Delhi District Court
House No. 1070/ vs Subedar Fateh Singh (Deceased) on 26 April, 2018
IN THE COURT OF MS. PRIYA MAHENDRA, ADJ-04, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI.
Civil Suit No. 6012/16
Smt. Kiran Wati
Wd/o Sh. Rajinder Singh
R/o F-702/203, Lado Sarai,
New Delhi-110030.
2nd Address:
House No. 1070/1, Ward No.1.
3rd Floor, Mehrauli,
New Delhi-110030 ..............Plaintiff
Versus
1. Subedar Fateh Singh (deceased)
Through Legal Heirs:
(i) Smt. Krishna W/o Sh. Karan Singh
R/o AG-Block, No. 495, Shalimar Bagh,
Delhi. (married daughter)
(ii) Sh. Rajbir Singh S/o Late Sh. Subedar
Fateh Singh R/o F-702/230, Village Lado Sarai,
New Delhi-110030.
(iii) Nitika D/o Late Sh. Rajender Singh
(iv) Sh. Parveen S/o Late Sh. Rajender Singh
All R/o F-702/230, Village Lado Sarai,
New Delhi-110030.
(v) Jyoti D/o Late Sh. Raj Singh
(vi) Poonam D/o Late Sh. Raj Singh
Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 1/39
(vii) Suksham Lata D/o Late Sh. Raj Singh
All R/o F-702/230, Village Lado Sarai,
New Delhi-110030.
2. Smt. Unesh Devi
W/o Sh. Rajbeer Singh
3. Smt. Bhateri Devi
W/o Late Sh. Raj Singh
Both R/o F-702/230, Village Lado Sarai,
New Delhi-110030. .....Defendants
Date of institution of the suit : 13.02.2012.
Date reserved for judgment : 04.04.2018
Date of pronouncement of judgment : 26.04.2018
Suit for declaration and permanent injunction
JUDGMENT
1. The present suit has been filed by the plaintiff seeking declaration for declaring the Gift Deed dated 19.11.2010 as null and void and permanent injunction restraining the defendants, their associates, their agents etc. from dispossessing the plaintiff from the portion of the property bearing F-702/230/2, comprised in Khasra No. 193 situated within Lal Dora Abadi (1908-09) of Village Laddo Sarai, New Delhi
-110030 as shown in red colour in site plan (hereinafter referred to as 'suit Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 2/39 property') and further restraining them from creating any third party interest in the suit Property.
1.1 The case of the plaintiff as reflected in the plaint is that the defendant No.1 is the recorded owner of built up property comprising three storeyed building having 14 rooms bearing No. F-702/230/2, on Plot measuring about 125.415 square meters comprised in Khasra No. 193 situated within Lal Dora Awadi (1908-09) of Village Laddo Sarai, New Delhi -110030 (hereinafter referred to as Property). The defendant No.1 has three sons, namely, Raj Singh, Rajender Singh and Rajbeer Singh and one daughter, namely, Smt. Krishna, who is married and settled in her matrimonial house. Sh. Raj Singh expired in the year 1989 and defendant No.3 Smt. Bhateri Devi is his wife. Sh. Rajender Singh expired in the year 1990 and the plaintiff Smt. Kiran Wati is the wife of the deceased Rajender Singh. The parties of the suit were living in the joint family till 07.07.1994. In order to avoid the future dispute among the legal heirs of the defendant No.1, the defendant No.1 executed a Will dated 07.07.1994 desiring that after his death, the property shall be distributed equally among his legal heirs, namely, son Rajbeer Singh, daughter Smt. Krishna, Smt. Bhateri Devi and Smt. Kiran Wati/plaintiff and all of them shall take 1/4th share each in the Property. Pursuant to Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 3/39 the Will dated 07.07.1994, defendant No.1 also executed a General Power of Attorney dated 07.07.1994 in favour of the plaintiff authorizing her to look after the Property and to do all other miscellaneous act in respect of the Property. That in the year 1997 out of his own consent and free will, defendant No.1 divided the suit property by metes and bounds in the following manner:
i) 4 Rooms in the 1st floor and 1 room in the 2nd floor were occupied by the plaintiff and the same is shown in Red colour in the annexed site plan.
ii) 5 Rooms in the Ground Floor were occupied by Smt. Bhateri, defendant No.3 and the same is shown in Green colour in the annexed site plan.
iii) 3 Rooms in the first floor and 2 Rooms in the 2 nd Floor were occupied by the defendant No.2, namely, Smt. Unesh and the same is shown in blue colour in the annexed site plan.
(iv) 2 Rooms on the ground floor were kept in occupation by the defendant No.1, hereinafter the owner of the property, as shown in pink colour in the annexed site plan.
1.2 It is further stated that since 1997, the parties to the suit are in separate occupation and possession of their respective portions and are living separately from each other. It is further stated that the defendant Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 4/39 No.1 continued to live separately in his portion in the property alongwith his wife. The wife of the defendant No.1 expired on 21.11.2010. Presently, the plaintiff has given her portion on rental basis to the tenants, who are paying rent to the plaintiff on monthly basis. The plaintiff has been all along supporting the family and contributed for the upliftment of the other family members including the defendant No.1, defendant No.2 and defendant No.3 and their children. The defendant No.1 is presently more than 90 years of old and suffering from mental disease. It is the plaintiff only, who is looking after him and spending her hard earned money for maintaining him and also bearing expenses of his medicines etc. 1.3 It is further stated that in the month of October 2010, the plaintiff was busy in the marriage ceremony of her daughter and to the utter surprise of the plaintiff, the defendant No.1 executed a Gift Deed dated 19.11.2010 in favour of the defendant No.2 & 3 in the absence of the plaintiff. The defendant No.1 was not legally competent to execute any alleged Gift-Deed dated 19.11.2010 in favour of the defendant No.2 & 3 to the exclusion of the plaintiff as the suit property was already divided in the year 1997. It is further averred that the defendant No.1 is already suffering from a mental problem and as such there is every apprehension Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 5/39 that the defendant No.2 & 3 have malafidely, fraudulently and by misrepresentation motivated the defendant No.1 to execute the said Gift- Deed dated 19.11.2010 in their favour. Defendant No.2 & 3 have taken advantage of frail mental condition and old age of the defendant No.1 and the said Gift-Deed has not been executed by the defendant No.1 with his free consent and will in favour of the defendant No.2 & 3. It is also stated that the plaintiff is in continuous, regular, uninterrupted and hostile possession of her portion of the Property since 1997 to the knowledge of the defendant No.1 and without any interruption of the defendant No.2 &
3. The plaintiff has as such completed his title to suit property by adverse possession and thus deemed to be the absolute owner and in possession of the suit property.
1.4 Defendant No.2 & 3 had an ulterior motive to grab the Property to exclusion to the other legal heirs of the defendant No.1. Defendant No.2 & 3 were inciting and instigating the defendant No.1 against the plaintiff. Defendant No.2 & 3 have been all along threatening and harassing the plaintiff and her children for which the plaintiff filed police complaint against the defendant No.2 & 3. Defendant No.2 & 3 are harassing the tenants of the plaintiff with a view to dispossess the plaintiff from the suit property and also intending to create third party interest in the suit Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 6/39 property. Defendant No.2 & 3 on number of occasions extended threats to the plaintiff to dispossess her from the suit property. In the last week of January 2012, the defendants alongwith the some unsocial people came to the suit property and tried to forcibly dispossess the tenants of the plaintiff and on failure of the defendants to to do so, they threatened the plaintiff with dire consequences. Hence the present suit.
2. A joint Written Statement was filed on behalf of the defendant No.2 & 3 in which the defendants denied and disputed all the averments in the plaint. It is stated in the Written Statement that the defendant No.1 was absolute owner of the suit property. This was his self acquired property which he had purchased from Ch. Devi Singh S/o Ch. Kanshi Ram in 1973 after retirement from his Army service utilizing his hard earned money. The defendant No.1 has made the Gift Deed in favour of defendant No. 2 & 3 and the same was registered before the Sub Registrar, Mehrauli, New Delhi on 19.11.2010 in presence of two witnesses, namely, Smt. Maya Devi W/o Sh. M.D. Mishra and Ms. Suksham Lata D/o Late Sh. Raj Singh, and the same was accepted by the defendant No.2 & 3. The acceptance of the Gift Deed by defendant No.2 & 3 makes the Will executed by the defendant No.1 on 07.07.1994 null and void. The said Gift Deed was made and registered by the defendant Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 7/39 No.1 in favour of the defendant No.2 & 3 with his own free will and consent without any pressure, coercion or undue influence exercised by any person. The defendant No.1 and his wife were living with the defendant No.2 & 3 since their marriage and defendant No.2 & 3 had been taking care of defendant No.1 and his wife till death of his wife and taking care of defendant No.1 till date.
2.1 The plaintiff had purchased a new flat bearing No. 1070/1, Ward No.1, 3rd Floor, Mehruali, New Delhi which was purchased by the plaintiff with the financial help of defendant No.1 and shifted in the said flat in the year 2000. The plaintiff's behaviour was very cruel and abnormal towards the defendant No.1 and his wife till she was living along with the family in the Property. The defendant No.1's wife expired on 21.11.2010. The husband of defendant No.2 is a habitual drunkard and gambler and she has filed a complaint under Section 12 of D.V. Act, against her husband and the said complaint is still pending before the court of Ms. Priya Mahendra, the then Ld. M.M, New Delhi and was fixed for 25.07.2012. The defendant no.3 is a widow of the son of the defendant No.1, namely, Sh. Raj Singh (now deceased) and completely blind and having three daughters out of this wedlock and there is no male member in her family. The behaviour of the plaintiff was very cruel and Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 8/39 arrogant towards the defendant No.1 and other family members. Defendant No.1 knew that the plaintiff and his son, namely, Parveen Kumar, aged about 23 years and son of the defendant No.1, namely, Rajbeer and daughter of defendant No.1, namely, Krishna will not help defendant No.2 & 3 in any manner and they can throw out the defendant No.2 and 3 after death of defendant No.1. It would be very difficult for defendant No.2 & 3 to survive without shelter because there is no other place for residence for the defendant No.2 & 3. In view of the above said circumstances, the defendant No.1 has made a Gift Deed in favour of defendant No.2 & 3.
2.2 The defendants have categorically denied that any GPA dated 07.07.1994 was executed by the defendant No.1 in favour of the plaintiff. The defendants have admitted the execution of the Will dated 07.07.1994. It is further stated that the division of the suit property never took place because the Will executed would have come into play only after death of the defendant No.1. The said Will executed on 07.07.1994 became null and void after the execution of the Gift-Deed dated 19.11.2010 in favour of the defendant No.2 & 3. It is specifically denied that since 1997 the parties to the suit are in separate occupation and possession of their respective portions and are living separately from each other. It is Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 9/39 submitted that before 21.11.2010, when the wife of the defendant No.1 expired and even after that defendant No.1 is living with the defendant No.2 & 3. It is further stated that on 27.03.2012 before the date of hearing of this case, the plaintiff, her son, Praveen Kumar and daughter of the defendant No.1, namely, Krishna took the defendant No.1 forcibly with them in the absence of the defendant No.2 & 3 for which the police complaint was filed by the defendant No.2 & 3. The behaviour of the son of the plaintiff has been very cruel towards the defendant No.1 and many times he threatened the defendant No.1 "Main Tera Pair Tod Duga, Agar Meri Mami Ki Is Ghar Main Hissa Nahi Diya To, Ek Pair To Tera Pahele Sehi Tuta Hai Dusra Bhi Tod Dunga".
2.3 It is also denied that presently the plaintiff has given the suit property on rental basis to the tenants, who are paying rent to the plaintiff on monthly basis. It is submitted that the defendant No.2 & 3 are taking rent of the suit property. The plaintiff has no title, ownership and possession of the suit property. It is further submitted that the plaintiff is living alone in her separate house with her children. The defendant No.1 is an Ex-Subedar Major in Indian Army Force. He is getting pension of Rs. 21,000/- approximately per month. He is economically self sufficient and need not to depend on anyone else for his sustenance. It is also stated Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 10/39 that the defendant No.1 is not suffering from any mental illness and his health is good enough to understand and manage things by himself. Even now, he can do his routine work properly. It is further submitted that the plaintiff had not spent even a single penny for looking after the defendant No.1 or for his medication. There is no medical proof regarding the mental illness of the defendant No.1. It is submitted that the defendant No.2 & 3 are taking care of the defendant No.1 since their marriage. The defendant No.3 is completely blind and is working in AIIMS Hospital, New Delhi after the death of her husband on getting job from AIIMS Hospital on compassionate ground. The defendant No.3 enrolled the defendant No.1 as a family member in the AIIMS Hospital, so that he can get medical treatment from the AIIMS Hospital, if required. 2.4 It is further stated that the defendant No.1 had executed the Gift- Deed dated 19.11.2010 in favour of the defendant No.2 & 3 with full consciousness and free will without any duress, coercion or undue influence. It is further denied that the plaintiff has completed the adverse portion of the suit property and is deemed to be the absolute owner and in possession of the suit property. It is denied that the defendant No.2 has all along threatened the plaintiff with dire consequences and has been harassing the plaintiff as well as four children. It is submitted that the Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 11/39 defendant No.2 is a patient of acute Asthma disease and is in a very poor health. Defendant No.3 is completely blind having three daughters and there is no male members in her family. The plaintiff is taking advantage of the circumstances of the defendant No.2 & 3 and the complaint filed by her in the Police Station against the defendant No.2 & 3 is totally baseless. All other averments made in the plaint are denied by the defendants.
3. In the Replication, the plaintiff has denied the contents of the Written Statement filed by the defendant No.2 & 3. Plaintiff has reiterated & reaffirmed the contents of the plaint. The Plaintiff has reaffirmed that the defendant No. 2 & 3 are living separately from defendant No.1. The defendant No.2 started living separately form 1989 and defendant No.3 from 1992 and are having Ration Cards separate from defendant No.1. It is submitted that the defendant No.1 and his wife were living with the plaintiff and had a joint Ration-Card with the plaintiff and her children. It is submitted that after death of the husband of the defendant No.3, defendant No.3 left the matrimonial home and started living in a quarter which was allotted to her in her name. She has given that quarter on rent and has started living in her portion of the suit property. The plaintiff has vehemently denied that she had purchased a Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 12/39 new flat in Mehrauli with the financial help of the defendant No.1. It is submitted that the plaintiff has been appointed in a Bank on compassionate ground after the death of her husband and has taken loan from the bank for purchase of the said flat.
3.1 Defendant No.1 expired in the year 2012 and his seven legal heirs were arrayed as his L.Rs after his death. Separate Written Statement was filed by the Legal Heirs No. (i), (iii) & (iv) of the defendant No.1 supporting the case of the plaintiff. Separate Written Statement was filed by the Legal Heirs No. (v) to (vii) of the deceased/defendant No.1. Legal Heirs No. (v) to (vii) are the daughters of defendant No.3 and supported the case of the defendant No.3 in their Written Statement/Reply. It is stated by them that they do not want any share of the Property and Property is owned and in possession of the defendant No.2 & 3.
4. From the pleadings of the parties, the following issues were framed on 04.05.2016:
ISSUES
1. Whether the gift deed executed by Late Sh. Subedar Fateh Singh in favour or defendant No.2 & 3 is null and void having been executed by him without his free will and under pressure and coercion? OPP.
Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 13/39
2. Whether the plaintiff is entitled to declaration declaring her the owner in possession of the suit property? OPP
3. Whether the plaintiff is entitled to permanent injunction as claimed for? OPP
4. Relief.
5. In support of her evidence, the plaintiff examined only five witnesses in all.
5.1 PW-1 Smt. Kiran Wati tendered her evidence by way of affidavit Ex.PW-1/A and reiterated and reaffirmed the contents of the plaint. PW-1 has relied upon following documents:
1. Ex.PW1/1 is original site plan.
2. Ex.PW-1/2 is original Will dated 07.07.1994.
3. Ex.PW-1/3 is original Power of Attorney dated 07.07.1994.
4. Ex.PW1/4 is Life Insurance Policy dated 30.09.2010.
5. Ex.PW1/5 is Electricity bill dated 27.09.2011.
6. Ex.PW1/6 is Electricity bill dated 29.07.2011.
7. Ex.PW1/7 is Electricity bill dated 12.10.2011.
8. Ex.PW1/8 is Saving Bank Passbook of plaintiff.
9. Mark A is the photocopy of letter dated 08.02.2012.
10. Mark B is the photocopy of the complaint dated 09.04.1993.
Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 14/39
11. Mark C is the photocopy of complaint dated 16.11.1994.
12. Mark D is the photocopy of complaint dated 18.10.2004.
13. Mark E is the photocopy of complaint dated 04.10.2007.
13. Mark G is the photocopy of the birth report.
14. Mark X is the complaint dated photocopy of pension book.
15. Mark Y (colly.) running into 4 pages is the photocopy of bank of India (employees) pensions scheme pension book.
16. Ex. PW-1/11 is the copy of ID Card.
5.2 PW-2 Sh. Raj Kumar and PW-3 Smt. Sheela are the neighbours of the plaintiff and the defendants, and deposed on the same lines as plaintiff.
5.3. PW-4 Sh. Rajender deposed that he was residing as tenant in the suit property and presently he is paying rent to the defendant No.3 @ Rs.
4200/- per month. He denied his signature at point A on each page of Declaration, Mark XA.
5.4 PW-5 Sh. Manjit deposed that he is not aware anything about the present case. He denied his signature at point 'B' on each page of Declaration, Mark XA.
5.5 No other PW was examined and PE was closed vide order dated 03.05.2017.
Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 15/39
6. In defence evidence, defendants examined three witnesses in all. Defendant No.3 examined herself as DW-1. DW-2 is Ms. Suksham Lata, who is daughter of defendant No.3 and was attesting witness to Gift Deed dated 19.11.2010. DW-3 is daughter of deceased defendant No.1. 6.1 DW-1 Smt. Bhateri Devi tendered her evidence by way of affidavit Ex.DW-1/A and reiterated and reaffirmed the contents of the Written Statement. DW-1 has relied upon the following documents:
1. Ex.DW-1/1 is the copy of Election ID card.
2. Ex.DW-1/2 is the copy of receipt of payment against purchase of suit property.
3. Ex.DW-1/3 is the Gift Deed dated 19.11.2010 filed on behalf of the plaintiff.
4. Ex.DW-1/4 (colly.) are the copies of details of the 4 tenants (information of tenants namely Rajinder Singh, Manjeet Singh, Ram Bodh and Vinod Kumar alongwith police verification).
5. Ex.DW-1/5 (colly.) are the electricity and water bills.
6. Ex.DW-1/6 and Ex.DW-1/7 are the police complaint dated 07.04.2012 and police complaint dated 28.03.2012.
7. Ex.DW-1/8 is the copy of election ID card of defendant No. 1.
8. Ex.DW1/9 is the copy of ration card of defendant No. 1.
9. Mark A (colly.) is the copy of medical documents of defendant No.
1.
10. Ex.DW-1/11 is the copy of notice under Order 12 Rule 8 r/w section 151 CPC.
Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 16/39 6.2 DW-2 Ms. Suksham Lata tendered her evidence by way of affidavit Ex.DW-2/A and reiterated and reaffirmed the contents of the Written Statement. She deposed that she was the witness to the Gift-Deed dated 19.11.2010 which was duly registered with the Sub Registrar and the defendant No.1- Late Sh. Subedar Fateh Singh was in sound mental health and made the Gift-Deed dated 19.11.2010 with his own free will in favour of the defendant No.2 & 3. She deposed on the lines of the defendant No.3. DW-2 has relied upon the following document:
1. Ex. DW-1/3 is the registered Gift Deed.
6.3. DW-3 Smt. Krishna Devi is examined, who is daughter of the deceased/defendant No.1. She tendered her evidence by way of affidavit Ex. DW3/A. She relied upon the documents already Ex. PW1/1 and Ex.
PW1/2. She supported the case of the plaintiff.
6.4 No other DW was examined and DE was closed vide order dated 07.12.2017.
7. I have carefully considered the arguments advanced and perused the record.
8. Details final arguments heard. My findings on the issues are as follows:
Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 17/39 Issue No.1:
Whether the gift deed executed by Late Sh. Subedar Fateh Singh in favour or defendant No.2 & 3 is null and void having been executed by him without his free will and under pressure and coercion? OPP.
Proof of Gift-Deed dated 19.11.2010
9. The defendant No.2 & 3 have set up a Gift-Deed dated 19.11.2010 executed by the defendant No.1 in their favour in respect of the Property which includes the suit property, to establish that defendant No.2 & 3 are exclusive owners of suit property. The onus was thus on defendant No.2 & 3 for proving the legal validity of the Gift-Deed executed by defendant No.1 in their favour. Here it shall be apposite to extract the relevant provisions of law relating to Gift of Immovable Property. 9.1 Section 123 of the Transfer of Property Act, 1882 provides :
"123. Transfer how effected.- For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses."
9.2 Section 68 of the Indian Evidence Act, 1872 makes a provision regarding proof of execution of a document required by law to be attested. Therein it is laid down that :
Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 18/39 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.
The proviso to the section, which is relevant for the present purpose, reads:
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."
Thus, the proviso to Section 68 of Evidence Act dispenses with the necessity of calling an attesting witness in proof of any document, except a Will, which has been registered in accordance with the provisions of Indian Registration Act, 1908 when there is no specific denial by the parties against whom the document is relied upon.
9.3 In the present case, the plaintiff, in the pleadings, has not specifically denied the execution or attestation of Gift-Deed dated 19.11.2010. Therefore, no issue was framed on this aspect.
9.4 The defendant No.2 & 3 already proved on record registered Gift-
Deed dated 19.11.2010 Ex. DW1/3 duly signed by donor/defendant No.1 Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 19/39 and attested by two witnesses. The requirements as envisaged under Section 123 for Gift of Immovable Property, have been duly complied with. The defendant No.2 & 3 have also examined DW-2, who was one of the attesting witnesses to Gift-Deed Ex. DW1/3. DW-2 Ms. Suksham Lata categorically deposed that she was attesting witness to the execution of Gift-Deed dated 19.11.2010 Ex.DW1/3 by defendant No.1 and she was present before the Sub Registrar, Mehrauli, New Delhi on 19.11.2010 and in her presence, the said Gift Deed was duly registered before the Sub Registrar, Mehrauli, New Delhi. She categorically denied the suggestion that she was not present at the time of registration of Gift Deed before the Sub Registrar Office on 19.11.2010. She affirmatively stated that she was present before the Sub Registrar Office at about 11:00 a.m for registration of Gift-Deed. The plaintiff failed to elicit anything to show that she was not attesting witness to Gift-Deed Ex. DW1/3 and it was not executed by defendant No.1 in her presence.
9.5 During the course of the arguments, Ld. Counsel for the plaintiff argued that the fact that the Gift-Deed is not attested by wife of the deceased defendant No.1 puts the Gift-Deed dated 19.11.2010 Ex. DW1/3 under realm of suspicion and creates doubt on its genuineness. On the other hand, Ld. Counsel for the defendant No.2 & 3 has argued that the Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 20/39 wife of the deceased defendant No.1 was not alive at the time of execution of Gift-Deed dated 19.11.2010 Ex. DW1/3 and it was duly attested by two witnesses.
9.6 It is suffice to say that no evidence has been produced by the plaintiff to show that the wife of the deceased defendant No.1 was alive at the time of execution and registration of Gift-Deed dated 19.11.2010 Ex. DW1/3. Moreover, there is no requirement of law that any particular witness has to be attesting witness to the execution of Gift-Deed of Immovable Property. Section 123 of Transfer of Property Act only provides that the transfer of Immovable Property by way of gift has to be attested by at least two witnesses and this condition has been duly fulfilled in the present case.
9.7 It is also argued by Ld. Counsel for the plaintiff that the defendant No.2 & 3 failed to examine another attesting witness Smt. Maya Devi and thus the plaintiff failed to prove the due execution and attestation of Gift- Deed dated 19.11.2010 Ex. DW1/3. On the other hand, Ld. Counsel for the defendant No.2 & 3 has argued that defendant No.2 & 3 are not legally required to prove the attestation of Gift-Deed by calling both the attesting witnesses as the execution and attestation of Gift Deed has never Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 21/39 been challenged by the plaintiff. In support of his submission, he has relied on the judgment of ' Surender Kumar vs. Nathu Lal & Anr. (2001) 5 Supreme Court Cases 46 and 'Brij Raj Singh (dead) by L.Rs & Ors. vs. Sewak Ram & Anr. (1999) 4 SCC 331.
9.8 The submission of Ld. Counsel for the plaintiff is not legally tenable. Proviso to Section 68 of Indian Evidence Act makes it clear that it is not necessary to call an attesting witness in proof of execution of any document not being a Will which is duly registered unless its execution specifically denied by the parties against whom the document is relied upon. As already stated above, the plaintiff in the present case has not raised any specific objection as to the execution and attestation of the Gift-Deed dated 19.11.2010 Ex. DW1/3 by the defendant No.1 and as such, no issue was framed as to execution and attestation of the Gift Deed. In Brij Raj Singh (supra), the Hon'ble Supreme Court dealt with this issue at length and observed that :
"23. In Lachman Singh Vs. Surendra Bahadur (AIR 1932 Allahabad
527) a Full Bench of the High Court considered the issue and answered as follows:-
"Now let us consider the merits of the arguments. for the appellants, it is argued that by compliance with the provision of Ss. 68, 69 and 71, Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 22/39 Evidence Act, a party succeeds only in making the mortgage-deed, or any other deed, like a deed of gift required to be attested by at least two witnesses, admissible in evidence but in order to be able to show that the document is a valid deed of mortgage or a valid deed of gift, he must also prove further that it was attested by two witnesses. It is conceded on behalf of the respondents and indeed the matter cannot be disputed that where the validity of the deed propounded either as a deed of mortgage or as a deed of gift is specifically in question, on the ground whether or not, the requirements of Ss 59 and 123, Transfer of Property Act, had been complied with, the party relying on the deed must prove that it had been attested by at least two attesting witnesses. But the question is where the mere execution of a document has to be proved either because of the case being ex-parte or because of a mere denial of the execution, whether it would still be necessary to prove that the document was attested by two attesting witnesses."
** ** ** ** ** ** "Where a mortgagee sues to enforce his mortgage and the execution and attestation of the deed are not admitted, the mortgagee need prove only this much that the mortgagor signed the document in the presence of an attesting witness and one man attested the document provided the document on the face of it bears the attestation of more than one person; but if the validity of the mortgage be specifically denied, in the sense that the document did not affect a mortgage in law then it must be proved by the mortgagee that the mortgage deed was attested by at least two witnesses."
24. Again in Jhillar Rai vs. Rajnarain Rai (AIR 1935 Allahabad 781) Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 23/39 the High Court held as follows :
"There has been a subsidiary argument that the plaintiffs cannot claim to be co-shares, because the mortgage deed has not been proved. The argument is based on the provision of S.68, Evidence Act. It appears that the execution of the mortgage was proved, but not by the production of marginal witness. Under S.68 as it now runs, it is not necessary to prove or to produce a marginal witness unless the mortgage is specifically denied. It is obvious that there would be no necessity to prove the deed at all if it was admitted and consequently the section contemplates a distinction between the position where execution is not admitted and a position where execution is specifically denied. In the present case the plaintiffs in the first paragraph of the plaint stated that they were mortgagees under the deed dated 23rd September, 1929, and that they had ben in possession of the plots in question. The defendants said in their written statement that they did not admit this paragraph. But it is clear from the additional pleas that what they were questioning really was not the execution of the deed but the fact of possession. No issue was framed clearly on the question of execution. In these circumstances it cannot be held that the execution of the mortgage was specifically denied. The mortgage was therefore sufficiently proved."
9.9 Examining the present case in backdrop of the above position of law, it is clear that the defendant No.2 & 3 are not legally required to examine another attesting witness having called one of the attesting witnesses to prove the execution of Gift Deed in question by donor and in fact the onus shifted on the plaintiff to show that the other witness did not Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 24/39 really see its execution and, therefore, the requirements of Section 123 of Transfer of Property Act were not complied with.
Whether the Gift-Deed was executed by the defendant No.1 under any undue influence, pressure or coercion.
10 The plaintiff in her pleading has averred that the defendant No.1 was 90 years of age at the time of execution of Gift-Deed dated 19.11.2010 (Ex. DW1/3) and suffering from frail mental condition. So, the plaintiff apprehends that the defendant No.2 & 3 took advantage of his old age and weak mental faculties for execution of Gift Deed in their favour and the same was not executed by him spontaneously in exercise of his own free Will.
10.1 Before proceeding further, I would like to quote extensively from the judgment of Hon'ble Supreme Court in Subhash Chandan Das Mushib vs. Ganga Prasad Das Mushib & Ors. AIR 1967 SC 878 which squarely deals with issue at hand and relied on by the Counsel for the plaintiff.
"3. We may now proceed to consider what are the essential ingredients of undue influence and how a plaintiff who seeks relief on this ground should proceed to prove his case and when the defendant is called upon to show that the contract or gift was not induced by undue influence. The Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 25/39 instant case is one of gift but it is well settled that the law as to undue influence is the same in the case of a gift inter- vivos as in the case of a contract.
4. Under s. 16 (1) of the Indian Contract Act a contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. This shows that the court trying a case of undue influence must consider two things to start with, namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor and (2) has the donee used that position to obtain an unfair advantage over the donor'?
5. Sub-section (2) of the section is illustrative as to when a person is to considered to be in a position to dominate the will of another. These are inter alia (a) where the donee holds a real or apparent authority over the donor or where he stands in a fiduciary relation to the donor or (b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
6. Sub-section (3) of the section throws the burden of proving that a contract was not induced by undue influence on the person benefiting by it when two factors are found against him, namely that he is in a position to dominate the will of another and the transaction appears on the face of it or on the evidence adduced to be unconscionable.
7. The three stages for consideration of a case of undue influence were expounded in the case of Ragunath Prasad v. Sarju Prasad and others(1) in the following words :-
Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 26/39 "In the first place the relations between the parties to each other must be such that one is in a position to dominate the will of the other. Once that position is substantiated the second stage has been reached-namely, the issue whether the contract has been induced by undue influence. Upon the determination of this issue a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other.
Error is almost sure to arise if the order of these propositions be changed. The unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relations of these parties. Were they such as to put one in a position to dominate the will of the other?"
8. It must also be noted that merely because the parties were nearly related to each other no presumption of undue influence can arise. As was pointed out by the Judicial Committee of the Privy Council in Poosathurai v. Kappanna Cheittiar and others(2) .--
"It is a mistake (of which there are a good many traces in these proceedings) to treat undue influence as having been established by a proof of the relations of the parties having been such that the one naturally relied upon the other for advice, and the other was in a position to dominate the will of the first in giving it. Up to that point "influence" alone has been made out. Such influence may be used wisely, judiciously and helpfully. But whether by the law of India or Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 27/39 the law of England, more than mere influence must be proved so as to render influence, in the language of the law, "undue".
9. The law in India as to undue influence as embodied in s. 16 of the Contract Act is based on the English Common Law as noted in the judgments of this Court in Ladli Prasad Jaiswal v. Karnal Distillery Co. Ltd. and ors(3). According to Halsbury's Laws of England, Third Edition, Vol. 17, p. 673, Art. 1298, "where there is no relationship shown to exist from which undue influence is presumed, that influence must be proved". Article 1299, p. 674 of the same volume shows that "there is no presumption of imposition or fraud merely because a donor is old or of weak character"The nature of relations from the existence of which undue influence is presumed is considered at pages 678 to 681 of the same volume. The learned author notes at p. 679 that "there is no presumption of undue influence in the case of a gift to a son, grandson, or sonin-law, although made during the donor's illness and a few days before his death". Generally speaking the relation of solicitor and client, trustee and cestui que trust, spiritual adviser and devotee, medical attendant and patient, parent and child are those in which such a presumption arises. Section 16(2) of the Contract Act shows that such a situation can arise wherever the donee stands in a fiduciary relationship to the donor or holds a real or apparent authority over him.
10. Before, however, a court is called upon to examine whether undue influence was exercised or not, it must scrutinise the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See Order 6, Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 28/39 great stress in the case of Ladli Prasad Jaiswal(1) above referred to. In that case it was observed (at p. 295):
"A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other."
** ** ** ** **
23. It is pertinent also to note the observation of the Judicial Committee in the above case at p. 94:
"The mere relation of daughter to mother, of course, in itself suggests nothing in the way of special influence or control. The evidence seems to their Lordships quite insufficient to establish any general case of domination on the part of the daughter, and subjection of the mother, such as to lead to a presumption against any transaction between the two. With regard to the actual transactions in question, there is no evidence whatever of undue influence brought to bear upon them."
10.2 Thus, the party who alleges exercise of undue influence by other party has to specifically and precisely plead the nature and manner of use of undue influence and unfair advantage obtained by the other. Further, there is no presumption of undue influence or fraud merely because the donor is old and closely related to the donee. In the present case, there are no specific pleadings by the plaintiff of undue influence. The plaintiff Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 29/39 has not specifically pleaded that the defendant No.2 & 3 were in a position to dominate and control the Will of defendant No.1/donor. In fact, the plaintiff has made contradictory claims in her case. On one hand, she has stated that it was she who was taking care of the defendant No.1 and the defendant No.2 & 3 had never shown any interest in care and welfare of the defendant No.1. On other hand, she is contending that the defendant No. 2 & 3 were able to dominate the Will of defendant No.1. If the claim of the plaintiff that she was rendering all care and comfort to the defendant No.1 is taken as true then how the defendant No.2 & 3 can dominate the Will of defendant No.1? The plaintiff as well as defendant No.2 & 3 are daughters-in-law of defendant No.1. Only because the defendant No.2 & 3 are daughters-in-law of the defendant No.1 like plaintiff, it cannot be presumed that they were holding any authority over the defendant No.1 and were in a position to dominate the Will of defendant No.1. Further, the plaintiff, as per her pleadings and evidence adduced by her, is not even sure whether the defendant No.2 indeed exerted any undue influence on the defendant No.1 and thereby obtained unfair advantage. Pertinently, the plaintiff in her pleading as well as in her evidence by way of affidavit Ex. and the witnesses produced by her. PW-2 & PW-3 in their evidence by way of affidavits Ex. PW2/A & Ex. PW3/A stated that there is every apprehension that the defendant No.2 & Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 30/39 3 fraudulently and malafidely made the defendant No.1 execute the Gift- Deed dated 19.11.2010 Ex. DW1/3 in their favour. The word 'apprehension' only indicates the 'possibility' and not the 'certainty'. So, the plaintiff is not even certain as to whether any undue influence was indeed exerted by defendant No.2 & 3 on defendant No.1 to induce him to execute the Gift-Deed. There is practically no evidence about domination of defendant No.2 & 3 over defendant No.1 at the time of execution of Gift-Deed or thereafter.
10.3 The plaintiff examined herself and PW-2 & PW-3 to prove that defendant No.1 was not in sound mental condition at the time of execution of Gift-Deed dated 19.11.2010 (Ex. DW1/3). The plaintiff has not adduced any documentary evidence to support her oral testimony that the defendant No.1 was not in sound mental condition at the time of execution of Gift-Deed dated 19.11.2010 (Ex. DW1/3). She also admitted during her cross-examination that she does not have any document to show that the defendant No.1 was of unsound mind at the time when he executed the Deed of Gift. PW-2 could not give any cogent reason that how he formed an opinion that the defendant No.1 was not of sound mind. He only stated that he felt that defendant No.1 was not mentally fit, as per conversation of defendant No.1 without elaborating Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 31/39 any further. He even stated that sometimes, the defendant No.1 appears to be of sound mind and sometimes not. PW-3 also failed to disclose the basis of his statement that the defendant No.1 was not mentally sound at the time of execution of Gift-Deed. He simply stated that he was told so by the plaintiff and on the basis of information received from the plaintiff, he deposed that he was not of sound mind. His testimony is not admissible being hearsay. In fact, both PW-2 and PW-3 during their cross-examination admitted that the plaintiff was living separately and was bearing his expenses and taking care of himself. In the same breath, PW-2 & PW-3 stated that the plaintiff was taking care of the defendant No.1. It is clearly borne out from the evidence of PW-1 that she was not living in the Property since 2000 and was living at a place which was quite at a distance from the Property where defendant No.1 was residing. So definitely, it was the defendant No.1 himself, who was taking care of his day to day chores and needs. It is not fathomable that how a person, who is living separately all on his own and taking care of his needs, can be termed as a person of unsound mind in absence of cogent and convincing evidence to prove impairment of his mental capacity. Merely because the defendant No.1 was suffering from old age, it cannot be presumed that his mental capacity and faculties were impaired and deteriorated with age to such an extent that he was not able to exercise Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 32/39 free Will for execution of Gift-Deed. Most importantly, the deceased defendant No.1 was alive when the present suit was filed by the plaintiff. Still the defendant No.1 has not filed this case challenging the Gift-Deed dated 19.11.2010 Ex. DW1/3 and the plaintiff has to array him as defendant. DW-3 admitted that she personally informed the defendant No.1 about the fact of execution of Gift-Deed dated 19.11.2010 by him after four-five days of her gaining knowledge of execution of Gift-Deed in February-March 2011. She also admitted that her father did not take any legal action/lodged any complaint for cancellation of Gift-Deed from the date of his knowledge till his death. She only offered specious explanation that he wanted to get it cancelled on 17.09.2012, however, he expired on 15.09.2012. The defendant No.1, as per her deposition, came to know of execution of Gift-Deed somewhere in March-April 2011. Defendant No.1 remained alive till September 2012. So, he was having sufficient time to raise objection of Gift-Deed not being voluntarily executed by him but he never challenged the Gift-Deed. The plaintiff has also admitted in her cross-examination that she came to know for the first time the execution of Gift-Deed in the year 2011 after expiry of eight months of execution of Gift Deed. She also admitted that defendant No.1 did not lodge any complaint or initiated any legal action in respect of execution of Gift-Deed. She volunteered that she made a Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 33/39 complaint regarding this in Police Station Saket in the year 2011 but later on admitted that no copy of any such complaint has been filed by her. The plaintiff has miserably failed to explain that why defendant No.1 took no action for cancellation of Gift-Deed dated 19.11.2010 Ex. DW1/3 if it was not executed by him by exercising his independent and free Will. Hence, this issue is decided in favour of the defendant No.2 & 3 and against the plaintiff.
Issue No.2:
Whether the plaintiff is entitled to declaration declaring her the owner in possession of the suit property? OPP
11. The plaintiff/PW-1 admitted in her cross-examination that she shifted from suit property in the year 2000 and started living at a flat in Mehrauli. So admittedly, the plaintiff is not residing in any portion of the Property since 2000. The plaintiff has further claimed that she was in constructive position of the suit property having let out the suit property to the tenants and received regular rent from the tenants. However, the plaintiff failed to adduce any documentary evidence to prove that she was in constructive position of the suit property through tenants. She admitted in her cross-examination that she does not have any rent receipt as to the alleged rent paid by the tenants to her from the year 2000 to Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 34/39 2014. PW-4 and PW-5, who are the tenants in the Property, did not support the case of the plaintiff. They also denied their signatures on a Declaration mark 'XA' wherein they stated that Smt. Kiranwati/plaintiff is their land lady and they have been inducted as tenants by her in five rooms in Property. Their testimony demolishes the plea of the plaintiff that she enjoyed constructive position of the suit property through her tenants. Apart from that, the plaintiff has filed only one Life Insurance Policy dated 30.09.2010 Ex.PW1/4; electricity bill dated 12.10.2011 Ex. PW1/7 and copy of her Passbook dated 16.04.2007 Ex. PW1/8 showing her address as to be of Property bearing No. 702/230, Laddo Sarai, New Delhi i.e Property in question. The said documents in itself are not sufficient to establish that the plaintiff enjoyed continuous and uninterrupted constructive position of the suit property since the year 2000. Ld. Counsel for the plaintiff has argued that the plaintiff perfected her title by way of adverse possession and relied on the judgment of Parsinni (Dead) By L.Rs & Ors vs. Sukhi and Ors (1993) 4 SCC 375. This plea of Ld. Counsel for the plaintiff holds no water. In T. Anjanappa & Ors. vs. Somalingappa, (2000) 7 SCC 570 while expounding the concept of adverse possession. The Hon'ble Supreme Court made following important observations in Para No.20 which reads as under:
Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 35/39 "20. It is well recognized proposition in law that mere possession however long does not necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."
11.1 The plaintiff miserably failed to prove that she enjoyed continuous peaceful and open possession of the suit property hostile to title of defendant No.1 and as such her plea of acquisition of title by adverse possession is not worthy of any merit. Further more, the plaintiff in her cross-examination also admitted that her father-in-law/defendant No.1 was the absolute owner of the suit property and was, therefore, competent to execute the Gift Deed. Ld. Counsel for the plaintiff, during the course of arguments, has also contended that the defendant No.1 orally partitioned the Property in the year 1997 and, therefore, he could not execute the Gift-Deed in respect of suit property later in favour of the Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 36/39 defendant No.2 & 3 to the exclusion of plaintiff. He relied on the judgment of Neelathupura Shaikoya & Ors. vs. Monthrappallipadippura Attakoya AIR 2003 Kerala 344. First of all, the Property being the self acquired property of the defendant No.1 cannot be orally partitioned, as per law. The deposition of DW-1 that one room locked by her in the Property was given to her by her father-in-
law/defendant No.1 and other married sons were also given room in Property by the defendant No.1/father-in-law at best indicates the family arrangement decided by the defendant No.1. Such family arrangement does not imply that any title was transferred in respect of suit property by the defendant No.1 in favour of the plaintiff. The defendant No.1 being the absolute owner of the suit property and the same being his self acquired property, he was legally entitled and competent to gift/transfer Property to any legal heir during his lifetime. The judgment of Neelathupura Shaikoya (supra) is clearly distinguishable on facts and is not applicable to the facts and circumstances of the present case. Hence, this issue is decided in favour of the defendant No. 2 & 3 and against the plaintiff.
Issue No.3:
Whether the plaintiff is entitled to permanent injunction as claimed for? OPP Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 37/39
12. The plaintiff herself admitted that she ceased to be in possession of the suit property since October, 2014. She stated in her cross- examination that her household articles and belongings were removed by the defendants. Pertinently, the plaintiff never made any attempt to bring this fact on record and also not filed any complaint regarding her dispossession from the suit property at the hands of defendants during the pendency of the present case. Thus, her testimony that she remained in the suit property till October 2014 is not believable. There is no question of any injunction for protecting her possession as by her own deposition, she is no longer in possession of the suit property. Further, in view of the findings on the issue No.1 & 2, the defendant No. 2 & 3 are absolute owners of the suit property and the plaintiff is not entitled to any injunction against the defendant No.2 & 3 from restraining them to create third party interest in the suit property. Hence, this issue is decided in favour of the defendant No. 2 & 3 and against the plaintiff. Relief.
13. In view of the findings on the above said issues, the suit of the plaintiff is dismissed. No order as to cost.
Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 38/39
14. File be consigned to the Record Room.
Announced in the open court. (PRIYA MAHENDRA)
Dated:26.04.2018 ADJ-04 (South)
Saket Courts/New Delhi
Digitally
signed by
PRIYA
PRIYA MAHENDRA
MAHENDRA Date:
2018.04.28
16:32:50
+0530
Civil Suit No. 6012/16 Smt. Kiran Wati vs. Subedar Fateh Singh & Ors. 39/39