Delhi District Court
Jagmohan Singh Chawla vs Jaspal Singh Chawla on 16 March, 2023
In The Court Of Ms. Paridhi Sharma, Administrative Civil Judge
cumCommercial Cases JudgecumAdditional Rent Controller,
South West District, Dwarka Courts, Delhi.
CNR No. : DLSW030003712018
Jagmohan Singh Chawla versus Jaspal Singh Chawla
a) Civil Suit No. : 272/2018
b) Name & address of the : Jagmohan Singh Chawla,
plaintiff. S/o Late Harbans Singh,
R/o Flat No. 402, Plot No.
42, Manchahat Apartment,
Sector10, Dwarka,
New Delhi110075.
c) Name & address of the : Jaspal Singh Chawla,
defendant. S/o Late Harbans Singh,
R/o B3/11, Janak Puri,
New Delhi110058.
Date of institution : 06.03.2018
Final arguments heard on : 27.02.2023
Judgment pronounced on : 16.03.2023
Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 1/36
Suit for declaration for declaring gift deed dated 01.04.2011 as
null and void and for grant of permanent injunction.
JUDGEMENT
1. Vide this judgment, I shall dispose of the instant civil suit filed by Jagmohan Singh Chawla (hereinafter referred to as "plaintiff") against Jaspal Singh Chawla (hereinafter referred to as "defendant") for declaring gift deed dated 01.04.2011 as null and void and for grant of permanent injunction.
2. Plaint: It is stated in the plaint that plaintiff and defendant are real brothers. It is averred that their father, namely, Sh. Harbans Singh, along with his brothers, namely, Sh. Anoop Singh and Sh. Nand Singh jointly purchased property bearing no. B3/11, Janak Puri, New Delhi admeasuring 367.2 square meters (hereinafter referred to as the "suit property") vide registered perpetual lease deed from the Delhi Administration. It is averred that on 30.05.2008, the suit property was converted to a freehold property and a joint conveyance deed was registered by the DDA in favour of Harbans Singh, Anoop Singh and legal heirs of Nand Singh.
3. It is further stated in the plaint that construction was raised jointly by the three brothers in the suit property. Plaintiff has Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 2/36 stated that on 09.05.1985, the suit property was partitioned between the abovementioned brothers during their lifetime vide a deed of partition. It is submitted that owing to constantly expanding needs of the families, another partition took place in October, 2001 vide a deed of settlement. It is asserted that the second partition was in continuation of the first one.
4. The plaintiff has claimed that on 26.12.1995, he shifted from the suit property. It is averred that the father of the parties suffered from dementia, partial loss of memory, diabetes, hernia and other old age ailments for the last 15 years prior to his death. The plaintiff has stated that the defendant continued to stay with his father and took advantage of the said proximity and his vulnerabilities. The plaintiff has alleged that the defendant obtained his signatures on blank papers and made him signed various documents to present the same before concerned authorities for unlawful gain. The plaintiff has stated that in another suit pending between the parties, the defendant filed written statement wherein he disclosed that he is the owner of onethird share of the suit property by virtue of gift deed dated 01.04.2011 purportedly executed by their deceased father in his favour. The plaintiff has pleaded that the said gift deed was executed by his father who acted under misrepresentation or duress. Aggrieved thereby, the plaintiff has approached this court with the instant suit seeking a decree of declaration and permanent injunction.
Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 3/365. Relief sought: The following reliefs have been sought by the plaintiff in the instant suit: pass a decree of declaration in favour of plaintiff and against defendant, thereby declaring the gift deed dated 01.04.2011 as null and void and without any legal force and sanctity; pass a decree of permanent injunction in favour of plaintiff and against defendant and restraining him from disposing, selling, transferring, alienating and creating third party rights in any manner whatsoever in respect of the suit property i.e. ground floor in property Municipal No. B3/11, Janak Puri, New Delhi 110058;
pass any other order(s)/relief(s) which this court may deem fit in the facts and circumstances of the case in the favour of the plaintiff and against the defendant.
6. Written Statement: In response to the summons, defendant filed a written statement wherein it is stated that the case of the plaintiff is premised on falsification and concealment of facts. Defendant has contended that the impugned gift deed is a duly registered document and the same was voluntarily executed by his father. The defendant has denied the fact that the suit property was ever partitioned and has contended that the partition deed dated 09.05.1985 and settlement deed executed in the month of October, 2001 are unregistered documents which are inadmissible in evidence. With these contentions, the defendant has sought Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 4/36 dismissal of the instant suit. Replication was filed by the plaintiff wherein, the plaintiff has denied all the averments put forth in the written statement.
7. Issues framed: The court framed issues vide order dated 13.11.2018 which are as follows:
(i) Whether the suit of plaintiff in the present form in the absence of relief of partition and separate possession is not maintainable? (OPD)
(ii) Whether the suit of the plaintiff has been properly valued for the purposes of jurisdiction and court fees? (OPP)
(iii) Whether the suit of plaintiff is not barred by limitation?
(OPP)
(iv) Whether the father of plaintiff and defendant, namely, Sh. Harbans Singh was suffering from any disease making him incapable of knowing the nature of the gift deed dated 01.04.2011 at the time of execution thereof? (OPP)
(v) Whether the suit property has already been partitioned?
(OPP)
(vi) Whether the gift deed dated 01.04.2011 has been executed due to misrepresentation and duress exercised by the defendant upon his father? (OPP) Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 5/36
(vii) Whether the plaintiff is entitled to the decree of declaration in respect of gift deed dated 01.04.2011 executed by his father as null and void? (OPP)
(viii) Whether the plaintiff is entitled to the decree of permanent injunction restraining the defendant from dispossessing, selling, transferring, alienating and creating third party interest in the suit property, i.e. ground floor of property no. B3/11, Janak Puri, New Delhi110058? (OPP)
(ix) Whether the plaintiff is not entitled to the reliefs prayed for in the plaint on account of concealment of material facts? (OPD)
(x) Relief.
8. Evidence adduced by the plaintiff: Plaintiff got himself examined as PW1 and tendered his evidence by way of an affidavit which is Ex. PW1/A. The plaintiff relied on the following documents:
Ex. PW1/1: copy of SBI passbook in respect of account no.
13099 (OSR).
Ex. PW1/2: copy of SBI passbook in respect of account no.
NRE101 (OSR).
Ex. PW1/3: copy of passbook of Bank of Baroda in respect of account no. 9/3726 (NRE account) (OSR).
Ex. PW1/4: copy of passport (OSR).Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 6/36
9. When subjected to crossexamination, the plaintiff inter alia testified that he learnt about the existence of the gift deed in the year 2015. The plaintiff denied the suggestion that he had come to know about the existence of the gift deed in the year 2011 and that thereafter, he had stopped visiting his father. The plaintiff deposed that he did not dispute the written statement filed by his father in Civil Suit no. 606898/2016 titled as Anoop Singh versus Harbans Singh in the court of Learned Civil Judge, Tis Hazari after him being impleaded as his LR on the ground that his father was suffering from dementia and that his mental capacity to understand was not up to the mark.
10. The plaintiff testified that he cannot show from his pleadings in the aforesaid suit that he had claimed the suit property having been partitioned. The plaintiff voluntarily asserted that his mental condition was not fit at that time as his father had expired.
The plaintiff admitted that in his evidence dated 06.09.2017 in the aforesaid suit, he categorically stated that property was never partitioned between his father and his brothers.
11. The plaintiff further avouched that he had received legal notice dated 01.05.2017 from the defendant regarding vacation of the clinic which is situated in the suit property. He avowed that he had replied to the aforesaid legal notice, though he did not remember the Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 7/36 exact date when he did so. The plaintiff testified that he does not rememeber whether he had mentioned in his reply that the suit property is a Hindu undivided family property.
12. The plaintiff deposed that after leaving the suit property in the year 1995, he had initially taken a flat on rent near the clinic, that is, B1/73C, Janakpuri and that he stayed there till 2007. The plaintiff added that thereafter, he shifted to Dwarka and that since then, he has been residing at the same address which has been mentioned by him hereinabove. The plaintiff stated that he had deposed regarding dependency of the defendant on his father for his daytoday expenses on the basis of his personal knowledge. The plaintiff claimed that his father used to tell the same to him. The plaintiff asserted that he cannot produce any document to prove payment of money made by him to his father nor can he show the same from his passbooks. The plaintiff voluntarily stated that he used to transfer money in his own bank accounts and whenever, he used to visit India, he used to give money to his father after withdrawing the same from his bank accounts. The plaintiff stated that he had never obtained any receipt from his father.
13. The plaintiff further avowed that during his lifetime, his father used to pay the house tax in respect of the clinic and pursuant to his death, he has been paying the house tax. The plaintiff voluntarily claimed that even during his lifetime, he used to make Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 8/36 payment of house tax to his father and that his father used to deposit the same with the concerned department. The plaintiff asserted that he never reflected the payment of house tax made by him to his father in his accounts book.
14. Upon being quizzed about the averment mentioned in paragraph no. 18 of his affidavit, the plaintiff stated that his father had never withdrawn any money from his accounts through the said cheques. The plaintiff denied the suggestion that even today, the defendant is paying house tax in respect of the entire suit property including the clinic which is being run by the plaintiff and that he is not paying any house tax. The plaintiff voluntarily asserted that house tax in respect of part of the suit property in which he is running his clinic is being paid by him. The plaintiff denied the suggestion that till the time of the death of his father, he was so active that he used to visit various departments and used to attend hearing in court cases. The plaintiff further denied the suggestion that he did not take care of his father or his medical needs or that he did not take him to Ganga Ram Hospital, Amar Leela Hospital, Khanna Hospital or to doctor Purwal to treat his medical ailments.
15. The plaintiff testified that he had withdrawn an amount of Rs. 30,000/ from his bank account to purchase plot no. 68 and 69 in Dwarka. The plaintiff stated that the aforesaid amount was already lying in his bank account and that he had not deposited the said Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 9/36 amount in his bank account for withdrawal. When asked to show the said transaction in his passbook, the plaintiff pointed out the relevant entry at point A in passbook, Ex. PW1/1. The plaintiff further deposed that he is in possession of receipt regarding payment of Rs. 30,000/ for purchase of the aforesaid property in Dwarka. He denied the suggestion that the said amount was given to him by his father and that the defendant had transferred his share in plot no. 68 and 69 in his favour so that he would not raise any claim in any other property belonging to his father. The plaintiff also denied the suggestion that defendant used to look after his father and fulfil his needs. The plaintiff avouched that after the death of his father, he had taken his ashes to Haridwar. The plaintiff denied the suggestion that the said ashes were taken by the defendant along with his daughter and soninlaw to Kirtarpur Sahib. The plaintiff voluntarily claimed that he had taken the ashes to Kirtarpur Sahib and that his nephew and his friend had accompanied him. Upon being asked, whether he can state the name of the nephew, the plaintiff, after a long pause answered stating Ashmeet Singh. The plaintiff claimed that he does not know the name of his friend and that they had gone to Kirtarpur Sahib in a taxi. The plaintiff again stated that they went in the car belonging to the friend of his nephew. The plaintiff denied the suggestion that gift deed challenged by him is valid and that he has challenged the same merely to extort money from the defendant. The plaintiff did not call and examine other witnesses cited by him in the list of witnesses and closed his evidence on 01.08.2019.
Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 10/3616. Defence Evidence: The defendant called and examined two witnesses to prove his defence. The first witness, that is, DW1 tendered his evidence by way of an affidavit which is Ex. DW1/A. The second witness tendered his evidence by way of an affidavit which is Ex. DW2/A. Their testimonies are discussed hereinbelow.
17. Testimony of DW1, Parvinder Singh: During his crossexamination, the said witness inter alia testified that he has gone through the contents of his affidavit which is Ex. DW1/A. DW1 deposed that Late Sh. Harbans Singh was his uncle and that he had cordial relations with him. DW1 avouched that Late Sh. Harbans had four children, namely, Gurdeep Singh, Jaspal Singh, Jagmohan Singh and daughter, namely, Inderjeet Kaur. DW1 stated that he also maintains cordial relations with the abovementioned children.
18. DW1 further deposed that he is not in talking terms with the plaintiff, though, he is his brother. DW1 admitted that property bearing no. B3/11, Janak Puri, New Delhi was owned by three brothers, namely, Harbans Singh, Anoop Singh and Late Nand Lal and that all the three were having equal shares in the abovementioned property. The witness also admitted that now, Satnam Kaur, wife of Late Nand Lal is the owner of onethird share, being the widow of Late Nand Lal. DW1 testified that all the co owners were not having equal share in their possession. The witness Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 11/36 voluntarily asserted that there may be little or more part of the suit property in the possession of some of them.
19. DW1 further testified that he has been in possession of the front portion of first floor and the portion lying on top of the same. The witness stated that Anoop Singh is in possession of the back portion of the first floor and the portion lying on top of the same. DW 1 avouched that Late Harbans Singh had been in possession of the ground floor of the suit property till his death in the year 2014.
20. DW1 claimed that minor repairs had been carried out in the portion which was in possession of Late Harbans Singh and that he might have got repairing work done in the kitchen or bathroom. The witness claimed that he had not visited to see the same. DW1 voluntarily stated that he had seen some labourers carrying out repairs. DW1 avowed that he does not have knowledge as to who made payment of the said repairs. He denied the suggestion that he is not aware of any such repairs which was carried out by Harbans Singh.
21. The witness further testified that Late Harbans Singh used to go to the market for purchasing vegetables, etc. for himself and family members of the defendant. When asked about the source of income of the abovementioned individual, the witness claimed that Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 12/36 he might have been receiving interest from the amount deposited in the bank and that he was also having business of motor parts. DW1 deposed that late Harbans Singh was running the business of motor parts himself at Kashmere Gate and that he continued to carry on such business as long as his health permitted. The witness asserted that he does not have much knowledge about the same as he was busy in his own business.
22. The witness answered in the negative when asked as to how much time before his death, he closed the business of motor parts. The witness denied the suggestion that he did not interact much with Harbans Singh and which is why he is not aware about the aforementioned fact. DW1 claimed that he runs his business of motor parts at Kashmere Gate and that he used to leave for his work place at about 12:00 noon and return home at about 08:00 PM. The witness admitted that he is not aware as to what used to happen during the said period.
23. DW1 claimed that Late Harbans Singh was not suffering from any major medical ailment. He stated that he cannot tell if he was suffering from any minor ailment. DW1 stated that he does not know whether he was a diabetic patient. DW1 asserted that Late Harbans Singh used to walk using a stick and that he used to read without using any spectacles. The witness admitted that Late Harbans Singh had undergone a cataract surgery which Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 13/36 was got done by the defendant. DW1 avouched that he is not aware of the hospital where the said surgery was conducted. The witness admitted that Late Harbans Singh fractured his leg and that the treatment was got done by the defendant in Ganga Ram Hospital. The witness asserted in vernacular "Jo beta sath rahta hai vo hi jayega na". DW1 deposed that he had not gone to see him in the hospital and denied the suggestion that he had not gone to the hospital to visit him as he did not interact with him. The witness also denied the suggestion that treatments were got done by the plaintiff, being a doctor.
24. DW1 further avouched that he is not aware as to whether Harbans Singh was ever admitted to Amar Leela Hospital on account of severe diabetes, vide admission card, Mark A which bears the name of the plaintiff at point X. The witness claimed that he does not know whether Harbans Singh was using hearing aid device. DW 1 voluntarily stated that he had not seen the same.
25. DW1 stated that the plaintiff was running an unauthorised clinic in the common area of the suit property on the ground floor and that he, along with coowners, were asking him to vacate the said portion. DW1 asserted that the plaintiff does not have any right in the property and that he used the same without the permission of any owner. DW1 testified that the clinic is being run by the plaintiff since the last 1015 years. DW1 stated that none of the Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 14/36 coowners of the said property permitted the plaintiff to run his clinic in the common area of the suit property. DW1 avowed that he is not aware about any letter written by Late Harbans Singh to Assistant Director (Lab), DDA in response to letter dated 03.11.2000 regarding misuse of property. The said letter is Mark B.
26. DW1 avowed that he is not aware as to whether Harbans Singh executed any other document in respect of his one third share except the gift deed. He stated that he had interactions with Late Harbans Singh about his onethird share in the suit property and that he used to say that whoever would serve him, would get the property. DW1 avouched that he had told him about a registered will executed by him. DW1 stated that he was not witness to the said will or to the gift deed. DW1 claimed that he is not aware as to who are the witnesses to the said gift deed. He denied the suggestion that he was not made witness to the registered will or gift deed as attesting witness. DW1 testified that he came to know about the execution of the said documents in the year 2011 when sweets were offered. DW1 asserted that every family member was aware about the execution of gift deed. He stated that till now, the property has not been divided among the coowners.
27. Upon being recalled for further crossexamination, DW1 inter alia testified that mental condition of Late Harbans Singh Chawla was perfectly well. He denied the suggestion that Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 15/36 Harbans Singh Chawla was having memory problem and that he was suffering from dementia. DW1 stated that he is not aware whether any police official visited Harbans Singh to record his statement and that in the said statement, he stated that he did not remember things. DW1 admitted that his mother is the registered owner of onethird share in the property and he had relinquished his share in favour of her mother. When asked about his interest in the suit property, the witness stated that he has share in the suit property, being the legal heir of his mother.
28. The witness denied the suggestion that he is deposing falsely as they have already entered in an agreement with the defendant and that the defendant has agreed to get the property vacated at his own expense. The witness admitted that memorandum of settlement dated 30.05.2018, which is Mark DW 1/DX1, bears his signature at point X as a witness. DW1 added that however, he did not know whether remaining parties in the aforesaid memorandum had signed the document or not. He stated that he might have gone through the contents of the same. Lastly, the witness denied the suggestion that he was not aware about the physical or mental condition of Harbans Singh or that he never used to interact with the said individual.
29. Testimony of DW2, Gagandeep: During his cross examination, the witness inter alia testified that he had known Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 16/36 Harbans Singh as he is the fatherinlaw of her maternal aunt (mausi). The witness stated that he used to visit once in 15 days to see Late Harbans Singh. DW2 stated that defendant is his maternal uncle (mausa). DW2 admitted that he has not mentioned this fact in his evidence by way of affidavit. He denied the suggestion that he is deposing in the court in favour of the defendant as the latter is his relative.
30. DW2 claimed that he did not know as to what Late Harbans Singh did to earn his livelihood. He stated that he had known about the family members of Late Harbans Singh and that he was having four children, namely, Gurdeep Singh, Inderjeet Kaur, Jagmohan Singh and Jaspal Singh. DW2 avouched that he did not know the status of relationship between the aforementioned siblings.
31. DW2 further deposed that property bearing no. B3/11, Janak Puri, New Delhi was owned by three brothers, namely, Harbans Singh, Nand Singh and Anoop Singh and that he only knows about the portion of the suit property wherein Late Harbans Singh used to reside. DW2 avouched that he is not aware about the portion in which the other brothers used to reside. DW2 claimed that he used to have general conversations with Late Harbans Singh such as about his health etc. and that he never talked about issues relating to his family members. The witness asserted that he had seen Late Harbans Singh walking but that he never saw him using a Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 17/36 stick. He added that he did not see him using a hearing device as well. He stated that he did not know the fact that he was suffering from severe diabetes or as to whether he remained in any hospital. The witness added that he also does not know as to whether Late Harbans Singh ever suffered from fracture in his right leg and right hand or was admitted to a hospital for the treatment of the same.
32. DW2 avowed that he had gone to see Late Harbans Singh about 15 days prior to the execution of the gift deed and it was then when he had asked him to become a witness to the gift deed. DW2 asserted that he was told by Late Harbans Singh to visit the office of SubRegistrar on a particular date and that he did not remember the said date. DW2 stated that he did not receive any phone call for the purpose of reaching the said office. DW2 deposed that Late Harbans Singh had already reached the office of the Sub Registrar when he went there and that he was accompanied by Kirpal Singh and the defendant. DW2 testified that he does not know as to how they reached the said office.
33. DW2 further deposed that he met Kirpal Singh on that day itself and that he did not know the said person. DW2 avouched that nothing happened in respect of the gift deed in his presence and that the same was not typed in his presence. The witness claimed that he did not know as to who purchased the stamp papers for the said gift deed. He claimed that the gift deed was firstly signed by Late Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 18/36 Harbans Singh and was thereafter signed by Jaspal Singh and Kirpal Singh. The witness added that he was the last one to append his signature. DW2 testified that particulars of the witness were written in hand writing but that he did not remember as to who wrote the same. DW2 deposed that after execution of the gift deed, he returned to his residence and that he did not accompany Late Harbans Singh after the execution thereof. DW2 avouched that he did not know whether Kirpal Singh accompanied Late Harbans Singh and Jaspal Singh after execution of the gift deed.
34. DW2 further deposed that he never stayed at the residence of Late Harbans Singh either prior to the execution of the gift deed and thereafter. DW2 testified that he did not know as to whether or not Late Harbans Singh was not able to recognise his family members and was not able to perform his daytoday activities such as having food. DW2 asserted that he knew that Late Harbans Singh was having full sense as whenever he used to greet him, the latter used to reply. DW2 further claimed that he only used to ask about his wellbeing and that he never talked about any litigation relating to property bearing no. B3/11, Janakpuri, Delhi. DW2 testified that he did not mention about execution of any other document pertaining to the transfer of the subject matter as to the transfer of the subject matter of the gift deed.
Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 19/3635. DW2 deposed that he is not aware as to whether any police official visited Late Harbans Singh to make enquiry or that whether Late Harbans Singh shared information about execution of gift deed with other family members. The witness dneied the suggestion that Late Harbans Singh did not like him or his visit to his residence. Lastly, the witness denied various suggestions put to him.
36. Final Arguments: Final arguments were heard on behalf of both the parties. Learned counsel for the plaintiff navigated the attention of the court to the facts of the present case and the evidence adduced to support the claims put forth. Learned counsel emphasized the fact that DW2 did not satisfactorily avouch as to the circumstances when the impugned gift deed was allegedly executed. Learned counsel placed reliance on the admission card and prescriptions which are Mark A. Learned counsel contended that the defendant did not prove the averments put forth in the written statement by adducing his oral evidence. In light of the said arguments, learned counsel submitted that the plaintiff has successfully proved his case and the preponderance of probabilities lie in favour of the plaintiff. Accordingly, the suit be decreed in his favour and against the defendant.
37. Per contra, learned counsel for the defendant contended that the claims of the plaintiff are far from the touchstone of the standard of proof that is, preponderance of probabilities.
Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 20/36Learned counsel asserted that the plaintiff has not duly proved that Late Harbans Singh was mentally incapacitated or acted under misrepresentation or duress. Learned counsel contended that the plaintiff has not filed the alleged deed of partition or settlement to substantiate the fact that the suit property was partitioned twice during the lifetime of Late Harbans Singh. Learned counsel asserted that the impugned gift deed is a registered one and carries with itself sanctity which has not been impeached by the plaintiff. Learned counsel argued that the plaintiff has not sought relief of partition and consequential possession and as such, the suit of the plaintiff is not maintainable. Disputing the case of the plaintiff, learned counsel thus, prayed that the present suit against the defendant be dismissed.
38. Appreciation of evidence and reasons for decision:
I have heard learned counsel for both the parties, perused the material placed on record and considered the submissions advanced.
39. Taking the cumulative view of the facts expounded, the evidence spelled out and the arguments advanced, it becomes incumbent to assay the law on the point of discharge of onus to prove and the axiom of the standard of poof in a civil dispute. A civil controversy is to be adjudged on the premise of preponderance of probabilities and the plaintiff, in order to render himself entitled to a Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 21/36 decree/relief in his favour, must discharge his burden to prove a fact which he asserts. In this backdrop, let us scrutinise the potentiality of the claims put forth by the plaintiff. Issuewise findings are as under:
(iv) Whether the father of plaintiff and defendant, namely, Sh. Harbans Singh was suffering from any disease making him incapable of knowing the nature of the gift deed dated 01.04.2011 at the time of execution thereof?
and
(vi) Whether the gift deed dated 01.04.2011 has been executed due to misrepresentation and duress exercised by the defendant upon his father?
40. The onus to prove the said issues rested on the plaintiff. Succinctly, the plaintiff has pleaded that the suit property was partitioned twice during the lifetime of his deceased father by meats and bounds. The plaintiff has claimed that he shifted from the suit property as far back as in the year 1995 but continued to look after the needs of his ailing father. The plaintiff has claimed that his father suffered from various ailments and the defendant took advantage of his vulnerabilities by obtaining the signatures of his father on some blank papers. The plaintiff has alleged that the defendant obtained such signatures by misrepresentation and duress on the impugned gift deed dated 01.04.2011 executed in his favour by his father in respect of onethird share in the suit property which deserves to be declared null and void. Conversely, the defendant has Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 22/36 claimed that the gift deed was validly executed by his father and the plaintiff does not have any right, title or interest in the suit property.
41. The grounds taken by the plaintiff seeking annulment of the gift deed are threefold. The plaintiff has alleged that his father was suffering from dementia, partial loss of memory, diabetes and other old age ailments rendering him incapable of knowing the nature of the gift deed dated 01.04.2011. In order to substantiate the said plea, the plaintiff adduced his oral testimony. At this juncture, it is imperative to navigate the attention to paragraph 22 of Ex. PW1/A wherein it is stated that the father of the parties never executed any gift deed and if he did so, he never understood the meaning of the execution thereof and probably was made to sign the same by the defendant while exploiting his vulnerabilities or he was misrepresented or was under some duress. The said avowal finds mention in paragraph no. 18 of the plaint. Additionally, it is stated therein that the signatures of the father of the parties was obtained by the defendant on blank papers. However, the plaintiff has not adduced any evidence to substantiate the fact that signatures of the father of the parties was obtained on blank papers. The said averment is premised merely on conjectures and surmises.
42. Likewise, the plaintiff has not adduced any credible evidence to prove the fact that his father was so mentally incapacitated that he was not fit to execute the gift deed dated Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 23/36 01.04.2011. The plaintiff did not call and examine any doctor who treated the father of the plaintiff of any disease with which the father of the plaintiff was alleged plagued. In a feeble attempt to substantiate his claim, the plaintiff had put documents, Mark A to DW1 during his crossexamination.
43. As far as the said documents, Mark A are concerned, the plaintiff has not filed originals thereof and has adduced photocopy of the medical documents. A document, in generic sense, implies an original document. Section 61 of the Indian Evidence Act, 1872 prescribes that contents of a document may be proved either by primary or by secondary evidence. As per Section 62 of the above enactment, primary evidence means the document itself produced for the scrutiny of the court. Explanation apended to Section 60 provides that copies of a document are not primary evidence. Thus, Mark A cannot be classified as document and as such, cannot be treated as primary evidence.
44. The plaintiff did not move any application before the court to adduce secondary evidence in respect of documents, Mark A. There is nothing on the record to indicate that the alleged photocopies of the medical documents were prepared from the original or that it was not prepared from a copy of the original, or that it was compared with the original. In the absence of such material, the said photocopies cannot be treated as secondary evidence Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 24/36 either. In order to allow secondary evidence to be adduced, certain parameters, as provided under section 65 and procedure enunciated under section 66 of the Indian Evidence Act, 1872, ought to be satisfied and be complied with. Section 64 of the said Act provides that documents must be proved by primary evidence. Thus, in light of the said laws, photocopies, Mark A are inadmissible in evidence and as such, cannot be relied upon by the plaintiff.
45. Even otherwise, the plaintiff or DW1 are not the makers of the said documents. To prove the documents, it is imperative to examine the author of the same. The plaintiff did not summon and examine either the treating doctors or the hospital administration to prove the admission card or the prescriptions authored by the treating doctors. The said fact also renders documents, Mark A inadmissible.
46. Reliance can profitably be placed on the judgment pronounced by Hon'ble Supreme Court in L.I.C. Of India & Anr vs Ram Pal Singh Bisen C.A. No.893 of 2007 wherein it has been held as under:
"We are of the firm opinion that mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 25/36 does not dispense with its proof, which is required to be done in accordance with law."
It has been further held that:
"It was the duty of the appellants to have proved documents Exh.
A1 to Exh. A10 in accordance with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would not partake the character of admissible evidence in a court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do."
47. Also, in James Eazy Franky vs D.R.I, Crl. A. No. 372/2009, the Hon'ble Delhi High Court held that:
"96. The appellant, in his statement dated 06.01.2009, tendered under Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 26/36 Section 313 Cr.P.C. had denied the allegations. As regards to his statement, he talked of some retractions Ex.DXZ and Ex.DXZ1. According to him, he had retracted the statement when he was produced before the Court. This is contrary to judicial record. It is also not understood as to how the alleged retractions were exhibited. No document can be exhibited unless the maker thereof enters the witness box and faces the cross examination."
(emphasis supplied)
48. Thus, the plaintiff has failed to adduce any cogent affirmative evidence to prove the fact that his deceased father was mentally incapacitated at the time of execution of gift deed dated 01.04.2011 or that he was incapable of understanding the nature of the said deed. The plaintiff also attempted to prove the above claim by perforating the testimonies of the witnesses examined by the defence. DW1 categorically testified that Harbans Singh was not suffering from any major medical ailment. The said avowal remained unchallenged throughout the course of crossexamination. The plaintiff could not impeach the said testimony. Likewise, DW2 testified that the gift deed was initially signed by deceased Harbans Singh and was thereafter, signed by Jaspal Singh, Kirpal Singh and Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 27/36 lastly, by him. No contrary suggestion was put to the said witness in this regard on behalf of the plaintiff. Also, nothing surfaced during the crossexamination of the said witness which had the potential to discredit the said testimony. Even otherwise, the case of the plaintiff ought to stand on its own legs and the strength of its provability should be independent of the defence put forth by the defendant.
49. Similarly, the plaintiff has alleged that the signatures of his father was obtained by the defendant on the gift deed by misrepresentation or duress. However, the plaintiff has failed to aver the nature of such duress or misrepresentation. There is a mere vague averment in the plaint that the defendant obtained signatures by misrepresentation or duress. In paragraph 22 of the plaint, the plaintiff has asserted that the father of the plaintiff was probably made to sign the gift deed by the defendant while exploiting the weakness of their father or that he was misrepresented or was under
some duress. The use of the word "probably" suggests that the plaintiff has merely speculated that the defendant allegedly misrepresented or had put his father under some duress. The plaintiff has not been able to substantiate the above allegation. At the cost of repetition, the said averment is speculative in nature and is entirely without basis or substance. The plea is a faint one and is bereft of corroboration and is thus, liable to be disbelieved when gauged from the standpoint of a reasonable man.Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 28/36
50. Further, the gift deed dated 01.04.2011 is a registered one as claimed by the defendant. The said fact has not been disputed by the plaintiff at any stage during the course of the trial. Relevantly, registered documents are presumed to be genuine unless there is strong and cogent evidence which has the effect of rebutting the presumption. The plaintiff has failed to rebut the said presumption.
51. Reliance can profitably be placed on a judgement pronounced in Prem Singh & Ors. versus Birbal & Ors. (2006) 5 SCC 353. Relevant paragraph of the said judgement is reproduced herein below:
"27. There is presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption."
52. Similarly, in a judgement rendered by Hon'ble Supreme Court in Jamila Begum (D) through LRs versus Shami Mohammad Civil Appeal no. 1007/2013, it has been held that:
Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 29/36"Sale deed dated 21.12.1970 in favour of Jamila Begum is a registered document and the registration of the sale deed reinforces valid execution of the sale deed. A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law."
53. In view of the reasons spelled above, there is nothing on record to suggest or prove that deceased Harban Singh was either mentally unfit to execute the gift deed or acted under misrepresentation or duress while he executed the same. The plaintiff has failed to discharge his burden to prove the instant issues. Accordingly, issues no. (iv) and (vi) are adjudged against the plaintiff and in favour of the defendant.
(i) Whether the suit of plaintiff in the present form in the absence of relief of partition and separate possession is not maintainable?
Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 30/36and
(v) Whether the suit property has already been partitioned?
54. While the burden to prove issue no. (i) was shouldered by the defendant, the burden to prove issue no. (v) rested on the plaintiff. The plaintiff has alleged that the suit property was partitioned twice. Allegedly, the first partition took place on 09.05.1985 vide a deed of partition and the second partition took place in the month of October, 2001 vide a deed of settlement. The plaintiff has contended that the second partition was effected in continuation of the first one. On the other hand, the defendant has disputed the factum of both the partitions.
55. In order to pillar his claims, the plaintiff merely adduced oral testimony without bringing on record and exhibiting in evidence the aforementioned deed of partition and deed of settlement. The plaintiff filed photocopies of the said documents but did not bring the originals thereof before the court. No adjournment or opportunity was sought by the plaintiff to file the original partition deeds before the court. The nonproduction of the same attracts dubiety to the narration of the plaintiff. Adverse inference can be drawn against the plaintiff accordingly by virtue of section 114 presumption (g) of The Indian Evidence Act, 1872 which enunciates that evidence which could be and is not produced, if produced, be unfavourable to the person who withholds it.
Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 31/3656. Moreover, the plaintiff has put forth an inconsistent pleading in his plaint in paragraph no. 24 wherein it is stated that there exists a legal right in favour of the plaintiff to enjoy the unpartitioned suit property where he is running his clinic. The plaintiff did not attempt to cure the said defect or to explain such discrepancy and inconsistency. In the absence of any cogent explanation, the confusing stance of the plaintiff cannot be accepted.
57. Even otherwise, the oral evidence of the plaintiff cannot be accepted by virtue of section 91 of The Indian Evidence Act. Section 91 imposes a prohibition to the reception of any oral evidence to prove the factum of partition. The said provision excludes oral evidence to prove the terms of any document qua disposition of property which have been reduced in writing. Such terms can be proved only by the document itself. Since the plaintiff failed to adduce the partition deeds in evidence before the court, there is nothing on record to prove the fact that the suit property was actually partitioned twice as claimed by the plaintiff.
58. Finally, the plaintiff himself controverted his own pleadings when he was subjected to crossexamination by the defence. The plaintiff admitted the fact that in his evidence recorded in Civil Suit No. 606898/2016 titled as Anoop Singh versus Harbans Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 32/36 Singh, he categorically deposed that the suit property was never partitioned between his father and his brothers. Thus, the claim of the plaintiff has collapsed under the weight of his own inconsistent testimony.
59. In light of the reasons stated above, it is observed that there is nothing on record to prove or suggest that the suit property was ever partitioned. Accordingly, issue no. (v) is adjudged against the plaintiff and in favour of the defendant. Given that the property is an unpartitioned estate, it was incumbent on the plaintiff to have sought the relief of partition and separate possession for the purpose of determining his share in the suit property. Since the said relief has not been sought by the plaintiff, the suit indeed, in its present form is not maintainable. With these observations, issue no. (i) is decided against the plaintiff and in favour of the defendant.
(ii) Whether the suit of the plaintiff has been properly valued for the purposes of jurisdiction and court fees?
60. The burden to prove the instant issue was upon the plaintiff. Since it has been observed that the plaintiff ought to have sought the relief of partition and consequential relief of possession, ad volerum court fees ought to have been paid by the plaintiff. Hence, issue no. (ii) is also adjudged against the plaintiff and in favour of the defendant.
Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 33/36(iii) Whether the suit of plaintiff is not barred by limitation?
61. The plaintiff was encumbered with the onus to prove the said issue. Although, the plaintiff has not averred either in his plaint or in his evidence by way of affidavit, Ex. PW1/A as to when he acquired knowledge about the execution of the gift deed dated 01.04.2011, during his crossexamination, upon being quizzed, the plaintiff avouched that he came to know about the existence of the gift deed in the year 2015. Apart from a suggestion, no evidence was put to the plaintiff to impeach the said avowal. Neither party adduced the record of the suit bearing No. 606898/2016 titled as Anoop Singh versus Harbans Singh, in evidence. Thus, there is nothing on record to disbelieve the version of the plaintiff that he acquired knowledge of the gift deed in the year 2015. The instant suit has been filed in the year 2018 and thus, the same is within the prescribed period of limitation of three years. Accordingly, issue no. (iii) is adjudged in favour of the plaintiff and against the defendant.
(vii) Whether the plaintiff is entitled to the decree of declaration in respect of gift deed dated 01.04.2011 executed by his father as null and void?
and Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 34/36
(viii) Whether the plaintiff is entitled to the decree of permanent injunction restraining the defendant from dispossessing, selling, transferring, alienating and creating third party interest in the suit property, i.e. ground floor of property no. B3/11, Janak Puri, New Delhi110058?
62. The burden to prove the said issues was cast upon the plaintiff. Since the plaintiff has not been able to prove the fact that the gift deed dated 01.04.2011 was not validly executed by his father, the plaintiff cannot be said to be entitled to a decree of declaration to the effect that the said gift deed be declared as null and void. Likewise, the plaintiff has not been able to substantiate the fact that he has any right, title or interest in the suit property and as such, there is no reason brimming from the record to restrain the defendant from creating third party interest in the suit property. With these observations, issues no. (vii) and (viii) are adjudged against the plaintiff and in favour of the defendant.
(ix) Whether the plaintiff is not entitled to the reliefs prayed for in the plaint on account of concealment of material facts?
63. The instant issue appears to be superfluous and the adjudication thereon is unnecessary in light of the discussion Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 35/36 hereinabove. Accordingly, the said issue is hereby struck out by virtue of Order XIV Rule 5(2), The Code of Civil Procedure, 1908.
(v) Relief
64. The issue qua relief is contingent upon decisions on material issues that is, issues no. (i), (ii), (iv), (v), (vi), (vii) and (viii) in the present suit. Since the said issues have been decided against the plaintiff, plaintiff is not entitled to any relief claimed by way of the instant suit.
65. Conclusion: In view of the reasons spelled above, present suit of the plaintiff is hereby dismissed. Parties to bear their own costs.
Announced in the open court today i.e. 16.03.2023 Paridhi Sharma ACJCCJARC/South West Dwarka Courts: New Delhi Civil Suit No. 272/2018 Jagmohan Singh Chawla versus Jaspal Singh Chawla Page 36/36