Sh. Raj Kumar Jain vs Smt. Nirmala Jain on 25 October, 2017

[Cites 25, Cited by 0]

Delhi District Court

Sh. Raj Kumar Jain vs Smt. Nirmala Jain on 25 October, 2017

           IN THE COURT OF ADDITIONAL DISTRICT JUDGE 
        SHAHDARA DISTRICT,  KARKARDOOMA COURTS: DELHI.


                                      Presided by :SH. RAVINDER SINGH


CS No. 1845/2016 (Old no. 494/2009)
Unique I.D No. 02402C00178520016

Sh. Raj Kumar Jain 
Son of Sh. Rati Ram Jain 
R/o Rear Portion of A102, 
Vivek Vihar, PhaseI, 
Delhi110095.
                                                                                                                ...............Plaintiff

                                                                     Versus 

1. Smt. Nirmala Jain
W/o late  Sh. A.  R.  Jain 

2. Sh. Anurag Jain
Son of late Sh.A. R. Jain

Both R/o C35, UpperGround Floor, 
Surya Nagar, Ghaziabad, U.P.  

3. Kartik Buddiraja
Son of Sh. C. M. Buddiraja
R/o C187, Anand Vihar, 
Delhi110092.




CS no. 1845/2016 (Old no. 494/2009)                               Raj Kumar Jain Vs Nirmala Jain & Ors 
CS No. CS No. 2599/2016 (Old no. 2144/2009)             Kartik Budhiraja Vs Raj Kumar Jain, 
PC no. 96/2016 (Old no. 14/2009)                                  Raj Kumar Jain Vs Nirmala Jain  & Ors                    Page no. 2 / 74
 4. Sh. Vishal Nagpal
S/o late Sh. Satpal Nagpal
R/o 14B, DDA Flats, BBlock, 
Vivek Vihar PhaseII, Delhi110095.
                                                                                                                ........ Defendants


                                                                  Date of Institution :  17/03/2009
                                                                  Order reserved on :  14/10/2017
                                                                  Order passed on    :  25/10/2017




CS No. 2599/2016 (Old no. 2144/2009)
Unique I.D No. 02402C0017062016

1. Kartik Buddiraja
Son of Sh. C. M. Buddiraja
R/o C187, Anand Vihar, 
Delhi110092.

2. Sh. Vishal Nagpal
S/o late Sh. Satpal Nagpal
R/o 14B, DDA Flats, BBlock, 
Vivek Vihar PhaseII, Delhi110095.
                                                                                                                ...............Plaintiff


                                                                     Versus 

Sh. Raj Kumar Jain 
Son of Sh. Rati Ram Jain 
R/o Rear Portion of A102, 
Vivek Vihar, PhaseI, 
Delhi110095.

CS no. 1845/2016 (Old no. 494/2009)                               Raj Kumar Jain Vs Nirmala Jain & Ors 
CS No. CS No. 2599/2016 (Old no. 2144/2009)             Kartik Budhiraja Vs Raj Kumar Jain, 
PC no. 96/2016 (Old no. 14/2009)                                  Raj Kumar Jain Vs Nirmala Jain  & Ors                    Page no. 2 / 74
                                                                                                                   ........ Defendants

                                                                  Date of Institution :  13/09/2009
                                                                  Order reserved on :  14/10/2017
                                                                  Order passed on    :  25/10/2017




PC no. 96/2016 (Old no. 14/2009)
Unique I.D No. 02402C0013992016

Sh. Raj Kumar Jain 
Son of Sh. Rati Ram Jain 
R/o A102, 
Vivek Vihar, Shahdara,
Delhi110095.
                                                                                                                ...............Petitioner

                                                                     Versus 


1. Smt. Nirmala Jain
W/o late  Sh. Anant Ram Jain 
R/o A102, Vivek Vihar, 
Phase No. 1, Delhi. 
At present, Ground 4,  C35, 
Suryanagar, Ghaziabad, 
UP. 

2. Sh. Anurag Jain
Son of late Sh.Anant Ram Jain
R/o A102, Vivek Vihar, 
Phase No. 1, Delhi. 




CS no. 1845/2016 (Old no. 494/2009)                               Raj Kumar Jain Vs Nirmala Jain & Ors 
CS No. CS No. 2599/2016 (Old no. 2144/2009)             Kartik Budhiraja Vs Raj Kumar Jain, 
PC no. 96/2016 (Old no. 14/2009)                                  Raj Kumar Jain Vs Nirmala Jain  & Ors                     Page no. 2 / 74
 At present 
Vaish Cooperative Adarsh Bank, 
Netaji Subhash marg, Darya Ganj, Delhi. 

3. Smt.Anuradha Jain
Wife of Sh. Anil Kumar Jain 
D/o Sh. A. R. Jain 
R/o RZ43/4, Gali no. 5, Raj Nagar1, 
Palam Colony, New Delhi45.

4. Smt. Swati Jain
Wife of Sh. Sachin Jain 
D/o late Sh. Anant Ram Jain 
R/o 846, Vivekanand Nagar, 
Ghaziabad, UP. 

5. Sh. Rati Ram jain
Son of late Sh. Tara Chand Jain, 
R/o Village Kutesra, Distt. Muzaffar Nagar, UP. 
                                                                                                             ........ Respondents.

                                                                  Date of Institution :  21/04/2009
                                                                  Order reserved on :  14/10/2017
                                                                  Order passed on    :  25/10/2017




                                                               JUDGMENT

1. Vide this common judgment, I shall dispose of suit bearing CS no. 1845/2016 (old no. 494/2009) titled as "Sh. Raj Kumar Jain V/s. Smt. Nirmala CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 Jain and ors." and suit bearing CS no. 2599/2016 (old no. 2144/2009) titled as "Sh. Kartik Budhiraja V/s. Sh. Raj Kumar Jain" as well as a probate petition bearing PC no. 96/2016 (old no. 14/2009). titled as "Sh. Raj Kumar Jain V/s. Smt. Nirmala Jain and ors." The aforesaid suits and probate petition are hereinafter referred to by their old numbers as same are commonly used in various orders during trial.

2. Sh. Raj Kumar Jain (herein after referred as plaintiff) filed his suit (494/2009) initially for permanent injunction against Smt. Nirmala Jain, Sh. Anurag Jain, Sh. Kartik Buddiraja (herein after referred as D1, D2 and D3 respectively) for restraining defendants from interfering with his possession of the portion shown by red letter B with a passage shown by green colour from the main gate for the entry of to the portion B of House no. A102, Vivek Vihar, Shahdara, Delhi (herein after referred as "suit property"). Subsequently, plaintiff filed an application under Order VI Rule 17 CPC to amend the suit. The said application was allowed vide order dated 24/11/2010 and accordingly plaintiff amended his suit for declaration and permanent injunction praying therein to declare him the sole and exclusive owner of the suit property on the basis of will executed by his brother Sh. A. R. Jain the late husband of D1 in CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 his favour on 17/02/1992 and for injunction restraining defendants from interfering with his possession in the suit property.

3. Sh. Kartik Budhiraja (D3 in suit no. 494/2009) filed his suit (2144/2009) for possession and mesne profit against Sh. Raj Kumar Jain (plaintiff in suit 494/2009) alleging therein that wife of Sh. A. R. Jain namely Smt. Nirmala Jain (D1) sold him the plot admeasuring 257.79 sq. meter or 308.33 sq. yds. bearing no. A102, Vivek Vihar, Delhi (herein after referred as "entire property") vide sale deed dated 02/02/2009. D3 claimed that suit property which is part of entire property is in possession of Sh. Raj Kumar Jain hence he prayed for recovery of possession of the suit property and for recovery of Rs. Two lacs towards illegal occupational charge and for damages.

4. It is pertinent that one Sh. Vishal Nagpal moved two separate applications under Order XXII Rule 10 CPC r/w Order I Rule 10 CPC to implead him as a plaintiff in Suit no. 2144/2009 and as a defendant in suit no. 494/2009 claiming that he has purchased the entire property from D3. The aforesaid applications of Sh. Vishal Nagpal were allowed in both the suits vide order dated 20/02/2015 and accordingly he is impleaded as defendant no. 4 in CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 CS no. 494/2009 (herein after referred as "D4") and plaintiff in suit no. 2144/2009 (herein after referred as "D4/Pf2").

5. Further Sh. Raj Kumar Jain (plaintiff) also filed a probate petition bearing no. PC 14/2009 against Smt. Nirmala Jain, Sh. Anurga Jain, Smt. Anuradha Jain, Smt. Swati jain and Sh. Rati Ram Jain claiming that his late brother Sh. A. R. Jain executed a Will in his favour qua suit property on 17/02/1992. The said probate petition is contested by respondents Smt. Nirmala Jain (D1), Sh. Anurag Jain(D2) and Smt. Swati Jain (R4) however respondent Smt. Anuradha Jain (R3) has not appeared inspite of service of notice, whereas respondent Sh. Rati Ram Jain (R5) supported the probate petition.

Pleadings qua suit bearing no. 494/2009 A. The facts set out by the plaintiff in his plaint are that one Sh. J.D. Kapoor, the owner of entire property executed a Will during his lifetime in favour of his brother namely Sh. A.R. Jain who got probated the Will vide order dated 05/08/1980 and therefore Sh. A.R. Jain became the sole owner of the entire property. Plaintiff claimed that his brother Sh. A. R. CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 Jain executed a Will in his favour qua suit property on 17/02/1992 hence he came into the possession of suit property and he constructed a 2 storey building thereon and started living there with his family. Plaintiff alleged that he came to know that D-1 executed a sale deed in favour of D-3 qua entire property on 02/02/2009. Plaintiff alleged that in the sale deed dated 02/02/2009 it has mentioned that vendor has given physical vacant possession of the front portion of 200 sq. yds. however remaining portion i.e. suit property is shown in his (plaintiff) possession. Plaintiff alleged that D-1 has no right to sell the suit property hence sale deed dated 02/02/20009 in respect of suit property is null and void. Accordingly plaintiff filed suit for declaration declaring himself as sole and exclusive owner of the suit property and also for injunction restraining the defendants not to interfere in his possession of the suit property.

B. D-1 & D-2 filed their joint written statement which has been adopted by them to the amended plaint also vide statement made by their counsel on 21/03/2011. D-1 & D-2 in their joint written statement claimed that plaintiff is trying to stake claim to the suit property on the strength of a Will dated 17/02/1992 which has allegedly being made in his favour by the husband of D-1 and father of D-2 Sh. A. R. Jain, who expired on 21/01/1995. D-1 & D-2 claimed that the alleged Will is forged and fabricated document and plaintiff is trying to probate the Will after lapse of 15 years so it is barred by latches and limitation. Further they claimed that plaintiff concealed the Will reasons best known to him. D-1 & D-2 also claimed that D-1 never attested the alleged Will and she CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 being owner of the entire property sold the same. D-1 & D-2 claimed that D-1 purchased the entire property from Sh. J.D. Kapoor vide agreement, receipt and GPA dated 01/11/1974 which were registered on 12/11/1974. D-1 and D-2 also claimed that Sh. J.D. Kapoor gave affidavit in favour of D-1 on 08/11/1974. Hence deceased Sh. A.R. Jain had no right to make any Will in favour of anyone qua suit property which she has transferred with the knowledge and information of the plaintiff vide instrument dated 02/02/2009. Accordingly, they prayed for dismissal of the suit.

C. Plaintiff filed replication to the written statement of D-1 and D-2 wherein he claimed that Will of deceased can further be proved from the fact that the deceased simultaneously executed a duly registered power of attorney dated 17/02/1992 in his favour qua suit property with right to construct upon suit property. Plaintiff denied that the owner Sh. J.D. Kapoor sold the entire property to D-1. Plaintiff claimed that the total consideration amount fixed under agreement dated 01/11/1974 was Rs.1,22,000/- payable to D-1 after construction was over and a sum of Rs.30,000/- has been shown as security amount. Plaintiff claimed that his brother Sh. A.R. Jain was only earning member in family and he had caused the construction agreement to be signed in favour of his wife while getting the Will done in his favour. Further plaintiff denied the other contents of written statement and reiterated the averments made in plaint.

D. D-3 filed the written statement to the amended plaint stating CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 therein that Sh. A.R. Jain obtained the probate by misrepresentation and playing fraud without disclosing the true facts as on the day of execution of alleged Will i.e. 06/11/1974 Sh. J. D. Kapoor was not in possession of entire property as he had sold the same against consideration and delivered its physical vacant possession to D-1 on 01/11/1974. Further D-3 claimed that probate granted by the court of Ld. District Judge on 05/08/1980 is not enforceable as title of the property is not the subject matter for adjudication in probate proceedings. Further D-3 claimed that plaintiff has not placed the site plan of the suit property exist as on today. The construction raised on suit property is unauthorized and same had already booked but MCD has not taken any action. Further D-3 claimed that relief of declaration is barred under Order II Rule 2 CPC as same relief was available with plaintiff when he filed his suit for injunction. On merits D-3 claimed that leasehold rights of the entire property was granted by DDA in faovur of Sh. J.D. Kapoor vide registered lease deed dated 25/01/1968 but Sh. J.D. Kapoor failed to develop the same accordingly on 01/11/1974 on payment of consideration amount of Rs.30,000/-, he transferred all his rights in favour of D-1 and he also delivered the physical possession of the entire property. D-3 alleged that D-1 constructed the house from her own source and Sh. J.D. Kapoor has not asked to vacate the house consequently, D-1 became absolute owner and in possession of the entire property. Further D-3 denied that Sh. A.R. Jain executed a Will in favour of the plaintiff. D-3 claimed that possession of the plaintiff in suit property as claimed by him is unauthorized and for that he is initiating appropriate action against him.

CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 E. Plaintiff filed replication to the written statement of D-3 wherein he claimed that site plan of suit property has already been filed. He further stated that the construction is not unauthorized. Further plaintiff claimed hat he is paying all charges i.e. electricity, water and house tax qua suit property to respective authorities. Further he denied the other contents of written statement and reiterated the averments made in the plaint.

Pleadings qua Suit no. 2144/2009 A. The facts set out in the plaint by Sh. Kartik Budhiraja (D-3 in suit no. 494/2009) are that the leasehold rights of the entire property measuring 257.79 sq. meter or 308.33 sq. yads was granted by DDA in favour of Sh. J.D. Kapoor vide registered lease deed dated 25/01/1968. D-3 alleged that Sh. J.D. Kapoor failed to develop the entire property accordingly on 01/11/1974 he transferred all his rights in the entire property in favour of D-1 by delivering the physical possession of same on receiving of consideration amount of Rs.30,000/-. Sh. J.D. Kapoor executed registered agreement, GPA and receipt in favour of D-1 so that D-1 obtain sanction of plan for raising the construction. Further D-3 alleged that D-1 constructed the house from her own source which was in the knowledge of her husband Sh. A. R. Jain and Sh. J. D. Kapoor never asked her to vacate the house so D-1 became the absolute owner and in possession of the entire built up property. Further D-3 claimed CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 that the alleged Will executed by Sh. J.D. Kapoor in favour of Sh. A.R. Jain on 06/11/1974 has no value. Further D-3 alleged that D-1 applied for conversion of leasehold right to freehold on the basis of documents executed by Sh. J.D. Kapoor in her favour and on deposit of necessary charges, DDA was pleased to execute registered conveyance deed in favour of D-1 on 19/11/2008. Further D-3 allged that D-1 thereafter sold all her rights, title and interest of the entire property by executing sale deed in his favour on 02/02/2009 and she also delivered physical possession of the portion which was in her possession and she also delivered symbolic possession of the suit property which is in possession of the plaintiff. Further D-3 alleged that plaintiff is in unauthorised possession of the suit property as despite demand he failed to delivery the possession of same hence he has every right to sue defendant to evict from the suit property and for recovery of damages for use and occupation of suit property. Accordingly, D-3 filed suit for recovery of possession of suit property and for recovery of Rs. Two Lacs towards damages @ Rs.20,000/- per month w.e.f. 02/02/2009 till November 2009 as well as for pendentelite and future occupation charges/damages @ Rs.20,000/- per month.

B. Defendant Sh. Raj Kumar Jain (plaintiff in suit no. 494/2009) contested the suit by filing written statement stating therein that Sh. A.R. Jain has not played any fraud with court in obtaining the letter of administration vide order dated 05/05/1980. The Wife of Sh. A.R. Jain, i.e. D-1 herself appeared as the witness in probate case as PW-6 and deposed in favour of Sh. A. R. Jain. Further legal heirs of Sh. J.D. CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 Kapoor also gave no objection in favour of Sh. A.R. Jain. Plaintiff further alleged that the instant suit is completely misconceived and after thought to his suit filed by him. Further plaintiff alleged that Sh. A.R. Jain became sole owner of the entire property on basis of Judgement in probate caser dated 05/05/1980 and he executed a Will and a registered power of attorney in his favour qua suit property on 17/02/1992. Plaintiff alleged that Smt. Nirmala Jain/D-1 had every knowledge of documents executed in his favour by her husband Sh. A.R. Jain so the alleged sale deed made by her in favour of D-3 is illegal. Further plaintiff alleged that D-3 is engaged in property business and he is well aware of the fact that possession of the suit property is with him but inspite of that, he choose to purchase the whole property without even verifying the title from him qua suit property. On merits plaintiff denied that Sh. J.D. Kapoor transferred all rights in favour of Smt. Nirmala Jain/D-1 for consideration of Rs.30,000/-. Further plaintiff claimed that agreement executed in favour of Smt. Nirmala Jain/D-1 was construction agreement and Rs.30,000/- was taken by Sh. J. D. Kapoor as security deposit so D- 1 was not the owner of the property in term of agreement dated 01/11/1974 registered on 12/11/1974. Plaintiff claimed that Smt. Nirmala Jain/ D-1 had not carried out any construction in the front portion of entire property and the amount of Rs.30,000/- was paid by Sh. A.R. Jain. Further plaintiff alleged that Smt. Nirmala Jain did not deliberately disclose before DDA that there is a Will executed by Sh. J.D. Kapoor in favour of Sh. A.R. Jain and had these facts been disclosed before DDA at the time of application for conversion, DDA would not have allowed such conversion and conveyance deed would not be executed. Plaintiff CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 alleged that D-3 as well as Smt. Nirmala Jain/D-1 was fully aware on the date of execution of the sale deed dated 02/02/2009 that title of the suit property is with him and accordingly D-3 is not entitled for possession of suit property. Accordingly plaintiff prayed for dismissal of the suit of D- 3 with cost.

C. D-3 filed replication to the written statement wherein he denied the contents of written statement and reiterated the averments made in plaint.

Pleadings qua probate petition no. 14/2009 A. The facts set out in the petition by the petitioner Sh. Raj Kumar Jain (plaintiff in suit no. 494/2009) are that he is real younger brother of late Sh. A.R. Jain, who executed a Will in his favour on 17/02/1992 at Ghaziabad in respect of scheduled property as shown by letter B in the Map i.e. suit property. Plaintiff alleged that Sh. A.R. Jain died on 21/01/1995. The opposite party are the only real relative of deceased Sh. A.R. Jain. Plaintiff alleged that no application has been made for grant of probate or letter of administration regarding Will dated 17/02/1992 so there is no legal impediment in granting letter of administration in his favour.

B. D-1, D-2 and Smt. Swati Jain (R-4) contested the petition by filing their joint reply stating therein that plaintiff is trying to stake claim CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 to the suit property on the strength of a Will which has been allegedly made in his favour by late Sh. A.R. Jain, the father of D-1 & R-4 and husband of D-1. They claimed that late Sh. A.R. Jain had not left any Will either in favour of plaintiff or anyone else and the alleged Will is forged and fabricate document. Further, they alleged that petition is barred by latches and limitation as plaintiff filed the instant petition same after lapse of 15 years. Further they claimed that D-1 purchased the entire property from one Sh. J.D. Kapoor on 01/11/974 and therefore deceased had no right to make any Will in favour of anyone. Further they claimed that D-1 never attested the alleged Will. Accordingly they prayed for dismissal of the petition.

C. Plaintiff filed replication to the reply of D-1, D-2 & R-4, wherein he denied the contents of reply and reiterated the averments made in the petition.

D. Smt. Anuradha Jain (R-3) failed to file the objection to the petition hence her right to file reply to the petition was closed vide order dated 24/09/2010.

E. Sh. Rati Ram Jain (R-5) filed separate reply stating therein that he is the father of late Sh. A.R. Jain and Sh. R.K. Jain the plaintiff. He claimed that his son late Sh. A.R. Jain had made and executed his last Will and testament in respect of his property on 17/02/1992 and appointed the plaintiff as the executor of the Will. R-5 claimed that he is witness to the Will and he put his signature on the Will in presence of D- CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 1 and Sh. Rajender Kumar Aggarwal. R-5 claimed that Sh. A.R. Jain expired 21/01/1995.

6. It is pertinent that plaintiff filed an application under Section 10 r/w Section 151 CPC in suit no. 2144/2009 for stay of proceedings of same but Hon'ble High Court (as then case was there) vide its order dated 25/04/2011 consolidated the plaintiff suit no.494/2009 and D3's suit no.2144/2009 and directed the parties to record the evidence in suit no.494/2009 and ordered for listing both suit together for framing of issues.

7. Thereafter, vide order dated 08/08/2011 following issues were framed in both the suits are as under:

1. Whether late Shri A R. Jain son of Shri Rati Ram on the basis of the registered Will dated 6.11.1974 and probate dated 29.9.1980 in probate case No.95 of 79 was the owner of property No.A102, Vivek Vihar, Delhi110095 admeasuring 308.33 Sq.Yards? OPP

2. Whether the construction on his portion of the property admeasuring 108.33 Sq. Yards was raised by the plaintiff with the consent, permission and knowledge of defendants No. 1 & 2 and the construction in possession of the plaintiff is unauthorized and if so what is the effect of the same? OPP

3. Whether defendant No. 1 wife of late Shri A.R. Jain in her own rights had any right, interest or claim in the suit CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 property No. 102, Vivek Vihar, Delhi95? OPD

4. Whether the defendant No. 1 was legally competent to have got the property No. 102, Vivek Vihar, Delhi95 converted into freehold in her name on the basis of the documents allegedly claimed to have been executed in her favour? OPD

5. Whether the defendant No. 1 had any competence powers and title to execute the sale deed dated 2.2.2009 as regards the entire property No. A102, Vivek Vihar, Delhi95 in favour of defendant No.3? OPD

6. Whether the plaintiff's claim for declaration as claimed in the suit is barred in view of Test. Case No. 14/2009 filed by the plaintiff? OPD

7. Whether the plaintiff is entitled to the injunction as claimed in the suit? OPP

8. Whether the defendant No. 3 is entitled to the relief of recovery of possession of the suit property against the plaintiff as is subject matter of Suit No.2144 of 2009? OPD3

9. Whether the defendant No. 3 is entitled to mesne profits/damages if any from the plaintiff as claimed in the suit No. 2144/2009. OPD3

10. Relief

8. It is pertinent that plaintiff filed an application under Order XIV Rule 5 CPC in suit no. 494/2009 for correction of issue no. 2 and also for framing of additional issue. The said application was allowed vide order dated 30/09/2011 and accordingly issue no. 2 was corrected and an additional issue no. 2A was CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 framed as under :

"2. Whether the construction on his portion of the property admeasuring 108.33 Sq. Yards was raised by the plaintiff with the consent, permission and knowledge of defendants No. 1 & 2 and the construction in possession of the plaintiff is authorized and if so what is the effect of the same? OPP"

"2A. Whether late Shri A. R. Jain duly executed the Will dated 17.02.1992 in favour of the plaintiff as regards the portionB of the suit property bearing no. A102, Vivek Vihar, Delhi95? If so what is the effect of the same? OPP"

9. Further issues were also framed in probate petition no. 14/2009 vide order dated 08/08/2011. The same are as under:

1. Whether late Shri A. R. Jain duly executed the Will dated 17.2.1992 which is subject matter of this probate case in favour of the petitioner as regards the suit property, which comprises a 108 Sq. Yards built up portion of property No. A 102, Vivek Vihar, Delhi110095 shown red in the site plan? OPP

2. Whether respondent No. 1 was aware of the Will dated 17.2.1992 in favour of the petitioner? OPP

3. Whether the respondent No. 1 was aware of the grant of probate dated 5.8.1980 in case No. 95 of 1979 in favour of late Shri A. R. Jain and appeared in the said proceedings as a witness to the Will dated 6.11.1974? If so its effect? OPP

4. Whether the respondent No. 1 consented, confirmed and acquiescences to the title claimed by late Shri A. R. Jain on the basis of probate dated 5.8.1980? If so its effect? OPP

5. Relief CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74

10. In support of his case, plaintiff examined ten witnesses i.e. he himself as PW1, his father Sh. Rati Ram Jain as PW2, Sh. Arun Kumar Jain as PW3, SI Rajender Singh from PS Vivek Vihar as PW4, Sh. Dharmender Kumar from MCD, Shahdara South Zone as PW5, Sh. Raj Kumar Rana from D.D.A as PW6, Sh. H.R. Nagar, advocate as PW7, Sh. Virender Mohan Gupta as PW 8, Sh. S.K. Verma, advocate as PW9 and Sh. Sanjay Aggarwal as PW10. 10A. PW1 deposed on affidavit Ex. PW1/A (wrongly numbered as Ex. PW2/A). He generally deposed on the same lines of his plaint (Suit no. 494/2009) and his written statement (suit no. 2144/2009). PW1 relied upon Will dated 06/11/1974 in favour of Sh. A. R. Jain Ex. P4, order of Ld. District Judge dated 05/08/1980 granting letter of administration with Will as Ex. P3, Will of Sh. A.R. Jain in his favour dated 17/02/1992 as Ex. PW1/1, GPA in his favour as Ex. PW1/2, conveyance deed of entire property in favour of D1 as Ex. P2, sale deed of entire property executed by D1 in favour of D3 on 02/02/2009 as Ex. P1, his complaint to police on 10/03/2010 as Ex. PW1/3, complaint to DDA as Ex. PW1/4, application for mutation of suit property to MCD as Ex. PW1/5, copy of telephone bill of August 2009 Ex. PW1/6 and CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 water bill for September 2009 Ex. PW1/7, house tax receipt qua suit property in his favour as Ex. PW1/8.

During his cross examination, PW1 identified signature of D1 on will Ex. PW1/D31 (Ex. PW1/D1). He denied the suggestion that D1 had purchased constructed and obtained all the requisites connections in the entire property from her own funds. PW1 admitted hat he did not get any plan sanctioned in his name for construction of entire property. PW1 admitted that he applied for mutation after institution of his case. PW1 deposed that he got water connection by submitting the copy of Will dated 17/02/1992. PW1 deposed that he had not disclosed the Will dated 17/02/1992 to DDA. PW1 deposed that the property was constructed between 1990 to 1995. PW1 denied that consideration amount was paid by Smt. Nirmala Jain to Sh. J.D. Kapoor. 10B. PW2 deposed on affidavit Ex. PW2/A (wrongly numbered as Ex. PW1/A) that his late Son Sh. A.R.Jain, was the owner of entire property on basis of Registered Will dated 06111974. He deposed that it was decided in the family that Sh. A.R. Jain will execute the Will of rear portion of entire property admeasuring 108 sq. yards in favour of his another son Raj Kumar Jain, (Plaintiff) and also executed a GPA, so that plaintiff could construct a CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 separate portion. PW1 also deposed that he alongwith his son Late Sh. A.R. Jain, his wife Smt. Nirmala Jain, plaintiff, Sh. Rajender Kumar Aggarwal and Sh. Arun Kumar Jain reached to Ghaziabad U.P. at the office of Sh. S.K. Verma, Advocate and Sh. H.R. Nagar, advocate at their seat, where on the instruction of his son Sh. A.R. Jain, Advocate Sh. H.R. Nagar drafted the Will bequeathing suit property in favour of plaintiff, thereafter, the said Will (Ex. PW1/1) was typed and it was read over by Sh. A.R. Jain and thereafter Will and site plan were signed by Sh. A.R. Jain in his presence and in the presence of other witness. PW2 identified the signature of Sh. A.R. Jain on Will as well as site plan at point A and his signature at point B. He also deposed that Sh. Rajender Kumar Aggarwal and Smt. Nirmala Jain also signed on Will in his presence and he identified their signature on Will at point C and D respectively. PW2 also deposed that A.R. Jain executed the Will Ex. PW1/1 in his presence, so he has also signed as a witness. He also identified the signature of Sh. H.R. Nagar Advocate at point E. During his cross examination, PW2 deposed that he has not seen any sale deed of suit property in favour of his son Sh. A.R. Jain. He deposed that his son instructed his lawyer in Hindi and Will was written in Hindi. CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 10C. PW3 deposed that on 1721992 he had accompanied plaintiff, his brother Sh. A.R. Jain, Sh. Rajender Kr. Aggarwal & Smt. Nirmala Jain to Ghaziabad, U.P. as they wanted to get certain document executed. He further deposed that on 1721992, Sh. A.R.Jain executed GPA and Will in favour of plaintiff and he was one of the witness of power of attorney executed by Sh. A.R. Jain in favour of his brother qua the suit property. He also deposed that power of attorney Ex. PW1/2 was registered in Sub registrar office Ghaziabad UP. He further deposed that other witness of the documents are Sh. Jai Chand Jain.

During his cross examination, PW3 deposed that documents was typed in English outside chamber of advocate by a typist on the instruction of Sh. A.R. Jain. He deposed that Sh. A. R. Jain signed in English on GPA, whereas Sh. R.K. Jain and Sh. Rati Ram Jain signed in Hindi. 10D. PW4 produced DD no. 18B dated 10/03/2012 Ex. PW4/1 in regard to the complaint of Sh. R.K. Jain Ex. PW1/3.

10E. PW5 deposed that the notice for assessment of entire property was sent to Sh. J.D. Kapoor but as per record the property was first time assessed in the CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 name of Sh. A.R. Jain vide assessment Ex. PW5/1. He also deposed that Smt. Nirmala Jain filed her objection on 30/12/1978.

During his cross examination, PW5 deposed that there is one assessment order dt. 2731979, in the name of Smt. Nirmala Jain. He also deposed that notice dt. 2031979 was addressed to Sh. Jeevan Dass C/o Smt. Nirmala Jain and representation dt. 1271979 was given by Smt. Niramal Jain. PW5 admitted that in survey report dt. 2031979 name of owner as mentioned as Smt. Nirmala Jain PPO and the record has the photocopy of Power of Attorney executed by Sh. J.D. Kapoor in favour of Smt. Nirmala Jain. PW1 also admitted that the notice dated dt. 2731976 for increase of rateable value was addressed to Smt. Nirmala Jain PPO. Further PW5 deposed that the file has no document of Sh. A.R. Jain qua his ownership, mutation and assessment of property of suit property.

10F. PW6 deposed that his office had received a complaint of Sh. R.K. Jain dated 10/03/2010 Ex. PW1/4 and a reminder of same was received on 16 42010 Ex. PW6/A. PW6 also deposed that no action was taken as property was already freehold, so decision was conveyed vide letter Ex. PW6/2.

During his cross examination, PW6 deposed that suit property CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 was converted into free hold in the name of Smt. Nirmala Jain vide conveyance deed dated 19112008.

10G. PW7 deposed on affidavit Ex.PW7/A that on 1721992 Sh. A.R.Jain, visited his Sr. Associate Sh. S.K. Verma, Advocate at Dist. Court Ghaziabad UP. He deposed that his senior associate was busy with other client so he instructed him to understand and draft the Will as desired by his client. So he drafted the Will on instruction of Sh. A.R. Jain, which was read over to Sh. A.R.Jain and witness namely Smt. Nirmala Jain, Sh. Rati Ram Jain, Sh. Rajender Kumar Aggarwal and Sh. S.K.Verma, Advocate. He further deposed that after understanding the content of the same, Sh. A.R. Jain in presence of him as well as in presence of Sh. S.K. Verma, Advocate, Smt. Nirmla Jain, Sh. Rati Ram Jain and Sh. Rajender Kumar Aggarwal signed and executed the said Will. Thereafter, all witnesses signed in presence of Sh. A.R. Jain. PW7 identified his signature on Will as Scriber.

During his cross examination, PW7 deposed that he only drafted the Will of Anant Ram Jain and he did not draft any other document. He further deposed that he has sent Munshi to get the Will typed in English. He further deposed that he had destroyed the draft of Will after the Will was typed. CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 10H. PW8 deposed on affidavit Ex. PW8/A that he knows Sh. Raj Kumar Jain and his brother Sh. A. R. Jain, who had introduced him to advocate Sh. S.K. Verma in Ghaziabad. He deposed that on 17/02/1992 he visited on the seat of Sh. S.K. Verma in connection with his legal case, where he found Sh. A.R. Jain, his wife Smt. Nirmala Jain, plaintiff Sh. R.K. Jain and other persons, who were discussing with Sh. S.K. Verma and his associate Sh. H.R. Nagar. He deposed that Sh. A.R. Jain disclosed him that Sh. R.K. Jain, want to construct a separate portion for himself over the suit property after demolishing the old construction. He further deposed that he again met Sh. R.K. Jain about two months later in his factory and proposed him to lend him an amount of Rs.50,000/ for construction purpose and he advanced a total sum of Rs.40,000/ in installments of Rs.5,000/ to Rs.10,000/ over a period of next 6 8 months. He further deposed that Sh. Raj Kumar Jain returned him the said loan of Rs.40,000/ in part in next period of one year.

During his cross examination, PW8 deposed that he does not remember the exact period, when he advanced the loan to Sh. R.K. Jain but it was between 1993 to 1995. PW8 deposed that he had given the said amount in cash but the said fact has not been recorded in his income tax return. CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 10I. PW9 deposed on affidavit Ex. PW9/A that Sh. A.R. Jain was his regular client. He further depsoed that on 17/02/1992 Sh. A.R. Jain with his wife Smt. Nirmla Jain, father Sh. Rati Ram Jain and brother Sh. Raj Kumar Jain visited his chamber in the morning and Sh. A.R. Jain executed a Will bequeating the suit property in faovur of his brother Sh. R.K. Jain. PW9 further deposed that he also advised Sh. A.R. Jain that besides Will, he will also execute a GPA qua suit property in favour of his brother. PW9 further deposed that he instructed his junior Sh. H.R. Nagar to draft Will of Sh. A. R. Jain. PW9 further deposed that the Will after it was drafted was understood and approved by Sh. A.R. Jain as well as his wife Smt. Nirmala Jain and other persons and same was signed and executed by Sh. A.R. Jain and witnesses by Sh. Rati Ram Jain, Smt. Nirmala Jain and Sh. Rajinder Kumar Aggarwal. He further deposed that he had personally seen the execution of Will Ex. PW1/1 and he identified the signature of Smt. Nirmala Jain, Sh. Rajender Kumar Aggarwal, Sh. Rati Ram Jain and Sh. A.R. Jain. as they had signed in his presence. He also identified the signature of his associate Sh. H. R. Nagar on the said Will.

During his cross examination, PW9 deposed that the typing was done by the typist who sits separately in the court compound. PW9 denied the CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 suggestion that Ex. PW1/1 is forged and fabricated Will. 10J. PW10 deposed on affidavit Ex. PW10/A that he is son of Sh. Rajinder Kumar Aggarwal, who expired on 05/11/2003. PW10 identified his father's signature on Will Ex. PW1/1.

During his cross examination, PW10 deposed that his father never told him if he had attested any document as a witness or stood surety for anyone.

11. After examination of plaintiff's witnesses, defendants examined three witnesses i.e. defendant no. 1 herself as DW1, defendant no. 3 himself as DW2 and Sh. Budh Prakash Gautam as DW3.

11A. DW1 deposed on affidavit Ex. DW1/A that her late husband Sh. A. R. Jain expired on 21/01/1995 but he had not left any Will either in favour of plaintiff or anyone else. DW1 also deposed that she had purchased the entire property from her own funds vide agreement dated 01/11/1974 from Sh J.D. Kapoor and the said agreement was registered on 12/11/1974. She further deposed that Sh. J.D. Kapoor also executed a registered power of attorney and CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 an affidavit in her favour on 08/11/1974. She further deposed that she has absolute right to sell or transfer the entire property, whereas her husband had no right to make any Will in favour of anyone hence the alleged Will is forged and fabricated document. She further deposed that she has sold the entire property to D3 vide instrument dated 02/02/2009.

During her cross examination, DW1 deposed that in the beginning she had constructed the front portion of the entire property, however she does not remember when the rear portion was constructed. Further she also deposed that she does not know whether any plan of rear portion was sanctioned by her and she also does not know if the water and electricity connection are in the name of Sh. R.K. Jain. Further DW1 admitted that her husband purchased the property from his own money. DW1 further deposed that she does not remember if the vender Sh. J.D. Kappoor had executed a Will in favour of her husband on 06/11/1974. DW1 further deposed that she does not remember whether she had signed the said Will as an attesting witness. DW1 admitted her signature at point X of Will Ex.P4, certified copy of her statement in probate case PC 95/1979 Ex. P3 and on Will Ex. PW1/1 also. DW1 admitted that her husband was the owner of the entire property. Further DW1 deposed that she does not remember if her husband had given the suit CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 property to plaintiff by a Will. DW1 also admitted her signature on agreement Ex. PW1/D1, receipt Ex. DW1/1 and POA Ex. DW1/2.

11B. DW2 deposed on affidavit Ex. DW2/A. He generally deposed on the same lines of his written statement (Suit no. 494/2009) and plaint (Suit no. 2144/2009). Further DW2 deposed that he had executed sale deed qua entire property in favour of D4 Sh. Vishal Nagpal. DW2 relied upon site plan of entire property Ex. DW2/1. Sale deed qua entire property in his favour dated 02/09/2009 Ex. P1, GPA in favour of D1 dated 01/11/1974 as Ex. DW1/2, registered agreement dated 01/11/1974 as Ex. PW1/D1, registered receipt dated 06/11/1974 as Ex. DW1/1 affidavit 08/11/1974 as Ex. DW2/2, letter issued by DDA on 17/05/1975 as Ex. DW2/3, occupancy certificate dated 29/04/1978 as Ex. DW2/4, letter dated 02/03/1977 as Ex. DW2/5 and electricity and water connection bill Ex. DW2/6 & 7 respectively.

During his cross examination, DW2 deposed that he is in real estate business since 1997. He admitted that the entire property has been constructed in two parts. He also admitted that the front portion was in possession of Smt. Nirmala Jain whereas plaintiff and his family occupied the rear portion and he knew this fact from very beginning. He also deposed that he never asked Sh. CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 R.K. Jain or any member of his family, under what right they are living in the suit property. He further deposed that he does not know if the suit property was constructed by Sh. R.K. Jain and he has no idea if D1 had informed him that rear portion was constructed by Sh. R.K. Jain. He further deposed that he does not know if the water and electricity connection of suit property are in the name of Sh. R.K. Jain.

11C. DW3 deposed that receipt Ex DW1/1, GPA Ex. DW1/2 and agreement Ex. PW1/D1 are registered in the office of Subregistrar IV, Seelampur, Delhi.

12. On statement of Ld. Counsel for petitioner/plaintiff, the probate petition was tagged alongwith CS no. 494/2009 vide order dated 08/01/2016. It is also pertinent that plaintiff got recorded his statement that his probate petition be also disposed off on the basis of the evidence recorded in suit no. 494/2009.

13. I have heard the arguments of Sh. Sanjay Goswami, Ld. Counsel for plaintiff as well as Sh. Dinesh Kumar Gupta, Ld. Counsel for D3 & D4 and have also gone through their written submissions filed by them besides perusing the material available on record.

14) The facts which are admitted and not in dispute are as under:

a) The leasehold rights of the entire property measuring 257.79 sq.m. or 308.33 sq. yard was granted by D.D.A in favour of Sh. J.D. Kapoor, vide registered lease deed dated 25.01.1968.

b) Sh. J.D.Kapoor, entered into an agreement in respect of entire property with D1 on 01111974 Ex.

PW1/D1.

c) Sh. J.D.Kapoor also executed power of attorney in respect of entire property in favour of D1 on 01111974 Ex. DW1/2.

d) Receipt of consideration issued by Sh. J.D. Kapoor in favour of D1 on 01111974 Ex.DW1/1.

               e)    Agreement   Ex.   PW1/D1,   Power   of   Attorney   Ex.
               DW1/2   and   receipt   Ex.   DW1/1   were   registered   on
               12.11.1974. 
                
               f)    J.D. Kapoor also gave affidavit in favour of D1 on
               08.11.1974 Ex. DW2/2. 

               g)    Entire   property   was   free   hold   by   DDA   vide
               conveyance deed executed in favour of  D1 Ex. P2.

               h)    Sh. J.D.Kapoor has not executed any sale deed in
               favour of D1 qua entire property. 

               i)     D1 sold the entire property to D3 vide  sale   deed
               dated 0222009 Ex. P1.


CS no. 1845/2016 (Old no. 494/2009)                               Raj Kumar Jain Vs Nirmala Jain & Ors 
CS No. CS No. 2599/2016 (Old no. 2144/2009)             Kartik Budhiraja Vs Raj Kumar Jain, 
PC no. 96/2016 (Old no. 14/2009)                                  Raj Kumar Jain Vs Nirmala Jain  & Ors      Page no. 2 / 74
                j)     Sh. J.D. Kapoor, executed Will in favour of Sh. A.R.
               Jain, the husband of D1 on 06111974 Ex. P4.

               k)    D1 the attesting witness of Will Ex. P4 deposed in

probate case no. 95/1979 filed by her husband Sh. A.R. Jain.

l) Letter of administration with Will EX. P4 was granted in favour of Sh. A.R. Jain by the court of Ld. District Judge vide judgment dated 0581980 Ex. P3.

m) Plaintiff is in possession of suit property ad measuring 108.33 sq. yards.

               n)            Sh. J. D. Kapoor expired on 20/04/1977.

               o)            Sh. A.R. Jain, expired on 2111995.

15)          My issuewise findings are as under:

ISSUE NO. 1,3,4 & 5




a)           All the aforesaid issues are taken up together as they are interconnected. 



b)           Plaintiff   claimed   that   Sh.   J.D.   Kapoor,   the   owner   of   entire   property

executed a Will on 06111974 in favour of his brother Sh. A.R. Jain qua entire property and his brother obtained letter of administration with Will vide judgment dated 05/08/1980 and thereafter his brother executed a Will on CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 17/02/1992 in his favour qua suit property the portion of entire property, so he is the owner of same.

c) On the contrary, defendants claimed that the actual owner of suit property Sh. J.D. Kapoor sold the entire property to D1 on 01111974 hence Sh. J.D. Kapoor had no right to execute the Will in favour of Sh. A.R. Jain on 06/11/1974. Defendants also claimed that D1 subsequently sold the entire property to D3 vide sale deed dated 02/02/2009, hence, D3 is the owner of the entire property which includes suit property.

d) The point for consideration is whether Sh. J.D. Kapoor, sold the entire property to D1 on 01111974 so on 06/11/1974 he had no right to execute a Will in favour of Sh. A.R. Jain qua entire property.

e). Ld. Counsel for defendants contended that Sh. J.D. Kapoor executed an agreement to sell Ex. PW1/D1, GPA Ex. DW1/2, receipt Ex. DW1/1 in favour of D1 for sale of entire property. Further Ld. Counsel contended that Ex. PW1/D1, Ex. DW1/2 and Ex. DW1/1 were registered on 12/11/1974 and Sh. J.D. Kapoor also handed over the possession of the entire property to D1 on CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 01/11/1974 and gave an affidavit Ex. DW2/2 to D1 on 08/11/1974 regarding sale of entire property. Hence all the documents i.e. Ex. PW1/D1, Ex. DW1/2, Ex. DW1/1, Ex. DW2/2 coupled with possession of entire property are sufficient enough to convey title of entire property upon D1. In support of his arguments, he relied upon Kuldeep Singh Suri V/s. Surender Singh 1999 RLR 20 Delhi.

f). Ld. Counsel for plaintiff contended that agreement dt. 01111974 Ex. PW1/D1 is a construction agreement and it is not an agreement to sell. He further contended that D1 appeared as a witness in Probate case filed by her husband in regard to Will Ex. P4 of Sh. J.D. Kapoor and on letter of administration was granted in favour of her husband meaning thereby she waived her right qua agreement Ex. PW1/D1. In support of his argument he relied upon Crystal Developers Vs Asha Ghosh, 2005 (9) SCC 375, Alagammai & Ors. Vs Rakkammal, AIR (1992) Madras 136, Rukmani Devi & Ors. Vs Narender Lal Gupta, (1985) 1 SCC 144, Syed Askari Hadi Ali Augustine Imam & Anr. Vs State (Delhi Administration), (2009) 5 SCC 5238 and Urmila Roy Vs Bengal Pearless Housing Development Co. Ltd., (2009) 5 SCC 242.

g). Now, it is to be seen whether agreement Ex. PW1/D1 is an agreement to sell or a construction agreement.

h). Admittedly Sh. J.D. Kapoor entered into an agreement qua entire property with D1 on 01111974 Ex. PW1/D1. The relevant term and condition of Ex. PW1/D1 are as under: "1. That the Contractor has deposited with the Owner a sum of Rs.30,000/ (Rupees thirty thousand only) as security for fully and effectively carrying out the terms to be performed by the Contractor as hereinafter mentioned.

5. That on production of such completion certificate by the Contractor, and on being served with a notice in respect thereof at the address of the Owner as given in this Agreement or at the address of the Executor of the Owner's Will in respect of the said plot which notice shall, under all circumstances, be sent by registered post acknowledgement due, and will be deemed to have been served on the Owner at the time a communication sent by registered post A/D would, in the ordinary course of post have reached the Owner/Executor of the Will as the case may be (whether or not in fact, the same has been actually received by the Owner/Executor of the Will as the case may be and within thirty days of the date of receipt of the said Rs.1,22,000/ (Rupees one lac twenty two thousand only), which sum has been mutually agreed to, by and between the parties, as the cost of construction of the building as well as compensation CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 for the time and capital invested by the Contractor on it, to be paid by the Owner to the Contractor inclusive of the refund of the security of RS.30,000/ (Rupees thirty thousand only) deposited by the Contractor with the Owner for due performance of the terms and conditions of this Agreement. The stipulated time of thirty days for payment of Rs.1,22,000/ (Rupees one lac twenty two thousand only) by the Owner is the essence of the contract.

11. If, however, on the production of the completion certificate by the Contractor and on his serving a notice thereof on the Owner, in the manner herein provided, the Owner fails or neglects to pay, for any reason whatsoever, or decides not to pay to the Contractor, the aforesaid sum of Rs.1,22,000/ inclusive of the security amount within the period stipulated in this behalf, the Owner shall convey to the Contractor or her nominee his rights in the land comprised in the indenture of Perpetual Lease dated 26.12.67 and will do all acts and things that may be necessary for the purpose of obtaining all consents and sanctions that may be necessary or required, and will get such documents registered in the name of the Contractor or her nominee as may be required. In such event, all the cost of registration shall, however, be paid by the Contractor. The Owner shall execute the required deed of conveyance. He shall get it registered according to the law of registration for the time being in force and in the event of his failure to do so, the Contractor will be entitled to seek specific performance of this Agreement by the Owner and will be entitled to have a sale deed compulsarily executed and registered in the court of law.

12. That for removal of doubt, it is specifically agreed between the parties hereto that unless the payment mentioned above is made in strick conformity with the terms of this agreement, the Owner shall have no right to the ownership, CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 use of occupation of the building constructed and all fittings etc. installed thereon which shall belong to and remain the property of and vest in the Contractor as having been constructed and provided by and with her money.

18. In the event of the failure on the part of the owner to pay to the Contractor the amount hereby agreed to be paid, inclusive of the refund of the security after receiving notice of the completion of the house in terms of this Agreement, and in the event of there being delay from any cause whatsoever arising, whether the same arises out of any voluntary act of the owner or otherwise, the Owner shall pay the Contractor interest on the amount for the entire period the payment is delayed, such interest to be paid at the rate of 12% per annum.

i) It is clear from abovesaid terms & conditions of agreement Ex. PW1/D1 that D1 paid Rs. 30,000/ as security amount to Sh. J.D. Kapoor as she had to construct the entire property and possession of entire property was given to her for that purpose. On completion of construction, D1 had to obtain the completion certificate from the authority concerned which she had to inform Sh. J. D. Kapoor by serving the notice, thereafter, Sh. J.D. Kapoor has to pay Rs.1,22,000/ including security amount of Rs.30,000/ to the D1 and if Sh. J. D. Kapoor failed to pay the said amount to D1, then he had to execute sale deed qua entire property in favour of D1. Meaning thereby, if on the receipt CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 of notice, Sh. J.D. Kapoor paid the amount of Rs.1,22,000/ to D1, then D1 has no right in the entire property as he got his construction amount and the security amount from Sh. J. D. Kapoor but in case Sh. J.D. Kapoor failed to pay the said amount then Sh. J. D. Kapoor had to execute sale deed in favour of D1 and if he did not perform his part of contract, then D1 has every right to get execute the sale deed from the court of law by specific performance. So under these circumstances, it is clear that the agreement Ex. PW1/D1 is contingent contract, which is defined in Section 31 of the Indian Contract Act, same is read as under: "A "contingent contract" is a contract to do or not to do something, if some event, collateral to such contract, does or does not happen."

j) It is admitted case of D1 that she had obtained sanction from DDA Building Cell vide letter dated 17051975 Ex. DW2/3 for the construction of entire property. The sanction letter Ex. DW2/3 was issued in favour of D1 to erect /reerect/add to/alteration a building. The construction was completed and occupancy /construction certificate was issued in favour of Sh. J. D. Kapoor on 29/04/1978 Ex. DW2/4. It is pertinent that in term of agreement Ex. PW1/D1, D1 had to serve the notice upon Sh. J.D. Kapoor thereby informing him that CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 the construction of entire property has been completed and thereby she called upon him to pay Rs.1,22,000/ but no such notice was issued by D1 to Sh. J. D. Kapoor in this regard. Hence, it is clear that the D1 has not comply the term of contract Ex. PW1/D1 at Sr. No. 5 (above stated). It is pertinent that it is not the case of D1 that inspite of service of notice of completion of construction Sh. J.D.Kapoor had not paid the amount of Rs.1,22,000/ so he is entitled for sale deed qua entire property, but Sh. J. D. Kapoor has not executed the sale deed, so in that case D1 has right to get execute the sale deed qua entire property through Specific Performance. It is admitted facts that Sh. J.D.Kapoor has not executed the sale deed in favour of D1. Further it is also not in dispute that D1 has not got executed the sale deed of entire property through court of law by filing suit for specific performance.

k) It is admitted fact that Sh. J.D. Kapoor executed a Will Ex. P4 in favour of Sh. A.R. Jain on 06111974. The Will Ex. P4 has the reference of term and condition of agreement Ex. PW1/D1. The relevant clause of Will Ex. P4 are as under:

7. In view of all these circumstances I have taken a sum of Rs.30,000/ (Rupees thirty thousand only) from Smt. Nirmala Jain W/o Sh. A. R. Jain, resident of 995/86C, Gali no. 12, CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 Kailash Nagar, Delhi31, as a security deposit (earnest money) and appointed her as my contractor for the construction of a residential house on this plot.

8. According to the terms of my agreement with her I am to pay her a sum of RS.1,22,000/ including the amount of the security deposit after the building is complete, completion certificate obtained and a months notice thereof given to me in this behalf. It is stipulated in that agreement that in case of my default in the payment of this sum for whatsoever reason within the prescribed time of 30 days, I shall convey to Smt. Nirmala Jain all my rights in the land comprised in the indenture of the prepetual lease referred to above and for this purpose I will do all acts and things that may be necessary.

10. For this reason and taking into account the deposit of thirty thousand that his wife has given to me I hereby devise all my rights in Plot no. 102, Vivek Vihar, Tahir Pur Residential Scheme, Sahadara Delhi, measuring 308.43 Sq. Yds., in the lay out plan of site "A" in favour of Shri A. R. Jain resident of 995/86C, Gali no. 12, Kailash Nagar, Delhi 31, and also hereby appoint Shri G. S. Bansal S/o Shri J. P. Bansal, resident of S/252, Greater KailashI, New Delhi48, as the sole Executor of this my last will in respect of the above mentioned land.

l) It is not in dispute that Sh. J. D. Kapoor has expired on 20041977. Sh. A.R.Jain filed petition for grant of probate of Will Ex. P4. D1 is one of the attesting witness of the Will Ex. P4 and she deposed in the court in this regard vide his statement Ex. P3. It is pertinent that D1 has not filed any objection to the Will Ex. P4. It is also admitted that Sh. A.R. Jain obtained letter of CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 administration with Will of Sh. J.D. Kapoor in respect of entire property vide judgment Ex. P3.

m) In view of aforesaid discussion, I am of the considered opinion that the agreement Ex. PW1/D1 is not an agreement to sell but a construction agreement as after construction of the property, D1 has not complied the terms and conditions, rather she appeared as a witness in the probate petition of her husband wherein she confirmed that Sh. J. D. Kapoor executed a Will Ex.P4 in favour of her husband.

n) D1 & D2 in para no.3, prior to reply on merit in their written statement (suit no. 494/2009) stated as under :

"It is submitted that the defendant no. 1, wife of the deceased, had purchased the property vide agreement dated 01111974 from one Sh. Jeevan Das Kapoor. The said agreement was registered vide no. 2143 Addl. Book no. 1 Vol. No. 713 pages 5763 dated 121174. Apart from the agreement, the seller also executed registered power of attorney vide no. 18153 Addl. Book No. 4 Vol. no. 374 pages 145250 dated 121174: an affidavit dated 081174 was also executed by the seller in favour of the respondent no. 3. On the strength of the same the respondent no. 2 becomes owner of the property. She had absolute right to sell or transfer the property. The deceased had no right to CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 make any 'will' in favour of the any one as he was not the owner of the property. It is submitted that although there is no 'will' executed by the deceased but even if for the sake of arguments it is assumed but not admitted that there was any 'will' that was nullity in the eyes of law as deceased has no right to bequeath the property".

o) It is also pertinent that D1 claimed her ownership on the basis of agreement Ex. PW1/D1, affidavit Ex. DW2/2, GPA Ex. DW1/2, receipt Ex, DW1/1 claiming that Sh. J. D. Kapoor has sold the entire property to her on 01/01/1974. Admittedly D.D.A. issued occupancy/completion certificate on 29/04/1978 in favour of Sh. J. D. Kapoor Ex. DW2/4. If Sh. J. D. Kapoor sold the entire property to D1 on 01/11/1974 vide agreement to sell Ex. PW1/D, receipt Ex. DW1/1, affidavit Ex. DW2/2, GPA Ex. DW1/2, then how DDA issued occupancy/completion certificate in the name of Sh. J. D. Kapoor instead of D1.

p) DW1 deposed that she purchased the entire property for consideration of Rs.30,000/. Ther term & condition at srl no. (1) of agreement Ex. PW1/D1, contractor/D1 has deposited the amount of Rs.30,000/ with the Sh. J. D. Kapoor as security. It is also clear from the receipt Ex. DW1/1 wherein it is stated as under:

CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 "I, Jiwan Dass Kapoor S/o Shri Harhi Mal Kapoor resident of 3040, Qaziwara, Darya Ganj, Delhi, have this 1st day of November, 1974m received from Smt. Nirmala Jain W/o Shri A.R.Jain resident of 995/86C, Gali No. 12, Kailash Nagar, Delhi31, a sum of Rs. 30,000/ (Rupees Thirty Thousand Only) on account of security deposit (earnest money) for the construction of my plot no. A102, Situated in Vivek Vihar, Jhilmil Colony, Tahirpur Residential Scheme, Shahdara, Delhi, to whom I have assigned the contract for its construction. I hereby agree that the construction work entrusted to Smt. Nirmala Jain is my final choice and it shall not be revoked by me.

I have carefully read and understood the terms and conditions of the aforesaid contract and have accepted all the terms contained therein which I am entering into for the construction work of my plot".

q) In view of above, I am of the considered view that the said amount of Rs.30,000/ is not the consideration amount. It is pertinent that D1 neither in her written statement nor in evidence affidavit Ex. DW1/A specifically disclosed what was the actual amount of consideration fixed for the entire suit property by the owner Sh. J.D.Kapoor. Merely because she paid security amount of Rs. 30,000/, does not mean that the said amount was fixed as a consideration amount to sell the entire property and for that reason, there is a clause no. 11 in the agreement Ex. PW1/D1 i.e. the sale deed of the entire property must be executed and in case, the owner will not execute the sale deed CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 then same will be executed through Specific Performance.

r) D1 claimed that Sh. J.D. Kapoor executed GPA Ex. DW1/2 in her favour on 01111974. The relevant clause of GPA Ex. DW1/2 whereby Sh.

J.D. Kapoor has given the power to D1 are as under:

2. To give and communicate, on my behalf, all the necessary advices, consultations in connection with the construction of the said building;

9. To take all necessary steps in my name or on my behalf for entering into and executing any agreement or agreements that may become necessary in connection with the construction of the said house whether with any Sub Contractor or with any local or other authority;

19. To execute on my behalf and in my name any further instrument of lease or sublease whether in favour of the Delhi Development Authority as may be required to present the same for registration, to admit execution therefore, for me and on my behalf, to receive the document when registered; from the SubRegistrar's office, and to do all other things, deed and acts as may be necessary for the purpose;

20. To obtain a certificate from the Delhi Development Authority or any of its Officers, empowered under the Act and /or authorised in that behalf, that the building has been constructed in accordance with the provisions of the said Agreement of Lease, and that all the other conditions thereof have been duly observed and fulfilled;

21. And when the building has been completed and Completion Certificate has been obtained by the said Smt. Nirmala Jain to let out the property to manage the same and to realise the rents and profits thereof, and to deal with it in the manner as she may find necessary.

s) It is clear from GPA Ex. DW1/2 that Sh. J. D. Kapoor gave power to D 1 only in regard to the construction of the entire property but he has not given any power to D1 to sell or purchase of his entire property vide GPA Ex. DW1/2.

t) In view of aforesaid discussion, I am of considered view that merely because Sh. J. D. Kapoor executed agreement Ex. PW1/D1, GPA Ex. DW1/2 and registered receipt Ex. DW1/1 in favour of D1 on 01/11/1974 and affidavit on 08/11/1974 Ex. DW2/2 does not mean that he had sold the entire property to D1 as all those documents were so executed for construction of entire property. So, in the given facts and circumstances, I am of the view that the reliance placed by the Ld. Counsel for defendants upon the judgement in the case of Sh. Kuldeep Singh Suri V/s. Sh. Surinder Singh 1999 RLR 20 Delhi, therefore does not help the defendant.

u) Ld. Counsel for defendants contended that D1 was not the attesting witness of Will Ex. P4 and she has not deposed anything in regard to the Will CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 Ex. P4. He further contended that Sh. J. D. Kapoor appointed Sh. G. S. Bansal as executor in his Will Ex. P4 but the said Sh. G.S. Bansal has not filed the petition for probate hence the letter of administration with will granted in favour of Sh. A.R.Jain has no value.

v) D1 as DW1 during her cross examination deposed as under: " I used to do stitching and embroidery work before my children were born. I do not remember in which year my children were born. It is correct that my husband used to work in a Bank and this house was purchased by him his own money. I do not remember if the vender Sh.

J.D.Kapoor had executed a registered Will in favour of my husband on 06111974. I do not remember if I had signed that Will as an attesting witness Ex.P4 bears my signatures at point 'X'. I do not remember if this Will was probated. I do not remember if I had appeared as a witness in the Probate case. I have seen the certified copy of my statement in the Probate Case 95/1979 the same is Ex. P3 and bears my signature at point 'X'.

It is correct that my husband was the owner of A 102 Vivek Vihar. The witness is shown a certified copy of a Will Ex. PW1/1 (objected to on the ground that this is not the original document) the witness admits her signature at point 'X'. I do not know in whose name the property was mutated in the record of MCD. I do not remember if my husband had given the back portion of the property measuring 108 Sq. yards to Mr. Raj Kumar Jain by a Will. The property was always in my name I did not say CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 that Mr. A.R.Jain was the owner you said it. When I applied for free hold rights in the property, I did not mention that Mr. A.R.Jain was the owner of the property. w) It is clear from the aforesaid testimony of DW1 that Sh. J.D.Kapoor executed a Will in favour of Sh. A.R. Jain, the husband D1 on 06111974 Ex. P4 and she signed the said Will Ex. P4 as an attesting witness. She also appeared in probate case and deposed regarding Will in her statement Ex. P3. Ld. District Judge vide its judgment dt. 05081980 Ex.P3 granted letter of administration with Will in favour of Sh A.R. Jain the husband of D1.

x) The plaintiff placed the certified copy of petition filed by Sh. A. R. Jain in respect of Will of Sh. J.D. Kapoor. In the said petition, it is specifically stated by the petitioner/plaintiff that "the executor named in the Will Sh. G. S. Bansal son of Sh. J. P. Bansal has refused to act as executor so plaintiff has no option but to file the petition for grant of letter of administration with Will." Since executor has refused to act, so in term of Section 232 (b) of Indian Succession Act, Letter of Administration with Will will be granted to the legatee, hence, I do not find any merit in the arguments of the Ld. counsel for defendants that letter of administration with Will granted in favour of Sh. CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 A.R.Jain has no value.

y) In view of above, it is clear that the letter of administration granted in favour of Sh A.R. Jain was very well within the knowledge of D1. Admittedly, D1 has not filed any petition for revocation of letter of administration granted in favour of her husband. It is pertinent that conveyance deed Ex. P2 was executed on 19/11/2008. The conveyance deed in favour of D1 dated 19/11/2008 Ex. P2 has no detail of agreement to sell Ex. PW1/D1, power of attorney Ex. DW1/2 and receipt Ex. DW1/1. The relevant part of Ex. P2 is as under: "AND WHEREAS the lessee Shri Jeewan Dass Kapoor S/o Shri Hari Mae R/o 3040, Darya Ganj, Kaziwara, Ward no. II, Delhi had executed power of attorney on .........................................................................appointing Smt. Nirmala Jain W/o Sh A. R. Jain R/o A102, Vivek Vihar, PhI, Delhi95 as his/her attorney authorising him/her to sell the said property on his/her behalf. AND whereas the lessee had given the possession of the property to the purchaser and now the said property is in the possession of the purchaser." z) In view of abovesaid discussion, I am of considered view that Sh. J.D. Kapoor had not sold the entire property to D1 on 0111.1974. Hence, he had every right to execute the Will Ex. P4 in favour of Sh. A.R. Jain who got letter CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 of administration with Will and therefore, Sh. A.R. Jain was the owner of the entire property.

aa) Ld. Counsel for defendants contended that the plaintiff initially filed the suit for injunction and subsequently, he amended the plaint and thereby seeking the relief of declaration and injunction. So, the plaintiff's prayer qua declaration is barred under Order II Rule 2 CPC. In support of his arguments, he relied upon Coffee Board Vs Ramesh Exporters Pvt. Ltd. 2014 (6) SCC 424. ab) The Hon'ble Supreme Court in Coffee Board (supra) vide para 12 has stated as under:

"12. The courts in order to determine whether a suit is barred by Order 2 Rule 2 must examine the cause of action pleaded by the plaintiff in his plaints filed in the relevant suits (see S. Nazeer Ahmed v. State Bank of Mysore). Considering the technicality of the plea of Order 2 Rule 2, both the plaints must be read as a whole to identify the cause of action, which is necessary to establish a claim or necessary for the plaintiff to prove if traversed. Therefore, after identifying the cause of action if it is found that the cause of action pleaded in both the suits is identical and the relief claimed in the subsequent suit could have been pleaded in the earlier suit, then the subsequent suit is barred by Order 2 rule 2."

ac) Order II Rule 2 CPC is based on the principle that no one should be tried CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 twice for the one and the same cause of action, so it is against the multiplicity of suits in respect of same cause of action. Admittedly, there is no subsequent suit which has been filed by the plaintiff as he has only amended his "suit for injunction" to "suit for declaration and injunction" vide order dated 24.11.2010.

ad) In view of above, I find no merit in the arguments of Ld. Counsel for the defendants that suit is barred under Order II Rule 2 CPC. ae) Further, Ld. Counsel for the defendant contended that entire property was leasehold allotted by D.D.A. and conveyance deed was executed in favour of D1 by due process of law but the plaintiff has not challenged by seeking cancellation/declaration either conveyance deed Ex. P2 or the sale deed Ex. P1 as null and void. So, in the absence of said prayer, plaintiff cannot be declared as owner of the suit property. Hence, the plaintiff suit is not maintainable. af) On the other side, Ld. Counsel for the plaintiff contended that the plaintiff is not the party either to the conveyance deed Ex. P2 or the sale deed Ex. P1 executed by D1 in favour of D3 and it is settled law that if a particular CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 document or decree is void, the person affected by the said document or decree can ignore the same and file the suit seeking substantive relief. In support of his arguments, he relied upon Sanjay Kaushish Vs D.C. Kaushish, AIR 1992 (Delhi) 118 and Sushila Kumari Vs M/s Rama Stores, 2005 (120) D.L.T. 479. ag) The Hon'ble High Court in Sanjay Kaushish (supra) vide para 42 has stated as under :

"Be that as it may, in my view, the well settled principle of law is that if a particular document or decree is void the person affected by the said, document or decree can very well ignore the same and file a suit seeking substantive relief which may be available to him without seeking any declaration that the said decree or document is void or any consequential relief of concellation of the same."

The aforesaid ratio of Sanjay Kaushish is followed in Sushila Kumari (supra).

ah) Admittedly, plaintiff is not the party either to the conveyance deed Ex. P2 or sale deed Ex. P1 which is in relation to the suit property also. It is also admitted fact that the plaintiff is in possession of suit property. The plaintiff is seeking the relief of declaration declaring him to be the owner of the suit property on the basis of Will Ex. PW1/1. The said relief of declaration is a CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 substantive relief and same is available with plaintiff without seeking declaration of conveyance deed and sale deed as null and void in view of the law laid down in Sanjay Kaushish (supra). Accordingly, the arguments of Ld. Counsel for the defendants that suit is not maintainable is rejected. ai) In view of aforesaid discussion, my finding on issue no. 1,3,4 & 5 are as under:

Issue No. 1 That Late Sh. A.R. Jain was owner of entire property on the basis of Will Ex. P4 and Letter of Administration which will granted in his favour in probate case no.95/1979 Ex. P3.

Issue No. 3 That defendant no.1, wife of Late Sh. A.R. Jain has no right, interest or claim in the suit property.

Issue No. 4 Since, Late Sh. A.R. Jain was the owner of entire suit property so the defendant no.1 was not legally competent to have got entire property converted into freehold in her name on the basis of document Ex.PW1/D1, Ex.DW1/1, Ex,DW1/2 and Ex.DW2/2.

Issue No. 5 The defendant no.1 was not competent and power to execute sale deed in respect to the entire property in favour of D3 as Late Sh. A.R. Jain during his lifetime executed a Will Ex.PW1/1 qua suit property the part of CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 entire property in favour of plaintiff.

ISSUE NO.2

a) It is pertinent that plaintiff in para 3 of his plaint specifically stated about the construction. The relevant part of same is as under:

"plaintiff came in possession over the portion B of the Plot No.A102 (suit property) and constructed a two storey building on this plot and is living there with his family."

b) D1 & D2 do not denied the aforesaid pleading in corresponding para of written statement. They simply stated that rest of the contents of the para are wrong and denied and the plaintiff is put to strict proof thereof. Whereas, D3 in his written statement stated that as on today, three storied unauthorized construction is in existence but he denied that plaintiff constructed the same.

c) PW1 deposed that he has been since 19921993 after execution of GPA and Will dated 17/02/1992 in his favour in continuous and undisputed possession & ownership of his portion of suit property which was bequeathed to him and has constructed ground to second floor of his portion with his own CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 cost and expenses. He is having water and telephone connection in his name. The bills of same is Ex. PW1/6 and Ex. PW1/7. It is admitted by PW1 that construction was without sanction of site plan. He denied the suggestion that entire construction was made by D1 and she had obtained the connection.

d) PW2 also deposed that after execution of Will Ex. PW1/1, his son Sh. Raj Kumar Jain in the year 199394 constructed his portion of the property bequeathed to him. This testimony of PW2 is unchallenged as there is no cross examination on the same.

e) DW1 during her cross examination deposed that in the beginning they had constructed only the front portion of the house. She deposed that she does not remember if any plan for back portion (suit property) was sanctioned. Further she does not remember when back portion was constructed. It is pertinent that Smt. Nirmala Jain has not deposed anything about the construction made in the suit property in her evidence affidavit Ex. DW1/A.

f) It is not disputed by the defendant that suit property is built up upto second floor. It is pertinent that the occupancy certificate Ex. DW2/4 shows the CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 construction made on the front portion of ground floor of entire property. Defendants filed site plan Ex. DW2/1 wherein he has not shown the construction made on the suit property.

g) In view of above, it is clear that neither D1 nor D3 made constructions in the rear portion of the entire property and it is the plaintiff who made the construction on the same during the period when D1 & D2 were in possession of front portion of entire property. It is pertinent that there is no evidence on record that D1 & D2 ever stopped plaintiff to carry out the construction work in rear portion of entire property. D3 claimed that construction raised on suit property is unauthorized and same had booked by MCD but no action was taken. It is hardly any matter whether construction in the suit property is authorized or unauthorized, but the fact remained that the plaintiff made the construction over the suit property.

h) In view of above discussion, the aforesaid issue is decided in favour of the plaintiff.

ISSUE NO.6 CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74

a) Ld. Counsel for the defendant contended that the plaintiff claim of declaration as claimed in Suit No.494/2009 is barred in view of probate case no.14/2009 filed by him subsequently.

b) Ld. Counsel for the plaintiff contended that the plaintiff's suit for relief of declaration is maintainable along with probate case as it is well settled that the question of title cannot be gone into a probate court which is a court of limited jurisdiction.

c) It is not in dispute that probate court is a court of limited jurisdiction and is concerned only in regard to the execution of Will and with due proof thereof. The suit no.494/2009 involved questions which also concerned with the title of Late Sh. A.R. Jain who executed Will in favour of plaintiff. Hence, the plaintiff filed aforesaid suit for declaration as regard his rights and interest in the suit property which animated to him under the Will dated 07.02.1992 and 06.11.1974 Ex. PW1/1 and Ex. P4 respectively. Hence, plaintiff has to not only prove the title of Sh. A.R. Jain in the suit property but also to prove the due execution of Will in his favour by Late Sh. A.R. Jain.

d) In view of aforesaid discussion, I am of considered view that the suit of plaintiff claim for declaration as claimed in the suit no.494/2009 is not barred in view of his probate case no.14/2009 filed subsequently and therefore, plaintiff is entitled for declaration as claimed in suit no.494/2009. Accordingly, aforesaid issue is decided against the defendants. ISSUE No.2A & ISSUE No.1 of Probate Case (14/2009).

a) Both the aforesaid issues are taken up together as they are concerned with the Will of A.R.Jain dated 1721992.

b) Plaintiff claimed that his brother Sh A.R. Jain, executed a Will on 172 1992 Ex. PW1/1 in his favour qua suit property. The defendants i.e. D1, D2, D3 and R4 disputed the Will Ex. PW1/1 claiming that it is forged and fabricated.

c) Now, it is to be seen whether Sh. A.R. Jain executed Will Ex. PW1/1 in CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 favour of his brother Sh. R.K. Jain qua suit property.

d) Plaintiff has also filed the petition no. 14/2009 u/s. 276 of the Indian Succession Act, 1925 (hereinafter referred as "the act"). Petitioner has prayed that probate be granted of Will made on 1721992 by his deceased brother late Sh. Anant Ram Jain.

e) Notice of the petition and citation was directed to be issued vide order passed in petition 14/2009 on 28.04.2009. Citation published in the English edition of the Daily newspaper 'The Statesman' and also in Hindi edition of daily newspaper 'Amar Ujjala'. Notice of the petition was duly served upon State as well as other respondents. D1, D2 and R4 filed their objection supported by their affidavit however no objection has been received to the Will after publication of the citation.

f) Section 222 of the Act provides that probate can only be granted to an executor appointed by the will. During the course of hearing it has been admitted by the counsel for the parties that no executor has been appointed in the Will by the Testator. Accordingly, probate cannot be granted. However, Section 232 of the Act provides that when deceased has made a Will, but has CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 not appointed an executor, or deceased has appointed an executor who is legally incapable or refused to act, or who has died before the testator or before he has proved the will, or executor dies after having proved the will, but before he has administered all the estate of the deceased, an universal or a residuary legatee can be admitted to prove the will, the letters of administration with the will annexed may be granted to him of the whole estate. It is Section 278 of the Act which deals with the applications of Letters of Administration. Petitioner is the beneficiary under the Will. Accordingly, petition 14/2009 is treated under Section 278 of the Act.

g) The Hon'ble Supreme Court in Jagdish Chander Sharma Vs Narain Singh Saini, (2015) 8 SCC 615, held as under:

"22. It can not be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of will under the Act are mandatory in nature, so much so that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property.

22.1 In the evidentiary context Section 68 of the 1872 Act enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at lease, if alive, and is subject to the process of the court and capable of giving evidence proves its execution. The proviso attached to this section relaxed this requirement CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 in case of a document, not being a will, but has been registered in accordance with the provisions of the Registration Act, 1908 unless its execution by the person by whom it purports to have been executed is specifically denied. 22.2 These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a will. The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence.

22.3 Section 71 provides, however, that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by the other evidence. The interplay of the above statutory provisions and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording the penultimate conclusions. With this backdrop, expedient would be, to scrutinize the evidence adduced by the parties."

h) Plaintiff as PW1 deposed on affidavit as Ex.PW1/A that his brother A.R.Jain executed a Will Ex. PW1/1 on 1721992 in his favour qua suit property at Distt. Court, Ghaziabad, Uttar Pradesh. He deposed that Will was CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 drafted and prepared by Sh. H.R. Nagar Advocate/ PW7. He also deposed that his brother Sh A.R. Jain signed the Will Ex. PW1/1 in presence of him, his father PW2, his wife Smt. Nirmala Jain/D1 and one Sh. Rajender Kumar Aggarwal. He also deposed that advocate Sh. H.R. Nagar/PW7 and Sh. S.K. Verma/PW9 were also present there. He identified the signature of his brother Sh. A.R. Jain at point A, his father at point B, Sh. Rajender Kumar Aggarwal at point C, Smt. Nirmala Jain at point D on Will Ex. PW1/1. He also identified the signature of Advocate Sh. H.R.Nagar at point E on Will.

i) The attesting witness of the Will, PW2 testified that his late son Sh. A.R.Jain executed Will Ex. PW1/1 in his presence in favour of his another son Raj Kumar Jain on 1721992 qua suit property. He also deposed that he alongwith his son A.R.Jain and his wife Nirmala Jain, Rajender Kumar Aggarwal and Arun Kumar reached to the Distt. Court, Ghaziabad on 172 1992. He deposed that Sh A.R. Jain put his signature at point A on Will, he also identified the signature of Sh. Rajender Kumar Aggarwal and Smt. Nirmala Jain at point C and D respectively. He also deposed that he has also signed the Will as attesting witness. He also identified the signature of H.R.Nagar advocate at point E. CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74

j) PW7 deposed that on 1721992 his senior associate Sh. S.K.Verma was busy with other client so he instructed him to understand and draft the Will as desired by his client Sh. A.R.Jain. So he drafted the Will on instruction of Sh. A.R. Jain, which was read over to him and witness namely Smt. Nirmala Jain, Sh. Rati Ram Jain, Sh. Rajender Kumar Aggarwal and Sh. S.K.Verma, Advocate. PW7 further deposed that after understanding the content of the same, Sh. A.R. Jain in presence of him as well as in presence of Sh. S.K. Verma, Advocate, Smt. Nirmla Jain, Sh. Rati Ram Jain and Sh. Rajender Kumar Aggarwal signed and executed the said Will. Thereafter, all witnesses signed in presence of Sh. A.R. Jain. PW7 identified his signature on Will as Scriber.

k) PW9 deposed that Sh. A.R. Jain with his wife Smt. Nirmala Jain, father Rati Ram Jain and brother Sh. Raj Kumar Jain visited his chamber on 172 1992 and Sh A.R. Jain executed a Will in favour of his brother Sh. R.K. Jain. PW9 deposed that on his instruction his junior advocate Sh. H. R. Nagar /PW7 drafted Will and after understanding the content of Will, Sh. A.R.Jain signed the same in presence of him, his wife, father, brother and Sh. Rajender Kumar CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 Aggarwal and all the said persons also signed and executed the Will in his presence.

l) PW10 identified the signature of his father Rajender Kumar Aggarwal on Will Ex. PW1/1. He deposed that his father expired on 5112003.

m) It has been laid down in Daulat Ram & others Vs Sodha & Others JT 2004 (10) SC 50, that in order to asses as to whether the Will has been validly executed and is a genuine document, the propounder has to show that

(i) the Will was signed by the testator and that he had put, his signatures to the testament of his own free will;

(ii) that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and

(iii) that the testator had signed it in presence of the two witnesses who attested it in his presence and in the presence of each other.

n) The testimony of PW1 and the attesting witness PW2 to the Will Ex. PW1/1 are corroborative and nothing material came in their cross examination to disbelieve the testimony. It is pertinent that PW7 & PW9 also supported the CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 testimony of PW1 and PW2 regarding execution of the Will on 1721992. Further PW10 also identified the signature of his father Sh Rajender Kumar Aggarwal who signed the will as attesting witness. PW7 and PW9 are advocates in whose presence, the executent Sh. A. R. Jain and attesting witness PW2, Rajender Kumar Aggarwal and D1 signed the Will are the dis interested and trustworthy witness on the point of being execution and attestation of the Will and therefore, there is no reason to disbelieve their testimony. Further the testimony of attesting witness PW2 is also material as he is father of executant and the plaintiff. It is also pertinent that D1 also admitted her signature on Will Ex. PW1/1.

o) It is admitted fact and not disputed that the executant of Will Ex. PW1/1 Sh. A.R. Jain has expired on 2111995 and prior to his death i.e. on 17/02/1992 he had executed a Will Ex. PW1/1 and had bequeathed part of his property admeasuring 108.33 sq. yards in favour of the petitioner.

p) In view of testimony of PW1, PW2, PW7, PW9 & PW10 and the document placed on record, I am satisfied that petitioner has succeeded in proving that deceased Sh. A.R. Jain had executed the Will dated 17021992 CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 Ex. PW1/1, which is his last Will and testament.

q) Ld. Counsel for defendants contended that probate petition filed by the plaintiff/petitioner is barred by limitation as he filed the petition after 15 years from the date of death of executant of Will Sh. A.R. Jain. In support of his arguments, he relied upon judgment passed by Hon'ble High Court of Delhi on 31/03/2011 in FAO no. 38082/205 titled as Sh. Yogesh Duggal & ors. Vs State and ors. and Sh. Krishan Kumar Sharma Vs Sh. Rajesh Kumar Sharma 2009 (11) SCC 537.

r) Ld. Counsel for plaintiff contended that as when plaintiff came to know about sale deed dated 02/02/2009 Ex. P1, he filed his petition on 2142009 so plaintiff petition is within time. He further contended that petition is not barred by limitation as right to sue does not necessary arise on the death of testatrix but it depends upon the facts of each case. In support of his arguments he relied upon Sh. Rajesh Kumar Sharma Vs Sh. Krishan Kumar Sharma 2014 (212) DLT 562, and S. Vatsala V/s. K. S. Mohan and ors (http: //indiankanoon.org /doc/97784775) CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74

s) The case of Sh. Krishan Kumar Sharma (supra) relied by Ld. Counsel for the defendants was remanded by Hon'ble Supreme Court to Hon'ble High Court for fresh consideration and then Hon'ble High Court in the said case held as under: "A right to sue accrues as per Article 137 of the Limitation Act, 1963 depending upon the facts of each case. Whereas in a particular case right to sue may arise on the death of the testatrix inasmuch as circumstances would show objections existing to a Will of the deceased even on the date of death of the testatrix, in other cases merely from the date of death it is not necessary that the right to sue accrues."

t) Further Hon'ble Madras High Court in S. Vatsala (supra) held as under:

"We may examine this matter even from another view point that if Article 137 of the Limitation Act would apply to proceedings for grant of Letters of Administration, then the period of limitation would have to be reckoned from the date when the right to apply accrues and not from the date of death of the deceased. It is only when there is a denial of such right or when the occasion to assert the right accrues, the question of bar of limitation would arise."

u) Now in the light of aforesaid judgment of Hon'ble High Court it is to be seen whether petition 14/2009 is barred by limitation or not. CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74

v) PW1 deposed that Sh. A.R. Jain by virtue of Will dated 17/02/1992 bequeathed suit property admeasuring about 108.33 sq.yards to him so he raised construction of ground to second floor on same. PW1 also deposed that after death of Sh. A. R. Jain, the intention of D1 became dishonest so her relation with his family soared and D1 without disclosing Will of Sh. J. D. Kapoor dated 06/11/1974 obtained conveyance deed dated 19/11/2008 Ex.P2 in her favour and thereafter, she sold the entire property in clandestine manner to D3 vide sale deed dated 02/02/2009 Ex. P1.

w) D1 in her evidence affidavit Ex.DW1/A deposed that plaintiff is merely permissive user/licensee of the suit property and since he refused to vacate the suit property so she sold the same. During her cross examination D1 deposed that "I do not remember and therefore I cannot say if I ever asked Sh. Raj Kumar Jain to vacate the property after selling the property." D1 has not placed any letter/notice whereby she ever asked the plaintiff to vacate the suit property or when plaintiff refused to vacate the same. In view of above, the testimony of D1 to the effect that she asked the plaintiff to vacate the suit property but he refused, does not reliable.

x) D1 obtained conveyance deed qua entire property Ex. P2 without knowledge of plaintiff. The said conveyance deed Ex.P2 is of 19/11/2008 and on the basis of same she sold the entire property to D3 vide sale deed dated 02/02/2009 Ex. P1. Plaintiff filed his petition 14/2009 on 2142009. So under these circumstances, it is clear that plaintiff filed his petition within three years when the cause of action arise hence petition is within limitation. y) Ld. Counsel for defendants further contended that plaintiff claimed their adverse possession to the suit property so his claim regarding ownership on the basis of Will dated 1721992 has gone. In support of his arguments he placed reliance upon Dagadabai V/s. Abbas @ Gulab Rustum Pinjari C. A. no. 83/2008 dated 18/04/2017 S.C. z) Admittedly plaintiff neither in the plaints (suit no. 494/2009) nor in his written statement (suit no. 2144/2009) took the plea of adverse possession qua suit property. However being defendant in suit for possession (2144/2009), he has every right to put forth his defence which is available with him and for that he has every right to claim his ownership qua suit property on basis of will as well as adverse possession which is not the mutually destructive plea for the CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 suit for possession filed against him by D3. In view of this, I find no merit in the arguments of Ld. Counsel for defendants that the claim of plaintiff regarding ownership on basis of Will has gone.

aa) In view of above discussion, I am of considered view that Late Sh. A.R. Jain duly executed Will dated 17.02.1992 Ex.PW1/1 in favour of plaintiff as regard to the suit property. Accordingly, issue no.2A and issue no.1 of probate case no.14/2009 decided in favour of plaintiff.

ISSUE No. 8 & 9

a) In view of finding recorded on issue no.1, 4 and 5, the D3 is not entitled for recovery of possession and damages in respect of suit property against plaintiff as prayed in his suit no.2144/2009. Accordingly, both the aforesaid issues are decided against the D3.

ISSUE No. 7 CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74

a) The D3, categorically pleaded that he has asked the plaintiff to vacate the suit property as he purchased the same from D1 vide sale deed Ex. P1. In view of finding recorded on issue no.1, 2A, 3, 4, 5 and 6, it is held that the plaintiff is owner of suit property and D1 has no right to execute sale deed dated 02.02.2009 Ex. P1 in favour of D3. So, under these circumstances, the plaintiff is entitled to the relief of injunction, as claimed in his suit (494/2009).

b) In view of above, the aforesaid issue is decided in favour of the plaintiff. ISSUE No.2 of Probate Case no.14/2009.

a) The respondent no.1/ D1, during her cross examination admitted her signatures on Will dated 17.02.2009 Ex. PW1/1 at point X. It is not the case of D1 that her signatures were obtained by fraud or concealment, so under these circumstances, it cannot be said that respondent no.1/D1 was not aware of the Will Ex. PW1/1 which in favour of the plaintiff/petitioner. Accordingly, the aforesaid issue is decided in favour of plaintiff.

ISSUE No.3 of Probate Case no.14/2009.

a) Admittedly, the respondent no.1 during her cross examination, admitted her signatures on her statement in the probate case no.95/1979 at point X Ex. P3. She also admitted her signature on Will Ex. P4 executed by J.D. Kapoor in favour of her husband Sh. A.R. Jain on 06.11.1974.

b) In view of above, it is clear that the respondent no.1 signed Will Ex. P4 as an attesting witness and subsequently she appeared as a witness and deposed in probate case no.95/1979 filed by her husband in regard to the Will dated 06.11.1974 Ex. P4. Hence, Sh. A.R.Jain, the husband of respondent no. 1 was the owner of entire property on the basis of Will Ex. P4. Accordingly, the aforesaid issue is decided in favour of plaintiff.

ISSUE No.4 of Probate Case no.14/2009.

a) In view of finding recorded on issues no.1, 2 and 3 of probate petition 14/2009, it is clear that the respondent no.1 was aware that her husband Sh. A.R. Jain become owner of entire property by virtue of Will Ex. P4 and letter of administration with Will dated 05.08.1980 Ex. P3. It is pertinent that Sh. A.R. Jain, during his lifetime executed a Will Ex. PW1/1 in favour of plaintiff CS no. 1845/2016 (Old no. 494/2009) Raj Kumar Jain Vs Nirmala Jain & Ors CS No. CS No. 2599/2016 (Old no. 2144/2009) Kartik Budhiraja Vs Raj Kumar Jain, PC no. 96/2016 (Old no. 14/2009) Raj Kumar Jain Vs Nirmala Jain & Ors Page no. 2 / 74 on 17.02.1992 and inspite of that fact, she sold the suit property to D3 after death of her husband vide sale deed dated 02.02.2009 Ex. P1. So, the sale deed Ex. P1 has no effect qua suit property.

b) In view of above, the aforesaid issue is decided in favour of the plaintiff. RELIEF

16. In view of my aforesaid finding, it is held that

a) Suit of D3 bearing no. 2144/2009 is hereby dismissed whereas Plaintiff suit bearing no. 494/2009 is decreed in his favour and against the defendants and accordingly plaintiff is declared as sole and exclusive owner of suit property i.e. property comprising in portion B of the property on question (as per map attached with Will Ex. PW1/1) situated at A102, Vivek Vihar, Shahdara, Delhi110095 and further the defendants are restrained from interfering with the possession of the plaintiff in the suit property. Decree Sheet be prepared accordingly.

b) Further, petition bearing no. 14/2009 seeking letter of administration is allowed and accordingly, I direct that letter of administration with a copy of Will dated 1721992 Ex. PW1/1 of Late Sh. A.R.Jain, who expired on 2101 1995 be issued subject to petitioner/plaintiff executing the bond to the value of the suit property alongwith one surety bond separately. bi) An inventory of the property of deceased shall be exhibited in the court within six months from the date of grant of letters of administration and statement of account will be filed within one year thereafter. Any violation of the desire of the testator in Will Ex. PW1/1 would lead to revoke of letters of administration.

bii) Let separate bonds be furnished within 4 weeks alongwith the requisite stamp duty. Thereafter the necessary certificate be issued.

17) Copy of this judgment be placed in suit bearing no. 2599/2016 (Old No. 2144/2009) and PC No. 96/2016 (Old No. 14/2009).

18)          File be consigned to Record Room. 

CS no. 1845/2016 (Old no. 494/2009)                               Raj Kumar Jain Vs Nirmala Jain & Ors 
CS No. CS No. 2599/2016 (Old no. 2144/2009)             Kartik Budhiraja Vs Raj Kumar Jain, 
PC no. 96/2016 (Old no. 14/2009)                                  Raj Kumar Jain Vs Nirmala Jain  & Ors      Page no. 2 / 74
 Announced in the                                                               (RAVINDER SINGH)
open court                                                                     Additional District Judge: 
on 25th October, 2017                                                          Shahdara District: 
                                                                               Karkardooma, Delhi. 




CS no. 1845/2016 (Old no. 494/2009)                               Raj Kumar Jain Vs Nirmala Jain & Ors 
CS No. CS No. 2599/2016 (Old no. 2144/2009)             Kartik Budhiraja Vs Raj Kumar Jain, 
PC no. 96/2016 (Old no. 14/2009)                                  Raj Kumar Jain Vs Nirmala Jain  & Ors      Page no. 2 / 74

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Sh. Raj Kumar Jain vs Smt. Nirmala Jain on 25 October, 2017