from any of her tenants.
29. Even as to the consideration amount of Rs.1,90,000/- allegedly given by their mother, no evidence has been led by the Plaintiffs to show, much less to prove on record that their mother late Smt. Leela Puri had the amount to purchase the property. Plaintiffs admit that their mother had no bank account of her own and she was a housewife, whose husband had retired in the year 1985. Thus, the Plaintiffs failed to show that the consideration amount had exchanged hands.
C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.28 of 58RAVINDER Digitally signed by RAVINDER
BEDI
BEDI Date: 2022.10.28 12:49:35 +0530
30. As per recitals of Agreement Deed dated 31.08.1989, actual, physical and vacant possession of the suit property / land was handed over by Late R.L.Puri to the purchaser-his wife late Smt. Leela Puri. There are no pleadings to this effect nor any evidence to prove that late Sh. R.L.Puri had ever vacated the suit property / land and actually handed over the physical possession of same to his wife and thereafter had shifted to a separate residence. The opening recitals of the document i.e. para 1 of the Agreement Deed dated 31.08.1989 show late Sh. R.L.Puri to be the resident of house no.C-122, East Azad Nagar, Delhi i.e. the very suit property which he allegedly stated to have delivered the actual vacant possession of, to his wife. The evidence adduced on the contrary shows that both late Sh. R.L.Puri and his wife late Smt. Leela Puri had lived together as husband and wife in the suit property till their death.
31. In the 'first suit' the Defendant No.1 proved the house tax receipts of the suit property from the years 1977-78 uptil the year 2004-2005 and all these receipts show the name of late Sh.R.L.Puri as the owner of suit property. The said house tax receipts have been proved as Ex.D1W4/9 to Ex.D1W4/37 by a summoned witness Mr. Sohan Singh Chitoria, Head Clerk from MCD, House Tax Department. This evidences that late Smt. Leela Puri never took steps to get the property mutated in her name. All taxes and bills were paid by late Sh. R.L.Puri and as on date, the suit property is still registered in the name of late Sh.R.L.Puri in municipal records.
C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.29 of 58 RAVINDER Digitally signed by RAVINDER
BEDI
BEDI Date: 2022.10.28 12:49:39 +053
32. Further, sister of Plaintiffs namely Varsha Bindra had filed a suit for Injunction in the year 1999 against Defendant no.1 and his wife before the Court of Ld. Senior Civil Judge, Delhi and in her plaint Ex.PW-1/4, she nowhere mentioned that her mother late Smt.Leela Puri was the absolute owner of the suit property. She stated in the plaint rather to the contrary as :
"Defendant no.2 is the sister in law (Bhabhi) of the plaintiff. It is stated that Sh. R.L.Puri, the owner of the disputed property during his lifetime expressed his desire and will to give the right to the said property to all his daughters and son equally. It is stated that all the daughters of Sh.Puri were called and it was decided to settle the share of each of such daughters during his lifetime only and the defendant No.1 was directed by him in this regard..."
In her plaint Ex.PW-1/4, late Smt. Varsha Bindra categorically admitted that late Sh.R.L.Puri/father was the owner of the suit property.
33. The authorities and decisions relied upon by Counsel for Plaintiffs in the light of the factual matrix are distinguishable ones and not applicable to present fact scenario. The Judgment relied upon in Nagindas Ramdass v. Dalpatram Ichharam @ Brijram and Ors.(supra) sought the setting aside of the judgment of Hon'ble Gujarat High Court by way of Special Leave Petiton under the provisions of Bombay Rent Control Act 1947. Another Judgment of Dayamathi Bai v. Sri K.M.Shaffi (supra) before Hon'ble Apex Court, was in the appeal / SLP against the order of Hon'ble Karnatka High Court, wherein challenge was to the documents Ex.P-1 and Ex.P-2 which were found to be admissible since these were more than 30 C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.30 of 58 Digitally signed by RAVINDERRAVINDER BEDI BEDI Date: 2022.10.28 12:49:44 +0530 years old documents and presumption applied against them under Section 90 of Indian Evidence Act. Similar is the ratio of Judgment relied by Plaintiffs on decision of Hon'ble Apex Court in Suraj Lamps and Industries Pvt. Ltd. v. State of Haryana, AIR 2009 SC 3077, as per which sale of immovable property can be effected only by registered Sale deed and documents like GPA, SPA, receipt, agreement to sell, Will etc. would not create any title in the same.
34. Similarly, Hon'ble Apex Court in another case Maya Devi v. Lalta Prasad, DOD : 19.02.2014 relied by plaintiffs referred to the judgment of Suraj Lamp's (supra). In yet another decision of Pushkar Singh Bisht v. Bhim Singh Bisht, 2018 SCC OnLine Del 10667, the law laid down in Suraj Lamp's (supra) was relied and it was observed that by no stretch of imagination, the Agreement to Sell, Power of Attorney, Affidavit and Receipt executed on a date prior to the judgment of Suraj Lamp's (supra) were documents of title. Similarly, in Judgment relied by Plaintiffs in Rakesh Goel v. Hira Lal (supra) Hon'ble Delhi High Court while referring to Suraj Lamp's (supra) observed that mere Agreement to Sell did not create ownership rights in favour of the purchaser. It only granted a right to the purchaser to seek registration of title documents in his favour. Similar view was expressed in other decisions of Hon'ble Delhi High Court and Hon'ble Apex Court in the matters of Jiwan Dass Rawal v. Narain Dass, AIR 1981 Del 291, Deewan Arora v. Tara Devi Sen (2009) 163 DLT 520, Sunil Kapoor v. Himmat Singh (2010) 167 DLT 806 and Samarjeet Chakravarty v. Tej Properties C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.31 of 58RAVINDER Digitally signed by RAVINDER
BEDI
BEDI Date: 2022.10.28 12:49:49
+0530
Private Limited, 2014 SCC OnLine Del 3809. Therefore legal effect of such documents is not to confer any title upon a party.
35. The ownership of an immovable property or purchase of the same could be proved only in terms of Section 54 of the Transfer of Property Act read with Section 17 of Indian Registration Act, by way of registered sale deed. Hon'ble High Court of Delhi in Shri Ramesh Chand vs Suresh Chand & Anr. (RFA No.358/2000, (decided on 9 April, 2012), further elaborated the law laid down in the judgment by the Hon'ble Supreme Court of India. Keeping in view settled position in law and applying same to the evidence on record, I hold that genuineness of these documents of 1989 is highly suspicious. Even otherwise, late Sh. R.L.Puri executant of these documents of 1989 was never confronted with such documents till his last breath by any of Plaintiffs. Late Sh.R.L.Puri did not mention existence of these documents anywhere in the trail of written corresponence between him and his daughters. Spate of correspondence proved on record in form of Letters between father and daughters which is not disputed by either party, clearly shows that none of the letters ever mention or whisper as to the existence of these documents. The letters including Legal Notice dated 03.07.1993 of Plaintiffs to their father would nowhere mention about existence of such documents to reinforce their plea that late Sh.R.L.Puri had no title to the suit property for the purpose of bequeathing the same by Will in view of these documents of 31.08.1989. In fact there is nothing to show that till death of late Mr. Puri, these documents of 1989 ever existed. Given the surrounding circumstances, these saw the light of C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.32 of 58 Digitally signed by RAVINDER BEDIRAVINDER BEDI Date: 2022.10.28 12:49:53 +0530 the day only in 2004, when certified copies were filed by Plaintiff Rama Nayyar in evidence. In such circumstances, the only inescapable conclusion is that Plaintiffs in support of the fact that their mother was the absolute owner of the suit property have utterly failed to prove the existence of documents of 1989. Therefore, this Court holds that suit property was still the self acquired property of late Sh. R.L.Puri till his demise and he was the owner and in possession of the same and had authority to dispose off the property through testamentary documents.
Whether Sh.R.L.Puri executed a WILL dated 30/6/93 as in preliminary objection No.6 of Defendant No.1?OPD-1.
Whether the defendant Nos.1 and 2 have become the owner of the suit property by virtue of Will dated 30.06.1993 allged to have been executed by Late Sh. Ratan Lal Puri, if so to what effect ? OPD 1&2.
36. The issue no.4 in 'first suit' and issue no.1 in 'later suit' being common are taken up together. The onus to prove these issues was upon the Defendant No.1. In support of the same, Defendant examined himself as DW- 1 and deposed by way of affidavit Ex.DW1/A and proved the documents i.e. Sale Deed dated 01.09.1961 as Ex.PW1/D, Will dated 30.06.1993 as Ex.PW1/D-1/1. No objection of the parties to the said Will Ex.PW1/D-1, video camera recording as Ex.DW1/1 and receipt as Ex.DW1/1A, Legal C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.33 of 58RAVINDER Digitally signed by
RAVINDER BEDI
BEDI Date: 2022.10.28 12:49:57
+0530
Notice sent by Plaintiff and Defendants No.4&5 dated 03.07.1993 as Ex.PW1/D-1/3 and its reply from late Sh. R.L.Puri dated 15.07.1993 as Ex.PW1/D-1/4, its acknowledgement as Ex.PW1/D-1/5, acknowledgement cards as Ex.DW1/2, Ex.DW1/3 and Ex.DW1/4 and Letter dated 26.10.1993 of late Sh.R.L.Puri addressed to Plaintiff and Defendants No.4&5 as Ex.DW1/6.
37. DW1 testified that father of parties late Sh. R.L.Puri during his lifetime had executed a Will Ex.PW1/D-1/1 and none of the siblings of Defendant No.1 had opposed to the same as they had filed a No Objection Ex.PW1/D-1/2 to the said Will. DW-1 deposed that the entire proceedings were videographed through video camera vide Ex.DW1/1 and as per Will Ex.PW1/D-1/1, late Sh. R.L.Puri had bequeathed only life interest in favour of Defendant no.1 in respect of suit property and thereafter the same would go to his grandson Master Divye Puri absolutely. DW1 deposed that his father never sold the property to his mother Smt. Leelawati Puri after the year 1967. DW1 deposed that his sisters i.e. Plaintiffs sent a Legal Notice dated 03.07.1993 Ex.PW1/D-1/3 calling upon their father to desist from registration of Will Ex.PW1/D-1/1 and a reply was given to the said Legal Notice by Late Sh. R.L.Puri vide letter dated 15.07.1993 Ex.PW1/D-1/4 in which he expressed his deep anguishment over the act of Plaintiffs. DW1 deposed that the suit property did not devolve upon the Plaintiffs and none of his sisters had ever asked their father to give them their shares with respect to the suit property on the ground that the suit property was owned by their mother.
C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.34 of 58 Digitally signed by RAVINDERRAVINDER BEDI BEDI Date: 2022.10.28 12:50:00 +0530
38. DW1 further deposed that it was the Plaintiffs and Defendants no.4&5(sisters) along with PW4 Vijay Kumar Sanon who were the cause of constent agony to late Sh. R.L.Puri in his last days as PW4 Vijay Kumar Sanon had insitaged his wife i.e. Plaintiff Manisha (sister of DW1) and other sisters to send Legal Notice Ex.PW1/D-1/3 which caused great agony and mental torture to late Sh. R.L.Puri. DW1 further deposed that late Sh.R.L.Puri had written many letters to PW4, which are Ex.DW1/7 and Ex.DW1/8 asking him to return the original documents of the suit property but he had not done so. DW1 deposed that late Sh. R.L.Puri was so much annoyed about the conduct of Plaintiffs who were acting at behest of their husbands and pestered him to transfer the property in their names. Late Sh.R.L.Puri was constrained to issue a Public Notice in the daily newspaper named 'Patriot', New Delhi edition Ex. as DW1/11 against them.
39. DW1 further deposed that on 20.11.1997 Sh. R.L.Puri had passed away and immediately after his demise, Plaintiffs got served a Legal Notice dated 02.01.1998 Ex.PW1/DY through their lawyer upon the DW1 and his wife. The said notice was duly replied on 07.02.1998 by DW1. This Court observes that cross-examination of DW1 was recorded on 12.07.2005, 04.10.2006, 13.11.2006 and 28.07.2006 and it primarily revolved around the incomes received from the tenanted portions by DW1 and related MCD documents. In cross-examination conducted on 28.07.2006, DW1 reiterated his stand of a video made at the behest of father regarding execution of the Will which was signed by Plaintiffs. DW1 stated that his father was 78 years C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.35 of 58 Digitally signed by RAVINDER BEDIRAVINDER BEDI Date: 2022.10.28 12:50:05 +0530 in the year 1993 and his mother had died at the age of about 65-66 years. DW1 stated that his father was regularly taking treatment for T.B for a period of ten months and the disease was cured. DW1 denied the suggestion that the Letter dated 26.10.1993 was written by his father under pressure of DW1. DW1 stated that all his sisters were aware that the property belonged to the father and there was a time gap of about 4-1/2 years between the death of mother and father of the parties. DW1 further denied the suggestion that the Will Ex.PW1/D-1/1 was a forged and fabricated document. He stated that contents of Will Ex.PW1/D-1/1 were read over to all siblings in each other's presence. He denied the suggestion that the Will Ex.PW1/D-1/1 was signed by his father under pressure. He further denied the suggestion that his father was not in proper disposition of mind due to being a patient of T.B. He denied the suggestion that letters were in his own writing but were signed by late R.L.Puri under pressure. He denied the suggestion that his father had ever executed the documents i.e. GPA, Agreement to Sell, Will, Affidavit and Receipt all dated 31.08.1989 in favour of his wife. The witness denied the signatures on the documents Ex.PW1/2 to Ex.PW1/6, all dated 31.08.1989 and thus denied that the suit property was ever sold to his mother on 31.08.1989 at a sale consideration of Rs.1,90,000/-. DW1 further stated that his father had written letters to Vijay Kumar Sanon asking for original sale documents of the suit property of the year 1967 as these were given to him only for safe custody. The witness denied the suggestion that his father was not the owner of the suit property or that the Will Ex.PW1/D-1/1 was prepared by father Late Sh. R.L.Puri against his wishes.
C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.36 of 58 Digitally signed byRAVINDER RAVINDER BEDI
BEDI Date: 2022.10.28
12:50:09 +0530
40. In order to prove execution of Will Ex.PW1/D-1/1, DW1 examined Sh. Sumer Kumar Dass as DW2 and Sh. Sunil Sabbharwal as DW3 who testified by their affidavits. DW2 stated that he was called by late R.L.Puri at his residence on 30.06.1993 where he informed him that he wanted to excute a Will and further wanted DW2 to be the witness to the same. DW2 stated that he reached the house of Sh.R.L.Puri on 30.06.1993, where Sh.R.L.Puri signed the Will in his presence and DW3 Sunil Sabbharwal was also present there. DW2 stated that he alongwith DW3 Sunil Sabbharwal had put signatures on the Will as attesting witnesses in the presence of testator Sh. R.L.Puri. He stated that all children of Sh.R.L.Puri were present at the time of execution of Will. DW3 also testified on the similar lines as by DW2. In cross- examination, DW2 stated that Sh.R.L.Puri was friend of his father and he was also residing nearby i.e. at Rajgarh Colony. He stated that all daughters of late Sh.R.L.Puri alongwith Mahesh Puri and DW3 Mr. Sunil Sabbharwal were present at the time of execution of Will. Similar is the testimony of another attesting witness DW3 who stated that he put his signatures as attesting witness to the Will Ex.PW1/D-1/1.
41. Defendant also examined his sister Smt. Saroj Suri as DW3 who testified by way of affidavit. She stated that their father Sh. R.L.Puri was the sole owner of the suit property and had executed the Will Ex.PW1/D-1/1 in presence of all parties to the suit including herself and they all had signed a no objection to the disposition made by their father i.e. Will Ex.PW1/D-1/1. She stated that entire incident was videographed and none of the C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.37 of 58 RAVINDER Digitally signed by RAVINDER
BEDI
BEDI Date: 2022.10.28 12:50:13 +0530
Plaintiffs/daughters raised any objection to the same. She stated that Plaintiffs had no right to claim partition or to seek management in respect of the suit property. She testified that her sisters i.e. Plaintiff Manisha and Kiran Ghai sent a Legal Notice datec 03.07.1993 to their father Sh. R.L.Puri calling him to desist from registering the Will Ex.PW1/D-1/1 and the said notice was duly replied by their father, wherein he had expressed deep anguishment over the acts of Plaintiff Rama Nayyar, Manisha and Kiran Ghai. DW3 stated that the Legal Notice dated 03.07.1993 had caused extreme agony and mental torture to their father Sh. R.L.Puri.
42. Ld. Counsel for Plaintiffs argues that as alleged by Defendant No.1 of execution of alleged Will on 30.06.1993, Late Sh. R.L.Puri had called his sons and daughters at his house on 1st death anniversary of their mother, where Plaintiffs and Defendants No.4&5 were asked to sign a document. Ld. Counsel states that since the Plaintiffs/sisters did not know English language, they asked Defendant No.1 and their father to provide Hindi translation of the same. However they were never provided with the same and thus the document on which the Plaintiffs / all sisters had signed, turned out to be the alleged Will Ex.PW1/D-1/1 which contained purported consent and signatures of the sisters. Ld. Counsel argued that in view of the documents dated 31.08.1989, late Sh. R.L.Puri had no right to bequeath the suit property and to frustrate the rights of the sisters. He argued that Defendant No.1 himself was present at the time of execution of alleged Will dated 30.06.1993 as is clear from video recording in which he is seen as reading out the alleged Will in C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.38 of 58 Digitally signed byRAVINDER RAVINDER BEDI
BEDI Date: 2022.10.28
12:50:16 +0530
English to all who did not know a word of English. Ld. Counsel argued that the whole scenario therefore leads to serious question on the manner in which the alleged Will was executed and for which Plaintiffs / sisters had issued a Legal Notice dated 03.07.1993 Ex.PW1/D3 upon late Sh. R.L.Puri, clearly stating therein that the contents of Will were not narrated to them. Ld. Counsel submits that the whole drama of video recording of the alleged incident at the time of execution of Will was farce since at the most late R.L.Puri could only have executed Will in respect of his 1/7th share in the suit property which he had inherited after demise of his wife.
43. Ld. cousnel for the defendant argued that the Will Ex.PW1/D-1/1 was duly proved as per Section 68 of the Indian Evidence Act, 1872. It was argued that the video recording of execution of Will Ex.PW1/D-1/1 on 30.06.1993 was admitted by the plaintiffs in their suit and the contents of CD were not questioned, which established the factum that the Will executed by Late R.L.Puri was a validly executed Will. Ld. Counsel has drawn the attention of the court towards the cross exmination of defendant's witnesses as well as the cross-examination of PWs Rama Nayyar, Manisha and Kiran Ghai to argue that no question was put to the Defendant witnesses in respect of CD. He argued that viewing the CD itself would reveal that late R.L.Puri executed the Will in a sound disposing mind and of his free Will and volition without any coercion. Ld. Counsel further referred to the testimony of Defendant witnesses and attesting witnesses to the Will and stated that the same fully complied with all parameters required for the execution of Will. It was argued C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.39 of 58 Digitally signed by RAVINDER BEDIRAVINDER BEDI Date: 2022.10.28 12:50:20 +0530 that once the onus of proving the Will having been validly executed by defendant, the same shifted upon the other side /objectors but no contra evidence was brought on record except for mere baseless allegations without any iota of proof to substantiate them.
44. This court observes that the video (later on proved as CD) Ex.DW1/1 not disputed by either side records the execution of the Will dated 30.06.93 by late Sh. R.L.Puri and its attestation by two independent witnesses. It reveals that Late Sh.R.L.Puri executed Ex.DW1/D-1/1 in a sound mind and with his own free will and the document Ex.DW1/D-1/1 was read out in Hindi also to the daughters (plaintiffs herein) and to all. Even otherwise, it is not the case of Plaintiffs that Late Sh. R.L.Puri was not of sound disposing mind or was physically or mentally unfit at the time he executed a Will. The same can be concluded from Ex.DW1/1 i.e. C.D and further on account of the fact that after execution of the Will, when testator was served with a Legal Notice dated 03.07.1993 by his daugthers Plaintiffs Manisha, Rama Nayyar and Kiran Ghai, he responded to the same by a letter in his own hand writing dated 15.07.1993 Ex.PW1/D4. The letter Ex.PW1/D4 expressed his emotions and agony as he seems hurt by Notice dated 03.07.1993. In letter Ex.PW1/D4, the testator mentions though he was in advanced stage in his eighties, but that did not mean that he had lost senses to deal with his property in the manner he thought best or did the lawyer engaged by his daughters have any right to ask what should he do with his property. In Ex.PW1/D4, he further requests his C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.40 of 58 RAVINDER Digitally signed by RAVINDER
BEDI
BEDI Date: 2022.10.28 12:50:24 +0530
daughters to accept with grace the Will he had executed in presence of all on 30.06.1993 without any hesitation.
45. The evidence on record suggests that Plaintiffs did not deny the factum of execution of Will. They admitted the video/C.D. and further admitted that all siblings had assembled at the house of Late Sh. R.L.Puri and had seen the C.D./Video before the court, which contained the events at their father's house on 30.06.1993. In other words, Plaintiffs have not challenged the Will on the basis of its falsity or it being a forged document. Their plea is that the Will could not have been executed in view of the fact that their mother was the sole owner of the suit property. Secondly, their signatures were obtained by putting undue influence on them.
46. So far the first plea concerns, it has already been concluded in para no. 35 above in detail findings of this court that Father of Plaintiffs was the absolute owner of property, as such the plea of the Plaintiffs pales into insignificance. Furthermore, testimony of witnesses DW1 to DW3 is consistent and coherent in respect of the factum regarding execution of Will. In Kashibai W/O Lachiram & Anr vs Parwatibai W/O Lachiram & Ors 1995 SCC (6) 213 (DOD as 25.09.1995), Hon'ble Apex Court observed that Section 68 of Evidence Act relates to the proof of execution of document required by law to be attested. A Deed of will is one such document which necessarily requires by law to be attested. It observed that if a document is C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.41 of 58 Digitally signed by RAVINDERRAVINDER BEDI BEDI Date: 2022.10.28 12:50:30 +0530 required by law to be attested, it would not be used as evidence until one attesting witness at least is called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Hon'ble Court further observed that "attestation" and "execution" are two different acts one following the other and there could be no valid execution of a document which under the law was required to be attested without the proof of its due attestation. It observed that as per Section 63 of the Indian Succession Act, the Will must be attested by two or more witnesses, each one of whom had seen the testator sign or affix his mark to the will or seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark or the signature of such other person; and each of the witnesses should sign the will in the presence of the testator.
47. Careful perusal of testimony of defendant's witnesses would suggest that Will Ex.PW1/D-1/1 has been validly executed in the presence of all parties including the plaintiffs, who were in full knowledge of the same. The evience led by defendants in proof of the Will fully complies with all pre-requisites as per law. The CD records the execution of Ex. PW1/D-1/1 dated 30.06.1993 and its attestion by two independent witnesses. It shows the presence of all parties on 30.06.1993 at the time of execution of Ex. PW1/D- 1/1 and the witnesses putting their signatures to the documents in presence of late Sh. R. L. Puri with simultaneous translation of the Will Ex. PW1/D-1/1 in C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.42 of 58 Digitally signed by RAVINDERRAVINDER BEDI BEDI Date: 2022.10.28 12:50:34 +0530 Hindi and Punjabi by father of parties and defendant no.1. The defendant has also proved the no objection Ex. PW1/D1 to the said Will and others to the said Will Ex. PW1/D-1/1. The entire proceedings of execution of the Will were videographed, where two witnesses put their signatures to the document Ex.PW1/D-1/1 followed by simultanrous translation of the same by the testator as well as the Defendant no.1. The same has not been disputed by the other side by bringing any contra evidence on record. A faint plea was taken by defendant no. 4 that no probate of the Will was obtained by the defendant. This court observes that as per settled position, Will executed by a Hindu Testator in the northern part of Country does not require to be probated. Reliance can be placed on Judgment of Hon'ble Delhi High Court in Om Prakash Yadav and Anr. v. Kanta Yadav and ors. 238(2017) DLT 63 (DB).
48. Even otherwise, Plaintiffs in their testimony did not dispute the execution of Ex.DW1/D-1/1 and as such the admitted fact did not require any evidence. (Hon'ble Apex Court in Avtar Singh and others v. Gurdial Singh and others, (2006) 12 SCC 552 relied on.) In Gannmani Anasuya and others v. Parvatini Amarendra Chowdhary and others, (2007) 10 SCC 296, Hon'ble Apex Court observed that admission made by a party can be used against him and it is trite law that when in cross-examination a witness accepts the correctness of a document, same would be a relevant fact.
The Will Ex.DW1/D-1/1 therefore was a validly executed document and by this document, late Sh.R.L.Puri had bequeathed the suit property in its entirety to his son Mahesh Puri/Defendant to be utilized by him C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.43 of 58 Digitally signed by RAVINDERRAVINDER BEDI BEDI Date: 2022.10.28 12:50:37 +0530 and his family partly for running a free dispensary or any other charitable purpose and partly for any other use, as Defendant may so desire. In Ex.DW1/D-1/1, it is further mentioned that the Defendant had only a life interest in the suit property with no power to alienate or dispose of by sale and after demise of Defendant, the suit property would devolve exclusively on testator's grand son Divye Puri. Having observed so, this Court holds that Defendant has been successful in proving the fact that his father late Sh.R.L.Puri had executed a Will Ex.DW1/D-1/1 and therefore by virute of said Will, he had become the owner of the suit property. The issue accordingly stands decided in favour of Defendant and against the Plaintifs.
Issue no.5.
Whether the suit is barred by limitation ? OPD.
49. The onus of proving this issue rested on the Defendant.
Ld. Counsel for Plaintiffs argues that there is no prescribed limitation for a suit for Partition which is between the co-owners. It is arged that Plaintiffs in later suit demanded Partition of property with injunction and sent Legal Notice dated 08.01.2012 and only then filed a suit for Partition in the month of July 2012 and thus the suit was well within time. Ld. Counsel placed reliance upon the judgments of Hon'ble Apex Court in Mangamal v. T.B.Raju (19.04.2018); Govindmal v. R.Perumal (19.10.2006); S.R.Srinivasa & Ors. v. S.Padmavathamma, DOD : 22.04.2010, Nagindas Ramdass v. Dalpatram Ichharam @ Brijram and Ors., 1974 AIR 471, Smt. Dayamathi Bai v. Sri K.M.Shaffi, DOD : 04.08.2004, Ishwar Dass C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.44 of 58 RAVINDER Digitally signed by RAVINDER
BEDI
BEDI Date: 2022.10.28 12:50:44 +0530
Jain (dead) through LRs v. Sohan Lal (Dead) by LRs, DOD : 29.11.1999, Bharpur Singh & Ors. v. Shamsher Singh, (2009) 3 SCC 687, Smt. Ganga Devi v. Ram Saran and Anr., AIR 1973 SC 778, Vidya Devi @ Vidya Vati (Dead by LRs) v. Prem Prakash & Ors., AIR 1995 SC 1789, Aloka Bose v. Parmatma Devi & Ors., AIR 2009 SC 1527, Surendra Kumar v. Nathulal & Anr., DOD : 02.05.2001 and Hon'ble Delhi High Court in Narender Nath v. Krishna Gupta & Ors., 2017(3) CLJ 409 Del. Ld. Counsel has argued that in Narender Nath (Supra), Hon'ble Delhi High Court referred to various decisions of Hon'ble Apex Court on the point of limitation and observed that there was no time fixed for fliing suit for Partition in case of joint family properties. It was argued that Defendant No.1 denied the other legal heirs of late Smt. Leelawati Puri/Plaintiffs the realization of rental income from the property. It was further argued that daugthers could not claim partition till the year 2005 and it was only when the amendment was brought in the Hindu Succession Act that the daughters got the right to claim partition and as such two sisters/Plaintiffs filed 'later suit' in July 2012. It was argued that the judgments relied upon by Defendant No.1 did not help his case and that for a suit for partition, cause of action was continuous and recurring and possession of one of the co-owners was deemed possession of other co-owners.
50. Per Contra, Ld. Counsel for Defendant No.1 relied upon the decision of Veena Rani v. Om Dutt Sharma (DOD : 12.12.2018) to contend that the submissions of Ld. Counsel for Plaintiffs that Plaintiffs could not file suit for partition in view of bar under Section 23 of Hindu Succession Act C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.45 of 58 RAVINDER Digitally signed by RAVINDER
BEDI
BEDI Date: 2022.10.28 12:50:49 +0530
1956 was fallacious since with repeal of Section 23 of the Act, only bar to seek the partition had gone and once the disability was removed from the Statute, filing of suit was no longer barred. He has further placed reliance upon the judgments in Shanti Conductors Private Limited v. Assam State Electricity Board & Ors. (2020) 2 SCC 677, Craft Centre and Others v. The Koncherry Coir Factories, Cherthala, AIR 1991 Ker 83, Kanak Lata Jain & Ors. v. Sudhir Kumar Jain Ors, ILR (2012) IV Delhi 176, Krishna Pillai Rajasekharan Nair (dead) by LRs v. Padmanabha Pillai (dead) by LRs, (2004) 12 SCC 754, Smt. Dilboo (dead) by LRs & Ors. v. Smt. Dhanraji (dead) and Ors, dated 12.09.2000, Surinder Kaur v. Ram Narula & Ors., (2013) 205 DLT 179, Shankh Nath Tiwari and others v. Raj Nandan Tiwary and others, 2003 AIR Jhar R 686, Mrs. Rachna v. Mrs. Mauhihal Begum, DOD : 01.08.2017, Fakhruddin v. The State of Madhya Pradesh, AIR 1967 SC 1326, Deputy Commissioner, Lucknow, in charge Court of Wards, Sissendi Estate v. Chandra Kishor Tewari and others, AIR 1947 Oudh 180, Ramji Dayawala and sons (P) Ltd. v. Invest Import, (1981) 1 SCC 80, Gangamma & Ors. v. Shivalingaiah, (2005) 9 SCC 359, Narbada Devi Gupta v. Birendra Kumar Jaiswal and Anr., (2003) 8 SCC 745, Chander Dutt Sharma v. Prem Chand & Ors., 2018 SCC OnLine Del 9903, Tukaram Kashinath Mandale v. Balkrishna & Balasaheb Sayajirao Thombare, 2019 SCC OnLine Bom 3787, Achuthan Pillai v. Marikar (Motors) Ltd, Trivandrum and others, AIR 1983 Ker 81, Madholal Sindu v. Asian Assurance Co Ltd and others, AIR 1954 Bom 305, and Bhagat Ram & Anr. v. Suresh & Ors., (2003) 12 SCC 35.
C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.46 of 58 RAVINDER Digitally signed by RAVINDER
BEDI
BEDI Date: 2022.10.28 12:50:53 +0530
51. Ld. Counsel for Defendants argued that suit was barred by law of Limitation under Article 65 of Limitation Act 1963. Counsel further referred to Section 27 of the Act and relied upon M/s Bharat Barrel And Drum Mfg. Co. Ltd. And Another(supra), wherein Hon'ble Apex Court dealt with scope of law of limitation and observed that a distinction between substantive or procedural statutes of limitation was not the determining factor but what was to be considered was if the statute extinguished merely the remedy or extinguished the substantive rights as well as remedy. It was argued that the statutory period for instituting a suit for possession under Article 65 of the Act was twelve years when possession of Defendants became adverse to the Plaintiff. Similarly, Article 65 of the Act extinguished the remedy available to Plaintiffs on expiry of the limitation, however Section 27 of the said Act extinguished the substantive rights in the property as well as the remedy.
52. Ld. Counsel for Defendant argued that in the face of the Will dated 30.06.1993 executed by Late Sh. R.L.Puri the 'later suit' seeking only partition of the property and injunction was unsustainable under law. It was argued that admittdely Defendants No.1&2 were and still are in possession of the suit property. He argued that in the absence of Plaintiffs seeking a Declaration to the effect that they were entitled for 1/6th share in the proeperty and that Will executed by their father was illegal, the 'first suit' only seeking rendition of accounts by Rama Nayyar and the 'later suit' filed by Manisha Puri and other sisters for partition was not maintainable. It was argued that Defendants questioned the maintainability of the 'later suit' seeking partition, C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.47 of 58 Digitally signed byRAVINDER RAVINDER BEDI
BEDI Date: 2022.10.28
12:50:57 +0530
when they took categorical objections in the 'first suit'. As such it was incubment upon Plaintiffs not only to seek partition of the suit property within limitation but also in the first instance, a Declaration to the effect that the Will executed by their father was illegal. Ld. Counsel referred to Section 34 of the Specific Relief Act and argued that in the absence of Plaintiffs seeking a Declaration to the effect that they had 1/6th share in the suit property and that the Will was illegal, the 'first suit' simplicitor for rendition of accounts and the 'later suit' filed in July 2012 was not maintainable since the cause of action firstly accrued in favour of Plaintiffs just after execution of Will dated 30.06.1993.
53. Ld. Counsel argued that failure to seek a Declaration by Plaintiff Rama Nayyar by challenging the validity of the Will and its cancellation and filing of later suit by the Plaintiff Manisha for partition was fatal to their case. Ld. Counsel referred to Mst. Rehana v. Mrs. Munihal (supra), wherein it was observed that filing of a suit for Partition simplicitor without claiming Declaration as to the ownership of the alleged undivided share in the suit property was not permissible. Ld. Counsel has further relied upon the judgment of Hon'ble Apex Court Anathula Sudhakar v. P.Buchi Reddy (dead) by LRs and Ors, (2008) 4 SCC 594, wherein it was held that when a cloud was raised over the title of Plaintiffs and they did not have possession, a suit for Declaration and Possession with or without Consequential injunction was the only remedy. It was therefore argued that the first and later suits filed by Plaintiffs without seeking Declaration as mandatory reliefs were not C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.48 of 58 RAVINDER Digitally signed by RAVINDER
BEDI
BEDI Date: 2022.10.28 12:51:01
+0530
maintainable. Even, the later suit filed by Plaintiffs Manisha and Kiran Ghai only for partition was beyond the law of limitation.
54. Ld. Counsel for the Plaintiffs has placed reliance upon the two judgments namely Vidya Devi @ Vidya Vati (Dead) by LRs v. Prem Prakash & Ors, (1995) 4 SCC 496 and Sh. Narender Nath v. Smt. Krishna Gupta & Ors, (2017) SCC Online Del 9060 and argued that the law is settled that limitation law does not per-se prescribe any fixed time period filing of a suit for partition in case of joint family property or jointly owned properties. Ld. Counsel relying upon Narender Nath (supra) argues that the case of the Plaintiffs that their father had expired intestate and thus the Plaintiffs had claimed partition in the suit property left behind by their father late R.L.Puri and the cause of action for claiming such partition continued till such partition was sought. Reliance was further placed upon the judgment of Vidya Devi @ Vidya Vati (Dead) by LRs (supra) and it was argued that since no period of limitation was fixed for filing suit for partition by co-bhumidar against his co- bhumidars in respect of joint holdings, the question of the other co-bhumidar acquiring title to such holding by adverse possession did not arise. Ld. Counsel has also relied upon the judgments of Kanak Lata Jain & Ors. v. Sudhir Kumar Jain Ors, ILR (2012) IV Delhi 176, Krishna Pillai Rajasekharan Nair (dead) by LRs v. Padmanabha Pillai (dead) by LRs, (2004) 12 SCC 754, Smt. Dilboo (dead) by LRs & Ors. v. Smt. Dhanraji (dead) and Ors, dated 12.09.2000 and upon the judgment of Maha Singh v. Anand Signh & Anr., (2009) 108 DRJ 152 (DB) by Hon'ble Delhi High C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.49 of 58RAVINDER Digitally signed by
RAVINDER BEDI
BEDI Date: 2022.10.28 12:51:07
+0530
Court and M/s Bharat Barrel And Drum Mfg. Co. Ltd. And Another v. The Employees State Insurance Corporation, 1971(2) SCC 860.
55. Ld. Counsel for Defendants no.1&2 argued that the suit for partition was filed by Plaintiffs on 02.07.2012. He argued that Smt. Leela Puri wife of Late Sh. R.L.Puri had died intestate on 14.05.1993 and on 30.06.1993, Late Sh. R.L.Puri had exexuted a Will in presence of all his legal heir by creating a life interest in the suit property in favour of Defendant no.1 (his son) and permanent interest in favour of Defendant no.2 (his grand son) and thus had excluded all his daughters as beneficiaries to the suit property. Ld. Counsel submits that on 03.07.1993 a Legal Notice was issued upon late Sh. R.L.Puri by Plaintiffs and Defendant no.3, but in the said Notice no allegations were made against Late R.L.Puri to the effect that he was not the owner of the suit property. Ld. Counsel submits that Late Sh. R.L.Puri expired on 20.11.1997 and a Legal Notice was issued by Plaintiffs and Defendant No.3 upon Defendant no.1 claiming that suit property had fallen to the ownership of son and daughters of late Smt. Leela Puri and Defendant No.1 being in possession of the suit property having 1/6th share in the said property and in that capacity, he was liable to render the accounts of the rent and profits received by him after demise of Late Smt. Leela Puri. Ld. Counsel submits that the said Notice was duly replied on 07.02.1998 by Defendant No.1 through Advocate, wherein the fact of execution of Will dated 30.06.1993 was categorically mentioned. Ld. Counsel submits that Plaintiffs and Defendant No.3, the alleged co-sharers were out of possession and had become aware of C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.50 of 58 Digitally signed by RAVINDERRAVINDER BEDI BEDI Date: 2022.10.28 12:51:14 +0530 the hostile stand of Defendant No.1 in the year 1993 and again in 1998. Ld. Counsel submits that the said Notice dated 02.01.1998 issued by Plaintiffs to Defendant No.1 clearly cautioned the Defendant No.1 that if the same remained uncomplied with, Plaintiffs and Defendant No.3 would be compelled to file a suit for necessary reliefs as indicated in the Notice. However, the suit for partition was filed by Plaintiffs on 02.07.2012 i.e. after 14 years 4 months and 24 days after the response dated 07.02.1998 to the Legal Notice dated 02.01.1998 of Plaintiffs; thus the same was clearly barred by limitation.
56. Law on the aspect of the date when the cause of action for instituting a suit arises, is well settled. It is observed in detail by Hon'ble Delhi High Court in Shri Hari Ram v. Smt. Shanti Devi & Ors. (DOD :
05.10.2015). In the case of Khatri Hotels vs. U.O.I. & Anr. (2011 (10) Scale
190), Hon'ble Supreme Court examined a situation where a right to sue accrues on multiple causes of action and to decide as to when will the period of limitation begin to run for instituting a suit, it observed as:-
"....24. The Limitation Act, 1963 (for short "the 1963 Act") prescribes time limit for all conceivable suits, appeals, etc. Section 2(j) of that Act defines the expression "period of limitation" to mean the period of limitation prescribed in the Schedule for suit, appeal or application. Section 13 lays down that every suit instituted, appeal preferred or application made after the prescribed period shall, subject to the provisions of Section 4 to 24, be dismissed even though limitation may not have been set up as defence. If a suit is not covered by any specific article, then it would fall within the residuary article. In other words, the residuary article is applicable to every kind of suit not otherwise provided for in the schedule."
C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.51 of 58RAVINDER Digitally signed by
RAVINDER BEDI
BEDI Date: 2022.10.28 12:51:19
+0530
57. Article 58 of The Limitation Act, which has a bearing on the matter prescribes three years as a limitation period to obtain any other Declaration and the period starts as to when the right to sue first accrues. As per Section 27 of the Act, that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. If a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit is liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrues. The said right would accrue first under Article 58 of the Act when the right asserted in the suit was infringed upon or when there was clear or unequvivocal threat to infringe such rights.
58. Coming to the facts of the case as per the averments of plaint in 'first suit', Plaintiff alleged cause of action accrued from time to time. It finally accrued when on 05.03.2000 Defendant flaly refused to pay due share of rental income/rendition of accounts. In the later suit, Plaintiffs averred that cause of action firstly accrued when defendants started threatening the Plaintiffs to dispose of the property without partitioning the same by metes and bounds. It further accrued when Defendants did not agree for partition and Plaintiffs has to send a Legal Notice dated 08.01.2012 which was deliberately avoided by Defendants. It further continued to accrue from time to time when C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.52 of 58RAVINDER Digitally signed by RAVINDER
BEDI
BEDI Date: 2022.10.28 12:51:25
+0530
Defendant refused for such partition. There is no mentioning of any specific date, month or year as to when the cause of action accrued firstly.
59. This Court observes that despite knowledge of execution of Will on 30.06.1993, Plaintiff in 'first suit' deliberately withheld this material fact and approached the court with unclean hands. Further, Plaintiff only claimed rendition of the accounts in respect of incomes derived by Defendant No.1 from the suit property without seeking relief of Declaration or Cancellation of documents i.e. Will and which is clearly impermissible under the law. Plaintiff in 'first suit' was all along aware of the execution of the Will, the stand of Defendant No.1 in view of execution of a Will in his favour and thereby threats to her title. The same is evident from the correspondence between the Plaintiffs and their father since July 1993. Similarly, Plaintiffs Manisha and Kiran Ghai in 'later suit' were aware of the factual situation and execution of Will by their father in favour of Defendant, however still they did not choose to file a suit for Partition within period of limitation and filed the later suit only in July 2012 despite knowledge of such threats to their rights since June 1993.
60. Clearly, Plaintiff in 'first suit' was aware of the exclusion of her benefits/usufructs/rendition of accounts. She averred in plaint that cause of action firstly accrued when their mother died in the year 1993. Plaintiff slept over her rights for more than seven years and filed the suit only in the March 2000. In other words, the denial of Plaintiffs' share was in their knowledge in C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.53 of 58RAVINDER Digitally signed by RAVINDER
BEDI
BEDI Date: 2022.10.28 12:51:29 +0530
the month of June 1993 itself. Plaintiff Rama Nayyar however did not chose to file suit for Partition and only claimed rendition of accounts in respect of the incomes from suit property, that too in March 2000 without claiming any Declaration under Section 34 of Specific Relief Act; therefore, clearly the suit was barred by limitation. In fact there were no necessary averments in both suits as to whether they were within time. It was for Plaintiffs to aver and then prove that the suit was filed within the stipulated period of limitation from the date of first accrual of cause of action. In the absence of any such averments, the Plaintiffs case would fail. The Will was executed on 30.06.1993 and was a registered document. Whenever a document gets registered, it is the date of registration which is the date of deemed knowledge. No relief for Declaration was sought as per Section 59 of the Limitation Act for cancelling or setting aside or execution of valid Will in favour of Defendant. A mere notice dated 03.07.1993 by Plaintifs to their father to desist from acting upon the will would not have sufficed.
61. Further, for a suit for Partition, the starting point of limitation is - when the right to sue accures i.e. when the Plaintiffs got notice of their entitlement for partition being denied. Considering evidence on record, the said right accrued firstly in the year 1993 when the claims of Plaintiffs of their entitlement for partition were denied. In other words, cause of action for such rights accrued when there was denial of share by Defendant to Plaintiffs. It was also not open for Plaintiffs to file a 'later suit' on same cause of action after more than 12 years. In Krishna Pillai Rajasekharan Nair v. C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.54 of 58 RAVINDER Digitally signed by RAVINDER
BEDI
BEDI Date: 2022.10.28 12:51:34 +0530
Padmanabha Pillai (AIR 2004 SC 1206), Hon'ble Apex Court observed that for a suit for partition, the starting point of limitation is, when the plaintiff has notice of his entitlement to partition being denied. This issue also came up for consideration before Hon'ble Division Bench in the case of Nanak Chand (supra), where the plaintiff had served a notice for partition upon the defendants on 17.05.1963. Computed from that date, the period of limitation expired on 17.05.1969. The suit, however, was filed on 23.07.1969. Relying upon the aforesaid decisions of the Privy Counsel and Hon'ble Supreme Court, Hon'ble Division Bench held that the right of partition sprang into existence when the notice of severance and demand for partition was served, but, the right to sue did not accrue until the defendant infringed or threatened to infringe that right.
62. In present case, Plaintiffs were aware of clear ouster or exclusion of their title. Admittedly, they were never in possession of the suit property and their title to the property was under a cloud in view of title being asserted by Defendant and in such circumstances, Plaintiffs had to sue for declaration of title and the consequential relief of injunction. In the judgment of Anathula Sudhakar(supra), it was observed by Hon'ble Apex Court that in such like situations, Plaintiffs necessarily had to file a suit for Declaration alongwith consequential relief. It was held by Hon'ble Apex Court in Jharkhand State Housing Board v. Didar Singh, (2018 SCC OnLine 2170) that mere suit for injunction was not maintainable when Defendant had disputed the title of Plaintiff. It was held that without claiming the relief of declaration of title, suit C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.55 of 58 RAVINDER Digitally signed by
RAVINDER BEDI
BEDI Date: 2022.10.28 12:51:39
+0530
for mere injunction could not have been instituted. The statutory requirement to institute a suit for possession under Article 65 of the Limitation Act is a procedural law, which requires Plaintiff to file the suit within limitation, when the possession of Defendant became adverse to Plaintiff. Therefore, this court holds that the 'later suit' filed by Plaintiffs Manisha and Kiran Ghai in July 2012 seeking partition is clearly barred by law of limitation.
63. Another plea of Ld. Counsel for plaintiffs that plaintiffs earlier could not have claimed their share due to embarge under Section 23 of Hindu Succession Act before 2005 amendment also holds no water since with Amendment in Act of 39 of 2005 (Hindu Succession Act), Section 23 of Hindu Succession Act is deleted and effect of deletion is that any pending matter involving question, not covered earlier under Section 23 of the Act would also not be taken as an embargo on rights of daughters to claim Partition in respect of Dwelling house i.e. Daughter is put at par with brother to claim partition for properties inherited by siblings of a person. In other words, a fresh suit can be filed and existing suit filed prior to repeal of Section 23 of Act can continue. Therefore the plea of Plaintiffs clearly pales into insignificance. Therefore, this Court holds that suit of Plaintiffs are barred by limitation on account of my aforesaid observations. The issue stands decided in favour of Defendants and against Plaintiffs.
C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.56 of 58 Digitally signed by RAVINDER BEDIRAVINDER BEDI Date: 2022.10.28 12:51:43 +0530
Issue No.3
Whether the suit is bad for mis-joinder and non-
joinder ? OPD-1.
64. The onus to prove this issue was upon Defendant No.1. However, no evidence has been led in support of the same and the issue remained unproved and is decided accordingly against the Defendant.
Whether the plaintiff is entitled to decree of rendition of accounts?OPP Whether the plaintiffs are entitled to a decree of partition and injunction as claimed ? OPP.
65. On account of observations and findings of this Court on the issues discussed from para no.11 uptil para no.65, this Court holds that Plaintiff in 'first suit' has miserably failed to prove her case in respect of Rendition of Accounts. Similarly, Plaintiffs Manisha and Kiran Ghai in 'later suit' have failed to prove their claims or their entitlement for decree of partition and the remaining reliefs. Therefore, both the issues stand decided against Plaintiffs and in favour of Defendant.
C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.57 of 58RAVINDER Digitally signed by RAVINDER
BEDI
BEDI Date: 2022.10.28 12:51:47 +0530
RELIEF:
66. In view of foregoing discussion, this Court holds that 'first suit' filed by Plaintiff Rama Nayyar and 'later suit' filed by Plaintiffs Manisha and Kiran Ghai deserve dismissal. Resultantly, both suits are hereby dismissed.
Decree sheet of dismissal as such be prepared and file be consigned Digitally signed by to record room.
RAVINDER RAVINDER BEDI
Announced in the open Court
BEDI Date: 2022.10.28
12:51:54 +0530
on 17.10.2022 (RAVINDER BEDI)
Additional District Judge-02
SHD/KKD/Delhi/17.10.2022
C.S. No. (New) 570/2020, (Old CS No.92/2012), Smt. Rama Nayyar v. Sh. Mahesh Puri & Ors. C.S. No. (New) 1724/2016, (Old CS No.2386/2012), Smt. Manisha & Anr. v. Sh. Mahesh Puri & Ors.
Page No.58 of 58