Delhi District Court
Attorney Of Mr. Jasbir Singh Jassal vs Ms. Jitender Kaur Jassal on 24 February, 2023
IN THE COURT OF SUMIT DASS, ADDITIONAL DISTRICT
JUDGE04, SOUTH WEST DISTRICT, DWARKA COURTS,
NEW DELHI.
CNR No.DLSW010000952012
CS No.16480 of 2016
In the matter of:
Mr. Jasbir Singh Jassal
S/o late Sh. Pratap Singh Jassal,
R/o 21768, Stewart Road,
Oakland Gardens,
New York11364.
Through
Smt. Tejinder Kaur Arora
W/o Sh. Assa Singh Arora,
R/o 4317/3, Ansari Road, Daryaganj,
New Delhi110002.
Attorney of Mr. Jasbir Singh Jassal. .......Plaintiff.
VERSUS
1. Ms. Jitender Kaur Jassal,
W/o late Mr. Tirlok Singh Jassal
2. Mr. Daljeet Singh Jassal,
S/o late Mr. Tirlok Singh Jassal,
CS No. 16480/16 Page No. 1/48
Both R/o 1/207, Sadar Bazar,
Delhi Cantonment,
New Delhi110010.
3. Ms. Tejinder Kaur Arora,
W/o Mr. Assa Singh Arora,
R/o 4317/3, Ansari Road, Daryaganj,
New Delhi110002.
4. Mrs. Baljeet Kaur,
W/o Vikinder Pal Singh,
R/o 1/175, Sadar Bazar,
Delhi Cantonment,
New Delhi110010.
5. Mrs. Jagjeet Kaur,
W/o Gurpreet Singh Uppal,
R/o House No.1035,
Gali Acharaja,
Amritsar 143001.
6. S. Simarjit Singh Randhava,
S/o S. Sarjit Singh Randhava,
R/o 1399/100, Guru Nanak Nagar,
Patiala, Punjab. ......Defendants.
CNR No.DLSW010001832012
CS No.16651 of 2016
1. Ms. Joginder Kaur,
W/o late Mr. Tirlok Singh Jassal
2. Mr. Daljeet Singh Jassal,
CS No. 16480/16 Page No. 2/48
S/o late Mr. Tirlok Singh Jassal,
Both R/o 1/207, Sadar Bazar,
Delhi Cantonment,
New Delhi110010. .......counter claimant.
VERSUS
Mr. Jasbir Singh Jassal,
S/o late Sh. Pratap Singh Jassal,
R/o 21768, Stewart Road,
Oakland Gardens,
New York11364.
Through
Smt. Tejinder Kaur Arora
W/o Sh. Assa Singh Arora,
R/o 4317/3, Ansari Road, Daryaganj,
New Delhi110002.
Attorney of Mr. Jasbir Singh Jassal. .......Respondent.
Date of filing of suit : 05.05.2012
Date of filing of counter claim : 24.07.2012
Date of arguments : 20.02.2023
Date of decision : 24.02.2023
JUDGMENT
1. Vide this judgment, I shall dispose off instant suit filed by the plaintiff seeking decree of partition, possession, permanent injunction, mandatory injunction, damages/mesne profit and rendition of accounts in respect of CS No. 16480/16 Page No. 3/48 property bearing No.1/20712, Sadar Bazar, Delhi Cantt. Measuring 50 sq yards (hereinafter referred to as 'suit property') as well as counter claim filed by the defendant No.1 and 2 seeking recovery of Rs.13,39,500/ along with interest.
1.1 For the sake of convenience Jasbir Singh Jassal shall be referred to as plaintiff throughout and defendant nos.1 and 2 namely Jitender Kaur Jassal @ Joginder Kaur and Daljeet Singh Jassal shall be referred to as the defendant Nos.1 and 2.
2. Shorn of irrelevant and unnecessary details and considering the sweep of the controversy the factual matrix is succinctly stated as here under.
(i)Suit property bearing No.1/20712, Sadar Bazar, Delhi Cantt. Measuring 50 sq yards was owned by late Sh. Lachman Singh and after his death on 27.01.1982, suit property was inherited by his son late Sh. Pratap Singh Jassal by virtue of registered Will dated 20.05.1968 registered document no.178 in Addl. Book No.3, Volume no.14 at page 14 who had raised first and second floor on the suit property during his lifetime. The suit property was stated be a lease hold property and the original lessee was Delhi Cantonment Board and it was for a period of 90 years with yearly rent of Rs.45/ per year payable half yearly,
(ii)Late Sh. Pratap Singh Jassal had executed a registered deed of Will dated
03.06.2000 about six months prior to his demise on 22.12.2000 with respect to suit property whereby ground floor portion comprising of shop being run in the CS No. 16480/16 Page No. 4/48 name of Jassal Stores was to be divided into three equal portions and as per Will, 1/3rd portion of the shop marked A was to devolve upon his grandson/defendant no.2, another 1/3rd portion of the shop marked B was to devolve upon the plaintiff and balance 1/3rd portion of the shop marked C was to devolve jointly upon both daughters namely Trilochan Kaur & Tejinder Kaur. First floor was to go/devolved upon his grandson/defendant no.2. Second floor as well as right to construct a basement on the suit property as mentioned in the Deed of Will was to devolve upon the plaintiff.
(iii)Smt. Trilochan Kaur had expired in the year 2009 and her legal heirs are defendants no.4, 5 and 6,
(iv)Defendant no.3 Smt. Tejinder Kaur Arora (sister of the plaintiff) had relinquished her undivided right in the suit property i.e. one half of the 1/3d portion of the ground floor shop she jointly inherited in favour of the plaintiff. As such plaintiff is now the owner of 1/2 portion of the ground floor shop and 1/6th portion relinquished by his sister in his favour,
(v)On 23.09.2011, the plaintiff came to know that first and second floor of the preexisting structure of the suit property had been demolished and the defendants were in the process of raising construction thereon. Plaintiff reached Delhi on 10.10.2011 and visited the suit property and learnt that both the defendants no.1 and 2 had already raised a superstructure of two and a half storey after demolishing preexisting structure without plaintiff's consent,
(vi)Defendants raised fresh pillars from ground level for raising construction at first and second floor and deliberately kept hight at six feet below the ground level so that plaintiff could not construct the basement, CS No. 16480/16 Page No. 5/48
(vii)Plaintiff had served a legal notice dated 12.12.2011 to the defendants for partition of the suit property by metes and bounds according to their respective shares i.e. to handover peaceful and vacant possession of 1/3rd portion of ground floor as well as entire second floor and roof thereon and also to pay damages to the extent of 2/3rd commercial value of ground floor and to pay damages for illegally occupying second floor and roof thereon,
(viii)It is stated that suit property as inherited by plaintiff consists of commercial premises can easily fetch rent more than Rs.25,000/ per month and as such plaintiff seeking damages for past three years for use and occupation of the commercial portion of the suit property which was assessed as Rs.9,00,000/ w.e.f. 30.04.2009 to 01.05.2012,
(ix)Plaintiff also sought occupation charges of second floor portion at Rs.25,000/ per month from the defendants w.e.f. 01.01.2012. Plaintiff also claimed damages for use and occupation of the undivided share @ Rs.12,500/ w.e.f. 02.05.2012 which was relinquished by the plaintiff's sister.
2.1 I note herein that the reliefs sought are quite comprehensive and since they have been settled in distinct issues, I am quoting the prayer clauses as hereunder:
(a)A Decree for Declaration be passed declaring the plaintiff to be the exclusive owner of the property shown in red in the plan marked as Annexure P5 to this plaint of the suit property, bearing no.1/20712, Sadar Bazar, Delhi Cant.
(b)A decree for declaration be passed declaring the plaintiff to be the exclusive owner of the property CS No. 16480/16 Page No. 6/48 shown green in the plant marked as Annexure P5 to this plaint of the suit property bearing No.1/20712, Sadar Bazar, Delhi Cant.
(c)A decree for partition and possession be passed in favour of the plaintiff and against the defendants in respect of the suit property, holding that the plaintiff being entitled to the portions of the property as bequeathed upon the plaintiff by virtue of Will dated
03.06.2000 and relinquishment deed dated 01.05.2012.
(d)A decree of damages for Rupees Nine Lacs towards damages for use and occupation of the suit property for a period of three years prior to the filing of the suit be passed in favour of the plaintiff and against the defendants.
(e)A decree for mesne profit and damages @ Rs.62,500/ p.m. or at such rate as this Hon'ble Court may determine from the date of filing of suit and till the delivery of possession of the suit property to the plaintiff and against the defendants.
(f)A decree of rendition of accounts in respect of business being run at ground floor at the suit property and to pay the amount of share to the plaintiff.
(g)Interest be awarded on the entire decreetal amount @ 15% per annum from the date of the filing of the suit till its realization.
(h)Pass a decree of mandatory injunction directing both the defendants, their associates, agents, representatives, assigns etc to permit the plaintiff to construct basement by raising the ground floor level as per virtue of Will dated 03.06.2000 else A decree for damages on account of creating hindrance in the construction of the basement as per the Will, as likely to be assessed by the Hon'ble CS No. 16480/16 Page No. 7/48 Court, be passed in favour of the plaintiff and against the defendants.
(i)A decree for permanent injunction be passed in favour of the plaintiff and against the defendants, restraining both the defendants, their associates, agents, representatives, assigns etc from transferring or alienating or parting with possession of the plaintiff's portion of the suit property in favour of any 3rd party or from creating any 3 rd party interest therein in any manner whatsoever.
3. Contesting defendants i.e. defendant nos.1 and 2 had filed their Statement. It was stated therein that the suit is undervalued as no proper Court fee has been affixed on the plaint. It is further stated that original of alleged Will dated 03.06.2000 of late Sh. Pratap Singh has not been filed on record. It is further stated that defendant nos.1 and 2 are in occupation of the said shop at ground floor of suit property and after death of Sh. Trilok Singh (husband of defendant no.1), the defendant no.1 is in occupation of shop Jassal Stores which was established by late Sh. Pratap Singh and was given exclusively to his son Sh. Trilok Singh vide letter dated 24.02.1982 and after his death, the defendant no.1 was carrying on business of Jassal Stores as its proprietor and the defendant no.2 was minor at that time.
3.1 It is further stated that the shop at ground floor is leasehold property and is not partiable. It is also stated that alleged Will dated 03.06.2000 is not accompanied by any site plan of the shop as mentioned A, B and C in the plaint and the plaintiff has manipulated and fabricated the same.
CS No. 16480/16 Page No. 8/483.2 It is also stated that present suit for rendition of account of M/s Jassal Stores is not maintainable against the defendant no.1 who has been running the said business as its sole proprietor since the year 1992 after death of her husband. Late Sh. Pratap Singh was running Jassal Store earlier and later on he surrendered his sales tax number in the year 1975 and totally closed the said business in 1982.
3.3 In reply on merits it is stated that Smt. Tejinder Kaur Arora is one of the legal heirs of late Sh. Pratap Singh as per alleged Will dated 03.06.2000 and she cannot act for the plaintiff as its GPA. Raising of second floor by late Sh. Pratap Singh Jassal has been denied and it is stated that there was tin shed on the second floor which was in dilapidated condition. It is also stated that legal notice dated 11.10.2011 did not mention of the alleged Will dated 03.06.2000 in respect of suit property and Jassal Stores. However, plaintiff issued another legal notice dated 12.12.2011 and all of a sudden referred to the alleged Will dated 03.06.2000. Site plan furnished by the plaintiff is stated to be fabricated and manipulated document and is not a registered document.
3.4 Defendants denied that the plaintiff has any right to claim possession of any portion of the shop at ground floor of the property which is in exclusive possession of the defendants in perpetuity with the consent of late Sh. Pratap Singh as per letter dated 24.02.1982 and after death of husband of the defendant no.1, the defendant no.1 is in occupation of the shop for business of CS No. 16480/16 Page No. 9/48 Jassal Stores at Ground Floor. Defendant no.1 claimed that they are maintaining ground floor and also repairing the ground floor in order to keep the same in habitable position since the year 1994 and even during the life time of late Sh. Pratap Singh. It is also stated that Cantonment board issued notice dated 13.08.2010 to defendant no.1 alleging that the building is in ruinous state and unsafe for living and building requires extensive repairs and defendant no.1 carried necessary repairs and reinforced the structure by putting up further concrete roof on the ground floor in order to make the ground floor safe and spent about Rs.1,00,000/ for all required repairs and the plaintiff was informed about the same.
3.5 It is further stated that alleged photocopy of relinquishment deed in favour of the plaintiff by the sister is not a registered document and the same cannot be looked at for the purpose of transfer of immovable property.
3.6 The defendant no.2 had incurred all the expenses of about Rs.13,50,000/ for raising the structure of two bed rooms, one toilet cum bathroom and one balcony and stairs on the second floor after having taken consent from the plaintiff even before 13.09.2011 at his telephone in June/July 2011 and the plaintiff who was not interested to settle in India gave up his right to construct at second floor. It is stated that plaintiff was residing separately with his family at the rented house at Gopinath Bazar, Delhi Cantt and had left India in search of job in USA in the year 1982 and again left in 1984 and his family members left India in 1988 permanently.
CS No. 16480/16 Page No. 10/483.7 Defendants no.1 and 2 denied that they raised any fresh pillars on the ground floor as alleged by the plaintiff and stated that the pillars on the ground floor were already in existence even during lifetime of late Sh. Pratap Singh but required extensive repairs and defendant no.1 had repaired the same and incurred expenses for the same. Defendants in toto denied the version of the plaintiff and sought dismissal of the case.
4. Replication was filed to the Written Statement. Contrary averments were denied as false and incorrect and the stand pleaded in the plaint was reiterated and reaffirmed as correct.
5. Written Statement has been filed on behalf of defendant no.3 Ms. Tejinder Kaur Arora who is also attorney of the plaintiff Jasbir Singh Jassal and filed the instant suit. She stated that she has been arrayed as defendant no.3 in the present case in terms of the order passed by the Court as her father late Sh. Pratap Singh Jassal had bequeathed her 1/6th portion of the ground floor of the suit property in his registered Will dated 03.06.2000. She stated that there is no conflict of interest as she had already relinquished her share in favour of the plaintiff vide registered relinquishment deed dated 01.05.2012. She further stated that her sister late Smt. Tirlochan Kaur also bequeathed 1/6th share of the ground floor by her father late Sh. Pratap Singh Jassal in the same registered Will dated 03.06.2000 and her legal heirs namely Mrs. Baljeet Kaur (defendant no.4), Mrs. Jagjeet Kaur (defendant no.5) and S. Simarjit Singh CS No. 16480/16 Page No. 11/48 Randhava (defendant no.6) have relinquished their rights in her favour vide relinquishment deeds dated 13.08.2012 (defendant no.4), dated 13.08.2012 (defendant no.5) and dated 21.05.2013 (defendant no.6).
5.1 She further stated that as per mutual understanding with her late sister, she was to relinquish her share to the younger brother i.e. plaintiff and her sister was to relinquish her share to the family of the elder brother i.e. defendants no.1 and 2. She further stated that she is the owner of 1/6th portion of the ground floor in the suit property in lieu of her sister, even after relinquishing her original share to the plaintiff. She further stated that she still intends to relinquish 1/6th portion of the ground floor in the suit property in favour of defendant no.2 Daljeet Singh Jassal. She further stated that she is not pressing for partition or possession nor claiming any damages, mesne profits etc in respect of present suit. It is further stated that copy of Will dated 03.06.2000 of late Pratap Singh Jassal does not contain any attached site plan and as such portions marked as A, B and C in the site plan are arbitrary.
6. Defendant no.4 Baljeet Kaur has also filed her separate Written Statement. It is stated that she along with her sister Mrs. Jagjeet Kaur (defendant no.5) along with her brother S. Simarjit Singh Randhava (defendant no.6) were bequeathed their mother's share in the suit property to 1/6th portion of the ground floor when she died on 21.09.2007. It is also stated that her mother late Smt. Trilochan Kaur was bequeathed 1/3rd portion of the ground floor of the suit property jointly with her sister Smt. Tejinder Kaur (attorney of CS No. 16480/16 Page No. 12/48 plaintiff in the present case) by her grandfather late Sh. Pratap Singh Jassal in his registered Will dated 03.06.2000. It is further stated that she had relinquished her mother's right in the suit property in favour of Smt. Tejinder Kaur vide relinquishment deed dated 13.08.2012. She stated that she has no title or interest left in the suit property and she may be exonerated from the present suit.
7. Defendant no.5 Mrs. Jagjeet Kaur has also filed her separate Written Statement, which is on the line of Written Statement filed by defendant no.4.
8. Defendant no.6 Sh. Simarjit Singh Randhava has also filed his separate Written Statement, which is also on the line of Written Statement filed by defendant no.4 and 5.
9. Plaintiff has filed common replication to the Written Statement filed on behalf of defendant Nos.3, 4, 5 and 6, wherein she stated that written statements filed by said defendants are matter of record and need no reply and the same are admitted by the plaintiff.
10. Defendants No.1 and 2 have filed Counter Claim seeking recovery of Rs.13,39,500/ from the plaintiff stating that a notice dated 13.08.2010 received from Board of Cantonment in respect of dilapidated condition of the suit property and the plaintiff had given up his right on the second floor and as such the defendant no.2 had raised construction on the second floor in September, CS No. 16480/16 Page No. 13/48 2011 with the consent of the plaintiff and had incurred expenses of Rs.13,39,500/. Counter claimant state that in case if the Court holds that the plaintiff has right to second floor of the property in the suit then defendants are entitled to be reimbursed with said sum of Rs.13,39,500/ along with interest.
11. Written Statement has been filed to the counter claim that the notice dated 13.08.2010 issued by Delhi Cantonment Board was regarding only first floor and not the entire building and had directed the counter claimant to seek permission from Delhi Cantonment Board to carry out repair work but the counter claimant has not placed on record any record to show that counter claimant had sought no permission from Delhi Cantonment Board in this regard. Under cover of this notice, the counter claimant chose to construct a completely new building without any sanction plan keeping the other parties in dark.
11.1 It is further stated that counter claimant also kept them in dark about another notice dated 11.08.2011 of Cantonment Board in which the Board had directed to stop construction and demolition of the already constructed as detailed in notice but the counter claimant had raised further construction at their own risk. The second floor raised is without any consent from Cantonment Board and is totally illegal and as such the counter claimant has no right to claim any cost construction for the illegal construction, particularly when the second floor exclusively belongs to non counter claimant as per Will of his father dated 03.06.2000.
CS No. 16480/16 Page No. 14/4811.2 It is further stated that counter claimant had constructed both the first and second floor of the suit premises as a duplex set for his personal use with malicious intention of infringing the rights of the counter claimants. Non counter claimant was residing in America and was waiting for counter claimants to send him plans for his approval for the construction of the first floor but was shocked to learn that the plaintiff had already constructed a two and a half story superstructure without his knowledge or approval. Non counter claimant has denied the claim of the counter claimant and sought dismissal of the same.
12. On the basis of material available on record and the pleadings of the parties, vide order dated 24.09.2016 following Issues were settled:
(1)Whether late Shri Partap Singh had left behind any Will dated 03.06.2000 regarding his properties including the suit property?OPP (2)Whether the suit is bad for non joinder of necessary parties, as alleged in the written statement of defendants Nos.1 and 2?OPD1 &2 (3)Whether the Defendant Nos.1 and 2 are in occupation of a shop on the ground floor of the suit property in their own right, as claimed by them in their written statement?OPD1&2 (4)Whether the suit property i.e. property bearing No.1/20712,Sadar Bazar, Delhi Cantt is liable to be partitioned and if so, between which of the parties?
OPP CS No. 16480/16 Page No. 15/48 (5)Whether the plaintiff is entitled to the damages, as claimed by him and if so, at what rate and from whom?OPP (6)Whether the plaintiff is entitled to decree of rendition of accounts, as prayed for?OPP (7)If the plaintiff is held entitled to damages, whether he is entitled to any interest and if so, at what rate and for what period?OPP (8)Whether the plaintiff is entitled to decree of mandatory injunction, as prayed for?OPP (9)Whether plaintiff is entitled to decree of permanent injunction, as prayed for?OPP (10)Relief.
12.1 Thereafter vide order dated 20.02.2020 following additional issue was also settled.
Whether the plaint of the plaintiff has not been valued property for the purpose of court fees and jurisdiction? OPD1 & 2
13. Ms. Tejinder Kaur Arora entered into witness box as PW1. She tendered her evidence by way of affidavit Ex.PW1/A. She has relied upon original GPA dated 25.11.2011 executed by plaintiff in her favour as Ex.PW1/1, complaint dated 17.11.2011 lodged by plaintiff in PS Delhi Cantt as Ex.PW1/5, another complaint of the same date submitted to CEO Delhi Cantonment Board as Ex.PW1/6 and office copy of legal notice dated 12.12.2011 sent to defendants CS No. 16480/16 Page No. 16/48 along with its original postal receipts and AD cards as Ex.PW1/7 (colly).
She was crossexamined and discharged.
13.1 PW2 Sh. Aassa Singh Arora tendered his evidence by way of affidavit Ex.PW2/A. He is husband of PW1 and deposed in support of case of the PW1/plaintiff. He was crossexamined and discharged.
13.2 PW3 Sh. Vivek Yadav, Junior Assistant from the office of Sub RegistrarII had brought record of original registered Will vide registration no.33477 in Additional Book No.3, Volume No.5003 on pages 152 to 154 on 03.06.2000 executed by Sh. Pratap Singh Jassal s/o late Sardar Lachhman Singh and proved photocopy of the same as Ex.PW3/A (OSR).
He was crossexamined and discharged.
13.3 Plaintiff Sh. Jasbir Singh Jassal entered into witness box as PW4. He tendered his evidence by way of affidavit Ex.PW4/A. He relied upon death certificate of Shri Pratap Singh Jassal as Ex.PW4/1, Relinquishment Deed dated 13.08.2012 by Mrs. Baljeet Kaur as Ex.PW4/2 (OSR), Relinquishment Deed dated 13.08.2012 by Mrs. Jagjeet Kaur as Ex.PW4/3 (OSR) and photographs of construction over suit property as Ex.PW4/4 and Ex.PW4/5. He also relied upon photocopies of certain documents marked as Mark P1, P2, P3 and P4.
He was crossexamined and discharged.
CS No. 16480/16 Page No. 17/4813.4 PW5 Sh. Pooran Aggarwal is an attesting witness to the Will Ex.PW3/A. He identified his signatures on the Will Ex.PW3/A as at points A and A1. He also identified signatures of testator Pratap Singh Jassal at point B, B1 and B2. He also identified signatures of Sh. S.C. Singhal, Adv at points C and C1.
Despite opportunity being granted he was not cross examined on behalf of defendants.
13.5 PW6 Sh. S.C. Singhal had drafted Will dated 03.06.2000. He identified signatures of late Sh. Pratap Singh Jassal at points B, B1, B2, B3 and B4 on E.PW3/A. He identified his signatures also at points C, C1 and C2 on Ex.PW3/A. He further deposed that late Sh. Pratap Singh Jassal was in a perfect state of mind at the time of execution of the Will Ex.PW3/A. Despite opportunity being granted he was not cross examined on behalf of defendants. Thereafter, PE was closed.
14. DW1 Sh. Daljeet Singh Jassal tendered his evidence by way of affidavit Ex.DW1/A. He relied upon following documents:
(1)Letter dated 24.02.1982 already Ex.PW1/D2, (2)Letter dated 16.10.1982 already Ex.PWD1, (3)Certificate of registration of Jassal Store dated 03.05.2002 mentioned in affidavit as Ex.DW1/1 is mark A, (4)Affidavit dated 07.07.1982 of Trilok Singh as Ex.DW1/2, (5)Renewal certificate of licence mentioned in affidavit as Ex.DW1/3 is Mark B, (6)Letter dated 16.10.1982 to Sales Tax Officer already Ex.PW1/D1, (7)Assessment of sales tax dated 10.04.1991 Ex.DW1/4, CS No. 16480/16 Page No. 18/48 (8)Assessment of sales tax for 20022003 is Ex.DW1/5, (9)Notice dated 13.08.2010 by Cantonment Board is Ex.DW1/6, (10)Letter dated 10.07.2012 as Ex.DW1/7, (11)Complaint dated 10.10.2011 as Ex.DW1/8, (12)Site plan in respect of ground floor and 2 nd floor of suit property as Ex.DW1/10, (13)Copy of receipt of payment of lease rent dated 27.03.2006 mentioned as Ex.DW1/10 is Mark C. He was crossexamined and discharged.
14.1 DW2 Sh. Pranesh Gutam Singh, GST Inspector from the Department of Trade & Taxes deposed that sales tax record pertaining to Jassal Stores requisitioned has been destroyed. He had brought certificate regarding Jasal Stores being registered dealer as Ex.DW2/1 and Vat Registration certificate as Ex.DW2/2. He had also brought VAT dealer profile of Jassal Stores as Ex.DW2/3 and certified copy of sales tax registration certificate as Ex.DW2/4.
He was crossexamined and discharged.
14.2 DW3 Sh. Sandeep Kumar Sharma, Drugs Inspector from Drug Control Department had brought licence copy in the name of firm Jassal Stores on form 21C and copy of declaration form 19A as Ex.DW3/A (colly).
14.3 DW4 Sh. Nanak Singh deposed that he had issued letter dated 10.07.2012 Ex.DW1/7 in respect of construction carried out at the second floor of the property located at 1/2007, Sadar Bazar, Delhi Cantt.
He was crossexamined and discharged.
CS No. 16480/16 Page No. 19/4814.4 D4W1 Sh. A.S. Arora tendered his evidence by way of affidavit Ex.D4W1/A stating that he is attorney holder of Smt. Baljeet Kaur, Smt. Jagjeet Kaur and Sh. Simarjit Singh Randhava and filed copy of power of attorney as Ex.DW4/1, Ex.DW4/2 and Ex,DW4/3. He also relied upon relinquishment deeds dated 13.08.2012 of Smt. Baljeet Kaur and Smt. Jagjeet Kaur as Ex.PW4/2 and Ex.PW4/3. The relinquishment deed of Simarjit Singh Randhava was stated to be confiscated. He deposed regarding execution of Will dated 03.06.2000 by late Sh. Pratap Singh Jassal in respect of suit property.
Despite opportunity being granted he was not cross examined on behalf of defendants. Thereafter, DE was closed.
15. I have heard Ld counsel for the contesting parties as well as perused the record.
16. My issuewise findings are as under.
17. Issue No.1 reads as under:
(1)Whether late Shri Partap Singh had left behind any Will dated 03.06.2000 regarding his properties including the suit property?OPP 17.1 Issue no.1 pertains to the fact as to the existence of the Will and also its validity. Insofar as existence of the Will is concerned, if I look at Written Statement of defendants no.1 and 2 who are the main contesting defendants, CS No. 16480/16 Page No. 20/48 they too have not denied the existence of the Will. For the said purpose, a reference can be made to the para 3 and 6 of the Written Statement as hereunder:
3.That the suit is based on the alleged Will dated 03.06.2000 of late Shri Pratap Singh but the original Will has not been filed and the suit is not maintainable.
xxxx
6.That the defendant no.2 filed application for the grand of certified copy of the alleged Will dated 03.06.2000 to Sub RegistrarII, Janakpuri, New Delhi but the Will dated 03.06.2000 was not accompanied by any site plan of the shop as mentioned A, B and C in the plaint. The plaintiff has manipulated and fabricated site plan for being used in the present suit and the plaintiff is liable to be prosecuted and punished according to law.
Twin grounds which are taken are that original Will has not been produced and insofar as certified copy of the Will is concerned, area shown as A, B and C at the ground floor has not been depicted.
17.2 Insofar as existence of the Will is concerned, said Will has been duly proved on record by the testimony of PW3 who is concerned witness from the office of Sub Registrar who had brought the Will. It is relevant to note herein that the attesting witness Pooran Aggarwal and advocate Sh. S.C. Singhal who have been examined as PW5 and PW6 have categorically deposed as to the due execution of the Will. Relevant to note herein that Pooran Aggarwal the attesting witness has testified in his evidence that the Will was prepared at the office of PW6 Advocate and thereafter they went to the office of Sub Registrar, CS No. 16480/16 Page No. 21/48 Distt. Centre, Janakpuri. He identified signatures of testator Pratap Singh jassal at point B, B1 and B2. He also identified signatures of Sh. S.C. Singhal, Adv at point C and C1. He further deposed that signatures were also appended at Distt. Centre, Janakpuri and all of them had signed there as well. Their signatures were appended one after the other. He also identified the signatures of Pratap Singh at the last page of the Will.
17.3 On this regard the testimony of PW6 Sh. S.C. Singhal, Adv is also important. He had deposed that the Will was drafted by him and he too had identified the signatures of all the concerned parties and also deposed that Pratap Singh Jassal was in a perfect state of mind at the time of execution of Will Ex.PW3/A. He also deposed that the Will was executed at his office.
As mentioned above, the said witnesses were not crossexamined.
17.4 Now in this regard, I may usefully quote extensively from the recent judgment of Kavita Kanwar v. Pamela Mehta & Ors (2021) 11 SCC 209 wherein the entire law on the subject has been discussed. The relevant portion is extracted as hereunder:
22. As noticed, the basic point for determination in this appeal is as to whether the Trial Court and the High Court were justified in declining to grant probate in relation to the Will dated 20.05.2003 as prayed for. Obviously, a just and proper determination of this point would revolve around the legal principles applicable as also the relevant factual aspects of the CS No. 16480/16 Page No. 22/48 case. Before entering into the factual aspects and the questions in controversy, appropriate it would be to take note of the applicable legal provisions and principles concerning execution of a Will, its proof, and its acceptance by the Court.
23. It remains trite that a Will is the testamentary document that comes into operation after the death of the testator. The peculiar nature of such a document has led to solemn provisions in the statutes for making of a Will and for its proof in a Court of law. Section 59 of the Succession Act provides that every person of sound mind, not being a minor, may dispose of his property by Will. A Will or any portion thereof, the making of which has been caused by fraud or coercion or by any such importunity that has taken away the free agency of the testator, is declared to be void under Section 61 of the Succession Act; and further, Section 62 of the Succession Act enables the maker of a Will to make or alter the same at any time when he is competent to dispose of his property by Will. Chapter III of Part IV of the Succession Act makes the provision for execution of unprivileged Wills (as distinguished from privileged Wills provided for in Chapter IV) with which we are not concerned in this case. 23.1. Sections 61 and 63 of the Succession Act, relevant for the present purpose, could be usefully extracted as under: - "61.
Will obtained by fraud, coercion or importunity. A Will or any part of a Will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void.
*** *** ***
63. Execution of unprivileged Wills.Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear CS No. 16480/16 Page No. 23/48 that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witness, 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 acknowledgment 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." 23.2. Elaborate provisions have been made in Chapter VI of the Succession Act (Sections 74 to 111), for construction of Wills which, in their sum and substance, make the intention of legislature clear that any irrelevant misdescription or error is not to operate against the Will; and approach has to be to give effect to a Will once it is found to have been executed in the sound state of mind by the testator while exercising his own free will. However, as per Section 81 of the Succession Act, extrinsic evidence is inadmissible in case of patent ambiguity or deficiency in the Will; and as per Section 89 thereof, a Will or bequest not expressive of any definite intention is declared void for uncertainty. Sections 81 and 89 read as under: "81. Extrinsic evidence inadmissible in case of patent ambiguity or deficiency. Where there is an ambiguity or deficiency on the face of a Will, no extrinsic evidence as to the intentions of the testator shall be admitted.
*** *** ***
89. Will or bequest void for uncertainty. A Will or bequest not expressive of any definite intention is void for uncertainty."
Moreover, it is now well settled that when the Will is surrounded by suspicious circumstances, the Court would expect that the legitimate suspicion should be removed before the document in question is accepted CS No. 16480/16 Page No. 24/48 as the last Will of the testator.
23.3. As noticed, as per Section 63 of the Succession Act, the Will ought to be attested by two or more witnesses. Hence, any document propounded as a Will cannot be used as evidence unless at least one attesting witness has been examined for the purpose of proving its execution, if such witness is available and is capable of giving evidence as per the requirements of Section 68 of the Evidence Act, that reads as under: - "68. Proof of execution of document required by law to be attested.If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
24. We may now take note of the relevant principles settled by the consistent decisions in regard to the process of examination of a Will when propounded before a Court of law.
24.1. In the case of H. Venkatachala Iyengar (supra), a 3Judge Bench of this Court traversed through the vistas of the issues related with execution and proof of Will and enunciated a few fundamental guiding principles that have consistently been followed and applied in almost all the cases involving such issues. The synthesis and exposition by this Court in paragraphs 18 to 22 of the said decision could be usefully reproduced as under: "18. What is the true legal position in the matter of proof of wills? It is well known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party CS No. 16480/16 Page No. 25/48 propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. S. 67 and 68, Evidence Act are relevant for this purpose. Under S. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed.
Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained?
Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special CS No. 16480/16 Page No. 26/48 requirements of attestation prescribed by S. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is 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. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily 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 signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be CS No. 16480/16 Page No. 27/48 unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be CS No. 16480/16 Page No. 28/48 fully satisfied that it had been validly executed by the testator who is no longer alive.
22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson, 50 Cal W N 895 : (AIR 1946 PC 156), "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect." (emphasis supplied) 24.2. In Rani Purnima Debi (supra), this Court referred to the aforementioned decision in H. Venkatachala Iyengar and further explained the principles which govern the proving of a Will as follows: "5. Before we consider the facts of this case it is well to set out the principles which govern the proving of a will. This was considered by this Court in H. Venkatachala Iyengar v. B. N. Thimmajamma, (1959) Supp (1) SCR 426: AIR 1959 SC 443.
It was observed in that case that the mode of proving a will did not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act. The onus CS No. 16480/16 Page No. 29/48 of proving the will was on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and signature of the testator as required by law was sufficient to discharge the onus. Where, however, there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the will could be accepted as genuine. If the caveator alleged undue influence, fraud or coercion, the onus would be on him to prove the same. Even where there were no such pleas but the circumstances gave rise to doubts, it was for the propounder to satisfy the conscience of the Court. Further, what are suspicious circumstances was also considered in this case. The alleged signature of the testator might be very shaky and doubtful and evidence in support of the propounder's case that the signature in question was the signature of the testator might not remove the doubt created by the appearance of the signature. The condition of the testator's mind might appear to be very feeble and debilitated and evidence adduced might not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will might appear to be unnatural, improbable or unfair in the light of relevant circumstances; or the will might otherwise indicate that the said dispositions might not be the result of the testator's free will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completely removed before the document was accepted as the last will of the testator. Further, a propounder himself might take a prominent part in the execution of the will which conferred on him substantial benefits. If this was so it was generally treated as a suspicious circumstance attending the execution of the will and the propounder was required to remove the doubts by clear and satisfactory evidence. But even when where there suspicious circumstances and the propounder succeeded in removing them, the Court would grant probate, though the will might be unnatural and might cut off wholly or in part near relations." (emphasis supplied) 24.3. In the case of Indu Bala Bose (supra), this Court again said, "7. This Court has held that the mode of proving a Will does not CS No. 16480/16 Page No. 30/48 ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations.
8 . Needless to say that any and every circumstance is not a "suspicious" circumstance. A circumstance would be "suspicious" when it is not normal or is not normally expected in a normal situation or is not expected of a normal person." (emphasis supplied) 24.4. We may also usefully refer to the principles enunciated in the case of Jaswant Kaur (supra) for dealing with a Will shrouded in suspicion, as follows: - "9. In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes CS No. 16480/16 Page No. 31/48 in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will." (emphasis supplied) ......
Suffice would be to point out that in a recent decision in Civil Appeal No. 6076 of 2009: Shivakumar & Ors. v. Sharanabasppa & Ors., decided on 24.04.2020, this Court, after traversing through the relevant decisions, has summarised the principles governing the adjudicatory process concerning proof of a Will as follows:- "1. Ordinarily, a Will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon.
2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.
3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will.
4. The case in which the execution of the Will is surrounded by CS No. 16480/16 Page No. 32/48 suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
6. A circumstance is "suspicious" when it is not normal or is 'not normally expected in a normal situation or is not expected of a normal person'. As put by this Court, the suspicious features must be 'real, germane and valid' and not merely the 'fantasy of the doubting mind.'
7. As to whether any particular feature or a set of features qualify as "suspicious" would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances abovenoted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such CS No. 16480/16 Page No. 33/48 suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.
8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will?
9. In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will."
I have quoted in extenso from the said judgment as it lucidly explains the law as well as deal with the aspect of suspicious circumstances around the Will.
17.5 In the present case attesting witness to Will Pooran Aggarwal i.e. PW5 and the Sh. S.C. Singhal, Advocate who had drafted the Will and also attested the same had deposed. They have not at all been crossexamined. The Will is duly registered. There is nothing on record with respect to the health or mental condition of the testator Pratap Singh Jassal as to whether he was incapable of executing the Will. The requirement of Section 68 of the Indian Evidence Act, 1872 has been duly met.
CS No. 16480/16 Page No. 34/4817.6 Primarily this point to my mind does not pose any difficulty. The factum of the Will having been duly executed as well as the same registered before Sub Registrar has been duly proved on record.
Issue No.1 is decided in favour of the plaintiff.
18. Issue No.2 reads as under:
(2)Whether the suit is bad for non joinder of necessary parties, as alleged in the written statement of defendants Nos.1 and 2?OPD1 &2 18.1 Suffice to note herein that this issue emanates from the objection of the defendants no.1 and 2 that the suit was liable to be dismissed as legal heirs were not impleaded. Fact of the matter is that subsequent thereto other legal heirs were impleaded. Pratap Singh had left two sons and two daughters and all of them/their legal heirs have been impleaded as parties to the suit. As such this issue does not survive. It is answered accordingly in favour of the plaintiff and against defendant nos.1 and 2.
19. Now Issue No.3 reads as under.
(3)Whether the Defendant Nos.1 and 2 are in occupation of a shop on the ground floor of the suit property in their own right, as claimed by them in their written statement?OPD1&2 19.1 Insofar as issue no.3 is concerned, defendants no.1 and 2 have CS No. 16480/16 Page No. 35/48 propounded the plea that Pratap Singh Jassal had executed a document Ex.PW1/D2 in favour of his son Trilok Singh Jassal thereby authorising him or enable him to carry out the business alone and the said document amounts to giving the property to the father of defendant no.2/predecessor of defendant nos.1 and 2 and that too exclusively. For the sake of convenience I am quoting said document as hereunder:
CERTIFICATE This is to certify that my son Sh. Trilok Singh Jassal has started his retail stores business under style as JASSAL STORES dealing in HOSIERY, BSC FOOTWEAR, & COSMETIC. It is his sole owned business in premises 1/207, Sadar Bazar, Delhi Cantt.
Earlie, I was running the JASSAL STORES retail business for a long. Because of my advance age, I have already retired from the said and handed over the possession etc to my son Sh. Trilok Singh Jassal in this respect.
Being a self owned business there was no constitution of my said business from my side.
19.2 Again I fail to understand as on what basis this document can be equated any sort of testamentary disposition or even any sort of gift. It is only a certificate and in all probabilities it is to be given to some authority as the bare reading of the same reveals. To content that by way of said document, the property in question has been given absolutely to Trilok Singh Jassal is completely not made out. At best it only reveals that the father of the plaintiff intended to authorise or handover the business of the shop or permit the CS No. 16480/16 Page No. 36/48 predecessor in interest of defendant no.1 and 2 to continue the same in his own name/right.
19.3 The other documents placed on record and sought to be proved through the testimony of DW2 and DW3 i.e. with respect to the carrying out business of Jassal Store also to my mind are only with respect to the working/business of the shop. The same does not in any manner decides or are conclusive as to the fact that the property wherein the shop was located belong exclusively to the defendants no.1 and 2. It is but obvious that the plaintiff had left for USA and his family had also followed. It is but obvious that the shop was being run by Trilok Singh Jassal the predecessor in interest of defendant nos.1 and 2 and for which certain documents were prepared for obtaining licence etc. which otherwise are also required for smooth running of the business. Considering the totality of the facts this document does not in any manner create any right in the property.
This issue is decided adverse to the defendants no.1 and 2.
20. Issues No.4 to 9 read as under.
(4)Whether the suit property i.e. property bearing No.1/20712, Sadar Bazar, Delhi Cantt is liable to be partitioned and if so, between which of the parties? OPP (5)Whether the plaintiff is entitled to the damages, as claimed by him and if so, at what rate and from whom?OPP CS No. 16480/16 Page No. 37/48 (6)Whether the plaintiff is entitled to decree of rendition of accounts, as prayed for?OPP (7)If the plaintiff is held entitled to damages, whether he is entitled to any interest and if so, at what rate and for what period?OPP (8)Whether the plaintiff is entitled to decree of mandatory injunction, as prayed for?OPP (9)Whether plaintiff is entitled to decree of permanent injunction, as prayed for?OPP Other remaining issues being interconnected and based on the same evidence can be conveniently decided together.
20.1 Before dealing with these issues I have to deal with one particular aspect that is the fact that the Will in question though there is mention of areas depicted as A, B and C in the Will but infact when the Will was summoned from the office of Sub Registrar there is no annexed map or otherwise any rough site plan wheresaid area at the ground floor is demarcated. Question which arises for consideration is as to whether the Will is vague owing to the said fact or whether the same can be given due effect.
20.2 I note herein that in the judgment of Kavita Kanwar (Supra) this aspect has also been dealt with. In absence of there being any document to the said effect i.e. showing the areas and considering the nature of the bequest the CS No. 16480/16 Page No. 38/48 only inference which can be drawn is to the fact that each party or beneficiary is entitled to 1/3rd share at the ground floor instead of the earmarked areas as per portions mark A, B and C. In any scenario the entire Will cannot be nullified as the testator wishes to give 1/3rd share in the shop to each party - plaintiff, defendant no.2 and her daughters and to that extent the Will is quite clear.
20.3 I have also broached upon the aspect that the ground floor was being put to commercial use and the shop was being run by the defendant nos.1 and 2 and the testator Pratap Singh Jassal wish to give the said portion to the grand son for the reason at third line on the second page it is stated ground floor portion which is commercial in nature mark A in the site plan will devolve upon my grand son Daljeet Singh Jassal, the use of the word commercial signifies the intent of the testator that the commercial portion would devolve to his grand son Daljeet Singh jassal. However, during the course of arguments all the parties informed the Court that entire ground floor is being run for commercial purposes except some portion at the back of the shop. As such considering this fact the only logical inference is that the ground floor has to be divided amongst all as per their share i.e. 1/3rd - 1/3rd each.
20.4 Now I have also deliberated on the aspect as to why the Will may not have the site plan - the only possibility which I could make out is the fact that infact the division of the ground floor was also not possible or feasible and for the said reason the split or division as per portion A, B and C was not insisted CS No. 16480/16 Page No. 39/48 upon by way of site plan leaving the parties to have 1/3rd share at the ground floor and the Will was accordingly registered.
20.5 On this aspect the Will cannot be said to be vague. The intention of the testator has to be given due effect. The plaintiff was given 1/3rd share at the ground floor. Defendant nos.1 and 2 were to have 1/3rd share (defendant no.2 was given the share) and the daughters i.e. defendant no.3 and legal heirs of Trilochan Kaur i.e. defendants no.4, 5 and 6 were to have 1/3rd share at the ground floor. The first floor shall belong exclusively to defendant no.2 Daljeet Singh Jassal whereas plaintiff would be getting second floor as well as right to construct the basement.
20.6 Further, in the eventuality if the Will goes or is eschewed from the zone of consideration the shares of the parties would devolve as per 1/4th each. That may be one of the reason as to why defendants no.1 and 2 have also not raised any serious objection on the Will.
20.7 Considering the totality of facts and circumstances the Will has to be given due effect and the rights of the parties are crystalized accordingly.
(i)The plaintiff is entitled to ½ share at the ground floor for the reason that 1/6th share of one share holder/daughter Tejinder Kaur Arora has been relinquished in his favour and she has also so affirmed in the Court,
(ii)The balance 1/3rd shall be of defendant no.2 and balance 1/6th shall of the daughters/son of other sister i.e. Defendant Nos.4, 5 and 6, CS No. 16480/16 Page No. 40/48
(iii)The first floor belongs exclusively to defendant no.2,
(iv)The second floor and the right to construct the basement is of the plaintiff.
20.8 Coming on the aspect of mesne profits, the plaintiff has contended that the property is in the possession of defendants no.1 and 2 and that ground floor and second floor would have fetched a sum of Rs.9 lakh for the preceding three years and would have fetched Rs.62,500/ per month till handing over of the possession.
20.9 On this aspect, if I look at the testimony of PW1 Smt. Tejinder Kaur Arora she has deposed as to the said fact that the plaintiff is entitled to damages @ Rs.25,000/ per month since 30.04.2009 till 01.05.2012. She has also deposed that thereafter the damages have to be passed @ Rs.12,500/ per month. Now except this averment there is no evidence led by the plaintiff. There is no crossexamination on this aspect as well as to what amount the suit property would fetch. The defendant no.1 and 2 have barely given suggestion during the testimony of PW1. Similarly during the testimony of PW4 Jasbir Singh Jassal also there is no evidence led on this aspect. During his cross examination suggestions were given as to the false claim of damages.
20.10 Considering the totality of facts and circumstances on conservative basis I am assessing the rental at minimum of Rs.15000/ per month for shop at the Ground floor. Insofar as second floor is concerned, I am taking the same to be Rs.5000/ per month i.e. 1/3rd of the ground floor. Reason is obvious that the CS No. 16480/16 Page No. 41/48 property is quite old one and the improvement etc if any have been done by the defendants no.1 and 2. That amount would be increased by 5% after every two years. I am so doing at very conservative rates as the property in question was quite old and the damages or mesne profits have to be assessed of the property which remained there/was there for the reason that the improvements/ redevelopment/ reconstruction carried out by the defendants cannot be taken into consideration inasmuch as the plaintiff has categorically stated that he had not consented for the same.
20.11 This amount shall be payable w.e.f. 01.05.2009 i.e. damages at the rate of Rs.15,000/ the share whereof of the plaintiff would be 1/3rd with periodic enhancement of 5% after every two years till handing over of the possession. I have only given the share on the basis of the partition deed for the reason that the relinquishment deed does not speak of there being any assignment of damages though the shares are enhanced for the reason that Tejinder Kaur Arora had testified to the said aspect as to the property having been given to the plaintiff. Plaintiff is also entitled to damages at the rate of Rs.5000/ per month of the second floor w.e.f. 01.05.2009 with 5% increase after every two years till handing over of the possession.
21. Coming to the counter claim, the defendants no.1 and 2 have filed counter claim on the plea that defendant no.2 had made certain renovations in the suit property and raised construction at 1st and 2nd floor and spent Rs.13,39,500/. Insofar as this particular plea is concerned, renovation which CS No. 16480/16 Page No. 42/48 was carried out, first of all was not without consent of the plaintiff as the plaintiff had not consented as to the expenses being incurred on the said purpose/assumed the financial implications thereof. Furthermore, the defendants have also not proved the expenses and have only relied upon of a self serving certificate of Kumar Brothers Ex.DW1/7 without proving the bills whereby the said so called expenses were incurred actually. The payment was also given in cash. No doubt there may have been some expenses incurred on the renovation of the property but the moot question which is for consideration is the fact that the plaintiff had consented to the said construction and also agreed to assume the financial liabilities. Now relevant to note herein that a suggestion was put to the PW4 to the effect that "It is wrong to suggest that I was not interested to construct the property and not to reside in the property, therefore I did not apply for sanction plan". This witness was put the notice from Delhi Cantonment Board whereafter he again reiterated that he had asked the defendant no.2 to get the sanction plan approved before raising the construction. He also stated that he reached and stopped the construction. Now it is relevant to quote the question put to witness and the answer given by him and the same is reproduced as hereunder:
Q.: I put it to you that since the roof of the ground floor was in a dilapidated condition as it stood on two brick pillars of 22 inches and two side walls and, therefore, it required reinforced construction and, therefore, a fresh roof was constructed keeping the small portion of the old roof?
Ans.: It is wrong that said two pillars and side CS No. 16480/16 Page No. 43/48 walls were weak and could not bear the roof. The entire roof is still existing and is in good condition and there was no requirement of raising any fresh roof.
21.2 The same reveals that by and large defendant nos.1 and 2 were interested in raising the construction over the property and for the said purpose they had initiated the same (construction) as the property was lying in a dilapidated condition. The concurrence of the plaintiff in said regard to assume the financial liability is not there. Now DW1 was also cross examined on this aspect and he admitted that a notice was received by them sent by the plaintiff but once the construction was complete.
Considering the totality of facts and circumstances the contention that the property was constructed with the consent of the plaintiff is not at all made out.
21.3 Delving upon the particular issue with respect to the fact that the plaintiff is entitled for rendition of accounts suffice to note that the plaintiff had no concern with the business of the shop, the same was being run by the defendants to the exclusion of the plaintiff and the plaintiff as such is not entitled to seek rendition of the account qua said shop.
21.4 Coming to the other reliefs as sought for, the plaintiff is entitled to decree of perpetual injunction as the plaintiff is part owner of the suit property CS No. 16480/16 Page No. 44/48 and as such defendants are restrained from transferring or creating any third party interest in the suit property.
22.5 Coming on the aspect of mandatory injunction, the plaintiff has sought for decree of mandatory injunction directing both the defendants to permit the plaintiff to construct basement by raising the ground floor level as per virtue of Will dated 03.06.2000. For the said purpose it is important that the plaintiff should have required sanctions from the concerned authorities as per municipal bylaws for the said purpose and once such permissions are there, it is only that cause of action for construction of basement is made out. Plaintiff is at liberty to seek such permissions for construction of basement and if same are permitted by municipal bylaws.
Issues are decided accordingly i.e. issues no.6 is decided against the plaintiff and plaintiff is entitled to damages as mentioned herein above. I am also not granting any additional interest thereon. Issue no.5 and 7 are decided in favour of the plaintiff and against the defendant. Issue no.8 I have declined i.e. plaintiff cannot seek any mandatory injunction at this juncture and insofar as issue no.9 is concerned, the same is allowed in favour of the plaintiff.
23. There was one additional issue which was framed with respect to Court fees and the same reads as under.
Whether the plaint of the plaintiff has not been valued property for the purpose of court fees and jurisdiction? OPD1 & 2 CS No. 16480/16 Page No. 45/48 23.1 This issue was framed as defendants have pleaded that the suit has not been valued for the purpose of jurisdiction and Court fees. Plaintiff has valued the suit for the purpose of Court fees and jurisdiction as hereunder:
A (a) For the relief of declaration Rs.1125/
Portion inherited
(b) Court Fees paid Rs.180/
B (a) For the relief of declaration Rs.1125/
Portion acquired from sister
(b) Court fees paid Rs.180/
C (a) For the relief of partition Rs.1125/
(b) Court fees paid Rs.180/
D (a) For the relief of possession Rs.1125/
(25 times the value of the ground rent
payable on the entire property)
(b) Court fees paid Rs.180/
E (a) For the relief of recovery of Rs.9,00,000/
Rs.9,00,000/ on account of damages
(b) Court fees paid Rs.11,180/
F (a) For the relief of mesne profit Rs.1,00,000/
from 01.01.2012 uptil 30.04.2012
(b) Court fees paid Rs.3368/
G (a) For the relief of rendition of accounts Rs.1,00,000/
(tentative)
(b) Court fees paid Rs.3368/
H (a) For the relief of mandatory injunction Rs.130/
(b) Court fees paid Rs.13/
CS No. 16480/16 Page No. 46/48
I (a) For the relief of recovery of damages on Rs.8,50,000/
account of unreconstructed basement
(b) Court fees paid Rs.10,688/
J (a) For the relief of permanent injunction Rs.130/
(b) Court fees paid Rs.13/
Total Court fees payable Rs.29,350/
Total Court fees paid Rs.29,750/
Total value of the suit for the purpose Rs.19,54,760/ of jurisdiction 23.2 Now by virtue of Will of Pratap Singh Jassl, the plaintiff is owner of the property to the extend of 1/3rd share. Plaintiff's right to the suit property is recogized by virtue of Will. Even if I for the moment as mentioned above exclude Will, the plaintiff by inheritance would be entitled to 1/4th share in the suit property. As a consequence the plaintiff cannot be compelled value the suit for the purposes of Court fee as per market value of the property. I also note herein that the property is a leasehold property having yearly rental of Rs.45/ on half yearly basis as per case of the plaintiff. No contrary evidence has been placed on record to substantiate that such valuation is incorrect.
Accordingly this additional issue is decided accordingly in favour of the plaintiff.
CS No. 16480/16 Page No. 47/48Relief: In view of the above findings, suit filed by the plaintiff is decreed as indicated above.
Further, counter claim filed by defendants no.1 and 2 stands dismissed. No order as to cost.
Decree sheet be prepared accordingly and file be consigned to Record Room.
Announced in open court (Sumit Dass)
on 24.02.2023. Additional District Judge04
South West District, Dwarka Courts,
New Delhi.
CS No. 16480/16 Page No. 48/48