Delhi District Court
Sh. Rajinder Kumar vs Sh. Munshi Ram on 30 March, 2013
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No. 514/2012
IN THE MATTER OF:
Sh. Rajinder Kumar
son of Sh. Mohan Lal
R/o 84, Masjid Moth,
New Delhi110049 .....................Plaintiff
VERSUS
Sh. Munshi Ram
R/o 84, Masjid Moth,
New Delhi110049 ....................Defendant
Date of Institution: 31052006
Date of Reserving for Judgment: 08032013
Date of Judgment : 30.03.2013
SUIT FOR PERMANENT INJUNCTION
JUDGMENT:
1. Vide this Judgment, I shall decide a suit for permanent injunction filed by the plaintiff.
2. Brief facts of the case as per the plaintiff are that plaintiff is owner part of house No. 84, Masjid Moth, New Delhi and has been residing for the last so many years with his family. It is further submitted that the plaintiff purchased one portion of the said property measuring 38.17 Sq. Mts consisting of two rooms on the Suit No. 514/2012 Page No. 1 of 11 ground floor, two rooms on the first floor and open space from its owner namely Smt. Tarawati W/o Late Ram Pat vide power of attorney, Agreement to sell, receipt and affidavit all dt. 03061991 and since the plaintiff is in possession of the said portion of the property. It is further submitted that the plaintiff demolished two rooms of the first floor of the suit property for raising construction of the same as per his choice. But on 19052006, the defendant collected building material for carrying out construction on the first floor of the suit property. The plaintiff raised objection to the said illegal act of the defendant and lodged a complaint with the Police Station Defence Colony on 19052006. On lodging of the said complaint , the defendant stopped his activities. The defendant on 29052006 again tried to raise construction over the first floor of the suit property but due to intervention of the plaintiff the defendant could not succeed in his ill design and threatened that they will come again for raising the construction over the suit property. It is further submitted that the plaintiff has no efficacious and alternative remedy except to file the present suit, hence the present suit is filed.
3. On the other hand the defendant in his written statement has contended that the plaintiff has no right, title or interest of any nature whatsoever in any portion on the first floor of the suit Suit No. 514/2012 Page No. 2 of 11 property. The entire first floor of the suit property has been and is still in exclusive ownership and possession of the defendant. The property i.e. Hosue No. 84, Masjid Moth as per the will of late Smt. Bhuri Devi which is duly registered in the office of SubRegistrar Delhi and devolved upon her five sons and/ or their legal heirs, as indicated in the site plan annexed with the will. A bare perusal of the same will establish that the plaintiff has no right, title or interest of any nature whatsoever in any portion on first floor of the suit property. The defendant has denied that the plaintiff is owner of the part of house No. 84. It is further contended that the plaintiff has been in occupation of two rooms situated on the ground floor of the property with the will of Late Smt. Bhuri Devi. The portion above the said two rooms on the first floor along with the remaining portion of the first floor of the property has always been in ownership and possession of the defendant. It is further submitted that the Smt. Tara Devi W/o Late Sh. Rampat from whom the plaintiff is alleged to have purchased the portion of the property was owner in possession only of the ground floor portion comprising of two rooms shown in blue colour in the site plan annexed with the will of late Smt. Bhuri Devi. Further the defendant denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the plaintiff be dismissed. Suit No. 514/2012 Page No. 3 of 11
4. From the pleading of parties following issues were framed vide order dt. 24/02/2007:
i) Whether the plaintiff is entitled to a decree of permanent injunction as prayed? OPP
ii) Relief.
5. To prove his case plaintiff has examined himself as PW1 who has filed his evidence by way of affidavit Ex. PW1/A. The PW1 has reiterated the facts mentioned in the plaint and also relied upon the document which are as under:
i) The site plan of the suit property is Ex. PW1/1.
ii) Copies of Power of Attorney, Agreement to sell, Receipt and affidavit all dt. 03061991 Ex. PW1/2 to PW1/5.
iii) Copy of complaint dt. 19052006 is Ex. PW1/6.
iv) Copy of Will dt. 22081997 is Ex. PW1/7.
The PW1 was also confronted with the documents Ex. PW1/D1 & D2 in his cross examination.
6. On the other hand the defendant has examined himself as DW1 who has filed his evidence by way of affidavit Ex. DW1/A. In his evidence the DW1 has reiterated the fact mentioned in the written statement and relied upon the document already Ex. PW1/D1 & D2. The DW1 was also crossexamined by the Ld. counsel for the plaintiff.
Suit No. 514/2012 Page No. 4 of 11
7. Further the defendant has examined Sh. Om Parkash as DW2 who has also filed his evidence by way of affidavit Ex. DW2/A. The DW2 was also crossexamined by the Ld. counsel for the plaintiff.
8. I have heard Ld. counsel for both the parties and perused the record & gone through the relevant provision of law.
9. My issue wise finding is as under:
10. Issue No. 1 Whether the plaintiff is entitled to a decree of permanent injunction as prayed? OPP The case of the plaintiff is that he is the owner of a part of the house bearing no. 84, Masjid Moth, N. Delhi110049 by virtue of power of attorney, Ex PW1/2, agreement to sell, Ex PW1/3, receipt, Ex PW1/4 and affidavit, Ex PW1/5 all dated 3/6/1991 executed by Smt. Tarawati in favour of the plaintiff qua 38.17 sq meters of the house bearing no. 84, Masjid Moth, N. Delhi 110049, consisting of two rooms on the first floor and open space.
11.At this juncture it would be worthwhile to discuss the decision in Suraj Lamp & Industries Pvt. Ltd vs. State of Haryana & Anr. SLP (C) No. 13917 of 2009 dated 11.10.2011. In the aforesaid decision, the Hon'ble Supreme Court has clearly laid down that such documents do not create any ownership right in immovable property. The Hon'ble Supreme Court held as under:
"Therefore, a SA/GPA/WILL transaction does not convey Suit No. 514/2012 Page No. 5 of 11 any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank - 94(2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some king of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property"
12.Now from the aforesaid it is clear that the plaintiff is claiming ownership on the basis of the GPA, agreement to sell, affidavit, will etc. but in view of the aforesaid decision in Suraj Lamp's case (supra), the plaintiff cannot be declared an owner as there is no valid transfer of property vide the aforesaid documents.
13.The plaintiff has also stated that he is the owner of the suit property by virtue of the will dated 22/8/1997 of Smt. Bhuri Devi Suit No. 514/2012 Page No. 6 of 11 Ex. PW1/7, which was executed in the favour of the plaintiff before her death in the year 1998. But the said will has not been proved in accordance with law by the plaintiff. At this juncture it would be worthwhile to discuss the provisions and case laws regarding mode and manner of proving a will, which are as under:
Proof of execution of document required by law to be attested.
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.]
14.In Shashi Kumar Banerjee v. Subodh Kumar BanerjeeAIR 1964 SUPREME COURT 529, the full bench of the Hon'ble Apex Court discussed the mode and manner of proving a will, the relevant portion of the said judgment is as under:
The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B. N. Thimmajamma, 1959 Supp (1) SCR 426 : (AIR 1959 SC 443) and Rani Purniama Devi v. Khagendra Narayan Dev, (1962) 3 SCR 195 : AIR 1962 SC Suit No. 514/2012 Page No. 7 of 11
567). The mode of proving a will does 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 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. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature 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 indication 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 suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes 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. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested.
15. The plaintiff has examined himself as PW1 only and plaintiff is Suit No. 514/2012 Page No. 8 of 11 not the attesting witness of the will dated 22/8/1997 of Smt. Bhuri Devi Ex. PW1/7, which was executed in the favour of the plaintiff. Thus, in view of the foregoing discussion, the plaintiff has failed to prove the will dated 22/8/1997 of Smt. Bhuri Devi Ex. PW1/7, which was executed in the favour of the plaintiff. Thus, the plaintiff has failed to prove that he is the owner of the suit property.
16.The defendant has relied on will dated 27/9/1991 and the site plan, which is the part of the said will executed by Smt. Bhuri Devi Ex. PW1/D1 and Ex. PW1/D2 to show that he is the owner of the suit property but neither the defendant/DW1 nor the DW2 Sh. Om Prakash Saini were the attesting witnesses of the said will dated 27/9/1991. Thus, in view of the foregoing discussion, the defendant has failed to prove the will dated 27/9/1991 of Smt. Bhuri Devi Ex. PW1/D1 and Ex. PW1/D2, which was executed in the favour of the defendant qua the suit property. Thus, the defendant has failed to prove that he is the owner of the suit property.
17. Also, the plaintiff has failed to show how Smt. Tarawati was the owner of the suit property. No documentary evidence has been brought on record to show the ownership of Smt. Tarawati over the suit property.
18. Be that as it may, it is admitted case between the parties that Smt. Suit No. 514/2012 Page No. 9 of 11 Bhuri Devi was the owner of the entire house bearing no. 84, Masjid Moth, N. Delhi110049. During crossexamination, the plaintiff has admitted that he is entitled to 1/5 share in the entire suit property. But same is not supported by any documentary evidence. Also, the parties have failed to prove that any oral/written partition took place between the descendants of Smt. Bhuri Devi regarding the entire house bearing no. 84, Masjid Moth, N. Delhi110049. Since the parties have failed to prove the wills dated 27/9/1991 & 22/8/1997 thus, all the children i.e. sons and daughters of Smt. Bhuri Devi are the coowners of the entire house bearing no. 84, Masjid Moth, N. Delhi110049 and the proper remedy for the plaintiff was to file a suit for partition by metes and bound. In this regard,in Lala Om Prakash vs. Hari Ram, AIR 2005 DELHI 190, a Division Bench of the Hon'ble Delhi High Court held: "Therefore, the finding of the learned single Judge that it was only in the nature of arrangement of living in respective portion of the suit property and living without disputes earlier cannot be construed too mean and reach the conclusion that there was an oral agreement. Once they live in their respective portions and the property being so owned and the same has been constructed, renovated or altered in respect of their respective portions, will not lead to a conclusion that there had been an oral agreement or any independent right emerged in relation to the said property. In the absence of any actual partition having taken place and for the aforesaid reasons, we do not see any Suit No. 514/2012 Page No. 10 of 11 infirmity with the impugned order by which a preliminary decree for partition was passed and a local commissioner was appointed for suggesting ways of partition of the property by metes and bounds."
In view of the foregoing discussion, the plaintiff has failed to prove his case. Thus accordingly, this issue is decided against the plaintiff.
19. Relief In view of the foregoing discussion, the plaintiff has failed to prove his case and thus the suit is hereby dismissed. Parties shall bear their own costs.
Decree sheet be prepared accordingly. File be consigned to the record room after due compliance.
Announced & signed in the ( Snigdha Sarvaria) open court on 30032013. Civil Judge/Central05 Delhi Suit No. 514/2012 Page No. 11 of 11