Delhi District Court
Sh. Rajiv Kumar Saxena vs Smt. Reena Jain on 6 April, 2009
SUIT NO.22/2006
IN THE COURT OF SH. NARESH KUMAR MALHOTRA,
ADMINISTRATIVE CIVIL JUDGE, KARKARDOOMA, DELHI
SUIT NO.22/2006
DATE OF INSTITUTION: 10.10.2002
DATE OF RESERVING ORDER: 01.04.2009
DATE OF DECISION: 06.04.2009
IN THE MATTER OF:-
SH. RAJIV KUMAR SAXENA
S/O Late Sh. Jagdish Prasad Saxena
R/O 408, Gagan Vihar,
Delhi- 110051.
........ Plaintiff
AND
1. SMT. REENA JAIN
W/O Sh. Pradeep Jain
R/O 1st Floor, H. No. 408,
Gagan Vihar,
Delhi- 110051.
2. SH. PRADEEP JAIN
S/O Sh. Paduvan Jain
R/O 1st Floor, H. No. 408,
Gagan Vihar,
Delhi- 110051.
.........Defendants
SUIT FOR DECLARATION & POSSESSION
JUDGMENT
1
SUIT NO.22/2006
1 Vide this judgment, I shall decide a suit for declaration & mandatory injunction filed by the plaintiff against defendants. 2 The essential facts for the disposal of present suit as per plaint are that the father of plaintiff had purchased a plot bearing no. 408, Gagan Vihar, Delhi measuring 272 square yards (herein after will be referred as suit property) and constructed the same out of his income. Father of plaintiff bequeathed the said house to plaintiff by executing a will dated 28.04.95 and the right, title and interest in the property were devolved upon the plaintiff. The mother of plaintiff was only having right of residence in the suit property. Father of plaintiff expired on 22.03.96 and mother of plaintiff expired in October,1999. As per plaintiff before the death of his parents, defendant no.1 was permanently living at her matrimonial home at Ghaziabad along with her husband. Plaintiff was the owner of suit property as per will executed by the father of plaintiff. Defendant no.1 came to plaintiff's house for temporary stay but later on she started living permanently in the house of plaintiff with her husband and children. Thereafter, the defendants started raising construction on the first floor and on the second floor of the building and whenever the plaintiff raised objection, defendants persuaded him not to raise any resistance and promised to show the plaintiff a will executed by father of plaintiff 2 SUIT NO.22/2006 authorising them to raise the construction. Plaintiff is living on the ground floor along with his wife and children. On 16.08.2002, when the plaintiff insisted the defendants to show him the document. Defendants called the police by levelling false allegations and gave him a copy of settlement deed. As per plaintiff, the settlement deed does not bear his signatures and he never appeared before a Notary Public. Defendants also got site plan sanctioned from the office of MCD by forging certain documents and fabricating the signatures of father of plaintiff. Before the death of mother of plaintiff, defendant no.1 and her mother induced the plaintiff to execute a relinquishment deed dated 03.02.1998 thereby relinquishing his right, title and interest in the property in favour of mother of plaintiff. As per plaintiff, defendant no.1 and his mother were aware that there was a will executed by father of plaintiff and it came to knowledge of plaintiff in May,2002 when the wife of plaintiff found the will wrapped inside a cloth when she was setting right the household articles. On the basis of relinquishment deed, the suit property was mutated in the office of DDA in the name of mother of defendant no.1. It is also averred that mother of defendant no.1 also executed a will where by right, title and interest in the suit property devolved upon the plaintiff. Plaintiff further averred that the said will was stolen by defendant no.1. Plaintiff averred that defendant no.1 also removed jewellery and belongings of mother of plaintiff. Defendants are 3 SUIT NO.22/2006 running business activity on the second floor of the property. It is also mentioned that the defendants have restricted the entry and exit of plaintiff and his wife from May,2002 on the roof of the building by putting a lock on the door for gaining entry on the roof. Plaintiff and defendants were consuming the electricity from the same meter till 17.08.2002 and after that the plaintiff has got installed a separate meter for himself. Defendant also refused to pay the electricity bill amounting to Rs.14,440/-. Plaintiff sent a legal notice dated 10.09.2002 to the defendants to vacate the suit premises. Plaintiff prayed that the settlement deed be declared as forged document having no force in the eyes of law. It is also prayed that that the relinquishment deed may also be declared as void. Plaintiff also prayed for a consequencial relief of possession in respect of first floor and second floor of suit property as shown in red colour in the site plan. 3 Defendants filed written statement and has taken preliminary objection that the will is forged and fabricated. The will was never executed by the father of plaintiff and defendant no.1 as Sh. J.P. Saxena, father of plaintiff was very much against the plaintiff due to misconduct and bad habits of plaintiff. Sh. J.P. Saxena moved to house of defendants few days before his death. Mother of defendant no.1 became the undisputed owner of the suit property as plaintiff and defendant no.1 had executed 4 SUIT NO.22/2006 relinquishment deed in favour of their mother. Plaintiff also filed an application in the office of Deputy/Assistant Collector, MCD on 20.02.2001 for mutation of ground floor of suit property in which he had mentioned that his mother Smt. Urmila Saxena is the recorded owner of the suit property. Plaintiff also executed an affidavit and family settlement deed dated 18.12.2000. It is also mentioned that plaintiff signed an indemnity bond in presence of witnesses. No will was left by Smt. Urmila Saxena. It is also mentioned that deceased Sh. J.P. Saxena had executed a will in favour of defendant and against the plaintiff in presence of two witnesses. But after the death of Sh. J.P. Saxena, mother of plaintiff and plaintiff asked defendant no.1 to forget the will executed in her favour and the plaintiff also requested very poorly to the defendants not to use the will against him and he is ready to execute all the necessary documents in favour of his mother. It is also mentioned that the will dated 07.02.96 executed by the deceased Sh. J.P. Saxena which was in the possession of defendant no.1 is not available as it was given to some person for its safety. But the person concerned has forgotten the right place where the will was placed and he is trying his best to trace the will. The present suit is hit by section 105 of Transfer of Property Act. On merit, it is denied that Sh. J.P. Saxena had executed will dated 28.04.95. The will is forged and fabricated. Plaintiff executed the relinquishment deed dated 03.02.98 in favour of Smt. Urmila 5 SUIT NO.22/2006 Saxena. It is also mentioned that plaintiff and defendant no.1 had executed indemnity bond and the same is registered with Sub-Registrar- VIII. It was denied that on 16.08.02, plaintiff insisted the defendant to show him the document. It is also denied that the defendants called the police on 16.08.02. It was denied that the defendant no.1 and her mother induced the plaintiff to execute a relinquishment deed in respect of suit property in favour of their mother. It is denied that the will was found by the wife of plaintiff in May,2002. It is denied that the plaintiff used to pay electricity bill. Plaintiff had signed the settlement deed and the settlement deed was duly notarized. The relinquishment deed was signed by the plaintiff and the same was registered in the office of Sub-Registrar-VIII on 03.02.98. Relinquishment deed cannot be declared null and void. The first and second floor of the house was duly constructed by the defendants. Thus, no consequencial relief of decree of possession in respect of first and second floor be passed in favour of plaintiff. Dismissal of suit is prayed by the defendants.
4 Plaintiff had filed replication and denied the contentions of written statement and has reiterated the contents of the plaint. On the basis of pleadings of the parties, following issues were framed by my ld. predecessor on 31.03.2004 :-
6 SUIT NO.22/2006
1) Whether the plaintiff is entitled for decree of declaration as prayed for?OPP
2) Whether the plaintiff is entitled for decree of possession as prayed for?OPP
3) Whether the will dated 28.04.95 is false, forged and fabricated? OPD
4) Relief.
5 Plaintiff in support of his case produced Sh. J.K.Chopra as PW1 who is one of the attesting witness of the will. Plaintiff also examined Sh. Naresh Chand Jain, the another attesting witness of the will dated 28.04.95. Plaintiff examined himself as PW3. Smt. Rita wife of plaintiff was examined as PW4.
On the other hand, defendants examined Sh. C.L. Madan, one of the attesting witness of family settlement deed dated 18.12.2000 as DW1. Sh. Subhash Sharma, Assistant Zonal Inspector appeared as DW2. This witness has proved the attested copies of house tax record and mutation record as Ex.DW1/1 to DW1/18. Sh. Dalip Singh appeared as DW3 and proved certified copy of relinquishment deed as Ex.DW3/1. Smt. Reena Jain, defendant no.1 appeared as DW4 and filed an affidavit in evidence in which she states that Sh. J.P. Saxena, her father never 7 SUIT NO.22/2006 executed the will dated 28.04.95 and the deed of settlement was proved as Ex.DW1/1. It is also mentioned that deed of settlement was signed by Sh. C.L. Madan and Sh. J.K. Chopra who are the old family friends of father of plaintiff. It is also stated that the family settlement is notarized. The copy of application dated 20.02.01 given by plaintiff to Assistant Collector, Geeta Colony was proved as DW2/6. Indemnity bond signed by plaintiff was proved as Ex.DW2/7. Copy of order of MCD was proved as Ex.DW2/1. The house tax receipts were proved as Ex.DW2/2 and DW2/3.
Sh. Pradip Jain, defendant no.2 was examined as DW5 and Sh. J.K. Chopra was examined as DW5A. It is also mentioned in order dated 14.02.05 that Sh. J.K. Chopra be read as DW5A. Sh. J.K. Chopra has proved deed of family settlement dated 18.12.2000 as DW1/1. It is also mentioned in the affidavit that the settlement deed was signed by plaintiff at point A1 and A2 and defendant no.1 signed at point B1 and B2 and he signed at point C. Sh. Harji Lal appeared as DW6. This witness stated that the family settlement deed dated 18.12.2000 was attested by him. Sh. B.C. Mishra, handwriting expert proved the report Ex.DW7/1. This witness mentioned in the report that he has examined disputed signatures of the plaintiff in family settlement deed marked by him at D1 and D2 with the admitted signatures of plaintiff in plaint, replication, V/N and the affidavit filed in the court. This witness stated that D1 and D2 are signed by the 8 SUIT NO.22/2006 same person, who had signed the plaint, replication, V/N and affidavit. 6 I have heard counsel for plaintiff and perused the record. 7 My findings on the above issues are as follows:-
Before deciding issue no.1&2, I am deciding issue no.3. ISSUE NO.3 :-
8 The burden to prove this issue is on the defendants. It is the case of defendants that the will dated 28.04.95 is false, forged and fabricated.
9 Plaintiff is relying on the will dated 28.04.95 on the basis of which he is claiming himself as owner of suit property. Plaintiff placed on record a will Ex.PW1/1. To prove the wil, plaintiff produced Sh. J.K. Chopra as PW1 who is one of the attesting witness of the will. This witness filed an affidavit in examination-in-chief and mentioned therein that he was working in Indian Airlines and he has signed the will dated 28.04.95. It is also mentioned that after seeing the will "I state that name and address of mine has been mentioned in the will." It is also mentioned 9 SUIT NO.22/2006 that after seeing original will I ascertain that I had put my hand thereon. It is also mentioned in the affidavit, it is correct that the present will was executed by Sh. J.P. Saxena in my presence and he signed the same and thereafter I had signed. It is also correct that I know Sh. Naresh Chand Jain, the other attesting witness who works in the same office. He also states : to my memory, the present will, so far as was crossed by the executor and he wanted to write another will. It is correct that will was executed in which besides Sh. J.P. Saxena, myself and other attesting witness had signed. It is also stated that I do not know whether Sh. J.P. Saxena had written any other will or not subsequent to execution of present will. In para 8 of the affidavit, this witness mentioned that after seeing the original will, I hereby certify that I have signed the present will as attesting witness. In cross- examination, this witness stated that "he has seen this will just now and he has not seen the will in question before this time." The witness also stated that signatures at point A belongs to him. It is also stated that he knew about the contents of the will when he had signed it.
10 Sh. Naresh Chand Jain appeared as PW2 and filed his affidavit. He deposed that he knew Sh. J.P. Saxena who was working in Indian Airlines. He also stated that the will bears his signatures. It is also 10 SUIT NO.22/2006 mentioned that he has read the contents of will and they are true and correct. It is also mentioned in the affidavit that after the will was signed and executed by the deceased, same was signed by him and deceased has crossed the will in his presence but the same was not destroyed. It is also mentioned that deceased was saying to change his will but he does not know whether the deceased has changed his will or not. In the cross- examination, the witness stated that the will Ex.PW1/1 bears his signatures at point D. It is also stated that Ex.PW1/1 is not the same will which was crossed by the deceased.
11 Counsel for defendant has contended that in cross-
examination, PW1 has stated that he has not seen the will Ex.PW1/1 before this time. PW2, Sh. Naresh Chand Jain stated that the deceased had crossed the will. Thus, both the witnesses had created a doubt about the execution of the will. Counsel for defendant relied upon 'AIR 1982 S.C. 133' in which it is held that: "Onus is on the propounder to prove all doubts and explain the circumstances to the full satisfaction of the court before the court asserts the genuineness of the will."
In this case law, it is also held that:
"the onus of proving the will is on the propounder ."
It is also mentioned "where there are suspicious 11 SUIT NO.22/2006 circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine."
12 In the present case, both the witnesses have admitted to sign the will. Sh. J.K. Chopra had admitted to sign the will at point A and Sh. Naresh Chand Jain had admitted his signatures at point D. Both the witnesses stated that they were working with the deceased in Indian Airlines and both of them clearly mentioned that they had signed the will and the deceased also signed the will. From the statement of both the witnesses, plaintiff is able to prove the will dated 28.04.95. Both the witnesses stated in their affidavits that the will was crossed by the executor and he intended to write another will. The perusal of will Ex.PW1/1 shows that this will was not crossed. Thus, this version of both the witnesses cannot be taken into consideration when both of them admitted their signatures and also stated that the deceased signed the will in their presence. Deceased had signed on both the pages of the will. Defendants have not disputed the signatures of deceased Sh. J.P. Saxena on the will Ex.PW1/1. Defendants have not given any suggestion to both the witnesses PW1 and PW2 that the will is not signed by the deceased. Defendants have not adduced any evidence to show that the will Ex.PW1/1 was not executed by the deceased Sh. J.P. Saxena. Defendants have not 12 SUIT NO.22/2006 raised any objection that the will Ex.PW1/1 does not bear the signatures of the deceased. The defendants have not placed on record any material which could show that will Ex.PW1/1 was not signed by the deceased. Both the witnesses have stated that the will was signed and executed by the deceased.
13 Counsel for defendant has further contended that PW3 and PW4 gave different versions where the will Ex.PW1/1 was found. This contention cannot be taken into consideration when both the witnesses of the will admitted their signatures on the will. Defendants failed to prove this issue. Thus, this issue is decided in favour of plaintiff and against the defendants.
ISSUE NO.1 :-
14 The burden to prove this issue is on plaintiff. To prove this issue, plaintiff appeared as PW3. Plaintiff has prayed for a decree of declaration, thereby declaring the relinquishment deed as null and void and the settlement deed be also declared a forged document and having no force in the eyes of law.
13 SUIT NO.22/2006 15 Counsel for defendant has contended that this court has no jurisdiction to entertain the present suit. As per section 264 of Indian Succession Act, only the learned District Judge has jurisdiction in granting, revoking probate. Counsel for plaintiff has placed reliance on 'AIR 2001 S.C. 1151' in which it is held that:
"a combined reading of section 213 and 57 of Indian Succession Act, would show that where the parties to the will are Hindus or the properties in dispute are not in territories falling under section 57(a) and (b), sub section (2) of section 213 of the Act applies and sub section(1) has no application. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a will made outside those territories or regarding the immovable properties situated outside those territories."
Thus, this contention of counsel for defendant is having no force.
16 The relinquishment deed was executed by the plaintiff and defendant no.1 on 03.02.98. DW3 has proved the copy of relinquishment deed. Vide this deed, plaintiff and defendant no.1 had relinquished their 14 SUIT NO.22/2006 shares in respect of suit property in favour of their mother Smt. Urmila Saxena. It is the case of plaintiff that he was not aware about the will dated 28.04.95 when the relinquishment deed dated 03.02.98 was executed by him. If the plaintiff was aware about the execution of the will then certainly the plaintiff will not execute relinquishment deed in favour of his mother. Relinquishment deed was executed on 03.02.98 and after the relinquishment deed, mother of the parties became the owner of the suit property. Smt. Urmila Saxena, mother of the parties expired in October,1999. When the relinquishment deed was executed on 03.02.98, plaintiff had already become the owner of suit property by virtue of will dated 28.04.95. Thus, plaintiff was having no knowledge about the execution of the will. After the death of Smt. Urmila Saxena, a deed of family settlement was executed between plaintiff and defendant no.1. Vide, this family settlement, the ground floor of the suit property came to the share of plaintiff and first floor of the suit property came in share of defendant no.1. Vide this settlement, a right was given to defendant no.1 to raise construction on the first floor of suit property. Though the plaintiff has denied his signatures on the family settlement deed but the defendants have been able to prove that the family settlement bears the signatures of plaintiff. DW7 has clearly stated that the plaintiff had signed the settlement deed at point A1. He also states that the signatures at point A1 and A2 are 15 SUIT NO.22/2006 of the same person who had signed the plaint, replication, affidavit and vakalatnama. No evidence has been adduced by the plaintiff to show that the family settlement deed Ex.DW1/1 was not signed by him. Plaintiff has not produced any handwriting expert to prove that the settlement does not bear his signatures.
17 However, plaintiff has mentioned in para six of the plaint that when the defendants started construction on the first floor and second floor of the suit property, both the defendants promised the plaintiff to show him the document executed by father of plaintiff authorising them to raise construction. In the written statement, the defendants have clearly mentioned that the deceased had executed a will in favour of defendant no.1 in presence of witnesses. But after the death of deceased Sh. J.P. Saxena, father of plaintiff and defendant no.1, Mrs. Urmila Saxena, mother of parties asked defendant no.1 to forget about the will executed in her favour. It is also mentioned in the written statement that the will was given to some person for its safety but the person has forgotten the right place where it was kept. Thus, defendants are corroborating the version of plaintiff. Defendants have themselves admitted that the deceased Sh. J.P. Saxena has left a will in her favour. Defendants have failed to tell the name of the person to whom the will was given by the deceased. 16 SUIT NO.22/2006 Defendants failed to produce the will executed in favour of defendant no.1. Thus, the documents such as relinquishment deed and family settlement deed were executed by the plaintiff as defendant no.1 stated to plaintiff that the deceased Sh. J.P. Saxena had executed a will in her favour. 18 Now, the question arises what is the consequence of family settlement deed and relinquishment deed. Admittedly, at the time of execution of relinquishment deed in the year 1998, defendant no.1 was having no right to relinquish any share in favour of her mother. The deceased had left a will dated 28.04.95 in favour of plaintiff. Defendant no.1 having no right, cannot relinquish her share in favour of her mother. The family settlement deed dated 18.12.2000 is not binding on the plaintiff as at the time of execution of the family settlement and relinquishment deed he was not aware about the execution of will dated 28.04.95 in his favour. As per plaintiff, he came to know about the will in May,2002. Both the relinquishment deed and settlement deed were executed prior to the period when he came to know about the will dated 28.04.95.
It is contended by counsel for defendant that the deceased was only a lessee and no conveyance deed was executed in his favour. It is also contended that the deceased Urmila Saxena became the sole owner after the conveyance deed executed in her favour. But in the present case 17 SUIT NO.22/2006 when the relinquishment deed and family settlement deed were executed, the plaintiff was not aware about the execution of will dated 28.04.95. It is true that Smt. Urmila Saxena had become owner after the execution of relinquishment deed and conveyance deed. But it has to be seen from where the legal heirs of deceased Sh. J.P. Saxena had derived their title. It is not denied that the suit property was self acquired property of the deceased and the deceased was intending to give the suit property to plaintiff, therefore, he executed the will dated 28.04.95. Thus, there is no strength in the argument of counsel for defendants.
From the above discussion, the relinquishment deed dated 03.02.98 and family settlement deed dated 18.12.2000 are declared null and void, having no force in the eyes of law. Thus, this issue is decided in favour of plaintiff and against the defendants.
ISSUE NO.2 :-
19 The burden to prove this issue is on plaintiff. It is contended by counsel for plaintiff that on the basis of will a decree of possession be passed in favour of plaintiff in respect of portion of first floor and second floor as shown in red colour in the site plan. As I held in issue no.3 that the will dated 28.04.95 is legal and I also held in issue no.1 that plaintiff is 18 SUIT NO.22/2006 entitled to relief of declaration. Counsel for defendant has argued that the plaintiff has not sought any relief regarding genuineness of the will, therefore, no relief can be granted in respect of possession to the plaintiff.
I failed to consider this contention of Ld. counsel for defendant as the plaintiff has filed the present suit for possession on the basis of will dated 28.04.95. Thus this issue is decided in favour of plaintiff and against the defendant.
RELIEF :-
20 In view of my findings on the above issues, the suit of plaintiff is decreed and a decree of declaration is passed declaring that Ex.P2, the settlement deed is null and void and having no force in the eyes of law. A decree of declaration is also passed declaring the relinquishment deed dated 03.02.1998 as null and void. Further, a decree of possession is passed in respect of first and second floor of the suit property as shown in red colour in the site plan in favour of plaintiff and against the defendants.
Defendants have raised construction on the first and second floor of the suit property. As per section 51 of Transfer of Property Act, the construction was raised by defendant no.1 under bonafide belief that she is the owner of property. Plaintiff is directed to give a compensation of Rs.5 19 SUIT NO.22/2006 lakh to defendants. Decree sheet be prepared accordingly. The decree is executable only when the plaintiff pays the compensation amount of Rs.5 lakh to defendants. File be consigned to record room after necessary compliance.
ANNOUNCED IN OPEN COURT (NARESH KUMAR MALHOTRA)
ON 06.04.2009 ADMINISTRATIVE CIVIL JUDGE
KKD/DELHI
20