Delhi District Court
Sh.Rakesh Mohan Tomar vs Ms.Seema Tomar on 14 May, 2007
//1//
IN THE COURT OF SH. DAYA PRAKASH
ADDITIONAL DISTRICT JUDGE: DELHI
Suit No.: 26/06
1. Sh.Rakesh Mohan Tomar,
s/o.Sh.M.M. Singh Tomar,
r/o. House no.3739 (SF), Charkhewalan,
Delhi-6.
2. Ms.Abha Tomar,
D/o.Sh.M.M. Singh Tomar,
r/o. House no.3739 (FF), Charkhewalan,
Delhi-6.
3. Ms.Ragini Mishra (Ne. Bhardwaj),
w/o. Dr.Arun Pal Mishra,
r/o. House no.3739 (TF), Charkhewalan,
Delhi-6.
...Plaintiffs
VERSUS
1. Ms.Seema Tomar,
d/o.Sh.M.M. Tomar,
r/o. Gangeshwar Dham,
Karol Bagh, Delhi.
2. Ms.Adarsh Raghav,
d/o.Sh.Manmohan Singh Tomar,
r/o. Gangeshwar Dham,
Karol Bagh, Delhi.
3. Sh.Murari Mohan Singh Tomar,
s/o. Late Thakur Hargovind Singh,
r/o. House no.3739 (FF), Charkhewalan,
Delhi-6.
4. Smt.Pratistha Timar,
w/o. Rakesh Mohan Tomar,
r/o. House no.3739 (SF), Charkhewalan,
Delhi-6.
...Defendants
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//2//
SUIT FOR DECLARATION
JUDGMENT
1. By this judgment I shall dispose of the suit for declaration filed by the plaintiffs against the defendants.
2. In the plaint it is submitted that Late Smt. Shanti Tomar who was the mother of the plaintiff no.1 and also of defendants no.1 and 2 and wife of defendant no.3 and grand mother of plaintiff no.2 was a benami purchaser of suit property bearing part property no.3539, situated at Charkhewalan, Delhi through a registered sale deed executed on 06.01.1986.
It is further submitted that plaintiff no.1 is in exclusive possession of 2nd floor of the said property since 06.01.1986; that plaintiff no.2 is in exclusive possession of 1st floor of the said property since 1988 and that the plaintiff no.3 is in exclusive possession of ground and third floor since 10.10.1989 .
It is further submitted that plaintiff no.1 had paid Rs.55,000/- including charges of registration and stamp duty etc. from his own Bank account in addition to Rs.25,000/- 2/12
//3// which his wife i.e. defendant no.4 had borrowed from one Sh.Vishram Singh.
It is further submitted that Smt.Satyawati who is the predecessor of the plaintiff no.3 also purchased the ground and third floor of the suit property by paying Rs.30,000/- through an agreement to sale-cum-will/GPA dt.10.10.1989 executed by Smt. Shanti Tomar.
It is further submitted that Smt.Satyawati executed a Will on 28.06.1990 in favour of plaintiff no.2 and died in July 1990 and since then the plaintiff no.3 is her successor-in- interest in regard to said portion of suit property.
It is submitted that after the purchase of said portion in 1986 by plaintiff no.1 in name of his mother, his elder brother also invested Rs.25,000/- towards repairs etc. and in exchange the mother of plaintiff's allowed plaintiff no.2 to occupy and own the first floor if plaintiff no.1 failed to repay the same within one year but plaintiff no.1 failed to repay the same to his elder brother Ram Mohan and hence the latter continued to occupy and own the first floor followed by plaintiff no.2 after his death on 08.10.1999.
It is further submitted that plaintiff no.1 raised some objections to use and occupation of first floor by his elder brother but both of them forgot their differences after the 3/12 //4// adoption of plaintiff no.2 by Ram Mohan on 03.01.1999.
It is submitted that plaintiff no.2 filed a suit for declaration against his mother under the undue influence of defendants no.1 to 3 but she agreed for mutual compromise on 28.10.2004.
It is submitted that on 07.04.2003 mother of plaintiff no.1 had illegally executed a deed of gift in respect of suit premises valued at Rs.1,25,000/- in favour of defendant no.1.
It is submitted that thereafter plaintiff no.1 with the mutual consent of plaintiffs no.2 and 3 filed an application for grant of Letter of Administration against defendants no.1 to 3 which is pending in the Court of Sh.Vinay Kumar, Gupta, ADJ, Delhi.
It is submitted that the cause of action accrued in the favour of the plaintiffs against the defendants; that the suit has been properly valued to the purposes of jurisdiction and court fees and that this Court has jurisdiction to entertain and try the present suit.
It is further submitted that plaintiffs are also entitled to decree of declaration of title over the suit premises even on the ground of adverse possession as they have continuously occupying the suit premises for more than 12 years.
Plaintiffs also submitted that defendants no.2 to 4 4/12 //5// are necessary parties but no relief is claimed against them.
Accordingly, plaintiff sought the following relief's:-
a). A decree of declaring that the gift deed bearing Registration no.1668, Book No.1, Volume No.10694, pages 36-43, registered at the office of Sub-Registrar III, New Delhi on 07.04.2003 followed by deed of Rectification dt.05.06.2003 executed in favour of defendant no.1 is illegal, inoperative and void ab initio.
b). That the plaintiff no.1 is the absolute owner in possession of the second floor of the suit premises i.e. House no.3739, situated at Charkhewalan, Delhi-6.
c). That the plaintiff no.2 is the absolute owner in possession of the first floor of the suit premises i.e. House no.3739, situated at Charkhewalan, Delhi-6.
d). That the plaintiff no.3 is the absolute owner in possession of the ground floor and third floor of the suit premises i.e.House no.3739, situated at Charkhewalan, Delhi-6.
e). Cost may be awarded against the defendant/proforma defendants if contested.
3. Despite service through publication in newspaper "Veer Arjun" dt.09.10.2006, the defendants no.1 & 2 failed to appear and accordingly proceeded ex-parte vide order dt.06.11.2006.
4. Defendants no.3 & 4 filed a joint W.S. wherein they 5/12 //6// admitted the claim of the plaintiffs and submitted that they have no objection if the decree as prayed by the plaintiffs be passed in favour of the plaintiffs.
5. In evidence plaintiff no.1 deposed as PW1 and in evidence by way of affidavit he supported the averments made in the plaint and got marked/exhibited the photocopy of Sale Deed dt.06.01.1986 as Mark-A; the photocopy of the Will dt.10.01.1986 as Mark-B; the photocopy of Codicil dt.28.10.2004 as Mark-C; the original agreement to sell dt.10.10.1989 as Ex.PW1/4; the photocopy of the receipt dt.05.01.1986 as Mark-D; the original Will dt.28.06.1990 as Ex.PW1/6; the original Death Certificate of father of plaintiff no.2 as Ex.PW1/7; the original Deed of Adoption dt.03.01.1999 as Ex.PW1/8; the original Deed of Compromise dt.28.10.2004 as Ex.PW1/9; the photocopy of Death Certificate of Mrs.Shanti Tomar as Mark-E; the certified copy of Sale Deed dt.07.04.2003 with rectification thereof dt.05.06.2003 as Ex.PW1/10 (colly) and the plaint as Ex.PW1/11.
Advocate of defendants no.3 and 4 do not want to cross the PW1 and hence the cross of PW1 was treated as nil.
6/12
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6. Plaintiff no.2 herself deposed as PW2 and in evidence by way of affidavit she adopted the same facts as mentioned in the affidavit of PW1.
Advocate of defendants no.3 and 4 also do not want to cross the PW2 and hence the cross of PW2 is treated as nil.
7. Sh.Suresh Bhardwaj, Assistant Ahlmad in the Court of Sh.Vinay Kumar Gupta, ADJ/Delhi deposed as PW3 and he brought the record pertaining to Codicil dt.28.10.2004 to the Will dt.10.01.1986 and the Will dt.10.01.1986 in respect of the suit property.
Advocate of defendants no.3 and 4 do not want to cross the PW3 and hence the cross of PW3 is treated as nil.
8. Advocate of defendants no.3 and 4 do not want to lead any evidence on behalf of defendants no.3 & 4, hence the defendant evidence was closed vide order dt.27.10.2007.
9. Arguments on behalf of plaintiff heard. Defendants no.3 & 4 directed to file written arguments, however failed to do so.
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//8//
10. I have seen the file, all documents and feel that the suit of the plaintiffs against the defendants deserves to be dismissed as plaintiffs failed to prove their case on the following grounds:-
Firstly, it is alleged that Smt.Shanti Tomar purchased the suit property on 06.01.1986. The photocopy of Sale Deed has been placed on record. By this photocopy it is not proved that Smt.Shanti Tomar purchased the suit property on 06.01.1986.
No efforts have been made to place on record the original of the Sale Deed or to prove the same through secondary means.
The sale deed as per photocopy appears to be unregistered and hence has no legal value.
Secondly, plaintiff no.1 states that he paid the consideration. However, out of respect the property was purchased in the name of Smt.Shanti Tomar. Hence, Smt.Shanti Tomar was only benami owner of the suit property.
This arguments of the plaintiff is not valid in view of 8/12 //9// Section 3 to 5 Benami Transaction (Prohibition), Act which bars any pleading of benami after enactment of the Act.
I feel that this argument is not valid in view of Section 3 to 5 of Benami Transaction (Prohibition) Act. Even otherwise there is Gift deed executed on 07.04.2003 in favour of defendant no.1.
Thirdly, plaintiff no.1 claims to be owner of the second floor as he is in possession of the second floor since 06.01.1986 and also paid Rs.55,000/- initially alongwith Rs.25,000/-. Plaintiff no.1 claims ownership of the second floor as the money for the purchase was given by him to Smt.Shanti Tomar.
Merely because plaintiff no.1 is in possession of second floor since 06.01.1986 does not confer any ownership right on plaintiff no.1. Long staying or possession howsoever long does not create title in favour of a person who is in possession. Adverse possession is a defence and can never be basis of declaration.
Fourthly, plaintiff no.2 claims to be owner of first floor as he spent Rs.25,000/- for repairs and construction and she is in possession of first floor since 1988. 9/12
//10// Again as stated above long possession cannot create any title in favour of a person who is in possession. Again merely because plaintiff no.2 spent Rs.25,000 for repair and construction, cannot create any ownership title in favour of plaintiff no.2.
Fifthly, plaintiff no.3 claims to be owner of the ground and third floor by virtue of agreement/Will/GPA dt.10.10.1989 Ex.PW1/4. It is alleged that Sh.Shanti Tomar executed agreement/Will/GPA Ex.PW1/4 dt.10.10.1989 in favour of Smt.Satyawati. Smt.Satyawati executed a Will in favour of plaintiff no.3 on 28.06.1990 and died in July 1990 and hence plaintiff no.3 claims to be the owner of ground and third floor.
I have seen Ex. PW1/4 which is GPA. It is not a registered document. The validity of GPA is only till the death of executor. After death executor it has no legal force. I have also seen Ex.PW1/6 which is a Will by Smt.Satyawati in favour of plaintiff no.3. It is also not a registered document.
Sixthly, I have seen the documents filed on record. The documents shows that sometime the document is merely thumb impressed and sometime the document is 10/12 //11// signed in Hindi by Smt.Shanti Tomar. The Will dt.10.01.1986 is signed in Hindi with right thumb impressed by Smt.Shanti Tomar. The Codicil dt.28.10.2004 is signed in Hindi plus right thumb impressed by Smt.Shanti Tomar. The Deed of compromise is only right thumb impressed by Smt.Shanti Tomar and left thumb impressed by Rakesh Tomar. These different types of signatures and thumb impressions makes the documents doubtful.
Seventhly, Ex.PW1/4 is a GPA by Smt.Shanti Tomar. This GPA is only notarized. If it is GPA, its legal validity is only up to death of Smt.Shanti Tomar. If this GPA is treated as Will then it has no legal effect as it is unregistered.
Ex.PW1/6 is a Will. It is unregistered and hence has no legal effect.
Ex.PW1/8 is an Adoption Deed. It is not a registered document and accordingly has no legal effect.
Ex.PW1/9 is a Deed of Compromise. It is only right thumb impressed by Smt.Shanti Tomar while the other documents shows that she used to sign in Hindi also. Hence, this document is doubtful. Otherwise this document is a unregistered document and has no legal effect. 11/12
//12// Ex.PW1/10 is a Gift Deed. It is alleged that this Gift deed is executed under undue influence. This Gift deed is a registered document and has legal force. Perusal of pleadings shows that undue influence has not been proved by the plaintiff. There is no other ground to cancel this document.
11. In the result I feel that plaintiffs have failed to prove their case and accordingly, the suit of the plaintiffs dismissed with no order as to cost.
12. Decree sheet be prepared accordingly.
13. File be consigned to Record Room.
Announced in open court DAYA PRAKASH today on dated 14.05.2007 ADDITIONAL DISTRICT JUDGE (typed 1+1) DELHI 12/12