Delhi District Court
Smt. Savitri Devi ( Since Deceased) vs Shri Krishan Kumar on 15 May, 2012
IN THE COURT OF SH. PITAMBER DUTT; ADJ (CENTRAL)17,DELHI
Suit No. 121/11/05
Unique Case ID No. 02401C0050182005
1. Smt. Savitri Devi ( Since Deceased)
Legal heirs already on record
2 Shri Shiv Charan
S/o Late Dr. Mool Chand Shastri
3 Shri Rakesh Kumar
S/o late Dr. Mool Chand Shastri
All R/o Village Fatepuri
Tehsil & District Rewari, Haryana
4 Ms Asha Sharma
5 Mr. Ashok Kumar
6 Master Sandeep
All children of deceased
Smt. Krishna W/o Shri Daya Ram and
D/o Dr. Mool Chand Shastri
plaintiff no. 6 is a minor and as such is
represented through his next friend and
father Shri Daya Ram
R/o Village Sahabad, Tehsil Tijara
& District Alwar, Rajasthan
.......Plaintiff
Versus
1 Shri Krishan Kumar
S/o Shri khushi Ram
2 Smt. Vidhya Rani
W/o Shri Krishan Kumar
3 Sh. Devender Sharma
S/o Sh. Krishan Kumar
4 Smt. Manu Kumari
W/o Shri Devender Sharma
5 Master Yash Kumar ( Minor)
to be served through and
represent by Shri Devender Kumar
His father & Natural Guardian
Suit no. 121/11/05 1/37
6 Shri Hemant
S/o Shri Mahender Pal
All R/o flat no. 22, Sanskrit Nagar,
Co-operative Group, Housing Society Ltd,
Plot No. 3, Sector-14,
Rohini, Delhi- 110085
.........Defendants
Date of Institution of Suit : 25.01.2005
Date when reserved for orders : 27.04.2012
Date of Decision : 15.05.2012
JUDGMENT
1 Vide this judgment I shall decide a suit for recovery of possession, damages and mesne profit filed by the plaintiffs against the defendants. The brief facts necessitated in filing the present suits are given as under:-
2 That Dr. Mool Chand Shastri S/o Sh. Khem Chand was a member of Sanskrit Nagar Co-operative Group Housing Society. He was alloted a flat bearing no. 22 in the said society on 31.05.1989. After obtaining the possession of the said flat he occupied the same and lived therein till his death. Plaintiff No. 1 is the widow of Dr. Mool Chand Shastri whereas plaintiff no. 2 & 3 are the sons and plaintiff no. 4,5 & 6 are the heirs of daughter of Sh. Mool Chand Shastri.
3 The defendants are also related to Dr. Mool Chand Shastri. The defendant no. 1 was employed in Delhi Police, he did not have any place for his residence in Delhi. Dr. Mool Chand Shastri permitted defendant no. 1 and his family to stay in the suit property. Defendant no. 6 is also related to Dr. Mool Chand Shastri and was also permitted to reside in the suit property as a licensee.
4 Dr. Mool Chand Shastri expired on 4.5.1995 living behind plaintiffs of his legal heirs. After 3-4 days of the death of Dr. Mool Chand Suit no. 121/11/05 2/37 Sharama, defendant no. 1 alongwith defendant no. 3 visited the plaintiffs at their village and got some blank paper thumb impression/signed from the plaintiff on the pretext that they would get the pension of Dr. Shastri transferred in the name of plaintiff no. 1. Considering the close relation plaintiff did not doubt and put their thumb impression and signatures on blank papers.
5 The plaintiffs requested the defendants to make some arrangements for their living else where and deliver the vacant and physical possession of suit property. Plaintiff no. 1 also wrote a letter to the society for getting the suit flat transfer in her name but the society vide its letter dated 3.2.1996 informed her that Dr. Mool Chand Shastri had not nominated any person as his nominee therefore she was required to obtain NOC from the other legal heirs as well as Succession certificate. The plaintiff filed a petition for seeking succession certificate in the court of Civil Judge ( Senior Division) Rewari, however, said petition was dismissed vide order dated 2.3.2002. The plaintiff again filed petition for succession in the court on 4.5.2002 in the said petition defendant no. 1 filed application dated 17.08.2002 alleging himself to be the owner in possession of the suit property. The succession certificate was not granted on the ground that flat in question was situated in Delhi and Rewari Court was having no jurisdiction.
6 Thereafter plaintiff made inquaries from the office of the society as to on what basis defendant no. 3 claimed ownership of the suit property and they found that forgery has been committed in the record of the society by showing defendant no. 3 as the grand son/nominee of Dr. Mool Chand Shastri. As a matter of fact, Dr. Mool Chand Shastri had no grand son of that name. The plaintiff immediately made complaint to the police pursuant to which a case was registered against defendant no. 1 & 3 being FIR No. 70 dated 23.09.2002 under Section 420/467/468/471 IPC.
Suit no. 121/11/05 3/377 The plaintiff also made representation to DDA and Registrar of Co-operative Societies for getting the flat transferred. The plaintiffs requested the defendant on several occasions to vacate the suit property and hand over the actual possession to them but defendants have not cared to vacate the same. The defendants have no right, title or claim in the suit property. They are liable to hand over the actual physical possession of the suit property to the plaintiffs as there license has come to an end on the death of Dr. Mool Chand otherwise plaintiff requested them to vacate the suit property but they failed to do so. On the basis of aforesaid averment, present suit has been filed for adjudication.
8 Pursuant to the summons defendants appeared and filed their written statement taking preliminary objection that defendant no. 3 is an absolute owner of the suit property by virtue of will dated 25.04.1994 executed by late Sh. Mool Chand Shastri during his life time, that the value of the suit property is Rs. 25 lacs therefore this court has no jurisdiction to adjudicated the present suit, that the suit is bad for non-joinder of necessary parties, that Plaintiff failed to obtain succession certificate from the competent court of jurisdiction, therefore, without seeking the relief of declaration the suit is not maintainable.
9 On merit it is stated that plaintiffs had strained relations with Dr. Mool Chand Shastri and for that reason he never lived with the plaintiffs even after his retirement on 30.04.1990 till his death on 4.5.1995. Dr. Mool Chand Shastri treated defendant no. 1 as his own son and defendant no. 3 as his grand son. He became the member of Sanskrit Nagar Co-operative Group Houseing Society Ltd at the instance of defendant no. 1 who paid all the money as installments alongwith defendant no. 3 sometime in cash and sometime through cheques. It is further averred that during his life time Dr. Mool Chand Shastri, nominated defendant no. 3 as his nominee in the records of the Sanskrit Nagar Co- operative Group Housing Society Ltd. Dr. Mool Chand has also executed a will in favour of defendant no. 3 on 25.04.1994 in respect of suit property Suit no. 121/11/05 4/37 and on the basis of the said will, defendant no. 3 has become absolute owner of the suit property after the demise of Dr. Shastri. He applied for mutation with DDA qua the said flat and received a letter No. F. 5(173)2001/GH/DDA/68 dated 5.1.2004 to the effect that documents submitted by him were not as per booklet.
10 The defendant no. 3 had filed original will dated 25.04.1994 and inadvertently did not retain the photocopy of the same. It is further averred that defendant no. 3 in possession of the original documents of the flat including the Pass Book showing the payment of installments, house tax receipts, death certificates of Dr. Mool Chand Shastri etc. It is denied that defendants were staying in the suit property as a licencee under the permission of Dr. Mool Chand Shastri. It is stated that Dr. Mool Chand Shastri was the real uncle of defendant no. 1 and was member of Joint Hindu family. He was looked after and was provided meals and all comforts by the defendant no. 1 from his salary and they are living in the suit property within their right as a owner and not as licensee.
11 Dr. Mool Chand Shastri during his life time purchased a house in the name of his daughter in law Smt. Sunita W/o Shiv Charan at Village Kosli and also got opened a chemist shop afster taking a shop on rent and gave to his son Shiv Charan through a family settlement, the agricultural land of the village have been partitioned by meets and bounds and mutations of the agricultural land has been done in the name of the plaintiff. Dr. Mool Chand Shastri after his retirement has established his sons and wife and daughters but after the death of Dr. Mool Chand Shastri, the plaintiffs have sold the house and shop at Kosli. It is further averred that plaintiffs on their own hand written a letter to the Secretary of Sanskrit Nagar co-operative Housing Society Ltd on 5.9.1995 stating that they have received their share in the village and they do not claim any right in the suit property. Now, the plaintiffs have become dishonest and filed the present suit.
Suit no. 121/11/05 5/3712 It is stated that plaintiffs have no right, title or interest in the suit property. It is denied that plaintiff signed any blank papers. It is also denied that society informed the plaintiff that Dr. Mool Chand Shastri had not nominated any person as his nominee. It is also denied that defendant no. 3 has forged any documents showing him to be the grandson and nominee of Dr. Mool Chand Shastri. It is also denied that defendant no. 1 & 3 and father of defendant no. 6 had used any blank thumb marked and signed paper of the plaintiffs no. 1 to 3 for laying the claim in respect of the suit property. It is also denied that plaintiff have ever requested the defendants to vacate the suit property or that plaintiffs have right to claim any interest in respect of the suit property. It is denied that defendants are occupying the suit property as licensee or they are liable to hand over the the suit property to the plaintiffs. All other averments have also been denied. It is prayed that suit be dismissed with cost.
13 The Plaintiffs filed replication to the written statement thereby reiterated the averment made in the plaint and denied the averment made in the written statement.
14 On the basis of the pleadings of the parties, the ld. Predecessor of this court vide order dated 20.04.2007 framed the following issues for adjudication:-
1. Whether will dated 25.04.94 was validly executed by Sh. Mool Chand Shastri in favour of defendant no. 3 pertaining to the suit property? If so its effect? OPD
2. Whether the suit has been properly valued for the purposes of court fees and jurisdiction? OPP
3. Whether the suit is bad for non-joinder of necessary parties? OPD
4. Whether plaintiffs are entitled to the relief of possession of the suit property? OPP
5. Whether plaintiffs are entitled to the relief of possession of the suit property? OPP
6. Whether plaintiffs are entitled to recovery of Rs.1,80,000/- with/without interest as as claimed? OPP
7. Whether plaintiffs are entitled to damages for use and occupation of the suit property? If so, at what rate and for what period? OPP
8. Relief Suit no. 121/11/05 6/37
15 The Ld. Predecessor of this court vide order dated 29.05.2007 further framed three additional issues which are as under:-
8. Whether the present suit is not maintainable without seeking the relief of declaration, as claimed by the defendants? OPD
9. Whether late Dr. Mool Chand Shastri had nominated the defendant no. 3 as his nominee pertaining to the suit property in the records of Sanskrit Nagar Co-operative Society? If so, its effect? OPD
10. Whether installments pertaining to the suit property had been paid by defendants no. 1 & 3 prior to death of Dr. Mool Chand Shastri as well as thereafter? If so, its effect? OPD 16 In order to prove their case, plaintiff have examined plaintiff no. 3 as PW-1 who reiterated the averment made in the plaint in his examination in chief. PW-1 exhibited the death certificate of Dr. Mool Chand Shastri as Ex. PW-1/1, Pension Certificate as Ex. PW-1/2, Letter dated 3.02.96 sent by the society as Ex. PW-1/3, Order dated 2.3.2004 as Ex. PW-1/4, Letter dated 17.05.2001, 26.5.2001, 30.08.2001, 11.10.2001 and 24.03.2002 as Ex. PW-1/5 to 9. Certified copy of the order dated 18.12.2003 as Ex. PW-1/10 and letter dated 8.10.2002 as Ex. PW-1/11.
17 In order to answer the claim of the plaintiffs, defendant No. 1 has examined himself as DW-1 who reiterated the averment made in the written statement in his examination in chief. DW-1 exhibited the Special Power of Attorney in favour of defendant no. 2 to 4 as Ex. DW-1/1 to Ex.
DW-1/4. WILL as Ex. DW-1/5, Covering letter of DDA as Ex. DW-1/6, Acknowledgment Ex. DW-1/7, Pass book Ex. DW-1/8 and the receipts as Ex. DW-1/9 to 36, house tax receipts and house tax bills Ex. DW-1/37 to
55. He has also filed an additional affidavit with respect to the execution of the will on 15.11.2008.
18 Defendants have also examined Sh. Prem Kumar Nagapa, another attesting witness of the will Ex. DW-1/5 as DW-2.
Suit no. 121/11/05 7/37Defendants have also examined defendant no. 3 as DW-3 who reiterated the averment made in the written statement in his examination in chief.
They have also examined Syeed Sarfarj Ahmed handwriting expert as DW-4 who proved his report Ex. DW-4/B in evidence. He has been throughly cross-examined by the plaintiff.
19 The Defendants have also examined Parmod Dayal, Assistant from Group Housing Co-operative department DDA as DW-5. In his examination in chief DW-5 deposed that the original covering letter and original un-registered will are in the record brought by him. The receipt of deposit of documents dated 27.11.2003 is Ex. DW-5/2. During cross- examination he deposed that he cannot identify the signatures of the person on the documents Ex. DW-5/2. He further stated that receipt did not bears his signatures and there is no mention of any will in this respect.
20 Defendants have also examined Sh. S.B. Pandey, clerk from the Sanskrit Nagar Co-operative Group Housing Society as DW-6 who brought the extract of the register regarding the nomination of Dr. Mool Chand Shastri as Ex. DW-6/A. During cross-examination DW-6 deposed that he does not have any personal knowledge about the record. He does not know Dr. Mool Chand Shastri's signatures identify by him at point A on the photocopy as that of Mool Chand was not arrived in his presence and making the statement by seeing the original register summoned for today. He cannot give the date on which the word Mool Chad were written in the original register brought today.
21 The plaintiffs have also examined an hand writing expert Sh. S.P. Singh as PW-2 in rebutal plaintiff evidence who submitted his report Ex. PW-2/1. PW-2 has also been throughly cross-examined by counsel for the defendant.
Suit no. 121/11/05 8/3722 I have heard ld. Counsel for the parties and perused the pleadings, evidence and documents placed on record. My issue wise findings is as under:-
23 Issue no. 1: Whether will dated 25.04.1994 was validly executed by Sh. Mool Chand Shastri in favour of defendant no. 3 pertaining to the suit property? If so, its effect? OPD The defendants have taken a plea that defendant no. 3 is the absolute owner of the suit property by virtue of a will dated 25.04.94 executed by late Sh. Mool Chand Shastri during his life time in his favour Thus plaintiffs have no right and title in respect of the suit property.
24 The plaintiffs have controverted the said plea and pleaded that Sh. Mool Chand Shastri had not executed any will and defendants have manipulated, forged and fabricated some documents alleging it to be the will of deceased Dr. Mool Chand Shastri. As per the plaintiffs they are the legal heirs of late Sh. Mool Chand Shastri and have become the owner of the suit property after his death.
25 In order to substantiate their plea, both the parties have led their respective evidence.
26 An examination of the pleadings and the evidence led on record shows that it is an admitted case that Dr. Mool Chand Shastri was the owner of the suit property. He died on 4.5.1995 leaving behind plaintiff as his legal heirs. As per the plaintiffs Sh. Mool Chand Shastri died intestate and had not executed any will thus after his demise they have become the owner of the suit property. Whereas as per the defendants Dr. Shastri executed a will dated 25.04.1994 in favour of defendant no. 3 by virtue of which defendant no. 3 has become the sole and absolute owner of the suit property.
Suit no. 121/11/05 9/3727 The onus to prove, that Dr. Shastri executed a will is upon the defendants. To prove the validity and genuineness of the will as per Section 63 of Indian Succession Act 1925, defendants have to show that the will was signed by the testator and that he put his signature on the testament out of his own free will, that he was at the relevant time was in sound and disposing state of mind and understood the nature and effect of the same and that the testator had signed the testament in the presence of two witnesses who attested it in his presence and in the presence of each other.
28 The Hon'ble Supreme Court of India in Savithri vs. Karthyayani Amma reported as AIR 2008, S.C 300 has held that "The legal requirements in terms of the said provisions are now well settled, a will like any other documents is to be proved in terms of the provision of Indian Succession act and the Indian Evidence Act. The onus to prove the will is on the propounder. The testamentary capacity of the testator must also establish. Execution of the will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the will. It is required to be shown that the will has been signed by the testator with his own freewill and at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the will in the presence of 2 witnesses who attested his signature in his presence or in the presence of each other. Only when there suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before it can be excepted as genuine"
29 A will must be proved having regard to the provision contain in Clause 'C" of Section 63 of the Indian Succession Act 1925 and Section 68 of Indian Evidence Act 1872. In terms where of the propounder of a will must prove its execution by examining one or more attesting witnesses. In case will is surrounded by suspicious circumstances it would Suit no. 121/11/05 10/37 not be treated as the last testamentary disposition of the testator.
30 The Hon'ble Supreme Court of India in H. Venkantachal Iyyengar Vs B.N. Thimmajamma reported as AIR 1959 SC, 443 has opinioned that the fact that the propounder took interest in execution of the will is one of the factor which should be taken into consideration for determination of due execution of the will. It was also held that one of the important feature which distinguishes wills from other documents is that will speaks from the date of death of the testator, and so when it s propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator so. It was also held that the propounder of the will must prove (1) the will signed by the testator, in a sound and disposing state of mind, duly understanding the nature and effect of the dispositions and he put his signatures on the document of his own free will, (2) when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signatures as required by law, court would be justified in making a finding in favour of the propounder. (3) if a will is challenged as surrounded by suspicious circumstances, are such legitimate doubt have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicious.
31 In view of the will settled legal preposition, the person who is prepounding a will has to satisfy the above essential condition of Section
63. The most important condition is that the testament was signed by the testator and at the time of signing the testator was in sound dispossessing state of mind and he put his signatures after understanding the contents of the same. Unless and until the above essential conditions are satisfied the onus of the pre-pounder is not discharged. The law is well settled that Suit no. 121/11/05 11/37 conscious of the court must be satisfied that will in question was not only executed and attested in the manner required under the Indian Succession Act 1925 but it should also be found that the said will was the product of the free volition of the executant who has executed the same after knowing and understanding the contents of the will. Therefore, whenever there is any suspicious circumstances, the obligation is casts on the propounder of the will to dispel those suspicious circumstances.
32 In the instant case the defendants have claimed that late Sh. Mool Chand Shastri had executed a will Ex. DW-1/5 in favour of defendant no. 3 whereas plaintiffs have put forth a plea that late Sh. Mool Chand Shastri died intestate without executing any will. As per them the will Ex. DW-1/5 is forged and fabricated document and it does not bears the signatures of late Sh. Mool Chand Shastri.
33 The paramount question is as to whether the will Ex. DW-1/5 bears the signatures of Dr. Mool Chand Shastri or not? DW-1 who is one of the attesting witnesses of the will, during his examination in chief deposed that the will bears the signatures of late Sh. Mool Chand Shastri. During his cross-examination he denied that will Ex. DW-1/5 was not executed and signed by Sh. Mool Chand Shastri and forged by him. He denied that Sh. Mool Chand Shastri used to carry his work only in English language. He volunteered that he used to work in Hindi and English both. He stated that he written a small book in Hindi but he cannot produce any other document prepared by Dr. Mool Chand Shastri in Hindi. He has not seen court diary of Dr. Mool Chand Shastri. He used to sign using the spelling " Mool Chand". He admitted that the signatures on Ex. DW-1/5 at point A on page 1 & 2 are using the spelling " Mool Chnad". He denied that on Ex. DW-1/5 he had written the word Mool Chnad at two places as stated above by him. He further stated that he does not have any other document signed by Sh. Mool Chand Shastri in the manner in which signatures appearing on Ex. DW-1/5 and Ex. DW-1/6.
Suit no. 121/11/05 12/3734 The defendants have also examined Sh. Prem Kumar Nagpal as DW-2 who deposed in para 2 of examination in chief that Dr. Mool Chand Shastri signed the will Ex. DW-1/5 at point A. During cross- examination he deposed that he has not seen Dr. Mool Chand Shastri signing or writing any other document except the will. He denied that will Ex. DW-1/5 does not bear the signatures of Dr. Shastri and same has been prepared by him and defendant no. 1 in collusion with each other.
35 In order to prove the signatures of Dr. Mool Chand Shastri over the will Ex. DW-1/5, defendants have examined Sh. Sarfraz Ahmed hand writing expert as DW-4 who submitted his report Ex. DW-4/B in which after examining the signatures appearing on the will Ex. DW-1/5 with the admitted signature of Dr. Mool Chand Shastri. The said witness has opinioned that the will bears the signature of Mool Chand Shastri.
36 To substantiate their plea that the will Ex. DW-1/5 does not bear the signatures of Sh. Mool Chand Shastri, plaintiffs have also examined an hand writing expert Sh. S.P. Singh as PW-2 who has also submitted his report Ex. PW-2/1 in which after examining the signatures appearing over the will with the admitted signature of the testator, the expert has opined that the signatures appearing over the will are not written in the hand writing of the same person.
37 An examination of the evidence led on record shows that defendants have taken a plea that will Ex. DW-1/5 bears the signature of Mool Chand Shastri whereas plaintiffs have denied the said pleas. Both the parties have examined an expert witness in support of their respective plea, however, both the expert witnesses i.e DW-4 and PW-2 have submitted their report giving divergent opinion qua the signature of Dr. Mool Chand Shastri over the will. As per DW-4 who has been examined by the defendants, the will bears the signatures of Mool Chand Shastri whereas as per PW-2 examined by the plaintiff the signatures appears over the will do not tally with the signature of Mool Chand Shastri.
Suit no. 121/11/05 13/3738 Both these expert witnesses have examined the signatures appearing over the will Ex. DW-1/5 with the same admitted signatures of Dr. Shastri. Both these witnesses have adopted the same methodology while examining the hand writing as mentioned in their report. However, both these expert witnesses reached on a different conclusions qua the hand writing of Dr. Shastri which is un-understandable. The testimony of both these witnesses is thus of no help in determining the fact as to whether the will Ex. DW-1/5 bears the signatures of Dr. Shastri or not.
39 In these peculiar facts In the above facts and circumstances, this court is left with no other alternative option but to examine the hand writing of the testator itself with his admitted signatures as contemplated under Section 73 of the Indian Evidence Act and to find out as to whether the will Ex. DW-1/5 bears the signatures of the testator or not. During cross-examination DW-1 admitted that documents Ex. DW-1/PA, PB, PC and PD bears the signatures of Dr. Mool Chand Shastri. Thus defendant no. 1 has admitted that document Ex. DW-1/PA, PB, PC and PD bears the original signatures of Dr. Mool Chand Shastri.
40 A perusal of the documents Ex. DW-1/PA which is an affidavit submitted by Dr. Mool Chand Shastri shows that it bears the signatures of Dr. Mool Chand Shastri at points B and C by using spelling, " Mool Chand". The another document Ex. DW-1/PB is another affidavit of testator bearing his signatures at A & B in the similar manner by using the same spelling the document Ex. DW-1/PC is also having signatures of Dr. Shastri in the similar manner. The last documents is Ex. DW-1/PD which is a nomination form submitted by or Shastri, which also bears his signatures at point A in the manner, " Mool Chand Shastri". I have also perused the signatures appearing of over the will Ex. DW-1/5 at point A and point AA. At point AA the will Ex. DW-1/5 bears the signatures by using spelling " Mool Chnad" and similar signature appearing at point A at page 2. A comparison of signatures appearing over the will Ex. DW-1/5 with the signatures appearing over the documents Ex. DW-1/PA, PB, PC Suit no. 121/11/05 14/37 and PD clearly demonstrate the signatures appearing over the will Ex. DW-1/5 do not tally with the signatures appearing over the admitted documents Ex. DW-1/PA to Ex. DW-1/PD. The signature appearing over the admitted document Ex. DW-1/PA to PD and the will Ex. DW-1/5 have not been made by one of the same person. The mode and the manner of these two sets of signatures clearly suggest that same have not been done by the same person and appears to be in the hand writing of two different persons.
41 It is relevant to mention that DW-1 during his cross- examination admitted that Mool Chand Shastri used to sign using the spelling " Mool Chand". He has also admitted that signature on Ex. DW-1/5 at point A on pages 1 & 2 are using the spelling " Mool Chnad". He has further stated that he does not have any document signed by Mool Chand Shastri in the manner in which signature appearing on Ex. DW-1/5. The above testimony of DW-1 that Mool Chand Shastri used to sign by using spelling, " Mool Chand" and not " Mool Chnad" as appearing over the will Ex. DW-1/5 clearly shows that the will Ex. DW-1/5 does not bear the signatures of Dr. Shastri. It is also relevant that defendant No. 1 has admitted that they have all the record of Dr. Shastri with them but he showed his inability to produce any other document which bears the signatures of Mool Chand Shastri in the manner in which it is appearing over the will Ex. DW-1/5. If Dr. Mool Chand Shastri was putting his signatures in that manner the defendants who are holding the entire record with them, must have some of the documents bearing his signatures in the manner in which these are appearing over the will Ex. DW-1/5. But defendant no. 1 has categorically stated that he does not have any other document signed by Mool Chand Shastri in the manner in which signatures are appearing in Will Ex. DW-1/5 and nomination Ex. DW-1/6.
42 The cumulative examination of the above facts clearly shows that defendants have failed to prove that the will Ex. DW-1/5 bears the signatures of Dr. Mool Chand Shastri.
Suit no. 121/11/05 15/3743 The defendants have sought to raise a plea that Mool Chand Shastri executed a will in favour of defendant no. 3 which was signed by defendant no. 1, father of defendant no. 3 as one of the attesting witness and by one Prem Kumar Nagpal who is friend of defendant no. 1. A perusal of the testimony of both these attesting witnesses shows that both the witnesses have not mentioned in their testimony as to whether late Mool Chand Shastri was aware about the contents of the will or if he was in a sound and disposing state of mind at the time of execution of the will Ex. DW-1/5. The defendant no. 1 was having a personal and direct interest in the execution of the will. He took active part in the execution of the will.
44 The testimony of DW-2 clearly shows that he claimed that he was a friend of Dr. Mool Chand Shastri, however, he showed his ignorance about the material particulars with respect to the life of Mool Chand Shastri. He was not aware as to whether Mr. Shastri was practicing as an advocate or for what purpose he was going in the court. He was also not aware about the fact as to how much salary he was drawing at the time of his retirement or whether he was drawing salary more than defendant no. 1. The above testimony of DW-2 depicts that he was not having any knowledge about the life and status of Dr. Shastri although he claimed himself to be his friend. In his examination in chief DW-2 stated that Dr. Shastri took out a typed will dated 25.04.94 from his bag, however, during his cross-examination he stated that said will was in an envelope and he showed his ignorance about the fact as to whether Dr. Shastri was carrying any bag or briefcase at that time. As per the law the attesting witness is required to deposed that testator has signed the will and he put his signatures out of his own free will having a sound disposing state of mind and understood the nature and effect thereof. However, no such averment has been made by DW-2 in his entire testimony. Thus the testimony of DW-2 is not in accordance with the law.
Suit no. 121/11/05 16/3745 It is also relevant that Dr. Mool Chand Shastri was retired as a Reader on 30.4.1990 and started practicing as an advocate in Tis Hazari Court, thus Dr. Mool Chand Shastri was a lawyer by profession at the time of his death. A lawyer is aware about the legal requirement and the intricacies of the law. A perusal of the will Ex. DW-1/5 clearly shows that same has not been prepared by a person acquainted with the law of will. A person such as Mr. Mool Chand Shastri who was retired as Reader from Lal Bhadur Shastri Rashtriya Sanskrit Vidya Peeth and lawyer by profession at the time of his death would not have drafted the will in this manner. The essential requirement of the will are completely missing in Ex. DW-1/5. There is no justification in the will for excluding the natural heir from the inheritance of the suit property by the testator. The exclusion of the natural heir from the inheritance itself is a suspicious circumstances which is to be dispel by the defendant however they have failed to lead any evidence on this aspect.
46 As per the defendants late Sh. Mool Chand Shastri executed the will in favour of defendant no. 3. The DW-1 during his cross- examination has admitted that will Ex. DW-1/5 was in his power and possession. He also stated that the execution of the will was in the knowledge of him and his son from the date of its execution on 25.4.1994. However, defendant no. 3, who examined himself as DW-3 deposed during his cross-examination that he came to know about the will Ex. DW-1/5 on 27.11.2003. He further stated that he obtained the knowledge about the will one or one and half year prior to 27.11.03. He further stated that he cannot tell the exact date when he acquired knowledge about the will Ex. DW-1/5. The testimony of DW-1 and DW-3 are thus contradictory to each other. As per DW-1 he and his son defendant no. 3 were having the knowledge of the will Ex. DW-1/5 since the date of its execution whereas as per DW-3 he came to know about the will first time on 27.11.2003 or one or one and half year prior to the said date. He was not sure about the date when he acquired the knowledge about the will. The aforesaid contradictions in the testimony of DW-1 raises serious doubt Suit no. 121/11/05 17/37 about the existence of the will Ex. DW-1/5.
47 It is also relevant to mention that DW-1 admitted that letter Ex. DW-1/E, F & G have been written on his own hand writing and bears the signatures of his son Devender Sharma at point A. These letters have been address to the Secretary of Sanskrit Nagar Co-operative Group Housing Society with respect to the suit flat. A perusal of the letters Ex.DW-1/ PE, PF & PG clearly shows that the defendant has not averred a word in these letters regarding the will executed by late Mool Chand Shastri in favour of defendant no. 3. In letter Ex. DW-1/PF a request is made that flat in question be transferred in favour of defendant no. 3 on the basis that his father, defendant no. 1 used to give money to the owner of the flat who used to deposit the amount in the society, on that basis a request is made to the society to transfer the suit flat. Whereas in letter Ex. DW-1/PG it is mentioned that Smt. Savitri Devi and the plaintiffs were paid their due share with respect to the suit property and they assured that they would not claim any right in the suit property. Thus sought release of the documents of the suit property from the society. Letter Ex. DW-1/PE to PG clearly shows that defendants have made various requests to the society to transfer the suit property in their favour and release all the documents of the suit property however it has not been mentioned in these letters that late Sh. Mool Chand Shastri executed a will in favour of defendant no. 3. Whereas as per defendant no. 1 the said will was in his personal possession since the date of its execution. If the said will was in their possession they should have sought mutation of the suit flat in their favour on the basis of the said will, however, interestingly, not a word has been mentioned in these letters regarding the will in favour of defendant no. 3 for the reason best know to them. The above fact clearly raises a doubt about the existence of the will Ex. DW-1/5 at the time when the letters Ex. DW-1/PE to F were written by defendant no. 1.
48 It is also relevant that DW-1 during his cross-examination has stated that he informed the wife and children of Dr. Shastri that Dr. Shastri Suit no. 121/11/05 18/37 had left a will in favour of his son orally and not in writing. He further stated that he does not know the date, month and year when he told his heirs about the will. The defendants have not given any such suggestion to PW-1 during his cross-examination that they were informed by defendants about the fact that Mool Chand Shastri had executed a will in favour of defendant no. 3. The plaintiffs have placed on record letter dated 5.9.95 which is exhibited as PW-1/D1 as well as Ex. DW-1/PH. During cross-examination DW-1 admitted that the letter Ex. DW-1/PH was written by him. As per the plaintiff the defendant obtained their signatures over the blank papers. Whereas as per the defendants same were read over to the plaintiff and was got written by them out of their own free will. A perusal of letter shows that it is incorporated in the said letter that plaintiffs have received their share in the suit property and they do not have any further claim in the suit property. The said letter was address to the Secretary, Sanskrit Nagar Group Housing Society . It is the admitted fact that letter Ex. DW-1/PH was written by defendant no. 1 in his own hand writing. However, not a word has been mentioned in the entire letter with respect to the execution of the will in favour of defendant no. 3 by late Sh. Mool Chand Shastri. In the said letter it is mentioned that the plaintiffs have received the money in view of their share in the suit property from the defendants. If late Mool Chand Shastri had executed a will with respect to the suit property in favour of defendant no. 3 which was in the possession of defendant no. 1 & 3 since its execution then what was the occasion for the defendants to pay any amount to the plaintiffs in lieu of their share in the suit property. The said fact clearly shows the contradictions in the plea put forth by the defendant with respect to the execution of the will and raises a serious doubt about the authenticity and the existence of the will Ex. DW-1/5. All these suspicious circumstances remained un-explained.
49 In view of the above facts and circumstances, I am of the considered view that defendants have failed to prove on record that late Sh. Mool Chand Shastri had executed any will dated 25.04.1994 in favour of defendant no. 3 with respect to the suit property. The defendants have Suit no. 121/11/05 19/37 also failed to dispel the suspicious circumstances surrounding around the due execution of the will Ex. DW-1/5. The defendants have thus failed to discharge the onus of issue no. 1, same is accordingly decided against the defendants.
50 Issue no. 2: Whether the suit has been properly valued for the purpose of court fees and jurisdiction ? OPP The defendants have taken a plea that plaintiffs have not valued the suit property for the purpose of court fees and jurisdiction as value of the suit property is Rs. 25 lacs. The plaintiffs have controverted the said plea of the defendant and averred that value of the suit property is not more than Rs. 3,15,905/-.
51 An examination of the evidence led on record shows that plaintiffs have valued the suit property for the purpose of recovery of possession at Rs. 3,15,905/-. The said valuation has been disputed by the defendants who have taken a plea that value of the suit property is Rs. 25 lacs. However defendants have not placed any material on record which can show or suggest that the value of the suit property was not Rs. 3,15,905/- at the time of filing of the suit but Rs. 25 lacs. In the absence of any material contrary to the valuation made by the plaintiffs, the plea taken by the defendants that the suit has not been valued property for the purpose of court fees and jurisdiction remained unsubstantiated and unproved.
In view of the above facts and circumstances, I am of the considered view that plaintiffs have proved on record that they have correctly valued the suit for the purpose of court fees and jurisdiction. The plaintiffs have discharge the onus of issue no. 2, same is accordingly decided in favour of the plaintiffs.
52 Issue no. 3: Whether the suit is bad for non-joinder of necessary parties? OPD The defendant have taken a plea that DDA and Sanskrit Nagar Group Housing Society are the necessary parties and without Suit no. 121/11/05 20/37 impleading them the present suit can not be properly adjudicated. The plaintiff has controverted the said plea in the corresponding para of the replication and pleaded that suit is not bad for non-joinder of necessary parties.
53 The present suit has been filed by the plaintiff against the defendants on the ground that the suit property was owned by Dr. Mool Chand Shastri husband of plaintiff no. 1 and father of plaintiff no. 2 & 3 who died on 4.5.1994. After his death all the plaintiffs become the owner of the suit property. As per the plaintiff, the defendants were residing in the suit premises as a licensee and their license came to an end at the death of Dr. Mool Chand Shastri, however, they failed to vacate the suit property despite requests. On the other hand defendants have taken a plea that Dr. Mool Chand Shastri executed a will in favour of defendant no. 3 thereby bequeathed the entire suit property in his favour and defendant no. 3 has become the owner of the suit property by virtue of said will.
54 It is not in dispute that Dr. Mool Chand Shastri was the owner of the suit property who died on 4.5.1994. The dispute is as to whether defendants are occupying the suit property as an unauthorised occupants or as a owner. If the defendants are able to prove that late Mool Chand Shastri had executed a will in favour of defendant no. 3 then plaintiff would not be entitled to get the relief sought by way of present suit, however if defendants have failed to prove the execution of the will, the suit of the plaintiff is liable to be decreed. The plaintiff has not claimed any relief whatsoever against DDA or Group Housing Society. The controversy involved in the present suit can be adjudicated upon effectively in the absence of DDA and the society.
In view of the facts circumstances, I am of the considered view that suit is not bad for non-joinder of necessary parties. The defendants have failed to discharge the onus of issue no. 3, same is accordingly decided against the defendants.
Suit no. 121/11/05 21/3755 Issue no. 8: Whether the present suit is not maintainable without seeking the relief of declaration, as claimed by the defendants? OPD The defendants have taken a plea that plaintiffs has not obtained the Succession certificate from the court of competent jurisdiction in respect of the suit property, therefore, without seeking the relief of declaration that they are the owner of the suit property, present suit for possession against the defendants is not maintainable. The plaintiffs have controverted the said plea in the corresponding para of the replication.
56 An examination of the pleadings and evidence led on record clearly shows that it not in dispute that late Sh. Mool Chand Shastri was the owner of the suit property. The plaintiff in para 3 of the plaint have made an averment in that respect which have not been disputed by defendants. It is also not in dispute that plaintiff no. 1 is the widow of Dr. Mool Chand Shastri and plaintiff no. 2 & 3 are his son and plaintiff no. 4 to 6 are the daughter and sons of deceased Smt. Krishna who was the daughter of late Dr. Mool Chand Shastri. It is also not in dispute that Dr. Mool Chand Shastri expired on 4.5.1994. Thus plaintiffs are entitled to inherit the property of the deceased Mool Chand Shastri after his death by operation of law. No doubt that the plaintiffs earlier filed proceedings for seeking succession certificate before the court at Rewari, Ex. PW-1/D1 & D2 and those proceedings were dismissed by the court. However fact remains that plaintiffs are the legal heir of deceased Mool Chand Shastri who was the owner of suit property, thus on his demise they have become the owner of the suit property by operation of law and no such declaration is required on this aspect. The defendants sought to raise a plea that defendant no. 3 has become the owner of the suit property by way of testamentary succession. However, defendants have failed to prove on record that Dr. Mool Chand Shastri executed any will in favour of defendant no. 3. Dr. Mool Chand Shastri was the owner of the suit property who died on 4.5.94 and after his demise plaintiffs being the first Class legal heirs of deceased Mool Chand Shastri inherited the suit Suit no. 121/11/05 22/37 property and thus become the owner of the suit property by operation of law.
57 In view of the above facts and circumstances, I am of the considered view that plaintiffs are Class I legal heir of late Sh. Mool Chand Shastri who was the owner of the suit property who intestate on 4.5.1994. The plaintiffs, being class I heirs of Dr. Shastri have inherited the suit property and have become the owner of the same after his death by operation of law. The present suit for possession is thus maintainable without seeking any relief of declaration as pleaded. The defendants have failed to discharge the onus of issue no. 8, same is accordingly decided against the defendants.
58 Issue no. 4: Whether plaintiffs are entitled to the relief of possession of the suit property? OPP Issue no. 9: Whether late Dr. Mool Chand Shastri had nominated the defendant no. 3 as his nominee pertaining to the suit property in the records of Sanskrit Nagar Co-operative society? If so, its effect? OPD Issue no. 4 & 9 are taken together as they are inter-
connected. The onus to prove issue no. 4 is on the plaintiff whereas onus to prove issue no. 9 upon the defendants.
59 The plaintiffs have taken a plea that Dr. Mool Chand Shastri was the owner of suit premises bearing no. 22 in Sanskrit Nagar Co- operative Society. Sh. Mool Chand Shastri permitted defendants to reside in the suit property as licenseee. Sh. Mool Chand Shastri died on 4.5.1995 leaving behind plaintiffs as his legal heirs. Thus the plaintiffs have become the owner of the suit property after the death of Dr. Mool Chand Shastri. As per the plaintiffs the license of the defendant was terminated with the death of Mr. Shastri, but they failed to vacate the suit premises despite the request of the plaintiffs, thus, their occupation in the suit premises is of an un-authorised occupants.
Suit no. 121/11/05 23/3760 The defendants have taken a plea that Dr. Mool Chand Shastri was the real uncle of defendant no. 1, he became the member of the society at his instance. Dr. Mool Chand Shastri nominated defendant no. 3 as his nominee in the record of the society and also executed a will in his favour during his life time on 25.04.1994, thus after the death of Dr. Mool Chand Shastri on 4.5.1995, defendant no. 3 has become the absolute owner of the suit property. The defendants have also taken a plea that plaintiffs were paid their due share with respect to the suit property and they had given their NOC dated 5.09.95 with respect to the suit property. As per the defendants they are occupying the suit property as owners and not as an un-authorised occupants.
61 In order to prove their respective pleas, both the parties have led their respective evidence.
62 An examination of the pleadings and evidence led on record clearly shows that it is not in dispute that Dr. Mool Chand Shastri was the owner of the suit property and the said flat was alloted to him being the member of the society. It is also not in dispute that plaintiffs are the legal heirs of Dr. Mool Chand Shastri. As per the plaintiffs they have become the owner of the suit property after the death of Dr Shastri on 4.5.1994 being his legal heirs, whereas as per the defendants Dr. Mool Chand Shastri declared defendant no. 3 as his nominee and he also executed a will in his favour during his life time, therefore, defendant no. 3 has become the owner of the suit property.
63 The first plea taken by the defendants is that Dr. Mool Chand Shastri nominated defendant no. 3 as his nominee in the record of the society. The plaintiff has controverted the said plea and pleaded that defendants committed forgery in the record of the society showing defendant no. 3 to be the grand son and nominee of Dr. Mool Chand Shastri.
Suit no. 121/11/05 24/3764 A perusal of the material placed on record shows that this plea of the defendants is based upon the document which is a member register of the society, Ex. DW-6/A, where the name of the defendant no. 3 has been mentioned as grand son. The said entry purported to have been signed by Dr. Mool Chand Shastri as well. Besides the said document, defendants have not placed any other material which can show or suggest that late Mool Chand Shastri declared defendant no. 3 as his nominee with respect to the suit property.
65 A member of the society can nominate his nominee by filling a form and such nomination to be recorded in the Resolution of the society and thereafter consequent entry to be entered in the members register maintained by the society. However, defendants have not placed any such form submitted by Dr. Shastri whereby he made request for nomination of defendant no. 3 as his nominee. The plaintiffs have produced on record the form Ex. DW-1/PD submitted by Dr. Mool Chand Shastri to the society for allotment of share in his favour. The column of nominee in the said form is blank. The aforesaid fact shows that at the time of seeking allotment of share in his favour, Dr. Mool Chand Shastri did not mention the name of any nominee in his form.
66 The plaintiffs have also placed on record letter dated 3.2.96 Ex. PW-1/3 addressed by Sh. M.K. Jain, Secretary of the Society to plaintiff no. 1. In the said letter he has been mentioned that Dr. Mool Chand Shastri had not nominated any person as his nominee in membership register. The said letter crates a doubt about the plea taken by the defendants that Dr. Mool Chand Shastri nominated defendant no. 3 as his nominee during his life time, whereas letter dated 3.2.96 Ex. PW-1/3 written by the Secretary of the society demonstrate that the name of the nominee was not there in the membership register. The plaintiff has also placed on record letter bearing no. F.47/485/Ga.10/op/GA dated 8.10.2002 Ex. PW-1/11 addressed by Noor Mohd Asstt. Registrar ( N/W) to the President of society, copy of which was also sent to plaintiff no. 1. A Suit no. 121/11/05 25/37 perusal of the said letter shows that representation of plaintiff no. 1 was examined by him and they found that entry of nominee in the membership register has been made in different ink and different hand. He has also observed that application form was not made available nor any Resolution was produced to show that late Dr. Shastri nominated defendant n. 3 as his nominee. The above fact raises serious doubt the plea of the defendants that Dr. Shastri nominated defendant no. 3 as his nominee during his life time.
67 The defendants have not produced any proof whatsoever as to how and in what manner and circumstances Dr. Shastri declared defendant no. 3 as his nominee. The claim of the defendants are that Dr. Shastri nominated defendant no. 3 as his nominee in membership register Ex. DW-6/A which bears his signatures at point A. The plaintiff has disputed the said fact and pleaded that signatures appearing at point A in Ex. DW-6/A has not been appended by Dr. Shastri and same are forged one.
68 In order to prove the signatures over the document Ex. DW6/A, defendants have examined Sh. Sarfarz Ahmed, hand writing expert as DW-4 who submitted his report Ex. DW-4/B in which after examining the signature appearing at point A in Ex. DW-6/A with the admitted signatures of Dr. Mool Chand Shastri the said witness opinioned that the document Ex. DW-6/A bears the original signatures of Dr. Shastri.
69 The plaintiffs have also examined a hand writing expert Sh. S.P. Singh as PW-2 who also submitted his report Ex. PW-2/1 in which after examining the signature appearing over the member's register Ex. DW-6/A with the admitted signatures of Dr. Shastri, the said expert witness has opinioned that signatures appearing in the document Ex. DW-6/A is not written in the hand writing of the same person.
Suit no. 121/11/05 26/3770 Both the parties have examined an expert witness in support of their plea. Both the expert witnesses i.e PW-2 and DW-4 have submitted their report giving divergent opinion with respect to the signatures of Dr. Mool Chand Shastri over Ex. DW-6/A. As per DW-4 who has been examined by defendants Ex. DW-6/A bears the signatures of Mool Chand Shastri at point A whereas as per PW-2 examined by the plaintiff the signatures appearing over the document does not tally with the signatures of Mool Chand Shastri. Both these expert witnesses have submitted their opinion after examining hand writing appended over document Ex. DW-6/A with the admitted signatures as per the manner and method prescribed in their report. However, both these witnesses have reached at different conclusion. Thus the testimony of both expert witnesses cannot be taken into consideration for determining as to whether document Ex. DW6/A bears the signatures of Dr. Shastri or not.
71 In these circumstances, this court is left with no other option to examine the signatures of Dr. Mool Chand Shastri as contemplated under Section 73 of Indian Evidence Act. It is not in dispute that defendants are having all the records of late Mool Chand Shastri in their power and possession, however, during cross-examination DW-1 admitted that documents Ex. DW-1/PA, PB, PC & PD bears the signatures of Dr. Mool Chand Shastri. A perusal of document Ex. DW-1/PA which is an affidavit submitted by Dr. Mool Chand Shastri shows that it bears the signatures of Dr. Mool Chand Shastri at point B & C which contains the word " Mool Chand". Another document Ex. DW-1/PB & PC is another affidavit of Dr. Shastri bearing his signatures at point A B in the similar manner by using the same spelling. Last document is Ex. PW-1/D which is nomination form submitted by Dr. Shastri, it also bears his signatures at point A in the manner " Mool Chand Shastri. I have also perused the signatures over the register of members Ex. DW-6/A at point A which bears the signatures in the following manner " Mool Chad".
Suit no. 121/11/05 27/3772 A perusal of the signatures appearing over the document Ex. DW-6/A with the signatures appearing over the documents Ex. PW-1/PA to PD clearly shows that signatures appearing over the register of members Ex. DW-6/A does not tally with the signatures appearing over the admitted documents Ex. PW-1/PA to PD. The mode and the manner of these two sets of signatures clearly suggest that same have not been made by the same person and appears to be in the hand writing of two different persons.
73 The above fact clearly shows that defendants have failed to prove that the register of members Ex. DW-6/A bears the signatures of Dr. Mool Chand Shastri whereas plaintiff has proved that it does not bear the signature of Dr. Mool Chand. The defendants have not placed any other material on record which can indicate that Dr. Shastri nominated defendant No. 3 as his nominee at any point of time. In the absence of any evidence the plea of the defendants that Dr. Mool Chand Shastri nominated defendant no. 3 as his nominee remained un-substantiated and unproved.
74 The defendants have also taken a plea that Dr. Mool Chand Shastri had executed a will Ex. DW-1/5 dated 24.05.1994 in favour of defendant no. 3 bequeathing the suit property in his favour. While deciding issue no. 1, I have already held that defendants have failed to prove on record that Dr. Mool Chand Shastri executed any will in favour of defendant no. 3 in accordance with the law. Thus the plea of the defendants that Dr. Shastri executed a will in favour of defendant no. 3 by virtue of which defendant no. 3 have became the owner of the suit property remained unsubstantiated and unproved.
75 The defendants have further taken a plea that plaintiffs were paid their due share with respect to the suit property and they gave their no objection certificate to the society Ex. PW-1/D1. The plaintiffs have taken a plea that defendant no. 1 got their signatures and thumb impressions on the said letter when it was blank. PW-1 during cross-
Suit no. 121/11/05 28/37examination admitted that letter Ex. PW-1/D1 bears their signature and thumb impression. He volunteered that they put their signatures/thumb impressions, when it was blank. He denied that they put their signatures after reading the same. The DW-1 in his cross-examination deposed that he has seen letter dated 5.9.1995. The original letter is in his hand writing including the word "RTI" Savitri Devi and "RTI" Angootha Nishan Krishna". The said letter is also exhibited as Ex. DW-1/PH.
76 The plaintiffs have taken a plea that defendant no. 1 obtained their signatures/thumb impression over blank paper for transferring pension in the name of plaintiff no. 1 only whereas in Para 8 of the written statement they have averred that plaintiffs have written a letter dated 5.9.95 to the Secretary of the Sanskrit Nagar Co-operative Soceity out of their own free will and consent. However DW-1 during his cross- examination has admitted that the said letter is in his hand writing which shows that same has not been written by the plaintiffs. The defendants have not mentioned in his written statement that said letter was written by defendant no. 1 and same was read over to the plaintiffs, who put their signatures after understanding the same. This fact raised doubt about the plea of defendants that plaintiffs gave NOC to the society after getting their share. Even otherwise, the defendants cannot claim any right in the suit property on the basis of the letter Ex. PW-1/D1 because an immovable property of more than Rs. 100/- can only be transferred or relinquished by way of registered instrument. The letter Ex. PW-1/D1 is admittedly not a registered instrument, therefore, it cannot confer any title upon the defendants.
77 The defendants have also taken a plea that Dr. Mool Chand Shastri was the head of the Joint Hindu Family and defendant used to hand over his salary to Dr. Mool Chand Shastri and they also residing in the suit property of their own right. However, defendants have failed to place any material on record on the basis of which it can be concluded that the suit property belongs to HUF. Admittedly, Dr. Mool Chand Shastri Suit no. 121/11/05 29/37 applied for the membership of the society and suit flat was allotted in his name. Therefore, Dr. Mool Chand Shastri was the absolute owner of the suit property and same do not belongs to Joint Hindu Family.
78 The above facts clearly shows that Dr. Mool Chand Shastri was the owner of the suit property. Sh. Shastri died intestate on 4.5.1995 leaving behind plaintiffs as his legal heirs. After the demise of Dr. Shastri plaintiffs have become the owner of the suit property. Dr. Mool Chand Shastri during his life time allowed defendants to reside in the suit property as license being in relation. The license granted by Dr. Mool Chand Shastri to defendants to reside in the suit property came to an end on the demise of Dr. Mool Chand Shastri on 4.5.1995, therefore, defendants were under obligation to deliver back the possession of the suit property to the heirs of Dr. Mool Chand Shastri after his demise. However, they continued to reside in the suit premises despite the termination of their licence. They even did not deliver the possession of the suit property after filing of the present suit for possession thus made themselves liable for the decree.
In view of the above discussion, my issuewsie findings is as under:-
79 Issue no. 4: Whether plaintiffs are entitled to the relief of possession of the suit property? OPP The plaintiffs have proved on record that Dr. Mool Chand Shastri was the owner of the suit property. They have also proved on record that they are the legal heirs of Dr. Mool Chand Shastri who expired on 4.5.1995 and after his demise they have become the owner of the suit property. The defendants have taken a plea that Dr. Mool Chand Shastri nominated that defendant no 3 as his nominee and also executed a will Ex. DW-1/5 in his favour. However, they have failed to prove the said fact. The plaintiffs have thus proved on record that defendants were permitted by Dr. Mool Chand Shastri to reside in the suit property as a licensee and their licensee came to end after his death. However, defendants have failed to deliver back the possession of the suit property to the plaintiffs Suit no. 121/11/05 30/37 despite their requests and filing of the present suit against them, thus made themselves liable for the decree. The plaintiffs have successfully discharged the onus of issue no. 4, same is accordingly decided in favour of the plaintiffs.
80 Issue no. 9 : Whether late Dr. Mool Chand Shastri had nominated the defendant no. 3, as his nominee pertaining to the suit property in the records of Sanskrit Nagar Co-operative society? If so, its effect? OPD The Defendants have failed to prove on record that Dr. Mool Chand Shastri had nominated defendant no. 3 as his nominee with respect to suit property in the record of Sanskrit Nagar Co-operative Society. The defendants have failed to discharge the onus of issue no. 9, same is accordingly decided against the defendants.
81 Issue no. 5: Whether plaintiffs are entitled to recovery of Rs.1,80,000/-with/without interest as claimed? OPP The Plaintiffs have taken a plea that defendants were permitted to reside in the suit premises as licensee by Dr. Mool Chand Shastri and their license came to an end on his demise, however, defendants have not vacated the suit premises despite making various requests by the plaintiffs. As per the plaintiffs the occupation of the defendant after termination of their license is of an un-authorised occupants for which they are liable to pay damages @ Rs. 5,000/- per months. The defendants have controverted the said plea in their written statement and taken a plea that they have been residing in the suit premises as a owner because Dr. Mool Chand Shastri nominated defendant no. 3 as his nominee with respect to the suit property. He also executed a will in his favour thus after the demise of Dr. Mool Chand Shastri defendant no. 3 has become the owner of the suit property.
Suit no. 121/11/05 31/3782 While deciding issue no. 1 & 9, I have already held that defendants have failed to prove that Dr. Mool Chand Shastri executed any will in favour of defendant no. 3. They have also failed to prove that Dr. Mool Chand Shastri nominated defendant no. 3 as his nominee in respect of suit property. The defendants were residing in the suit property as licensee of Dr. Mool Chand Shastri and their license so granted by Dr. Mool Chand Shastri came to an end after his death by implication of law, however, defendants continue to reside in the suit property after the demise of Dr. Mool Chand Shastri.
83 As per the plaintiffs they requested the defendants to vacate the suit premises soon after the death of Dr. Mool chand Shastri, however, they failed to do so. The defendants have controverted the said plea in their written statement. PW-1 has reiterated the said fact in his examination in chief. During his cross-examination PW-1 stated that they have not asked the defendants in writing for vacating the suit property or for payment of damages or got any notice issued through advocate, they asked them orally. He denied that he did not ask them to vacate the suit property even orally. The Defendant no. 1 & 3 examined themselves as DW-1and DW-3. They have been throughly cross-examined, however, plaintiffs have not given any suggestion to DW-1 & DW-3 as to whether plaintiffs have asked them to deliver back the suit premises after the demise of Dr. Mool Chand Shastri. These witness have also not been cross-examined on the aspect that they were asked to pay the damages for their occupation in the suit premises. In the absence of any cross- examination of DW-1 & 3 on these aspects the plea taken by the plaintiffs that they called upon the defendants to deliver back the possession of the suit property after the demise of Dr. Mool Chand Shastri remained unsubstantiated and unproved.
84 It is not in dispute that Dr. Mool Chand Shastri allowed the defendants to reside in the suit property without any charges. The plaintiffs have claimed damages for the occupation of the defendants in Suit no. 121/11/05 32/37 the suit property for three years before filing the suit. For becoming entitle to recover damages from the defendants for their occupation in the suit property, it was incumbent for the plaintiffs to prove on record that they call upon them to vacate the suit premises after the demise of Dr. Mool Chand Shastri. The plaintiffs were also required to call upon the defendants that if they failed to deliver the possession of the suit premises they would have to pay damages for their occupation. No doubt that for termination of licence no notice is required, however, for seeking recovery of damages, plaintiffs were required to convey to the defendants the consequences of not vacating the premises after the demise of Dr. Mool Chand Shastri. However, plaintiffs have failed to prove on record that they ever called upon the defendants to deliver back the possession of the suit premises or to pay the damages/mesne profit for their un-authorised occupation of the suit property after revocation of their license on the demise of Dr. Mool Chand Shastri. Thus plaintiffs are not entitled to recover damages of Rs. 1,80,000/- from the defendants.
In view of the above facts and circumstances, I am of the considered view that plaintiffs are not entitled to recover a sum of Rs. 1,80,000/- from the defendants as claimed by them. The Plaintiffs have failed to discharge the onus of issue no. 5, same is accordingly decided against the plaintiffs.
85 Issue No. 6: Whether plaintiffs are entitled to damages for use and occupation of the suit property? If so, at what rate and for what period? OPP The Plaintiffs have taken a plea that occupation of the defendant in the suit premises is unauthorised for which they are liable to pay pendentlite & future damages. As per the plaintiffs the suit premises could have fetched at least Rs. 5,000/- per month. The defendants have controverted the said plea in their written statement.
86 In order or prove their case, plaintiff No. 3 has examined as PW-1 who reiterated the said fact in his examination in chief. The Suit no. 121/11/05 33/37 testimony of PW-1 remained un-rebuted and uncontroverted because defendants have not carried out any cross-examination of PW-1 on these aspect. The defendant no. 1 has examined himself as DW-1. During his cross-examination DW-1 deposed that on back side of Sanskrit Nagar Society there is a road and across the road there is mall. He admitted that on one side of the Sanskrit Nagar Society, there is Parsant Vihar in which CRPF Public School and Lancer Convent are located. On the said road, there is DDA Sports Complex also and ahead of Sports Complex , there is Metro Station Purvi. He denied that rent of the disputed flat could be more than Rs. 5,000/- per month. The DW-3 during his cross-examination submitted that he does not know the rate of rent of the flat. He does not know whether the rent would be Rs. 5,000/- per month at least.
87 An examination of the material placed on record shows that though the plaintiffs have not given any notice for demanding the damages from the defendants, however filing of the suit for recovery of possession against the defendants is itself a notice to the defendants that their occupation in the suit property hence -forth shall be treated as un- authorised. However, defendants continued to occupy the suit property even after filing of the suit thus made themselves liable to pay damages for their unauthorised use and occupation of the suit property.
88 As per the plaintiffs, the suit property could have fetched Rs. 5,000/- per month at the time of filing of the suit. The testimony of PW-1 in that respect remained un-rebuted and un-controverted. The defendants have not led any evidence which can show or suggest that suit property can not fetch Rs. 5,000/- per month or could have fetched less than the said amount.
In the above facts and circumstances, I am of the considered view that the suit property can fetch Rs. 5,000/- per month as rent at the time of filing of the suit. Accordingly I hold the plaintiff entitled to recover damages @ Rs. 5,000/- per month against the defendants for their unauthorised use and occupation of the from the date of filing of the suit Suit no. 121/11/05 34/37 till the actual handing over of the possession of the suit premises. Issue no. 6 is accordingly decided in favour of the plaintiffs.
89 Issue no. 10: Whether installments pertaining to the suit property hand been paid by defendants no. 1 & 3 prior to death of Dr. Mool Chand Shastri as well as thereafter? If so, its effect? OPD The defendants have taken a plea that they have been deposited the entire installments for the suit property during the life time of Dr. Mool Chand Shastri and after his demise as well. The said plea has been controverted by the plaintiffs in their replication.
90 PW-1 during cross-examination admitted that neither he nor his mother and brother had paid any money to the society. He admitted that defendant no. 1 and 3 had deposited money with society from 1989 to 2002. He volunteered that till his father died in 1995, the money used to be provided by him to the defendants for deposit in the society in obedience of his directions. The defendant no. 1 examined himself as DW-1 and reiterated the said fact in Para 22 of his examination in chief. During cross-examination he denied that during the life time of Dr. Mool Chand Shastri he and defendant no. 3 had not been making any payment in respect of the disputed flat. He denied that entire money payable for the flat no. 22 was paid by Mr. Shastri himself.
91 An examination of the material placed on record shows that flat in question was allotted in the name of Dr. Shastri, pass book Ex. DW-1/8 clearly shows that Dr. Mool Chand Shastri paid the installment of the suit property to the society during his life time. The defendants have not placed any material on record which can show or suggest that they paid the installments during the life time of Dr. Mool Chand Shastri besides receipt Ex. DW-1/9 to 33. These receipts pertains to the period after the demise of Dr. Mool Chand Shastri. The defendants have placed receipt Ex. DW-1/9 to Ex. DW-1/33 to show that they paid the installments of the flat in question after the death of Dr. Mool Chand Shastri. The said fact Suit no. 121/11/05 35/37 has also been admitted by the plaintiffs. PW-1 in his cross-examination stated that they have not deposited the amount of installment with respect to the suit property after death of their father. The aforesaid fact clearly shows that defendants have proved on record that they paid the installments with respect to the flat in question after the death of Dr. Mool Chand Shastri. However, merely because defendants paid certain installments with respect to the flat in question voluntarily after the death of Dr. Mool Chand Shastri would not confer any title upon the defendants with respect to the suit property. The defendants did not seek any permission from the plaintiffs for making such deposit qua the suit property and on their own deposited these installments after the demise of Dr. Shastri. The defendants have been residing in the suit property without paying any amount either to Dr. Mool Chand Shastri or their legal heirs. Therefore, they were under obligation to maintain the flat and keep the same in the habitable condition and if while residing in the property in question they have paid certain installment with respect to the suit flat to the society on their own without there being any such request from any of the legal heirs of the plaintiffs. The said fact would not confer any title upon the defendants qua the suit property.
92 In view of the above facts and circumstances, I am of the considered view that defendants have failed to prove on record that they paid installments of flat in question during the life time of Dr. Mool Chand Shastri, however they have successfully proved on record that they paid the installments after the death of Dr. Mool Chand Shastri but said fact do not confer any right or title upon the defendants with respect to the suit property. Issue no. 10 is accordingly decided.
93 Relief In view of the above facts and circumstances, the suit filed by the plaintiff against the defendants is decreed with cost. A decree for possession is passed in favour of the plaintiffs and against the defendants in respect of flat no. 22, Sanskrit Nagar Co-operative Group, Housing Society Ltd, Plot no. 3, Sector-14, Rohini, Delhi.
Suit no. 121/11/05 36/37A decree for damages/mesne profit @ Rs. 5,000/- per month is also passed in favour of the plaintiffs and against the defendants from the date of filing of the suit till the delivery of actual physical possession of the suit property.
The Plaintiffs are directed to pay the deficient court fees. On receipt of deficient court fees, decree Sheet be prepared accordingly. File be consigned to record room after due compliance.
Announced in the open court (PITAMBER DUTT)
On 15th May, 2012 Additional District Judge
Delhi
Suit no. 121/11/05 37/37
Suit no. 121/11/05 38/37