Delhi District Court
Kamal Jindal S/O Sh. Radhey Shyam Jindal vs Sushil Kumar Aggarwal & Ors on 12 December, 2017
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE, (NE)
KARKARDOOMA COURTS, DELHI
CS No. 476237/15
IN THE MATTER OF:
Kamal Jindal S/o Sh. Radhey Shyam Jindal
r/o 1/ 222, Sri Ram Nagar,
Shahdara, Delhi32 ........ Plaintiff
V E R S U S
(1) Sh. Sushil Kumar Aggarwal
S/o Late Sh. Rehtu Lal
R/o 1/ 4847, Gali No. 11,
Balbir Nagar Extn.,
Shahdara, Delhi32
(2). Smt. Manju Aggarwal
W/o Sh. Sushil Kumar Aggarwal
R/o 1/ 4847, Gali No. 11,
Balbir Nagar Extn.,
Shahdara, Delhi32.
.............. Defendants
Date of Institution : 09.02.2010
Date of Arguments : 12.12.2017
Date of Judgment : 12.12.2017
Decision : Suit is dismissed with cost
CS No. 476237/15 1/19
Kamal Jindal V/s Sushil Kumar Aggarwal & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
Suit for declaration, possession, mandatory injunction, permanent
injunction & mesne profits
JUDGMENT
1.This suit has been filed by the plaintiff against the defendants praying for decree of declaration of ownership in respect of property bearing No. 1/4847, Gali No. 11, Balbir Nagar Extn., Shahdara, Delhi32 on the basis of registered will dt. 16.07.97 executed by Late Smt. Tara Devi in favour of plaintiff and for declaring the will dt. 12.07.2002 executed in favour of defendant No. 1 as null and void.
The petitioner has further prayed for decree of possession in respect of aforesaid property bearing No. 1/4847 Gali No. 11, Balbir Nagar Extn., Shahdara, Delhi32 ( hereinafter called the suit property as shown in red colour in the site plan attached with the plaint), mesne profits/ damages, decree of mandatory injunction directing the defendants to hand over the possession of the suit property and decree of permanent injunction for restraining the defendants, agents, attorneys etc from selling alienating transferring and creating any third party interest therein.
2. As stated in the plaint, plaintiff resided in the suit property as owner in view of the will dt. 16.07.97 executed by her grandmother Late Smt. Tara Devi who was the sole owner of the aforesaid property. Smt. Tara Devi expired on 21.09.2002. The plaintiff resided in the suit property till 21.05.04 till he was dispossessed by the defendants. The defendants filed a suit for permanent injunction bearing No. 197/2004 against the plaintiff claiming to be owner of the suit property which was disposed off on CS No. 476237/15 2/19 Kamal Jindal V/s Sushil Kumar Aggarwal & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
27.09.2004. Smt. Tara Devi executed a registered will dt. 16.07.97 in the name of plaintiff and also handed over the registered will to him alongwith FD of Rs. 20,000/. Plaintiff thereafter filed the suit against the defendants.
3. The defendants filed WS contending that this suit is not maintainable and plaintiff has concealed the material facts; it is barred by Order 7 Rule 11 CPC and the site plan filed by plaintiff is false; this suit is bad for misjoinder of parties of defendant No. 2 and plaintiff is not entitled for relief of possession on the basis of will which was revoked. The defendants on merits denied the material contentions of the plaintiff including his residence on the ground floor contending that father of plaintiff was permitted to reside on ground floor of property as licensee till 03.06.2002 and the father of the plaintiff has misused the confidence/ trust imposed on him by Smt. Tara Devi. As claimed the will filed by defendant No. 1 is genuine and the plaintiff has no right in the suit property. While denying rest of the material contentions of the plaintiff in the plaint, defendants prayed to dismiss the suit with cost.
4. Replication to the amended WS of the defendants was filed by the plaintiff whereby the plaintiff has reiterated the averments made in the plaint while denying the contentions of the defendants in the written statements.
5. In view of the pleading of the parties, following issues were framed vide order dt. 28.11.2011:
(i) Whether the plaintiff is entitled to relief of declaration, possession, mandatory injunction and permanent injunction in relation to first floor of property bearing No. 1/ 4847, Gali No. 11, Balbir Nagar Extn., CS No. 476237/15 3/19 Kamal Jindal V/s Sushil Kumar Aggarwal & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
Shahdara, Delhi32? OPP
(ii) Whether Late Smt. Tara Devi executed any
valid will dt. 16.07.97 ( registered on 17.07.97) in favour of plaintiff in respect of first floor of property bearing No. 1/ 4847, Gali No. 11, Balbir Nagar Extn., Shahdara, Delhi32? OPP
(iii) Whether the plaintiff is entitled to mesne profits alongwith interest at the rate of 18 % PA as prayed for? OPP
(iv) Whether the plaintiff is entitled to recovery of mesne profits between January 2007 to December 2009 at the rate of Rs. 3,000/ per month alongwith interest at the rate of 18 % PA from the date of filing of suit till realization ? OPP
(v) Whether Late Smt. Tara Devi executed any valid will dt. 12.07.02 in favour of defendant No. 1 ?
OPD1
(vi) Relief.
and the case was fixed for plaintiff's evidence.
6. The plaintiff filed his affidavit by way of evidence Ex. PW 1/A and examined himself as PW1 in support of the case. The witness deposed nothing but as per averments made in the plaint. The witness has also deposed regarding the documents i.e. Ex. PW 1/ 1 site plan, Ex. PW 1/ 2 certified copy of will, Ex. PW 1/3 death certified of Tara Devi, Ex. PW 1/ 4 photographs, Ex. PW 1/ 5 certified copies of statement dt. 27.09.04 and order dt. 27.09.2004, Ex. PW 1/6 election ID Card, Ex. PW 1/7 CS No. 476237/15 4/19 Kamal Jindal V/s Sushil Kumar Aggarwal & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
photographs and mark A photocopy of ration card.
Plaintiff examined other witness i.e. Bhagwat Saran as PW2 by way of affidavit Ex. PW 2/A. Witness has relied upon the documents already exhibited as Ex. PW 1/ 2.
Petitioner also summoned and examined the witness i.e. Sh. Prakash chand Tiwari, LDC from Sub Registrar, IV Nand Nagari, Delhi as PW3 deposed that today he has sent by Ld. Sub RegistrarIV to produce the records of the will dt. 16.07.97 of Smt Taro Devi W/o Sh. Rehatu Lal. Witness has brought the record of the above will and the said will as per record is registered at registration No. 33271, Book No. 3, Volume No. 1913 dt. 17.07.1997. The certified copy of the above will already Ex. PW 1/ 2.
Petitioner also summoned and examined the witness i.e. Sh. Rahul Jain, office Superintendent, Department of Law Justice and Legislative affairs as PW4 appeared with the summoned record i.e. the record of Sh. Dasa Ram Advocate, Notary Public, GNCTD. Witness further stated that as per record, Sh. Dasa Ram, Advocate, BA, LLB was appointed by Govt. of NCT of Delhi( department of law) as notary public on 22.04.1985. Copy of the appointment of Sh. Dasa Ram as notary public Ex. PW 4/A which bears signature of Dasa Ram at pt. A. His appointment was renewed for three years with effect from 22.04.1988 to 17.05.1991. It was further renewed for three years from 22.04.1991 to 21.04.94. Thereafter the appointment was not renewed. His certificate was cancelled by notification No. F.3/06/Lit/02/437 dt. 17.04.2003 Ex. PW 4/ B. Petitioner also examined other witness i.e. Sh. V. K. Bhardwaj as CS No. 476237/15 5/19 Kamal Jindal V/s Sushil Kumar Aggarwal & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
PW5 by way of affidavit Ex. PW 5/ A. PE was thereafter closed.
7. Defendant No. 1 filed his affidavit by way of evidence Ex. DW 1/ 1 and was cross examined till 20.08.2015 at length by the ld. Counsel for plaintiff. Thereafter the defendant No. 1 failed to appear and the reports on the court notice received that he has expired. The application U/o 22 Rule 4 CPC filed by plaintiff to bring on record the LRs of defendant No. 1 which was dismissed as withdrawn vide order dt. 23.08.2017. The defendant No. 2 was also proceeded ex parte vide order dt. 29.03.2017.
Another witness Sh. Shiv Shankar Gupta was examined as DW2 vide affidavit Ex. DW 2/ A who also deposed regarding the compromise deed dt. 03.06.2002 signed by father of plaintiff Radhey Shyam and Smt. Tara Devi already Ex. DW 1/A and will Ex. DW 1/B executed by Tara Devi in favour of defendant No. 1. Other attesting witness of the will Sh. Jasbir Singh was examined as DW3 by way of affidavit Ex. DW 3/ A who also deposed regarding the execution of will dt. 12.07.02 Ex. DW 1/ B executed by Smt. Tara Devi in favour of defendant No. 1. DE was thereafter closed.
8. None appeared for the defendants to address the final arguments despite opportunities. I have heard Sh. Sharvan Dev, Advocate Ld. counsel for the plaintiff at length and gone through the relevant materials on record. I have also considered the relevant provisions of law and gone through the written arguments alongwith judgments reported as :
(i) RSA No. 92/2009 titled Rajesh V/s Munni Devi decided on 10.03.2011.
(ii) AIR 1962 Assam 106.
(iii) 158( 2009) DLT 631 (DB)
CS No. 476237/15 6/19
Kamal Jindal V/s Sushil Kumar Aggarwal & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
(iv) AIR 1992 P & H 252
(v) Civil Revision Application No. 33/2010 title Authorized
Officer V/s Shri Sagar decided on 11.02.2011 of Bombay High Court.
(vi) CS ( OS) No. 358/09 title Sadanand Properties Pvt. Ltd.
& Ors V/s Punjab National Bank & Ors. decided on 06.02.2015 of Hon'ble High Court of Delhi.
filed on behalf of plaintiff in support of contentions.
9. I have given my thoughtful consideration to the submissions made on behalf of the plaintiff. My findings issuewise are as under : Issue No. II & V:
(ii) Whether Late Smt. Tara Devi executed any valid will dt. 16.07.97( registered on 17.07.97) in favour of plaintiff in respect of first floor of property bearing No. 1/ 4847, Gali No. 11, Balbir Nagar Extn., Shahdara, Delhi32? OPP
(v) Whether Late Smt. Tara Devi executed any valid will dt. 12.07.02 in favour of defendant No. 1 ? OPD1
10. The onus to prove both these issues remained on the parties. As both these issues are inter related, these issues are examined and decided together.
It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of CS No. 476237/15 7/19 Kamal Jindal V/s Sushil Kumar Aggarwal & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
issues emerges out of that. Being a civil suit for partition, this suit is to be decided on the basis of preponderance of probabilities. As held in Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, "A civil case is decided on balance of probabilities. In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability"
would serve the purpose for obtaining a decree".
11. Section 101 of the Evidence Act, 1872 defines " burden of proof"
and laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. In view of Section 103 of CS No. 476237/15 8/19 Kamal Jindal V/s Sushil Kumar Aggarwal & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lied on any particular person. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings. As held in judgment reported as Uttam Chand Kothari Vs. Gauri Shankar Jalan, AIR 2007 Gau. 20, admission in the written statement cannot be allowed to be withdrawn.
12. The ownership of Smt. Tara Devi is not denied as both the parties are claiming their right, title or interest through her only. The parties led their evidence as per the averments in the pleadings. As noted, Section 101 of the Evidence Act, 1872 defines " burden of proof" and laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. It is observed that there is no admission in the written statement regarding the case of the plaintiff rather the claim is denied by defendants. In view of the legal position of the Evidence Act, it is for the plaintiff to prove that late Smt. Tara Devi has executed the will dt. 16.07.1997 in favour of plaintiff and therefore after death, the plaintiff has become the CS No. 476237/15 9/19 Kamal Jindal V/s Sushil Kumar Aggarwal & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
owner of the first floor i.e. suit property and is entitled for relief as prayed in the suit. Admittedly the possession of the suit property has been taken by the bank under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and it has been put under auction. It is further relevant to note that the concerned bank is not a party before the court. The onus to prove the case was upon the plaintiff regarding entitlement for the relief prayed in the suit.
13. Section 63 of the Indian Succession Act lays down the mode and manner of execution of an unprivileged Will. Section 68 of the Indian Evidence Act postulates the mode and manner of proof of execution of documents which is required by law to be attested. The relevant provisions are reproduced below for reference: Section 63 of Indian Succession Act1925 Execution of unprivileged wills Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged or a mariner at sea, shall execute his will according to the following rules:
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark or the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence CS No. 476237/15 10/19 Kamal Jindal V/s Sushil Kumar Aggarwal & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature or such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
Section 68 of the Indian Evidence Act, 1872 Proof of execution of document required by law to be attested If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been 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.
( Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provision of the Indian Registration Act, 1908 ( 16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.)
14. The aforesaid provisions in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the Court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Indian Evidence CS No. 476237/15 11/19 Kamal Jindal V/s Sushil Kumar Aggarwal & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.
15. For proving the Will, the propounder has to show that the Will was signed by the testator; that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But there my be cases in which the execution of the Will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator of the feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the Will are not the result of the testator's free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the Will is accepted. Again in cases where the propounder has himself taken a prominent part in the execution of the Will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the Court that has to be satisfied, as such the nature and quality of proof must be commensurate CS No. 476237/15 12/19 Kamal Jindal V/s Sushil Kumar Aggarwal & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain. Reliance is placed on H. Venkatachala Lyengar V. B. N. Thimmajamma, (959) Supp. 1 SCR 246 and Rani Purnima Devi v. Kumar Khagendra Narayan Dev, (1962) 3 SCR 195.
16. The law is well settled that the conscience of the Court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of free volition of the executants who had voluntarily executed the same after noting and accepting the contents of the Will. Execution of Will is a solemn act of the executants who must own up the recitals in the instrument and there must be clear, evidence that he puts his signature in a document after knowing fully its contents. The executant of a document must, after fully understanding the contents and tenor of the document put his signature or affix his thumb impression. In other words, the execution of the document does not mean merely signing but signing by way of assent to the terms of contract of alienation embodied in the document.
17. It is well settled that when genuineness of the will in question, apart from execution and attestation, it is also the duty of the person seeking declaration of the validity of the will to dispel suspicious circumstances existing, if any. ( Babu Singh & Ors. V. Ram Sahai @ Ram Singh, AIR 2008 SC 2485). As held in IV (1998) SLT 263, the propounder of the Will has to show that the Will was the product of free volition of executant who had voluntarily executed the same after knowing and understanding the CS No. 476237/15 13/19 Kamal Jindal V/s Sushil Kumar Aggarwal & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
contents of the Will.
18. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharge. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on caveator. Reference is made Benga Behera and Anr. V. Braja Kisore Nanda and Ors., VI ( 2007) SLT 252= III (2007) CLT 65 (SC)= MANU/SC/7673/2007, Madhukar D. Shende V. Tarabai Shedage, I (2002) SLT 137 = I (2002) CLT 81 (SC)= MANU /SC/0016/2002: and Sridevi and Ors. v. Jayaraja Shetty and Ors., II (2005) SLT 38 = I (2005) CLT 162 (SC) = (2005) 8 SCC 784.
19. The brief and relevant facts for filing of this suit and the defence of the defendants have been mentioned at the outset. Plaintiff claimed that he resided with Smt Tara Devi and was dispossessed from the suit property in the year 2004. Not even a single documents or proof has been filed by the plaintiff regarding residence with Smt. Tara Devi in the suit property at all due to the reason best known to the plaintiff. The plaintiff has not filed even the original will as well and the testimony of plaintiff regarding the theft of said will by the defendants is contradictory in view of his testimony CS No. 476237/15 14/19 Kamal Jindal V/s Sushil Kumar Aggarwal & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
during cross examination. There also appears to be dispute regarding the relationship of the plaintiff with Smt. Tara Devi as well as his father Sh. Radhey Shyam whom the plaintiff do not consider as his father. From the records, it is proved that Sh. Radhey Shyam was the father of the plaintiff who was residing in the ground floor of the aforesaid property and had vacated it in view of compromise deed between Smt. Tara Devi and Sh. Radhey Sham Ex. DW 1/A. The testimony of plaintiff regarding the execution of the will also appears to be totally shattered during his cross examination as he failed to depose regarding the materials question with respect to will; when he came to know regarding the will ; when it was given to him etc. On the one hand, the plaintiff claimed that he was most closed to Smt. Tara Devi and resided with her only but during cross examination failed to answer regarding other family members of Smt. Tara Devi which itself caste shadow on the case of the petitioner. The plaintiff claimed that original will was stolen by defendant No 1 and 2 but no such steps was taken by the plaintiff during the proceedings to produce the original will on records nor any notice was issued to the defendants and therefore the defence of the defendants that such will was cancelled and torn by Smt Tara Devi and subsequent execution of will Ex. DW 1/B in favour of the defendant No. 1 is substantiated. Interestingly the plaintiff did not make any complaint regarding theft of such will and no such complaint is placed on record. The plaintiff even refused to identify the signature of his father on the compromise deed Ex. DW 1/A which substantiate the defence of the defendants regarding the father of the plaintiff being licensee of Tara Devi resided on the ground floor and vacated it vide Compromise CS No. 476237/15 15/19 Kamal Jindal V/s Sushil Kumar Aggarwal & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
deed Ex. DW 1/A. The testimony of the PW2 who is produced as attesting witness of the registered will dt. 16.07.1997 also appears to be contradictory as he failed to answer the material questions regarding Smt. Tara Devi. The testimony of DW2 and DW3 examined on behalf of defendant No. 1 regarding the execution of subsequent will Ex. DW 1/ B by Smt. Tara Devi remained unimpeached or uncontradicatory in one way or other.
20. It appears that the will dated 16.07.1997 relied by the plaintiff is not proved in accordance with the provisions of law and Indian Evidence Act. The plaintiff accordingly failed to prove that Late Smt. Tara Devi executed the Will dated 16.07.1997 and bequeathed the suit property to him. In disputedly, a Will is to be attested by two witnesses in terms Section 68 of the Indian Evidence Act. Section 68 mandates proof by attesting witnesses of not merely of execution but also attestation by two witnesses. That is to say, not only the execution of the will must be proved but actual execution must be attested by at least two witnesses.
It is noted that in this case, the plaintiff not merely failed in proving the execution of the Will, he also failed in proving the attestation of the same. The Will accordingly relied by the plaintiff cannot be held to be proved in view of Section 68 of the Indian Evidence Act. The ratio of the judgment reported as 211 (2014) DLT 448 is squarely applicable in the facts and circumstances of this case. Keeping in view the aforementioned circumstances and discussions, I am of the considered view that plaintiff has failed to prove the case on the basis of preponderance of probabilities and failed to discharge the onus. The ratio of judgment reported as 1982 (1) CS No. 476237/15 16/19 Kamal Jindal V/s Sushil Kumar Aggarwal & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
RCR 637 is squarely applicable in the facts of this case. Further, as held in Subhra Mukharjee Vs. Bharat Coking Coal Ltd., AIR 2000 SC 1203, the party which makes the allegation must prove it. The plaintiff failed to produce any oral or documentary evidence to prove the contentions. Undisputedly, the burden lies on the plaintiff to establish such facts but he failed to discharge the onus and prove the issues. Issue No. II is decided against the plaintiff and in favour of defendants whereas issue No. V is decided in favour of defendants and against the plaintiff. Issue No. I, III & IV :
(i) Whether the plaintiff is entitled to relief of declaration, possession, mandatory injunction and permanent injunction in relation to first floor of property bearing No. 1/ 4847, Gali No. 11, Balbir Nagar Extn., Shahdara, Delhi32? OPP
(iii) Whether the plaintiff is entitled to mesne profits alongwith interest at the rate of 18 % PA as prayed for? OPP
(iv) Whether the plaintiff is entitled to recovery of mesne profits between January 2007 to December 2009 at the rate of Rs. 3,000/ per month alongwith interest at the rate of 18 % PA from the date of filing of suit till realization ? OPP
21. The onus to prove these issues was upon the plaintiff. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of " proved", " disproved" and " not CS No. 476237/15 17/19 Kamal Jindal V/s Sushil Kumar Aggarwal & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title ( Para 28,29 and 33).
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this court the plaintiff had succeeded in shifting the onus on the defendant and, therefore, the burden of proof which lay on the plaintiff had stood discharged.
The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
As discussed above, the plaintiff failed to prove the will executed by Smt. Tara Devi in his favour dt. 16.07.1997 and therefore failed to prove CS No. 476237/15 18/19 Kamal Jindal V/s Sushil Kumar Aggarwal & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
the ownership in respect of the suit property. As the plaintiff is not the owner of the suit property, he is not entitled for the relief of possession, declaration, mense profits and injunction as prayed in the suit.
22. In view of the aforesaid discussions and referred law, this Court is of the considered view that the plaintiff failed to prove the execution of the Will in view of Section 68 of the Indian Evidence Act. The plaintiff cannot be considered having right, title or interest in the suit property better than the defendants and the Will relied by the plaintiff is neither helpful nor sufficient to deny the claim of the defendants. The suit of the plaintiff is liable to be dismissed and the issue No. 1, III & IV are accordingly decided against the plaintiff and in favour of defendants. Relief: In view of the above said discussions and findings, this court is of the considered opinion that plaintiff is not entitled for the relief as prayed in the suit. The suit of the plaintiff is therefore dismissed with cost. The decree sheet be prepared accordingly.
File be consigned to record room.
Announced in open Court on this 12th day of December, 2017 G. N. Pandey Addl. District Judge (NE) Karkardooma Courts, Delhi.
CS No. 476237/15 19/19Kamal Jindal V/s Sushil Kumar Aggarwal & Ors.