Delhi District Court
Mrs Niraja Sharma vs Kamla on 8 January, 2025
Suit No.: 1389/2016 Mrs Niraja Sharma Vs. Kamla
IN THE COURT OF SH. ANKUR JAIN - II, DJ-02, SHAHDARA
DISTRICT, KARKARDOOMA COURTS, DELHI
Suit No.: 1389/2016
Mrs. Niraja Sharma
W/o Shri Vijay Kumar,
D/o Lt. Sh. Harish Chand Sharma
R/o Plot no. 10, Sector - 5,
Rajinder Nagar, Sahibabad,
District Ghaziabad, U.P. .......PLAINTIFF
versus
1. Mrs. Kamla ( deceased )
W/o Late Sh. Harish Chand Sharma
R/o D/168, Jagatpuri,
Gali no.6, Mandoli Road,
Shahdara, Delhi-110094.
2. Sh. Raj Kumar
S/o Late Sh. Harish Chand Sharma
R/o D/168, Jagatpuri,
Gali no.6, Mandoli Road,
Shahdara, Delhi-110094.
3. Sh. Manish
S/o Late Sh. Harish Chand Sharma
R/o D/168, Jagatpuri,
Gali no.6, Mandoli Road,
Shahdara, Delhi-110094. .......DEFENDANTS
Date of Institution of suit : 03.07.2015
Date of pronouncement of judgment : 08.01.2025
Digitally signed 1 of 15
ANKUR by ANKUR JAIN
Date:
JAIN 2025.01.08
16:33:26 +0530
Suit No.: 1389/2016 Mrs Niraja Sharma Vs. Kamla
JUDGMENT:
1. This is a suit for partition with consequence relief of possession and injunction filed by the plaintiff against the defendants.
Brief facts:-
2. It is stated by the plaintiff that late father of the plaintiff i.e. Sh. Harish Chand Sharma was the absolute owner of the house bearing no. D/168, Jagatpuri, Gali No. 6, Main Mandoli Road, Shahdara Delhi-110094 ( herein referred to as 'suit property' ); that the father of the plaintiff and husband of the defendant No.1 and father of defendants no. 2 and 3 purchased a piece of land measuring 50 sq. yds Jagatpuri, Mandoli Road, Shahdara Delhi and thereafter, built the double storey house on the suit property; that the husband of the plaintiff has also spent a considerable amount on construction of the said house of late Shri Harish Chand Sharma i.e. the father of the plaintiff.
3. It is further averred that father of the plaintiff Shri Harish Chand Sharma died intestate on 26th February 2005, leaving behind the plaintiff and the defendants as his legal heirs; that after the death of Shri Harish Chand Sharma, the plaintiff and defendants became the joint owners of the suit property; that the suit property is in still in name of Shri Harish Chand Sharma and no oral or written partition took place between the plaintiff and the defendants; that after the death of Shri Harish Chand Sharma, plaintiff approached various time to the defendants and requested them to partition the suit property, however, the defendants refused to partition the suit property on one pretext or the other; that thereafter, the plaintiff duly 2 of 15 Digitally signed by ANKUR ANKUR JAIN JAIN Date:
2025.01.08 16:33:31 Suit No.: 1389/2016 Mrs Niraja Sharma Vs. Kamla issued a legal notice dated 19.02.2015 and 21.04.2015 calling upon the defendants to partition the suit property, but the defendants never complied the same. Hence, the present suit.
Proceedings:-
4. Pursuant to the summons issued upon the defendants, defendants no.1-3 filed their joint WS denying all the averments of the plaintiff on the ground that Lt. Sh. Harish Chand Sharma had already executed a Will qua the suit property dated 17.01.2004 in favor of his wife namely Smt. Kamla.
5. On completion of pleadings, following issues were framed by Ld. Predecessor Court on 05.02.2016 :-
1. Whether plaintiff has not valued the suit properly for the purpose of court fees ? OPD
2. Whether Lt. Sh. Harish Chand Sharma executed a Will in favour of defendant no.1 on 17.01.2004 ? OPD-1
3. Whether plaintiff is entitle for partition of suit property, if so, what is her share ? OPP
4. Whether plaintiff is entitle for possession in respect of her share in the suit property ? OPP
5. Whether plaintiff is entitle for injunction as she prayed for ? OPP
6. Relief.
6. Thereafter, the matter was listed for PE.
Digitally signed by ANKUR ANKUR JAIN JAIN Date:
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7. Plaintiff has led her evidence and examined herself as PW-1 and tendered her evidence by way of affidavit Ex.PW-1/A. Plaintiff relied upon the following documents:
(i) Site Plan exhibited PW1/1;
(ii) Copy of death certificate of Sh. Harish Chand Sharma exhibited PW1/2;
(iii) Legal notice (5 pages) exhibited PW1/3 and
(iv) Postal receipt exhibit PW1/4.
8. PW-1 was cross-examined by Ld. Counsel for the defendants on 03.12.2016.
9. Thereafter, the PE was closed on 03.12.2016 vide separate statement of the plaintiff and the matter was listed for DE.
10.Defendant has led his evidence and examined Sh. Fahimuddin, as DW-1, who tendered his evidence by way of affidavit Ex.DW-1/A and relied upon Will dated 17.01.2004 as Ex.PW1/DA. DW-1 was cross-examined by Ld. Counsel for the plaintiff on 08.09.2017.
11.Defendant has further led his evidence and examined Sh. Raj Kumar as DW-2, who tendered his evidence by way of affidavit Ex.DW-2/A. DW-2 was also cross-examined by Ld. Counsel for the plaintiff on 08.09.2017.
Digitally signed by ANKUR ANKUR JAIN JAIN Date:
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12.Subsequently, the defendant no. 1 i.e. Smt. Kamla Devi expired on 27.07.2020 and the application under Order XXII Rule 4 CPC filed on behalf of plaintiff was disposed of by Ld. Predecessor Court vide order dated 28.11.2020 and the amended memo of parties was taken on record.
13.Meanwhile, defendants moved an application under Order VIII Rule 8 CPC for bringing on record the Will dated 14.10.2019 executed by Lt.
Smt. Kamla Devi, on record however, the said application was dismissed and the evidence of the defendants was initially closed by the order of Ld. Predecessor Court dated 06.08.2022 and final arguments were heard on 03.11.2023 from both the sides. However, when the matter was fixed for passing of judgment, two applications were filed by the defendants on 14.12.2023 i.e. one application under Order VIII Rule 3 CPC and another application under Order XVIII Rule 17 CPC for leading additional evidence on the aspect of the regd. Will of defendant no.1 dated 14.10.2019, and both the said applications were allowed in favor of defendants subject to costs for the purpose of effective disposal of present suit.
14.Thereafter, defendants have further led their evidence and examined Sh.
Manish Sharma as DW-3, who tendered his evidence by way of affidavit Ex.DW-3/A and relied upon the copy of Will dated 14.10.2019 duly registered with Sub-Registrar IV-A, Shahdara, Delhi as Ex.DW-3/1 (OSR) (colly 4 pages) and Copy of death certificate of deceased mother Kamla Devi as Ex.DW-3/2. DW-3 was cross-examined by Ld. Counsel for the plaintiff on 08.05.2024.
Digitally signedANKUR by ANKUR JAIN Date:
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15.Defendants have further led their evidence and examined Sh. Praveen Kumar Sharma as DW-4, who tendered his evidence by way of affidavit Ex.DW-4/A and relied upon the copy of Will dated 14.10.2019 duly registered with Sub-Registrar IV-A, Shahdara, Delhi as already Ex.DW-3/1 (OSR) and Copy of Will dated 14.10.2019 duly registered with Sub-Registrar IV-A, Shahdara, Delhi as Ex.DW-4/1 (OSR). DW-4 was cross-examined by Ld. Counsel for the plaintiff on 08.05.2024.
16.Defendants have further led their evidence and examined Sh. Ravi Sharma as DW-5, who tendered his evidence by way of affidavit Ex.DW-5/A and relied upon the copy of Will dated 14.10.2019 duly registered with Sub-Registrar IV-A, Shahdara, Delhi as already Ex.DW-3/1 (OSR) and Copy of Will dated 14.10.2019 duly registered with Sub-Registrar IV-A, Shahdara, Delhi already Ex.DW-4/1 (OSR). DW-5 was also cross-examined by Ld. Counsel for the plaintiff on 08.05.2024.
17.Defendants have lastly examined Ms. Beena Kumari, Reader/ASO, SR-
IV-A, Office of the District Magistrate, Shahdara, Nand Nagri Delhi-93 as DW-6, who brought the summoned record i.e. true copy of Family Will dated 14.10.2019 which was registered on 15.10.2019 bearing registration no. 1854 in book no.3, volume no. 235 on page 154 to 157 on 15.10.2019 which is already Ex.DW4/1. DW-6 was cross-examined by Ld. Proxy Counsel for the plaintiff on 07.08.2024.
18.Thereafter, the DE was closed on 07.08.2024 vide separate statement of Ld. Proxy Counsel for the Defendants and the present matter was listed for final arguments. Digitally signed ANKUR by ANKUR JAIN Date:
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19.Final arguments heard from both the sides.
Plaintiff's submissions:-
20.It is submitted by Ld. Counsel for the plaintiff that the father of plaintiff Lt. Sh. Harish Chand Sharma had died intestate on 26.02.2005 and the defendants have forged the Will dated 17.01.2004 Ex.PW1/DA in connivance with each other so as to deprive the plaintiff of her 1/4th share in the suit property.
21.It is further submitted by Ld. Counsel for the plaintiff that the defendants have not proved either the Will dated 17.01.2004 allegedly executed by Lt. Sh. Harish Chand Sharma in favor of his wife i.e. Lt. Smt. Kamla Devi, as per law, as the defendants have examined only one attesting witness of the Will Ex.PW1/DA i.e. Sh. Fahimuddin as DW-1, who has deposed in his evidence that he cannot tell where the Will Ex.PW1/DA was prepared; and further submitted that the said Will Ex.PW1/DA also does not bear the signature of Lt. Sh. Harish Chand Sharma on its first page, and therefore, plaintiff is entitled for 1/4th share in the suit property, as prayed in present suit.
Defendant's submissions:-
22.It is submitted by Ld. Counsel for defendants that it is undisputed fact that the suit property was owned by Lt. Sh.Harish Chand Sharma, who died on 26.02.2005.
Digitally
signed by
ANKUR JAIN
ANKUR Date:
JAIN 2025.01.08
16:33:59
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Suit No.: 1389/2016 Mrs Niraja Sharma Vs. Kamla
23.It is submitted by Ld. Counsel for defendants that Will dated 17.01.2004 was duly executed by Lt. Sh. Harish Chand Sharma and the defendants have also filed the same along with their WS in present suit, and the said Will Ex.PW1/DA has been duly proved by its attesting witness Sh.Fahimuddin as DW-1, who has deposed in his evidence that the Will Ex.PW1/DA was prepared in his presence and in para no.5 of his examination in chief he has also stated that he had also signed the said Will along with the other attesting witness namely Sh. Vinod Kumar on the request of Lt. Sh.Harish Chand Sharma and the latter had executed the said Will without any pressure, coercion and threat.
24.It is further submitted by Ld. Counsel for defendants that defendants have also duly proved the Will dated 14.10.2019 Ex.DW3/1 executed by Lt. Smt. Kamla Devi in favor of the defendants no. 2 & 3, pursuant to which both the defendants no.2 & 3 have now become the joint owners having 1/2nd share each in the suit property, and therefore, present suit filed by plaintiff is liable to be dismissed.
Findings:-
Issue no. 1
25.The onus to prove the said issue is placed upon the defendants to prove that the plaintiff has not valued the present suit properly for the purpose of court fees. However, no evidence has been led in this regard by the defendants to show that the plaintiff has wrongly valued the present suit for the purpose of court fees, as alleged.
Digitally
signed by
ANKUR
ANKUR JAIN
JAIN Date:
2025.01.08
16:34:04
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Suit No.: 1389/2016 Mrs Niraja Sharma Vs. Kamla
26.Accordingly, issue no. 1 is decided in favour of the plaintiff and against the defendants.
Issue no. 2
27.The onus to prove the said issue is placed upon the defendants to prove that the Lt. Sh. Harish Chand Sharma had duly executed the Will dated 17.01.2004 in favor of defendant no.1. In this regard, the defendants have examined DW-1 i.e. Sh.Fahimuddin, who is one of the attesting witness to the Will in question dated 17.01.2004 Ex.PW1/DA, who has duly proved that the said Will was prepared in his presence and that Lt. Sh. Harish Chand Sharma had also signed on the said Will in question at point 'X'.
28.It is contended on behalf of the plaintiff that DW-1 Sh. Fahimuddin did not even know about the children of Lt. Sh. Harish Chand Sharma, as neither of his son is name as 'Sonu', and that the evidence of DW-1 cannot be relied for the purpose of proving the Will Ex.PW1/DA, as he cannot tell where the said Will was even prepared.
29.It is also contended by the plaintiff that even the evidence of DW-2 cannot be read for the purpose of proving the Will Ex.PW1/DA being, a hearsay witness, who has not personally witnessed the transaction in question.
30.Per contra, it was submitted by Ld. Counsel for the Defendants that DW-1 has duly proved the Will in question Ex.PW1/DA, as he has duly deposed in his evidence that he knows Lt. Sh. Harish Chand Sharma since the year 1965 and that the Will Ex.PW1/DA was prepared in his presence.
ANKUR Digitally signed
by ANKUR JAIN
JAIN Date: 2025.01.08
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Suit No.: 1389/2016 Mrs Niraja Sharma Vs. Kamla
31.It is pertinent to note that there is no cross-examination w.r.t. averments mentioned in para no.5 of the evidence affidavit of DW-1, wherein the witness has duly stated that Lt. Sh. Harish Chand Sharma had executed the said Will dated 17.01.2004 voluntarily and without any pressure, coercion and threat, and further that, the witness has signed the said Will along with other attesting witness Sh.Vinod Kumar on request of deceased Lt. Sh. Harish Chand Sharma.
32.It is also pertinent to note that the plaintiff has not led any evidence in support of the suggestions putforth on behalf of the plaintiff to the witness DW-1 in his cross-examination, so as to show that either at the time of the execution of the Will in question dated 17.01.2004, Lt. Sh. Harish Chand Sharma was not well, or that the said Will do not bear the signature of Lt. Sh. Harish Chand Sharma at point 'X', as alleged.
33.In judgment titled as 'Ganesan vs. Kalanjiam' dated 11.07.2019 passed by Hon'ble Apex Court, it was observed that where a testator asks a person to attest his Will, it is a reasonable inference that he was admitting that the Will had been executed by him, and in this regard, section 63 (c) of Indian Succession Act, 1925 duly mentions the following expression i.e. 'the Will shall be attested by two or more witnesses, each of whom... has received from the testator a personal acknowledgment of his signature or mark'.
34.Section 63 of Indian Succession Act, 1925 provides that 'Every testator shall execute his Will according to the following rules:--
Digitally signed by ANKUR ANKUR JAIN Date:
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(a)The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b)The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c)The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.'
35.Ld. Counsel for the Plaintiff has also relied upon a judgment titled as 'Suraj Bhan Vs. State' dated 10.01.2008 passed by Hon'ble High Court Of Delhi, in support of her contentions that the defendants in present case have not proved the Will in question Ex.PW1/DA, as per law.
36.In the facts of the judgment titled as Suraj Bhan ( supra. ), the respondents, who were the widow, son and daughter had alleged that the relation of the appellant/son with the deceased were strained and the appellant being the elder son had also not given light to the dead body of his father, as per rituals; and in the evidence of the other son Sh. Jai Bhagwan ( one of the respondents therein ), it has come that the deceased father was not well and he died in hospital and before being hospitalized, he was residing with his other son i.e. Sh. Jai Bhagwan. RW-2 also Digitally signed by ANKUR ANKUR JAIN JAIN Date:
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deposed that the relations between the appellant and the deceased were strained.
37.However, the facts of present case are different from the one cited by the plaintiff as above and therefore, they don't have any application in the present case, as Lt. Sh. Harish Chand Sharma had bequeathed the suit property in favor of his wife i.e. Lt. Smt. Kamla ( defendant no.1 in present suit ), and it is not the case of either of parties that Lt. Sh. Harish Chand Sharma had any strained relations with his wife.
38.The plaintiff has failed to prove the suggestions put forth to the DW-1 to show that at the time of execution of the Will Ex.PW1/DA by Lt. Sh. Harish Chand Sharma, he was not well or the signatures at point 'X' on the said Will do not belong to Lt. Sh. Harish Chand Sharma, or that the Will in question is fraught with suspicious circumstances, as alleged. Hence, the ratio of the judgment relied by the Ld. Counsel for the Plaintiff as stated hereinabove is not applicable to the facts of present case.
39.Rather, in the evidence of PW-1, it has also come that she did not attend the marriage of her brother Sh. Manish ( i.e. defendant no.3 herein ) as she was not invited; and that she knows DW-1 namely Sh.Fahimuddin, being friend of her father and that the Will in question also bears the photograph of her father Lt. Sh. Harish Chand Sharma.
40.In view of the above, this Court holds that DW-1 has duly proved the execution of Will in question dated 17.01.2004 Ex.PW1/DA by Lt. Sh. Harish Chand Sharma in favor of his wife i.e. Lt.Smt. Kamla Devi ( defendant no.1 herein ).
Digitally signedANKUR by ANKUR JAIN Date:
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41.Accordingly, issue no. 2 is decided in favour of the defendants and against the plaintiff.
Issues no. 3-5
42.The onus to prove the said issues is placed upon the plaintiff to prove that the plaintiff is entitled for the relief of injunction, possession and partition of the suit property, as prayed in present suit.
43.In the evidence of PW-1, the plaintiff has deposed that 'I have invested in the re-construction of property. I had paid Rs. 2,25,000/- to my mother. I voluntarily paid the said amount. I have paid the said amount in cash. No written document was executed. ' However, the plaintiff has not led any evidence to substantiate the said transaction, as per law.
44.Further, in the para no.2 of the plaint, the plaintiff has averred that it is her husband who had spent a considerable amount on the construction of said house. However, the plaintiff has neither specified any amount so spent allegedly by her husband, nor examined her husband to prove the said transaction in present suit.
45.Hence, this Court holds that the plaintiff has herself failed to prove her averments in the plaint along with the evidence led by her in support thereof as PW-1.
46.It is also contended by Ld. Counsel for plaintiff that the witnesses DW-3 to DW-5 have stated in their evidence that Lt. Smt. Kamla Devi could not Digitally signed by 13 of 15 ANKUR ANKUR JAIN Date:
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read and understand English and that she used to sign in Hindi and further contended that defendants have not sought any amendment in their WS for bringing on record the second Will dated 14.10.2019, and that the suit property is still in name of father i.e. Lt. Sh. Harish Chand Sharma and the same has not been mutated till date in favor of defendants no.2 & 3 herein.
47.However, perusal of the evidence of DW-3 to DW-6 shows that the defendants have duly proved the execution of Will dated 14.10.2019 Ex.DW3/1 by Lt. Smt. Kamla Devi in favor of defendants no.2 & 3 jointly namely Sh. Raj Kumar and Sh. Manish respectively. The execution of the said Will has been duly proved by attesting witness i.e. DW-4 and DW-5 in their respective evidences, wherein both have deposed that the contents of Will dated 14.10.2019 were narrated by Lt. Smt. Kamla Devi to them respectively and that she had put her signatures on the Will in their presence and they had also signed and attested the said Will in presence of Lt. Smt. Kamla Devi at the time of its execution and registration. The registration of said Will dated 14.10.2019 Ex.DW3/1 was also proved by the summoned witness DW-6, which was already Ex.DW4/1 in the evidence of DW-4.
48.Accordingly, issues no. 3-5 are decided in favour of the defendants and against the plaintiff.
RELIEF :-
49.Hence, in view of the the above stated discussion on the issues, the plaintiff has no right, title or interest in the suit property and present suit is accordingly dismissed.
Digitally
signed by
ANKUR
ANKUR JAIN
JAIN Date:
2025.01.08
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50.No order as to the costs.
51.Let a decree sheet be prepared in the aforesaid terms.
Digitally signed by
52.File be consigned to record room, after due compliance.
ANKUR ANKUR JAIN JAIN Date:
2025.01.08 16:34:43 Announced in the Open Court +0530 on 08th day of January 2025.
Ankur Jain - II District Judge - 02 Shahdara, Karkardooma Courts, Delhi 15 of 15