Delhi District Court
Shri Gurcharan Singh Kakar vs Shri Jaswant Singh Kakar on 17 August, 2013
IN THE COURT OF SH. CHANDER SHEKHAR,
DISTT. & SESSIONS JUDGE (NORTH),
ROHINI COURTS, DELHI.
C.S. No. 440/10/12
Shri Gurcharan Singh Kakar
S/o Sh. Inder Singh Kakar
R/o 14780, Cavell St. Livonia
Michigan48154, U.S.A.
Through Attorney Shri Rajeev Dhawan ....Plaintiff
Versus
Shri Jaswant Singh Kakar
S/o Sh. Atam Singh Kakar
R/o Flat No. 359, Block No. B4,
Sector8, Rohini, Delhi110085 ....Defendant
Date of institution : 11.08.2010
Date of hearing arguments: 31.07.2013
Date of decision: 17.08.2013
JUDGMENT
1. The plaintiff has filed the present suit through attorney for Mandatory and Permanent Injunction against the defendant averring in the amended plaint that the plaintiff is the son of the elder brother of the defendant and is the true, sole, legal, absolute and exclusive owner of DDA Flat No. 359, Block No. B4, Sector8, Rohini, Delhi110085 with ground CS No. 440/10/12 Page 1 of 36 floor, first floor and second floor built on an area of 29.9 sq. meter (hereinafter referred to as suit property) by virtue of the will of his father Sh. Inder Singh Kakar dated 26.03.2009 and the will of his mother late Smt. Usha Kakar dated 04.01.2008. It is stated in the plaint that father of the plaintiff used to live in U.K. with his family and used to come down to India often and used to stay in Delhi. The suit property was purchased by the plaintiff's father jointly in his name and in the name of his wife, Smt. Usha Kakar, the mother of the plaintiff in the year 1995. The father of the plaintiff asked the defendant to visit the suit property on and off in his absence, so that the suit property can be looked after properly.
2. It is further submitted in the plaint that the mother of the plaintiff died on 31.01.2008 and thereafter the plaintiff became the joint owner of the suit property alongwith his father being the legal inheritor of his mother by virtue of the aforesaid will of his mother. Subsequently, the father of the plaintiff died on 15.06.2010. The defendant during the year 1999 requested the father of the plaintiff to help him by permitting/allowing him to stay and live alongwith his family in the suit property as the defendant was going through deep financial crisis and had no roof or shelter to live in Delhi. The father of the plaintiff out of his love, affection and duty as an elder brother and with an intention to help the defendant, allowed him to stay and live in the suit property alongwith his family in the capacity of licensee but with clear understanding that he CS No. 440/10/12 Page 2 of 36 would not carry out any construction, additions and alterations without his consent and permission and the defendant would not let out the suit property to any one and shall vacate and hand over the peaceful possession of the same as and when he is asked to do so. However, the attitude of the defendant towards the plaintiff's father was totally changed after he shifted in the suit property alongwith his family.
3. It is further stated in the plaint that the plaintiff's father and mother came to Delhi in the month of December, 2006 and stayed in the suit property with the defendant and his family for more than a month and got the suit property freehold vide Conveyance Deed dated 07.12.2006 executed and duly registered on 12.12.2006 in their joint name in the office of Sub Registrar, New Delhi. It is further stated in the plaint that plaintiff's father during his visit to Delhi in the month of December, 2006 had asked the defendant to vacate the suit property and make arrangements. It is further stated in the plaint that the plaintiff and his father came to know during their visit to Delhi in March, 2010 that the defendant had made additions and alterations in the Second Floor of the suit property without their permission and consent. The plaintiff and his father also came to know during their visit in the month of March, 2010 that the defendant is in the process of selling the suit property at their back. The defendant and his son have contacted some property dealer for the sale of the same. Therefore, the father of the plaintiff and the plaintiff himself has asked the CS No. 440/10/12 Page 3 of 36 defendant to leave and vacate the suit property, but he did not vacate the same.
4. It is further stated that the plaintiff and his father had served upon the defendant a legal notice dated 01.05.2010 followed by corrigendum notice dated 08.05.2010 revoking/terminating the licence with immediate effect and called upon him to vacate and hand over the peaceful possession of the suit property to them within 30 days from the date of receipt of the said notice. However, despite the said legal notice, the defendant has not vacated the suit property. Hence, the present suit.
5. The defendant was allowed to be represented through his wife Smt. Gursharan Kaur in view of the application u/o 32 read with section 151 CPC vide order dated 25.02.2011 and 30.03.2011 as his next friend, as per law.
6. The defendant has stated in the amended WS dated 15.09.2011 that the plaintiff has not come to the court with clean hands as he has suppressed the material facts that late Inder Singh Kakar had three sons namely Jaspal Singh, Gurubachan Singh and Gurucharan Singh. Mr. Jaspal Singh and Gurubachan Singh died before the death of his father, but they are left behind their legal heirs. Late Sh. Jaspal Singh had two daughters namely Ms. Sharan, aged around 28 years and Jassica, aged CS No. 440/10/12 Page 4 of 36 around 27 years and both were residing in London. Late Sh. Gurbachan Singh had three legal heirs namely Rakhi, aged about 27 years, Rahul, aged around 25 years and Priya, aged around 20 years and all three were residing in London. Out of these legal heir, Priya, daughter of Gurbachan Singh once came to India at the time of last ceremony of last Usha Kakar at Rani Bagh Gurudwara and that time she also visited the relatives, so it is wrong to say that the plaintiff is only legal heir of late Sh. Inder Singh Kakar or Smt. Usha Kakar. It is further stated in the WS that the consideration money of the property in question was paid by the defendant from the provident fund after retirement to his elder brother late Sh. Inder Singh Kakar and also paid Rs. 2,00,000/ to the father of the plaintiff. It is further stated in the WS that the defendant is residing for the last 15 years in the suit property and also have right by way of adverse possession as no legal heirs of late Sh. Inder Singh Kakar has raised any question in court of law when the property was constructed by the defendant and the plaintiff has came before the Court with the intention to extort money from illegal means.
7. It is further stated that the defendant purchased the suit property after selling the house of Citizen Enclave, Rohini and it was MIG Flat and the defendant used to stay in that house and when that house was sold in the year 1995, two houses were purchased, one the suit property, where the defendant is residing at present and second at Gurgaon, Haryana which CS No. 440/10/12 Page 5 of 36 was sold by cheating and forgery to some one else. It is further stated that both the brother had purchased the Citizen Enclave flat, after that suit property is given to the defendant and after retirement provident fund money was taken by the father of the plaintiff and whenever he came to India, he used to stay at Gurgaon and not in the suit property and the defendant's family used to visit each other during his stay in India. Last time, the defendant's family also visited at Gurgaon when he came for some treatment and at that time he told that he is staying in Old Age Home in London and his son was not looking after him at all. It has been denied by the defendant that the plaintiff or his father had ever served any legal notice.
8. The plaintiff earlier filed replication on 26.11.2011 wherein the plaintiff denied the contentions raised by the defendant in the earlier WS and reaffirmed those as stated in the plaint. It is stated by the plaintiff that the suit property was purchased by the plaintiff's father jointly in his name and in the name of his wife Smt. Usha Kakar, mother of the plaintiff in the year 1995. The house was already built up and constructed with ground floor, first floor and second floor before plaintiff's father allowed and permitted the defendant and his family to stay in the capacity of licensee in the year 1999. The plea of adverse possession taken by the defendant even otherwise is also not maintainable and sustainable firstly; the defendant was allowed by the father of the plaintiff only in the year 1999, secondly; CS No. 440/10/12 Page 6 of 36 time to time and in the month of December, 2006 and again in the month of May, 2010, the defendant was asked by the father of the plaintiff and the plaintiff himself to vacate the suit property, thirdly; otherwise also the plea of adverse possession is not applicable and maintainable in case of blood relations.
9. Initially following issues were framed in this case on 07.02.2012:
1. Whether the plaintiff is entitled for the decree of mandatory injunction as prayed for? OPP.
2. Whether the plaintiff is entitled for the decree of permanent injunction as prayed for? OPP.
3. Whether this Court has jurisdiction to try this case? OPD.
4. Relief.
10. Thereafter, on 03.01.2013, following additional issues were also framed:
1.a. Whether after the demise of parents of the plaintiff, the plaintiff became the sole, exclusive and absolute owner of the suit property by virtue of their Will? OPP.
1.b. Whether in the year 1999, the defendant was allowed by the father of the plaintiff to live in the suit property in the capacity of licensee? OPP.
CS No. 440/10/12 Page 7 of 36
1.c. Whether the license was revoked/terminated by the father of the plaintiff and the plaintiff himself during the lifetime of the father of the plaintiff? If so, its effect? OPP.
1.d. Whether after the termination of the license the defendant has been staying as trespasser as he had no right to stay in the suit property? OPP.
11. The special power of attorney of the plaintiff Sh. Rajeev Dhawan has been examined as PW1, who tendered his affidavit in evidence, which was exhibited as Ex.PW1/A and proved the Special Power of Attorney as Ex.PW1/1, copy of plan as Ex.PW1/2, copy of Will of plaintiff's mother late Smt. Usha Kakar dated 04.01.2008 as Ex.PW1/3 and copy of Will of plaintiff's father late Sh. Inder Singh Kakar dated 26.03.2009 as Ex.PW1/4, death certificate of late Smt. Usha Kakar dated 31.01.2008 as Ex.PW1/5, death certificate of late Sh. Inder Singh Kakar dated 15.06.2010 as Ex.PW1/6, copy of receipt of property tax issued by MCD dated 25.02.2011 as Ex.PW1/7, copy of receipt of property tax issued by MCD dated 28.12.2011 as Ex.PW1/8, copy of Conveyance Deed dated 12.12.2006 as Ex.PW1/9, copy of Agreement dated 14.06.1995 as Ex.PW1/10, copy of legal notice dated 01.05.2010 alongwith postal receipt as Ex.PW1/11 and copy of corrigendum notice dated 08.05.2010 alongwith postal receipt as Ex.PW1/12.
CS No. 440/10/12 Page 8 of 36
12. Plaintiff has also examined Sh. Ram Dev as PW2, who has proved his signatures at pointG upon the Will of plaintiff's mother late Smt. Usha Kakar dated 04.01.2008 Ex.PW1/3.
13. Plaintiff has also examined Sh. K.B. Pandey as PW3, who has proved his signatures at pointF upon the Will of plaintiff's mother late Smt. Usha Kakar dated 04.01.2008 Ex.PW1/3.
14. Plaintiff has further examined Sh. Anil Kumar, LDC from the Office of SubRegistrar, INA, New Delhi as PW4, who has brought the record regarding execution of Conveyance Deed dated 07.12.2006.
15. Plaintiff has also examined Sh. Rahul Dev, DEO from the Office of SubRegistrar, Sector16, Rohini, Delhi as PW5, who has brought the certified copy of the Will of Sh. Inder Singh Kakar executed on 26.03.2009 in favour of his son Sh. Gurcharan Singh Kakar in respect of his share in the suit property and proved the same as Ex.PW5/A.
16. On the other hand, Smt. Gursharan Kaur was examined as DW1, who tendered her affidavit in evidence which was exhibited as Ex.DW1/A and proved the WS as Ex.DW1/A and amended WS as Ex.DW1/1A.
CS No. 440/10/12 Page 9 of 36
17. I have heard Ld. counsels for both the parties and have gone through the entire record carefully.
18. Considering the pleadings, the issues framed, evidence led and arguments addressed by both the parties, my issuewise findings are as under : ISSUE Nos .1.a. & 1.b.:
Issue no.1.a.: Whether after the demise of parents of the plaintiff, the plaintiff became the sole, exclusive and absolute owner of the suit property by virtue of their Will? OPP.
Issue no.1.b.: Whether in the year 1999, the defendant was allowed by the father of the plaintiff to live in the suit property in the capacity of licensee? OPP.
19. Both these issues are interconnected hence, are taken up together. Onus to prove these issues is upon the plaintiff. The plaintiff has stated in the amended suit that the plaintiff is the true, sole, legal, absolute and exclusive owner of DDA Flat No. 359, Block No. B4, Sector8, Rohini, Delhi110085 with ground floor, first floor and second floor built on an area of 29.9 sq. meter by virtue of the will of his father Sh. Inder Singh Kakar dated 26.03.2009 and the will of his mother late Smt. Usha Kakar dated 04.01.2008. It is further stated in the plaint that the mother of the plaintiff died on 31.01.2008 and thereafter the plaintiff became the CS No. 440/10/12 Page 10 of 36 joint owner of the suit property alongwith his father being the legal inheritor of his mother by virtue of the aforesaid will of his mother.
Subsequently, the father of the plaintiff died on 15.06.2010 and thereafter the plaintiff became the true, sole, legal, absolute and exclusive owner of the suit property by virtue of aforesaid wills of his parents. The defendant during the year 1999 requested the father of the plaintiff to help him by permitting/allowing him to stay and live alongwith his family in the suit property as the defendant was going through deep financial crisis and had no roof or shelter to live in Delhi. The father of the plaintiff out of his love, affection and duty as an elder brother and with an intention to help the defendant, allowed him to stay and live in the suit property alongwith his family in the capacity of licensee but with clear understanding that he would not carry out any construction, additions and alterations without his consent and permission and the defendant would not let out the suit property to any one and shall vacate and hand over the peaceful possession of the same as and when he is asked to do so.
20. It is well settled law that one of the requirements of due execution of the will is its attestation by two or more witnesses which is mandatory. Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. It flows from this section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined CS No. 440/10/12 Page 11 of 36 before the document required by law to be attested can be used in an evidence.
Initial onus of proving the will rests upon the propounder and the will has to be proved like any other document under the provisions of the Evidence Act besides proving the attestation of the execution by witnesses. In the event there are suspicious circumstances surrounding the execution of the will, the onus of explaining the circumstances which look suspicious and of removing the suspicion from the mind of the court rests squarely upon the propounder. Susama Bala vs. Anath Nath. AIR 1976 Calcutta 377.
Execution denotes a conscious act of scribing to a document. In order to prove the execution of a document it must be shown that the person executing it consciously subscribed to it in the sense that he put his mark or signature on it after having known and understood its contents. Mere proof that the person's signature appears on the document cannot, by itself amount to execution of the document. Krishen vs. Bihari Lal Suri. AIR 1977 NOC 211 J & K; 1976 Kash LJ 306; 1976 J & K LR 434.
A person who propounds the Will or produces the Will before the Court and wants the Court to rely upon the same has to prove (i) the Will in question is the legal declaration of the intention of the deceased; (ii) CS No. 440/10/12 Page 12 of 36 the testator when executed the Will was in a sound and disposing state of mind and (iii) the testator had executed the Will of his own free Will. Moreover, the onus of proof on the propounder of Will is of two types(1) to discharge the burden as regards the legal and valid execution of the Will; (2) to remove the suspicion circumstances surrounding the execution of the Will so as to satisfy the conscience of the Court. Vijayben Vashram v. State, AIR 1989 Guj 75.
A distinguishing feature which distinguishes Wills from other documents is that unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed from the world cannot say about the genuineness, contents, etc. The onus, therefore, becomes heavy on the propounder to show by satisfactory evidence that the Will was signed by the testator who at the relevant time was of sound and disposing state of mind, understood the nature and effect of the disposition and put his signature to the document of his own free will. Judging the solemnity attached, the evidence should be of disinterested, satisfactory and sufficient nature. A. Chandrabati v. Laxmi Dei, AIR 1991 Orissa 289.
The execution of a document will have to be proved by calling in at least one of the attesting witnesses and attestation itself has to be proved in the form in which S. 63 (c) of the Succession Act requires. CS No. 440/10/12 Page 13 of 36 Under that provision attestation will have to be proved by the attesting witnesses, admitting attestation as also proving that they signed the document in the presence of the testator. Pattammal v. Kanniammal, AIR 1981 Madras 252.
Meaning of attestation: By attestation is meant the signing of a document to signify that the attestator is a witness to the execution of the document. S. 63(c) of the Succession Act provides that an attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document.
It cannot be laid down as a matter of law that because the witnesses did not state in chief examination that they signed the will in the presence of the testator there was no due attestation. It will depend upon the circumstances elicited in the evidence whether the attesting witnesses signed in the presence of the testator. Where a will duly signed by the testator was attested by two witnesses not in the presence of each other but at different times, there must be proof of the two attestations in the presence of the testator. Gouri Kunjulakshmi v. Mathevan Ramakrishnan AIR 1985 160 NOC (Ker.).
CS No. 440/10/12 Page 14 of 36
Language of S. 68 of the Evidence Act is clear and categorical. Once the execution of the document is denied by the alleged executant, the document cannot be admitted in evidence, unless one attesting witness at least has been called for proving the execution of the document, if alive, and subject to process of the Court. Rajammal v. Chinnathal, AIR 1976 Madras 4.
The essential conditions of a valid attestation are that two or more witnesses must have seen the executant sign the instrument, or have received from him a personal acknowledgment of his signature, and each of them has signed the instrument in the presence of the executant. However, when the document appeared to have been executed and attested at the same sitting, it would not be necessary for the attesting witness to state in his deposition that he had signed as witness in the presence of the executant. Dhruba v. Paramananda, AIR 1983 Orissa 24.
In case, where two attesting witnesses had signed in the presence of each other, it is not necessary to examine both to prove that they had received acknowledgment from the testator of his signature or mark on the will. M.S. Thanigachala v. Rukmani Ammal AIR 1989 Mad
99. CS No. 440/10/12 Page 15 of 36 Section 68 of the Evidence Act lays down the mode of proof of a document is admitted after formal proof being waived, it means admission by the party waiving such formal proof of the due execution of the document. Under Section 68, one of the attesting witnesses, if there be any alive, has to prove the execution of the document required by law to be attested. But if the execution itself is admitted by a party, the question of further proving the execution of the document buy an attesting witness will not arise. Durgapada Jana v. Nemai Charan Jana AIR 1986 Cal 23.
21. Now adverting back to the facts of the present case. The attorney of the plaintiff has proved his special power of attorney as Ex.PW1/1. It is stated by PW1 that the plaintiff is the son of the elder brother of the defendant and is the true, sole, legal, absolute and exclusive owner of DDA Flat No. 359, Block No. B4, Sector8, Rohini, Delhi 110085 with ground floor, first floor and second floor built on an area of 29.9 sq. meter i.e. the suit property by virtue of the will of his father Sh. Inder Singh Kakar dated 26.03.2009 and the will of his mother late Smt. Usha Kakar dated 04.01.2008. PW1 proved the plan as Ex.PW1/2 and the copy of Will of plaintiff's mother late Smt. Usha Kakar dated 04.01.2008 as Ex.PW1/3 and copy of Will of plaintiff's father late Sh. Inder Singh Kakar dated 26.03.2009 as Ex.PW1/4. PW1 has also proved the death certificate of late Smt. Usha Kakar dated 31.01.2008 as Ex.PW1/5, death certificate of late Sh. Inder Singh Kakar dated 15.06.2010 as Ex.PW1/6, CS No. 440/10/12 Page 16 of 36 copy of property tax issued by MCD dated 25.02.2011 as Ex.PW1/7 and copy of property tax issued by MCD dated 28.12.2011 as Ex.PW1/8. PW 1 has also proved the copy of the Conveyance Deed as Ex.PW1/9. There is nothing material in the cross examination of this witness which may impeach his credibility regarding the execution of Will Ex.PW1/3 and Ex.PW1/4.
22. PW2 Sh. Ram Dev is one of the attesting witness who stated in his affidavit in evidence Ex.PW2/A that he identifies the signatures of the executor of Will Ex.PW1/3 Smt. Usha Kakar at points C, D & E. He also identified the signatures of other witness Sh. K.B. Pandey at pointF and identified his signatures at pointG. This witness stated in his examination in chief on oath that Smt. Usha Kakar had executed a Will dated 04.01.2008 in his presence at A55, Sushant Lok Apartment, Sushant Lok, Sector 'C' Gurgaon, Haryana. He further stated that Smt. Usha Kakar was of sound mind and in good mental health at the time of execution of her said Will. He personally saw the Testator affixing her signature to the said Will and identified her signature. He further stated that he has personally affixed his signature to the said Will as a witness. Shri K.B. Pandey was also present there on 04.01.2008 alongwith him at A55, Sushant Lok Apartment, Sushant Lok, Sector 'C' Gurgaon, Haryana of late Smt. Usha Kakar who also affixed his signatures to the said Will as the second attesting witness. Late Smt. Usha Kakar had admitted/stated to him that CS No. 440/10/12 Page 17 of 36 the said Will was her last Will and testament. The name and signature subscribed at the foot of the Will as of the party executing the same and the name and signature as of the parties, attesting execution of the same are proper.
23. PW2 in his cross examination stated that draft of Will was already prepared by Smt. Usha Kakar and he signed the said Will at her house in the presence of Inder Singh Kakar, Usha Kakar, K.B. Pandey and Ram Dev. He also stated that he had not read the Will, however, volunteered that Smt. Usha Kakar told him that she executed the Will in respect of her share of the Rohini flat in favour of her son Gurcharan Singh. He also stated that Smt. Usha Kakar signed the Will on 04.01.2008 approximately 23 days before her death. However, he denied the suggestion that Smt. Usha Kakar was sick, but volunteered that she was weak. He denied the suggestion that he alongwith Gurcharan Singh got the Will executed from Usha Kakar forcibly during her sickness. He also denied the suggestion that Usha Kakar did not execute any Will or the Will Ex.PW1/3.
24. PW3 Sh. K.B. Pandey is also one of the attesting witness who stated in his affidavit in evidence Ex.PW3/A that late Smt. Usha Kakar and her husband late Sh. Inder Singh Kakar lived in U.K. and used to come to Delhi and stay some times at DDA flat no. 359, Block No. B4, Sector8, CS No. 440/10/12 Page 18 of 36 Rohini, Delhi with Sh. Jaswant Singh Kakar, the brother of late Sh. Inder Singh Kakar and sometimes at A55, Sushant Lok Apartment, Sushant Lok, Sector 'C' Gurgaon, Haryana and many times he himself went to leave them at their abovesaid house at Rohini, Delhi. He further stated that late Smt. Usha Kakar had executed a Will dated 04.01.2008 in his presence at A55, Sushant Lok Apartment, Sushant Lok, Sector 'C' Gurgaon, Haryana. He further stated that Smt. Usha Kakar was of sound mind and in good mental health at the time of execution of her said Will. He personally saw the Testator affixing her signature to the said Will and identified her signature. He further stated that he has personally affixed his signature to the said Will as a witness. Shri Ram Dev was also present there on 04.01.2008 alongwith him at A55, Sushant Lok Apartment, Sushant Lok, Sector 'C' Gurgaon, Haryana of late Smt. Usha Kakar who also affixed his signatures to the said Will as the first attesting witness. Late Smt. Usha Kakar had admitted/stated to him that the said Will was her last Will and testament. The name and signature subscribed at the foot of the Will as of the party executing the same and the name and signature as of the parties, attesting execution of the same are proper. PW3 proved the Will Ex.PW1/3, which bears his signatures at pointF, signatures of Smt. Usha Kakar at pointsC, D & E and signatures of other witness Sh. Ram Dev at pointG. CS No. 440/10/12 Page 19 of 36
25. PW3 in his cross examination specifically stated that Smt. Usha Kakar called him for the signing of the Will. When she signed on the Will, at that time, Gurcharan Singh was not there. It is further stated by this witness that Smt. Usha Kakar was weak only but not sick and she died her natural death. He denied the suggestion that he had not signed on the Will in the presence of Smt. Usha Kakar or that he is procured witness or he is deposing falsely. He also stated in his cross examination that he was told about the contents of the Will by Smt. Usha Kakar before he signed the same. He also stated that Smt. Usha Kakar did not type the Will in his presence, it was already typed.
26. PW4 Sh. Anil Kumar, LDC from the Office of SubRegistrar brought the registration record of Conveyance Deed made on 07.12.2006 stating that the Conveyance Deed dated 07.12.2006 was registered with the SubRegistrarVII, New Delhi in favour of Sh. Inder Singh and Smt. Usha Kakar in respect of Flat No. 359, B4, Sector8, Rohini, Delhi110085.
27. PW5 Sh. Rahul Dev, DEO from the office of SubRegistrar, Sector16, Rohini, Delhi brought the certified copy of Will of Sh. Inder Singh Kakar s/o Late Sh. Atam Singh, executed on 26.03.2009 in favour of his son Sh. Gurcharan Singh Kakar in respect of Flat No. 359, B4, Sector 8, Rohini, Delhi110085 and proved the same after seeing the record as Ex.PW5/A, which was also stands exhibited as Ex.PW1/4 in the evidence CS No. 440/10/12 Page 20 of 36 of PW1.
28. Wife of the defendant Smt. Gursharan Kaur, his next friend, has been examined as DW1 and tendered her evidence by way of affidavit as Ex.PW1/B. She has stated in her affidavit that the consideration money of the suit property was paid by the defendant from the provident fund after retirement to his elder brother, late Sh. Inder Singh Kakar and paid Rs. 2,00,000/ and all the consideration money with regard to the suit property was paid to the father of the plaintiff. Father of the plaintiff desired that the property in question shall remain with his younger i.e. the defendant as he knew that the property was built up by the defendant and all the money was paid to him. The defendant was never asked to vacate the house in question as late Sh. Inder Singh Kakar knew that almost all money was paid to him. DW1 further stated that the defendant is residing in the suit property for almost 15 years and also have right of adverse possession as no legal heirs or father of the plaintiff raised any question in the court of law as the property was constructed by the defendant and there is no right left with the plaintiff to file the present suit.
29. However, DW1 in her cross examination admitted that the suit property was purchased in the year 1995 by Late Sh. Inder Singh Kakkar, father of the plaintiff in the joint name i.e. Inder Singh Kakkar and his wife Smt. Usha Kakkar. She saw and confirmed the Conveyance Deed dated CS No. 440/10/12 Page 21 of 36 07.12.2006 executed in favour of Late Sh. Inder Singh Kakkar and his wife Smt. Usha Kakkar. She admitted it to be correct that the owner of the suit property are Late Sh. Inder Singh Kakkar and his wife Smt. Usha Kakkar. She has further stated in her cross examination that it is in her knowledge that Smt. Usha Kakkar, mother of plaintiff executed a Will dated 04.01.2008 in favour of her son Gurcharan Singh Kakkar. She also admitted that as on date the plaintiff is the owner of the suit property. She also stated that she has no knowledge in whose name the house of Citizen Enclave, Rohini, Delhi was purchased. She also stated that she has no document i.e. agreement, receipt, etc. to show that the money consideration for the suit property was paid to late Sh. Inder Singh Kakkar from the provident fund of the defendant after his retirement. She also stated that she has no document also to show that cash amount of Rs. 2 lacs was paid to late Sh. Inder Singh Kakkar. However, she volunteered that she was told this fact of paying Rs. 2 lacs in cash, by her husband. She admitted in her further examination that she shifted in the suit property as a licensee in the year 1999 with the permission of late Sh. Inder Singh Kakkar, father of the plaintiff. She also admitted that she never paid house tax to the MCD, but stated that her son paid the house tax to the MCD. She also admitted that water and electricity connections are not in her name. She further stated that she got constructed the first and second floor of the suit property, but she does not remember the year when first and second floor was constructed and how much money was spent on the construction. She CS No. 440/10/12 Page 22 of 36 also stated that she does not know whether any plan was sanctioned or not for the purpose of construction. She also stated that she is not having any document to prove that the last desire of late Sh. Inder Singh Kakkar was that they should reside in the suit property. She admitted that they received one notice after the death of Sh. I.S. Kakkar.
30. What is stated in his defence in the written statement by the defendant is that the consideration money of the property was paid by the defendant from the provident fund after retirement to his elder brother late Sh. Inder Singh Kakar and paid Rs. 2,00,000/. It is also stated by the defendant that even otherwise, the defendant also have a right by way of adverse possession in the suit property. However, the defendant through his wife, his next friend, in her cross examination has specifically admitted it to be correct that the owner of the suit property are Late Sh. Inder Singh Kakkar and his wife Smt. Usha Kakkar and as on date the plaintiff is the owner of the suit property. She also admitted that she shifted in the suit property as a licensee in the year 1999. She also stated that she has no document to show that the consideration of the suit property was paid to Sh. Inder Singh Kakar from the provident fund after retirement or that the cash amount of Rs. 2,00,000/ was paid to Sh. Inder Singh Kakar. She simply stated that this fact of paying Rs. 2 lacs in cash was told to her by her husband. However, there is no receipt or document on record to show that the amount of Rs. 2,00,000/ was paid to Sh. Inder Singh Kakar by the CS No. 440/10/12 Page 23 of 36 husband of DW1. Even otherwise, in view of specific admission of DW1 in her cross examination that the plaintiff is the owner of the suit property and the fact that the DW1 specifically admitted that she came in the suit property as a licensee in the year 1999 with the permission of late Sh. Inder Singh Kakkar, father of the plaintiff. It stands proved that the status of the defendant was never more than that of a licensee.
31. It is held in the matter of Gaya Parshad v. Nirmal AIR 1984 SC 930 that where a licensor terminates the licence of the licensee who continues in unauthorised possession and the licensor does not file an action for the purpose of recovering possession, that does not, without more, enable the licensee to claim after 12 years title by adverse possession. In order to make such a claim the licensee after termination of the licence must also demonstrates some overt act to show that he is claiming title. However, in this case the defendant has failed to prove in order to make such a claim that after termination of license, the defendant did some overt act to show that he is claiming title. The status of the defendant as such remained that of a licensee only.
32. In other words, whether the defendant has become the owner by way of adverse possession for that purpose, the defendant has to plead and prove assertion of his independent hostile adverse position to the knowledge of the parents of the plaintiff as well as the plaintiff and the fact CS No. 440/10/12 Page 24 of 36 that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e. after completing the period of his title by prescription nec vi, nec clam, nec prescario.
33. It is a well settled law where there was no fact indicative of ouster proved to have taken place 12 years before suit and no evidence of open assertion of hostile title against plaintiff, it cannot be said that the ownership by way of adverse possession has arisen in favour of the person, who ascertain the same. There is no evidence in this case indicative of ouster proved to have taken place 12 years before suit and there is no evidence of open assertion of hostile title against the plaintiff. Therefore, the plea of adverse possession is not available to the defendant.
34. However, in the judgment delivered by the bench comprising of Hon'ble Mr. Justice Dalveer Bhandari and Hon'ble Mr. Justice Harjit Singh Bedi, Supreme Court of India in the case of Hemaji Waghaji vs. Bhikhabhai Khengarbhai Harijan & Ors. reported in AIR 2009 SC 103, observed that:
"the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner CS No. 440/10/12 Page 25 of 36 takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner. We fail to comprehend why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to loose its possession only because of his inaction in taking back the possession within limitation".
35. Now dealing with the Wills Ex.PW1/4 and Ex.PW1/3. In this regard, the analysis of the evidence produced in the case establishes that the deceased late Sh. Inder Singh Kakar and late Smt. Usha Kakar executed the Wills dated 26.03.2009 and 04.01.2008. The evidence on the record clearly establishes that the Wills were signed by the testators who at the relevant time, were of sound and disposing state of mind, understood the nature and effect of the disposition and put their signatures on the will of their own free will. Judging the solemnity attached, the evidence produced by the plaintiff of PW2, PW3, PW4 and PW5, is sufficient to prove that the plaintiff has proved the legal and valid execution and attestation of the execution by witnesses of the wills and also has proved that there were no suspicious circumstances surrounding the execution of the will. The evidence on record satisfy the conscious of this Court that both the wills were duly executed and the wills in question are legal declaration of the intention of the deceased and that the testators when executing the wills were in a sound state of mind and the testators executed the wills on their CS No. 440/10/12 Page 26 of 36 own free will.
36. Hence, in view of the above discussions and the documents proved on record, I have no hesitation to hold that the plaintiff has proved his case in view of aforesaid Wills Ex.PW1/3 and Ex.PW1/4, Conveyance Deed Ex.PW1/9, evidence of PW1, PW2, PW3 and PW5 and admissions of the DW1 in her evidence, as discussed hereinabove that after the demise of parents of plaintiff, the plaintiff became the sole, exclusive and absolute owner of the suit property by virtue of their Wills and the defendant was allowed by the father of the plaintiff to live in the suit property in the capacity of licensee. These issues are, accordingly, decided in favour of the plaintiff and against the defendant.
ISSUE Nos .1.c. & 1.d.:
Issue no.1.c.: Whether the license was revoked/terminated by the father of the plaintiff and the plaintiff himself during the lifetime of the father of the plaintiff? If so, its effect? OPP.
Issue no.1.d: Whether after the termination of the license the defendant has been staying as trespasser as he had no right to stay in the suit property? OPP.
37. Both these issues are interconnected hence, are taken up together. Onus to prove these issues is upon the plaintiff. DW1 in her cross examination has specifically admitted that she shifted in the suit CS No. 440/10/12 Page 27 of 36 property as a licensee in the year 1999 with the permission of late Sh. Inder Singh Kakkar, father of the plaintiff.
38. The plaintiff has stated in his plaint that the defendant is a licensee qua the suit property. The concept of Leave and License Agreement under Indian Law is as under :
"A license is a personal right granted to a person to do something upon immovable property of the grantor and does not amount to the creation of interest in the property itself. It is purely a permissive right and is personal to the grantee. It creates no duties and obligations upon the persons making the grant and it, therefore, revocable except in certain circumstances expressly provided for in the Act itself. The license, when granted, has not other effect to confer liberty upon the licensee to go upon the land which would otherwise be lawful".
It is important to take note of essential features of license as under :
1. A license is not connected with the ownership of land/property but creates only a personal right or obligation;
2. A license cannot be transferred or assigned;
3. License is purely permissive right arising only by permission, express or implied, and not by adverse exercise or in any other way;
4. It only legalize a certain act which would otherwise be unlawful and does not confer any interest in the property itself in or upon or over which such act is allowed to be done;CS No. 440/10/12 Page 28 of 36
"As discussed above, a license is a personal right granted to a person to do something upon immovable property of the grantor and does not amount to the creation of interest in the property itself. Now the very important question arises that by virtue of grant of license, is it implied that licensor intends to grant an exclusive license to licensee? An exclusive license is leave to do a thing coupled with a contract not give license to anybody else to do the same thing. But it is equally important to have it expressly stated in agreement that the license granted is an exclusive license. Such a right should be conferred by means of a clear and explicit language and in the absence of such a right it cannot be presumed or inferred from a mere leave to do a thing. The incidents of an exclusive license in no way differ from those of an ordinary license except that the violation of the contract not to give license to anybody else do the same thing would give the licensee a right of action against the licensor".
39. Section 59 of the Indian Easement Act, 1882, provides:
"that when a grantor of a license transfers property affected thereby, the transferee is as such bound by the license. In other words, in the event licensor sells his property in which he has granted a license in favour of the licensee, transferr shall not be bound by such license. However, it has been held that if the license has become irrevocable in the time of the licensor, the mere fact that the licensor transfers his interest in the land would not extinguish the license.
LICENSE IS REVOCABLE AT WILL As general rule, License is always revocable at will of licensor. However, Section 60 of Indian Easement Act, 1882, places two restrictions on this general rule:
(a) If the license is coupled with a transfer of property and such transfers is in force;
CS No. 440/10/12 Page 29 of 36
(b) If the licensee acting upon the license, has executed a work of permanent character and incurred expenses in the execution.
The fact that the license was granted for a consideration or for an agreed term cannot affect that revocability of bare license. In such cases, the licensee can claim compensation for breach of contract. Clause a : A bare license is something different from a license coupled with the transfer of property and when such license exists in a valid form, it operates as a contract, or a gift or a grant and becomes irrevocable. Where a person allows another person to come to his park to hunt there and to take away the game. If the owner of the park merely allowed another person to enter the park and to do something there, namely, to hunt in the park, it would be a case of bare license. However, if he allowed him not only to hunt in the park but also to take away the game then it cannot be said to be a case of bare license. The license in such a case would be coupled with a transfer of property, viz., the game hunted. Clause b: The prohibition against the revocation of a license as contained in Section 60 becomes applicable when a licensee "acting upon the license" makes constructions. This means where a license is granted for building purposes necessary for the enjoyment of the license, the license becomes irrevocable when constructions are made in pursuance thereof. But this does not mean that if a person is permitted to visit a place just to learn wrestling, he can put up a building and claim that license which was confirmed to his visiting the place for wrestling, entitled him to make constructions thereon and has become irrevocable. LICENSEE's REMEDY AGAINST IMPROPER REVOCATION A bare license may be revoked at the instance of licensor at any time he likes and it is true that there is no provisions under the law for issue of any notice, as in the case of leases, before a license can be revoked. But the licensee, should in proper cases, have CS No. 440/10/12 Page 30 of 36 reasonable notice of such revocation and after revocation he must have reasonable time quite the land and remove his chattles which he has been licenses to put there. If he is thrust off without such notice or before such reasonable time though he is not entitled to an injunction restraining the licensor from adopting such improper course, yet he may get such damages as may have been caused to him thereby. Similarly where a license is granted valuable consideration and before the licensee has had full enjoyment of it, it is revoked in breach of an express or implied contract the licensee's remedy lies only in an action for damages for breach of contract or implied covenant not to revoke.
40. It is not the case of the defendant that the licensee acting upon the license, has executed a work of permanent character and incurred expenses in the execution as is postulated under section 60 of Indian Easement Act, 1882.
41. The defendant has not proved any document on record to prove that he purchased the suit property or he spent in the construction of the suit premises. Hence, I have no hesitation to hold that the defendant has failed to prove that he purchased the suit property or paid any amount for that purpose and/or he spent in the construction. Therefore, in my opinion, the defendant has no valid defence to the suit.
42. There is no provision under the law for issuance of any notice as in the case of leases before a license, can be revoked. However, in view of the various Judgments and the law of the land, the filing of the suit itself CS No. 440/10/12 Page 31 of 36 demonstrates the intention of the plaintiff to revoke the license and take back the possession of the suit premises from the defendant.
43. It is settled law by the decision of Privy Council and Supreme Court that if a notice properly addressed is delivered to Post Office, then it must be presumed that it was duly given. Presumption is greater when the notice is registered. Here in this case, the address on the notice Ex.PW1/11 and corrigendum notice Ex.PW1/12 are not disputed, rather it has been admitted by DW1 in the cross examination that one notice was received by her, but it has not been disclosed by her which notice was received by her. What could be the reason that the notice/corrigendum notice was not received by the defendant. Hence, in view of Section 114 of the Evidence Act read with section 27 of General Clauses Act, I am of the opinion that legal notice Ex.PW1/11 and corrigendum notice Ex.PW1/12 must have been served upon the defendant. Accordingly, I have no hesitation to hold in view of above discussions that the license was revoked/terminated by the father of the plaintiff and the plaintiff himself during the lifetime of the father of the plaintiff and after the termination of the license, the defendant has been staying as a trespasser as he had no right to stay in the suit property. Both these issues are, accordingly, decided in favour of the plaintiff and against the defendant.
CS No. 440/10/12 Page 32 of 36
44. My issuewise findings on the issues framed on 07.02.2012 is as under:
ISSUE No. 1:
Whether the plaintiff is entitled for the decree of mandatory injunction as prayed for? OPP.
45. Onus to prove this issue is upon the plaintiff. In view of the findings on issues no. 1.a., 1.b., 1.c. & 1.d., I hold that after the demise of the parents of the plaintiff, the plaintiff became the sole, exclusive and absolute owner of the suit property by virtue of their Wills and the defendant was allowed by the father of the plaintiff to live in the suit property in the capacity of licensee. The license was revoked/terminated by the father of the plaintiff and the plaintiff himself during the lifetime of the father of the plaintiff and after the termination of the license, the defendant has been staying as trespasser as he had no right to stay in the suit property. Hence, the plaintiff is entitled for a direction to vacate and hand over the peaceful possession of the suit property i.e. Flat No. 359, Block No. B4, Sector8, Rohini, Delhi110085 with ground floor, first floor and second floor built on an area of 29.9 sq. meter, as shown in the site plan Ex.PW1/2, against the defendant. Accordingly, this issue is decided in favour of the plaintiff and against the defendant. CS No. 440/10/12 Page 33 of 36 ISSUE No. 2:
Whether the plaintiff is entitled for the decree of permanent injunction as prayed for? OPP.
46. Onus to prove this issue is upon the plaintiff. In view of the findings on issues no. 1.a., 1.b., 1.c. & 1.d., I hold that after the demise of parents of plaintiff, the plaintiff became the sole, exclusive and absolute owner of the suit property by virtue of their Wills and the defendant was allowed by the father of the plaintiff to live in the suit property in the capacity of licensee. The license was revoked/terminated by the father of the plaintiff and the plaintiff himself during the lifetime of the father of the plaintiff and after the termination of the license, the defendant has been staying as trespasser as he had no right to stay in the suit property. Hence, the plaintiff is entitled to a decree of permanent injunction against the defendant from transferring, alienating, encumbrancing, creating third party rights and letting out in any manner whatsoever in respect of suit property i.e. Flat No. 359, Block No. B4, Sector8, Rohini, Delhi110085 with ground floor, first floor and second floor built on an area of 29.9 sq. meter. Accordingly, this issue is also decided in favour of the plaintiff and against the defendant.
ISSUE No. 3:
Whether this Court has jurisdiction to try this case? OPD.CS No. 440/10/12 Page 34 of 36
47. The onus to prove this issue is upon the defendant, though the onus to prove this issue ought to have been on the plaintiff. There is nothing on record, which may oust the jurisdiction of this Court. Even otherwise, no argument has been addressed by ld. counsel for the defendant regarding this issue. There is neither any oral nor any documentary evidence on record to prove that this Court has no jurisdiction to try the present suit. Hence, I have no hesitation to hold that this Court has the jurisdiction to try and entertain the present suit. Accordingly, this issue is decided in favour of the plaintiff and against the defendant. ISSUE No. 4 (Relief):
48. In view of my aforesaid discussions and findings on issues no.
1.a., 1.b., 1.c., 1.d., 1, 2 & 3, a decree for possession of the suit property i.e. Flat No. 359, Block No. B4, Sector8, Rohini, Delhi110085 with ground floor, first floor and second floor built on an area of 29.9 sq. meter, as shown in the site plan Ex.PW1/2, is passed in favour of the plaintiff and against the defendant and the defendant is directed to hand over the vacant and peaceful possession of the suit property to the plaintiff.
49. A decree of permanent injunction is also passed against the defendant, his agents, assignees, servants, successors or whosoever working on his behalf from transferring, alienating, encumbrancing, CS No. 440/10/12 Page 35 of 36 creating third party rights and letting out in any manner whatsoever in respect of suit property i.e. Flat No. 359, Block No. B4, Sector8, Rohini, Delhi110085 with ground floor, first floor and second floor built on an area of 29.9 sq. meter. However, the defendant is granted 90 days time to vacate the suit premises from the date of this judgment and the decree. Costs of the suit are also awarded to the plaintiff.
Decree sheet be prepared accordingly and file be consigned to Record Room.
Announced in the open Court (CHANDER SHEKHAR)
Today i.e. 17.08.2013 District & Sessions Judge (North)
Rohini Courts, Delhi
CS No. 440/10/12 Page 36 of 36