Delhi District Court
Shri R. Srinivas vs Smt. Pramila Panda on 12 April, 2022
IN THE COURT OF SH. LALIT KUMAR:
ADDITIONAL DISTRICT JUDGE 04 SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI.
CS No. 207180/2016
Shri R. Srinivas
S/o Sh. S. Raghvan
AT C60, Ground Floor, Front Portion
New Delhi South Extension Part1,
New Delhi 110049.
....Plaintiff
VERSUS
1. Smt. Pramila Panda
W/o Sh. Ashok Panda
2. Ms. Santoshi Panda
D/o Sh. Ashok Panda
Both residents of:
C60, Ground Floor, Rear Portion,
New Delhi South Extension, Part1
New Delhi - 110049.
....Defendants
Date of Institution : 05.12.2014
Date of Judgment : 12.04.2022
SUIT FOR POSSESSION AND MESNE PROFITS
CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 1 of 39
JUDGMENT:
1.1 This suit has been received on transfer from the Hon'ble High Court of Delhi in view of the enhancement of the pecuniary jurisdiction of the District Courts vide the Delhi High Court Amendment Act 2015, made effective vide notification no. F. No. L19015/04/2012Jus dated 26.10.2015 alongwith order dated 10.02.2016 of the Hon'ble High Court in Transfer Petition No.17/2016 and order of the Ld. District & Sessions Judge (South) Saket, New Delhi dated 01.03.2016.
1.2 Vide order dated 01.03.2016 Ld. District &Sessions Judge, SouthEast District, Saket Courts, New Delhi has assigned this suit to this court.
Brief summary of the case :
2. The present suit has been filed by the plaintiff for possession and mesne profits with the following prayers:
a) Pass a decree of possession in favour of the plaintiff and against the defendants, thereby directing the defendants to vacate the suit property i.e. the Flat on the rear side of the Ground Floor of the property bearing Municipal No.C60, NDSE, PartI, New Delhi and handover its physical possession to the plaintiff.
b) Pass a preliminary decree in favour of the plaintiff and against the defendants, thereby holding that the defendants are liable to pay use and occupation to the plaintiff. CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 2 of 39
c) Direct an enquiry under Order 20 Rule 12 CPC for determining the quantum of damages payable by the defendants to the plaintiff.
d) Pass a final decree of damages in favour of the plaintiff and against the defendants on the conclusion of enquiry Under Order 20 Rule 12 CPC.
e) Award costs of the suit in favour of the plaintiff and against the defendant.
Plaintiff's Version :
3.1 This is a suit pertains to property / premises being a Flat measuring 700 Sq. ft. situated at the rear portion of the Ground Floor of the property bearing Municipal No.C60, NDSE, PartI, New Delhi (hereinafter be referred to as the "suit property").
3.2 It is stated that the plaintiff Sh. R. Srinivas has appointed his mother Smt. Lalita Raghvan as his duly constituted attorney to sign, verify and institute the present suit by means of a power of attorney dated 13.11.2014. It is further stated that suit property was admittedly owned and possessed by one Ms. Kamla Puri D/o Late Sh. Mohan Lal Puri, who had purchased the suit property by means of a duly executed and registered Sale Deed dated 27.01.1994 from the builder / developer M/s G.M.S. Constructions Pvt. Ltd., which Sale Deed was duly registered vide registration No.550, Additional Book No.1, Volume no.8151, pages 126138. It is further stated that Ms. Kamla Puri and the father of the plaintiff Sh. S. Raghvan were having very good CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 3 of 39 relationship and were treating each other as sister and brother. The said Ms. Kamla Puri was unmarried.
3.3 It is further stated that defendant no.1 was employed by the mother of the plaintiff as housemaid in the year 2005. Previously also, the defendant no.1 had worked for the mother of the plaintiff during the period 1996 to 1998. It is further stated that defendant no.2 is the daughter of the defendant no.1. It is further stated that defendant no.1 was staying with the mother of the plaintiff in the flat i.e. front flat on the ground floor of the property bearing no.C60, NDSE, PartI, New Delhi. The defendant no.1 was getting monthly salary in cash from the mother of the plaintiff apart from a space to stay in the flat, food, clothing and education expenses of the defendant no.2.
3.4 It is further stated that Ms. Kamla Puri had executed a registered Will dated 16.09.1999 in favour of the plaintiff which was duly executed by Ms. Kamla Puri and was got registered vide registration no.4229, Additional Book No.3, Volume No.819, pages 33 34. It is further stated that mother of the plaintiff was taking care of Ms. Kamla Puri and for the convenience purposes, an entry was opened in the year 2001 in between the two flats i.e. the suit property and the flat of the mother of the plaintiff. It is further stated that Ms. Kamla Puri had also during her life time executed and got registered a Gift Deed in respect of the suit property in favour of the plaintiff in consideration of her love and affection for the plaintiff. The said Gift Deed was duly registered vide registration no.6328, Additional Book No.1, Volume No.9267, Page 155162 on 25.05.2009 and since then the CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 4 of 39 plaintiff is the owner of the suit property. It is further stated that plaintiff also got mutated the suit property in his favour in the records of MCD which has been communicated to him vide mutation letter dated 11.09.2009.
3.5 It is further stated that on 13.12.2012 Ms. Kamla Puri was expired. It is further stated that plaintiff had been making payments of electricity connection and water connections, installed in the suit property, in the capacity of owner and these payments have been made mostly by online transfer / credit cards / internet banking.
3.6 It is further stated that the mother of the plaintiff was residing alone in her flat as the plaintiff is presently settled at U.S.A and the father of the plaintiff has unfortunately expired on 16.09.2000. The mother of the plaintiff is working as a teacher in DPS, Mathura Road, New Delhi. During the working hours it is the defendant no.1 who was there in the suit property and she used to take care of both the flats. She was also having keys of both the flats as being maid she was supposed to carry out dusting and other works in the two flats.
3.7 It is further stated that in the year 2014 defendant no.1 started changing her colour with a view to grab the suit property and with a view to usurp the movable properties of the mother of the plaintiff as the plaintiff is not residing in India. She during her stay in the flat of the mother of the plaintiff got prepared duplicate keys of the flat and also of the room wherein the mother of the plaintiff was keeping her valuables.
3.8 It further stated that plaintiff had noticed that the CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 5 of 39 defendant no.1 was removing the goods and valuables of her. On coming to know about the same, the mother of the plaintiff has made a complaint dated 06.10.2014 to the police authorities against the defendants thereby disclosing that defendant no.1 has got prepared duplicate keys of the bedrooms and the cupboards and lockers of the mother of the plaintiff, without her knowledge and that she is stealing the valuables and also threatening the mother of the plaintiff. It is further stated that the mother of the plaintiff also immediately required the defendant no.1 to vacate her house as the services of the defendant no.1 were no more required by the mother of the plaintiff.
3.9 It is further stated that on 10.10.2014 at about 4.30 pm defendant no.1 threatened the mother of the plaintiff for her life. The mother of the plaintiff informed the police and the police also visited the house. Police officials also visited on 11.10.2014 the house of the mother of the plaintiff. It is further stated that police authorities were not taking any strict action against the defendant no.1 and on the other hand the defendant no.1 became more and more aggressive and started threatening the mother of the plaintiff for her life.
3.10 It is further stated that on 17.10.2014 mother of the plaintiff again made a police complaint against the defendants. It is further stated that on 20.10.2014 when the mother of the plaintiff came back from the school, she found that the defendants have broken open the locks of the suit property and had removed goods and articles from the flat of the plaintiff and have shifted several goods in the suit property. On being inquired, CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 6 of 39 the defendants started quarreling with the mother of the plaintiff. The beat constable was informed by the mother of the plaintiff, however, he did not help the mother of the plaintiff.
3.11 It is further stated that mother of the plaintiff further made a written police complaint on 28.10.2014 to the police authorities, however, till date no action has been taken. It is further stated that defendants have occupied the suit property by illegally breaking open the locks on 20.10.2014. The possession of the defendants in the suit property is totally illegal and unauthorised and is in the capacity of a trespasser. She has got no right or authority to continue in the possession of the same and is liable to surrender the possession of the same to the plaintiff.
3.12 It is further stated that defendants in furtherance of their dishonest intention filed a false and frivolous suit against the mother of the plaintiff thereby alleging that the defendants herein are settled possession in the suit premises and they should not be dispossessed without due process of law. The said suit is pending disposal before the court of Ld. Civil Judge. It is further stated that plaintiff has called upon the defendants to vacate the suit property several times but defendants have refused to vacate the same.
Defendant's Version :
4.1 In reply to the present suit, defendants filed their Written Statement and denied the allegations. It is averred that defendant no.1 alongwith her small daughter i.e. defendant no.2 came to Delhi around the year 199495 and started working as a CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 7 of 39 housemaid in the house of the plaintiff.
4.2 The defendant no.1 used to look after the household work of the mother of the plaintiff i.e. Smt. Lalita Raghvan who is also the attorney of the plaintiff in the present suit. When defendant no.1 was working with mother of the plaintiff she came to contact with the neighbour of the mother of the plaintiff namely Ms. Kamla Puri whose house was the adjoining house of the plaintiff and his mother. Ms. Kamla Puri seeing the good behaviour and dedicated work of the defendant no.1 engaged the defendant no.1 as her housemaid. The defendant no.1 also started working as the housemaid of Ms. Kamla Puri.
4.3 Ms. Kamla Puri was a lone lady and to the best of knowledge she was divorced and had no children. She used to work in the institute of Home Economics, University of Delhi, Hauz Khas Enclave, New Delhi. She was staying alone in the rear portion of House No.60, BlockC, New Delhi, South Extension Scheme, PartI, New Delhi. She was the sole and exclusive owner of the house admeasuring 700 sq.ft which included two bedrooms, attached with bathrooms, drawingcumdinning room, kitchen along with proportionate undivided indivisible and inpartable ownership rights. She had purchased the said house from M/s GMS Construction Company (P) Ltd.
4.4 The defendant no.1 and 2 started living as a family member of Ms. Kamla Puri and she used to treat them as a family member. Ms. Kamla Puri was greatly attached to the defendants and she had assured the defendant no.1 and 2 that she would give her property to the defendants after her death as they CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 8 of 39 were like her children. Ms. Kamla Puri executed a Will in favour of the defendants and handed it over to defendant no.1 saying that she has made them the owner of the property after her death. The defendant no.1 is a semiliterate lady and not in a position to understand the importance of the document. The plaintiff being a educated lady took the said document from the defendant no.1 and the document is with the plaintiff.
4.5 Ms. Kamla Puri was an old lady and her health started deteriorating after the year 2007. The mother of the plaintiff being the neighbour also developed friendship with Ms. Kamla Puri. The defendant no.1 used to work for both Ms. Kamla Puri and the mother of the plaintiff. The mother of the plaintiff never used to pay any salary to the defendant no.1 and always assured the defendant no.1 that she would send her daughter abroad for education and work and see to that she gets citizenship abroad as the plaintiff was settled abroad. Taking the assurances of the mother of the plaintiff the defendant no.1 used to work for the mother of the plaintiff.
4.6 It is further the case of the defendants that in the year 2007 Ms. Kamla Puri fell ill and she was taken to the hospital by defendant no.1 but as she was a semiliterate lady and had no knowledge she asked for the help of mother of the plaintiff. The mother of the plaintiff also helped the defendant no.1 in taking care of Ms. Kamla Puri and she also developed affinity with Ms. Kamla Puri. She also started dominating and stated to the defendant no.1 that she would take care of Ms. Kamla Puri.
CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 9 of 39 4.7 After sometime the mother of plaintiff took away all the gold and silver articles from the house of Ms. Kamla Puri stating that she is taking them to keep them in proper custody. Mother of plaintiff with malafide intention and her sweet talk lured Ms. Kamla Puri to open a joint account with her in the bank. Mother of the plaintiff even withdrew the money from her bank which Ms. Kamla Puri used to get as pension but she did not want to spend money on the treatment of Ms. Kamla Puri.
4.8 It is further the case of defendants that one day mother of plaintiff forcibly took Ms. Kamla Puri to an old age home namely Marian Ashram, Sector82, Bhatola, Faridabad, Haryana and left her there. The defendants opposed to this act but she did not listen to them.
4.9 On 13.12.2012 Ms. Kamla Puri was expired and soon after the death of Ms. Kamla Puri, mother of the plaintiff joined both the houses i.e. house of the mother of the plaintiff and Ms. Kamla Puri by opening a door by demolishing a wall between both the houses and she started claiming that she is the owner of the house of Ms. Kamla Puri and she also started harassing the defendants and asked them to leave the house as she was the owner of the house after Ms. Kamla Puri and when the defendants told them that Ms. Kamla Puri has made a Will in favour of them she started abusing them and told that she has pucca documents in her favour. The mother of the plaintiff has been threatening to throw out the defendants from the house since the death of Ms. Kamla Puri.
4.10 On 10.10.2014 in the evening the mother of the CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 10 of 39 plaintiff called a police from PS Kotla Mubarakpur along with a lawyer and started alleging that the defendants have illegally trespassed her property and asked them to throw the defendants out of the suit property. When the defendants called number 100, the constable and lawyer fled from the spot seeing that the police from the PCR would be coming. Again on 11.10.2014, policeman alongwith the few other persons and the lawyer again tried to forcibly throw the defendants out of the suit premises. The mother of the plaintiff threatened that one of her colleague in her school is the wife of a retired High Court Judge and he has made calls to the DCP and SHO of the police station and they would throw the defendants out of the house forcibly. The mother of the plaintiff also started making false allegations that the defendants have stolen her gold articles. Earlier the mother of the plaintiff had installed CCTV cameras inside the house and now she has removed the cameras and making false allegation against the defendants.
4.11 It is further stated that the mother of the plaintiff has malafide intentions and is a resourceful and cunning lady and was using all her influence to throw the defendants out of the suit property. The mother of the plaintiff has no right, title and interest in the suit property. The police is also under the influence of the mother of the plaintiff and the police despite various complaints on number 100 is not taking any action, the defendants had no other option but were constrained to file a suit for permanent injunction before the court of Senior Civil Judge, Saket Courts, Delhi which is titled as Promila Panda & Anr. Vs. CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 11 of 39 Lalita Raghwan bearing suit no.446/2014 which is pending in a Civil Court, South East, Saket Courts, New Delhi.
4.12 It is stated that the site plan is not as per the actual site. It is denied that the plaintiff is appointed his mother as the duly constituted attorney to sign and verify the present suit. It is stated that the suit has not been filed by a duly authorized person. The Power of Attorney dated 13.11.2014 is not a legal document in the eyes of law. It is denied that Ms Kamla Puri and father of the plaintiff treating each other as sister and brother. It is further denied that Ms. Kamla Puri had executed a registered Will dated 16.09.1999 in favour of the plaintiff. It is further denied that the said Will is duly registered. It is stated that the said Will relied upon by the plaintiff is a false, forged and fabricated document. It is denied that Ms. Kamla Puri duly executed a registered Gift Deed in favour of the plaintiff. It is stated that Ms. Kamla Puri was not mentally and physically sound on 25.05.2009 to execute the said Will as she had suffered from brain stroke and fractured her leg and was not in a position to move even during 25.05.2009. The Gift Deed is a totally fake and fabricated document.
4.13 It is further stated that the plaintiff has got the said property mutated in his name on the basis of manipulation and forged and fabricated documents. It is denied that defendant no.1 was having keys of both the properties. It is stated that both the properties were got connected by breaking open a door between both the properties by the mother of the plaintiff. It is denied that possession of the defendant is totally illegal and unauthorized. It is further denied that market rate of rent is Rs.20,000/. It is CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 12 of 39 denied for want of knowledge that on 24.11.2014 the mother of the plaintiff received a phone call as has been falsely alleged. It is stated that the defendants don't know anybody by the name of Deepak as has been falsely alleged and the complaints made to the police are totally false and concocted. It is stated that present suit is false and frivolous and is not maintainable in the eyes of law and is liable to be dismissed with heavy cost.
REPLICATION
5. Plaintiff filed replication and denied the allegations. In the replication plaintiff has reiterated the averments made in plaint.
IDENDITIFIATION OF ISSUES :
6. On the pleadings of the parties, following issues were framed vide order dated 23.09.2016:
(1) Whether the plaintiff is entitled to a decree of possession against the defendants directing the defendants to hand over physical vacant peaceful possession of property described as Flat on the rear side of round floor of the property bearing municipal no.C 60, South Extension PartI, New Delhi shown in red colour in the site plan on the basis of the grounds taken in the plaint? OPP.
(2) Whether the plaintiff is entitled to recover mesne profits from the defendants for the user and occupation CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 13 of 39 of the suit property w.e.f. 20.10.2014 till the handing over of the peaceful vacant physical possession of property described as bearing municipal no.C60, South Extension PartI, New Delhi? OPP.
(3) Whether the registered Will dated 16.09.1999 executed by Ms. Kamla Puri in favour of the plaintiff is a forged and fabricated document?OPD (4) Whether the registered Gift Deed dated 25.05.2009 executed by Ms. Kamla Puri in favour of the plaintiff in respect of the property described as bearing municipal no.C60, South Extension PartI, New Delhi is a forged and fabricated document? OPD (5) Whether the suit for recovery and mesne profits is filed against the defendants by the plaintiff without any cause of action in favour of the plaintiff? OPD (6) Relief PLAINTIFF'S EVIDENCE :
7. To prove his case plaintiff examined PW1 Smt. Lalita Raghavan who has relied upon following documents :
S.No. Exhibit Description of document
1. Ex. PW1/1 Plaint
2. Ex. PW1/1A Site plan of suit property
3. Ex. PW1/2 Original Power of Attorney
4. Ex. PW1/3 Registered Will dated 16.09.1999
(OSR)
CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 14 of 39
5. Ex. PW1/4 Original Will dated 14.08.2000
6 Ex. PW1/5 Original Gift Deed dated 25.05.2009
7 Ex.PW1/6 Original Mutation Letter dated
11.09.2009
8 Ex.PW1/7 Original Complaint dated 06.10.2014
9. Ex.PW1/8 Original Complaint dated 17.10.2014
10. Ex.PW1/9 Original Complaint dated 28.10.2014
11. Ex. PW1/10 Copy of the suit filed by defendant
no.1.
8.1 Plaintiff has also examined Sh. Manoj Kumar as
PW2, Sh. Nachiketa Satapathy as PW3, Sh. Dheeraj Kumar, Record Keeper / Junior Assistant in the office of SubRegistrarV, Mehrauli, Delhi as PW4, Sh. Bibhaw Kumar, JSA in the office of Assessment and Collection Department, Central Zone, SDMC, Sanwal Nagar, Delhi as PW5, Sh. Salil JJA/Ahlmad in the Court of Ms. Shreya Agarwal, Ld. Civil Judge, SouthEast, Saket Courts, New Delhi as PW6, Sh. Neeraj Verma, Senior Assistant in the office of SubRegistrarV(1), Delhi as PW7.
8.2 All the witnesses were duly crossexamined by the defendants.
DEFENDENTS'S EVIDENCE
9. Defendant Smt. Pramila Panda examined herself as DW1 and relied upon following documents Marked D1 (colly) and Ex.PW6/1.
CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 15 of 39 10.1 Defendant has also examined Sh. Balwant Singh, working as Medical Supdt, Manav Medicare Centre, E11 NDSEI, New Delhi as DW2, Sh. Shakti Singh, Manager of Dr. Gulati Imaging Institute, J16, Hauz Khas Enclave, Delhi as DW3, Sh. Arvind Kaul Junior Assistant Administration Institute of Home Economics, F4, Hauz Khas Enclave, Delhi as DW4, Sh. Gopal Singh, Senior Assistant, Institute of Home Economics, Hauz Khas Enclave, New Delhi as DW5 and Sister Fidelia, Marian Ashram, Bathola, Bethany Nagar, Sec82, Faridabad, Haryana as DW6.
10.2 All the witnesses of defendant were duly cross examined.
11. I have heard the arguments advanced before me by Ld. Counsel for both the parties and I have also gone through the material on record as well as case laws relied upon by Ld. Counsel for both the parties.
ARGUMENTS OF THE PARTIES 12.1 Ld. Counsel for plaintiff argued that Late Ms. Kamla Puri, who was an unmarried lady. Importantly, the plaintiff's family owned and lived in the adjacent front portion of flat bearing No. C60, NDSC Part1, New Delhi (hereinafter, Since, Ms. Kamla Puri was unmarried and did not have any children; she was extremely close the plaintiff's family and treated them as her own family. The plaintiff's family and late Ms. Kamla Puri had lived in adjacent flats since the year 1972 and had a CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 16 of 39 long and close association of 40 years.
12.2 It is further contended that since, Ms. Kamla Puri did not have a child of her own, she treated the plaintiff as her son and loved him like a mother. Ms. Kamla Puri lived like a member of the plaintiff's family and the plaintiff 's father took utmost care of Ms. Kamla Puri. Out of sheer love and affection, Ms. Kamla Puri executed a registered Will dated 16.09.1999 Ex.PW1/3, whereby she bequeathed the suit property to the plaintiff. However, since no executor had been appointed under the said Will, she executed another registered Will dated 14.08.2000 Ex.PW1/4, whereby she made the same bequest, but this time she appointed Sh. S. Raghavan (plaintiff's father) as the executor. Meanwhile, in the year 1996, Smt. Promila Panda (defendant no.1) started working for the plaintiff's family as their maid. She worked for 2 years and then left for her village in 1998. However, immediately after registration of the second Will, the father of the plaintiff, Sh. Raghavan, passed away on 16.09.2000. Shortly thereafter, even the plaintiff left for USA to pursue further studies. But the plaintiff''s mother continued living in the plaintiff's residence and looked after Ms. Kamla Puri. In 2001, the parties opened a common door between the plaintiff's residence and suit property, for the sake of convenience and easy access.
12.3 It is further contended that in 2005, the defendant no.1 again came back to work with the plaintiff and claimed that she had separated from her husband and had no place to live and the plaintiff employed the defendant no.1 a housemaid and also permitted the defendant no.2 to stay in her house i.e. the front CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 17 of 39 flat.
12.4 It is also contended that since the sole executor of second Will had expired, Ms. Kamla Puri executed a registered Gift Deed dated 25.05.2009 Ex.PW1/5, thereby gifting the suit property in favour of the plaintiff and having become the owner, the plaintiff got the suit property mutated in his favour in the records of MCD on 11.09.2009. The plaintiff got the electricity and water connections installed in his name and he has been paying the House Tax for the suit property since 2012. Ld. Counsel further contended that unfortunately, Ms. Kamla Puri died on 13.12.2012, the defendant no.1 took advantage of the said situation and completely changed colour. She got a duplicate set of keys made for the suit property and illegally took possession thereof. Not knowing what to do. Plaintiff's mother made complaints dated 06.10.2014, 17.10.2014 and 28.10.2014 respectively, with the local police but to no avail and as a counter blast to the police complaints, the defendant no.1 filed a frivolous civil suit for permanent injunction before the Saket District Courts. In the said suit, defendant no.1 claimed that Ms. Kamla Puri had executed a Will, whereby she had bequeathed the suit property in favour of the defendant no.1. But allegedly, the plaintiff's mother illegally took away the said Will and the defendant no.1/ plaintiff was unaware of the whereabouts. However, shortly thereafter, the defendant no.1 / plaintiff completely abandoned the said suit and ultimately, it came to be dismissed in default vide order dated 22.08.2015. It is further contended that thereafter, at no point the validity of the Gift Deed was challenged by the defendants.
CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 18 of 39 12.5 Further it is contended that the defendants without specifying any dates, without showing how the Will and Gift Deed are forged and without giving any documentary evidence to support their case, have set up a false defense. Therefore, prayed for passing of decree in favour of the plaintiff. Moreover, all the witnesses of Will and Gift Deed have duly proved these documents as per law and the plaintiff has become the owner of suit premises.
12.6 Ld. Counsel for plaintiff has relied upon case laws Jagdish Chander Vs. Satish Chander and Other (2019) 12 SCC 237; R. Jayapaul Vs. Pappayee Ammal 2003(2) LW 655; Jurmati Bewa and Ors. Vs. Anwar Rasul & Ors AIR 1973 Gau 90; Placid Francisco Pinto LR and Anr. Vs. Jose Francisco 2021 SCC Online SC 482; Maria Margarida Sequeria Vs. Errasmo Jack & Ors. (2012) 5 SCC 370; Prem Singh & Ors Vs. Birbal (2006) 5 SCC 353; Rattan Singh & Ors Vs. Nirmal Gill & Ors dated 16.11.2020 Civil Appeal No.36813682 of 2020; Shalik Vs. Sitaram 2016(6) Mh.LJ824; Roshan Lal and Ors Vs. Kartar Chand & Ors. AIR 2002 HP 131; Grasim Industries Vs. M/s Agarwal Steelcivil Appeal 5994/2004 dated 20.10.2009 and Hindustan Petroleum Vs. Mohanjit Singh 2019 SCC Online Del9419(2019) 263 DLT 192.
13.1 It is argued by Ld. Counsel for the defendant that plaintiff has concealed the fact that Gift Deed was executed at the residence of the Ms. Kamla Puri. It is further argued that mother of the plaintiff has examined herself and two witnesses CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 19 of 39 namely Sh. Manoj Kumar and Sh. Nichiketa Satpati to prove the Gift Deed and in cross examination first time plaintiff / PW1 disclosed that the Gift Deed was executed at the residence of Ms. Kamla Puri and not at the office of Subregistrar. It is further argued that there are contradictions in the testimonies of plaintiff/ PW1 and Sh. Manoj Kumar and Sh. Nichiketa Satpati and none of the witness has given any reason why the Gift Deed executed at the resident and not at the office of SubRegistrar.
13.2 It is further argued that Ms. Kamla Puri had suffered a brain infract in the year 2007 and she was not in a position to execute the Gift Deed as she was not mentally and physically sound and stable. It is further argued that defendants has placed on record the medical records of Ms. Kamla Puri from the period w.e.f. 2007 onward which have been proved by defendants' witness DW2 to DW6 and from the medical records it is very clear that Ms. Kamla Puri had suffered serious infract in her brain and there are documents on record issued by the AIIMS which shows that Ms. Kamla Puri was not able to write. It is further argued by Ld. Counsel for defendants that DW5 Gopal Singh, Senior Assistant from Administration Department of Institute of Home Economic stated that they had received a call from Marian Ashram, Sec.82, Bhatola, Faridabad, Haryana regarding Ms. Kamla Puri and the officials of the said Ashram who were getting pension of Ms. Kamla Puri. The institute of Home Economic had instituted and enquired and sent the officials to Marian Ashram to carry out the inspection. The said report placed on record which has been stated that Ms. Kamla Puri was not CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 20 of 39 mentally stable and was not understand to recognize the person, even after giving proper identification Ms. Kamla Puri for some time recognize the officials of said institute who were her colleague and after minutes she had forgot the same and did not able to recognize them who were her colleague of institute.
13.3 It is further argued by Ld. Counsel for defendants that DW6 Sister Fidelia, from Marian Ashram has also placed the documents on record like admission form and medical record pertaining to Ms. Kamla Puri and admission form was filled by Smt. Lalita Raghwan PW1, the mother of the plaintiff in the said regard which shows that Ms. Kamla Puri was not fit mentally condition and she was of old age and she had no memory and bed ridden. It is further argued that in fact defendant no.1 used to take care of Ms. Kamla Puri as she had no relative.
13.4 It is further argued that Ms. Kamla Puri had executed a Will in favour of defendant no.1 but the PW1 take the advantage of illiteracy and took away the Will and got executed the Gift Deed from Ms. Kamla Puri when she was not mentally and physically fit. It is further argued that the Gift Deed dated 25.05.2009 was executed at the residence of Ms. Kamla Puri when she was not in a position to write, understand and was not physically fit to move which is supported by the fact that when Ms. Kamla Puri had executed two Will dated 16.09.1999 and 14.08.2000 in favour of the plaintiff and then a Gift Deed for the same property which is suspicious that one person executing three documents with respect to the same property in favour of the same person. The Gift Deed was only executed as Ms. Kamla Puri had CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 21 of 39 bequeathed the property in favour of the defendant no.1 and PW1 after getting the Gift Deed executed from Ms. Kamla Puri in a unsound mind put her in the Marian Ashram and even did not care to make the payment of her care as PW1 and plaintiff want to usurp the property of Ms. Kamla Puri and never took care of Ms. Kamla Puri when the PW1 and plaintiff did not make any payment to the Marian Ashram. They were forced to write a letter to Institute of Home Economics where from Ms. Kamla Puri was working and getting the pension. The said Institute carried out the enquiry and record has been placed on record by DW5. It is further argued that plaintiff has failed to prove or bring any such application to the SubRegistrar stating the reason while document was not executed in the office of SubRegistrar but at the resident of Ms. Kamla Puri. It is further argued that on 25.05.2009 when the so called alleged document is shown to be executed Ms. Kamla Puri was not in position to sign and the signature on the Gift Deed is forged and fabricated one. It is further argued that Gift Deed had not been executed by Ms. Kamla Puri and is a manipulated and fabricated document, even the plaintiff failed to examine any handwriting expert to prove the signature of Ms. Kamla Puri, therefore, it is prayed for dismissal of suit.
13.5 Ld. Counsel for defendant has also relied upon case law of Hon'ble Allahabad, Lucknow Bench Vidhyawati Vs. Jia Lal and Ors. Dated 29.05.2014.
FINDINGS ON ISSUES :
CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 22 of 39 My issue wise findings are as under:
14.1 ISSUE No.1: Whether the plaintiff is entitled to a decree of possession against the defendants directing the defendants to hand over physical vacant peaceful possession of property described as Flat on the rear side of round floor of the property bearing municipal no.C60, South Extension Part I, New Delhi shown in red colour in the site plan on the basis of the grounds taken in the plaint? OPP.
14.2 The onus to prove this issue was upon the plaintiff. In order to prove this issue, plaintiff Mrs. Lalita Raghvan being mother and power of attorney of the plaintiff examined herself as PW1. She deposed in her affidavit Ex.PW1/A that the property in question was admittedly own and possessed by Ms. Kamla Puri, who was unmarried. Ms. Kamla Puri and father of the plaintiff were treating themselves as foster sister and brothers. Late Ms. Kamla Puri had executed a Will dated 16.09.1999 Ex.PW1/3 with respect to the property in favour of the plaintiff and the said Will Ex.PW1/3 got registered on 14.08.2000 and registered Will Ex.PW1/4. PW1 further deposed that Late Ms. Kamla Puri during her lifetime also executed registered Gift Deed in respect of the suit property in favour of the plaintiff, which is Ex.PW1/5. She further deposed that property got mutated in favour of plaintiff in the record of MCD vide mutation letter dated 11.09.2009 Ex.PW1/C. PW1 further deposed that in the year 2014 when defendant no.1 with a view to grab the suit property by getting prepared the duplicate keys and to usurp his movable property and to this effect a complaint was made to the police on 06.10.2014 CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 23 of 39 Ex.PW1/7. PW1 further deposed that after making the compliant to the police, defendant no.1 starting harassing the plaintiff, therefore, by the complaint dated 17.10.2014 filed by the defendant Ex.PW1/A. It is further deposed that on 20.10.2014 the defendants try to occupy the property by illegally breaking open the locks on 20.10.2014, another compliant dated 28.10.2014 was made to the police which is Ex.PW1/9. She further deposed that defendants filed a false and frivolous suit for restrained the plaintiff to dispossessed the defendants against the plaintiff which was subsequently, which was dismissed in default for non prosecution, copy of suit is Ex.PW1/10. It is further deposed that mother of the plaintiff employed defendant no.1 as housemaid in the year 2005. Defendant no.2 is the daughter of defendant no.1. The mother of the plaintiff was looking after Ms. Kamla Puri. After the demise of Ms. Kamla Puri on 13.12.2012, the defendant no.1 refused to vacate the suit premises in question.
14.3 PW1 was cross examined by the defendants and in cross examination witness stated that at the time of signing of the Gift Deed Ms. Kamla Puri herself and her son Sri Niwas and two witnesses namely Manoj and Nachiketa were also present. She also deposed in cross examination that Ex.PW1/5 was signed by the house of Ms. Kamla Puri and SubRegistrar also came to the house of Kamla Puri for the registration of said documents. She further deposed that SubRegistrar had come to the residence on 22.05.2009 alongwith a photographer with two other officials. PW1 further deposed that plaintiff paid for stamp duties which lawyer had paid for purchase of the same. During the cross CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 24 of 39 examination witness denied the suggestion that the Will was executed in the year 2005.
14.4 It may be seen that PW2 Sh. Manoj Kumar, who is one of the attesting witness of Will Ex.PW1/3, in his affidavit in examination in chief has deposed that he was well acquainted with the plaintiff as well Smt. Kamla Puri since 1993 and he was in regular touch with Smt. Kamla Puri till her demise in 2012. He further deposed that she was in sound and disposing mind till her death. He further deposed that Smt. Kamla Puri called him at her residence and requested to be a witness to the Will and accompany her to get the Will registered at SubRegistrar Office, Vikas Sadan. He further deposed that on 16.09.1999 in the morning he accompanied Sh. S. Raghwan, father of the plaintiff, Kailash Kumar Malik and Smt. Kamla Puri in the office of Sub Registrar. He further deposed that the proceeding for registration of Will was conducted before Registrar and Smt. Kamla Puri in his presence as well in the presence of Mr. Kailash Kumar Malik signed the Will and she had also signed the Will in his presence and the signature of Ms. Kamla Puri has been identified at point A, B and C respectively on Ex.PW1/3 and he also identified his signatures on Ex.PW1/3 at point D. 14.5 He further deposed that Ms. Kamla Puri called him in second week of August 2000 and informed him to go to the SubRegister Office to resign the Will, since there was some legal infirmity in the Will dated 16.09.1999. He further deposed that on 14.08.2000 at the request of Ms. Kamla Puri he and one Mr. Kailash Kumar Malik in the presence of each other as well as CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 25 of 39 in the presence of SubRegistrar after reading the Will subscribed his signature to the said Will as witness. He further deposed that he had signed the Will dated 14.08.2000 Ex.PW1/4 at point D and Mr. Kailash Kumar Malik signed the Will in his presence at point E and Ms. Kamla Puri signed the Will in his presence at point A, B and C. 14.6 PW2 further deposed that on 25.05.2009 Ms. Kamla Puri had requested him to come at her residence to be a witness of a Gift Deed as she wanted to transfer the suit property to the plaintiff. He further deposed that she told him that SubRegistrar was also coming to her residence to register the Gift Deed to which he willingly give his consent, he further deposed that he reached at the residence of Ms. Kamla Puri, SubRegistrar was not present but after some time SubRegistrar reached and he verified the content of Gift Deed of Ms. Kamla Puri, thereafter Ms. Kamla Puri had signed the gift deed in my presence as well as in presence of Sh. Nachiketa Satpati. PW2 further deposed that Ms. Kamla Puri had signed the Gift Deed Ex.PW1/5 at point A to K. He also identified his signature at point L and signature of Sh. Nachiketa Satpati at point M. 14.7 This witness has been cross examined thoroughly but nothing material has come out to substantiate the defence of the defendant.
14.8 PW3 Sh. Nachiketa Satapati being a witness of Gift Deed Ex.PW1/5 deposed that he was well acquainted with the plaintiff as he used to go college with the plaintiff and he further deposed that he knew Ms. Kamla Puri till the time of her death. He CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 26 of 39 further deposed that Ms. Kamla Puri was always in sound and disposing state of mind till her death in 2012. He further deposed that Gift Deed Ex.PW1/5 was witnessed by him on the request of Ms. Kamla Puri at her residence where the SubRegistrar was present. PW3 further deposed that on 22.05.2009 Ms. Kamla Puri has signed Gift Deed in his presence as well as in presence of PW1 Manoj Kumar and he identified the signature of Ms. Kamla Puri on Gift Deed Ex.PW1/5. He further deposed that Ms. Kamla Puri had also signed in his presence and he identified her signature on Ex.PW1/5 dated 22.05.2000 at point A to K. He also identified signature of Sh. Manoj Kumar at point L as well as his signature at point M. 14.9 This witness has been cross examined throughly but nothing material has come out to substantiate the defence of the defendant.
14.10 PW4 Sh. Dheeraj Kumar from SubRegistrar Office who has brought the record of original Gift Deed Ex.PW1/5 which was registered vide Registration no.6238 in Additional Book No.I, Vol. 9267 on pages 155 162 dated 25.05.2009.
14.11 PW5 Sh. Vibhav Kumar, who proved the document relating to the mutation of the property bearing no.C60, Ground Floor, rear NDSE, PartI, New Delhi, total mutation in pages 1 to 28 Ex.PW5/1.
14.12 These two witnesses i.e. PW4 and PW5 have been cross examined throughly but nothing material has come out to substantiate the defence of the defendant.
14.13 It may be seen that Will dated 16.09.1999 Ex.PW1/3 CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 27 of 39 and Will dated 14.08.2000 Ex.PW1/4 respectively have duly been proved by PW2 in view of the provision of Section 68 of The Indian Evidence Act and Section 63 of The Indian Succession Act.
14.14 Gift Deed Ex.PW1/5 has been duly proved by PW2 and PW3 and they duly identified the signatures of Ms. Kamla Puri and signatures of each other and also fully supported the testimony of PW2 regarding the execution and proof of Gift Deed. It is pertinent of mentioned that the Gift Deed Ex.PW1/5 itself find mentioned that Ms. Kamla Puri without any monetary consideration and in consideration of nature love and affection conveyed and transferred by way of gift the suit property in favour of the plaintiff and after accepting the Gift Deed the mutation of the property was also done in favour of the plaintiff which has also been proved by witness PW5 and he also identified the signature of witness PW2 and PW3. Moreover the defendant in her cross examination has admitted that water connection in the house was in the name of plaintiff.
14.15 During his evidence the witness PW2 distinctly identified the signatures of Ms. Kamla Puri, Sh. Kailash Kumar Malik as well as his signatures on both the Wills Ex.PW1/3 and Ex.PW1/4 and the credibility of PW2 during cross examination remain unimpeached except minor discrepancies which do not go to the root of the matter.
14.16 It is pertinent to mention that defendants have raised the objection with regard to the aforesaid Wills exhibited as Ex.PW1/3 and Ex.PW1/4 and claimed to be forged and CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 28 of 39 fabricated. But the defendants have neither specified as to the manner in which the above Wills are allegedly forged. Moreover, defendants did not lead any evidence in support of the allegations to substantiate their plea.
14.17 It is to be seen that defendants have mentioned in the list of witnesses about Sh. Kailash Kumar Malik, who is the second attesting witness to the Wills Ex.PW1/3 and Ex.PW1/4 but neither they have called him nor summoned in support of their allegations.
14.18 It is further pertinent to mention that Gift Deed Ex.PW1/6 has duly been proved by the plaintiff as the Gift Deed itself find mentioned that Ms. Kamla Puri without any monetary consideration and out of love and affection she had conveyed and transferred the suit property in favour of the plaintiff. It is further seen that pursuant to the registered Gift Deed in favour of the plaintiff the suit property was also got mutated in favour of plaintiff which had also been admitted by defendant during her cross examination deposing that water connection was in the name of plaintiff. Moreover, the house tax of the suit property had been paid by the plaintiff since 2012 which is marked as Mark7 (colly). In view of the settled prepositioned of law in Shalik Vs. Sita Ram 2016(6) MhLJ 824, it was held that once it is found that the document of Gift Deed is registered and signature of donor and is proved by two attesting witnesses, it cannot be held to be invalid unless a case of fraud and misrepresentation is made out. Further in case of Prem Singh & Ors Vs. Virbal 2006 (5) SCC 353 it was held by Hon'ble Apex Court that there is a presumption that a registered document is validly executed. A registered CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 29 of 39 document, therefore, prime facie would be valid in law. The onus of prove, thus, would be on the person who leads evidence to rebut the presumption. In the instance case respondent no.1 has not been able to rebut the said presumption.
14.19 PWs have been cross examined thoroughly but nothing material has come in cross examination which would substantiate the defence of the defendant except some minor contradictions and discrepancies which are not material in nature. Therefore, in view of the aforesaid discussion and applying the case laws the plaintiff has been able to prove the ownership of the property. Hence, this issue is decided in favour of plaintiff and against the defendants.
15.1 ISSUE No.2: Whether the plaintiff is entitled to recover mesne profits from the defendants for the user and occupation of the suit property w.e.f. 20.10.2014 till the handing over of the peaceful vacant physical possession of property described as bearing municipal no.C60, South Extension Part I, New Delhi? OPP.
15.2 The onus to prove this issue was upon the plaintiff. Plaintiff in the plaint has clearly stated that the suit property could easily fetch a monthly rent of Rs.20,000/ per month but defendants in response in their written statements have just vehemently denied and nothing has been stated about what could be the monthly rent of the property in area. As the evidence in this regard is uncontroverted. PW1 Smt. Lalita Raghavan in her CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 30 of 39 examination in chief stated that the suit property could easily fetch a monthly Rs.20,000/ and in support of claim plaintiff examined PW7 Sh. Neeraj Verma, clerk from the office of SubRegistrar, who has proved two lease deeds of similar sized properties in the same locality i.e. bearing no. C12 (first floor, Housing Society, First Floor, NDSE PartI admeasuring the rent is fixed at Rs.46,000/ per month, and another flat bearing no. C55, (2 nd floor) rear side, South Extension PartI, admeasuring 1050 Sq. Fts. The lease deed clearly mentions a monthly rent of Rs.36,000/.
15.3 It may be seen that the aforesaid witness has not been cross examined by the defendants on the aspect of damages and mesne profits, therefore, in absence of any cross examination on this point, the monthly rent of Rs.20,000/ is deemed to be admitted by the defendants. Hence plaintiff has proved sufficiently the rate of rent for determining the mesne profits to be awarded in favour of the plaintiff. Hence, issue no.2 is decided in favour of the plaintiff and against the defendants.
16.1 ISSUE No.3: Whether the registered Will dated 16.09.1999 executed by Ms. Kamla Puri in favour of the plaintiff is a forged and fabricated document?OPD 16.2 The onus to prove this issue was upon the defendants. In their written statement, the defendants have pleaded that the Will is false, forged and fabricated document but the defendants have failed to give any reason as to how the Will is forged and fabricated. On the other hand, from the testimony of PW2 Sh. CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 31 of 39 Manoj Kumar, who is an attesting witness to the Will, it is clear that the Will dated 16.09.1999 is an original Will and has been in possession of the plaintiff since 1999. Even defendants have not produced cogent evidence or material to show that the Will was allegedly not signed in the presence of the witness. Moreover, the defendants have not examined the SubRegistrar, they have not even called for the certified record or register from the Sub Registrar's office. Admittedly the defendants did not even dispute that Ms. Kamla Puri's signatures on the Will were not hers. Moreover, the defendants failed to lead any evidence to show that the signature on the Will was fraudulently obtained. Even despite mentioning Mr. Kailash Malik, second attesting witness to the Will dated 16.09.1999 and 14.08.2000 in their list of witnesses, the defendants did not examine him. The Will dated 14.08.2000 had been objected by defendants that it was not pleaded and it was added without the permission under Order VII Rule 14. However, the Will dated 14.08.2000 was exhibited as Ex.PW1/4 on 06.06.2017 without any objection from the defendants.
16.3 Since the burden of proving the Will to be forged and fabricated was on the defendants but they have failed to impeach the credibility of PW2 Sh. Manoj Kumar, attesting witness to the Will, who gave answers consistently to the questions pertaining to execution and registration of the Will. It is seen that the Will is of 1999 and 2000 and the witness was examined after a gap of 1718 years from the Will and 08 years after the registration of the Gift Deed. It is settled law that a hypersensitive approach cannot be adopted while examining the evidence of the attesting CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 32 of 39 witness.
16.4 Apart from giving suggestions about the execution of the Will, the defendants have not produced any cogent evidence or material to show that the Will was allegedly not signed in the presence of the witness. Further the defendants have not examined the SubRegistrar, they have not even called for the certified record or register from the SubRegistrar's office and adverse inference ought to be drawn. Except pointing out some minor contradictions in the testimony of the witness, the defendants have failed to prove how the Will is forged and fabricated. Admittedly, the defendants did not even dispute that Ms. Kamla Puri's signatures on the Will were not hers. Moreover, the defendants failed to lead any evidence to show that the signature on the Will was fraudulently obtained. Despite mentioning Sh. Kailash Malik, attesting witness to the Will dated 16.09.1999 and 14.08.2000 in their list of witnesses, the defendants did not examine him. The defendants had objected with regard to the Will dated 14.08.2000 that it was not pleaded and it was added without the permission under Order VII Rule 14 CPC though it had been exhibited as Ex.PW1/4 on 06.06.2017 without any objection from the defendants. Moreover, the defendants have themselves cross examined PW1 Mrs. Lalita Raghavan and PW2 Sh. Manoj Kumar on the Will dated 14.08.2000, therefore, the objection of the defendants now has no merit at the stage of final arguments. It is settled law even if issue are not framed and the defendants gets an opportunity to cross examine the witness, the non framing of issue Will have no bearing.
CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 33 of 39 16.5 In view of above discussion, the defendants have failed in discharging their onus on the said issues, therefore, the issue no.3 is decided against the defendants.
17.1 ISSUE No.4 Whether the registered Gift Deed dated 25.05.2009 executed by Ms. Kamla Puri in favour of the plaintiff in respect of the property described as bearing municipal no. C60, South Extension PartI, New Delhi is a forged and fabricated document? OPD 17.2 The onus to prove this issue is also upon the defendants. In the written statement defendants have stated that the Gift Deed dated 25.05.2009 is not valid as it is fake and fabricated documents. It is further stated in the written statement that Ms. Kamla Puri was not mentally and physically sound on 25.05.2009 to execute the Gift Deed as she had been suffering from brain stroke and fractured her leg and was also not in a position to move even during that date. However, during the cross examination of PW1 Smt. Lalita Raghvan was asked by defendants where was the Gift Deed registered, to which PW1 replied that it was registered at her home, this reply exposed the defense of defendants who were premising their case on the fracture suffered by Ms. Kamla Puri. Thereafter, defendant no.1 Smt. Promila Panda in her examination in chief changed her case and stated that Ms. Kamla Puri was not in a position to sign or write. But defendants failed to lead any evidence to show that Ms. Kamla Puri was not in a position to write on 25.05.2009. Even the defendants did not call any expert to give an opinion on the CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 34 of 39 signature of Ms. Kamla Puri.
17.3 It is argued by Ld. Counsel for defendants that there was no reason for Ms. Kamla Puri to execute the Gift Deed dated 25.05.2009 after she had already executed two Wills in favour of the plaintiff but no question on this issue was put to plaintiff's witness during cross examination.
17.4 Further in order to prove that Ms. Kamla Puri was not in a fit state of mind to execute the Gift Deed dated 25.05.2009 the defendants have placed reliance on some medical documents but all the documents are either of year 2007 or 2010 whereas Gift Deed was executed on 25.05.2009, even the defendants have not examined the doctors that had treated Ms. Kamla Puri. In fact, PW1 Smt. Lalita Raghavan in her cross examination had named Dr. Praveen Gulati and Dr. Vinay Aggarwal, who had treated Ms. Kamla Puri in the year 2007 but the defendants have not examined the said doctors, despite having mentioned their names in the list of witnesses and in absence of examination of the doctors of these medical documents, the content of these documents remain unproved. Further during examination DW5 Sh. Gopal Singh (Senior Assistant, Institute of Home Economics, Hauz Khas) does not state that he identifies the signature of the maker of the document whereas DW6 Sister Fidela from Marian Ashram states that she cannot state anything about Ms. Kamla Puri's health before she as brought in the Ashram on 12.05.2010 as such, none of these witnesses have anything to do with the health of Ms. Kamla Puri or the content of these documents. Moreover, PW2 Sh. Manoj Kumar and PW3 Sh. N.H. Nachiketa stated that CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 35 of 39 Ms. Kamla Puri had herself called them to her residence to be attesting witnesses to the Gift Deed dated 25.05.2009. Further DW6 Sister Fidela stated that in the year 2010 Ms. Kamla Puri had given permission to the Institute of Home Economics to transfer her pension to the institute shows the transfer was made on 29.10.2010, 30.09.2010, 30.09.2010 after registration of the Gift Deed, it is thus evident that Ms. Kamla Puri was in a sound state of mind at the said time.
17.5 Therefore, in view of the above discussion, defendants failed to discharge the burden to prove this issue in their favour and accordingly decided against them.
18.1 ISSUE No.5: Whether the suit for recovery and mesne profits is filed against the defendants by the plaintiff without any cause of action in favour of the plaintiff? OPD 18.2 The onus to prove this issue is also upon the defendants. Since defendants have not lead any evidence to prove this issue. Moreover holistic reading of the suit shows that plaintiff has specifically leveled allegations against the defendants in the suit which give rise to an enforceable claim to file the suit.
18.3 In Om Prakash Srivastava V. Union of India & Anr., reported in (2006) 6 SCC 207, the term 'cause of action' has been elaborately explained by the Hon'ble Apex Court in the following terms: "9. By"cause of action" it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, a bundle of facts, which it CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 36 of 39 is necessary for the plaintiff to prove in order to succeed in the suit. (See Bloom Dekor Ltd. V. Subhash Himatlal Desai).
10. In a generic and wide sense (as in Section 20 of the Civil Procedure Code, 1908) "cause of action"
means every fact, which it is necessary to establish to support a right to obtain a judgment. (See Sadanandan Bhadran V. Madhavan Sunil Kumar).
11. It is settled law that "cause of action" consists of a bundle of facts, which give cause to enforce the legal inquiry for redress inn a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action would possibly accrue of would arise. [See South East Asia Shipping Co. Ltd. V. Nav Bharat Enterprises (P) Ltd.]
12. The expression "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above, the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in "cause of action". (Rajasthan High Court Advocates' Assn. V. Union of India)
13. The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit. (Gurdit Singh V. Munsha Singh).
14. The expression "cause of action" is generally CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 37 of 39 understood to mean a situation or state of fats that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain a remedy in court from another person (Black's Law Dictionary). In Stroud's Judicial Dictionary a "cause of Action" is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment. In Words and Phrases (4th Edn.) the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party a right to judicial interference of his behalf. (Navinchandra N.Majithia V. State of Maharashtra.)"
19. In view of above discussion and applying the principle of law, the defendants failed to establish issue no.5 in their favour and accordingly same is decided against them and in favour of plaintiff.
Relief
20. In the light of discussion made herein above and in view of my findings on issues no.1 to 5 suit is decreed in favour of the plaintiff and against the defendants in the following terms : A: A decree is passed in favour of the plaintiff and against the defendants and defendants are directed to vacate the suit property i.e. flat on the rear side of the Ground Floor of the property bearing Municipal No.C60, NDSE, PartI, New Delhi shown in red colour in the site plan and handover its peaceful and physical possession to the plaintiff CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 38 of 39 within 30 days.
B: A decree of damages / mesne profits @ Rs.20,000/ (twenty thousand) per month from the date of filing of the suit till the delivery of actual and physical possession of the suit property with interest @ 6% per annum on due and payable amounts is passed in favour of the plaintiff and against the defendants.
21. Cost of the suit is awarded in favour of the plaintiff and against the defendants.
22. Decree sheet be prepared accordingly.
22. File be consigned to the record room.
Announced in the open (LALIT KUMAR)
Court on 12.04.2022 Additional District Judge 04(SE),
Saket Courts, New Delhi.
CS 207180/16 R.Sriniwas Vs Pramila Panda & Anr. Dated 12.04.2022 Page no. 39 of 39